The Importance of Section 490 Compliance: R. v. Gill upheld by the BC Court of Appeal

In R. v. Gill, 2024 BCCA 63, the BC Court of Appeal dismissed the Crown’s appeal of Justice Masuhara’s tripartite decision in R. v. Gill, a series of voir dires that led to the exclusion of crucial evidence in a murder investigation due to what the Court described as “a policy of systematic non-compliance” with section 490 of the Criminal Code.

Background

In April 2011, a collision occurred between two vehicles travelling in the same direction in adjacent lanes in Surrey, BC. From what appeared to be a road rage incident, the deceased was shot and killed after he left his vehicle to speak with the other driver. The identity of the shooter was uncertain. Subsequent investigation led to the execution of a search warrant at Mr. Gill’s home address by the RCMP’s Integrated Homicide Investigation Team (“IHIT”) for “Samandeep GILL’s cellular telephone”. No other cellphones were mentioned in the warrant, but police seized a total of 9 cellphones found at the residence, as well as a home security system manufactured by SVAT (the “SVAT Device”).

On May 19, 2011, four days after the search concluded, the police filed a Form 5.2 setting out the items seized from the residence. An order allowing a 3-month detention of the seized items was granted on May 25, 2011. No application was made to extend the detention period at the 3-month expiry, as it was IHIT policy at the time not to apply for extensions to avoid tipping off suspects as to the state of investigations.

In 2016, the file was transferred to the RCMP Unsolved Homicide Unit. In January 2018, a two-year extension of the detention period was granted without notice for the cellphones and SVAT Device, and without prejudice to Mr. Gill’s right to argue that the continuing detention of the devices was unauthorized from August 2011 to early 2018.

On February 28, 2018, the police obtained an order to examine an iPhone seized, locating an audio recording of the shooting from what was believed to be a pocket dial. The audio recording and SVAT data was crucial to identifying the accused as the person involved in the shooting. In May 2018, Mr. Gill was charged with second-degree murder and attempted murder.

Criminal Code section 490

The objective of section 490 is to achieve a fair balance between the property rights of individuals and the state’s legitimate interest in preserving evidence during an ongoing criminal investigation, as well as judicial oversight of items seized by police. Where the period of cumulative seizure has not exceeded one year, applications must be brought in provincial court under section 490(2). Where investigations exceed the one-year point, an application for further detention must be heard in Supreme Court under section 490(3). Generally, the longer an investigation, the higher the burden is on police to satisfy a judge that the further detention is warranted. A curative provision, section 490(9.1), is relied on for missed expiries and carries a higher burden – requiring objectively reasonable grounds and a finding that it is in the interests of justice to order the further detention of things seized.

Trial Decisions

At trial, the accused challenged the admissibility of the cellphone and SVAT evidence on the basis that their seizure violated section 8 of the Charter. Justice Masuhara, in R. v. Gill, 2020 BCSC 2030, found that police did not have the requisite subjective belief or objective basis to believe that the seizure would afford evidence of an offence, constituting a breach of section 8.

The second voir dire ruling (R v. Gill, 2021 BCSC 152) concerned the police’s detention of the seized items beyond the period authorized by the Criminal Code. The Crown accepted that the continued retention of the devices beyond August 14, 2011 was contrary to section 490 and that the violation was deliberate. IHIT changed its policy in 2014 but failed to apply for extensions until 2018. Justice Masuhara found that the lack of judicial supervision of the seized items for over 6 years constituted a violation of section 8.

In the third voir dire ruling (R v. Gill, 2021 BCSC 377), having found violations of section 8 in both the original seizure of the items and unauthorized retention of them, Justice Masuhara concluded that, in a cumulative analysis, admitting the evidence derived from the SVAT Device and phones seized would bring the administration of justice into disrepute and made the “difficult decision” to exclude the devices from evidence.

Court of Appeal Decision

The Court of Appeal upheld each of the trial decisions. Notably, while the Court acknowledged that the impact of Mr. Gill’s privacy rights was mitigated considerably by police compliance with the Criminal Code’s reporting requirement and the fact that the data was not accessed during the unauthorized detention period, the failure to comply with section 490 requirements for over 6 years was a sufficiently serious incursion on Mr. Gill’s residual privacy interests to constitute a violation of the Charter.

The Court of Appeal considered that the over-seizure – had it occurred alone – would not have required exclusion, but the over-holding was a “flagrant disregard for Charter-protected rights, and…represented a deliberate decision not to comply with the law”. Mr. Gill had been deprived of control of his cellphones and the data they contained for the entire length of the unauthorized detention. Given the egregious nature of the Charter breach, the Court declined to interfere with the decision to exclude evidence, “even in the face of extremely serious offences that had tragic human consequences”.

Conclusion

The conclusion of the R. v. Gill saga re-affirms the importance of police compliance with section 490 of the Criminal Code. Investigators must submit Form 5.2s as soon as practicable after a seizure, drafted with sufficient particularity to report all items seized. As the detention periods for seized items approach expiry, investigators must bring applications under section 490 to ensure ongoing compliance in the course of an investigation or risk exclusion of evidence.

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