[1]         The Royal Canadian Mounted Police (“RCMP”) applied for further detention of a significant number of items seized from various people pursuant to s. 490(2) of the Criminal Code, as well as a sealing order pursuant to s. 487.3 of the Criminal Code and the common law in respect of that Application for Further Detention. Crown counsel appeared at the hearing on behalf to the RCMP. The matter was initially set to be heard on December 20, 2023. As a result of delays that are not relevant to these reasons, the matter came before me on March 8, 2024 for hearing. Counsel for two respondents appeared at the hearing and made submissions. At the conclusion of the hearing, I asked if a further affidavit from police would be provided with any updates to the police investigation since the supporting affidavit was sworn on December 7, 2023 (the “December Affidavit”). I was told one would be filed fairly quickly. I received a supplemental affidavit dated March 13, 2024 on March 15, 2024 (the “March Affidavit”).

[2]         I will deal with the sealing order application first.

[3]         Counsel for respondents who appeared did not oppose a sealing order. In Further Detention of Things Seized (Re),[1] Justice Riley considered what is required to grant a sealing order, and what it covers. There is a balance to be made in exercising the discretion. I must consider the requirements of s. 487.3 as well as the principle that courts should remain as open as possible, as set out in Toronto Star Newspapers Ltd. v. Ontario.[2] The state must show that there is a serious and specific risk to the integrity of the investigation with compelling, case-specific evidence.

[4]         That case-specific evidence was set out in the December Affidavit. The basis for the application for a sealing order was that revealing the material would compromise the nature and extent of the ongoing investigation and would jeopardize the safety of various people. It was further asserted that revealing the information would prejudice the interests of an innocent person.

[5]         With respect to the latter claim, only a generalized assertion was made and it was not sufficiently explained or linked to the investigation. I would not order material sealed on that basis.

[6]         However, I am satisfied that the other two bases put forward do support making a sealing order, since I am also satisfied that no less intrusive measures would be effective.

[7]         Accordingly, I order that the application and materials filed in support of it be sealed.

[8]         A concise and helpful overview of the provisions relating to seized items is found in a very recent decision of Justice Donegan.[3] I will not repeat what is stated therein.

[9]         The relevant provision in this case states:

[10]      The first issue to address is whether proper notice has been established. There are affidavits of service on most of the relevant people, and three affidavits of attempted service. In a 2021 decision[4], Justice Riley considered the issue of the notice required for BC Supreme Court in the context of an application made under s. 490(3) of the Criminal Code. That section also deals with applications to extend the time seized items may be held before proceedings are instituted, and contains a similar provision with respect to notice. Justice Riley stated that “[t]he purpose of the notice requirement is to ensure that the person from whom things have been seized is made aware of the summary application, in order to decide whether and how to respond.”[5]

[11]      He concluded that there had to be actual notice that was in substantial compliance with the applicable BC Supreme Court Criminal Rules, with certain exceptions or qualifications. In the Provincial Court of British Columbia, there are no similar rules or practice directions. The only Provincial Court criminal law rules are the Criminal Caseflow Management Rules. Rule 1(3) directs that if there is no applicable rule or practice direction, then the practice is determined by reference to the purpose of the rules, set out in Rule 1(1):

[12]      In my view, adopting the requirements set out by Justice Riley will fulfil the purposes of the Rules. With respect to the affidavits of service, actual notice has been established.

[13]      There are three affidavits of attempted service. Justice Riley stated that where service of notice could not be effected, there could be an exception to the general rule of actual notice:

[14]      I will not use pronouns that might identify the gender of a person, to protect as much as possible their being identified.

[15]      With respect to one respondent, J.G., the Affidavit of Attempted Service sets out the numerous attempts to serve them with materials that would satisfy notice requirements. The attempts were unsuccessful. J.G. had outstanding warrants. A police officer eventually spoke to J.G., told them of the outstanding warrants and the applications, including the court date, and that the notice materials were available. J.G. said they would go to a police station, deal with the warrants and get the materials. They did not. I am satisfied J.G. had actual notice, but if I am wrong in that conclusion, then I am satisfied that an order for substitutional service in the manner set out in the Affidavit of Attempted Service is sufficient, and would make that Order. That would result in there being sufficient notice for J.G.

