MODEL INDEPENDENT INVESTIGATION AGENCY POLICY Handling of Incident Video In an effort to insulate against the tainting of evidence, the independent investigation agencies of Canada, as represented by the below signatories, follow standard investigative best practices for obtaining an independent statement concerning an incident before exposing a witness to any evidence from other sources. This includes video. Itis not accurate to say that a video is simply a recording of what a witness perceived. A witness’s perception is very much the individual organization, identification and interpretation of sensory information which can be impacted by any number of both internal and external factors. ‘A video recording cannot and does not replicate the human process of perception. In the context of the investigation of critical incidents, a witness’s individual perception of the circumstances forms an essential and necessary evidentiary piece of the puzzle that must be considered when assessing both the subjective and objective reasonableness of any use of force. ‘Viewing a video prior to providing a statement will almost inevitably influence a witness account and diminish its investigative value. Equally important, it would be impossible to demonstrate in any meaningful way that the prior opportunity to view video recording did not influence an individual’s perception or memory so as to guarantee that any subsequent statement had not been compromised. It would be unprincipled to employ a different practice when a witness is a police officer. Doing 0 would mean conferring preferential treatment on police officers as compared to other classes of interview subjects, and would neither satisfy a “best practice” standard nor mect public expectations for independent investigations of police conduct. Such an action would also lead the public to question the independence and professionalism of independent critical incident investigations, and consequently undermine our efficacy as investigative entities. It is the presumption with respect to every witness interview—whether a civilian or police wwitness—that a “pure statement” will be taken in order to rigorously determine that witness's recall and perception of the events under investigation. An independent investigation increases public confidence in police accountability when it seeks to obtain evidence that is credible and unadulterated, Policy: 1, Upon being notified of a critical incident, investigators will determine whether any incident video may exist. 2. Where any potential video exists that is in the possession of the police service, investigators shall ensure that all footage is immediately secured in the manner established in each jurisdiction and turned over to the independent investigations agency at the earliest opportunity, This includes but is not limited to footage from the police station, from cell security cameras, in-car-camera recording systems and body-worn cameras, 3. Access to the secured video evidence must be restricted in accordance with the requirements of the individual independent investigations agency of jurisdiction to ensure no contamination of potential witnesses, In some jurisdictions, this may mean that no Page | 1MODEL INDEPENDENT INVESTIGATION AGENCY POLICY ‘Handling of Incident Video viewing of such video will be undertaken by a person, including any police officer, prior to the independent investigations agency taking custody of the video. ‘This is subject to any continuing public safety concerns or concurrent investigations that may require an exception. In those eases, however, any access shall be documented, including who has accessed the video and the steps taken fo protect any potential contamination of evidence related to the investigation of the critical incident itself. ‘Video will be secured and subsequently viewed by assigned investigators at the earliest ‘opportunity, Video will be presumptively treated as “hold back” evidence in relation to the critical incident until such time as the investigative team determines otherwise, In critical incident investigations, a witness’ perceptions of events are an important factor to be considered in determining the facts and obtaining a just result. Anything which may interfere with, or improperly influence, the witness’s perceptions at the time s/he acted can bee critical to the outcome of a case. As such, critical incident investigators will presumptively conduct a two-stage interview where incident video is available, The second-stage of the interview remains in the diseretion of the critical incident investigator, and is to be exercised on a case-by-case basis. a, In the first stage, the witness will be asked to provide a “pure statement” about his/her perceptions of what occurred, Investigators must be mindful that inconsistencies and mistakes of fact are to be expected given the frailties of ‘human perception and that these do not necessarily indicate a lack of truthfulness, particularly in the context of a rapidly evolving and dynamic critical incident. b. In the second stage, the witness