Re: Applications under ss. 490(9.1) and 487.3 of the Criminal Code, 2021 BCPC 31 (CanLII)
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Re: Applications under ss. 490(9.1) and 487.3 of the Criminal Code |
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2021 BCPC 31 |
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Date: |
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File No: |
36782‑1, 36782‑2, 36782‑3, 36782‑4 |
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Registry: |
Williams Lake |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
Re: Applications under Sections 490(9.1) and 487.3 of the Criminal Code
REGINA
Applicant
R.H., J.C., M.I., J.B. and K.B.
Respondents
RULING ON APPLICATION
OF THE
HONOURABLE JUDGE J.T. DOULIS
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Cst. E. Lynde |
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Counsel for the Defendants: R.H. & J.C. |
P. McMurray |
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Williams Lake, B.C. |
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Date of Hearing: |
February 21, 2021 |
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Date of Judgment: |
February 24, 2021 |
Introduction
[1] On February 12, 2021, Constable Lynde, on behalf of the Crown, attempted for the fourth time in five months to obtain orders for the further detention of things the Williams Lake RCMP seized on July 8, 2020, in the course of their investigations into drug trafficking in the communities they serve. The Crown’s applications have been repeatedly adjourned due to the lack of court time, or at the request of one or more of the Respondents, or jurisdictional concerns. As a result of these delays, the Crown lost its statutory right to seek further detention of the things seized summarily under s. 490(2) of the Criminal Code. The Crown has reapplied for an order under s. 490(9.1), which imposes a more onerous burden on the party seeking detention of the things seized.
[2] The Crown’s section 490(9.1) application proceeded before me on February 12, 2021. The Crown submits the continued detention of the items set out in the application might reasonably be required for investigative purposes and future criminal proceedings. None of the Respondents have applied under s. 490(7) of the Criminal Code, which allows a person from whom things have been seized to seek an order that they be returned once the relevant detention period expires. None of the Respondents consent to the Section 490(9.1) application. Nevertheless, R.H. is the only person actively opposing it, and even then, only with respect to a black Samsung cellular phone identified as police Exhibit P-1.
[3] Having considered the evidence before me, the statutory scheme set out in s. 490 of the Criminal Code, and authorities interpreting its provisions, I am allowing the Crown’s application. In a nutshell, I find that the RCMP have attempted in good faith to comply with provisions of s. 490. I find the items set out in the Crown’s application might be reasonably required for investigative or prosecutorial purposes. Moreover, in the broader context of ensuring continuing respect for the administration of justice, including the Respondents’ privacy rights, I am persuaded the interests of justice militate in favour of the continued detention of the seized items.
Issues
[4] The issues this Court has to decide are:
Issue # 1: Should the court order the affidavits filed in support of the Crown’s applications under ss. 490(2) and 490(9.1) of the Criminal Code sealed?
Issue # 2: Has the Crown satisfied the test under s. 490(9.1) of the Criminal Code for the further detention of various items seized from the Respondents on July 8, 2020? Specifically:
a) Might the continued detention of the items seized reasonably be required for a purpose mentioned in ss. 490(1) or 490(4); and
b) Is the continued detention of the items seized in the interests of justice?
[5] At the hearing of this application, I had before me:
a) Three RCMP Form 5.2 Reports to Justice dated July 15, 2020, and one dated August 27, 2020, with respect to the items seized on July 8, 2020, endorsed by Justice of the Peace Rocheleau;
b) The Crown’s four applications for further detention of things seized on July 8, 2020, pursuant to s. 490(2) of the Criminal Code filed September 29, 2020;
c) Constable Lynde’s affidavit filed October 1, 2020;
d) Constable Lynde’s supplemental affidavit filed November 5, 2020, with respect to the Samsung SM-N950W cellular phone identified as Exhibit P-1 (“P1” or “Exhibit P-1”) on the RCMP Major Exhibit Flowchart;
e) The Director of Civil Forfeiture’s Notice of Intent to Commence Proceedings under s. 23.1 of the Civil Forfeiture Act dated December 8, 2020;
f) The Crown’s three applications dated January 4, 2021; for orders for the further detention of things seized on July 8, 2020, pursuant to s. 490(9.1) of the Criminal Code;
g) Constable Lynde’s affidavit filed January 5, 2021, in support of the Crown’s January 4, 2021, applications for orders of the further detention of things seized; and
h) Constable Lynde’s three affidavits of service filed January 13, 2021, with respect to service of the Crown’s January 4, 2021, applications on the Respondents or their legal counsel.
[6] The court also had the benefit of its own record of proceedings, submissions of Constable Lynde on behalf of the Crown and submissions of Mr. P. McMurray on behalf of R.H. and J.C. The court had no affidavit or oral testimony from any of the Respondents.
[7] At the conclusion of the February 12, 2021, hearing, I reserved my decision. These are my reasons for judgment.
The July 8, 2020, Seizures
[8] Between January and July 2020, members of the Williams Lake RCMP General Investigation Section and the Cariboo Crime Reduction Unit investigated suspected drug trafficking activity in their catchment area. This was a large-scale operation involving 30 RCMP officers working on hundreds of different tasks. The officers utilized a number of investigative techniques, including surveillance, search warrants, tracking warrants and production orders. Ultimately, the RCMP focused their investigation on the Respondents: R.H., J.C., M.I., J.B. and K.B.
[9] On July 8, 2020, the RCMP officers seized drugs, drug trafficking paraphernalia, large amounts of cash, vehicles, cell phones, firearms, amunition, prohibited weapons and identification documents. A number of the items the RCMP seized on that day were the result of motor vehicle searches conducted incidental to an arrest and others during the execution of a search warrant of a residence at [omitted for publication] Williams Lake, BC (the “Residence”). Judicial Justice Roberts granted the residential search warrant on July 7, 2020. At the same time Justice Roberts also ordered the Information to Obtain provided in relation to the warrant sealed pursuant to s. 487.3(1) of the Criminal Code.
[10] All the items subject of the Crown’s applications for further detention were seized on July 8, 2020, and were recorded on the RCMP Major Exhibit Flowchart on police file 3304:2020-378 (the “RCMP Flowchart”). The items included:
a) A white Dodge Ram bearing British Columbia License Plate [omitted for publication] (the “Dodge Ram”), registered to K.C. (Exhibit P‑4). On July 8, 2020, the Dodge Ram was being driven by R.H. with J.C. occupying the passenger’s seat. The police pulled over the vehicle at the intersection of the Empter Frontage Road and TransCanada Highway in Ashcroft, BC. The items seized from inside the vehicle or the occupants included: (a) Exhibit P-1 (a Samsung cellular phone); (b) a set of silver keys (Exhibit P-2); (c) $38,490 in Canadian currency (Exhibit P-3), (d) the Dodge Ram’s keys and registration (Exhibit P-5), and (e) 3 grams of cannabis marihuana (Exhibit P-6).
b) Drugs, drug paraphernalia, cell phones, cash, and containers seized from a Toyota Corolla intercepted at a gas station at 959S TransCanada Highway in Cache Creek, BC. The Toyota Corolla was owned and driven by K.G. with M.I. in the passenger seat. The 25 items seized were recorded on the RCMP Flowchart as exhibits prefixed by the letter “Q”; and
c) Seventy-nine items seized from the Residence on July 8, 2020, upon execution of a residential search warrant. I understand this to be the residence of the Respondents M.I., J.B. and K.B. The items seized included drugs, drug paraphernalia, cell phones, surveillance cameras, cash ($15,888), government cheques totaling $8,134.18 endorsed to M.I., firearms, magazines, prohibited weapons, stolen laptops, containers and identification documents. The police also seized a 2006 Chevrolet Cobalt SS, British Columbia License Plate [omitted for publication] (the “Chevrolet Cobalt”), which was parked in the driveway. The Chevrolet Cobalt belonged to M.I. All seized items were recorded on the RCMP Flowchart as Exhibits R-1 to R‑44, U‑1, and T-1.
