Further Detention of Things Seized (Re)

2022 BCSC 1240 Further Detention of Things Seized (Re)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Further Detention of Things Seized (Re), 2022 BCSC 1240 Date: 20220715 Docket: X084155-1 Registry: New Westminster In the Matter of an Application for Further Detention of Seized Items Under s. 490(9.1) of the Criminal Code Before: The Honourable Mr. Justice Riley Oral Reasons for Judgment Counsel for the Applicant: P. Shyba Counsel for the Respondents: M. Iyengar Place and Date of Hearing: New Westminster, B.C. July 11, 2022 Place and Date of Judgment: New Westminster, B.C. July 15, 2022 Introduction [1] This is an application for various orders under the Criminal Code, R.S.C. 1985 c. C-46 ("Criminal Code") related to the administration of items seized under a search warrant. The applicant, Attorney General of Canada, seeks three orders: (i) an order for further detention of seized things under s. 490(9.1) for a further year, (ii) an order for the return of certain things under s. 490(6), and (iii) a sealing order with respect to all materials in the court file relating to this matter. [2] There were, as I understand it, four occupants or suspected residents of the premises which were the subject of the search warrant. They were given notice of the application and have retained counsel to appear for them at this hearing. The position of the respondents is as follows: (i) they do not oppose an order for further detention for

certain seized things, but they argue that the duration of the further detention should be limited to four months; (ii) they consent to the return of certain seized things, and (iii) they take no position on the request for a sealing order. Background [3] This application arises from an investigation conducted by members of the Royal Canadian Mounted Police Sex Crimes Unit, working together with members of the British Columbia Integrated Child Exploitation Unit. [4] The investigation originated with information received from the National Child Exploitation Crime Centre, indicating that suspected child pornography had been uploaded by a person with a particular username via a particular IP address. Working from those details, the police developed grounds to believe there would be evidence related to the offence of possession of child pornography at a particular residential address in Coquitlam, British Columbia. Then police then obtained a search warrant for the premises in question. [5] On 7 July 2021, the police executed the warrant. In the course of doing so, the police came to believe that there were four occupants or residents. In their search of the premises, the police located and seized some 77 items. Most of the items in question were computers, technological devices, or digital storage media, although there were also some other objects believed to be relevant to the

investigation. [6] On 8 July 2021, the police obtained an order authorizing the detention of all the seized items for three months. [7] On 6 October 2021, the police applied to a judicial justice for an order authorizing the further detention of the seized items, beyond three months. The respondents had been given notice of that application, retained counsel, and contested the further detention. Ultimately, on 6 March 2022, a Judge of the Provincial Court of British Columbia issued orders (a) authorizing the detention of some of the seized items for up to one year from the date of seizure under s. 490(2) of the Criminal Code, (b) directing the return of other seized items under s. 490(5) of the Criminal Code, and (c) authorizing the destruction of at least one item. [8] Shortly before the one year deadline, the Attorney General submitted an application to this Court for further detention beyond one year. Since the first available court date was after 6 July 2022, the Attorney General brought the application under s. 490(9.1), rather than under s. 490(3). [9] I am not going to go through all of the steps taken in the investigation between the date of the seizure on 7 July 2021 and the date of the application today, on 11 July 2022. I will simply summarize the process by noting that the vast majority of police efforts and resources have been focussed on accessing and reviewing

the computers, technological devices, and digital storage media. In the supporting affidavit, the investigating officer refers to such materials as "electronic exhibits". Based on the affidavit, it is clear to me that the examination and analysis of the "electronic exhibits" is time consuming, laborious, and technically challenging. [10] The sheer number of computer files located on the seized devices is massive. To determine whether the files contain evidence that is necessary for the investigation, the police must review each one individually. For example, one of the items seized in this was found to contain more than 1.6 million individual pieces of data, more than 900,000 of which were digital images, and a small portion of which were videos. Another item was found to contain more than 442,000 pieces of data, the vast majority of which where digital images, and a small proportion of which were videos. [11] In addition to challenges associated with the sheer volume of information, investigators also require the assistance of officers or civilian staff with computer expertise and training. The process by which "electronic exhibits" are examined by the police was described in the supporting affidavit as follows: a) There is an initial examination of each electronic exhibit by a digital field technician at the police detachment level. b) If the initial examination is

