Court of Appeal’s failure to acquit wrong

Rejected: But Gurdev Dhillon’s convictions have been set aside, meaning he can return to Canada

The B. C. Court of Appeal has refused to acquit a wrongfully convicted man, finding eyewitness testimony to be potentially more persuasive than exculpatory DNA evidence.

Convicted in Oct. 2005 of participating in a July 2004 Surrey gang rape at his apartment, Gurdev Singh Dhillon served four years in prison and on his release in Oct. 2008 was deported to India.

The Supreme Court of Canada in Oct. 2013 tossed this case back to the Court of Appeal because of fresh evidence and asked it to consider whether a miscarriage of justice had occurred. It had. Due to the bad police and forensic work that appeared to be behind the Crown’s failures, Dhillon suffered irreparable prejudice at his trial.

Yet the unanimous response of the B. C. appellate panel was — too bad, so sad.

It set aside Dhillon’s convictions for sex assault and assault but it would not order costs against the government because, Justice Anne MacKenzie maintained, the prosecution’s failure did not constitute “a marked and unacceptable departure from the reasonable standards expected of the Crown.”

She also rejected Dhillon’s request for reimbursement of the expenses he incurred establishing his wrongful conviction.

“The Crown is ‘ not held to a standard of perfection, and costs awards will not flow from every failure to disclose in a timely fashion.’” Justice MacKenzie explained.

“For costs to be awarded, there must be some extraordinary event or misconduct on behalf of the Crown. … While the case demonstrates a substantial lack of attention by the Crown, there is no evidence of bad faith or malice.”

Normally, the court would have ordered a new trial if an acquittal was not warranted — but in this case Justice MacKenzie said a new trial wasn’t possible.

Although the province’s high bench refused to exonerate Dhillon Friday, his lawyer Paul Briggs said the 37- year- old was pleased he was getting a chance to return to Canada and possibly get his mill job back. He will probably launch a civil suit against police and prosecutors, Briggs added.

“I actually expected an acquittal — I argued vociferously for one,” Briggs said, but “it wasn’t as surefire a case as some are …. They didn’t want to secondguess the trier of fact ( the judge who found the victim credible).”

The assault was considered particularly heinous because the woman said she was a lesbian and became pregnant as a result.

DNA evidence from her clothes, which was not disclosed until March 2013, linked two other men to the assault. Dhillon’s DNA was not found and DNA evidence showed none of those charged with the assault fathered the woman’s child.

Without knowing about the DNA evidence, Dhillon was unable to pursue those avenues of investigation for his defence, properly consider the calling of witnesses or further impugn the complainant’s credibility.

The prejudice was overwhelming, the Crown conceded.

“While I agree there has been a miscarriage of justice, I do not find an acquittal to be the appropriate remedy,” wrote Justice MacKenzie, a former Dept. of Justice lawyer, supported by Justices Ed Chiasson and Nicole Garson.

“The test for an acquittal is strict: the court must be satisfied that no jury acting reasonably could convict on the evidence.”

Remember, this is the bench that confirmed Dhillon’s conviction and rejected his appeals in Oct. 2006.

“While the complainant’s narrative at trial was at times confusing and inconsistent with her statements to the investigators, the trial judge found her to be a credible and reliable witness,” Justice MacKenzie insisted.

And police found Dhillon at his apartment hours after the assault, naked and intoxicated.

The trouble is eyewitness testimony, especially by victims who are intoxicated and traumatized, has been long shown to be unreliable.

“The Crown concedes the complainant was very confused in her description and identification of the three men,” the justice acknowledged.

“There is no question she was extremely vulnerable and suffered loss of memory problems …. The Crown says that although a conviction may not be likely, it cannot be ruled out as a reasonable possibility …”

I think that’s a stretch — especially when, as the court pointed out, two other men identified by DNA are charged with the crime.

Dhillon could have won an acquittal at a new trial but that was blocked by the Crown, saying it would issue a stay of proceedings if one were ordered, and Justice MacKenzie deciding that, since he had already served his sentence, a new trial would be an abuse of process.

Briggs said his client, who now is a farm worker in Punjab, has remarried — his first wife divorced him after his conviction — and the couple have a young son.

“It’s a good decision as far as Mr. Dhillon is concerned because he can take steps to come back to Canada,” the Vancouver lawyer added.

“It’s not automatic, it’s a little complicated, he was given a deportation order back in 2006 … he’s going to have to go to Federal Court and have it set aside as no longer valid.”