[11] Constable Elizabeth Lynde is a member of the RCMP assigned to the General Investigation Section of the Williams Lake Detachment. In 2019, she was the designated primary investigator for the RCMP investigation of drug trafficking in the area. Constable Lynde says she reasonably believes a number of offences had been committed, including (a) possession of prohibited drugs for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act (“CDSA”); (b) unauthorized possession of a firearm contrary to s. 91(1) of the Criminal Code; and (c) possession of the proceeds of crime pursuant to s. 354(1) of the Criminal Code.
Form 5.2 Report to Justice
[12] Section 489.1(1) of the Criminal Code hold peace officers accountable for property seized in the course of their investigations. They must either present the seized items, or report of them, to a justice of the peace to be dealt with in accordance with s. 490(1)(b) of the Criminal Code. Section 489.1(1) states:
Restitution of property or report by peace officer
489.1 (1) Subject to this or any other Act of Parliament, where a peace officer has seized anything under a warrant issued under this Act or under section 487.11 or 489 or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer shall, as soon as is practicable,
(a) where the peace officer is satisfied,
(i) that there is no dispute as to who is lawfully entitled to possession of the thing seized, and
(ii) that the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding,
return the thing seized, on being issued a receipt therefor, to the person lawfully entitled to its possession and report to the justice who issued the warrant or some other justice for the same territorial division or, if no warrant was issued, a justice having jurisdiction in respect of the matter, that he has done so; or
(b) where the peace officer is not satisfied as described in subparagraphs (a)(i) and (ii),
(i) bring the thing seized before the justice referred to in paragraph (a), or
(ii) report to the justice that he has seized the thing and is detaining it or causing it to be detained
to be dealt with by the justice in accordance with subsection 490(1).
…
Form
(3) A report to a justice under this section shall be in the form set out as Form 5.2 in Part XXVIII, varied to suit the case and shall include, in the case of a report in respect of a warrant issued by telephone or other means of telecommunication, the statements referred to in subsection 487.1(9).
[13] In R. v. Canary, 2018 ONCA 304 (CanLII), the Ontario Court of Appeal explains the purpose of a report under s. 489.1(1):
[45] Section 489.1(1) applies to seizures made both with and without prior judicial authorization… The provision fulfills an important purpose, providing the gateway to s. 490 of the Criminal Code: … Section 489.1 should not be conceptualized as a meaningless exercise in paperwork. Filing the initial report under s. 489.1(1) is the act that places the property within the purview of judicial oversight. It provides for a measure of police accountability when dealing with property seized pursuant to an exercise of police powers. This provides an important measure of protection to the party who is lawfully entitled to the property, but also provides a measure of protection to the police who become the custodians responsible for the property seized. Allowing for this type of oversight is particularly important in the wake of warrantless seizures, ones where no prior authorization has been given, meaning the seizures are beyond the knowledge of the judicial system. [Citations omitted.]
[14] As the police officers in the case before me were investigating drug trafficking, s. 13 of the Controlled Drugs and Substances Act (“CDSA”) also applies. It states in part:
Sections 489.1 and 490 of the Criminal Code applicable
13 (1) Subject to subsections (2) and (3), sections 489.1 and 490 of the Criminal Code apply to any thing seized under this Act.
Sections 489.1 and 490 of Criminal Code applicable
(2) If a thing seized under this Act is non-chemical offence-related property, sections 489.1 and 490 of the Criminal Code apply subject to sections 16 to 22 and subsections 31(6) to (9) of this Act.
Provisions of this Act applicable
(3) If a controlled substance, precursor or chemical offence-related property is seized under this Act, any other Act of Parliament or a power of seizure at common law, the provisions of this Act and the regulations apply in respect of that substance, precursor or property.
[15] On July 15, 2020, Constable Lynde filed three Form 5.2 Reports to Justice (“Form 5.2”) with respect to the following items seized on July 8, 2020:
a) Items recorded as exhibits P-1 to P-6 seized from the Dodge Ram in Ashcroft, BC;
b) Items recorded as exhibits Q-2 to Q-12 seized from the brown Toyota Corolla in Cache Creek, BC; and
c) Items R-1 to R-44, T-1 and U-1 seized from the Residence in Williams Lake, BC, pursuant to Justice Roberts’ July 8, 2020, search warrant.
[16] On August 27, 2020, Constable Lynde submitted a Form 5.2 with respect to Exhibit Q-13 seized from the Toyota Corolla (black cell phone) on July 8, 2020.
Detention orders
[17] On July 15, 2020, Justice of the Peace Rocheleau of the Williams Lake Provincial Court granted three detention orders for things seized with respect to: (a) 6 items recorded as Exhibits P-1 to P6 on the RCMP Flowchart; (b) 24 items recorded as Exhibits Q-1 to Q-12 on the RCMP Flowchart; (c) 79 items recorded as Exhibits R-1 to R-44 (and perhaps T-1 and U-1) on the RCMP Flowchart. All detention orders expired on October 6, 2020, which is approximately three months from the date the RCMP seized the exhibits.
[18] On September 1, 2020, JP Rocheleau granted a detention order for the cell phone seized on July 8, 2020, and recorded as Exhibit Q-13. This detention order also expired on October 6, 2020.
[19] JP Rocheleau’s July 15, 2020, and September 1, 2020, detention orders (collectively, the “Section 490(1) Detention Orders”), were made pursuant to s. 490(1)(b) of the Criminal Code which sets out a comprehensive scheme of judicial supervision for items which a peace officer seizes in a search, with or without a warrant: R. v. Craig, 2016 BCCA 154 (CanLII), para. 161. Section 490(1) states:
Detention of things seized
490 (1) Subject to this or any other Act of Parliament, where, pursuant to paragraph 489.1(1)(b) or subsection 489.1(2), anything that has been seized is brought before a justice or a report in respect of anything seized is made to a justice, the justice shall,
(a) where the lawful owner or person who is lawfully entitled to possession of the thing seized is known, order it to be returned to that owner or person, unless the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the detention of the thing seized is required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or
(b) where the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the thing seized should be detained for a reason set out in paragraph (a), detain the thing seized or order that it be detained, taking reasonable care to ensure that it is preserved until the conclusion of any investigation or until it is required to be produced for the purposes of a preliminary inquiry, trial or other proceeding.
