Further Detention of Things Seized (Re)

2025 BCSC 1389 Further Detention of Things Seized (Re)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Further Detention of Things Seized (Re), 2025 BCSC 1389 Date: 20250630 Docket: 86497-1 Registry: New Westminster IN THE MATTER of an Application for the Further Detention of Things Seized pursuant to ss. 490(3) and 490(9.1) of the Criminal Code and IN THE MATTER of an Application for a Sealing Order pursuant to s. 487.3 of the Criminal Code Corrected Judgment: The text of the judgment was corrected at paragraph 66 and on the cover page on July 23, 2025 Before: The Honourable Justice Schultes Oral Reasons for Judgment Counsel for the Applicant: E. Amer Counsel for the Respondent: A. Tubinshlak Place and Date of Hearing: New Westminster, B.C. May 26 & June 10‑11, 2025 Place and Date of Judgment: New Westminster, B.C. June 30, 2025 Introduction [1] This is an application by the Attorney General of Canada on behalf of the RCMP pursuant to ss. 490(3) and (9.1) of the Criminal Code for an order for the further detention of a cellphone and the data that was obtained from it, until June 30. The Attorney General also seeks an order pursuant to s. 487.3, restricting access to the affidavits and other material filed in relation to the application. [2] The owner of the phone opposes the application. Evidence [3] The main basis of the application is an affidavit provided by Cst. Chouinard, a member of the Surrey RCMP Special Victims Unit. Counsel for the RCMP has disclosed a redacted version of that affidavit to the phone owner, following the authority of 2021 BCSC 1323, at para.

97. Unlike the situation in which an information to obtain a search warrant is redacted in the course of a Garofoli review, that decision permits the police to rely on the redacted information in an affidavit in support of the order for further detention, without disclosing it to the person from whom the items were seized and without a judicial summary of that information being provided. In order to rely on redacted information in this manner, the police must show that the test for a sealing order is met with respect to it. [4] The unredacted version of Cst. Chouinard's affidavit is one of the items in relation to which the sealing order is being sought. [5] The background is the investigation of a sexual assault that is alleged to have been committed by the phone owner on the complainant on November 11, 2021, likely in Langley. According to the complainant, while she was intoxicated he took her to his home and assaulted her there. He also took photos of her with his phone while she was naked on his bed, and showed three of the photos to her. [6] The initial complaint was made to Cst. Primeau, a general duty member of the Surrey RCMP. The phone owner was arrested on November 14 in Surrey, and his phone was located and seized incidental to that arrest. [7] On November 26 the phone was ordered to be detained for three months from the date of seizure. [8] Some delays occurred

between the end of November and the beginning of January 2022, as Cst. Primeau tried unsuccessfully to persuade the police agencies in the jurisdictions where the assault was believed to have occurred - initially Abbotsford but ultimately Langley - to take over the investigation. [9] Cst. Chouinard explains that Cst. Primeau was a junior police officer at the time and that, other than two days in February 2022, when she was seconded to the SVU to complete a further application to detain the phone, she was left to continue the investigation on top of her regular duties of handling calls and conducting investigations as a general duty officer. [10] On February 11, she obtained an order detaining the phone until November 14, 2022. [11] As a result of the burdens of her regular duties, Cst. Primeau had some difficulty in preparing the information to obtain a search warrant for the data on the phone until October 2022. She actually had to make two such applications, because the initial one did not describe the model of the phone correctly. The search warrant was executed on October 26, 2022. [12] On December 16, the data from the phone, which had been extracted by then, was also ordered to be detained for three months from its date of seizure. The report to justice seeking the extension incorrectly stated the date of the data seizure as October 26, when it had actually occurred on

