Lemare Lake Logging Limited v. British Columbia (Forests and Range)

2011 BCSC 903 Lemare Lake Logging Limiited v. British Columbia (Forests and Range)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Lemare Lake Logging Limited v. British Columbia (Forests and Range), 2011 BCSC 903 Date: 20110707 Docket: S106702 Registry: Vancouver Between: Lemare Lake Logging Limited and Darryl Arsenault Petitioners And Minister of Forests and Range, the Attorney General of British Columbia on behalf of Her Majesty the Queen in Right of the Province of British Columbia, and Judicial Justice of the Peace F.D. Hodge Respondents - and - Docket: 25556 Registry: Vancouver Between: Lemare Lake Logging Limited and Darryl Arsenault Appellants v. Ministry of Forests and Range and the Attorney General of British Columbia on behalf of Her Majesty the Queen in Right of the Province of British Columbia Respondents Before: The Honourable Mr. Justice Ehrcke On Appeal from the Provincial Court of British Columbia, Lemare Lake Logging Limited v. Minister of Forests and Range (8 September 2010), Vancouver 209979-1 Reasons for Judgment Counsel for Petitioners/Appellants: K.I. Denhoff D.L. Dalke Counsel for the Respondents/Respondents Minister of Forests and Range: A. Dalmyn (January 30 only) R.G. Payne D.R. Suntjens Counsel for the Respondents/Respondents Attorney General: T.A. Mason Place and Date of Hearing: Vancouver, B.C. January 20, June 14-16, 2011 Place and Date of Judgment: Vancouver, B.C. July 7, 2011

INTRODUCTION [1] I have before me the petition (No. S106702) of Lemare Lake Logging Limited ("Lemare") and Darryl Arsenault (whom I shall refer to collectively as the "petitioners") as well as an application by the respondents in relation to that petition. At the urging of the parties, I heard at the same time an appeal (No. 25556) of a Provincial Court order pronounced by The Honourable Judge Bagnall on September 8, 2010. The petition, the application, and the appeal all deal with the issue of whether the respondents should be ordered to return to the petitioners copies of items seized pursuant to three search warrants obtained by the Ministry of Forests and Range (the "Ministry") on February 10, 2009.

FACTS [2] The facts are summarized in the amended petition. I have also read and considered the evidence filed by the parties, consisting of affidavits of Eric Dutcyvich, Marjorie Loland, Shannon Jackson, James Lochhead, Patti Allen, Graeme Jacques, and Daniel Smallacombe. [3] The petitioners harvest timber under forest tenures and thereby incur liability for stumpage with respect to Crown timber. The amount of stumpage payable is ascertained by a system of scaling and reporting. One of the important factors determining the fees payable is the percentage of minimum stumpage grade logs per load. The Ministry believed there were anomalies in the reports of Lemare with respect to the percentage of minimum grade logs, and therefore sought to obtain search warrants under the Criminal Code for an alleged offence of fraud. [4] On February 10, 2009, the Ministry obtained three search warrants by telephone or telecommunication (the "warrants") based on an Information to Obtain ("ITO") sworn by Daniel Smallacombe, a forest officer. The warrants, which were issued by Judicial Justice of the Peace F.D. Hodge (the "JJP"), authorized a search between the hours of 9:00 p.m. on February 10, 2009 and 12:00 p.m. on February 11, 2009. [5] On February 11, 2009, between 1:32 a.m. and 5:15 a.m., the Ministry executed the warrants and seized certain things from Lemare's business premises, scale site

and from 706 Nimpkish Heights Road, Port McNeill, said to be the personal residence of Darryl Arsenault. According to Mr. Smallacombe's Report to a Justice dated February 16, 2009, the warrant on the residence was executed at 1:32 a.m. [6] Among the things seized were a number of computers and optical discs. The Ministry made forensic images of the contents of the hard drives onto new hard drives, and then used data recovery techniques to locate ".lmv" files and other records of scaling. [7] On May 29, 2009, a Judicial Justice of the Peace made an order for further detention, which provided that the things seized on February 11, 2009 could be detained for a further period of eight months. [8] The proposed charges of fraud were referred to a special prosecutor for charge approval in 2009, but in December 2009, Crown Counsel declined to approve charges. [9] Although the permitted period of detention expired at the end of January 2010, the Ministry failed to return the things seized to Lemare and Mr. Arsenault. [10] Despite the fact that the ITO had alleged the commission of a Criminal Code offence of fraud over $5000, and the fact that as of December 2009 it was clear that no charges under the Criminal Code would be proceeding, on July 26, 2010 an application was brought by the Commissioner (under the Forest Act, R.S.B.C. 1996, c. 157) for an order under s. 490(15) of the

