It was May 2011 when Samandeep Singh Gill, likely with a gangster strut, got involved in a “road rage”altercation and a “fender bender” quickly turned into a cold blooded killing. Gill (allegedly of course) shot the other driver Manbir Singh Kajla several times and Kajla died at the scene. For good measure Gill also shot at Kajla’s newly wed wife, Pavan, before disappearing.
Seven long years later, after IHIT had turned the file over to the Unsolved Homicide Unit in 2016, Gill was finally charged in 2018 with 2nd degree murder and attempted murder. Since the arrest and up to the time of the trial in 2021, Gill was simmering away in jail. The Court did not feel this gun toting Mr. Gill was safe to be allowed out to await his trial.
However, in March 2021 it all went sideways for the police and the Crown when the presiding Justice of the Supreme Court ruled that the Integrated Homicide Team had engaged in a “systemic, flagrant disregard” for the law, and were “at best wilfully blind” to this “egregious” behaviour,“. What had been exposed he stated was a long standing policy of “deliberate non-compliance” with the law. With these words Justice David Masuhara of the Supreme Court then turned to the accused killer and told him he could go home; a free man.
A good day for Mr. Gill and a horrendous day for the family of Kajla. A catch and release for IHIT and the Unsolved Homicide Team after many years of investigation. Furthermore, there was also the grim prospect that this ruling would ripple through to other cases —especially those which had been brought forward between 2007 and 2014.
The allegations of the Justice, applauded by defence counsel, were indeed troubling. However, as one read the blaring headlines, there was a tenor to the pronouncement which didn’t resonate with those of us that had worked in this field of death investigation. Really, a policy to break the law? Fracturing the law was possible, but how could one be so stupid as to make policy around it.The allegation seemed illogical.
The answer on further review turns out to be much more understandable; albeit still wrong, but worthy of an explanation.
The knee jerk furor of the media aside and ignoring the autonomic NDP political damage control that quickly ensued, what kick-started the panic was a low profile, somewhat innocuous section of the Criminal Code –Section 490. Twenty pages of fine print in Martin’s Criminal Code which deals with the subject matter of “Detention of Things Seized”.
For greater clarity, the portion in specific contention is section 490(2) which says that “Nothing shall be detained under the authority of paragraph 1 (b) for a period of more than three months after the day of seizure, or any longer period that ends when an application made… unless a justice, on the making of a summary application to him after three clear days…notice thereof to the person from whom the thing is seized, is satisfied…that its further detention is warranted”.
In laymen’s terms, when the police seize anything as evidence, usually under warrant, the police can hang on to the items for three months but if they wish to hold it longer they need to apply to the courts to do so. Sounds simple, but it is not. This is in fact a highly burdensome section. Arguably a largely administrative procedure which involves contacting all those from whom the items were seized, notifying them individually of the future court proceedings where the police would be arguing to extend the exhibit(s) detention.
But, imagine a case where there are 1200 seized exhibits (the Surrey 6 file as an example) , or a drug conspiracy case with hundreds of exhibits. Imagine an investigation taking a few years, where every 3 month period requires a court application and then you begin to see the problem. To continually comply with this section over forty cases (IHIT average) in one year alone, an army of additional officers would be needed on a full time basis. Without doubt it is the law but it is equally largely unworkable. Remember that the law never caters or entertains an argument wherein the police or the Crown say something requires further manpower or resources. It is a police resourcing problem they would rationalize, not a law problem.
IHIT in this case, and apparently in several others, during the years 2007 to 2014 never complied with this Section. In fact, the Justice goes further and says that IHIT had an actual “policy” to contravene the Criminal Code. A written policy to intentionally break the law despite their having been legally counselled on many occasions not to do so.
The explanation of this being “policy” is also a little more textured.
To fully understand one must travel back in time to 2007; it was what was going on in 2007 that created the problem for the 2011 case, which was discovered in the trial of 2021.