November 14. [13] On that same date, November 14, 2022, mistakenly believing that the phone was no longer required because the data had been extracted, and because the existing order for the detention of the phone was expiring that day, Cst. Primeau filed a request for an order to return it to its owner, which was granted on November 18. [14] Cst. Primeau was not familiar with Cellebrite, which is the software that is needed to analyze data extracted from phones, so at the beginning of December 2022 she asked to be seconded to the SVU again in order to receive assistance with respect to its use from more experienced officers. After being on medical and personal leave from mid‑December to early January 2023, her secondment began on January 18. The day before it began, she submitted a report to Crown counsel seeking charges against the phone owner, without any analysis of the data that had been obtained from the phone. [15] After conducting the analysis on January 18, she submitted a supplementary report to the Crown summarizing her findings. In early February, Crown counsel posed certain questions to her, which needed to be answered before charges could be pursued. The answers required information from the complainant, who did not have a fixed address or a cellphone and was thus very difficult to locate. [16] On February 20, Cst. Primeau realized that she had not advised the

phone owner that his phone had been ordered to be released. She contacted his counsel, who advised that he had not had contact with him for some time and had no way of doing so. [17] On March 22, Cst. Primeau was able to reach the complainant and obtain the information that the Crown required. Despite this, charges were not approved at that time. [18] It appears that no order extending the detention of the data was obtained within the three months required by the previous order. In August, pursuant to an application by one of the investigators in June, a provincial court judge granted an order detaining the data until November 8, 2023. [19] In September of that year, the SVU took over the investigation from Cst. Primeau. In November, a further search warrant was executed for the phone - in essence re-seizing it following the return order - and to conduct an additional search of the previously extracted data as part of the ongoing investigation. An order detaining the phone for three months was obtained. [20] On November 30, coincidentally, I was the judge who made an order detaining the data until November 8, 2024. [21] On February 2, 2024, a provincial court judge denied the investigator's application for an extension of the detention of the phone, reasoning that although there had been a second search warrant seizing it, it had originally been seized on November 14, 2021, and

pursuant to s. 490(3) only a superior court judge can grant further extensions after a year has passed. [22] In March 2024, Sergeant Ingleston of the SVU decided to submit a report to the Crown seeking charge approval based on the evidence that had been obtained to that point in the investigation. Due to the officer who was responsible for preparing the package going on medical leave, and the time it took her to prepare it, the report was not actually received by the Crown until November 2024. [23] On April 30, 2024, notwithstanding his colleague's previous rejection of the request in February, a provincial court judge ordered the phone to be detained until November of that year, pursuant to s. 490(9.1), which applies to applications made after the expiry of a previous detention period. [24] Due to inadvertence, no further applications for detention of the phone or the data were made in November 2024, when the existing orders for both items expired. In his second affidavit, Cst. Chouinard deposes that he and the other investigators mistakenly believed that the orders were to expire in February 2025 and, having submitted a further report to Crown counsel on November 8 (the fact that that was the expiry date of the existing orders is a coincidence, he advises), the investigators expected that the remaining three months to February would be sufficient for a charge assessment

decision to be made by the Crown. [25] In January of this year, Crown counsel advised the investigators the charges would not be approved until the investigators obtained the orders for detention of the phone and the data that are being sought in this application. [26] As of February, an RCMP analyst had been assigned to conduct an extended analysis of the data. However, due to the demands on analysts' time and the need to prioritize their cases on the basis of public safety and urgency, this analysis had not been carried out as of April, when Cst. Chouinard swore his first affidavit. [27] Cst. Chouinard deposes that although the data has been extracted, the phone remains the best evidence of that data, the original of which is still contained within it, and therefore it needs to be retained for trial. If its owner wishes to seek an independent forensic analysis of the data, his expert may need to refer to the phone as part of their analysis. In addition, despite the investigators presently believing that they have acquired all of the data from the device, a forensic technician may discover that a so‑called electronic key is required from the device in order to access encrypted data, or that data that has been obtained is in a format that is only readable in conjunction with the device. Further possibilities are that the field technician who extracted the data may need to give

evidence with respect to the continuity of the phone, or a forensic examiner may need to provide expert evidence based on more advanced analysis, which once again may require them to have access to the device. [28] All that can be said at this point about the redacted portions of the affidavit without undermining the purpose of those redactions is that they describe additional investigative purposes that potentially impact on the progress of the investigation, including the steps that have been taken so far and additional ones that remain. Governing legislation and principles [29] These are not meaningfully in issue. Because the previous periods of detention have expired, the investigators must satisfy the requirements of subsection (9.1), which are that (1) the items are reasonably required for the purposes of an investigation (in other words, that the requirement is objectively reasonable), and (2) that further detention is in the interests of justice. The second requirement is a weighing of the rights of the person from whom things have been seized against the right of the authorities and the public to have proper investigation of alleged crimes. [30] However, because the police should not be able to place themselves in a more favourable position by exceeding previous periods of detention, when they are applying pursuant to subsection (9.1), the investigators must also

