The Bulldog and the Helix Page 7

  Ottawa had not yet enacted Bill C-104, which gave police the power to compel a DNA sample, and the Section 80 Charter prohibition on “unreasonable search and seizure” had yet to be thoroughly tested at the Supreme Court level. Even “search,” now defined as “an intrusion by an agent of the state into a person’s reasonable expectation of privacy,” had yet to be codified in practice. Nearly fifteen years had passed since Carolyn Lee’s murder. There was no expectation that the investigators would find any physical evidence, such as a weapon or a pair of boots with a characteristic footprint, linking Dhillon to the crime scene. What they were looking for, in the absence of Dhillon’s consent to submit a blood sample, was anything that could provide cast-off DNA, such as a cigarette butt in an ashtray, a bloodstained Band-Aid in a wastebasket, or a semen-stained bedsheet—even flakes of dandruff on a hairbrush.

  Knowing he was wading into untested waters, Smith had decided to limit his risks if possible. To start with, he had to climb over the gate to get to Dhillon’s front door, search warrant in hand. “Mr. Dhillon came to the door and asked what this was all about. I explained that I had previously asked his consent for a sample of blood for DNA, and he had not consented, so I had gotten a search warrant to search his house for that material.”

  Smith didn’t know if Dhillon had sought legal advice. Smith was fully prepared to take the team into the trailer and gather potential cast-off DNA. But Dhillon then threw him a curveball, and it later raised the question of whether his legal counsel was already anticipating an “uninformed consent” defence. “He said, ‘I didn’t think it was that big of a deal. No problem. I’ll give you my blood for a DNA sample.’”

  Knowing he was on uncertain legal ground, Smith made the decision to accept Dhillon’s consent. He did not serve the search warrant and the team escorted the suspect to West Coast General Hospital. “We took him to the hospital, and Dr. Clifford took three vials of blood for analysis.” In hindsight, says Smith, “I should have executed the warrant because the trial judge later ruled that I had used the warrant to force him to comply with a consent sample.”

  At the time, though, Smith had to grapple with the question of whether it would be considered “unreasonable” to search the suspect’s house and go through his most personal and private belongings after the suspect had offered to provide what the investigators were seeking. “You execute the warrant and hope to find biological samples —and that’s not a sure thing. If I turned him down, could he later say that was unreasonable search and seizure because I invaded his home to get something he’s offering to give me?”

  Dhillon’s readiness to be sampled also raised the possibility that the accused had something in the trailer he really did not want investigators to find and that he considered volunteering a blood sample as less of a risk than a police search of the premises. Had Smith risked a ruling of “unreasonable search and seizure” by serving the warrant and collecting cast-off DNA, he might have obtained an admissible secondary source of genetic material in reserve. Conversely, he might have had both sources blown out of court.

  The blood samples and the vaginal swabs from the Lee crime scene were first sent to the biology section of the RCMP’s central forensic laboratory in Ottawa. Using RFLP technology, the reporting officer, Anne-Elizabeth Charland, performed the initial testing and determined that the results were inconclusive. With no usable results, Blizard searched for a lab that used PCR analysis. The samples were subsequently sent to a private lab in Seattle, Washington, owned by Genelex Corporation. Thomas Wahl performed the testing, and in September 1993, he advised the team that he had identified one locus.

  In accepted legal terms, a DNA match is described in terms of how many chances are possible that a particular person other than the accused would leave genetic material matching the sample in question. Wahl’s findings disappointed the investigators. He said the odds that someone other than Dhillon would match the 1977 semen sample were one in thirty-three. “Not one in thirty-three trillion—one in thirty-three,” Smith said. “There was a match, but because of the primitive nature of the technology of the time, the odds were one in thirty-three.”

  A year later, Blizard sent a sample to another PCR lab in the US, Roche Biomedical Laboratories in North Carolina. This time, analyst Richard Guerrieri produced a five-loci profile that improved the odds to one in thirty-four hundred. It wasn’t enough to take to court, but by compounding the odds that were indicated at different loci in subsequent tests, it would later prove possible to establish the sort of probabilities that the Crown would need to bring the case to court.

