‘Significant’ number of prosecutions in question over evidence mishandling concerns: B.C. premier

British Columbia’s premier has confirmed a “significant” number of criminal prosecutions have been questioned, challenged or overturned in the aftermath of a historic finding that RCMP homicide investigators mishandled evidence in a high-profile murder case in Surrey.

In an exclusive interview, David Eby said adherence to Criminal Code requirements on the treatment of evidence “has the attention of the RCMP” and other law enforcement agencies. Cases impacted by the groundbreaking 2021 finding of “systemic” flouting within the RCMP’s Integrated Homicide Investigation Team (IHIT) are proceeding through the justice system now, he added.

“The laws of Canada apply equally to police, to government, to politicians, to journalists, to the public,” Eby told Global News in December. “It will be up to the judges to make determinations about how this policy may have affected the case in front of them.”

In April 2021, B.C. Supreme Court Justice David Masuhara ruled that IHIT investigators demonstrated “systemic, flagrant disregard for charter-protected rights” in the case against Samandeep Gill, who was charged with second-degree murder and attempted murder in the 2011 killing of Manbir Kajla.

Masuhara found the unit’s investigators had a “policy of noncompliance” with a section of the Criminal Code that outlines procedures for handling and retaining evidence seized during investigations, raising questions about compliance in other IHIT investigations conducted over the years.

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Gill was acquitted in Kajla’s murder after alleged audio of the April 2011 shooting was deemed inadmissible in court. Masuhara said cellphones had been held by police investigators in the case for almost seven years without a judge’s approval.

2:02 B.C. Prosecution Service looking into appeal of landmark case

In the aftermath of the case’s derailment, Eby — then attorney general — ordered an independent review to determine whether an appeal would be viable in the case, noting the ruling’s impact on “the public’s confidence in the justice system” and its “potential impact” on other cases. The completed review was kept secret.

“Generally those decisions are privileged and the reason for that is to make sure that the Crown can prepare the best case possible going forward and to decide on legal strategy, so it will remain privileged,” Eby told reporters in October 2021.

Asked last month what progress had been made politically on the issue, Eby pointed to increased core funding for the RCMP to ensure its specialized teams have the resources to fully understand and comply with their legal requirements. Any other provincial information on the topic that can be released will be released, he added.

Global News has reached out to IHIT for comment.

Vancouver criminal lawyer Ravi Hira said that in the 21 months since the Masuhara decision, more police applications are being made under Section 490 of the Criminal Code to retain evidence by proving its necessity to an ongoing investigation that needs more time. Hira has no connection to the Gill case.

“This deals with cell phone and video evidence, which can be very compelling evidence. To lose that evidence in a prosecution, depending on what other evidence exists, can have a serious effect on the prosecution,” he explained. “Section 490 is an important accountability tool that’s been in place for almost 40 years.”

He said Eby “quite properly” kept the Gill appeal review private while attorney general, and it remains up to the current attorney general to decide whether or not to waive that privilege in full or in part.

“In good democracies, providing information to the public is always a good thing. However, you also have to be mindful that investigations have to be protected and you should not release information before investigations are completed that would impair investigations. So it’s a balancing act.”

— With files from Rumina Daya and Simon Little