satisfy subsection (3), which applies to applications made before an existing detention period has expired. That requires them to show that, having regard to the complex nature of the investigation, a further period of detention is required: 2021 BCSC 1323 at paras. 111 and 113. [31] The requirement that the investigation be of a complex nature was also explained in that decision. It warns against falling into a binary analysis, in which investigations are either complex or not. It explains that aside from investigations that are "manifestly not complex", there may be different degrees or levels of complexity - that is, no rigid template should be applied. What matters is that in order to justify further detention, the investigation must have elements of complexity, something beyond a run‑of‑the‑mill criminal investigation such that the police are unable to successfully complete the investigation and either obtain approval for charges or otherwise return the things seized within one year of the date of seizure: para. 122. [32] It is important as well to keep in mind that this analysis does not involve a checklist or a mathematical tally of factors. Rather, there must be a case‑specific and individualized weighing and assessment of the potential elements of complexity: S.B. and C. Ltd. (Re), 2019 BCSC 1345, at para. 9. [33] With respect to the requirement that detention of the

items is warranted in light of that complex nature it is possible, for example, if there has been a lack of diligence in pursuing the investigation or an insufficient allocation of resources to it, that notwithstanding its complex nature a further period of detention is not warranted, or that all that is still warranted is a shorter period than the investigators seek. This analysis involves considering factors such as the amount of remaining work to be done in the investigation and whether any of it should have been completed earlier, with particular concern for the existence of investigative foot dragging or procrastination. Crucially, it has been found that an investigation that has not been completed yet because of insufficient resources being allocated to it to review a significant volume of material is not necessarily a complex one: Canada Revenue Agency v. Okoroafor, 2010 ONSC 2477 at paras. 19 and 22. [34] This additional requirement ensures that the mere presence of a degree of complexity in the investigation does not lead to seized items being retained indefinitely. [35] The other principle that is relevant in this case is that data has been found to be a "thing" for the purposes of the s. 490 regime, and is therefore subject to its requirements in the same way as tangible objects: R. v. Teixeira, 2022 BCSC 344 at para.

121. Positions [36] Counsel for the Attorney General submits that this is an ongoing and active investigation, and that the various reasons why the investigators wish to retain the actual phone for trial, as described by Cst. Chouinard, are objectively reasonable. [37] As to the interests of justice in granting a further period of detention, counsel notes the serious nature of the alleged offence, both as described in the unredacted portions of the affidavit and in the additional paragraphs that have been withheld, which favours allowing the investigation to be completed. She also submits that the evidence of the offence on the phone is in itself unlawful to possess, and that therefore the phone itself cannot be returned to the owner in any event. [38] Complexity is said to be found in the requirement that the extracted data be reviewed by a criminal analyst, which is subject to the queue for their services that has been described, and therefore to a delay that the investigators are not able to control. A further element of complexity is the ongoing need for communications between the investigators and Crown counsel with respect to the standard to be met for the charge approval, which has been found to be a legitimate aspect of complexity: see 2024 BCSC 1264 at para. 10, as is the training and experience level of the officer who was initially saddled with the

investigation. [39] Of particular significance, counsel submits that the failure to seek further periods of detention for these items was inadvertent, and did not arise from a lack of diligence in pursuing the investigation itself. [40] Beyond these factors, the redacted portions of the affidavit are said to provide abundant additional indicators of the complex nature of the investigation. [41] Counsel submits that the factors identified in the redacted portions of the affidavit also clearly demonstrate how disclosure of them would compromise the nature of the ongoing investigation, and subject the phone owner to the heavy stigma associated with allegations of sexual assault before the process of assessing the sufficiency of the evidence to support a charge has been completed. Since there is no alternative short of preserving the redactions that can achieve these purposes, counsel argues that a sealing order is essential. [42] Counsel for the owner of the phone emphasizes that this application is being made in the context of ongoing errors and delays by the investigators, such as: initially misnaming the phone model, taking almost a year to obtain authorization to search it, mistakenly indicating the date of the data extraction in the application to retain it, failing to act on the order that they themselves had obtained to return the phone, failing to make any meaningful

