Further Detention of Things Seized (Re)

2024 BCSC 2005 Further Detention of Things Seized (Re)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Further Detention of Things Seized (Re), 2024 BCSC 2005 Date: 20241101 Docket: 98435 Registry: Abbotsford In the Matter of an Application Pursuant to s. 490(3) of the Criminal Code for an Order for Further Detention of Things Seized Corrected Judgment: The text of the judgment was corrected at para. 38 on November 8, 2024. Before: The Honourable Justice Whately Reasons for Judgment Counsel for the Applicant, the Attorney General of Canada: S.M. Walker The Respondent, appearing in person: Respondent Place and Date of Hearing: Abbotsford, B.C. October 17, 2024 Place and Date of Judgment: Abbotsford, B.C. November 1, 2024 Table of Contents Introduction.. 3 Background.. 5 Position of the Applicant. 7 Analysis. 8 Conclusion.. 10 Introduction [1] This is a ruling on an application for further detention of things seized in a criminal investigation, brought pursuant to s. 490(3) of the Criminal Code, R.S.C. 1985, c. C-4, and a corresponding sealing order. [2] The items in question were seized from the respondent's vehicle on September 18, 2023, by the Royal Canadian Mounted Police (the "RCMP") in the course of an investigation into a sexual assault. The RCMP has been in possession of the items since this time. [3] On September 12, 2024, the RCMP filed a notice of application requesting a six-month period of further detention. If

granted, the requested Order for the Further Detention of Things Seized would expire on April 18, 2025. Ms. Walker, counsel for the Attorney General of Canada, is representing the RCMP on this application. [4] This is the second application for the further detention of the items. The first Order for Further Detention was granted in Provincial Court on February 23, 2024, and was valid until September 18, 2024. For reasons that will be canvassed below, a hearing to further extend the order was originally set to proceed on September 24, 2024, but it was delayed to October 17, 2024. [5] I am advised that the investigation into the alleged sexual assault is nearly complete, and that the RCMP anticipate submitting a Report to Crown Counsel on or around October 25, 2024. The further detention of the items is sought to allow the charge approval process to complete, which may require additional investigation. [6] The RCMP also seeks a sealing order to protect the identity of the alleged victim of the sexual assault. In particular, the RCMP seeks to prohibit access to two affidavits authored by Constable De La Gorgendiere in support of this application. Among other concerns, the investigation involves a victim under the age of 18, and the RCMP wishes to protect her safety and anonymity. The RCMP argues that these concerns outweigh the importance of access to information at this stage of

the investigation. [7] On October 17, 2024, the respondent appeared briefly in person to oppose the RCMP's application. The respondent requested a two week adjournment and stated that he understood that the application was to be heard on October 15, 2024. As a result of this misunderstanding, the respondent said that his counsel could not attend the hearing. [8] Ms. Walker, counsel for the RCMP, provided evidence that she attempted to provide the respondent with information about remote appearances for fix dates. She also produced an affidavit of service, sworn by Constable De La Gorgendiere on September 16, 2024, detailing the efforts made to serve the respondent with documents for this application prior to the September 17, 2024, fix date appearance. In her affidavit, Constable De La Gorgendiere concluded that, given the unsuccessful efforts to serve the respondent, the respondent was evading service. [9] At the September 17, 2024, fix date appearance, this hearing was set for September 24, 2024, at 2:00 p.m. Following this fix date, Ms. Walker emailed the respondent to advise that the September 24, 2024, date had been set in his absence. [10] Ms. Walker directed the court to correspondence showing that the respondent replied to Ms. Walker to advise that he could not make the September 24 date and requested that the hearing be rescheduled to October 17, 2024. The respondent

responded to Ms. Walker using the same email address she had used to advise him of the September 17 fix date, and the September 24 hearing. [11] Based on the evidence, it is clear that the hearing was rescheduled to October 17, 2024 at the respondent's request. [12] Ms. Walker further advised the court that the respondent previously requested an adjournment of the first detention of things seized hearing in order to retain counsel, but that he failed to do so. [13] After hearing the submissions of the parties. I was satisfied that the respondent not only had sufficient notice of today's hearing, but Ms. Walker made appropriate and fair efforts to schedule this hearing such that the respondent could attend on a date that was specifically convenient to him. I was not convinced that the respondent retained counsel for a different date, or at all. I therefore denied his request for an adjournment. [14] After I ruled against his adjournment request, the respondent advised that he would be leaving the hearing to return to work. I asked him to make his submissions with respect to the application for further detention of things seized prior to returning to work, so that he would have an opportunity to make his case to the court as to why the items should not be further detained. [15] The respondent stated that he had no real objection to the retention of the items. He said that his

