Her Majesty the Queen v. Caci, 2020 BCPC 239

Citation: Her Majesty the Queen v. Caci 2020 BCPC 239 Date: 20201214 Police File No: SED 2020-1239 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF AN APPLICATION FOR AN ORDER FOR THE FURTHER DETENTION OF THINGS SEIZED PURSUANT TO SECTION 490(2) OF THE CRIMINAL CODE AND Items seized from Artan CACI and Gerart CACI at Highway 1 near Kamloops, British Columbia REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: A. Varesi Counsel for A. Caci and G. Caci: N. Selamaj Place of Hearing: Kamloops, B.C.

Date of Hearing: November 13, 2020 Date of Judgment: December 14, 2020 [ 1 ] This is an application by the crown on behalf of the Royal Canadian Mounted Police for an order for the further detention of things seized pursuant to s. 490(2) of the Criminal Code . Artan and Gerart Caci oppose the application. [ 2 ] Mr. Varesi relied upon s. 490(2) (

a) to say that the nature of the investigation warranted further detention of the items. Section 490(2) (

a) provides as follows: 490.

(2) Nothing shall be detained under the authority of paragraph (1)(

b) for a period of more than three months after the day of the

seizure, or any longer period that ends when an application made under paragraph (

a) is decided, unless (

a) a justice, on the making of a

summary application to him after three clear days notice thereof to the person from whom the thing detained was seized, is satisfied that, having regard to the nature of the investigation, its further detention for a specified period is warranted and the justice so orders; or (

b) proceedings are instituted in which the thing detained may be required. [ 3 ] Mr. Selamaj argued that there were a number of reasons why the order should not go. When the initial extension was issued, the applicant had not complied with s. 490(2) .

Service was not effected at least three clear days before the initial extension was granted; the court had lost jurisdiction to hear the application; and the material is deficient to support an extension in any event. [ 4 ] The history of the procedures followed on this file are unsatisfactory. [ 5 ] The items that are the subject of this application were seized on March 15, 2020. The application for detention of those items was filed on April 1, 2020. An order for detention of things seized was made on April 3, 2020 upon the application of Cst. Eric Thompson.

That detention order expired on June 15, 2020. [ 6 ] Cst. Thompson deposed that on June 5 he notified Gerart Caci by telephone of the Notice of Application to extend the order he intended to make. He gave him the scheduled application hearing date and time to extend the detention order. Gerart Caci informed Cst. Thompson that he would notify Cst. Thompson if he wished to contest the application. He provided his father Artan Caci’s phone number as well. [ 7 ] Cst. Thompson called Gerart Caci again on June 10, 2020. Gerart Caci confirmed that he had discussed the application with Artan Caci.

He also explained to Cst. Thompson that his father turns off his phone while he is driving and may have missed Cst. Thompson’s calls. [ 8 ] Cst. Thompson called Artan Caci a number of times between June 5 and June 10, 2020, including leaving messages with him that the purpose of the call was to provide Artan Caci with notice of an application. [ 9 ] An application was filed on June 11, 2020 to extend the order for detention of items seized until July 15, 2020 in order for the constable to serve the application for extension of detention of the things seized on all the parties.

That order was made by a judge on the same day. It was both heard and made before the original order expired. I cannot “review” that order. The effect of the order was to extend the order for detention of the seized items to July 15, 2020. [ 10 ] On June 13, 2020, Cst. Thompson became aware that Gerart Caci had a lawyer, Nelson Selamaj. In his communication, he asked for Mr. Selamaj to speak to his client about any other exhibits that Gerart Caci wanted returned. [ 11 ] On June 20, 2020, Cst.

Thompson contacted the Kamloops court house and requested a hearing for July 15, 2020 for an extension of the Detention of the Things Seized. The application was filed on June 23, 2020. Cst. Thompson subsequently obtained Mr. Selamaj’s consent to serve Mr. Selamaj by e-mail. [ 12 ] On June 30, 2020, Cst. Thompson served Gerart Caci’s lawyer, Nelson Selamaj, with the notice of the application. [ 13 ] On June 30, 2020, Cst. Thompson also attempted to contact Artan Caci again. He notified Artan Caci of the date and time of the application in his voice mail message.

He also requested Toronto Police Service to serve the Notice of Application on the Cacis. [ 14 ] On July 2, 2020, Mr. Selamaj’s office advised Cst. Thompson that personal service of the Notice of the Application was not necessary. This would be with respect to Gerart Caci only. Mr. Selamaj did not act for Artan Caci. [ 15 ] Certain exhibit items to be returned to the Cacis as well as the Notice of the Application were delivered to the Caci home in Toronto on July 6, 2020 by Purolator courier. [ 16 ] On July 7, 2020, a Toronto police officer served Artan Caci with the notice of the application which Mr.