efforts to notify the owner of that order, and failing to take any further action to lawfully detain the phone after the provincial court judge rejected their attempt to proceed under subsection (3) following their reseizure of it. [43] The present inadvertence that they rely on to excuse failing to extend the detention periods when they expired must be assessed in light of that negative history. In contrast to such conduct, counsel stresses the obligation on the police to proceed diligently once the property of an individual has been seized, as emphasized, for example, in R. v. Bromley, 2002 BCSC 149 at para. 22. [44] The justifications for retaining the phone put forward by the police at this point are said to be completely speculative, there being no present evidence that any of those situations will arise. In the absence of any substance to them, those suggestions also cannot support a finding that further detention is in the interests of justice. [45] Counsel also notes that the conduct of the police can be an important factor when assessing where the interests of justice actually lie, especially if there are no meaningful explanations for the delay and they have not devoted sufficient resources to the investigation: 2021 BCSC 2324 at paras. 25, 37, 41. Crucially, the judge in that case described subsection (9.1) as "an exceptional mechanism", one that the applicant bears

the onus of justifying. And as 2021 BCSC 1323 also makes clear at para. 25, periods of inaction and delay will weigh heavily against the police in the interests of justice analysis. [46] Turning to the requirement that subsection (3) also be satisfied, counsel for the phone's owner highlights the absence of the kinds of factors that have traditionally been found to demonstrate complexity. In contrast to those cases, we are not here dealing with a large number of investigators, jurisdictions, or exhibits, an investigation that has numerous interrelated parts, or is dependent on third party assistance, as opposed to analysis within the investigators' own police force. On the basis of the material that has been disclosed, the only basis for further periods of detention is the failure of the police to move the case forward appropriately. [47] In short, it is submitted that the phone owner has spent the better part of four years in legal limbo, deprived of an item of personal property that contains a large amount of private information, for no valid reason. [48] Nor has a sealing order been sufficiently justified by any case‑specific information. Instead, it is argued that the unredacted affidavit relies on the kind of vague and generic explanations that were warned against, and found to be insufficient, in the decision of 2020 BCSC 1100 at para.

35. Discussion [49] First of all, I am satisfied that certain redacted portions of the affidavit set out, in case‑specific and quite compelling detail, how the disclosure of all of the redacted content will compromise the ongoing investigation, in light of the criteria established by the Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25 at para. 38. [50] Preferring openness by disclosing that information unquestionably poses a serious risk to that investigation's likelihood of success, which, given the matters under investigation, is an important public interest. Nothing short of restricting access to that information, in my opinion, can effectively address that risk and, at this pre‑charge stage, the benefits of the order meaningfully outweigh the limited impairment of the public's right to know. [51] The impairment of the rights of the phone owner as a presumed innocent person by the stigma of pre‑charge association with a sexual assault has been described in the unredacted version of the affidavit. It offers a further potential basis for a sealing order, but if it were the only basis being put forward, I would not uphold it in the face of an objection by the very person whom it is intended to protect. [52] My conclusion that the Sherman test for restriction on the open‑court principle has been met therefore entitles the RCMP to rely on the redacted portions

of the affidavit to support these detention applications. [53] Dealing first with the application of subsection (3), as Cst. Chouinard's affidavit demonstrates, there have unquestionably been some delays and errors in proceeding with the investigation. Cst. Primeau's other duties delayed her efforts to obtain authorization to access the phone data, then she mistakenly decided to return the phone but chose only one means of attempting to do so, before concluding that in fact it needed to be retained, and taking a further significant period to seek authorization to re‑seize it. After all of those delays, the investigators let the detention orders lapse for four months before mounting this application. [54] The only point in this unfortunate chronology on which I disagree with counsel for the phone owner is her contention that there was no authorization to detain the phone further once the attempt to rely on subsection (3) was rejected by a provincial court judge in February 2024. As I have recounted, its further detention was in fact authorized in August until November 8, so the gap was between the expiration of the three‑month detention order that followed the re‑seizure in November 2023, and the further extension application the police made in July, a period of approximately six months. Of course I do not condone gaps of any length, but it is not accurate to say that there has