unsuccessful in accessing the data on a particular electronic exhibit, then a request is submitted to E-Division digital forensic services ("DFS"), whose staff have more expertise and training in the examination of computers. The DFS must approve the request. Once the request is approved, particular exhibits are submitted to DFS, which then examines the exhibits in an effort to access the data. Once the data is accessed, exhibits are then return to the detachment level, for investigators to assess the results and determine whether the exhibits are required for the investigation. c) In some instances, DFS is unable to access the data, in which case a request must be made for further analysis by a group called the Technical Assistance Team in Ottawa. [12] In this particular case, at least seven separate "electronic exhibits" have been examined and found to contain images of child pornography. At one point in the affidavit, the investigator deposes that there were "a large number" of such images, but did not say how many. [13] The police also determined that a some 25 "electronic exhibits" could not be accessed at the detachment level. Investigators have obtained approval and submitted 10 of these to the E Division DFS team. The officer who swore the affidavit made an educated guess that this review process will take four to eight months, after which the investigators must then

review the results for those 10 exhibits. [14] Investigators are required to wait until the first batch of 10 exhibits are returned by DFS before submitting further requests for the remaining 15 exhibits. Although this process sets up a sort of investigative queue or waiting line, it is a rational process in that it allocates available technical expertise amongst various ongoing investigations, rather than taking an all or nothing approach in which the DFS team could only advance one investigation at a time, with all other investigations requiring DFS assistance put on hold in the interim. [15] Over the course of their investigation to date, the police have also determined that a total of some 39 exhibits are not required for investigation. Of these, the police initiated the return of 17 items. One item was ordered returned by a Provincial Court Judge at the time of the s. 490(2) hearing. A further 22 to 25 exhibits will be the subject of a consent return order by me in the wake of this hearing. As noted above, one item was the subject of a destruction or disposal order issued by the Provincial Court Judge. [16] For the sake of completeness, I observe that by my count, these reasons describe the status of some 72 to 74 of the 77 seized items. This is attributable solely to a lack of precision on my part. The supporting affidavit clearly accounts for the status of all of the

seized items, in terms of them either being retained for further investigation, destroyed, or returned. [17] In the supporting affidavit, the investigating officer seeks further detention of the seized items that have either been determined to be evidence of a child pornography offence, or are still being examined with that purpose in mind, for a further year, until 6 July 2023. Although the officer does not say so explicitly, I conclude that this request is based primarily on the time required to access and properly review all of the "electronic exhibits" via the process described above. The officer further deposes that it may be necessary for the police to bring yet another application for a further detention beyond 6 July 2023. Finally, the officer deposes that if at any point investigators determine that a particular seized item is no longer required, they will obtain orders for the return of any such items "as soon as possible". Analysis [18] I will deal first with the application for a sealing order. The grounds for the sealing order are set out at para. 74 of the supporting affidavit. To paraphrase, the investigator asserts that "the ends of justice would be subverted by premature disclosure or public access to any information related to the [s]earch [w]arrant" because such disclosure would "[p]rejudice the interest of an innocent person". The affiant goes on to explain

that investigators are "still investigating" who was involved in the commission of the offences under investigation, namely possession of child pornography and, potentially, making of child pornography. On this basis, counsel for the Attorney General sought a sealing order with respect to "all records relating to" the application for further detention, "all material filed in support of the application", and any associated report filed under s. 490(3), 490(6), 490(9), or 490(9.1) of the Criminal Code. [19] In my view, the scope of the sealing order sought by the applicant in this case is sweeping and grossly overreaches what is necessary to address the concern about "prejudice to the interest of any innocent person". Section 487.3(1) of the Criminal Code gives the court authority to make an order prohibiting access to or disclosure of information relating to a search warrant where the ends of justice would be subverted by one of the statutory interests set out in s. 487.3(2), and where the importance of the specified interest outweighs the importance of access to the information. Section 487.3(2)(b)(iv) lists "prejudice to the interests of an innocent person" as one of the specified interests that may be invoked to justify such an order. [20] The text of s. 487.3 is broad enough to apply to materials filed in support of an application for further detention under s. 490 of the Criminal Code: Re Further Detention of Seized Things, 2020 BCSC 1100 at para.

17. The decision as to whether a sealing order should be granted is matter within the discretion of the judge or justice before whom the application is brought. That discretion must be exercised judicially on an application of the statutory test set out in s. 487.3(1), viewed in the context of the open courts principle as discussed in cases such as Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, R. v. Mentuck, 2001 SCC 76 and, more recently, Sherman Estate v. Donovan, 2021 SCC 25 [Sherman Estate]. [21] I find Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41 [Toronto Star] particularly helpful for its discussion of the kind of evidence that is necessary to make out the test for a sealing order in relation to materials filed in relation to a search warrant. In Toronto Star, the Court recognized that the one must conduct the analysis with some flexibility in the pre-charge context, that is, before the investigation is complete and no decision has been made as to whether any charges will be laid. Nonetheless, to be meaningful, the test requires compelling, case-specific information. It cannot be satisfied by generic assertions or broad generalizations. For example, simply advancing the general proposition that pre-trial publication of investigative details could taint future witness statements is not enough to establish that disclosure would compromise an ongoing

investigation: Toronto Star at para. 36-39. [22] The analysis is not restricted to an all or nothing consideration of either granting a sealing order for the entire file, or refusing one. There are situations in which the presiding judicial officer may not be satisfied that an order sealing the entire file is justified, but a more limited order is appropriate. For example, the order could provide for the sealing of a particular document or documents, on the condition that copies of those documents are made and left in the court file with the specific details redacted: Re: Further Detention of Seized Things, 2021 BCSC 1323 at para.

33. This approach finds support in Donovan Estates at para. 38, wherein Mr. Justice Kasirer explained that the availability of reasonable alternative measures is a factor to consider in applying the open courts principle. [23] In the case at bar, I am satisfied based on the assertion at para. 74 of the supporting affidavit, read in the context of the details set out in earlier parts of the affidavit, that release of some of the information in the affidavit and supporting documents would prejudice the interests of an innocent person as contemplated in s. 487.3(2)(a)(iv). Given the seriousness of the matters under investigation, and the potential effect of associating those allegations within particular individuals where the police have not concluded their investigation and are not yet in a position to lay charges against any particular individual, and in the absence of any submissions to the contrary, I am satisfied that this interest outweighs the importance of access to that particular information, that is, the details of the investigation that would tend to identify the premises searched and the alleged occupants or residents. [24] However, in my view, an order providing for the sealing of "all materials" filed in support of the application for further detention goes far beyond what is necessary. Sealing "all materials" in the file would be a significant deviation from the

open courts principle. It would deprive the public of the right to know anything at all about the matter under investigation. This would be disproportionate to the objective of protecting the interests of innocent persons, an objective which can be achieved by a much narrower and less restrictive order. The interests at stake can be properly protected by an order providing for the sealing of the originating notice, supporting affidavit, and attachments, on the condition that copies of those documents are made and left in the court file with particular details redacted. [25] When I discussed this approach with each of the counsel in the course of the hearing, both agreed that it would adequately address the concern about protecting the interests of persons presumed to be innocent, without intruding any more than is necessary on the open courts principle. In the future, counsel should be proactive in seeking more limited orders of this sort, rather than seeking a blanket sealing order and then waiting to see if the court will agree to it. [26] The particular details to be redacted are the street name and address of the premise searched, the names of those connected or tied to the internet address under investigation, the IP address or addresses under investigation, and the names of the suspected occupants or residents of the premises that were searched. I should note that

