How did a P.E.I. cold case fall apart just before it was set to go to trial?

There are still unanswered questions about how Charlottetown Police Services handled a high-profile P.E.I. cold case after all charges against the accused were dropped just before the case was set to go to trial.

The provincial Crown Attorney’s Office announced Tuesday that the charges against Todd Joseph Irving in connection with the 1988 killing of P.E.I. teacher Byron Carr were being withdrawn after it came to light that Charlottetown police had lost "extensive crucial evidence" in the case. 

CBC News first learned about that missing evidence — which includes the knife found at the scene and the towel used to strangle Carr — at a bail hearing in July. The Crown confirmed that’s when they first learned about it, too. But Charlottetown police later told CBC News they knew physical evidence was missing as far back as 2007 when the case was reopened.

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Interim Charlottetown police Chief Darren MacDougall believes police did tell the Crown at some point that some items were missing, but not the full picture of how much physical evidence or exactly which items were lost.

He acknowledges that information should have been provided to the Crown sooner.

"There was likely not enough transparency with regard to the evidence as it relates to the Crown and the investigators. So there was certainly a breakdown there. I think that the investigators clung to the hope that they would be able to interview some of the people involved in 1989 to determine where they might have put these exhibits," MacDougall said.

"It’s the responsibility of the police, for full disclosure, to move that disclosure to the Crown." 

But MacDougall was quick to point out that the DNA evidence collected from the items wasn’t lost — that material was processed and stored appropriately. It was the items themselves, after they’d been processed and sent back to Charlottetown police, that were misplaced.

WATCH | Calls mount for investigation into how crucial evidence was lost:

Michael Arntfield is a professor and criminologist at Western University who heads up the school’s cold case research group. He’s also a former police detective.

"It’s both unusual and unfortunate because this was a great solve using state-of-the art investigative genetic genealogy, IGG, to track down the still alleged or once alleged offender in a very infamous cold case," he said.

"However, it turned out to be sort of an exploding cigar in that once, sort of, the novelty of the solve subsided … the two key pieces of evidence seem to have disappeared, which sort of pulls the rug out from underneath the whole case."

'It contaminates the whole investigation'

Arntfield believes police were hoping the DNA evidence was incontrovertible. And police have said as much.

Todd Joseph Irving walked out of court on Tuesday a free man after the charges against him in connection with the death of Byron Carr were dropped. (CBC)

"With the evidence that we relied upon, and we had significant forensic DNA evidence, we believed the evidence met the threshold to believe that [Irving] committed the offense," MacDougall said in an interview with CBC News after the charges were dropped.

At the July bail hearing, police testified that Irving's DNA was found on Carr’s body, on a pair of underwear left at the scene and on an extinguished cigarette butt placed in Carr’s navel.

His DNA was not found on the towel used to strangle Carr or on a sock left at the crime scene that police said was likely used as a glove to prevent leaving fingerprints behind, according to police testimony.

The entirety of the missing evidence isn’t clear, but the Crown described it as "the overwhelming majority of the critical physical evidence," going on to say that included "key exhibits central to the prosecution."

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With that, Arntfield said, the credibility of the Charlottetown Police Services is lost — along with whatever remaining evidence they had.

"It contaminates the whole investigation because a judge or jury or both … would be left wondering, 'OK, if they have slipshod record-keeping and no chain of custody for key exhibits, what else don’t we know? What else was overlooked? What other corners were cut?'" he said.

"This isn’t corruption, this isn’t malicious. What I think it is is they were fixated on solving this, they cut corners and ultimately at the end of the day they were motivated by getting an alleged killer off the streets and ensuring justice for the family decades later."

WATCH | What happened to missing evidence? Police chief explains:

If police had been forthcoming with the Crown about what physical evidence they did — and didn’t — have in their possession, Arntfield said the outcome could have been much different.

"You would think in a case like this — a high-profile historical homicide using a state-of-the-art and still somewhat controversial technology, IGG — that, even just as a courtesy, some senior officer or the case manager might have notified the Crown that a complex, high-profile case is coming down the pipe, apprise them of the strengths and weaknesses of the case, what witnesses are still alive and locatable and exhibits are still intact," he said.

"There’s other things that could have been done based on what police knew in order to shore up those deficiencies.… I think they would have had probably more evidence to incentivize maybe a quick guilty plea, which is I’m almost certain what police were relying on here. They were expecting a quick guilty plea and none of this suspicious disappearance of evidence would have ever seen the light of day."

Police, Crown look through different lenses: MacDougall

In Ontario, Arntfield said, cold cases get what he calls a "concierge approach," where the Crown is brought in early to weigh in on the strength of the evidence.

MacDougall acknowledges that, in this case, investigators were perhaps weighing the strength of the evidence differently than a prosecutor might.

"Perhaps the Crown, who views this through a different lens — the weight that existed with the missing exhibits measured with the weight of the DNA evidence, the forensic DNA evidence that was very compelling, I would say — [the Crown], again viewing it through a different lens, they came to the conclusion that they were unable to provide the accused with a fair trial."

Darren MacDougall, Charlottetown's interim police chief, says he would welcome an independent investigation. (Barry Acton/CBC)

While Arntfield called the outcome of this case a rare and regrettable snafu, he said it shouldn’t erode public confidence in police.

"The investigation was solid, there was a chokepoint along the way where something happened and I wouldn’t even call it a coverup, I would say they strategically omitted that information at the last minute," he said.

"The question will be: who made the determination to suppress this glaring deficiency and suspicious disappearance and proceed at great time and expense?"

There have been calls for an independent review of how the case was handled, which MacDougall said he would welcome.

It’s up to P.E.I.'s justice and public safety minister to call such an investigation. In a statement to CBC News, the department said it was communicating with Charlottetown police about the Byron Carr case, saying "government has various options to consider in terms of a review and scope, so a particular path is not set yet. It's still under discussion."

WATCH | Why were all charges dropped in the P.E.I. cold-case murder of Byron Carr?: