Undercover police investigating the murder of a 13-year-old girl in British Columbia disguised themselves as tea marketers to secretly collect the DNA of about 150 Kurdish community members, court recordings reveal. DNA testing is preformed at a lab in New York, Tuesday, April 15, 2014.

Image Credit: THE CANADIAN PRESS/AP-Bebeto Matthews

VANCOUVER - Undercover police investigating the murder of a 13-year-old girl in British Columbia disguised themselves as tea marketers to secretly collect the DNA of about 150 Kurdish community members, court recordings reveal.

Homicide officers said the DNA was obtained at a 2018 Kurdish New Year celebration in Burnaby, where police handed out free tea samples in numbered cups that were later swabbed for DNA in a sting that identified a brother of the suspect.

That led to the arrest of Ibrahim Ali, who was convicted in December of first-degree murder of the girl whose name is protected by a publication ban.

Ali is due in court Monday to fix a date for sentencing.

His trial heard DNA on a cigarette butt discarded by Ali matched semen in the girl's body, which was found in Burnaby's Central Park in July 2017.

But the jury was never told why B.C.'s Integrated Homicide Investigation Team was monitoring Ali,and an application by his lawyers for full information about the operation has been sealed by the court.

However, The Canadian Press listened to months of court recordings of pretrial hearings that reveal details of the secret operation and its random sweep.

Meghan McDermott, the policy director of the B.C. Civil Liberties Association, said she was "stunned" to hear about the operation, calling it "unacceptable and reprehensible" if police failed to obtain a warrant for it.

"We need judicial permission to do this. You either need the warrant to do it surreptitiously, or you need informed consent," she said in an interview.

"It's really disappointing and disturbing, that they came up with a creative way, that they're probably very proud of, to violate the rights of so many people."

It's not clear if a warrant was sought or obtained, and police did not immediately respond to a request for comment.

Dan McLaughlin of the BC Prosecution Service said in an email Friday that the service "will not be issuing any statements or commenting on any aspects of the investigation or prosecution at this time."

Ali's lawyer Ben Lynskey said in one of the pretrial hearings that the sting involved the "indiscriminate" investigation of people on the basis of "racial background."

He said there were "massive implications for how the police conduct investigations and for the Charter-protected interest of Canadians."

Police testified the sting was launched after DNA from the body was determined to have markers consistent with the Kurdish ethnic minority. Homicide investigators zeroed in on the community of several thousand in the Lower Mainland, whose members include refugees from the Syrian war.

Police had earlier conducted a voluntary DNA sweep of male Kurds, as well as collecting castoff DNA samples, the court heard.

"This is an investigative step that was taken by the police, which allowed the police to direct some greater attention and focus, in a better way, the nature of their investigation," Crown lawyer Daniel Porte told a pretrial hearing in November 2019.

But when that didn't yield a breakthrough, police devised a new plan to obtain DNA without permission. They would secretly collect DNA at a Kurdish New Year celebration, known as Newroz, at Burnaby's Barnet Marine Park on March 25, 2018, the recordings revealed.

An RCMP officerexplained the operation to the B.C. Supreme Court in November 2022 calling it an "incentive-based scenario."

"The specific scenario was a taste test of tea," the officer told the court.

He said officers dressed as market researchers for a tea company and roamed around the Newroz celebration, offering free samples. He said the participants were also given Tim Hortons gift cards.

"I believe it was a $5 gift card, but I can't be certain on the amount," the officer said.

"The participants (who) elected to participate in this event, (and) it was entirely voluntary, could elect to provide personal information which would further give them the possibility of being entered into some form of contest or sweepstakes. This, again, was voluntary."

But participants were never told the tea company was fake and the entire process was designed solely to allow police to obtain their DNA and identities.

The officer said the cups were "individually and uniquely numbered" so police could later match DNA on the cups with names on the contest forms.

Undercover officers would offer to take back the used disposable cup, pretending to throw them away. Instead, the cups were wrapped in a plastic glove to protect against cross-contamination, placed in a garbage bag, then collated in a trailer parked some distance away.

In December 2022, Crown lawyer Porte told the court that 150 cups were collected at the celebration. Three were duplicates, and of the 147 unique DNA samples, 91 were male and 56 female.

He said one of the samples obtained at the Newroz celebration came from a man named Shamdan Ali, and that RCMP lab testing showed he shared many genetic characteristics with the DNA of "Male 1," whose semen was found in the body.

He said Shamdan Ali's DNA was sent to Parabon NanoLabs in the United States which had more exacting science than available in Canada. The company determined it likely belonged to a sibling of Male 1 with "confidence of 99.32 per cent."

Police then identified Syrian refugee Ibrahim Ali as the brother of Shamdan Ali and began surveillance that later resulted in the seizure of the cigarette butt on Aug. 24, 2018.

The DNA matched Male 1 and Ibrahim Ali was arrested about a week later.

Prosecutors told his subsequent trial that Ali had sexually assaulted and strangled the girl, and he was convicted on Dec. 8. He faces a mandatory life sentence with no chance of parole for 25 years.

McDermott, with the BC Civil Liberties Association, said the sting operation was "really concerning," set a "scary precedent" and will likely impact trust between the Kurdish community and Canadian authorities.

It would be "disingenuous to call this a voluntary collection of cast-off DNA," she said of the Newroz operation.

"There can be creative solutions to finding a needle in a haystack or looking for people who have done criminally abhorrent things," she said. "Our system can accommodate these brilliant, creative solutions if they're properly balancing all of the rights involved."

Ali's lawyers filed a notice of appeal on Dec. 11, which claimed the court "erred in its consideration of the defence abuse-of-process application in respect to the police collection of, and investigation into, the appellant's DNA."

During pretrial hearings, Ali's lawyer criticized the sting operation and the targeting of the Kurdish community.

"The only way to advance the lead without other investigational information is to do what the police did in this case, which is to indiscriminately investigate every person from the same racial background," Lynskey said during a disclosure application in January 2022.

"The defence will be challenging whether this technology can reliably do what it purports to do and whether it should be used," he said.

"We will also be challenging the effect of the use of this technology on the police investigation and whether it led to them exploiting the vulnerability of the Kurdish population to advance the investigation."

Justice Lance Bernard ruled against the abuse-of-process application in December 2022.

Ali's defence lawyers did not immediately respond to requests for comment.

This report by The Canadian Press was first published Jan. 15, 2023.

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