  A WITNESS COMES FORWARD

  While the case against Gurmit Dhillon had evolved into a full-fledged technical marathon involving an entire team of forensic specialists and investigators, it was an ordinary street cop who effectively turned the tide.

  By the summer of 1994, the crime scene samples and Dhillon’s consent sample continued to pass through a succession of laboratories as investigators sought to achieve that one-in-millions match. Seventeen years after the fact, the evidence against Dhillon in the murder of Carolyn Lee amounted to a set of tire tracks, two acquittals on unrelated sexual assault charges, and the recollections of an ex-wife, recorded six years after the crime. While the DNA match was gradually confirming Dhillon as one contributor to those degraded crime scene samples, that factor, in and of itself, could not be included in the equation. What the investigators needed was one solid piece of evidence, such as a witness who could connect the suspect to the crime. Then it happened.

  Constable Bruce Nicholson arrived in Port Alberni in January of 1987, just two years after beginning his RCMP training at the Depot in Regina, Saskatchewan. Nicholson and a classmate, Constable Craig Andrychuk, set up in a rented house in Cameron Heights, overlooking the harbour. There, the single young Mounties met Janet Lazorko, who lived just a few doors away with her mother, Alice. Nicholson and Andrychuk struck up a social relationship with Janet Lazorko, who was in her early twenties. “We became very good friends,” Nicholson recalled. “Periodically, they would invite me over for dinner—taking pity on the poor single guy. Through the years after that, Janet and I stayed friends, and whenever Alice saw me, she would call me ‘son.’”

  In July of 1994, while biologist Richard Guerrieri was completing his DNA report at Roche Biomedical Labs in North Carolina, Alice Lazorko made the decision to break her silence on what she had seen on the day of the Carolyn Lee disappearance. There was only one person in authority she could bring herself to trust.

  “I hadn’t heard from the Lazorkos for a few years,” Nicholson recalled, “and I was at work when I got a call from Alice.” At first, his former neighbour sounded very reluctant to say what was on her mind and why she had called him at work. “She was very aloof, saying she had something that was really bothering her. I said, ‘Alice, you can tell me anything. Tell me what’s bothering you.’” There followed a long silence.

  “She said, ‘I’m scared, Nick. I’m scared.’ I asked her if she had done something wrong. She said, ‘I haven’t done anything wrong, but I’m scared to talk to you about this.’”

  Nicholson instinctively knew this was something she wasn’t able to talk about over the phone. The two made plans to sit down, face to face. Alice arrived, accompanied by her daughter, Janet. “As soon as she saw me, [Alice] broke down. She blubbered and bawled. I realized something serious was about to happen here.”

  “She asked me if I knew about the Carolyn Lee murder case,” he said. “I told her I knew it was a cold case, but we weren’t really privy to what they [the General Investigation Section] worked on.” As Nicholson listened and took notes, Lazorko gave him a detailed and emotional account of a chance meeting between two vehicles at Third Avenue and Ship Creek Road on April 14, 1977. Twenty-two years later, Nicholson recounted her statement to me, sketching out the route on paper.

  “She was leaving Cameron Heights, driving down Motion Drive and turning onto Third Avenue. She said
there was a large SUV coming south on Third. She was by herself. Just as that vehicle turned onto Ship Creek, she passed it. I’m not sure if she told me it was baby blue.

  “She said there was an Indo-Canadian male driving, and as she got parallel to that vehicle, she saw a little Asian girl who appeared to be crying [Nicholson gestured, banging his fists as if against a window], up against the window as if she was screaming for help. She said she saw a blond man pull the little girl down in the SUV. The vehicle went up Ship Creek, and Lazorko continued on her way.

  “The next day, she heard on the news that Carolyn Lee had gone missing. She told me, when she found that out, it ripped her guts out. She lived with that image in her head for many years, but she was too afraid to tell anybody. She lived with that for [seventeen] years.”

