The British Columbia Court of Appeal has upheld the ruling of a trial judge excluding a critical pocket-dial recording from evidence at the trial of Samandeep Singh Gill that resulted in his acquittal for the murder of Manbir Singh Kajla. The recording of the alleged shooting was seized by the police and then unlawfully held for six years when the investigation went dormant. Relying on a policy of deliberate non-compliance with mandated judicial oversight and in violation of the defendant’s residual privacy interests the police undermined the supervisory role of the court and the rule of law.

1. Introduction

On February 26, 2024, the British Columbia Court of Appeal released the unanimous opinion in R. v. Gill dismissing a Crown appeal from the ruling of Justice David Masuhara on an evidence exclusion motion that resulted in the collapse of the state’s case and the acquittal of Samandeep Singh Gill on charges of second degree murder and attempted murder. (here) The exclusion ruling was grounded in two violations of s. 8 of the Charter of Rights and Freedoms that guarantees the right of all Canadians to be secure against unreasonable search and seizure. One violation involved the over-seizure of cellular telephones and a home surveillance system during the execution of a search warrant. On the first pretrial application Justice Masuhara found the seized electronic devices were not particularized in the search warrant and therefore not authorized to be seized under the provisions of the Criminal Code in violation of s. 8. (here) The other violation involved the over-holding of the devices contrary to s. 490 of the Code. On the second pretrial application Justice Masuhara found the police failed to obtain an extension when they chose to hold the seized devices beyond the period authorized by the initial order also in violation of s. 8. (here) I will focus the discussion in this post on the over-holding issue because it presents an opportunity to consider how the ability to control data is a protected privacy interest.

2. Background

On April 27, 2011, the deceased, Manbir Singh Kajla, was driving a vehicle in Surrey, British Columbia. His wife, Ms. A.B., was a passenger. Ahead of them was a Toyota 4Runnner that was being driven erratically. As Mr. Kajla attempted to pass, the 4Runner swerved toward his vehicle hitting the front bumper. Mr. Kajla passed the 4Runner, cutting it off, and came to a stop. The 4Runner stopped behind him. Mr. Kajla got out of his vehicle and walked toward the 4Runner. A few words were exchanged. The driver of the 4Runner then pulled out a handgun and shot Mr. Kajla twice. Ms. A.B. also got out of the vehicle and walked toward the 4Runner. The driver took shots at her but she avoided being hit. The driver of the 4Runner drove away and Ms. A.B. called 911. The autopsy revealed that Mr. Kajla died from two gunshot wounds shortly after arriving at a hospital.

The investigation, conducted by the RCMP Integrated Homicide Investigation Team (IHIT), led the police to seek a search warrant for Mr. Gill’s residence and a 4Runner owned by his brother in law. During the search, the police seized nine cellphones from the residence where five adults lived. The police also seized a home security system manufactured by a company known as “SVAT”. On May 19, 2011, the police complied with ss. 489.1(1)(b) and 489.1(3) of the Code by filing a report to a justice that contained a list of the items seized. Five days later the police were granted an order by a justice under s. 490(1)(b) of the Code allowing them to detain the seized items. Section 490(2) of the Code prohibits the detention of seized items for more than three months unless an application is made for continued detention or criminal proceedings are commenced. Various other investigative steps were taken including a production order for records pertaining to a phone number found written down in the home. The records showed the number was that of an iPhone in the area where the shooting happened and at Mr. Gill’s residence shortly after.

Despite the initial progress, the investigation was “put on hold” without any explanation other than it was a busy time for IHIT and there were other priorities. The police did not conduct any further investigations regarding the seized items within the three month period of authorized detention and they failed to make an application to extend the detention period. “The evidence indicates that the failure was deliberate, and that it was IHIT policy at the time not to apply for extensions, so as to avoid tipping off suspects as to the status of investigations,” said Justice Harvey Groberman. Five years later, the file was transferred to the RCMP Unsolved Homicide Unit but, again, no further investigative steps were taken until 2018. A “without notice” application was then made to authorize further detention of the cellphones and the SVAT device and a two year extension was granted without prejudice to Mr. Gill’s right to argue the detention of the devices from 2011 to 2018 was unauthorized.

On February 28, 2018, the police obtained a warrant to examine the iPhone and found it contained an audio recording of the shooting. It included the voices of Mr. Gill (identified by his brother in law) and that of a woman screaming. Several gunshots are heard on the recording. It was unclear how the recording was made but the Crown theory was that Mr. Gill had the iPhone and a BlackBerry with him at the time of the shooting and pocket dialled the iPhone from the BlackBerry. The recording became a crucial piece of the state’s case. The SVAT data was also important as it showed “comings and goings” from the home that were consistent with the iPhone’s connection from one cell tower to another.