been a continuous one of 15 months. [55] On an institutional level, leaving Cst. Primeau to cope with the demands of the investigation, in addition to her general patrol duties and despite her inexperience, could also potentially be classified as a failure to allocate sufficient resources to the investigation. [56] On the other hand, I do not find the initial mislabelling of the phone model or the misdating of the data extraction to be particularly meaningful in the analysis. In my opinion, they fall into the category of routine human errors, and do not imply anything about the diligence with which the necessary investigating steps were being pursued. [57] While the disclosed portions of the affidavit do show some elements of complexity, in particular the need to maintain contact with a transient complainant and to access and analyze digital evidence, the somewhat halting and mistake‑plagued manner in which the investigation proceeded might, standing on its own, have indicated that even those elements could have been addressed in a shorter time. However, it is clear from the redacted portions of the affidavit that, even if Cst. Primeau had had the time and experience to move the investigation ahead much more promptly, the complexity of the overall investigation is such that it is unlikely to have been any further ahead than it is now. [58] That complexity, in my opinion, amply

justifies the time and effort that has been required to this point, as well as a further extension for a period of time that borders on the trivial. [59] Thus, I am satisfied that, had the application been brought before the expiry of the previous detention period, the requested extension would unquestionably have been granted pursuant to subsection (3). [60] Applying the first requirement under subsection (9.1), I do not understand the phone owner's counsel to be submitting that the investigators' wish to obtain the data for trial is not objectively reasonable. The issue is rather whether the phone itself is required for trial. [61] On the basis of the redacted affidavit, I do not agree that the grounds for retaining the phone are speculative. They identify potential developments in the investigation and prosecution that seem to me to arise directly from the nature of the case, and the contingencies of proof at trial. Put another way, it is reasonable to expect that one or more of these situations will actually arise, especially an issue with respect to the relationship between the extracted data and its original source, and the actions of the technician who originally extracted it. [62] When the redacted material is considered, this conclusion becomes even clearer. Taking care not to undermine the purposes of the redactions, I can say that the scale and complexity of the

overall investigation increases substantially the number of instances in which the situations envisioned by Cst. Chouinard could arise. [63] As I see it, the more contentious issue here is whether, as in the 2021 BCSC 2325 decision, the failure of the investigators to move the case forward at the pace that they should have fatally undermines a further extension in the interests of justice. [64] My answer is closely related to what I said about the effect of the officer's errors and inaction on complexity. When one looks at the redacted portions of the affidavit and considers this investigation in its fullness, the scale of what it addresses means that the right of the authorities and the public to a proper investigation of alleged crime strongly outweighs the owner's interest in an item of his property, even at this relatively late date. [65] Further, the length of the extension being sought means that the effect of that weighing on his interest, if it is not supplanted by the need for the phone as evidence in an approved prosecution, will be perpetuated for only a minimal further period. [66] Accordingly, and despite the very able submissions on behalf of the owner of the phone, I conclude first that pursuant to s. 487.3, the unredacted version of Cst. Chouinard's affidavit which has been labelled "non‑vetted version" by counsel for the Attorney General, will be sealed and may

not be accessed except by consent of the parties or further order of the court. I see no need for any other file material to be kept from public view. [67] In addition, pursuant to s. 490(9.1), I order that the items set out in the notice of application be detained until July 30, 2025. [SUBMISSIONS BY COUNSEL RE: REQUIREMENT OF AN ADDITIONAL PERIOD FOR CHARGE ASSESSMENT] [68] THE COURT: In view of the sensible position being taken by counsel for the phone owner, which I appreciate, I will extend the period of detention for these items until Friday, August 29, that is just shy of two months. "Schultes J."