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Judge rejects RCMP bid to keep evidence seized during Richmond murder investigation

Evidence kept for several years without authorization
A BC Supreme Court judge has refused an application to let police keep evidence seized during a 2016 murder investigation in Richmond. Glacier Media file photo

A judge has refused to let police keep evidence seized during a 2016 murder investigation in Richmond.

In a B.C. Supreme Court decision – published last week – Justice Peter Edelmann said it was clear the items had been kept by the Integrated Homicide Investigation Team (IHIT) without proper authorization for years after the initial period of detention expired in 2016.

Between 2016 and 2021, when the application at issue was made, no further detention orders for the evidence were sought.

“While I accept the public interest in the investigation of this homicide, I am not satisfied that the Attorney General has shown it is in the interests of justice to allow the ongoing detention of seized items that have been retained without authorization for many years,” Edelmann said in his decision.

He also said the lack of resources allocated to the case weighed heavily against the Attorney General of Canada’s application – made on behalf of the RCMP – asking for further detention of the exhibits.

“Unfortunately, resources have only recently been allocated to this investigation after a significant period of time when it was inactive,” said Edelmann in his decision.

“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.”

Edelmann also said he believed his decision should be made public, but gave counsel 30 days from the date of his ruling to make submissions on sealing or redaction.

The decision details that, on May 5, 2016, Richmond RCMP received a report of a deceased woman in the change room of a residential building’s gym. IHIT took over the investigation the next day.

Fob access records revealed that the victim, who lived in the building, entered the gym in the late afternoon of May 4, 2016. She did not come back out.

The records also indicated that a youth, identified only as J.D. in the decision, entered the gym shortly after the victim.

RCMP then when to J.D.’s home on May 7, 2016, citing their authority under the Mental Health Act, where they seized J.D.’s cellphone. Police later obtained a witness statement from J.D., who was a suspect at the time but “was not cautioned or warned,” according to the decision.

Then, on May 8, 2016, investigators executed a search warrant at J.D.’s home and seized 40 exhibits, including 22 clothing exhibits, two cell phones, an iPod and 16 biological specimens.

Investigators tried to extract data from the cellphone, but this attempt proved unsuccessful and no further attempts were made.

Several months later, in August 2016, IHIT received DNA lab results from exhibits related to the crime scene and the victim’s autopsy. None of the biological exhibits seized from J.D.’s residence were sent for analysis.

The file remained inactive for about five years, until a new crime scene manager, Cst. Andrew Bemister, was assigned to the investigation in February 2021.

Bemister was tasked with reviewing the exhibits to make sure they complied with Section 490 of the Criminal Code – which lays out requirements for detaining, returning or disposing of seized items – and prepared the application to keep the exhibits.

“Since this investigation began none of the investigative team members of IHIT are still on this IHIT team. The file was static and no longer investigated due to an inadmissible warned statement being obtained from a youth by the RCMP...,” Bemister said 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 also contacted J.D. about the application, who later “advised they would not be attending the proceeding and did not want any further contact from the RCMP,” according to Edelmann’s decision.

Edelmann concluded the exhibits had been kept for years without authorization.

In his ruling, he cited a BC Supreme Court decision made last year, in which Justice David Masuhara excluded cellphone evidence from a second-degree murder trial — prompting the accused's acquittal — because of IHIT’s “systemic, flagrant disregard” for the charter rights of the accused, after IHIT held the cellphones for nearly seven years without a judge’s approval.

In that case, the court heard IHIT had a long-standing policy to not apply to a judge for evidence extension orders under Section 490 of the Criminal Code. That policy began when police learned in 2007, they were contravening the charter by not asking for the continued detention of evidence.

According to Masuhara’s decision, a memo was sent out to officers telling them to avoid seeking detention on evidence orders in cases where doing so would draw the judge’s attention to their non-compliance.

The policy was in place until around 2014.

Edelmann said that, in the Richmond case, there was “no question there has been a failure to comply with the requirements of (Section 490) for several years.”

The Attorney General conceded the five-year delay was “significant,” according to Edelmann’s decision, but argued the failure to comply was an “oversight or administrative error.”

But Edelmann said the problem is that there was “little or no information about the context in which this administrative error took place.”

“Given the paucity of information provided, 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,” reads Edelmann’s decision.

“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 said there was “no evidence of any mechanisms, policies or practices” in place to ensure compliance with Section 490 of the Criminal Code.

“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.”

Furthermore, Edelmann said the onus is on the applicant to “demonstrate it is in the interests of justice to grant the remedy sought.”

In an email to the Richmond News, IHIT said no initial media release was issued identifying the victim’s age, name and gender, and that resourcing issues and members leaving the team is not the only reason an investigation becomes static.

IHIT also said it will be “looking deeper into this matter” to determine what other steps to take and if it will impact other similar cases.