The Office of the Police Complaint Commissioner has ordered a retired judge to review a Victoria police investigation into the actions of a jail guard who videotaped a male prisoner in police cells.
In November 2021, commissioner Clayton Pecknold received information that special municipal constable Foster Martin had shown another employee a video of a person “engaged in intimate relations.”
Pecknold ordered Victoria police to conduct an internal investigation under the Police Act.
On April 21, 2022, after the investigation was completed, professional standards investigator Sgt. Paul Spencelayh added an allegation of deceit to the notice of complaint, finding that the jail guard had made misleading statements during his Police Act interview.
In September 2022, Insp. Colin Brown, acting as discipline authority, substantiated one allegation of discreditable conduct, finding that the jail guard had taken a video of himself on duty with a male prisoner masturbating in the background and had shared the video with one or two work colleagues.
Brown also substantiated the allegation of deceit, finding that the guard was not truthful during his Police Act investigation.
The allegation that the jail guard had filmed someone having intercourse was not substantiated.
During the discipline proceeding which began Sept. 7, Brown “unsubstantiated” the allegation of deceit. He determined the evidence wasn’t clear that the jail guard “was knowingly untruthful” when he denied showing a video to a colleague.
In a press release Monday, Pecknold ordered a review on the record, saying “there is a reasonable basis to believe that the decision of the discipline authority is incorrect.” The evidence supports the allegation that the jail guard provided false and misleading information during the interview, said Pecknold.
The guard “unequivocally denied showing the videos to a coworker, stating that it could not have happened because he took the videos on a Snapchat platform which is not saved. However, the evidence reasonably supports a conclusion that the videos were saved to the [guard’s] personal cell phone.”
The jail guard also denied during his Police Act interview that he had taken a video of a man masturbating in cells, but admitted to it later at the discipline proceeding, Pecknold noted.
Although Brown considered the jail guard’s “age-related immaturity” as a factor to not substantiate the allegation, “the seriousness of the matter in violating a person’s privacy and dignity was given insufficient weight,” said Pecknold.
The proposed two-day suspension without pay is inadequate and does not take into consideration the seriousness of the jail guard’s conduct, said Pecknold.
“He was in a position of trust, tasked with supervising and protecting vulnerable people in police custody and under his duty of care.”
Pecknold decided that a review on the record was required and is necessary in the public interest.
“The complaint is serious in nature as the allegations involve a significant breach of public trust … The conduct has violated, or would be likely to violate, a person’s dignity, privacy or other rights recognized by law.”
Former provincial court Judge Brian Neal will conduct a paper review of the matter and deliver a decision on whether there is misconduct and, if substantiated, determine the correct disciplinary measures.
