Surrey sex assault conviction set aside by court of appeal

VANCOUVER — The B.C. Court of Appeal set aside a Surrey man’s 2005 conviction of sexual assault on Friday, but fell short of ordering an acquittal in his case.

Justice Nicole Garson decided there had been a miscarriage of justice in the trial of Gurdev Singh Dhillon, who was sentenced in 2005 to four years in prison after being convicted in a case where two men raped a woman in a basement suite in Surrey.

Garson decided an acquittal was not "the appropriate remedy," however, finding the fresh evidence "not sufficiently cogent to exclude the reasonable possibility of a conviction" if a new trial were indeed held.

There won’t be a new trial, however. Garson found Dhillon had already suffered irreparable prejudice. After serving his full sentence, he was deported to India and after his deportation forensic reports were discovered that had been prepared before his trial, but were not disclosed to him. 

"Without the DNA evidence, Mr. Dhillon was unable, amongst other things, to pursue other avenues of investigation, properly consider the calling of witnesses, or impugn the complainant’s credibility," Garson stated in her reasons for decision. "This prejudice is irreparable. It would be perpetrated if a new trial were ordered."

Garson also noted that to stage a new trial nine years after Dhillon was tried, finished serving his sentence and was deported, "would perpetuate an injustice and undermine the integrity of our judicial system."

Garson decided not to award Dhillon costs against the Crown, noting that the Crown "is not held to a standard of perfection.

"While the case demonstrates a substantial lack of attention by the Crown, there is no evidence of bad faith or malice," she found. Justices Edward Chiasson and Anne MacKenzie concurred.

Meanwhile, police issued a public apology in February 2013 for "mistakes that were made" in the case.

Dhillon had appealed the conviction and sentence in 2006, arguing that the trial judge erred by relying on the victim’s in-court identification, but the B.C. Court of Appeal upheld the conviction.

Subsequently, the Criminal Justice Branch announced that Special Prosecutor Peter Wilson had concluded Dhillon had fallen victim to a miscarriage of justice and recommended that Dhillon be given the opportunity to apply to have his conviction set aside.

Chief Supt. Bill Fordy, in charge of the Surrey RCMP, issued a public apology. He said that in August 2011 Surrey RCMP sexual offence investigators reviewed the case and determined the initial investigation "did not sufficiently consider additional avenues regarding other potential suspects."

"They also determined this information was not shared with Crown counsel or with defence counsel during the original trial," Fordy said.

"I recognize and understand that the general public will have concerns about this incident," he said. "I share those concerns and deeply regret the impacts these mistakes may have had on all those involved. As the officer in charge of the Surrey RCMP, I apologize for the mistakes that were made."

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