[16]      With respect to the respondent R., the Affidavit of Attempted Service sets out the numerous attempts to serve them with materials that would satisfy notice requirements. A police officer spoke to R. about the applications and the material sought to be served. Arrangements were made for R. to get the documents, but like J.G., they did not follow through. The officer again spoke with R. who said they would not tell police where they were. R. was told of the court date and location and said they would get the documents, attend the hearing, or wait a further nine months. They did not get the documents or attend court. I am satisfied R. had actual notice and chose not to participate, but if I am wrong in that conclusion, then I am satisfied that an order for substitutional service in the manner set out in the Affidavit of Attempted Service is sufficient, and would make that Order. That would result in there being sufficient notice for R.

[17]      With respect to the respondent G., the Affidavit of Attempted Service sets out the numerous attempts to locate them and serve them with materials that would satisfy notice requirements. There do not appear to be any other avenues for police to try to find them, and police have been unable to speak to them. Their associates that police spoke to did not know how to communicate with them or where they were. I order that the requirement for actual notice is waived, but find that there would be hardship if they were not able to apply for return of the relevant items before the expiration of the detention order I will make, and order that pursuant to s. 490(8) of the Criminal Code, G. can apply under s. 490(7) of the Criminal Code upon complying with its provisions. 

[18]      On an application under s. 490(2) for an extension of time within the first year following seizure, the Crown need not establish the complexity of the investigation or the reasonableness of a further time extension. The onus is on the State to satisfy a justice that a further period of detention is warranted. The standard is not onerous and is less than on a balance of probabilities.[7]

[19]      To determine whether an order continuing detention is justified, and for what length any further detention should be ordered, I have considered the following:

[20]      Judge Howard in Classic Smokehouse concluded that this factor was not of much assistance. I agree, but it seems to me that in some circumstances what has been done may inform what needs to be done, and what a reasonable timeframe may be, although I think that would be limited to situations where the investigational steps remaining are similar to what has been done. For example, if a lab analysis took four months to complete, and a similar lab analysis is required for some other item, then barring other factors, four months more would seem appropriate.

[21]      That is what I believe the Ontario Court of Appeal was referring to in R. v. Tennina,[9] as was Corbett J. who heard the initial review of the decision of a justice of the peace.[10] I agree with Judge Howard that to the extent that Justice Corbett was proposing that what has been done to date in the investigation in some other substantive way impacts the assessment I must undertake, the reasoning is unpersuasive, and perhaps could lead to an error of analysis. But I take what was said in that case in context, which in my view explains some of the comments.

[22]      Tennina involved a tax investigation and many documents – 50 boxes of them. The Crown theory was that the interested parties had used a systematic approach to tax evasion or fraud. Accordingly, the time needed for what remained to be done could to some extent be assessed on the basis of what had been done to date. Looking at what had been done also served to determine jurisdiction: whether there was in fact an investigation that was ongoing. Corbett J. reasoned that if police seized items and did nothing, there was no investigation; and if there was no investigation, there was no jurisdiction to apply under s. 490 to extend the time needed for something that did not exist.

[23]      The application to extend time was refused at first instance because the justice of the peace concluded that the 9½ months that had elapsed should have been enough. It is in that context that Corbett J. and the Ontario Court of Appeal commented on the history of the investigation. Corbett J. concluded the justice of the peace erred as the focus of the justice was on what had been done, not what remained to be done. It is in that context that Justice Corbett stated:

[24]      Judge Howard was faced with an apparently less systematic document case, in that the investigation was complicated by confusing and inadequate accounting systems. In other words, there was no apparent pattern that could be used to estimate how much longer it would take to decipher the accounting and determine what more was required, if anything.

[25]      In the case before me, what has been done is also of little assistance, if any, in determining with any specificity how much more time will be required. I conclude it will take a significant period.

[26]      Further factors I have also considered are:

[27]      With three exceptions, as raised at the hearing and acknowledged in the March Affidavit, the seized items are ordered detained until and including September 20, 2024.

[28]      The exceptions are that I order that the Tim Hortons cup and lid be returned to A.H., and the DNA swab taken from it be forfeited and disposed of.