Case involved violations of constitutional protection against unreasonable search and seizure
The Court of Appeal for British Columbia has confirmed the acquittal of a man accused of a 2011 road-rage-related killing, finding that the police’s unlawful six-year retention of seized cell phones and a home security system was serious enough of a Charter violation to exclude from trial the evidence derived from them.
A court acquitted Samandeep Singh Gill of second-degree murder and attempted murder, finding the unlawful detention of items seized from his residence violated his right to be secure against unreasonable search or seizure under s. 8 of the Charter.
On appeal, the Crown argued that the seizure of the cell phones was lawful, and while the seizure of the surveillance system was improper, the objectively reasonable grounds for that seizure weighed against the exclusion of that evidence under s. 24(2) of the Charter. The Crown conceded that the police held this evidence longer than permitted under s. 490 of the Criminal Code but argued that failing to abide by that provision did not amount to a Charter breach. The Crown also argued that the judge exaggerated the impacts of the Charter breaches on Gill’s privacy rights when executing the s. 24(2) analysis leading to the unjustified exclusion of the evidence.
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The decision in R. v. Gill, 2024 BCCA 63, represents a “strong affirmation of the principle of appellate deference,” says Matthew Nathanson, Gill’s lawyer. “The Court of Appeal recognized that the trial judge made a series of significant findings based on the record before him, including findings about the egregious and flagrant nature of the police misconduct. These findings were the jumping off point for weighing the seriousness of the Charter-infringing conduct, a key consideration in the test for exclusion of evidence.”
“The Court of Appeal’s ruling, we say respectfully, is a model illustration of the deference that is central to the appellate process in general, and the s.24(2) context in particular.”
Gill’s charges stemmed from the 2011 killing of Manbir Singh Kajla in Surrey, BC. Following a collision between Kajla’s vehicle and a white Toyota 4Runner, the driver of the 4Runner shot Kalja dead and shot at Kalja’s wife but missed. The police investigation led to a 4Runnner owned by Gill’s brother-in-law, which Gill had been driving at the time. The police obtained a search warrant for Gill’s residence and the vehicle.
When the police searched the home where Gill lived with his mother, grandmother, and two siblings, the police seized nine cell phones, six of which lacked SIM cards. They also took a home security system that was equipped with security cameras. The search warrant had only indicated they were looking for a cell phone (singular) and did not mention the home security system.
The police filed a report on the seized items under ss. 489.1(1)(b) and 489.1(3) of the Criminal Code and applied under s. 490(1)(b) for an order allowed them to detain the items, which was granted. Under s. 490(2), the police must apply for continued detention after three months.
The phone, security camera, and Gill’s brother-in-law’s 4Runner all produced evidence pointing toward Gill as the shooter. The phone was at the scene of the crime at the time of the shooting, security camera footage showed a man leaving Gill’s residence in the 4Runner an hour before the shooting, and there was gunshot residue in the vehicle. The police also found an audio recording on the phone that included two male voices, a woman screaming, and several gunshots. The brother-in-law testified that one of the male voices on the recording was Gill’s.
The failure of the Integrated Homicide Investigation Team (IHIT) to apply to extend the detention period for the seized items was deliberate. It was then IHIT policy not to apply for extensions to avoid revealing to suspects the state of their investigations, said the Court of Appeal.
The deliberate violation of s. 490(2)’s requirement to apply for continued detention was an issue at the heart of the case because that policy impacted the constitutional rights of many for nearly a decade, says Nathanson.
“Both the trial judge and the Court of Appeal noted the significance of the fact that police had received legal advice from senior members of the crown and their own lawyer, telling them they had to obey the law, and ignored that advice for years,” he says. “In some ways, this could be considered a high-water mark for police misconduct, especially in light of the fact that both the purpose and effect of the unlawful policy was to supplant the supervisory role of the courts under s.490 of the Code.”
The investigation was stalled for several years and transferred to the RCMP in 2016. In 2018, the RCMP applied for further detention of the seized items. The Crown acknowledged that the items’ detention from 2011 to 2018 had been unauthorized.
Because they were not all mentioned in the warrant, the seizure of the items could only be justified on the basis set out in s. 489(1)(c) of the Criminal Code. The provision states that those executing a warrant may seize, in addition to that which is mentioned in the warrant, whatever they believe on reasonable grounds “will afford evidence in respect of an offence.”
The trial judge ruled that, unaware of which cell phone belonged to whom, the police could not have the subjective belief that any particular cell phone would produce evidence for the crime. Because these findings were based on credibility and reliability assessments and findings of fact, they were entitled to deference, found the Court of Appeal. The Court agreed the police failed to meet both the subjective and the objective tests under s. 489(1)(c), and the seizure violated Gill’s rights under s. 8 of the Charter.
The Court of Appeal also did not interfere with the trial judge’s finding that retaining the evidence for over six years was a breach of s. 8.
After finding that police obtained evidence against an accused through the breach of their Charter rights, courts assess the impact of including the evidence on the administration of justice. The court will consider the seriousness of the Charter infringing conduct, the impact of the breach on the accused’s Charter-protected interests, and society’s interest in an adjudication on the merits.
The trial judge found that holding onto the cell phones and security system for over six years was serious enough to justify excluding the evidence.
Ultimately, the Court of Appeal agreed. It found 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 Court dismissed the appeal.
“Given the regency of the Court of Appeal's ruling, it is difficult to predict its impact going forward,” says Nathanson. “It is clear, however, that the trial-level decision had a major impact on the attention British Columbia police agencies are paying to their s.490 obligations.
“It has also spawned a number of thoughtful court decisions in s.490 extension applications by the crown,” he says. “These are both positive developments given the importance of the s.490 process to protecting privacy after seizures have been affected. It is also, in my respectful view, a good illustration of what the Supreme Court of Canada said in the early days of the Charter about ‘promoting the decency of police investigatory techniques.’”