Criminal Code to permit the Commissioner to examine the things seized by the Ministry. [11] In response, on August 6, 2010, the petitioners applied to the Provincial Court under s. 490 of the Criminal Code for the return of the things seized and for return of all copies of the things seized. [12] On August 11, 2010, the Ministry applied for further detention of the things seized, and the Commissioner brought a new application under s. 490(15). [13] In support of its application for further detention, the Ministry relied on an affidavit of Daniel Smallacombe sworn August 9, 2010. In that affidavit, Mr. Smallacombe acknowledged at paragraph 19 that he was not a peace officer. [14] The various applications were heard by Provincial Court Judge Bagnall on August 18, 2010. On September 8, 2010, Judge Bagnall ordered the return of the things seized by the Ministry, but she found that she did not have jurisdiction to order the Ministry to return copies of the things seized. She dismissed the Ministry's application for an order for the further detention of things seized and for permission for the Commissioner to examine those things. [15] In his affidavit #1 sworn December 29, 2010, Mr. Smallacombe deposed that although there will be no criminal charges, he has been informed that there has been a continuing investigation of contraventions of the Forest Act, and the government may proceed under s. 71 of the Forest and Range Practices Act, S.B.C. 2002, c. 69, which may lead to a hearing by a designated decision maker. He deposed as well that access to the scale records is required to conduct an audit under Part 11.1 of the Forest Act.

ISSUE [16] In general terms, the issue with respect to all of the matters before me is the same, namely, whether the Ministry should be permitted to retain copies of the materials seized pursuant to the search warrant, or whether it should be required to return or destroy those copies. [17] The petitioners submit that this relief should have been granted by Judge Bagnall, and that is the basis for the appeal of her order. In the alternative, the petitioners seek an order under the petition that the search warrants be quashed, and that the materials be returned. [18] The Ministry, in its notice of application, seeks an order for the preservation and detention of the property, and in particular, the forensic image of the computer data files. [19] I shall deal with each of these in turn. THE APPEAL OF JUDGE BAGNALL'S ORDER [20] On October 7, 2010, Lemare and Mr. Arsenault filed an appeal to this Court pursuant to s. 490(17) of the Criminal Code from the order of Judge Bagnall made under s. 490(9). The relief sought on the appeal is: an order that the Minister of Forests and Range return to Lemare Lake Logging Limited and Darryl Arsenault all copies of things seized pursuant to search warrants issued by F.D. Hodge, Judicial Justice of the Peace, on February 10, 2009 [21] The grounds for appeal are stated in this way: the learned application judge erred in holding that section 490

of the Criminal Code does not give the Provincial Court jurisdiction to order the return of copies of things seized. [22] The question raised on the appeal is a question of law alone, and the standard of review is correctness. [23] In her judgment dated September 8, 2010, Judge Bagnall referred to the fact that the search warrants were issued in relation to potential criminal charges of fraud, but that no such charges were commenced, nor was it contemplated that they would be commenced. She noted that no charges under any other statutes have been laid. She found that the proposed audit does not fall within the definition of "proceedings" in s. 490(3) of the Criminal Code. She concluded that the Ministry's continued detention of the items has been unlawful since February 11, 2010, and she declined to make the order requested that Ministry of Finance personnel be permitted to inspect the things seized. She declined to make an order for the continued detention of the things seized under s. 490(9.1), and she ordered "the return of all of the things seized which remain in the custody of the Ministry to Lemare Lake Logging Limited and to Darryl Arsenault." [24] Those aspects of her order are not challenged by the appellants on this appeal. What is challenged is Judge Bagnall's decision not to order the return of all copies of the things seized. That is a matter that continues to