[20] In R. v Bellinger, 2017 ONSC 1639 (CanLII), Justice Charney states:
[8] Section 490 of the Criminal Code provides a comprehensive scheme for the procedure to be adopted for such detentions by the police. The legal principles applicable to an application under s. 490(1) of the Criminal Code were summarized by Hainey J. in R. v. Wedderburn, 2013 ONSC 4707 at paras. 14 – 18 (citations omitted):
An application to a justice for a property detention order under subs. 490(1) of the Criminal Code is to be summarily determined. It is an administrative matter that is decided on an ex parte basis. The only requirement is a completed Report to a Justice in Form 5.2. No evidence is required…
A justice considering an application under s. 490(1) of the Criminal Code is not a “court”…
Applications under s. 490(1) of the Criminal Code involve administrative acts which afford limited discretion to a justice…
The phrase “preliminary inquiry, trial or other proceeding” includes a forfeiture hearing under s. 490.1 of the Criminal Code. Forfeiture of “offence-related” property under s. 490.1 is part of the sentencing proceedings at trial. Accordingly, s. 490(1) requires the detention of offence-related property for forfeiture for the purpose of trial… [I note in R. v. Tingley, 2021 BCPC 24 (CanLII), para. 31, Judge Flewelling came to the opposite conclusion].
“Offence-related property” is defined in s. 2 of the Criminal Code to include “any property…that is used in any manner in connection with the commission of such an offence”.
[21] In R. v. Kawecki, 2014 ONSC 3584, the appellate court summarized the objective of the statutory scheme under ss. 489.1 and 490(1) of the Criminal Code:
[38] I agree with the Crown that the objective of the statutory scheme governing seizure, detention and release at this stage under section 489.1 is to ensure that things seized by peace officers in the course of their duties are reported to the court and returned to their owner in a timely manner unless their possession is unlawful or their detention is required for an investigation or preliminary inquiry, trial or other proceeding. Section 490(1) then carries forward this objective and requires the justice of the peace receiving the Report to Justice from the peace officer to order either the return or detention of the things seized, based on the information in the Form 5.2 Report to Justice and any other information the peace officer may convey.
[22] On September 18, 2020, Judicial Justice B. Toy authorized a search warrant on cellular devices identified on the RCMP Flowchart as Exhibits P-1, Q-3, Q-7, Q‑11, Q‑13, R-1, R-3, R-4, R-9, R-10, R-11, R-13, and R-14A.
[23] On September 21, 2020, Judge Thomas signed a Management Order pursuant to ss. 6 and 7 of the Seized Property Management Act, SC 1993, c 37 in relation to two of the seized vehicles, namely, Exhibit P-4 (the Dodge Ram) and Exhibit U-1 (the Chevrolet Cobalt). Those sections read:
Application for management order
6 (1) The Attorney General, or any other person with the written consent of the Attorney General, may apply to any judge or justice for a management order in respect of any seized property, other than a controlled substance as defined in subsection 2(1) of the Controlled Drugs and Substances Act or cannabis as defined in subsection 2(1) of the Cannabis Act.
Order under section 490 of the Criminal Code
(2) An application for a management order in respect of any seized property may be heard at the same time as an order is sought under paragraph 490(1)(b) of the Criminal Code in respect of the seized property.
[Citations omitted.]
Management order
7 (1) Where an application for a management order is made, the judge or justice hearing the application shall make an order allowing the Minister to take possession and control of, and to manage or otherwise deal with, the seized property referred to in the order if the judge or justice is of the opinion that the seized property may be required for the purposes of any provision respecting forfeiture in any Act of Parliament.
…
Application for Further Detention
[24] By late September 2020, with the expiry date approaching, Constable Lynde thought it necessary to seek an order permitting the further detention of many of the items seized from one or more of the Respondents on July 8, 2020. Under s. 490(2) of the Criminal Code, nothing can be detained by the Crown for more than three months unless an application under s. 490(2) to extend the period is granted. Section 490(2) of the Criminal Code states:
Further detention
(2) Nothing shall be detained under the authority of paragraph (1)(b) for a period of more than three months after the day of the seizure, or any longer period that ends when an application made under paragraph (a) is decided, unless
(a) a justice, on the making of a summary application to him after three clear days notice thereof to the person from whom the thing detained was seized, is satisfied that, having regard to the nature of the investigation, its further detention for a specified period is warranted and the justice so orders; or
(b) proceedings are instituted in which the thing detained may be required.
[25] The Crown now seeks detention of a number of the items seized on July 8, 2020, up until July 8, 2021. Section 490(1)(3) states:
(3) More than one order for further detention may be made under paragraph (2)(a) but the cumulative period of detention shall not exceed one year from the day of the seizure, or any longer period that ends when an application made under paragraph (a) is decided, unless
(a) a judge of a superior court of criminal jurisdiction or a judge as defined in section 552, on the making of a summary application to him after three clear days notice thereof to the person from whom the thing detained was seized, is satisfied, having regard to the complex nature of the investigation, that the further detention of the thing seized is warranted for a specified period and subject to such other conditions as the judge considers just, and the judge so orders; or
(b) proceedings are instituted in which the thing detained may be required.
[26] On September 23 and 24, 2020, Constable Lynde signed four Applications to Obtain an Order for Further Detention of Things Seized under s. 490(2) of the Criminal Code, a Sealing Order pursuant to s. 487.3 of the Criminal Code and “an Order to Seal materials pursuant to the Court’s Common Law powers of inherent jurisdiction.” Specifically, Constable Lynde stated the Crown sought further detention of the following items seized on July 8, 2020:
a) Exhibit P-1 (Samsung cell phone) and P-3 ($38,490 in Canadian Currency) seized from the Dodge Ram (Exhibit P-4) in Ashcroft, BC;
b) Exhibits Q-2 to Q-13 (15 items) seized from the Toyota Corolla, in Cache Creek, BC;
c) Exhibits R-3, R-14 to R-17, R-19, R-21 to R-24, R-28 to R-31, R-34, R-35. R-44 and T-1 (30 items) from the Residence in Williams Lake BC; and
d) Exhibits R-1, R-2, R-4 to R-13, R-32, R-33, R-36 to R-37, R-39 to R-42 (22 items) from the Residence in Williams Lake BC;
(Collectively, the “Section 490(2) Applications”.)
[27] Constable Lynde filed the Section 490(2) Applications in the Williams Lake Provincial Court Registry on September 29, 2020. These applications were assigned Provincial Court file numbers 36782-1, 36782-2, 36782-3, and 36782-4.
[28] On September 30, 2020, Constable Lynde filed with the Williams Lake Court Registry affidavits of service of the Section 490(2) Applications on the Respondents.
[29] Constable Lynde did not file with the court registry or serve the Respondents with a copy of her affidavit sworn in support of the Section 490(2) Applications. Instead, she sought a sealing order on the contents of her affidavit because its disclosure might adversely impact the ongoing RCMP investigation. The Section 490(2) Applications did state however that “in support of the application will be read the affidavit of Constable Lynde, and the Respondents were entitled to attend the hearing and have a lawyer present”.
[30] The Section 490(2) Applications came before Judge Thomas on September 30, 2020. Constable Lynde represented the Crown. Mr. B. Herdy appeared on behalf of J.B. and M.I. M.I. also appeared in person. Mr. P. McMurray appeared on behalf of J.C. and R.H. K.B. did not appear either in person or by legal counsel or agent.
[31] At the request of the Respondents, Judge Thomas adjourned the Section 490(2) Applications to the Judicial Case Manager to schedule a one-day hearing. The hearing was rescheduled for November 9, 2020. No interim order was made extending the existing detention orders from October 6, 2020, to the next hearing date.
