In his oral findings, Thackray recounted the series of events leading to the trial adjournment, which, he noted, he granted “very reluctantly.” On June 18, Heller had informed the judge that he had retained Beyerstein to replace Cooper, and that Beyerstein would be available on Monday, June 25. Thackray then cited Arnfield’s affidavit spelling out her unexpected contact with Cooper at his home in Victoria at the time he was allegedly in Ontario. “In a telephone conversation with Mr. Heller, I informed him that I would be giving consideration to what steps, if any, to take with respect to Dr. Cooper, and that Mr. Heller might so inform Dr. Cooper.”
On June 25, the day the trial resumed, Thackray advised Prevett to turn the matter over to the Attorney General of BC, who subsequently filed a contempt charge. On July 4, following the Patten verdict, Cooper appeared before Justice Thackray, represented by D.M. McKimm. R.F. Cutler appeared as counsel for the Crown.
The contempt hearing raised another troubling issue that Thackray included in his ruling: “This other problem, as relayed to me by Mr. McKimm on behalf of Dr. Cooper, was that Dr. Cooper had informed Mr. Heller that he could not support the accused’s contention that his mind was not capable of forming the intent to murder. I believe that Mr. McKimm said that Dr. Cooper could not testify that there was a nexus between the killing and the use of LSD.”
Thackray opted not to pursue the matter of Cooper’s second thoughts on the mental impairment defence any further. After Cooper delivered an apology, Cutler rejected McKimm’s contention that the apology should “purge” the contempt. Contempt was criminal by definition, Cutler explained, meaning that a simple apology was insufficient under the law. Thackray affirmed Cutler’s position: “In my opinion, Dr. Cooper still does not realize the extent of the damage that he did, and he had no concept, at least until he heard the first portion of these reasons today, of the potential that his conduct had to derail the Patten trial,” Thackray said.
Besides throwing the trial into confusion, the adjournment led to considerable added costs for the RCMP and the Sheriff’s service in the form of extra flights, accommodation, jury fees, etc. It was inexplicable that a highly educated, experienced, and much-sought-after expert witness like Paul Cooper could behave in such a fashion, Thackray told court.
“Dr. Cooper deliberately misled counsel and the Court. This was not a matter of inadvertence. Furthermore, when contacted by Constable Arnfield, he not only continued the deception, but also added to it . . . I expect that Dr. Cooper has put his career into reverse. His credibility, if tested in court with respect to this incident, would make him an unacceptable witness. He is therefore subject to punishment not directly handed out by this Court at this time. Nevertheless, I am of the opinion that his apology cannot purge his contempt. He deliberately deceived the Court and court officers. He deliberately interfered with the course of justice. He prejudiced the rights of an accused.” Finally, Thackray decided, due to Cooper’s “clean background,” that a fine would be sufficient punishment, beyond the damage inflicted on his credibility and on his future prospects as an expert court witness.
THE MURDER OF Jessica States continues to resonate in Port Alberni more than twenty years later. Jessica’s contemporaries are now the parents of a dwindling school-age population. Many will tell you they watch their children a little more closely and don’t allow them the same freedom of movement their parents gave them when they were growing up. Because once there was a feisty, fireball of a girl named Jessica . . . and then she was gone.
Epilogue
TUESDAY, SEPTEMBER 11, 2001, was going to be a really bad day at the Alberni Valley Times, even without a massive terrorist attack in faraway New York City.
On Monday, the Times press crew printed their final edition of the paper; their jobs would then disappear. Effective Tuesday, the editorial and production departments would send pages directly to the Nanaimo Daily News, where the paper would be printed on their recently upgraded press. To continue as an afternoon daily and hit the press window, the Times pages would have to be transmitted in full, electronically, by 10:30 AM. After printing, the Nanaimo crew would then bundle up 7,000-plus copies and truck them to Port Alberni by mid-afternoon.