concern the parties, because all of the original items seized have already been returned, and it is only the copies that the Ministry continues to retain. [25] In this regard, Judge Bagnall wrote at paras. 21-23: [21] I turn to the application made by Lemare Lake Logging Limited and Mr. Arsenault respecting the copies made of the things seized by the Ministry. The plain wording of the section gives this court jurisdiction to make orders disposing of things seized and detained in various ways, but no jurisdiction is given respecting copies made of the things seized. I note that s. 490(13) actually contemplates that copies of things seized may be made and retained. The section reads: The Attorney General, the prosecutor or the peace officer or other person having custody of a document seized may, before bringing it before a justice or complying with an order that the document be returned, forfeited or otherwise dealt with under subsection (1), (9) or (11), make or cause to be made, and may retain, a copy of the document. [22] In addition, s. 490(14) contemplates ongoing and indefinite retention of the copies in that it provides for the admission of such copies in evidence. [23] I therefore decline to make any order respecting copies of the things seized which may have been made by the Ministry. [26] Earlier in her reasons, Judge Bagnall noted that the Provincial Court lacks

inherent jurisdiction and has only those powers that are specifically conferred by statute. She wrote at para. 7: [7] All of the present applications are brought under various subsections of s. 490 of the Criminal Code, which section constitutes what can only be described as a mini-code respecting the disposition of items seized under the authority of a search warrant. I wish to highlight that these applications have been brought in Provincial Court, which is a statutory court lacking inherent jurisdiction. [27] Judge Bagnall was clearly correct in concluding that a judge of the Provincial Court had no jurisdiction to order a return of copies of items seized unless such power were specifically granted to the Court by statute, more particularly, s. 490 of the Criminal Code: see R. v. Raponi, 2004 SCC 50, [2004] 3 S.C.R. 35. [28] The question on this appeal therefore is simply one of statutory interpretation: was Judge Bagnall correct in finding that on a proper construction, s. 490 deals only with the return of actual items seized, and does not confer upon the Provincial Court a power to order return of copies of things seized? [29] Lemare and Mr. Arsenault rely on R. v. United Grain Growers Ltd. (1996), 39 Alta. L.R. (3d) 285 (Q.B.), where Veit J., discussing the principles underlying s. 490, wrote at paras. 19-20: 19. In my view, those principles would be totally undermined if

the State were entitled, as soon as it seized documents, to make copies of them, to certify the copies, and to introduce those certified photocopies in subsequent proceedings. What would then be the point of the structure established by Parliament in s. 490? The sophisticated balancing by Parliament of the conflicting interests of the State on behalf of the community and of persons suspected of having committed crimes or breaches of statutes other than the Criminal Code - as demonstrated by the subtle increase in the onus on the State at different temporal stages of an investigation - would be treated by the State as a complete waste of effort. No protection would be achieved for those from whom the documents are seized. No incentive would have been created to ensure that criminal process, with its attendant discomforts, anxieties and pressures, should be subject to a reasonable pace.

20. I agree with the position taken by U.G.G. and Chapeau on this issue. In particular, I agree that sense can be made of the distinction created by Parliament between photocopies at an early stage of the retention of documents and the situation after the seized documents have been in the possession of the State for one full year, and no charges have yet been laid. For example, during an investigation, it may be that the person from whom the documents were seized requires the documents: to make an income tax filing, to make an insurance claim, to produce in civil proceedings, etc. It is too early at that stage to interfere with, or restrict, or thwart, or pressure the State's investigation of the documents; the State must be allowed to have a photocopy to replace the originals. All of that is within the time limit of one year granted to the State to carry out its investigations. If, however, once that one year period has elapsed, the State still has not laid charges, and the investigation is not complex, then the State must return all of the documents - whether originals or photocopies - to the rightful owners of the seized documents. [Underline added.] [30] However, one year later, in R. v. Cartier (1997), 197 A.R. 70 (Q.B.) Dea J. questioned correctness of the decision of Veit J. in United Grain Growers and declined to follow it. Referring to that decision under the name

"Chateau #2", Dea J. wrote at para. 19: 19 The second area of concern with the Chateau #2 is, I think, of more significance. The burden of Chateau #2 is found in paragraphs 19 and 20 (supra). The last sentence in paragraph 19 says: No incentive would have been created to ensure that criminal process, with its attendant discomforts, anxieties and pressures, should be subject to a reasonable pace. Thus the court in Chateau #2 sees. s. 490 as a sort of limitation statute on criminal investigations. That concept is built into the "purposive construction" which the applicant argues is the appropriate "purposive construction" for s.