[32] On October 1, 2020, Constable Lynde amended her earlier affidavit to withdraw her request for a sealing order to permit her affidavit and its contents to be disclosed to defence counsel. She says an extension of the detention of the exhibits was necessary because:
a. The firearms, magazines and ammunition seized were sent to the Vancouver Police Department laboratory for testing, a process which can take from three to nine months;
b. The search of the 12 seized cell phones had not yet been completed;
c. Following the seizure and processing of the exhibits, samples of the suspected controlled substances were sent to Health Canada for testing, a process which takes an average of 170 days;
d. The RCMP had yet to prepare a Report to Crown Counsel; and
e. Upon receipt of the Report to Crown Counsel, the Crown counsel will require a minimum of three months to review and assess it for charge approval.
[33] Constable Lynde further stated that if further detention was required beyond July 8, 2021, the Crown would seek a further detention from the BC Supreme Court pursuant to s. 490(3) of the Criminal Code. Moreover, if at any time a seized exhibit was not required for the continued investigation, the RCMP would return it to the Respondent owner.
[34] On October 6, 2020, Justice of the Peace Rocheleau’s detention orders expired.
[35] Constable Lynde sought legal advice and understood that because the Crown had commenced proceedings prior to the expiration of the detention orders, it was still entitled to proceed under s. 490(2) of the Criminal Code. As this appears to have been the case in R. v. Classic Smokehouse and Leader Cold Storage, 2012 BCPC 232 (CanLII), I cannot say Constable Lynde’s belief in this regard was unreasonable.
[36] On November 5, 2020, Constable Lynde filed an affidavit in these proceedings supplemental to her October 1, 2020, affidavit. Constable Lynde stated in her November 5, 2020, affidavit:
a. RCMP Constable Ashley Fer is a Cellebrite examiner for mobile devices. He is the RCMP officer who executed Judicial Justice Toy’s search warrant for the examination of the cellular devices the RCMP seized in their investigation of this matter. Constable Fer had prioritized the searches of the cellphone. He anticipated he could complete his search of Exhibit P-1 (the Samsung cellular phone) by November 23, 2020. Constable Fer says there was a 50% probability his search would fail, in which case Exhibit P-1 would need to go to RCMP’s E Division Digital Forensic Services (“E Division”) for further analysis; and
b. Gerry Louie, a Member of E Division, advised Constable Lynde it would take a minimum of three to six months to complete a search of Exhibit P-1. This estimate could increase or decrease if his unit's current workflow was to change.
[37] The Section 490(2) Applications came before Judge Whyte for hearing in Williams Lake Provincial Court on November 9, 2020. Constable Lynde represented the Crown, Mr. B. Herdy represented J.B. and M.I., Mr. P. McMurray represented R.H. and J.C. K.B. did not intend in person or by legal counsel or agent.
[38] Judge Whyte ruled that because the period of detention provided in the Section 490(1) Detention Orders expired, the Crown could not proceed on its application under s. 490(2) of the Criminal Code. The Crown had to reapply for a further detention order under s. 490(9.1), which is an exception to s. 490(9). Section 490(9) states:
Disposal of things seized
(9) Subject to this or any other Act of Parliament, if
(a) a judge referred to in subsection (7), where a judge ordered the detention of anything seized under subsection (3), or
(b) a justice, in any other case,
is satisfied that the periods of detention provided for or ordered under subsections (1) to (3) in respect of anything seized have expired and proceedings have not been instituted in which the thing detained may be required or, where those periods have not expired, that the continued detention of the thing seized will not be required for any purpose mentioned in subsection (1) or (4), he shall
(c) if possession of it by the person from whom it was seized is lawful, order it to be returned to that person, or
(d) if possession of it by the person from whom it was seized is unlawful and the lawful owner or person who is lawfully entitled to its possession is known, order it to be returned to the lawful owner or to the person who is lawfully entitled to its possession,
and may, if possession of it by the person from whom it was seized is unlawful, or if it was seized when it was not in the possession of any person, and the lawful owner or person who is lawfully entitled to its possession is not known, order it to be forfeited to Her Majesty, to be disposed of as the Attorney General directs, or otherwise dealt with in accordance with the law.
[39] Section 490(9.1) provides:
Exception
(9.1) Notwithstanding subsection (9), a judge or justice referred to in paragraph (9)(a) or (b) may, if the periods of detention provided for or ordered under subsections (1) to (3) in respect of a thing seized have expired but proceedings have not been instituted in which the thing may be required, order that the thing continue to be detained for such period as the judge or justice considers necessary if the judge or justice is satisfied
(a) that the continued detention of the thing might reasonably be required for a purpose mentioned in subsection (1) or (4); and
(b) that it is in the interests of justice to do so.
[40] By November 9, 2020, no proceedings against any of the Respondents had been instituted. Mr. Herdy advised the court that M.I.’ primary concern was the continued detention of her Chevrolet Cobalt seized from the Residence (Exhibit U-1). At the November 9, 2020, hearing, Constable Lynde advised the court she was prepared to return the vehicle to M.I. J.B. did not attend the hearing and was reportedly incarcerated at Prince George Regional Correctional Centre at the time.
[41] The November 9, 2020, hearing was adjourned to provide the Crown time to refile its applications for further detention of things seized under s. 490(9.1) of the Criminal Code.
[42] On December 8, 2020, the Director of the Civil Forfeiture Office issued a Notice of Intent to Commence Proceedings under s. 3 of the Civil Forfeiture Act in relation to the following exhibits the RCMP seized on July 8, 2020:
a) Exhibit P-3: $38,390 in Canadian currency;
b) Exhibit P-4: the Dodge Ram;
c) Exhibit P-·5: the Dodge Ram’s vehicle registration and keys;
d) Exhibit Q-5: $60 in Canadian currency;
e) Exhibit Q-6A: $1,250 in Canadian currency;
f) Exhibit Q-9A: $2,990 in Canadian currency;
g) Exhibit R-14B: $2,455 in Canadian currency;
h) Exhibit R-14C-1: $125.90 in Canadian currency;
i) Exhibit R-15A: five endorsed government cheques totaling $8,134.18;
j) Exhibit R-22B: $1,298.93 in Canadian currency [listed in separate amounts of $69.88, $361.05 and $868];
k) Exhibit R-29A: $10,335 in Canadian currency;
l) Exhibit R-40A: $54.80 in Canadian currency; and
m) Exhibit T-1: $1,400 in Canadian currency.
[43] As proceedings under s. 3 of the Civil Forfeiture Act have now commenced, the Crown is no longer seeking further detention of the above-enumerated items subject to those proceedings.
[44] On December 18, 2020, Constable E. Karl returned to M.I. the 2006 Chevrolet Cobalt (Exhibit U-1) the RCMP seized from the driveway of the Residence in Williams Lake on July 8, 2020.
[45] On January 4, 2021, Constable Lynde signed three Notices of an Application to Obtain an Order for Further Detention of Things Seized (Police File 2020-378) in the “Matter of an Application Pursuant to Section 490(9.1) of the Criminal Code.” The application states:
TAKE NOTICE that an Application for an ORDER FOR FURTHER DETENTION of things seized will be made pursuant to Section 490(9.1) of the Criminal Code, before a Judge of the Provincial Court of British Columbia, at the Williams Lake Courthouse located at 560 Borland Street, Williams Lake, British Columbia on January 8, 2021 at 9:30 AM or as soon thereafter as the matter may be heard. This Application for [an] ORDER FOR FURTHER DETENTION of things seized will be made with respect to the following items seized from you on July 8, 2020:
…
AND FURTHER TAKE NOTICE that in support of this Application will be read the Affidavit of Peace Officer Constable Elizabeth LYNDE, a member of the Royal Canadian Mounted Police.