Unknown to us at the time, but also on September 10, 2001, Harvey Harold Andres, whom as a rookie Dale Djos had arrested in 1976, went to trial for the May 23, 1982, murder of Shirley Ann Johnston. Using the successful Gurmit Singh Dhillon investigation and prosecution as a template, the Andres investigation was the second historic DNA cold case to go to trial in Canada. Andres would subsequently be convicted.
The last edition of the Times to be pressed in-house, on September 10, was decidedly mundane: There had been a lethal plankton bloom at a National Aquaculture salmon farm in Bedwell Sound, on the west coast of Vancouver Island. Terry Fox Week was declared in Port Alberni. A former Times reporter was nominated for a writing award. Later that day, after press time, my colleague Mia Vare covered the grand opening of the new West Coast General Hospital, while I interviewed the maintenance supervisor of Alberni Pacific Division on the issue of the contentious softwood lumber tariff charged on Canadian lumber crossing the border into the US.
At 8:00 AM on September 11, feeling like hell already because twenty-odd co-workers had lost their jobs, I walked into the office to find the entire surviving staff in shock. “Good God! Haven’t you been listening to the radio?” someone asked, incredulous, when it became apparent I didn’t realize what was going on.
Actually, at eight in the morning, Pacific Standard Time on 9/11, nobody was really sure what was going on. There was a TV on in the production manager’s office, and we saw the devastation wrought when the two hijacked airliners crashed into the World Trade Centre towers. We had a hard deadline of 10:30 to find something to lead on the front page.
The editor selected the freshest available Canadian Press story: “Officials Plan to Close Borders after US Terrorist Attacks.” What was known, by our press time, was that all airline flights had been cancelled, and all trans-Atlantic and trans-Pacific flights destined for the US had been diverted to the nearest Canadian airports—and that was about it. Mia Vare’s hospital story and picture, with my softwood lumber story below, were dutifully transmitted to production in Nanaimo under the new system.
The next day, we scrambled to cover how Port Alberni responded to the terrorist attacks while at the same time covering the day-to-day stuff that continued, albeit in an overwhelmingly gloomy sense of unreality. I canvassed local emergency agencies like the fire department, RCMP, and provincial emergency services. As of September 12, there had been no requests for emergency personnel, but later on, a delegation of Port Alberni firefighters would travel to New York to fill in for those members of the New York City Fire Department lost fighting the Twin Tower blazes.
Back in court on Tuesday, September 18, I wrote about a youth who was ordered to provide a DNA sample following his second conviction for break-and-enter. Despite the DNA order, which would permanently place him in the growing National DNA Data Bank, Judge Brian Klaver limited the sentence to one day in jail and one year of probation. While imposing the sentence, however, Klaver warned the teen how advances in DNA technology made future criminal activity unadvisable. “If you break into someone’s house, all it takes is for you to touch a doorknob, or for one of the hairs to fall out of your head, and they will catch you,” he warned.
The next day, I interviewed a local man, Dave Tremblay, who had watched the World Trade Center towers collapse while stranded at the airport in Newark, New Jersey, directly across the Hudson River. “I was on the runway, coming home. The plane would have left at nine o’clock,” Tremblay said. “The pilot got on the radio and told us the flight was postponed, that there had been some sort of accident. Ten minutes later, he said all flights were postponed until further notice.” After disembarking, Tremblay made his way to the airport’s observation deck, overlooking the Hudson. “We could see the burning towers from across the river. I watche
d the first tower go down. You couldn’t hear it, but you could feel the ground shake. My first thought was, ‘I’ve got to get back to Canada because terrorists don’t attack Canada,’” he said.
(As a tragic side note, while he was still in New Jersey, Tremblay’s cellphone began filling up with voicemails as the overloaded local cell towers began scrambling area codes and sending messages to unsuspecting people in the area. But Tremblay was unable to access his cell phone until he returned to Vancouver, a five-day odyssey of bus rides and one especially tense border crossing. That’s when he realized he had received voicemails from people trapped inside the World Trade Centre. “One was a woman’s voice, saying, ‘Oh my god, I don’t know what to do,’ over and over again. The other was a man’s voice, in absolute panic.” The messages were deleted automatically, so Tremblay had no idea what happened to the terrified people on the other end of the phone.)