490. With respect, that is not correct. Section 490 does not purport to limit the time for the investigation of crime. It deals with the possession of "seized things". It wants such things to be returned expeditiously not to limit the time of investigation of crime but because the rightful owner will want and may need the "seized things" in his normal business especially if they consist of books of account and record, contracts, wills and the like. By the use of s. 490(13) and (14) the section may compel the seized things to be returned without adversely affecting the ability of the public authorities to continue police investigations and to use - through copies - the seized things in evidence should a prosecution be instituted. To read more into the section is not, in my view, warranted. [31] Similarly, the reasoning in United Grain Growers has not been followed in British Columbia. In Bleet v. Canada (Attorney General), [1997] B.C.J. No. 3195 (S.C.), Williamson J. concluded that the approach of Dea J. in Cartier should be preferred to that of Veit J. in United Grain Growers. [32] More recently, Bleet was followed by Warren J. in R. v. Bromley, 2002 BCSC 149. [33] In my respectful view, therefore, Judge Bagnall was correct in her interpretation of s. 490, and she correctly concluded that as a Provincial Court Judge without inherent jurisdiction, she did not have the power to order a return of copies of the things seized by the Ministry. [34] The appeal from Judge Bagnall's order is therefore dismissed.

THE PETITION [35] In the amended petition, the petitioners seek judicial review of the decision of the JJP to issue the search warrants. The relief sought is that the warrants be quashed and that all copies of the things seized be returned to the petitioners. [36] The principles to be applied on an application to quash a search warrant were summarized in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, and more recently in R. v. Campbell, 2011 SCC 32 at para. 14: [14] In order to comply with s. 8 of the Charter, prior to conducting a search the police must provide "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search" (Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 168). The question for a reviewing court is "not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence" to permit an issuing justice to authorize the warrant (Morelli, at para. 40). In conducting this analysis, the reviewing court must exclude erroneous information from the ITO and may have reference to material properly received as "amplification" evidence (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 58; Morelli, at para. 41). The accused bears the burden of demonstrating that the ITO is insufficient (Quebec (Attorney General) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708, at para. 68; Morelli, at para. 131). [37] The petitioners advanced four bases for seeking to have the warrants quashed. They alleged that: 1. There was no jurisdiction to issue the warrants since Mr. Smallacombe was not peace officer nor authorized to investigate offences under the Criminal Code.

2. The warrants and ITO do not describe the offence with sufficient particularity.

3. There was no basis for authorizing a search at night.

4. There were no reasonable and probable grounds to issue the warrants in light of Daniel Smallacombe's failure to make full and frank disclosure of all material facts. [38] The last point was particularized in the petitioners' materials as follows: 1. Mr. Smallacombe's Information suggested that there was something nefarious in taking the handheld computers to Mr. Arsenault's home, but he failed to disclose that: (i) the Ministry required that Lemare use software that prevents a user from altering the scale data once a load is digitally signed; and (ii) Lemare was using the Ministry‑approved software.

2. Mr. Smallacombe's Information says Lemare was not printing scale returns as required under its Scale Site Authorization, but he failed to disclose that: (i) the Scale Site Authorization allows Lemare to keep electronic copies of scale returns; and (ii) from January 26 to February 10, 2009 Lemare was printing scale returns at the scale site.

3. Mr. Smallacombe's Information says there were two loads with the same load number, but he fails to disclose that there are several legitimate reasons why this might occur.

4. Mr. Smallacombe's Information says that scalers were deleting scale records from the handhelds but he failed to disclose that it would be permissible to do so once the scale records have been downloaded from the handhelds.

5. Mr. Smallacombe failed to disclose that there may be legitimate reasons why Mr. McGraw might have observed a high percentage of high grade timber on the sort deck even though Lemare reported a high percentage of low grade timber on that day. For example, the timber may have been merchandized, low grade timber may have already been removed or timber may have been pre-sorted in the bush.