2007 was part of the golden era for homicide investigation. It was an atmosphere of smoke filled rooms, drinking, dark humour, and inappropriate jokes on a regular basis. It was the Mad Men years. The pace was often frenetic, demanding hours at the cost of family or relationships. But, it was good, a lifestyle choice rather than a career choice. For some reason, it also worked, with a solvency rate that brushed against 78% in those early years, while only consisting of four teams of eight investigators.
It was also a time where the officers of early IHIT were experienced and were thus comfortable working on the high wire of the law. There was no principled argument against bending or stretching the law to meet some investigative need. Bending and not breaking was in fact the learned art.
The Criminal Code was the only policy and guide. Crown prosecutors were trusted mentors. There were no homicide pamphlets, nor did anyone turn to an “operational manual” for any kind of guidance. Just a group of head scratching cops with a tendency to not believe anyone, trust no one, and often used a strong epithet to counter a learned argument, a disgruntled grunt serving as a yes or no.
Court was the stage, it was part of the game. Best player wins. It was a small, compact and familiar group— there were the cops who investigated the murders, the Crown lawyers who prosecuted and the defence counsel who represented the “pieces of shit”. A grudging but mutual respect built up over years.
In 2007, Sgt Al Ross headed one of the four IHIT investigational teams. During a routine conversation with a Justice of the Peace, it was pointed out to him that many officers were not complying with the provisions of Section 490, and they (the police) needed to address the matter. Sgt Ross took it upon himself to try and find a solution to this problem; all while remaining fully aware of the logistical nightmare that this could represent.
So he sought out and went to speak with Sr. Crown Counsel John Labossiere. Labossiere gave the correct legal answer, “there is no latitude for covert police operations” that the Criminal Code was clear in that regard. There was also discussion and recognition of the issue the police were facing —in trying to comply with this arduous section.
Sgt Ross then goes to another Sr Crown, Terry Schultes (now a Supreme court Judge) who tells Sgt Ross that they can not ignore the law in this case. Again, there is no easy out., but informally again there was recognition that they “had to make it work”, just no solution as to how that could be done.
Sgt Ross, not known as one that gave in easily, then went to the RCMP legal counsel at the time, Les Rose, seeking yet another legal opinion. Mr. Rose one of the go-to individuals inside the RCMP had a reputation for being somewhat more pliable when it came to the policing efforts. In this case, Mr. Rose told Sgt Ross that he needed to comply, but he also opined that there was a need for “balanced risk management” and that he knew of no case where there had been an “exclusion of real evidence” based on a breach of Section 490.
Sgt Ross met with the Officer in charge of IHIT, Wayne Rideout, and also Inspector Bill Fordy the latter being one who also leaned to the explanation of the need for a “balanced risk management”. This was followed by “a memo” coming from the Officer in Charge telling officers not to seek extensions, if they felt that by requesting the extensions they would “attract attention to the non-compliance”. They seemed to follow that old standard RCMP policy solution –ignore the problem, and in the meantime don’t tell anyone.
In January 2008, Sgt Ross writes to Supt Wayne Rideout “warning of the circumstances” brought about by non-compliance however he does throw in that “I anticipate the possibility of real evidence being excluded in a homicide is low”. He recommended that IHIT try and obtain some further resources and manpower, absolutely needed he argued, if they were going to get some sort of ability to comply with the section.
Fast forward now to 2011.
S/Sgt Gorgichuk, who was then a Constable with the 2nd generation of IHIT investigators, was the file co-ordinator for the Gill attempted murder case. She appeared at the trial in 2021. Her testimony and explanation of Section 490 did not go well.
In this case, search warrants were executed on the Gill residence. They seized nine cellphones because “they didn’t know which one was the accused”. They also seized a home security videotape (which was not included on the warrant), after getting access to the residence. Amongst the phones seized was a 60 second audio clip, captured apparently because of a “pocket dial” during the time of the shooting; which implicated Mr. Gill in the killing and therefore a central piece of evidence for the Crown.