AS MY COLLEAGUE S and I continued to cover this new world reality while keeping up with the day-to-day stories of everyday small-town life, I did not know that both of Port Alberni’s landmark DNA homicide cases were about to pass into history. On September 26, the Honourable Mr. Justice Low announced that he had dismissed the appeal in the case of R. v. Gurmit Singh Dhillon. “In my opinion,” Low said, “the evidence was capable of persuading a reasonable jury acting judicially that the only rational conclusion was that the appellant was either the killer of Carolyn Lee, or one of her killers.’”
In the appeal document, defence counsel Russ Chamberlain had raised seven grounds of appeal, which included the trial judge’s refusal to examine prospective jurors at large on the issue of impartiality arising out of the ethnic origin of the appellant, as well as the validity of the DNA warrant. In a point-by-point assessment, Low refuted each ground for appeal in detail, citing an extended quote from the trial judge’s instruction to the jury regarding the probative value of the Crown’s DNA evidence. And he completely rejected the “DNA soup” theory that suggested two donors could create a hybrid DNA profile.
Low noted that the jury was required to weigh the witness statement presented by Alice Lazorko, seventeen years after the fact, and the testimony of Sharon McLeod, the former wife of the accused. There was the physical evidence of the tire impressions and the metal particle extracted from the footprint on the victim’s jacket. And then there was that “significant scientific match” found between the DNA of the accused and the semen sample extracted from the victim.
Low concluded that the Crown had followed proper procedure in obtaining evidence, including the DNA warrant, and that the trial judge had properly instructed the jury. “In the present case, it was open to the jury to accept the evidence of Sharon McLeod and to conclude that Seiberling heavy-lug tires on all four wheels of the vehicle made the impressions at the crime scene. It was also open to the jury to conclude that these and other features of the evidence, combined with the opinions of the Crown’s DNA experts as to the match between the blood of the appellant and the male DNA in the vagina of the victim, made a compelling circumstantial case that the appellant was the killer or one of two killers. My view of the evidence as a whole leads me to the conclusion that a guilty verdict was one that a properly instructed jury, acting judicially, could reasonably have rendered. I would dismiss the appeal.”
Gurmit Singh Dhillon is currently confined at the medium-security Mountain Institution, in Agassiz, BC.
Roddy Patten, meanwhile, never filed an appeal of his conviction, and he remains in custody to this day. He has been eligible for unescorted temporary absences since August 11, 2007, and full parole since August 10, 2009. He first waived his right to parole at a hearing in 2007, then in subsequent hearings in 2009, 2011, 2013, 2015, and 2017, electing instead, for unknown reasons, to remain incarcerated.
Patten’s incarceration has included stops at Mountain Institution, as well as the maximum-security Kent Institution, also in Agassiz, and the medium-security Bowden Institution in Innisfail, Alberta. In July 2018 he was transferred to the Regional Psychiatric Centre in Saskatoon, Saskatchewan.
A MATTER OF HISTORY
I asked Dan Smith how, on reflection, it felt to be recognized as a DNA pioneer. “It’s a mixed bag,” he noted. But he shies away from claiming celebrity status. “Obviously, it takes a team to prosecute these things.”
Smith also recounted an episode that took place after both the Dhillon and Patten DNA warrants had been drafted and served successfully, and after Jerry Thompson’s CBC Witness episode, “The Gene Squad,” had made him a recognizable figure in the field of forensic DNA. A senior non-commissioned officer in the Vancouver RCMP office contacted him to advise that they had identified “a suspect in one of his investigations” and that he should obtain a DNA warrant— “right now.”
“I patiently explained to the officer that we would certainly consider the information, and we would be able to obtain [cast-off] DNA from the suspect, but there were not sufficient grounds for a search warrant.” The next day, a second officer told Smith that the inquiring officer had complained to head office that he wasn’t taking her information seriously.