may be allowed access to the video of the incident to refresh his/her memory and allow for any elaboration or clarification of their evidence, No automatic inference of untruthfulness should be drawn simply from inconsistencies or inaccuracies in the initial statement. Where third party video exists, investigators must evaluate whether the best interests of the investigation would better be met by advising a witness of the existence of the video before commencing the interview, or after obtaining a ‘pure version’ account. If identification is an issue in the investigation, the potential contamination of any witness’s subsequent identification as a result of being shown a video must be considered and, if necessary, reasonable investigative steps to secure the best identification evidence should be undertaken before a witness is exposed to any video evidence. ‘To avoid both the potential for, and the reality of, improper “witness tainting”, requests for a copy of incident video in advance of an interview should be declined, absent exceptional circumstances. If video is to be shown, it should be in a controlled environment so that the circumstances may be carefully documented, It is prudent to videotape the witness reviewing the video in the company of the investigator. In critical incident investigations, subject officers have the same Charter rights as all other citizens, including the right not to provide a statement or answer questions. There will be times when a subject officer dectines to provide a voluntary statement unless s/he is given Page | 2MODEL INDEPENDENT INVESTIGATION AGENCY POLICY Handling of Incident Video the opportunity to review incident video prior to such an interview or provision of a written statement, In rare and exceptional circumstances, at the discretion of the independent investigative agency, a subject officer may be allowed to view such video prior to conducting or continuing an interview or providing a statement, In making a determination as to whether this discretion should be exercised, the independent investigative agency shall weigh the benefit of obtaining a voluntary statement from the subject officer against the risk of contamination of the voluntary statement, the impact on the integrity of the ongoing investigation, and the public interest. A decision must be made about which option best ensures the integrity of an investigation and can withstand appropriate scrutiny. As such, supervisorial approval must be received prior to granting such a request. If such a request is granted, any viewing of the video must be in a controlled and well-documented environment as indicated previously. 10. If there are multiple video sourees capturing an incident from different angles, access will be provided to the appropriate video(s) which represent the view the witness would have held 11, Investigators must ensure that an exact copy of any video shown to a witness is preserved as evidence. Investigators must be able to say precisely what video was shown to the witness and all the surrounding circumstances, Any video shown to a witness should be properly identified and described in the recorded interview as well as documented in the investigative notes. If witness refers to a portion of the video during their interview, the portion referred to should be properly identified and described so that the record is clear, 12, Any video of the incident a witness viewed outside the control of the investigation (c.g., video posted on the Internet) should be canvassed in the interview and a copy preserved as well, Investigators should use a standard preamble to read to a witness, canvassing the issue of whether they have seen any video of the incident from any source (media, YouTube, ctc.) Excellent documentation is crucial. Page | 3MODEL INDEPENDENT INVESTIGATION AGENCY POLICY Handling of Incident Video Signed on behalf of the Alberta Serious Incident Response Team Executive Directo! Alberta Serious Incident Response Team Suite 1404, 9915-108 Street Edmonton, Alberta TSK 2G8 Page |4MODEL INDEPENDENT INVESTIGATION AGENCY POLICY Handling of Incident Video Signed on behalf of the Independent Investigations Office of British Columbia we Richard Rosenthal i Date Chief Civilian Director 12" Floor, 13450 — 102 Avenue Surrey, British Columbia V3T 5X3 Ca fren 24 whe Page | 5MODEL INDEPENDENT INVESTIGATION AGENCY POLICY Handling of Incident Video Signed on behalf of the Independent Invéstigation Unit of Manitoba aus [fer Moy bold Zane Tessler Datd Civilian Director 700 — 155 Carlton Street Winnipeg, Manitoba R3C 3H8 Page | 6MODEL INDEPENDENT INVESTIGATION AGENCY POLICY Handling of Incident Video Signed on behalf of the Nova Scotia Serious Incident Response Team Tanai \ S30} yea 24 204, Ronald J, MacDoyfald, Q.C. Date —J Director Suite 203, 1256 Barrington Street Halifax, Nova Scotia B3J 1Y6 Poge |7MODEL INDEPENDENT INVESTIGATION AGENCY POLICY. Handling of Incident Video Signed on behalf of the Ontario Special Investigations Unit ty fpoore hy EE arco Date Director 5090 Commerce Boulevard Mississauga, Ontario L4W 5M4