R. v. Alkahlil

2022 BCSC 974 R. v. Alkhalil

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Alkhalil, 2022 BCSC 974 Date: 20220609 Docket: 27393-164 Registry: Vancouver Regina v. Rabih Alkhalil (a.k.a. Robby Alkhalil) and Larry Ronald Amero Restriction on Publication: A publication ban has been mandatorily imposed under s. 648(1) of the Criminal Code of Canada, restricting the publication, broadcasting or transmission in any way of any portion of the trial at which the jury is not present. This publication ban applies until the jury retires to consider its verdict Before: The Honourable Justice Maisonville Ruling re Application No. 164 - Re-examination of Trial Exhibits 205 and 206 In Court Counsel for the Crown: M. Sheardown S. Dworkin A. Cochrane N. Gregoire D. Darby A. La Bar Counsel for the Accused, Rabih Alkhalil (a.k.a. Robby Alkhalil): R.S. Fowler, Q.C. K. Blok Counsel for the Accused, Larry Ronald Amero: M. Rock J. Oppal Place and Dates of Trial/Hearing: Vancouver, B.C. June 3 and 6, 2021 Place and Date of Judgment: Vancouver, B.C. June 9, 2022 [1] This application arises from Mr. Rock's expressed intention to ask S/Sgt. Bernier, while testifying, to turn on the power of two electronic devices entered as Trial Exhibits 205 and 206 in order to cross-examine him about their content. Crown counsel seeks an advance ruling that defence counsel not be permitted to do so during the examination-in-chief or

cross-examination of any witness testifying in the trial of this matter. [2] By way of brief factual background, on November 2, 2021, counsel for Mr. AlkhaIil (Ms. Blok) wrote to Crown Counsel (Ms. Gregoire) and asked that police exhibits 19LW and 58LW be brought to court so that defence counsel could enter them as exhibits at trial. Crown Counsel responded the following day as follows: I was not intending on entering the actual Exhibits re 19LW (seized from PH) or 58 LW (seized from Mercedes). I intended on tendering photos only. However, I will have Detective Wu bring them to court in the event you wish to tender them. [3] Det. Lisa Wu was eventually cross-examined on March 10, 2022 and she produced police exhibit 19LW at that time. It was discovered that the BlackBerry in the exhibit bag for police exhibit 19LW was not the BlackBerry she had seized from the Montreal Penthouse on August 8, 2012. The item was entered as Trial Exhibit 205. In a similar manner, it was discovered that the BlackBerry in the exhibit bag for police exhibit 58LW was not the BlackBerry Det. Wu had seized from the Mercedes on August 9, 2012. That item was entered as Trial Exhibit 206. Both BlackBerrys had different IMEI numbers than those seized by the police. [4] The VPD is currently conducting an investigation into how this occurred. [5] Counsel for Mr. Alkhalil cross-examined Alain Grondin, a

forensic analyst with the RCMP, on the feasibility of powering up Trial Exhibit 205 in court. Mr. Grondin testified that he always does device examinations inside a faraday enclosure, and that he would not want to do a cell phone examination in court as it would not be safe. He explained that doing so could affect the data on the device as it tried to access certain connections. This could result in records from the last time the device was powered up in a non-faraday setting being erased. [6] A/Sgt. Robin Shook of the VPD Digital Forensic Unit and Det. Lawrence Lui of the VPD indicate as well that powering up electronic devices in court has the potential to alter the data they contain. For example, A/Sgt. Shook explains that forensic best practice is to power up a mobile device for only as long as is absolutely necessary and to do so within a faraday environment for several reasons, including these: III. Prevention of automatic processes such as garbage collection/wear levelling that will change the data a. Devices that use silicon-based chips to store data have automatic processes in place to increase the longevity of the chips. This process is called wear levelling or garbage collection. This process is not able to be suspended or stopped, and although no data is modified during the process, this modifies the placement of data within the chip. Reducing the amount of time a

device is powered on will reduce the amount of data movement that occurs. IV. Prevent inadvertent deletion/modification by connection to cellular networks b. Some processes are automatically triggered by the presence of cellular networks. One example is a remote wipe function that can be triggered by a user. In this case a command is sent to wipe the memory of a phone when that phone is connected to a network. The phone will automatically log into a server (such as an Apple server), receive this command and immediately irrecoverably wipe the data on the device. [7] It is clear that trial judges have trial management power to "control the process of their court and ensure trials proceed in an effective and orderly fashion": R. v. Samaniego, 2022 SCC 9 at paras. 20-22. [8] In light of the evidence in respect of the potential for powering up a device to alter the data it contains, I rely on this trial management authority to order that defence counsel may not ask any witness, whether during examination-in-chief or in cross-examination, to power up Trial Exhibits 205 or 206. I agree with the Crown's submission that such could compromise an ongoing police investigation. [9] The proper procedure for examining exhibits, which is what defence counsel effectively seeks to do here, is pursuant to s. 605 of the Criminal Code. This avenue has already been pursued in relation to these exhibits. "Maisonville J."