“We ultimately did get cast-off DNA from the person that the first officer told me about. And he was eliminated from suspicion.” Smith revealed that the Vancouver officer believed she had a credible suspect for the Jessica States investigation. But with the warranted DNA sample in hand, Smith said the antagonistic exchange between the two officers could have become part of a future defence strategy. “Suppose I am on the stand, and [the defence] asks, ‘On such-and-such a day, were you contacted by an officer two ranks higher than you, who told you that someone else did this crime?’ My response would be ‘Yes.’” And this, explained Smith, could have created a “reasonable doubt, notwithstanding all the evidence that pointed to the person that I say did it.”
Smith retired from the RCMP in 2008, after thirty-three years, and took a year off. “Then I was asked to come back as a public servant to vet a homicide project.” Then, in 2014, he took his current position as court liaison officer in Campbell River, a role he had performed early in his career as a uniformed officer.
A S MANAGER OF the Vancouver RCMP DNA unit, with a staff of twenty-six technicians, Stefano Mazzega would later oversee the most massive DNA investigation in Canadian history, an investigation in which Hiron Poon also participated.
Between 1983 and 2002, Robert William “Willie” Pickton murdered as many as forty-nine women, mostly marginalized sex trade workers, on his Port Coquitlam pig farm. The site search, which involved extensive excavation and soil sifting, as well as the eventual demolition of most of the buildings, cost tens of millions of dollars and yielded a gruesome assembly of clothing, personal possessions, and body parts belonging to the victims. It was believed that Pickton dismembered some of his victims and fed selected parts of them to the pigs, which were then slaughtered and sold. Most of the twenty-seven victim identifications came as a result of DNA analysis.
Poon was involved in one of the more frustrating files in the Pickton investigation. The case revolved around a human partial skull found in Mission in 1995. “At first they thought the skull was from a (male) visitor from India who was murdered,” Poon said. “They were pretty sure about it, so they were going to go to India to get a DNA sample from the parents to confirm it . . . [But first,] I extracted DNA from the bone. I said, ‘This is from a female.’
“To date, we still don’t know who the woman was. At the time, Crime Stoppers came to my lab, and we did a Crime Stoppers series on it. Somebody from Ident did a reconstruction of the facial section. But we never found anything until we hit Pickton. That was in 2002. In one of the pig troughs, we found a piece of bone, and we typed it, and it matched to my missing skull.” As a result, Pickton was charged with one more count of murder.
POON SAID THE defence handling of DNA evidence has evolved since the trials of Dhillon and then Patten. Part of that is thanks to the improvements in DNA technology, and part of it owe
s to successive Supreme Court decisions affirming the validity of the science in linking a perpetrator to the crime. He noted that, by 2001, when Patten went to trial and, two months later, when the Dhillon appeal was rejected, the technology had proven itself to the point where a defence counsel would rarely launch a challenge in that direction. “The only thing they could mount was the interpretation. Today, it comes down to, ‘Okay. You’ve got a profile. Now what does it mean?’”
Here, the defence may fashion a wedge to insert in the Crown case, he explained. Interpretation involves yet another layer of expertise from population geneticists that may provide that window of reasonable doubt in the eyes of a jury. But by 2001, the “DNA soup” theory raised in the Dhillon appeal could be rejected categorically, Poon said. “We deal with two or three donors all the time. We have devised an interpretation system that, if there is enough clarity in the profile, we can pull out genetic information from different contributors . . . two, sometimes three people . . . depending on the type of mixture.”
Ironically, part of the problem with the interpretation of DNA evidence is the very sensitivity of the equipment used to collect and analyze genetic material. Investigators are able to collect DNA from interactions that could be challenged as meaningless in a court of law. “We are now able to collect ‘contact DNA.’ When you touch an object, I could potentially be able to pick up your profile,” Poon explained. “So, what if multiple people pick up the object?”
If an object is of critical forensic value in the prosecution of a crime, and multiple people have been proven to make contact with it, how can the prosecution prove that the accused was the one who committed the crime? “We’re dealing with that kind of argument now—that we’re presenting a heavily compromised, weak sample—and how can you make an accurate determination [of guilt] from this profile?”
The Bulldog and the Helix Page 21