\
AND TAKE-FURTHER NOTICE THAT you are entitled to attend at the hearing of the said Application, and will be given an opportunity to be heard, and in the event of your non-attendance the Application may proceed in your absence.
[Collectively, the “Section 490(9.1) Applications”.]
[46] Constable Lynde restates in her January 5, 2021, affidavit that should further detention be required after July 8, 2021, the Crown will make the requisite application to the B.C. Supreme Court pursuant to section 490(3) of the Criminal Code. She further reaffirms (at para. 33), if at any time during the course of the police investigation an exhibit is not required for the continued investigation, the RCMP will return it to the Respondent lawfully entitled to possess the item.
Items Seized from R.H. and J.C.
[47] In the Section 490(9.1) Application with respect to items seized on July 8, 2020, from the Dodge Ram in Ashcroft, BC, Constable Lynde seeks only the continued detention of Exhibit P-1 (the Samsung cell phone). Exhibit P-2 (the silver keys) has been returned to R.H. and J.C. care of their legal counsel. Exhibits P-3, P-4 and P-5 are subject to civil forfeiture and P-2 is three grams of Cannabis. On January 4, 2021, Constable Lynde emailed the Section 490(9.1) Application to R.H. and J.C. care of their legal counsel, Mr. P. McMurray.
Items Seized from M.I. and J.B.
[48] In the Section 490(9.1) Application with respect to the items seized on July 8, 2020, from the brown Toyota Corolla in Cache Creek, BC, Constable Lynde seeks the continued detention of exhibits recorded on the RCMP Flowchart as Exhibits Q-2, Q-3, Q-4, Q-6, Q-7, Q-8, Q-9, Q-10, Q-11, Q-12, Q-12A, Q-13. Exhibit Q-1, which is $1,259.65 in Canadian currency, was returned to its owner K.G. Exhibits Q‑5, Q-6A, and Q-9A (all of which are sums of cash) are now subject to civil forfeiture proceedings.
[49] In the Section 490(9.1) Application with respect to the items seized on July 8, 2020, from the Residence in Williams Lake, BC, Constable Lynde seeks the continued detention of those exhibits recorded on the RCMP Flowchart as R-3, R-4, R‑14, R-14A, R-14C, R-14F, R-14G, R‑14H, R-14I, R-14J, R-16, R-17, R-19, R-21, R-23, R-24, R-27, R-28, R-29, R-30, R‑31, R-32, R-33, R-34, R-35, R-44, Exhibit U-1, the Cobalt Chevrolet, seized from the driveway of the Residence was returned to its owner M.I. Exhibits R-14B, R-14(C)-1, R-15A, R-22A to R-22D, R-29A, R-40, and T-1 (all of which are sums of cash) are subject to civil forfeiture proceedings.
[50] On January 4, 2021, Constable Lynde emailed notice of the Section 490(9.1) Application to J.B. and M.I. care of their legal counsel, Mr. B. Herdy.
Items Seized from K.B.
[51] In the Section 490(9.1) Application with respect to the items seized from the Residence on July 8, 2020, Constable Lynde sought the continued detention of those exhibits recorded on the RCMP Flowchart as R-1, R-2, R‑4, R-5, R-6, R-7, R-8, R-9, R-10, R-11, R‑12, R-13, R-32, R-33, R-36, R-37, R-37A, R-37D, R-39, R-41 and R-42. Constable Lynde served K.B. personally with the Section 490(9.1) Application, January 4, 2021. As indicated above, the sums of cash seized from various locations inside the Residence are now subject to civil forfeiture proceedings.
January 8, 2021, hearing
[52] The Section 490(9.1) Application came before Judge Thomas in the Williams Lake Provincial Court on January 8, 2021. Constable Lynde appeared on behalf of the Crown, Mr. P. McMurray appeared (by telephone) on behalf of R.H. and J.C. None of K.B., J.B. or M.I. appeared in person or was represented by legal counsel or agent. Mr. Herdy had filed a Notice of Withdrawal as legal counsel for M.I. and J.B. Mr. Herdy advised Constable Lynde that M.I.’s primary concern was her vehicle, which the RCMP returned to her on December 18, 2020.
[53] Due to the lack of court time, Constable Lynde’s application was referred to the Judicial Case Manager on January 13, 2021, to reschedule the hearing, not on a criminal remand day.
[54] On January 13, 2021, Constable Lynde filed three affidavits with the Williams Lake Provincial Court Registry confirming she had served all Respondents with a copy of the Section 490(9.1) Application, either personally or through their legal counsel.
February 12, 2021 Hearing
[55] The hearing of the Crown’s Section 490(9.1) Application proceeded before me on February 12, 2021. On that day, Constable Lynde appeared on behalf of the Crown and Mr. McMurray appeared as legal counsel and agent of R.H. and J.C. None of the individual Respondents appeared in person. None of K.B., J.B., or M.I. was represented at the hearing by counsel or agent.
[56] In her January 5, 2021, affidavit, Constable Lynde says further detention of the exhibits set out in the Section 490(9.1) Applications is in the best interests of the administration of justice for the following reasons:
a) The investigating officers have submitted exhibits to the RCMP Forensic laboratory for DNA analysis (the “DNA Lab”), The DNA Lab administrators refused to accept the DNA swabs obtained during the investigation due to capacity restrictions from COVID-19 mitigation procedures. The RCMP will resubmit the swabs when the DNA laboratory has capacity to examine them. The absence of DNA results may prevent Crown Counsel from performing a fulsome charge assessment;
b) The Crown is still waiting for the completion of the search of the seized cellular devices, in order of priority. If any seized devices can not be examined locally, they will have to be sent to E-Division in Vancouver for further analysis. After the devices are submitted to E-Division, the search may take three to six months to complete;
c) Constable Lynde says that thus far Constable Fer has only being able to examine one cellular device seized on July 8, 2020, which was Exhibit P-1. The search substantively failed. Constable Fer was only able to fully examine the SIM card. Constable Fer recommended Exhibit P-1 be sent to E Division.
d) On November 5, 2020, Constable Lynde asked Gerry Louie of E Division for a timeline for the analysis specific to a Samsung SM‑N950W, which is the model of Exhibit P-1. She learned it would take E Division a minimum of three to six months to ' complete a search of a Samsung model SM-N950W cell phone. E Division cannot accept Exhibit P-1 for analysis without a valid order for its further detention;
e) As many of the detained exhibits are part of a possession for the purposes of trafficking investigation, the Crown will require expert evidence. An expert opinion cannot be obtained until the RCMP can assemble a complete disclosure package for the expert to review. This disclosure package being assembled, but given the RCMP’s other operational requirements, it is unlikely to be completed for two months;
f) The RCMP must also prepare and submit a Report to Crown Counsel (“RTCC”) to the Public Prosecution Service of Canada (“PPSC”). The report will include a written synopsis detailing the events, exhibits and witnesses in relation to proposed charges, as well as the expert opinion. Constable Lynde expects this process will take four weeks;
g) Crown Counsel has indicated that upon receiving the RTCC, it will take a minimum of three months for their office to review it for charge approval; and
h) The RCMP must also prepare a disclosure package for the Defence with the RTCC.
