Last month, the B.C. Court of Appeal upheld lower court rulings by Justice David Masuhara, who found that IHIT for years deliberately ignored Criminal Code laws requiring police investigators to get judicial authorizations to retain seized items, including cellphones.DARRYL DYCK/The Canadian Press
At least three murder cases in British Columbia have been dropped or diminished in recent years after judges ruled that they would throw out crucial evidence found on seized cellphones because the province’s RCMP-led homicide unit had flouted Canada’s evidence-handling laws.
Court records reviewed show that in these cases involving B.C.’s Integrated Homicide Investigation Team, defence lawyers have successfully challenged police-gathered evidence by alleging breaches of their clients’ rights because of police searches and seizures.
The B.C. government has declined to criticize the unit saying instead that Ottawa has failed to tackle cumbersome warrant laws that may be hindering police investigations.
Last month, the B.C. Court of Appeal upheld lower court rulings by Justice David Masuhara, who found that the homicide unit for years deliberately ignored sections of the Criminal Code requiring police investigators get judicial authorizations to retain seized items, including cellphones.
The prosecution in that case was dropped after Justice Masuhara found that evidence on an accused murderer’s cellphone was not admissible in court. The excluded evidence contained an audio recording of the accused shooter allegedly killing a newly married man after a road collision.
An examination of other court judgments by The Globe and Mail has found that Justice Masuhara’s concerns about the homicide unit’s evidence-handling practices have arisen in similar rulings by judges in other cases.
In 2023, a judge excluded seized electronic communications in the case of a man stabbed to death in Surrey, B.C., in 2019. Another judge, in 2021, put a halt to police efforts to extract information from the cellphone of a youth who was suspected in the case of a Richmond, B.C., woman found dead in 2016 in a locker room.
David Haslam, a spokesperson for the provincial Public Safety Ministry, said the B.C. government believes that Ottawa needs to help police detectives by overhauling “complex” layers of search-and-seizure laws spelled out in criminal legislation passed by Parliament.
“The ministry is confident the officers who work within IHIT are dedicated to solving cases,” Mr. Haslam said in a statement last week. He said police investigations, especially murder and attempted murder cases, have become “increasingly challenging.”
The B.C. government is renewing its call for “the federal government to prioritize working with provinces and territories to update Section 490 and related laws around exhibit handling,” Mr. Haslam said, referring to the Criminal Code.
In his pretrial rulings related to the road-rage homicide, Justice Masuhara wrote that the IHIT undermined lawful evidence collection in ”hundreds”’ of homicide cases. He found the homicide unit had a hidden policy under which commanding officers told their investigators to ignore the Criminal Code rules spelling out that police need to seek renewed judicial authorizations to retain seized items beyond 90 days.
“This is serious conduct that is particularly disappointing given that IHIT … is held out to represent the ‘gold standard’ for RCMP investigations,” Justice Masuhara wrote.
His rulings say that starting in 2007, Crown lawyers told the police unit’s leaders to follow Canada’s evidence-retention laws. But the IHIT had a policy of ignoring these rules until its commanders started changing their directives in 2014. “There is something particularly concerning about a police policy of deliberate non-compliance,” the judge wrote.
In reviewing Justice Masuhara’s findings last month, Appeal Court Justice Harvey Groberman upheld them. Writing for a three-judge panel about the road-rage homicide case, he noted that Crown lawyers had conceded “that the flagrant and apparently deliberate breach of the law by police officers was egregious.”
“The case for excluding evidence is very strong, indeed,” Justice Groberman ruled.
Other judges have issued similar rulings.
In the case of the 2019 fatal stabbing in Surrey, three B.C. men were sentenced to prison sentences of several years each after pleading guilty to manslaughter. Yet court records show that prosecutors had initially been pursuing that homicide as a premeditated murder, one where suspects would have faced life sentences had they been convicted of that charge.
One published pretrial ruling from that case shows that Justice Martha Devlin cut out swaths of evidence – including electronic communications found on seized phones held to be “crucial to the Crown theory that this was a planned and deliberate murder.”
This ruling says that the homicide unit officers in the case demonstrated a “casualness and indifference toward compliance” with warrant procedures because they flouted judicial orders to extract data from seized cellphones at specified times as well as laws telling them to file follow-up reports to the court.
This and other Devlin rulings reference another murder investigation in British Columbia with similar issues and judicial rulings. Claire Wilson, counsel for the B.C. Supreme Court, said the details of that case are shielded under a publication ban.
In the case of a woman who was found dead in a Richmond locker room in 2016, IHIT investigators within days identified a youth suspect and seized a phone from him. Initial police efforts to extract data from the seized phone failed and this investigation stalled for five years. In 2021, police and prosecutors told a B.C. court they wanted another crack at it; in sworn statements they suggested that churn in the homicide unit’s staffing had caused them to lose track of the probe.
Justice Peter Edelmann, however, denied police the power to do a renewed search. He ruled that police had already held the device unlawfully for years. “I accept that the murder of a young woman is among the gravest of offenses,” he wrote. But he wrote that the homicide unit had produced for his court “no evidence of any mechanisms, policies or practices” it uses to track seized items.
That case was never prosecuted and no charges are known to have been laid.
In an e-mailed statement, IHIT spokesperson Corporal Sukhi Dhesi said the unit has been updating its procedures but “unfortunately, we are not in a position to comment on decisions previously made by investigators.”