Case Summary
Gurdev Singh Dhillon was convicted in October 2005 on charges of assault and sexual assault, and sentenced to four years’ imprisonment. After serving his time, he was deported to India in 2008.1
In July 2004, the nineteen-year-old complainant was sexually assaulted by two men in a basement suite in Surrey, B.C. She escaped to a neighboring house and called the police. First responders took the complainant to the hospital, where a sexual assault kit was performed. DNA samples were obtained and sent to the RCMP for testing. Meanwhile, police found Gurdev Singh Dhillon alone in the basement suite.2 He was “passed out on the floor, naked and in a state of extreme intoxication.”3 Dhillon was also on bail for a charge of assaulting his wife in an arranged marriage.4
The complainant stated that there were three “East Indian” males in the basement suite at the time of the assault. She had previously met two of the men, known to her as “Adam” and “Harris”; the third man, a stranger, was the owner of the suite. Harris had made her a drink and insisted she consume it, “notwithstanding her opposition because of medication she was taking”, after which she felt dizzy and sick.5 She got up but Harris pushed her into the bedroom, where he and the third man sexually assaulted her.6 Dhillon, who owned the suite, was arrested. The other two men were not apprehended.7
In October 2004, a preliminary forensics report was prepared and sent to Crown counsel. This report confirmed that the samples obtained were suitable for DNA testing and that "[a] Biology Section DNA typing report [would be] . . . forthcoming."8 In accordance with its obligations set out in the Supreme Court case R v Stinchcombe, the Crown disclosed this report to Dhillon's defence counsel.9
RCMP forensic analysts completed the DNA testing by early 2005, several months prior to Dhillon's conviction.10 The samples were found to contain DNA from two individuals, known as "Male 1" and "Male 2".11 On February 7, 2005, a forensic report documenting the DNA analysis results was sent to the RCMP Surrey detachment.12 However, the RCMP did not provide this report to Crown counsel, and thus it was not disclosed to Dhillon.13 Despite receiving the previous statement that DNA test results would be forthcoming, "neither the Crown nor the defence followed up" in regards to this report.14
Dhillon was convicted in a judge-alone trial after the complainant identified him in court: she testified that he and “Harris” had assaulted her, and recalled that Dhillon had seemed “really drunk or high and was acting strange”.15 The Crown called four witnesses at trial, including the complainant, and Dhillon called none.16
At his sentencing hearing, the court ordered that a DNA sample be taken from Dhillon for inclusion in the National DNA Data Bank.17 The DNA profiles of "Male 1" and "Male 2" obtained from the complainant's medical examination had also been added to the Data Bank.18 Dhillon's DNA did not match that of either “Male 1” or “Male 2”. However, police were not notified because "the Data Bank only generate[d] . . . positive results. That is, the police agency submitting a DNA sample would not have been notified unless a match was produced."19
The British Columbia Court of Appeal rejected Dhillon’s conviction appeal in 2006. The court noted that “[n]o DNA tests were conducted and the complainant was not shown a photo line-up.”20 It observed that “[t]he trial judge referred to the complainant's in-court identification” of Dhillon as one of the two assailants “several times in passing,” but found that the trial judge’s “reasons [for judgment] demonstrate that he did not give it undue weight in his assessment of the evidence overall.”21
Regarding the complainant’s evidence, the Court of Appeal observed that she was “confused or inconsistent in her statements as to certain details, particularly with respect to a tattoo on the chest and a mole on the testicle of her assailants” that she recalled seeing in the course of the assault.22 Dhillon, who had neither of these, argued that her “evidence placed these identifying marks on [two] separate individuals”, i.e., the perpetrators.23 The trial judge disagreed, concluding that the assailants were Dhillon and a second person who “had the mole and also the tattoo, if there was a tattoo”.24 The Court of Appeal held that the trial judge did not err in so finding, as “it was open to him to reach the conclusion he did on that evidence.”25
In the end, the Court of Appeal stressed that Dhillon’s conviction “turn[ed] . . . on the complainant's evidence that only three males were present, that she was assaulted by two of the three, and Adam was not one of the two. She was not shaken on that critical point.”26
It was not until July 2010, two years after Dhillon's deportation, that the overlooked DNA evidence came to light.27 At that time, "one Mohammed Ukhttar was convicted of an unrelated assault" and was ordered to provide a DNA sample. Upon receipt of his DNA profile, "the National DNA Data Bank reported a match between Mr. Ukhttar and 'Male 1'. Surrey RCMP then took a renewed interest in another suspect", Sital Bhatti, who had come to police attention regarding the sexual assault, but this line of investigation had not been "vigorously pursued".28 Crown counsel sought and obtained a DNA warrant permitting them to take a genetic sample from Bhatti, in the process of which they learned that the February 2005 DNA testing results had never been disclosed.29