[57] Constable Lynde advised the court that the RCMP’s ability to move forward with this investigation has been seriously impeded by the delay in obtaining a court order for the further detention of the items seized on July 8, 2020. Specifically, E Division will not accept the Exhibit P-1 (the Samsung cellular phone) for analysis without a valid order authorizing its continued detention. The Crown has been seeking this order since September 2020.
[58] Mr. McMurray opposes the continued detention of Exhibit P-1 on behalf of R.H. on the basis it contains much valuable and personal information, such as banking access information, photographs and contacts. As the Supreme Court recognized in R. v. Fearon, 2014 SCC 77 (CanLII), digital devices are personal mobile computers. In her opening remarks in dissent, Karakatsanis J. states:
[100] We live in a time of profound technological change and innovation. Developments in mobile communications and computing technology have revolutionized our daily lives. Individuals can, while walking down the street, converse with family on the other side of the world, browse vast stores of human knowledge and information over the Internet, or share a video, photograph or comment about their experiences with a legion of friends and followers.
[101] The devices which give us this freedom also generate immense stores of data about our movements and our lives. Ever-improving GPS technology even allows these devices to track the locations of their owners. Private digital devices record not only our core biographical information but our conversations, photos, browsing interests, purchase records, and leisure pursuits. Our digital footprint is often enough to reconstruct the events of our lives, our relationships with others, our likes and dislikes, our fears, hopes, opinions, beliefs and ideas. Our digital devices are windows to our inner private lives.
[59] In R. v. Reeves, 2018 SCC 56, Justice Karakatsanis for the majority comments [citations omitted]:
[34] Personal computers contain highly private information. Indeed, “[c]omputers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations. They even reveal our specific interests, likes, and propensities” … Computers act as portals — providing access to information stored in many different locations. … They “contain information that is automatically generated, often unbeknownst to the user” … They retain information that the user may think has been deleted … By seizing the computer, the police deprived Reeves of control over this highly private information, including the opportunity to delete it. They also obtained the means through which to access this information. Indeed, these are the reasons why the police seized the computer.
[60] Mr. McMurray argues the RCMP has had possession of Exhibit P-1 long enough. Given its significant personal value to R.H., the cellular device ought to be promptly returned to its owner. If the court is inclined to allow its further detention, then it should be for a lesser period than that sought by the Crown.
Analysis
Issue # 1: Should the court order the affidavits filed in support of the Crown’s applications under ss. 490(2) and 490(9.1) of the Criminal Code sealed?
[61] In its Section 490(2) Application, the Crown sought an “Order for Further Detention of Things Seized” under s. 490(2) of the Criminal Code and a “Sealing Order” pursuant to s. 487.3 of the Criminal Code and “an Order to Seal materials pursuant to the Court’s Common Law powers of inherent jurisdiction”. After the conclusion of the February 12, 2021, hearing, it was unclear to me whether the Crown was still seeking a non-disclosure order with respect to the materials filed in support of its Section 490(2) and 490(9.1) Applications.
[62] The Provincial Court of British Columbia is a statutory court, with no inherent jurisdiction: Foulds v. Kelly, 2011 BCSC 1298 (CanLII), para. 11. Accordingly, the Applications judge can only make a sealing order pursuant to s. 487.3 or the common law.
[63] Section 487.3 states:
Order denying access to information
487.3 (1) On application made at the time an application is made for a warrant under this or any other Act of Parliament, an order under any of sections 487.013 to 487.018 or an authorization under section 529 or 529.4, or at a later time, a justice, a judge of a superior court of criminal jurisdiction or a judge of the Court of Quebec may make an order prohibiting access to, and the disclosure of, any information relating to the warrant, order or authorization on the ground that
(a) the ends of justice would be subverted by the disclosure for one of the reasons referred to in subsection (2) or the information might be used for an improper purpose; and
(b) the reason referred to in paragraph (a) outweighs in importance the access to the information.
Reasons
(2) For the purposes of paragraph (1)(a), an order may be made under subsection (1) on the ground that the ends of justice would be subverted by the disclosure
(a) if disclosure of the information would
(i) compromise the identity of a confidential informant,
(ii) compromise the nature and extent of an ongoing investigation,
(iii) endanger a person engaged in particular intelligence-gathering techniques and thereby prejudice future investigations in which similar techniques would be used, or
(iv) prejudice the interests of an innocent person; and
(b) for any other sufficient reason.
Procedure
(3) Where an order is made under subsection (1), all documents relating to the application shall, subject to any terms and conditions that the justice or judge considers desirable in the circumstances, including, without limiting the generality of the foregoing, any term or condition concerning the duration of the prohibition, partial disclosure of a document, deletion of any information or the occurrence of a condition, be placed in a packet and sealed by the justice or judge immediately on determination of the application, and that packet shall be kept in the custody of the court in a place to which the public has no access or in any other place that the justice or judge may authorize and shall not be dealt with except in accordance with the terms and conditions specified in the order or as varied under subsection (4).
Application for variance of order
(4) An application to terminate the order or vary any of its terms and conditions may be made to the justice or judge who made the order or a judge of the court before which any proceedings arising out of the investigation in relation to which the warrant or production order was obtained may be held.
[64] Recently, in Re: Further Detention of Things Seized, 2020 BCSC 1100, Justice Riley considered the Crown’s request for a sealing order for materials filed in support of its application under s. 490. Specifically, Justice Riley addressed the following issues:
a) Whether the initial sealing order issued in conjunction with the search warrant applies to material subsequently prepared and filed in connection with the present application for further detention under Criminal Code s. 490(3); and
b) If the original sealing order does not apply to the materials filed in a s. 490 application, court should grant a sealing order in respect of the material filed in support of the present application for further detention, on terms allowing for disclosure to the respondent, but prohibiting public access.
[65] Justice Riley concluded (at para. 21) the scope of the phrase, “any information relating to the warrant, order, or authorization” contained in s. 487(3)(1) is sufficiently broad to apply to materials filed in conjunction with subsequent s. 490 proceedings. Nevertheless, he held a sealing order could not be granted prospectively for materials not yet in existence, absent express language to that effect. In his view, it would be improper for a justice or judge to determine months in advance of an entirely hypothetical application for further detention under s. 490(2), that access to or disclosure of material filed in support of that hypothetical Section 490 Application would somehow subvert the ends of justice as contemplated in s. 487.3.
[66] As to the second issue, Justice Riley found it is within the discretion of the judge hearing the Section 490 Application to grant a sealing order upon examining the materials filed in support of that application. Justice Riley states:
[33] The decision as to whether a sealing order should be granted is a matter within the discretion of the justice or judge before whom the application is brought. That discretion must be exercised judicially on application of the test in s. 487.3(1) and the factors listed in s. 487.3(2), viewed in the context of the open courts principle as discussed in the leading cases of Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835 and R. v. Mentuck, 2001 SCC 76. These two decisions taken together produced what has become known as the Dagenais/Mentuck test.
[34] The application of the Dagenais/Mentuck test in the context of pre-charge investigative procedures was addressed in Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41[Toronto Star]. In that case the Court held that the test must be applied with some degree of flexibility in the pre-charge context. There are several reasons for this. It is recognized that sometimes risks to the proper administration of justice may be difficult to demonstrate in a concrete manner at the pre-charge investigative stage, as discussed in Toronto Star at para. 8. Moreover, and this is my own observation and not something discussed in Toronto Star, to the extent that the materials make reference to confidential informers the court is not in a position to make an informed assessment of what information will or will not be likely to identify an informer. When considering informer information, the presiding judge or justice will be guided by the position set out by the affiant – provided that it is grounded in the record – as to what information could reveal the informer’s identity.