particular attention must be paid to the detail in the unredacted affidavit and attachments, in order to catch and redact all of these details wherever they are included in the affidavit. On my perusal, the particulars in issue can be found in paras. 4(b)(ii), (v), (vii) to (xxii), 6, 6(a)(i) through (iv), 6(b), 7(a), and (b), 10, 10(a) to (d), 12(a) and (b), 14-17, 24-26, 37-38, 44, 50, 62(b), 69(e)(i)(5), and 74(a)(i), the report to justice and initial detention order attached as Ex. D to the affidavit, and the return order attached as Ex. F. I should stress that in saying there should be redactions to these particular paragraphs, I do not mean that the entirety of each listed paragraph is to be redacted. Only the identifying particulars, meaning names, IP addresses, physical addresses, and the like should be redacted, with the balance remaining. [27] That brings me to the merits of the application for further detention. I am not going to review the statutory scheme or the elements of the test for further detention under s. 490(9.1). I will simply adopt the summary of the law found in Re: Further Detention of Things Seized, 2021 BCSC 1323 at para. 112, 113, 117-122. [28] In the case at bar, my analysis is made much easier by virtue of the positions taken by counsel. Counsel have commendably focused their arguments on what is truly in issue between them. The focus of the

dispute is entirely on the duration of the order for further detention. Given those positions, and in view of the evidence in the record, I am not going to delve into a lengthy analysis in terms of the interests of justice, the concept of complexity within the investigation, and the threshold for establishing that further detention is required. As I say, what is at issue in this case is quite simply the duration of the detention order. [29] On the one hand, counsel for the Attorney General argues for further detention of the bulk of the seized items for a full year, until 6 July 2023. Based upon what has happened to date, the work that has yet to be done, and the need for technical assistance in conducting much of that work, Crown counsel submits that it is obvious the investigation will not be complete for at least another year. The evidence indicates that in all likelihood the DFS will be asked to process potentially three separate batches of "digital exhibits", requiring four to eight months to process each batch. Added to this, the police will require time to review the results and integrate them into their investigation. In view of all of this, and the seriousness of the offences under investigation, counsel submits that further detention for a period of one year is warranted in this case. [30] On the other hand, counsel for the respondents argues that the court should

only grant an order for further detention for a period of four months. Counsel emphasizes that the court must consider not just the steps that have been taken and have yet to be taken in the investigation, but also the broader interests at stake. These include the state interest in allowing for the proper investigation of criminal activity, and also the property and privacy interests of the respondents. [31] With regard to the latter set of interests, the property and privacy interests of the respondents, counsel emphasizes that many of the seized items in this case are technological devices with limited shelf lives. The utility and value of these items to the owners can significantly diminish over time. If a particular computer has a useful shelf life of only three or four years, being deprived of its use for upwards of two years should not be regarded as an insignificant matter. [32] Counsel for the respondents was quick to point out that the court's ruling on the duration of further detention is not an all or nothing proposition. It may well be that after a further four months, the police will require yet another extension of the detention order, and that will mean a further s. 490(3) application. However, limiting the current order for further detention to a reasonable period will ensure that the police continue to be diligent, both in their efforts to analyze the

"electronic exhibits", but also in their efforts to promptly return items that are determined not to be required for the purposes of the investigation. Counsel points out that the end date for the existing detention order can serve a practical purpose in this regard. For example, in this case, the one year deadline for the prior s. 490(2) order was clearly a significant impetus for the police to agree to the return of a large number of the seized items. The supporting affidavit also makes it clear that the police concluded months or weeks ago that certain seized items were no longer required, but the return of those items is only occurring now, in conjunction with the application for further detention of the remaining items. [33] I do find some force in defence counsel's submission. While it is realistic to say that the police will not have fully completed their investigation within the immediate future, or even within a further year, it is also possible if not likely that within a much shorter period of time the police will identify at least some items with no further evidentiary value. Thus, one cannot say with certainty that further detention of all of the items will be required for a further year. [34] While that line of reasoning weighs in favour of an order for further detention of a shorter duration, there is a contrary line of reasoning weighing in the opposite

