VANCOUVER – A sexual assault conviction that led to the imprisonment and deportation of a former British Columbia man, which the Crown later admitted was a “miscarriage of justice,” has been thrown out by the province’s highest court.
The B.C. Court of Appeal has considered DNA evidence that wasn’t disclosed to the defence counsel of Gurdev Singh Dhillon before his trial, and in a decision released Friday set aside his 2005 convictions for sexual assault and assault.
Justice Anne MacKenzie did not acquit the man, however. She said the DNA evidence would not necessarily lead to his acquittal in a new trial, but further court action “would perpetuate an injustice and undermine the integrity of our judicial system.”
“In all the circumstances, I conclude a new trial would constitute an abuse of process, and that a judicial stay of proceedings is the appropriate remedy,” she said in a unanimous ruling by the three justices on the panel.
MacKenzie did not award court costs to Dhillon, even though the trial ended up in the Supreme Court of Canada.
She said while the case shows a substantial lack of attention by the Crown, there is no evidence of bad faith or malice. She concluded the non-disclosure of evidence did not amount to a marked and unacceptable departure from the reasonable standards expected of the Crown.
The allegation dates back to July 7, 2004, when a woman said was driven to a Surrey home and sexually assaulted. She alleged she was pushed into a bedroom and raped by two of the three males who were present.
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The victim testified during the March 2005 trial that she had given birth to a child as a result of the sexual assault.
Dhillon was convicted of sexual assault and assault in October 2005 and sentenced to four years in prison in February 2006. He was released from custody in October 2008 and deported to India.
Paul Briggs, who is Dhillon’s attorney, said he has not yet talked to his client about the ruling. He said his client can now apply to return to Canada, where he’s expected to take legal action.
“It’s been a devastating impact,” said Briggs.
“Essentially, it was responsible for his first divorce, largely, at least in my view, and it took himself from a very good job in Canada, which he had working at the mill, and took away all of his rights and imprisoned him as a sex offender, so the damages to him are significant.”
Dhillon has made “the best of it in India,” has remarried and has a son,” said Briggs.
Neil MacKenzie, a spokesman for B.C.’s Criminal Justice Branch, said the agency decided an independent review of Dhillon’s conviction was in the public interest once it became aware that evidence was not given to the defence or Crown counsel during his 2005 trial or 2006 appeal.
That review by a special prosecutor who was appointed in September 2011 concluded a miscarriage of justice had occurred.
In February 2013, special prosecutor Peter Wilson approved sexual assault charges against two men: Mohammed Zaaid Ukhttar and Sital Singh Bhatti in connection to the same case.
Neil MacKenzie declined further comment, but had said previously that officials became aware in 2011 that evidence about the case was not disclosed to the Crown, and therefore not disclosed to the defendant.
The RCMP did not respond to a request for comment by publication, but it noted previously that it was their own review of the case in 2011 that raised a red flag and determined that the initial investigation “did not sufficiently consider additional avenues regarding other potential suspects.”
Justice MacKenzie’s ruling said Dhillon’s appeal was based on six separate forensic reports that included the DNA profiles of three men.
She said two of the three profiles matched two suspects who are facing charges, but the third profile was unknown and did not match Dhillon.
She also said a test performed by an RCMP forensic biologist concluded the father of the victim’s child was not Ukhttar or Bhatti.
“In sum, Mr. Dhillon did not contribute to any of the DNA profiles identified in any of the reports,” she said.
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