[35] Although the court in Toronto Star acknowledged that the Dagenais/Mentuck test must be applied flexibly in the pre-charge context, the court also held that to be meaningful, the test requires compelling case-specific evidence. The test cannot be satisfied by generic assertions or broad generalizations. For example, simply advancing the general proposition that pre-trial publication of the details of a police investigation could taint future witness statements is not enough to establish that disclosure would compromise an ongoing investigation: Toronto Star at paras. 36-39.
[67] Ultimately, Justice Riley was not satisfied the Crown had established a basis for the issuance of a sealing order with respect to the materials filed in support of the application for further detention. In the case before me, the materials filed in support of the Section 490(2) and 490(2.1) Applications militate against a non-disclosure order because:
a. They make no reference to informer information or sensitive investigative techniques;
b. The steps remaining outstanding in the investigation appear to be squarely in the control of the Crown, such as completing the examination of the exhibits in a RCMP-controlled laboratory, engaging a RCMP expert on drug trafficking, preparing the Report to Crown Counsel and assessing it for charge approval;
c. There is no case-specific explanation of how the disclosure of the contents of Constable Lynde’s affidavits could impair the on-going investigation. In her October 1, 2020, affidavit, Constable Lynde indicated the Crown’s intention to disclose the affidavit sworn in support of the Section 490(2) Applications to the Respondents. I understand the Crown has already provided the Respondents with a copy of Constable Lynde’s October 1, 2020, and January 5, 2021, affidavits. Justice Riley’s comments on a similar Crown position in the case before him is apropos:
[37] What is more, the Crown’s position in the case at bar is that it is appropriate to disclose the contents of the affidavit sworn in support of the s. 490(3) application to the respondent. That position is understandable and entirely reasonable. However, insofar as the application for a sealing order is concerned, the Crown’s position appears to be that it is appropriate to disclose the contents of the supporting affidavit to a suspect in the investigation, but not to the public. If disclosure of the details to a suspect would not impair the ongoing investigation, it is hard to understand how allowing for public access would have that effect in the absence of specific concerns raised by the Crown;
d. Many of the items seized by the police in their investigation of this matter are now subject to civil forfeiture proceedings and their detention is authorized under the Civil Forfeiture Act. Civil forfeiture proceedings are instituted in Supreme Court and subject to the Supreme Court Civil Rules. This means that any of the Respondents claiming an interest in the items subject to the director’s application for civil forfeiture are entitled to disclosure of the evidence upon which the director intends to rely to prove the property in question is either proceeds or an instrument of unlawful activity.
[68] For the reasons cited above, if the Crown is still seeking a sealing order with respect to the materials filed, I decline to make such an order; however, given the Respondents have not been charged with any criminal offence, I will anonymize the published version of this decision out of concern for their privacy.
Issue # 2: Has the Crown satisfied the test under s. 490(9.1) of the Criminal Code for the further detention of various items seized from the Respondents on July 8, 2020?
[69] As no proceedings have yet been instituted, the Crown must apply for a further detention order under s. 490(9.1) of the Criminal Code. This section requires the court to determine whether the continued detention of the items sought would be reasonably required for investigation or trial and that it is in the interest of justice to do so.
a. Might the continued detention of the items reasonably be required for a purpose mentioned in ss. 490(1) or 490(4)?
[70] Section 490(1) authorizes the court to order the detention of a thing seized if it is required for the purposes of any investigation or a preliminary inquiry, trial, or other proceeding. Section 490(4) states:
When accused ordered to stand trial
(4) When an accused has been ordered to stand trial, the justice shall forward anything detained pursuant to subsections (1) to (3) to the clerk of the court to which the accused has been ordered to stand trial to be detained by the clerk of the court and disposed of as the court directs.
[71] In New Westminster Police Department v. Trieu, 2020 ABQB 567 (CanLII) (“Trieu”), Justice W.P. Sullivan of the Alberta Court of Queen’s Bench commented (at para. 31) on the legal considerations for an order under s. 490(9.1)(a):
[31] There is limited case law on section 490(9.1)(a). Under this subsection, a justice must be satisfied that the continued detention of the seized items “might reasonably be required.” The wording imports an objective component, indicating that the query becomes whether an individual armed with the knowledge of the officer in the investigation at hand would agree that the continued detention might reasonably be required: R v Newport Financial Pacific Group SA, 2003 ABPC 80 at para 118.
[72] In the Trieu, Justice Sullivan dealt with an application under s. 490(9.1) with respect to the continued detention of three cell phones seized incidental to arrest. Mr. Trieu raised issues of laches, as the police had possession of the cellular phones for over a year prior to the court hearing the Section 490(9.1) Application. More concerning, there was over a two-year lapse between the offence (a homicide) and the arrest and seizure of the phones. Justice Sullivan acknowledged there was a potential question as to the phones’ usefulness. Justice Sullivan commented it was not for the court to second-guess the judgment of the officers involved in the investigation. He found a reasonable person, equipped with the knowledge of the officers involved in the investigation, would be satisfied of the need for further detention. On that basis, Justice Sullivan determined the continued detention of the phones might reasonably be required for a purpose mentioned in s. 490(1), namely, for the investigation, preliminary inquiry, trial, or other proceedings.
[73] As the Applications judge, I must determine whether the seized items might be reasonably necessary for the purposes of ss. 490(1) or 490(4). In Tingley, Judge Flewelling held (para. 28) the standard of proof under s. 490(9.1) was not onerous and similar to that under s. 490(2), namely, “less than a balance of probabilities”. Other courts have found the Crown’s burden under s. 490(9.1) is more onerous than when the request is made under ss. 490(2) or 490 (3): R. v. Newport Financial Pacific Group SA, 2003 ABPC 80, para. 117.
[74] The case before me is markedly different from Tingley where Judge Flewelling was not satisfied the Crown had established the further detention of a seized excavator might reasonably be necessary for the investigation or prosecution of an environmental offence. The items for which the Crown is seeking continued detention in this case include digital devices, drug paraphernalia, such as scales, keno flaps, packaging materials, score sheets, prohibited weapons, ammunition, firearms, stolen laptops, surveillance equipment, various containers believed to contain illicit drugs. Constable Lynde says the continued detention of these items is necessary for the continued investigation and imminent prosecution of the drug trafficking, firearms and proceeds of crime offences. A cursory review of case law make it plain and obvious the items the Crown wish detained are reasonably required for the investigation and prosecution of those offences. Constable Lynde estimates the RCMP will be in a position to deliver the RTCC to the PPSC in approximately four weeks.
[75] I find on a balance of probabilities the continued detention of the items subject of the Section 490(9.1) Applications might reasonably be required for a purpose mentioned in section 490(1) or 490(4).
b. Is the continued detention of the items seized in the interests of justice?
[76] The second prong of the s. 490(9.1) test require the Crown to establish the continued detention of the item sought detained is in the interests of justice under s. 409(9.1)(b). This is a very different test than the one for s. 490(2). In R. v. Raponi, 2004 SCC 50 (CanLII), the Supreme Court held the only question a provincial court judge is entitled to consider under s. 490(2) is whether continued detention is required by a proceeding that has been instituted or by an investigation. The evidentiary burden on the Crown is something less than a balance of probabilities. At most it requires an indication the peace officers need or do not need the property seized for the purposes set out in s. 490(2). The Applications judge has no jurisdiction under s. 490(2) to determine Charter issues, the lawfulness of the respondent’s arrest or the validity of the warrant, or the manner in which it was executed: Classic Smokehouse, at para. 15- 17; Trieu, para. 38; and Tingley, para. 16.