6. Mr. Smallacombe presented statistics in a misleading way, by failing to disclose that: (i) check scales are not used to assess the overall accuracy of a company's reporting of stumpage; (ii) the Ministry estimated (in a "cruise report") that there would be 21% minimum stumpage timber for timber mark 80082; (iii) the Ministry allowed for a margin of error in the cruise estimate; and (iv) the Ministry would not normally consider the variation between Lemare's average of 34% minimum stumpage for a short period to be an unusual variation from the cruise estimate of 21%. [39] As set out above, the petitioners' first basis for setting aside the search warrants is that they were obtained by telephone, and Mr. Smallacombe, not being a peace officer, lacked the statutory authority to apply for a telewarrant. The respondents concede that Mr. Smallacombe is not a peace officer. [40] Section 487(1) of the Criminal Code provides: 487 (1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place (a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed, (b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts

of a person who is believed to have committed an offence, against this Act or any other Act of Parliament, (c) anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without search warrant, or (c. 1) any offence-related property, may at any time issue a search warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the search warrant (d) to search the building, receptacle or place for any such thing and to seize it, and (e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1. [41] The relevant portions of s. 487.1 provide: 487.1 (1) Where a peace officer believes that an indictable offence has been committed and that it would be impracticable to appear personally before a justice to make application for a search warrant in accordance with section 256 or 487, the peace officer may submit an information on oath by telephone or other means of telecommunication to a justice designated for

the purpose by the chief judge of the provincial court having jurisdiction in the matter. (2) An information submitted by telephone or other means of telecommunication, other than a means of telecommunication that produces a writing, shall be on oath and shall be recorded verbatim by the justice, who shall, as soon as practicable, cause to be filed, with the clerk of the court for the territorial division in which the search warrant is intended for execution, the record or a transcription of it, certified by the justice as to time, date and contents. ... (4) An information submitted by telephone or other means of telecommunication shall include (a) a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice; (b) a statement of the indictable offence alleged, the place or premises to be searched and the items alleged to be liable to seizure; (c) a statement of the peace officer's grounds for believing that items liable to seizure in respect of the offence alleged will be found in the place or premises to be searched; and (d) a statement as to any prior application for a search warrant under this section or any other search warrant, in respect of the same matter, of which the peace officer has knowledge. (5) A justice referred to in subsection (1) who is satisfied that an information submitted by telephone or other means

of telecommunication (a) is in respect of an indictable offence and conforms to the requirements of subsection (4), (b) discloses reasonable grounds for dispensing with an information presented personally and in writing, and (c) discloses reasonable grounds, in accordance with subsection 256(1) or paragraph 487(1)(a), (b) or (c), as the case may be, for the issuance of a warrant in respect of an indictable offence, may issue a warrant to a peace officer conferring the same authority respecting search and seizure as may be conferred by a warrant issued by a justice before whom the peace officer appears personally pursuant to subsection 256(1) or 487(1), as the case may be, and may require that the warrant be executed within such time period as the justice may order. [42] The provisions of s. 487.1 are clear: no one other than a peace officer may apply for a telewarrant, and a Justice of the Peace has no authority to issue a telewarrant to anyone other than a peace officer. [43] As it is conceded that Mr. Smallacombe is not a peace officer, he had no authority to apply for a telewarrant, and the JJP had no authority to issue the warrants to him. On that basis, the three warrants must be quashed: see Timberwolf Log Trading Ltd. v. British Columbia, 2011 BCSC 142. [44] As the warrants have thus been quashed on the basis that Mr. Smallacombe is not a peace office, it is not

necessary to comment on the other bases advanced for quashing the warrants. Indeed, as the parties have indicated that there may be further litigation between them in the future, it is preferable that I refrain from making unnecessary findings of fact in relation to Mr. Smallacombe's credibility. [45] The remaining question on the petition is what should become of the copies made by the Ministry of the items seized pursuant to the warrants. [46] As it is now clear that the telewarrants were improperly obtained, the items taken pursuant to those warrants were seized without legal authority. The seizures were unreasonable and contrary to s. 8 of the Canada Charter of Rights and Freedoms. In light of this fact, and the fact that the purported purpose of seizing the items was to further a criminal investigation of fraud, and as it is now clear that no criminal charges are going to proceed, it is difficult to understand a basis upon which the Ministry should be permitted to retain the fruits of the illegal search and seizure. [47] If the original items had not already been returned, I would have ordered their return. [48] As to the copies that have been made by the Ministry, the respondents submit that the information contained in those copies may be useful in conducting an audit pursuant to Part 11.1 of the Forest Act and as evidence in administrative proceedings under the Forest

