B.C. murder case goes 'static' after police 'unlawfully' obtain statement from youth suspect
Judge refuses to let investigators keep evidence in a case that's been inactive for 5 years
Failures by investigators to analyze evidence and properly caution a suspect in the 2016 death of a B.C. woman appear to have led to the case going "static" and a judge's refusal to let police keep evidence they've been holding for five years.
In a decision released this week, B.C. Supreme Court Justice Peter Edelmann said he accepted that "the murder of a young woman is among the gravest of offences and there is a significant public interest in the investigation of such crimes."
But the judge concluded he had no choice but to deny an application for further detention of a cellphone and biological exhibits homicide investigators have kept for years without proper authorization.
The decision is another setback for B.C.'s Integrated Homicide Investigation Team — the second time in less than a year a murder case has been impacted by an infraction of the rules governing evidence seized through search warrants.
B.C.'s Attorney General asked Edelmann to let IHIT keep the exhibits — even though the original period of detention expired long ago — on the grounds that it would be in the public interest to do so.
But the judge cited the homicide squad's lack of action on the file in denying the request.
"Unfortunately, resources have only recently been allocated to this investigation after a significant period of time when it was inactive," Edelmann wrote.
"It would appear clear that the assessment of investigators in 2016 was that, given the problems with the investigation, it was not in the public interest to devote more resources to it at that time."
The first public report of a mysterious death
The decision shines a light on a killing that has received no public attention to date. Police don't appear to have released the victim's name or any details about her death, which was reported to Richmond RCMP on May 5, 2016.
Edelmann made the ruling in late November 2021, and said he was of the view that it should be made public, but he gave the parties involved 30 days to make submissions on the need for further sealing and redaction.
The woman's body was found in the gym of a residential building. Analysis of key fob records showed the victim entered the gym the previous day and never left.
The key fob records also showed that a youth — J.D. — entered the gym shortly after the victim.
IHIT took charge of the case on May 6, 2016 and entered J.D.'s residence under the authority of B.C.'s Mental Health Act.
"The same day, investigators obtained a witness statement from J.D.," Edelmann wrote. "J.D. was a suspect at that time and was not cautioned or warned."
'J.D. was not cautioned or warned'
Police used a search warrant to seize 40 exhibits including two cell phones and 16 biological specimens. According to the ruling, they tried to extract data from the phone but were unsuccessful.
"A recommendation was made to have the exhibit sent to Ottawa for further testing. The phone was never sent to Ottawa and this was the only attempt to extract data from the device," the judge wrote.
"IHIT received DNA lab results from exhibits related to the crime scene and the autopsy. None of the biological exhibits seized from J.D.'s residence were sent for analysis."
In February 2021, a new crime scene manager was assigned to the file.
Const. Andrew Bemister was also tasked with ensuring compliance with Section 490 of the Criminal Code — which details requirements needed to keep evidence gathered through search warrants.
"Since this investigation began none of the investigative team members of IHIT are still on this IHIT team," Bemister wrote in an affidavit.
"Due to police unlawfully obtaining a warned statement from J.D. in 2016, in which J.D. was not cautioned or warned, the investigation has become static and contributed to the loss of any forward momentum in the investigation."
Bemister contacted J.D. last summer about the latest application to keep the exhibits. J.D. — who has never applied to get the evidence back — "advised they would not be attending the proceeding and did not want any further contact from the RCMP."
'An oversight or administrative error'
The law requires police to justify detention past three months of items that would otherwise engage the privacy and property rights of their owners. Once a person is charged, the evidence can be kept until the conclusion of the case.
Edelmann's ruling cites a stunning decision last year in which B.C. Supreme Court Justice David Masuhara excluded key evidence from the trial of a man accused of murdering a stranger in a road-rage incident because of the "egregious" way IHIT ignored the laws of search and seizure.
The decision led to Samandeep Singh Gill's acquittal, jarring the Attorney General into appointing outside counsel to consider the possibility of appeal because of the implications for other trials.
According to Masuhura's ruling, senior IHIT management directed officers back in 2007 not to seek any further extension orders once an initial 90-day period set by the Criminal Code expired.
The directive was reversed in 2014 — two years before the Richmond murder.
In the latest case, lawyers for the Attorney General conceded that a delay of five years was significant, but cast the failure to comply as "an oversight or administrative error."
But Edelmann said there was no evidence about "the context in which this administrative error took place."
"It is unclear whether anyone turned their mind to the fact that the RCMP was still holding a number of items that had been seized from J.D. when the file became inactive. It is also unclear the level of attention IHIT officers were paying to this issue at the time the file became inactive and in the subsequent five years," Edelmann wrote.
"When assessing the failure to comply with a deadline, it is one thing to have entered a date into one's calendar incorrectly, it is quite another not to have a calendaring system at all."
A spokesperson for IHIT said they would need more time to respond to questions from CBC about the ruling, but pointed out the difference between the decision in the Richmond case — which denies police the right to hold exhibits in an unconcluded investigation — and the Gill decision, which saw crucial evidence excluded from trial.
The spokesperson said resourcing issues would not lead to a file becoming static and that the file would be looked at to see what other investigative options remain.
IHIT also says not all cases are publicized depending on considerations of privacy and public safety.