Unfortunately the Crown and their police witnesses ran into a very able and formidable criminal defence attorney Matt Nathanson. One could question Nathanson’s choice of high paying clients, but one could not question his experience and intelligence.
Nathanson challenged the seizure of the video on the grounds that the home security camera was not on the warrant. He also challenged the seizure of the phones on two primary grounds. The “over reach” of the warrant and the criminal “policy” of IHIT of not complying with Section 490 of the Criminal Code as testified to by S/Sgt Gorgichuk. Nathanson no doubt with his most theatrical voice pronounced that he had “never seen anything like this before”, this wanton disregard for the law.
Justice Masuhara agreed. The over reach or what the Justice calls “over-seizure”on the cellphone seizure and the fact that it was an unlawful search of the security camera system was what warranted exclusion of the evidence flowing from it.
What pushed the Justice over the line seemingly was the “policy” which S/Sgt Gorgichuk “acknowledged her awareness” of —that “direction” in 2007 not to comply with Section 490.
Far be it for this outsider to question S/Sgt Gorgichuk, but it is difficult to believe that she did not comply with Section 490 in the Gill case— because of a remembrance of this “direction” that was issued in 2007. Gorgichuk was a Constable in 2011.
The Justice wasn’t enamoured with her when describing her evidence: “I determined that S/Sgt Gorgichuk was not a credible witness and that she engaged in advocacy, though I did not find she intentionally misled the court… As I have stated, I did not find S/Sgt Gorgichuk to be a credible or reliable witness …she refused to acknowledge errors in her testimony even when confronted with clear evidence..her testimony was nonetheless misleading, combative, and at times contradictory”
S/Sgt Dwayne MacDonald (now the Officer in Charge of Federal Investigation Services and Organized Crime) was the Team Commander for the Gill case. The Justice speaks to his testimony and of his apparent cancelling of the “directive” in 2014 (worthy of noting that the Justices’ language went from calling it policy to a directive)when he says:
“On XXXX 2011, S/Sgt Dwayne McDonald was a Team Commander at IHIT, responsible for the investigation of the murder of XXXX Kajla. Since 2007, the senior management at IHIT had provided direction with respect to applications for the extension of 5.2 Detention Orders. Specifically, that no extension of the 5.2 Extension Order would be sought upon the expiry after 3 months (I believe that the two XXXX references by A/Comm Dwayne McDonald in this email were a direct result of him not remembering the exact information);” In other words, he was guessing a bit.
From a police perspective, is some of this understandable and even arguable? Maybe.
This writer believes that non-compliance with this Section is rampant in every part of this country, in every police agency in the land. It is largely an unworkable Section of the Criminal Code that needs re-vamping, especially in times of limited resources and “defunding” of the police.
It is obvious though that IHIT rolled the criminal trial game dice, and they lost, they busted. In doing so have blemished the already burnished reputation of IHIT. Only Mad Men would have taken the chance.
For the record, this writer does not believe there was any “policy” of non-compliance. In fact the Acting Officer in charge Michelle Tansey of IHT recently said “this was not policy”.
David Eby the Attorney General for the Province of B.C. is “studying the viability of an appeal” even though the BC Prosecution Service has already stated that an appeal would “not likely” be successful.
To measure his chance at a successful appeal, Mr. Eby may want to go down the hall in Victoria and speak with his new hire—the Director of Police Services for the Province— Wayne Rideout– and ask him whether in fact he authored a direct “policy” of non-compliance. Seems simple enough.
Or the NDP and the RCMP can just roll the dice again …and hope no one else goes free.
(Full disclosure: this writer was one of members of Integrated Homicide Investigation Team from its inception in 2003 to 2008. All the parties in this blog were not only known by me, but I worked and consulted with the cops and the lawyers mentioned in this blog on a relatively regular basis. In addition, as a team leader of one of the investigative teams would also have been privy to any policies within IHIT )
Photo Courtesy via Flickr Commons by PositiveCandie_N –Some Rights Reserved