Caci signed, consenting to the order sought. [ 17 ] On July 14, 2020, Cst. Troake of the Toronto Police Services served Gerart Caci with the Notice of Application, which he signed consenting to the order sought. I find this curious because Mr. Selamaj had already indicated that personal service of Gerart Caci was not required. Also, Cst. Thompson is now aware at this point that Gerart Caci has counsel. [ 18 ] Cst. Thompson’s affidavit of July 14, 2020 attaches the Notice of Application with Gerart Caci’s consent endorsed and dated July 14, 2020.

I do not have any Affidavit of Service or Consent signed on a Notice of Application for Artan Caci. However, Cst. Thompson deposed that the Toronto Police Service advised him they had served the notice on Artan Caci on July 7, 2020, obtained Artan Caci’s consent and mailed the same to Cst. Thompson. This is unchallenged. [ 19 ] I am not sure why this affidavit was not prepared and served with the Notices of Application. Anything filed in support of an application should be served with the application itself. [ 20 ] On July 14, 2020, Cst. Thompson swore an affidavit setting out the facts of the case.

It was filed that same date. Certainly there had been a significant amount of evidence seized including drugs, drug paraphernalia, and electronic devices. The investigation is not otherwise complex on its face. [ 21 ] On July 15, 2020 at the hearing of the application, the court ordered Mr. Gerart Caci’s expired Albanian passport be returned to him. The extension order was also granted to September 14, 2020.The order was validly made given the consents and timing of the hearing.

[22] September 14, 2020 came and went with no application for extension. On September 9, 2020, crown recommended a furtherextension be sought. That application was not filed until September 10, 2020 and was set for September 17, 2020. I do not know why itwas not set sooner. The order expired before the hearing date. [23] On September 16, 2020, Cst. Eric Thompson filed a further affidavit in support of the applications. He does not appear to haveserved it on any of the parties or upon Mr. Selamaj. Mr.

Varesi also did not have a copy of that affidavit. [24] The application was adjourned from September 17, 2020 to fix a date for an opposed hearing. The date was set for October 30,2020 but was adjourned due to lack of court time. The next date was ultimately set for November 13, 2020. [25] Apart from this

section itself, I am also guided by decisions provided by counsel being Further Detention of Things Seized Re:Price, Van den born, Ballantine, Manastyrski and Wallis, 2020 BCSC 1067 , 2020 B.C.S.C. 1067; and R. v. Theriault et al.,2015 NBPC 9 , 2015 N.B.P.C. 09 . [26] The Price, et al case is a decision essentially about the distribution and exportation of cannabis. The court had affidavit materialbefore it that set out the required steps that had been completed, substantially completed and that remained to be done. A report to CrownCounsel had been filed. The disclosure was quite voluminous.

The application in that case was made under s. 490(3). Of that application,the court said this at paragraph 11: [11] Essentially, in order for this application to succeed, I must be satisfied “having regard to the complex nature of the investigation,that the further detention of the things seized is warranted”. Accordingly, applications of this nature often turn on an analysis of thedetails of the investigation and whether that investigation is properly characterized as complex. [27] This application is not brought under s. 490(3) although it should have been, since it was a further extension.

However, Mr.Varesi did argue the investigation is complex. The analysis of what constitutes complexity is found at paragraph 14 of the Price, et al.decision: [14] The most helpful discussion of the concept of complexity in the context of an application of this type is found in the decision ofJustice Durno in Canada Revenue Agency v. Nathaniel Okoroafor, 2010 ONSC 2477, where he conducted a thorough canvass of therelevant authorities. At paras. 17 – 23, he articulated a comprehensive statement of the principles to be applied to the analysis.

Amongthe points he identifies which are applicable to the application at bar are these: • The onus is on the applicant to establish the complexity of the investigation and the need for further detention. • The court must focus on the issue of how the complexity impacts the need for continued detention. • This Code provision does not place time limits on police investigations. • In assessing the complexity of the investigation, the court may consider what work is yet to be done, the estimated time forcompletion and whether the work should reasonably have been done earlier. • Essentially, the court must ask whether it is a complex investigation requiring further detention or a non-complex investigationthat investigators have had insufficient time to complete.

