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B.C. Court of Appeal upholds decision saying IHIT illegally held evidence, now other cases at risk

Other cases at risk; court said IHIT investigators’ seizure of some cellphones and prolonged detention of all seized evidence was illegal

VANCOUVER — A B.C. Supreme Court ruling that threw out evidence in a murder trial three years ago has been upheld by the B.C. Court of Appeal, and that decision could have major implications for other criminal cases in B.C.

In the decision, released Monday, the high court agreed that police in B.C. violated evidence-gathering and retention laws for years.

The Supreme Court justice in 2021 warned there were “likely hundreds” of cases of non-compliance with legal search and seizure policies between 2007 to 2014 by investigators at the Integrated Homicide Investigation Team.

Years before the B.C. Supreme Court case, police were given legal advice that they would be violating the Charter rights of accused and possibly others in other cases if they didn’t extend warrants when required.

The judge in that case ruled allowing the evidence “would bring the administration of justice into disrepute.”

After that 2021 decision, there was retrial of the accused, Samandeep Singh Gill, but prosecutors entered no evidence and Gill was acquitted.

The prosecutors appealed, arguing the Supreme Court judge was wrong to exclude the evidence. But the appeal court agreed with the lower court, according to its written reasons Monday for throwing out the appeal.

Gill had been charged with one count of second-degree murder and one count of attempted murder stemming from a road-rage confrontation on April 27, 2011.

On that night, the deceased — who is not named in the Appeal Court ruling to prevent identification of his wife, who was the alleged victim of the attempted-murder charge — approached a vehicle that was being driven erratically and was shot to death by the driver. The driver shot at and missed the wife.

Days later, police used a warrant that was to seize only Gill’s phone from his house in which several family members lived. Instead, police also took eight other cellphones and surveillance footage from a home security system.

Police applied for an order allowing them to hold onto the seized items for three months and it was granted on May 25, 2011. But the investigation was put on hold until 2018 and police failed to apply for the legally required extension for holding onto the evidence for the years in between.

Evidence showed that “the failure was deliberate and that it was IHIT policy at the time not to apply for extensions, so as to avoid tipping off suspects as to the state of investigations,” the ruling said.

The practice continued until several years after that, when the courts ruled that extension applications could be made without notice to the accused.

In 2018, IHIT was granted an extension to detain the phones and found “to their surprise” that it contained an audio recording of the shooting and, soon after, Gill was charged, according to the ruling. He was in custody for three years before his acquittal.

The Appeal Court agreed that the original seizures of the phones were illegal and violated Gill’s Charter rights.

“The Crown, here, concedes that the flagrant and apparently deliberate breach of the law by police officers was egregious,” the Appeal Court ruled. “When that characterization is combined with a finding that the breach had a serious effect on Charter-protected rights, the case for excluding is very strong indeed.”

Gill’s lawyer Matthew Nathanson, welcomed the ruling, saying it was “well-founded in law and consistent with the relevant authorities.”

Garen Arnet-Zargarian, the board member of the Criminal Defence Advocacy Society of B.C. responsible for its communications, said in an email “the police conduct in Gill is concerning, particularly IHIT’s policy to deliberately neglect their obligations under the Criminal Code.”

But he said it would be “speculative” to assume it would trigger a flood of other cases because other lawyers may have already raised this challenge during their trials.

The laws ensure police respect privacy and property rights, an obligation under the Criminal Code, he said.

When police “take items without authority and hold them under a curtain of secrecy, the public should be upset,” he said. “This decision held IHIT accountable.”

IHIT didn’t return a request for comment before deadline.