and Range Practices Act and the Forest Act. They further submit that since the original items seized have been returned, the petitioners have not shown they will suffer any prejudice from the failure of the Ministry to return the copies. [49] I do not find the respondents' submissions persuasive. I do not agree that the Ministry should have the benefit, for the purposes of an audit or administrative proceedings, of information that was obtained illegally, and that would not have been in the Ministry's possession but for the unreasonable seizure. The Ministry should not now be in a more favourable position because of their unreasonable seizure than it would have been apart from the unreasonable seizure. [50] Nevertheless, the respondents submit that the information now in the Ministry's possession by virtue of retaining the copies, is information that they could have obtained by legal means apart from the Criminal Code telewarrants. They refer to various provisions of the Forest Act, such as ss. 142.2, 142.21, 142.3, and 142.31, by which they say they could lawfully obtain the material that is already in their possession as a result of their retention of the copies of what was unreasonably seized pursuant to the telewarrants. [51] I express no opinion on the question of whether those sections of the Forest Act, or other statutory provisions, might provide a basis for the

respondents to obtain the same information that they presently possess. Even if they do, that would not justify allowing the Ministry to retain copies of what was unreasonably seized by means of the Criminal Code telewarrants. Rather, if the Ministry has an alternative, legal means of obtaining the same information, then it is up to them to execute those alternative procedures which, as I understand it, they have not yet done, despite having been in possession of the copies for more than a year. [52] The respondents have referred to R. v. Silverstar Energy Inc, 2004 BCSC 1115. In that case, Allan J. wrote at paras. 38-39: [38] The Crown requests a reasonable period of time before it is obliged to return the copies in order that it may consider preparing fresh material sufficient to obtain a search warrant for those items. Such an order was made in Re Dobney Foundry Ltd. et al. and the Queen (No. 3) (1986), 29 C.C.C. (3d) 285, [1987] 1 W.W.R. 281 (B.C.C.A.). The Court noted at 287 that where warrants were quashed because they authorized the seizure of documents unrelated to the alleged offence, a fresh warrant would not be an abuse of process. The documents in question in that case were in one location and the appellants did not require them for their business (at 287-288). [39] In this case, I order that copies of the seized documents and any other items be returned to the

appellants within 14 days unless the Crown successfully obtains a fresh search warrant within that time. [53] Here, the respondents do not propose to obtain a fresh search warrant, but rather to avail themselves of administrative procedures, such as those under ss. 142.2, 142.21, 142.3, and 142.31 of the Forest Act. [54] Despite the amount of time that has already elapsed since the material was initially seized and copied, I am prepared to permit the Ministry a further 14 days before returning the material, but at the end of the 14 days, all items seized and all copies of such items must be returned to Lemare at Lemare's place of business. This will permit the respondents to attempt to take whatever legal processes they believe are available to them to re-seize the material. [55] The petition is granted on those terms.

THE APPLICATION [56] The respondents, in their application dated December 23, 2010, sought: An order for the preservation and detention of the property which the petitioners sought to have "returned" destroyed or suppressed, which is a set of computer data files called a Forensic Image presently held by the Director of Compliance and Enforcement for all proceedings in Court, or before any commission, tribunal agency or statutory decisions maker. [57] I am not satisfied that a basis has been established for granting such an order, and the application is dismissed.

SUMMARY [58] To summarize. The appeal from the decision of Judge Bagnall is dismissed. The application of the respondents dated December 23, 2010 for preservation and detention is dismissed. The petition is granted, to the extent that the search warrants are quashed, and within 14 days, all items seized and all copies of such items must be returned to Lemare at Lemare's place of business. The Honourable Mr. Justice W.F. Ehrcke