No new trial for accused killer following IHIT evidence errors, B.C.’s top court rules

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Crown loses appeal of thrown out murder trial
The BC Court of Appeal has dismissed an appeal by the Crown in a second-degree murder case that crumbled because of a procedural violation by police. Rumina Daya reports – Feb 26, 2024

British Columbia’s top court has rejected an appeal from Crown prosecutors seeking a new trial of an accused murderer who was acquitted due to police errors in handling evidence.

In 2021, a B.C. Supreme Court judge acquitted Samandeep Singh Gill of second-degree murder in connection with the fatal shooting involving a newlywed couple in 2011.

Manbir Kajla, 30, had just married the morning of April 27, 2011. The woman, whose identity is protected by a publication ban, watched in horror as Kajla was gunned down following a road rage incident that night.

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Court: RCMP disregarded law, murder suspect acquitted

At trial, a B.C. Supreme Court judge threw out key pieces of evidence, finding the Integrated Homicide Investigation Team had ignored Canadian law on how to handle them.

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“It certainly was not a technicality,” Matthew Nathanson, Gill’s lawyer, told Global News.

“If somebody or anybody wants to read the court of appeals ruling, it speaks for itself, the trial judge’s ruling examined in detail the constitutional failings in this case, and it is not a technicality.”

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According to Monday’s B.C. Court of Appeal ruling, police had seized nine cellphones and a video surveillance device while searching Gill’s home — despite only having a warrant to take his phone. Police went on to keep the devices when their authority to hold them expired, “deliberately refraining from seeking an extension” as required by law.

At trial, the court heard 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.”

When police finally got the authority to search Gill’s phone six years later, they found it contained an audio recording of the killing.

That 1:40-length recording includes the voices of two men, one identified as Gill by his brother-in-law, and “a screaming sound that appears to be from a woman. Several gunshots are heard,” according to the ruling.

The trial judge, however, refused to accept the recording along with evidence from several of the other devices, finding their seizure and retention were unlawful and a violation of Gill’s charter rights.

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The Crown appealed Gill’s subsequent acquittal, but on Monday a three-judge appellate court panel dismissed the appeal — finding the trial judge had made no legal error in excluding the evidence.

In a decision penned by Justice Harvey Groberman, the court conceded there was room to debate whether the warrant could have applied to more than one phone in the home, and that there were objectively reasonable grounds to seize the surveillance device.

He noted the trial judge’s decision that seizing the additional devices on their own, while a charter violation, would not have been enough for the court to exclude the evidence.

However, that exclusion was more reasonable in the context of the key legal issue — the intentional “over-holding” of the devices for years without legal authority, he wrote.

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“In 2007, two senior Crown counsel advised IHIT that it could face legal consequences for failures to abide by the requirements of s. 490 of the Criminal Coderequiring police to seek authorization for the detention and extended retention of seized items, the ruling states.

“In 2009, a third senior counsel reiterated that advice. Later on, an RCMP lawyer provided a similar warning. Nonetheless, IHIT continued to follow the practice of ignoring the legal requirement to seek an extension.”

IHIT ultimately changed the policy in 2014, but even so, it did not search Gill’s phone until 2018, the ruling states.

Groberman rejected the Crown’s argument that the trial judge had “over-stated” the impact of holding the devices without authority, finding that doing so was a significant charter violation of Gill’s rights.

“The Crown, here, concedes that the flagrant and apparently deliberate breach of the law by police officers was egregious,” he wrote.

“When that characterization is combined with a finding that the breach had a serious effect on Charter-protected rights, the case for excluding evidence is very strong, indeed.”

B.C. Attorney General Niki Sharma said she is disappointed with the outcome of the case, and will be assessing the situation.

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