only objection was that the items had already been detained for over a year, which, in his view, should have been long enough for the RCMP to conduct their investigation. The respondent also stated that either he was told, or that it was his understanding, that certain of the detained items were not his. He also stated that he didn't particularly need the items to be returned. [16] The respondent submitted that regardless of whether the items are his or if they belong to someone else, in his opinion there is no further need for the RCMP to retain them. The respondent did not say that he required access to, or had an interest in, obtaining or recovering any specific item. [17] The respondent then left the hearing. Background [18] The background facts are set out in the affidavits of Constable De La Gorgendiere, a Constable assigned to Mission General Duty, D-Watch, and include the following: a) In the course of an investigation into a sexual assault allegedly committed by the respondent on or about September 10, 2023, police learned that a Black Dodge Charger registered to the respondent had been impounded and was at the Maple Ridge tow yard. b) On September 11, 2023, RCMP seized the vehicle and towed it to the Mission RCMP detachment. Officers observed a red and black bandana and broken glass on the seat. c) On September 17, 2023, the RCMP obtained a warrant authorizing the

search of the vehicle. d) The RCMP executed the search warrant and seized a total of 23 items from the vehicle, including: · a red bandana and a black bandana; · seven DNA swabs labelled #1, #4, and S5 through S9; · two additional swabs labelled #2 and #3; · two boxes of glass shards; · strands of dark hair; · 1 long black magazine with spring; · piece of fabric cut from rear passenger seat; · suspected Air Soft cannister; · H and K replica Air Soft with M; and · men's boxer underwear. e) The vehicle was returned to the Maple Ridge tow yard on September 18, 2023. f) Constable De La Gorgendiere submitted items to the Forensic Assessment Center (the "FAC") for DNA analysis. The FAC accepted certain of the items, including the bandanas, the men's boxer underwear, and a sample from the victim (collectively referred to as "the Submitted Items"). [19] As of the date of Constable De La Gorgendiere's first affidavit, the results from the FAC had not yet been received. However, on September 15, 2024, she received the FAC's laboratory report pertaining to the Submitted Items. The report stated that the FAC found DNA which matched the known victim's sample. The FAC also identified another unknown DNA sample which was suitable for comparison to reference samples. Position of the Applicant [20] At the hearing, Ms. Walker advised me that the Report to Crown Counsel is already drafted and is

on the verge of being completed. It will be submitted to Crown Counsel by October 25, 2024. Following charge approval, Constable De La Gorgendiere will draft an Information to Obtain a Warrant to Take Bodily Substances for Analysis. This information will request a warrant to obtain the accused's DNA to compare with the lab results. [21] This is a serious sexual assault investigation. The RCMP maintains that this case is heavily dependant on forensic DNA analysis and that the seized items are required as evidence to support the recommended charges. The RCMP states that they conducted witness interviews, sought the appropriate warrants for the seizure of items, received the items, and submitted the items for DNA analysis in a relatively short period of time. The RCMP were required to wait on the report from the FAC before completing the Report to Crown Counsel. When the report was received, the RCMP committed to submitting the Report to Crown Counsel within a very short period of time. [22] The RCMP maintains that further detention of the thing seized is warranted to allow for time to proceed through the charge approval period, obtain the warrant to take bodily substance, and take any other investigatory steps that may be required in the course of charge approval. [23] The RCMP therefore requests that the items be detained a further six months, until April 18, 2025. [24] The

respondent opposes the application on the grounds that the RCMP have had sufficient time with the items to complete their investigation. [25] The RCMP also requests a sealing order with respect to two affidavits sworn in support of this application; namely two of Constable De La Gorgendiere's affidavits, one sworn on September 11, 2024, and the other on October 16, 2024. The RCMP states that the sealing order is required because premature disclosure would subvert justice and compromise the ongoing investigation into a serious sexual assault involving a minor. [26] The RCMP seeks to protect the identity of the complainant, who has expressed concern for her safety. The RCMP believes there is a risk of witness intimidation if the complainant's identity is made known. The RCMP also maintains that the privacy and safety interests of the complainant, who is under the age of 18, outweighs the importance of access to information at this stage of the investigation. Analysis [27] As stated by the British Columbia Supreme Court (the "BCSC") in Further Detention of Things Seized (Re), 2024 BCSC 93: [17] The overall purpose of s. 490 of the Criminal Code is to provide for the administration of and judicial supervision over things seized in connection with criminal investigations, in a manner that achieves a balance between the societal interest in the investigation of crime on the one hand,