  But there continues to be a nagging discrepancy in Lazorko’s version of the sighting on Third Avenue. At the trial, Lazorko said her first impression was that the girl in the car was fifteen or sixteen years old, and she couldn’t figure out why a complete stranger was yelling at her. The image that registered was of a snarky sixteen-year-old instead of a terrified twelve-year-old. When, the next day, she heard that a twelve-year-old Chinese girl had been murdered near Cox Lake, she said she did not make the connection, and pushed the entire incident, uneasily, into the back of her mind.

  But one day, many years later, Lazorko recalled the blond man and came to a sudden realization: his eyes had bulged when he’d looked at Lazorko because he’d thought she was a cop. When he realized that she was driving a decommissioned police car, he started to laugh.

  Nicholson said that whatever recollection Alice Lazorko brought to court in December 1998, she had initially told him that, early on, she realized the girl was Carolyn Lee. “From my knowledge, she told me it was a younger girl,” he said, noting that her visual estimate at the time was of a girl from nine to twelve years of age. “That’s what she told me.”

  Nicholson said he immediately relayed this information to Dan Smith. At that point, he had no idea that Lazorko’s description of both the driver and the vehicle matched that of long-time suspect Gurmit Dhillon. “I had heard rumours that Dan was in the forefront of ‘the DNA tool’ for police in Canada, but I still didn’t know anything about it.”

  Nicholson told me he hadn’t realized that Lazorko’s statement to police would provide substantial grounds for the critical DNA warrant and for Dhillon’s subsequent arrest. Looking back, he does not believe Lazorko intentionally withheld information, but rather that she was suffering from internal stresses, compounded by guilt after the fact, which prevented her from acknowledging what she had witnessed.

  “My understanding was she sat on it all those years because she was fearful.” Dan Smith agrees. He remembers her as “a very valuable witness. She came across as absolutely forthright and honest. There was no guile there at all. I have no doubt what she testified to was to the best of her recollection,” he said. “She was very forthcoming. I got the impression that she felt guilty for not phoning sooner.”

  With Lazorko’s witness statement at hand, Smith bumped the information up the ladder. “I took the statement from her and that became part of the investigational file. Dale [Djos] was made well aware of that as my supervisor. Ultimately, all of this got forwarded to Darrill Prevett,” the regional Crown counsel who would become the go-to prosecutor for DNA cases in the province. The statement was earmarked as part of the overall objective of obtaining a DNA warrant.

  THE LAZORKO STATEMENT was not a magic bullet, but it was one more link in the chain of evidence. Smith said, “I was certainly aware of the significance of it. But it wasn’t in and of itself enough for a DNA warrant. It just formed part of the totality of the circumstances. There were also some things that I had to overcome—to explain in the DNA warrant.” He explained that, when drafting a warrant, the investigator cannot simply cherry-pick the information that goes into the application. “You have to put in the bad with the good. You have to include things that would tend to exonerate the accused as well as to implicate him.”

  By the time of her statement, Lazorko had become aware that an Indo-Canadian male by the name of Gurmit Dhillon was the prime suspect. That potentially damaging fact had to be included in the warrant application. Dhillon had previously taken a polygraph test and, in the opinion of the polygrapher, passed it. A second polygraph, conducted in 1984, proved less conclusive. Based on that, he had been removed from suspicion and was no longer a viable suspect in the eyes of the investigation team of the day.

  Nevertheless, Alice Lazorko’s statement “formed part of our grounds for the DNA warrant,” says Smith. “And the DNA evidence was the single most important piece of evidence in convicting Mr. Dhillon.”

  Alice Lazorko passed away on June 17, 2012.

  The Law Catches Up with Science

  IN THE SPRING of 1995, Bill C-104, commonly referred to as the DNA warrant law—which would compel a suspect to submit a sample of blood and/or saliva for DNA analysis—continued its journey through the Canadian Parliament. On June 22, the new legislation was passed in the House of Commons with the unanimous consent of all parties, including Nanaimo-Alberni MP Bill Gilmour and his Reform Party.

  Following approval in the House, Bill C-104 was sent to the Senate, where it received Second Reading on June 27. The bill was then referred to the Senate Standing Committee on Legal and Constitutional Affairs, which held two public meetings. The Standing Committee sent the bill back to the Senate on July 11, with a recommendation that the minister of justice give adult offenders the right to have counsel present when a DNA sample was collected.

