A B.C. man accused of shooting and killing a groom on his wedding day during a road rage incident will not face trial because the homicide detectives made egregious violations of laws governing how police are to seize and store evidence, an appeal court has ruled.
The unanimous ruling Monday by the three B.C. Court of Appeal judges criticizes the province’s Integrated Homicide Investigation Team for a directive telling officers to ignore Criminal Code requirements compelling investigators to seek judicial authorization if they want to hang onto seized evidence beyond 90 days.
Court heard testimony from an RCMP officer that as many as 80 homicide investigations were handled by the team during the five years she helped manage cases, and that the evidence directive spanned at least 11 years.
The case against Samandeep Gill collapsed over several years, despite evidence that included an audio recording of the 2011 killing that was inadvertently pocket-dialled by the alleged shooter. But defence lawyers successfully challenged the digital evidence, forcing the prosecution to withdraw it.
“The Crown, here, concedes that the flagrant and apparently deliberate breach of the law by police officers was egregious. … The case for excluding evidence is very strong, indeed,” Justice Harvey Groberman wrote.
The appeal court concurred with a lower court judge’s decision to exclude all evidence and acquit the accused “even in the face of extremely serious offences that had tragic human consequences.”
On April 27, 2011, two cars in adjacent lanes collided on a Surrey, B.C., highway. Shortly after the two drivers stopped and got out to speak, Manbir Kajla was shot and killed. His wife was also shot at. The couple’s relatives say it had been their wedding day.
Years later, police charged Mr. Gill with second-degree murder and attempted murder after seizing from him several digital devices, including an iPhone and two BlackBerrys. The devices revealed that the accused had allegedly pocket-dialled his own phones and inadvertently recorded a two-minute audio account of the shooting, according to judicial rulings.
In the lower court, B.C. Justice David Masuhara issued a series of rulings between 2020 and 2021 in which he voided evidence in the case after finding detectives had unlawfully seized cellphones and ignored the Criminal Code’s evidence-retention rules.
“The Integrated Homicide Investigation Team (“IHIT”), had since 2007 been directed by its senior management not to seek any extensions of detention orders once the initial three-month authorization had expired. This was notwithstanding the fact that they continued to detain the seized items,” one of Justice Masuhara’s rulings says.
He ruled that the police unit deliberately ignored this law for more than a decade after Crown prosecutors had told the investigations team more than once that it needed to comply with the rules, which are spelled out in Section 490 of the Criminal Code.
The 2021 ruling by Justice Masuhara quotes an RCMP staff sergeant as testifying that she was aware of scores of homicide cases affected by unlawful police directives.
“In her testimony in this voir dire, Staff Sergeant Marnie Gorgichuk, the file co-ordinator for the investigation at the time of the search, acknowledged her awareness of this direction. She testified that, to her knowledge, no extension orders were applied for in any of the roughly 80 homicide files she was involved in during her tenure at IHIT from November, 2009, to August, 2014.”
The B.C. Court of Appeal this week endorsed Justice Masuhara’s findings.
“The trial judge made strong findings of fact about the seriousness of the police misconduct, which he characterized as egregious and flagrant,” said Matthew Nathanson, the defence lawyer in the case.
Prosecutors in B.C. are not commenting on whether this case could affect others. “We’re just reviewing the decision. Our appellate counsel are doing that, and just analyzing what the potential effect is,” said Damienne Darby, a spokesperson for the B.C. Prosecution Service.
In an interview, the brother of the slain man said the acquittal is upsetting, given how evidence documenting the shooting was excluded because of what he considers to be a legal loophole.
“What the audio recording was is a guy accidentally left a voicemail on his own phone,” Kulbir Kajla said. He added that “without that evidence they didn’t have a case.”
He said his brother was shot dead hours after his wedding in Canada, held after a ceremony that he and his wife had earlier in India. “He was legally married that day. That afternoon.”
Parliamentarians in Ottawa should take notice of the collapsed case and discuss the Criminal Code’s evidence-gathering rules, Mr. Kajla said.
“If the legislation does change I don’t think it affects this case. But it should change for the future.”
Legal observers who are uninvolved in the case said that a judicial rebuke of this magnitude is extraordinary.
But “it can all be traced back to a deliberate choice to ignore legal rules with which investigators disagreed,” said Frank Addario, a Toronto lawyer.
Monte McGregor, also a Toronto lawyer, said the courts unearthed serious misconduct. “Police didn’t even circumvent the law – they outright opposed it and blatantly chose to trample on the rights of individuals in favour of strategic police tactics.”
Colin Freeze