and the property and privacy interests of individuals in things that have been seized from them in a criminal investigation on the other hand. However, s. 490 does not purport to impose a timeline for the conduct of criminal investigations: Alberta (Attorney General) v. Black, 2001 ABQB 216 at para. 20-21. Rather, the statutory scheme provides for judicial supervision of the periods of time in which seized things have been detained, up to the point where either proceedings have been instituted in respect of which those things may be required, or the investigative authorities determine that the seized things are no longer required. The regime "aims for the expeditious return of seized items because the lawful owner may want or need those items": Further Detention of Things Seized (Re), 2019 BCSC 1345 at para. 16. [28] Section 490 does not function as a limitation period for investigations. However, as noted by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, all participants in the justice system have a responsibility to make the most of limited resources: [116] Ultimately, all participants in the justice system must work in concert to achieve speedier trials. After all, everyone stands to benefit from these efforts. As Sharpe J.A. wrote in R. v. Omar, 2007 ONCA 117, 84 O.R. (3d) 493: The judicial system, like all other public institutions, has limited resources at its

disposal, as do the litigants and legal aid. ... It is in the interest of all constituencies - those accused of crimes, the police, Crown counsel, defence counsel, and judges both at trial and on appeal - to make the most of the limited resources at our disposal. [para. 32] [29] Section 490(3) provides that a judge of the superior court may authorize the ongoing detention of seized things for more than one year after the date of seizure if, having regard to the nature of the investigation, the judge is satisfied that further detention for a specified period of time is warranted. The analysis thus requires the judge consider whether the investigation is complex in nature, and whether, in view of that complexity, further detention of the seized things is warranted: Further Detention of Things Seized (Re), 2019 BCSC 1345 at para. 8. [30] The concept of complexity has been discussed at length in the case law. The issue is the complexity of the investigation, not the complexity of the potential charges: see Further Detention of Things Seized (Re), 2021 BCSC 1323 at para. 120, citing Canada Revenue Agency v. Okoroafor, 2010 ONSC 2477 at para. 26-27 and Re: Moyer (1994), 1994 CanLII 7551 (ON SC), 95 C.C.C. (3d) 174 (Ont. Gen. Div.) at p. 177. [31] In this case, the investigation is not vast, but it is reliant on the assistance of an expert, the FAC, with respect to the forensic

analysis of the Submitted Items. The case law identifies a number of factors that may support the conclusion that an investigation is complex. One of these factors is the need for professional assistance from experts in a particular field, such as lawyers, accountants, computer technicians, or, in this case, experts in DNA analysis. In order to complete their investigation, the RCMP were required to wait for the results of the FAC analysis. See Re. Tran et al; Re. Sperka, 2004 BCSC 339. [32] In in Further Detention of Things Seized (Re), 2024 BCSC 1900, the court stated: [43] The court is not suited to monitor police actions in their investigations of crime other than to ensure the interests of parties from whom the goods were seized are protected. However, police actions after seizure of property must be examined to ensure compliance with the Code where there is evidence of foot dragging, delay, procrastination, prejudice or bad faith on the part of the police, the court is required to be vigilant. [33] The RCMP detailed the steps already taken, including the use made of the detained items, and provided a timeline for submitting the Report to Crown Counsel, as well as the steps that remain to be taken in the upcoming six months of requested further detention. In my view, the RCMP did not delay the investigation and in fact made efforts to provide a report to the Crown soon

after receiving the FAC results. [34] For his part, the respondent did not claim that any of the items had particular value to him, whether monetary or sentimental. Instead, he questioned whether they belonged to him at all. Further, the vehicle itself was not retained by the RCMP, and the remaining items do not have significant value, beyond the privacy value vested in the DNA samples. Conclusion [35] I am granting both the RCMP's requests. [36] Having considered the complex nature of the investigation and the evidence put before me, I am satisfied that the further detention of the thing seized is warranted. In addition to the complexity of an investigation requiring DNA analysis, there are no hallmarks of delay or foot-dragging on the part of the RCMP. [37] The respondent's interests, as much as he denies having any specific interest in the items, have been considered and protected sufficiently. I am satisfied that further time to enable the RCMP and the Crown to conclude the final stages of the investigation and the charge approval process is warranted. [38] I am therefore ordering the further detention of things seized in this investigation for another six months, until April 18, 2025. [39] The RCMP also seeks a sealing order for two of the supporting affidavits in this application. The order requested is not overbroad and is limited to certain sections of two affidavits. I

find that the information redacted from the affidavits could, if disclosed, impact the proper administration of justice and potentially pose a risk to the complainant, who is under 18. [40] The unvetted or unredacted affidavits of Constable De La Gorgendiere, sworn on September 11, 2024, and October 16, 2024, will be retained under seal. The redacted versions of the affidavits will remain in the court file. "J. Whately J"