A British Columbia Supreme Court judge says the province’s homicide investigation team’s “systemic, flagrant disregard” for the charter rights of accused may impact hundreds of murder cases.
The police failure was uncovered in the case against Samandeep Singh Gill, who was accused of second-degree murder and attempted murder in a 2011 road rage incident in Surrey, B.C., that left one man dead.
In a decision released online Friday, Justice David Masuhara excluded cellphone evidence gathered against Gill that the Crown said was necessary to its case, prompting Gill’s acquittal.
Masuhara says the cellphones were held by police investigators for almost seven years without a judge’s approval, and the failure to apply for an extension was part of a broader policy in place for the Integrated Homicide Investigation Team.
The court heard homicide investigators were given legal advice in 2007 saying they needed to follow search and seizure rules in order to protect their investigations, yet the rules weren’t followed for another seven years.
The judge says testimony at the trial “indicates that there were likely hundreds of files impacted by the blanket non-compliance policy while it was in effect from 2007-2014.”
Attorney General David Eby issued a statement this week saying the province had hired lawyer Craig Jones to review the ruling and provide an opinion on the possibility of a Crown appeal.
“This is a very important case for a number of reasons, both for the families of the victim in the allegations that are at play, as well as potentially for other cases,” Eby said when asked about the case on Friday.
“If there is a possible avenue for appeal, then I would like to know about it and that’s what I’ve asked Mr. Jones to look at.”
Gill was charged in May 2018 in the death of Manbir Kajla, who was shot and killed in 2011 when he left his vehicle to speak to another driver after a collision. The shooter then fired at Kajla’s wife, but missed.
The Crown said it had an audio recording on an iPhone that allegedly captured the shooting. Its theory was that the recording was a “pocket dial” from one of two BlackBerry phones that was inadvertently captured on the iPhone.
The case went cold, but the RCMP’s Unsolved Homicide Unit picked up the investigation in 2016 and went to court to request continued detention of the cellphones police had seized years before.
Court heard the Integrated Homicide Investigation Team, or IHIT, had a long-standing policy not to apply to a judge for evidence extension orders under Section 490 of the Criminal Code.
It began when police learned in 2007 they were contravening the charter by not asking for the continued detention of the evidence.
A memo went out to officers telling them to avoid seeking detention on evidence orders in cases where doing so would draw the judge’s attention to their non-compliance, the decision reads.
“The IHIT policy of non-compliance amounts to systemic, flagrant disregard for charter-protected rights. While I cannot with certainty attribute to the police a deliberate decision not to comply with the charter, I find that the RCMP was at best willfully blind towards the charter implications of the policy and of the over-holding generally,” Masuhara said in his ruling.
“There is something particularly concerning about a police policy of deliberate non-compliance with mandated requirements due to the unilateral prioritization of their preferred investigative methods over following the law.”
Gill’s lawyer, Matthew Nathanson, said in a statement Saturday police are sworn to uphold the law, not break it.
“The fact that they chose to ignore the rules for years even after multiple senior members of the crown told them this wasn’t an option, shows a disregard not only for the requirements of S. 490 of the Criminal Code, but for the rule of law generally,” he said.
Nathanson said the court’s ruling emphasized the need for a remedy to maintain the integrity of the justice system.
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