In 2011, the BC Criminal Justice Branch appointed a special prosecutor to review Dhillon's conviction. The special prosecutor found that "there had likely been a miscarriage of justice" since Dhillon’s DNA did not match that retrieved from the sexual assault kit.30 Meanwhile, police obtained Bhatti's DNA profile, which was analyzed in May 2012 and proved to be a match for "Male 2".31 The Surrey RCMP apologized, stating that it “did not sufficiently consider additional avenues regarding other potential suspects” and that the DNA analysis results were “not shared with Crown counsel or with defence counsel during the original trial".32
Ukhttar and Bhatti were charged with sexually assaulting the complainant. As of 2014 – nearly a decade after Dhillon's conviction – both men were awaiting trial. The outcome of these charges is unknown (as publication of the specifics of court proceedings that could identify a sexual assault complainant is generally prohibited).33
Dhillon sought an order from the Supreme Court of Canada for an extension of time to appeal the 2006 judgment upholding his conviction. In October 2013, the Supreme Court granted Dhillon's request, directing the British Columbia Court of Appeal to rehear his case in light of the fresh evidence.34
The B.C. prosecutors conceded at Dhillon’s 2014 appeal that the new DNA evidence should be admitted and that there had been a miscarriage of justice.35 The Crown acknowledged that the failure to disclose the DNA evidence prior to Dhillon's conviction was in breach of his constitutional right to a fair trial.36 However, the Crown argued against giving Dhillon an acquittal, stating that the appropriate remedy would be a stay of proceedings because “although a conviction [after a new trial] may not be likely, it cannot be ruled out as a reasonable possibility. That is, given the complainant’s clear identification of Mr. Dhillon at trial, a new trier of fact could find she was simply mistaken as to the number of men who sexually assaulted her.”37
Dhillon sought an acquittal. He argued that there was no reasonable basis on which he could be convicted given the DNA evidence, which ran contrary to the complainant's testimony that Dhillon as well as “Harris” (presumably Ukhttar or Bhatti) had committed the assault.38 This discrepancy was suggestive of memory conflation (i.e., commingling of distinct components) in her recall of this traumatic event – during which she was intoxicated by alcohol in concert with prescribed medication and perhaps another substance added to her drink – a well recognized phenomenon under these conditions. (See, for instance, the case of Steven Jones Kelly, also in this Registry.)39
The Court of Appeal concluded that Dhillon’s conviction was a miscarriage of justice. However, it took the view that “the fresh evidence is not sufficiently cogent to exclude the reasonable possibility of a conviction”, meaning that a hypothetical jury could reasonably convict Dhillon notwithstanding the DNA evidence.40 The court came to this conclusion based on the complainant’s identification of Dhillon as one of the perpetrators, together with the condition in which police found him upon searching his suite. The court held that while a conviction on these facts “may not be likely, the circumstances do not justify entering an acquittal.”41
Instead the court concluded that the proceedings against Dhillon should be judicially stayed. It found that this remedy was required “to prevent an abuse of process", given the serious and irreparable breach of Dhillon's right to a fair trial that resulted from the DNA analysis non-disclosure.42 In December 2014, the court overturned Dhillon's conviction and stayed the proceedings against him.43
However, the Court rejected Dhillon’s request that the Crown pay his legal costs. It found that a costs award would not be appropriate because: “while the case demonstrates a substantial lack of attention by the Crown, there [was] . . . no evidence of bad faith or malice” in its serious breach of Dhillon’s right to a fair trial.44 The court concluded that “the non-disclosure in the circumstances did not amount to a marked and unacceptable departure from the reasonable standards [of practice] expected of the Crown.”45
Dhillion’s lawyer told reporters, in regards to the stay of proceedings: “I actually expected an acquittal – I argued vociferously for one."46 This said, he thought that “it wasn't as surefire a case as some” because the Court of Appeal “didn’t want to second-guess” the trial judge, who had relied upon the accuracy of the complainant’s recollection.47
Dhillion filed a civil suit in February 2015 against the B.C. government as well as RCMP members, the Crown prosecutor, and his trial lawyer. His statement of claim described the consequences of his wrongful conviction, asserting that he “lost everything”: his freedom, family, permanent residency, and livelihood. Dhillon, who had been employed as a millworker, was struggling as a farmer in rural Punjab “with few economic prospects”.48 His civil lawyer commented that “[i]t’s been devastating for him, particularly being alienated from his daughter has cost him untold suffering, having his own daughter believe that he committed a sexual assault that he didn't commit.”49 No public record has been discovered as to whether this lawsuit was successful.