  Bill C-104 received Royal Assent on July 13 and was proclaimed into law the same day. In August, Jane M. Allain of the Canadian Parliament’s Law and Government Division prepared a paper, Forensic DNA Testing: Legal Background to Bill C-104, which, along with a short history of the legislation, spelled out in detail how the new law would operate and the offences for which it could be employed. Under the new law, a provincial court judge would be able to issue a warrant authorizing a police officer to obtain a blood or saliva sample for DNA analysis. The list of crimes under which a DNA sample could be compelled was extensive, including obvious Criminal Code crimes such as murder and sexual assault, but also encompassing offences against public safety such as piracy and hijacking or failure to stop at the scene of an accident. Property offences calling for a DNA warrant included robbery and break-and-enter with the intent to commit an indictable offence. Yet to be determined was the creation of a DNA data bank and the use of DNA profiles to investigate previously unsolved crimes.

  With Bill C-104 now passed into law, the Carolyn Lee investigation team no longer had to rely on the legal admissibility of the voluntary DNA sample provided by Gurmit Dhillon on March 6, 1992.

  In the fall of 1994, in R. v. Borden, the Supreme Court of Canada ruled that DNA obtained through a voluntary blood sample related to one investigation could not be applied to a second, unrelated crime. While R. v. Borden did not, on the surface, present any obstacle in the Dhillon investigation, it had thrown the entire issue of consent samples into a grey area. The challenge now, for Dan Smith, was to build a case to obtain a DNA warrant under the new law.

  TRANSITION AT SERIOUS CRIMES

  In 1995, Wade Blizard was promoted to sergeant and transferred to the Chilliwack detachment, and Dan Bond took over the case at the Serious Crimes Unit level in Vancouver. “I maintained a liaison with Dan [Smith] and Dale [Djos],” Bond said. “But Wade always kept his fingers in—we all just wanted to keep things moving.”

  Bond said while he worked seventeen homicides during his four years in Serious Crimes, the Carolyn Lee case had a way of hooking an investigator in. “Any police officer who had ever taken a hand in it—the only thing they wanted was justice for Carolyn,” he said. “There were glimmers of hope with the DNA; there were stages when real progress was made, then things would slow down. It was a case of making incremental
advances.”

  As an investigator, he knew that this was history in the making. “Everybody knew we were on the precipice,” Bond said. “This was an emerging new field of criminal law—and we were part of it.” However, Bond explained, Serious Crimes still placed a priority on active cases. Historic cases, while they were compelling, had to take a back seat. Still, there was general agreement that cases like the Carolyn Lee one must be moved forward as time and resources allowed. “When our phone wasn’t ringing off the hook, we would undertake a file review. We would have to do that off the side of our desks.”

  Bond said that the RCMP recognized the need to increase resources to investigate historic crimes. The unit would expand significantly over the next decade, but at this time, it was limited to twelve members. Then, in July 1995, Bond was assigned to the Air India investigation, although he still worked out of the Vancouver office.

  Bond followed the Lee case as it proceeded to court (“I did devote a lot of my career to that investigation,” he noted), but by that time, Serious Crimes had moved to the Surrey-Newton detachment.

  STREET KILLING

  As 1996 dawned, Dan Smith and the extended investigation team continued to build up their case for a DNA warrant on Gurmit Dhillon in order to acquire that legally bulletproof genetic fingerprint they needed. Then, in the early morning hours of January 11, a seventy-year-old retired army officer was murdered in Port Alberni in an attack that was as shocking as it was utterly senseless. The case would add another strand to the future States case.

  As the scene was later reconstructed, George Colonel Evenson (“Colonel” was Evenson’s middle name, not his army rank) was walking on the sidewalk on Third Avenue near his home on Melrose Street when he was accosted by eighteen-year-old Thomas William (Tommy) George. Evenson was well known and well liked in the neighbourhood. It was his habit to rise early and walk a regular route, picking up cans and bottles. He donated the proceeds from his morning ritual to the nearby Bread of Life soup kitchen.