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Road-rage murder acquittal upheld due to 'egregious' conduct by B.C. homicide team

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B.C.'s highest court has upheld an acquittal in a case where audio of an alleged road rage murder was recorded on a cellphone – finding the way the evidence was handled was an "egregious" breach of the law by police.

Samandeep Singh Gill was found not guilty of one count of second-degree murder and one count of attempted murder in 2021, almost 10 years after the roadside shooting that gave rise to the charges.

Crown's appeal of the verdict was dismissed Monday, with a three-judge panel unanimously rejecting the bid for a new trial that would include the audio recording – which the decision notes police found "to their surprise" six years after it was seized from Gill's home in the initial stages of the murder investigation.

"The audio recording was crucial to the case, as it identified the accused as the person involved in the shooting," the appeal decision says.

The fatal shooting

The court decision briefly describes what unfolded in April of 2011, saying the shooting happened after the victims were involved in a minor collision with another vehicle in Surrey.

"The driver had a loaded handgun, and, without warning and without exiting his vehicle, shot the deceased," Justice Harvey M. Groberman wrote.

"The deceased’s wife had also exited the vehicle and walked toward the (vehicle). As she approached, she saw the driver aim a handgun at her. She ducked, and though the driver took shots at her, they did not hit her."

Cellphones seized

The Integrated Homicide Investigation Team got a warrant to search Gill's home as well as the vehicle he was allegedly driving at the time of the murder.

"The warrant specifically authorized a search for the accused’s cellphone, but did not mention any other cellphones, nor did it refer to any surveillance devices. During the search, the police seized nine cellphones, without regard to whom they belonged to," the decision says.

"They also seized a video surveillance device. When their authority to detain the seized items expired, they continued to hold them, deliberately refraining from seeking an extension."

Those actions, the trial judge found, violated Gill's Charter right against unreasonable search and seizure and so the recording and other evidence from the illegally seized devices was excluded – prompting the acquittal.

Crown argued, in part, that the trial judge did not consider the "totality of the circumstances" when it came to the confiscation of the cellphones and that the police were entitled to seize them if they had reasonable grounds to believe they belonged to Gill and could contain evidence.

Rejecting this argument, the appeal court referred back to the testimony from the IHIT file co-ordinator at the trial who admitted that police had "no idea" who all of the phones belonged to.

"The judge took a reasonable approach to the issue. Cellphones typically contain large stores of private information, and the ability to control and access that information is Charter-protected. The judge fully understood what was at stake in this case and made no reversible errors in his application of the law," the decision says.

Evidence held illegally for years

Keeping the cellphones for nearly seven years without ever seeking or obtaining the court's permission to do so was found to be a more serious violation of the accused's rights and, on appeal, the Crown did not dispute that this was a "flagrant and apparently deliberate breach of the law by police officers."

When evidence is seized, it can be held for three months. After that, police must apply for court orders to continue to hold items.

Not only did investigators fail to do so in this case, the homicide team had a policy not to do so in any case, according to the decision.

“Several years before the seizure in this case, IHIT officers had been directed by its senior management not to seek extensions of detention orders after the initial three-month authorization expired," Groberman wrote.

"They considered that seeking extensions would provide suspects with sensitive information as to the status of investigations."

Despite warnings from Crown prosecutors and an RCMP lawyer that the homicide team could face "consequences" if they continued to do this, "IHIT continued to follow the practice of ignoring the legal requirement to seek an extension."

Although the team changed its policy in 2014, it did not retroactively apply for permission to keep items like the ones seized in the Gill case. The application to continue holding the cellphones was not brought until 2018.

Because the police got permission to continue to hold the items and to search them before the audio recording was discovered, the Crown argued that Gill's rights were not being violated at the time the evidence was uncovered and so the evidence itself should be allowed.

The appeal court disagreed, finding that even if the violation of Gill's rights was "mitigated" by these actions – it still occurred and was still significant enough to warrant the exclusion of the evidence.

"The Court must not, in these circumstances interfere with the judge’s discretionary decision to exclude evidence, even in the face of extremely serious offences that had tragic human consequences," the decision concluded. 

B.C. Attorney General responds

The judge who acquitted Gill said in his decision that there were likely hundreds of homicide files between 2007 and 2014 that were likely impacted by IHIT's "blanket non-compliance policy."

Attorney General Niki Sharma, asked about the case Monday, said she recognizes that the outcome of the trial and the appeal have likely been devastating for the surviving victim, her family, and the other loved ones of the man who was killed.

She also acknowledged that it could have repercussions for other cases.

"I'm going to be assessing the outcomes of this decision," she said.

"I am concerned not only about the victims in this particular case, but I'm disappointed with the outcome."

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