[77] The inclusion of the phrase “interests of justice” in s. 490(9.1) is significant. This phrase, albeit undefined, is often used in the Criminal Code. In R. v. Gould, 2012 BCCA 308, Justice Chiasson considered the meaning of “interests of justice” in the context of s. 683(5) of the Criminal Code. He cites with approval Justice Doherty’s statement of law in R. v. Bernardo, 1997 CanLII 2240 (ONCA):
[16] The phrase "the interests of justice" is used throughout the Criminal Code. It takes its meaning from the context in which it is used and signals the existence of a judicial discretion to be exercised on a case-by-case basis. The interests of justice encompass broad based societal concerns and the more specific interests of a particular accused.
[78] The “interests of justice” in the criminal context means the interests of the accused and the state: R. v. Wood, 2018 BCCA 310 (CanLII), para. 5 citing Gould and R. v. Chek TV Ltd., 1986 CanLII 1162 (BC CA). Therefore, in a s. 490(9.1) hearing, the Applications judge must balance the competing interests of the accused and the state. The court must balance the suspect’s interests in the items seized and the interest of the RCMP and the public in ensuring crimes are properly investigated: Newport Financial, para. 36(17). Furthermore, the “interests of justice” requires the court to consider the interests of the administration of justice in general, including factors like public confidence and respect for the court in its administration of criminal law: Newport Financial, para. 122.
[79] In Trieu, the court held that where the seized items are modern technological devices, the interests of justice means balancing effective law enforcement against privacy interest:
[48] While I am alive to the importance of the public’s confidence in the law enforcement’s ability to investigate and prosecute crimes, the administration of justice must protect individuals’ rights against unauthorized state interference. Unauthorized state conduct becomes particularly concerning with the prevalence of modern technology such as cellular phones, tablets, and laptops. Search and seizure of these devices is considered highly intrusive, extensive, and invasive: R v Morelli, 2010 SCC 8 at para 2.
[80] In Trieu, Justice Sullivan found the continued detention of Mr. Trieu’s three phones was not in the interests of justice and therefore refused the Crown’s application under s. 490(9.1). He determined the interests of law enforcement could not prevail over Mr. Trieu’s privacy interests because the seizure was unreasonable and violated Mr. Trieu’s rights guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms.
[81] Notwithstanding the dearth of evidence in this regard, I accept that all the Respondents named in this Section 490(9.1) Application have an interest in recovering their digital devices. Specifically, I accept R.H. in particular has a high expectation of privacy in the contents of Exhibit P-1. I also accept the RCMP and the public have an interest in the criminal investigation and prosecution of serious crimes.
[82] I pause to say that the case before me is entirely distinguishable from Trieu or Tingley. In Trieu, the police seized Mr. Trieu’s phones more than two years after the offence under investigation on the mere suspicion the phones might contain some information that might be of use. In Tingley, the fisheries officers seized an excavator, which they no longer required for investigative purposes and the Crown could not articulate why it might be required in the future.
[83] In case before me, R.H. was using his cell phone (Exhibit P-1) at the time of his arrest. The search of the vehicle he was driving incidental to his arrest produced those items identified as Exhibits P1-P6 on the RCMP Flowchart, which include the vehicle itself and $38,490 in Canadian currency, both of which are now subject to civil forfeiture proceedings.
[84] In consideration of the interests of the administration of justice, I find for the purposes of this application the RCMP have complied in good faith with all of their statutory obligations with respect to the seizure, detention and release of items they seek to detain. I base this conclusion of the following evidence, unchallenged and limited though it may be:
a) The searches giving rise to the seizures of things on July 8, 2020, were made incidental to arrest or pursuant to a warrant. I have no evidence in these proceedings to suggest these searches and seizures were carried out in violation of any of the Respondents’ s. 8 Charter rights;
b) The RCMP appear to have systematically documented the items they seized on the RCMP Flowchart;
c) The RCMP filed Form 5.2 Reports to Justice with respect to all the items seized. All the items were reported in a timely manner, except perhaps Exhibit Q-13 (a cell phone not in issue) which was reported on August 27, 2020;
d) The RCMP obtained orders from the Justice of the Peace authoring the detention of all items seized for a period of three months from the date of seizure;
e) The RCMP sought Management Orders for the vehicles seized;
f) The RCMP returned to the Respondents items they determined unnecessary for their investigation, these included some keys, cash and a vehicle;
g) The RCMP cannot return to the Respondents items seized which were unlawful to possess: s. 490(9). This would include illicit drugs such as fentanyl, cocaine, methamphetamines and prohibited weapons;
h) The Dodge Ram (Exhibit P-4) and most of the cash seized from all locations is now subject to civil forfeiture proceedings. The Respondents are entitled to notice of and to fully participate in these proceedings;
i) The RCMP sought further detention of the items they wished detained under s. 490(2) in a timely manner prior to the expiry of the Section 490(1) Detention Orders;
j) The September 30, 2020, hearing of the s. 490(2) was adjourned at the request of the Respondents and with the consent of the court;
k) The Applications judge sitting on September 30, 2020, was not asked to make an interim order extending the existing detention order until the end of the s. 490(2) hearing, and did not do so. More specifically, the judge did not consider and refuse a request for an interim extension of the existing order;
l) Constable Lynde reasonably believed on legal advice that having commenced the s. 490(2) hearing prior to the expiration of the Section 490(1) Detention Orders, the Crown was entitled to continue under that section of the Criminal Code until the hearing completed;
m) At the court’s suggestion (on November 9, 2020), the Crown reapplied for a further detention order under s. 490(9.1) of the Criminal Code;
n) The Crown scheduled a hearing of the Section 490(9.1) Application in a timely manner; however, it too was adjourned due to lack of court time;
o) Throughout this process Constable Lynde had filed and served all the requisite notices, applications and affidavits and kept in touch with Respondents’ counsel;
p) The RCMP’s ability to conclude its investigation of Exhibit P-1 was due to its difficulties in obtaining a continuing detention order of that device;
q) There is some evidence in Constable Lynde’s affidavits that the investigating officers’ ability to obtain forensic analysis of items seized was impaired to some extent by the mitigating protocols the laboratories have imposed as a result of the COVID-19 pandemic; and
r) The investigation in issue was a complex one, involving 30 police officers undertaking hundreds of tasks and making hundreds of reports. Many of the seized items required forensic analysis from three or more laboratories. There are five Respondents and approximately 110 items seized from three different locations. It is entirely plausible preparing and reviewing and approving the Report to Crown Counsel may take the RCMP and the PPSC some time; and
s) Section 490 of the Criminal Code does not place any time limits on a police investigation into an offence.
[85] For the reasons cited above, I find the Crown has satisfied this Court the continued detention of the items seized is in the interest of justice.
Disposition
Pursuant to section 490(9.1) of the Criminal Code, I am satisfied that the continued detention of the things set out in the Crown’s Section 409(9.1) Applications might reasonably be required for a purpose mentioned in s. 490(1) and (4) of the Criminal Code and that it is also in the interest of justice to order their continued detention until July 8, 2021.
_________________________
The Honourable Judge J. Doulis
Provincial Court of British Columbia