direction. If the police are able to show that their investigation is not likely to be complete for at least another year prior to a decision on laying charges, at least on the record before me in this case, there is a strong case for saying they have met the test of establishing that continued detention of at least some of the seized items will be required for that entire period of time. Further, a detention order of a shorter duration would require the police to bring renewed applications with greater frequency, thereby detracting from their ability to complete the investigation in a timely and efficient way, when they are arguably already in a position to say with a fair degree of certainty that further detention of at least some of the seized items will be required for at least one year. [35] One way to reconcile these concerns would be to grant an order for further detention of one year for items that have already been determined to be evidence of the offence under investigation, and to grant an order of further detention of less than one year for the items that have yet to be analyzed. I have considered that approach but in my view it would only add unnecessary procedural and legal complexity to the investigation. It would require the police to work on multiple deadlines, with different detention periods applicable to different items seized under the same warrant. To be

clear, this would not be impossible, but it would certainly contribute to the procedural and legal complexity of the matter. It might be an appropriate order to make in some cases, but in this case I find that it is not. [36] I should note the ongoing obligation on the police under s. 490(5) of the Criminal Code to proactively assess the need for further detention of each seized item. This particular subsection imposes a positive duty on the police to promptly arrange for the return seized items that are determined not to be required. [37] In this particular case, there is evidence that the police proactively returned seven seized items on 29 September 2021. Although this was a mere seven days before the expiry of the initial three-month detention order, in fairness it must also be acknowledged that for four of these items, the forensic examination was concluded a mere eight days earlier. [38] There is also evidence that the police proactively returned a further 10 items on 1 February 2022. Again, while these returns were made while the application for further detention was pending in the provincial court, the returns actually took place some five to six weeks before the hearing of that application. [39] Finally, there is evidence that on 29 April 2022, the police determined that seven of the seized items were no longer required. And throughout the month of June, the police

determined that a further 18 seized items were no longer required in the investigation. All 25 of these seized items have yet to be returned. I am being asked to issue an order authorizing their return in conjunction with or parallel to the application for further detention. [40] What is apparent from this review of the handling of the seized items is that the police have been somewhat inconsistent in their obligation to proactively return seized items that are determined not to be required in the investigation. On some occasions, investigators have proceeded proactively. On other occasions - particularly most recently - investigators have not been proactive in arranging under s. 490(5) for the return of seized items no longer required in the investigation. [41] Taking all of this into account, and after careful consideration, I have concluded that it is appropriate to order detention of all of the seized items which are the subject of the application for a further year, until 6 July 2023. Granting an order for a lesser period of time would have the salutary effect of holding the feet of the police to the fire in ensuring that they adhere to their obligation to promptly return things that are no longer required, but beyond this it would almost certainly require the police to bring another application for further detention, in circumstances where there is little prospect that

the investigation will actually be concluded for at least another year. [42] I stress that this should not be taken by the police as license to hold onto all of the seized items for that entire period of time, or indeed for any appreciable period of time after a particular item is determined to be no longer required. In the future, the police would be well served by a bring forward system in which compliance with their obligations under s. 490(5) is assessed at regular intervals. I would certainly not expect the police to hold onto seized items for months or even weeks after those items are determined to be no longer required for the investigation or for future criminal proceedings. [43] The failure of the police to proactively address their ongoing obligations under s. 490(5) of the Criminal Code may well be a factor that influences the court in any future applications for further detention in this matter. In this regard, I am making two directions. These are not to be construed as terms of the order, but merely directions regarding the distribution of this ruling. First, I direct that a copy of these reasons is to be transcribed and placed in the court file, for review by any judge who deals with a subsequent application for further detention in this matter. Second, I direct that counsel for the Attorney General is to send a copy of these reasons to the officer who swore the

supporting affidavit in this matter, for the review of that officer and any other officers responsible for the handling of the seized items in this case. Summary and Conclusion [44] I would summarize the outcome as follows. First, I grant the application for an order of further detention of certain seized items under s. 490(9.1) of the Criminal Code until 6 July 2023. Second, I grant the application for return of certain other seized items under s. 490(6) of the Criminal Code. Third, I grant the application for a sealing order in part, on the following terms: (a) the original notice of application, supporting affidavit, and attachments are to be sealed until further order of the court, and (b) within seven days of the granting of this order, the applicant Attorney General is to file redacted copies of the materials, to be placed in the court file and accessible in accordance with the Supreme Court of British Columbia policy on access to court records. "Riley J."