3. Control Over Data

The Crown conceded the retention of the cellphones and SVAT device beyond August 14, 2011, was contrary to s. 490 of the Code. The application in 2018 to authorize continued detention did not change the unlawfulness of their detention for the six years prior to that. The Crown also conceded that the violation of s. 490 was deliberate. Several years before the seizures in Gill, IHIT officers had been directed not to seek extensions of detention orders after the initial three month authorization expired. The concern about providing suspects with information about the status of investigations continued until the courts interpreted the Code provisions to allow in camera extension applications to be made without notice. Between 2007 and 2009, three senior prosecutors advised IHIT that it could face legal consequences for failing to comply with s. 490. And an RCMP lawyer subsequently provided a similar warning. However, the police continued to ignore the legal requirement of obtaining an extension. Although the policy changed in 2014, IHIT did not apply for extensions in investigations where the authority to retain seized items had already expired.

The Crown’s position was that retention of the seized items between August 2011 and January 2018 did not violate Mr. Gill’s privacy interests because the police did not search the cellphones or the SVAT device during that period. There was no “superadded intrusion” when the police continued to hold the items. Further, Mr. Gill was aware the devices were in the possession of the police and he could have applied for their return. Justice Masuhara rejected the Crown’s argument as unconvincing. “[T]he absence of such a search does not absolve the police of their failure to comply with the Code, nor does it preclude the violation of s. 8,” he said. Mr. Gill had an ongoing “residual privacy interest” in the electronic devices that rendered the continued detention unreasonable. Justice Groberman found no reason to interfere with that conclusion on appeal which leads me to the core Charter question in this post: What, exactly, was Mr. Gill’s residual privacy interest in the devices?

Privacy interests were at stake although the retention of the cellphones and SVAT device was not as intrusive as a search of their contents. As the Supreme Court of Canada held in R. v. Reeves, “although a seizure of a computer may be less intrusive than a search of its contents, both engage important privacy interests when the purpose of the seizure is to gain access to the data on the computer.” (here) And, as the Supreme Court previously said in R. v. Spencer, privacy includes, “control over, access to and use of information.” (here) Thus, the personal or confidential nature of the data that was preserved and potentially available to the police through the seizure of the cellphones and the SVAT device was relevant in determining whether Mr. Gill had a reasonable expectation of privacy in that data. In the pre-trial ruling, Justice Masuhara agreed with the approach taken by the Ontario Court of Appeal in R. v. Garcia-Machado that, “the failure to strictly comply with the statutory provisions of the Criminal Code will result in a Charter breach where the accused had an ongoing residual privacy interest and rendered the continuing detention unreasonable.” (here)

Justice Groberman found no error in that approach and went on to emphasize that, “[p]rivacy interests attaching to devices that hold data are not confined to an interest in ensuring that others do not examine the data. Rather, privacy interests extend to ‘control over, access to and use of information.” Although the impact on Mr. Gill’s privacy interests was mitigated because the police did not access the data during the unauthorized period, the retention of the items placed serious constraints on Mr. Gill’s control over and use of the data. “Cellphones typically contain large stores of private information, and the ability to control and access that information is Charter-protected,” Justice Groberman said. The failure of the police to comply with the extension requirements in the Code meant that, for six years, “there was no ongoing judicial supervision of the seizure and continued detention.” These were “sufficiently serious incursions on Mr. Gill’s residual privacy interests” to constitute a violation of s. 8. of the Charter.

4. Conclusion

Justice Groberman concluded there was no reason to interfere with Justice Masuhara’s discretionary decision to exclude the evidence under s. 24(2) of the Charter, “even in the face of extremely serious offences that had tragic human consequences.” The over-holding, by itself, required exclusion. Justice Masuhara had found the police policy of “deliberate non-compliance with mandated requirements” particularly concerning. The significance of state authorities undermining the role of the court could not be overemphasized. “While a decision to exclude the evidence might cause certain public outcry and clear disappointment to those most interested in the case being tried on its merits, I must consider the long-term public perception related to the perceived endorsement of unlawful police activities,” Justtice Masuhara said. “To tacitly condone such egregious, institutional, systemic behaviour in disregard of legislative provisions and Charter interests by a premier homicide investigation unit would have serious implications for the rule of law.”