B.C.’s Premier says his government is reviewing whether to seek a Supreme Court of Canada appeal after a murder case was thrown out because the Lower Mainland’s RCMP-led homicide squad had a policy of ignoring Criminal Code rules for handling evidence.
David Eby said he was very concerned over the British Columbia Court of Appeal’s recent decision to uphold the acquittal of a man accused of a “horrifying, profoundly disturbing” road-rage shooting that killed another man on his wedding day in 2011.
The unanimous February ruling criticized the province’s Integrated Homicide Investigation Team (IHIT) for a directive telling officers to ignore Criminal Code requirements compelling them to seek judicial authorization if they want to hang onto seized evidence beyond 90 days. In that court case, a Mountie from the unit testified that this policy was in place for at least 11 years and that she saw as many as 80 investigations being handled during her five years helping manage these files.
A Globe and Mail report found this week that at least two other B.C. murder cases have been dropped or diminished in recent years after judges ruled to throw out crucial evidence found on cellphones seized and improperly stored by the homicide unit.
“I’m really concerned by the Court of Appeal decision and in the message that it sends, although I understand the reasons for it and I respect the court’s decision,” Mr. Eby said at a news conference on Thursday.
He said he has asked provincial Attorney-General Niki Sharma, who also spoke at the news conference, to review the February ruling with the BC Prosecution Service before deciding on an appeal, which would be a legal challenge he said other provinces would likely be keen to join.
Mr. Eby acknowledged that the high-profile homicide unit “should have followed the rules” and that a “significant number” of their investigations could be affected by the February ruling.
The case against Samandeep Gill collapsed over several years and his acquittal centred around detectives illegally seizing his cellphones and ignoring the Criminal Code’s evidence-retention rules. Court heard an iPhone and two BlackBerrys revealed the accused had allegedly pocket-dialled his own phones and inadvertently recorded a two-minute audio account of the highway shooting in Surrey.
Lower court Justice David Masuhara’s pretrial rulings in the case found the IHIT undermined lawful evidence collection in “hundreds” of homicide cases. He found the homicide unit had a hidden policy under which commanding officers told their investigators to ignore the Criminal Code rules spelling out that police need to seek renewed judicial authorizations to retain seized items beyond 90 days.
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.
Earlier this week, David Haslam, a spokesman for B.C.’s Public Safety Ministry, refused to criticize these detectives, instead telling The Globe that Ottawa needs to help police by overhauling “complex” layers of search-and-seizure laws spelled out in criminal legislation passed by Parliament.
On Thursday, federal Justice Minister Arif Virani told The Globe’s editorial board he is open to engaging all his provincial counterparts on this issue, but he wouldn’t commit to amending the Criminal Code’s section on seizing and storing evidence.
“I’m open to, obviously, facilitating prosecution and law enforcement to work in a manner that still upholds our constitutional responsibilities,” he said. “And I’m always working with my provincial counterparts – so, whether it’s raised in B.C. or otherwise.”
Ms. Sharma said she is glad Mr. Virani appears open to talking about the burden faced by investigators.
With a report from Colin Freeze
Mike Hager