The former leads to further detention; the latter does not. • A complex investigation is one that has many varied interrelated parts, patterns, or elements and consequently is hard tounderstand fully. • Among the factors that have supported a conclusion that the investigation was complex are the number of police services and/orgovernment departments involved; whether the investigation requires the assistance of lawyers, accountants, computer technicians and/orother professionals to decipher the documents or for other purposes; whether the investigation requires the cooperation of police servicesother than the applicant; and that the investigative agency has no control over the timely responses of third parties. • In assessing whether the complexity of the investigation requires further detention, the absence of evidence of “foot dragging”,other delay, procrastination, prejudice and bad faith are relevant considerations as is the training and experience of those involved in theinvestigation, the time dedicated to date by those persons, and the need for further investigation.

Whether additional human resourceswould have sped up the process or likely delayed it is also a consideration. • Factors that have not supported a conclusion that the investigation was complex include the fact that insufficient resources havebeen assigned to the investigation and that voluminous material must be reviewed and or that the investigators did not have enough timeto fully review the documents seized. [28] The court considered the large scale investigation and multiple sites as a factor but not a determinative one in deciding whetherthe matter was complex.

A more significant factor appeared to be that the investigation entailed specialized assistance of a number ofpolice services and departments. This included firearms experts, DNA experts, drug recognition experts, and the Digital ForensicServices Branch. The court recognized that each of those agencies would have their own workloads and priorities impacting proceedingwith the investigation in a timely fashion. [29] Finally, the court also acknowledged that the COVID pandemic may have impacted the standard operating practices to someextent.

In conclusion, the court found no laches, bad faith or lack of resources, recognizing that this was also not alleged by theRespondents. [30] In Theriault, the court had an application for further detention that was to expire on October 1. The notice of application wasfiled on September 5 and served on September 16 for a return date of September 28. A replacement application was then filed onSeptember 22, changing the hearing date to September 30. On September 30, with counsel for Mr. Theriault and the Attorney General

present, the application was adjourned to October 8. In other words, the order for detention of things seized had expired before thehearing. [31] Mr. Theriault opposed the application for extension because the original extension of the detention order issued on July 6 wasalready “illegal” as it was issued without jurisdiction, being held five days after the expiry of the first detention period; and that the courthad no jurisdiction to hear the second application because its detention period had ended on October 1, 2015. [32] The court held that because Mr.

Theriault had consented to the July 6, 2015 order, it triggered s. 490(3.1) of the Criminal Codeand was therefore valid. That is the same as the case before me. [33] At paragraph 22, the court sets out the requirements of s. 490(2) as follows: [22] The second issue raised that is relevant to the jurisdiction of the Court is whether the requirements of section 490(2) werecomplied with by the Attorney General. According to section 490(2), a party seeking further detention needs to: 1 - file a

summary Notice of Application with Court; 2 - obtain a hearing date; and 3 – serve the person from whom the things detained was seized with the Notice at least three clear days before the date of the hearing; All of this before the expiration of the previous detention order. [34] With respect to timing, the court said this at paragraph 24 citing from R. v. Theriault as follows: [24] In R. v. Hickey [2003] N.B.J. No. 118, Justice McIntyre, in addressing the issue of the timeliness of the Application, reviewedthe decision of Legg J. in R. v. Papalia (BC SC), [1987], 38 C.C.C. (3d) 37 (which was decided prior to the amendment of section 490(2)(

a) that came into force on April 1st, 1995) and the comments made by Justice Hoyt of the N.B.C.A. in R.v. Mandate Erectors and Welding Ltd et al (NB CA), [1995], 163 N.B.R. (2d) 206 and said as follows: 16 In my view, the comment of Hoyt, C.J.N.B. in Mandate Erectors that the amendment to paragraph 490(2)(

a) gave statutory effect tothe decision in R. v. Papalia should not be interpreted to mean that the application could be heard outside the three-month period withoutloss of jurisdiction. His comments with reference to the decision in R. v. Papalia quoted above make it clear that he was in disagreementwith the view that “…the time limits in s. 490(2)(

a) are suspended pending the hearing of an application for further detention.” Itappears clear to me that the only part of the decision in Papalia to be given statutory effect is Legg J.’s conclusion that the decision of thejustice or the judge may extend outside the three-month period without loss of jurisdiction.

The three-day notice has to be given and theapplication heard prior to the expiry of the three months. (…) Following the hearing of the application within the statutory period, the justice or the judge may now with the 1995 amendmentadjourn for decision to a date outside the three-month period without loss of jurisdiction. [25] In my view, the decision of Justice McIntyre in R. v. Hickey (supra) should not be interpreted to mean that the Applicationcannot be adjourned outside the previous detention period to allow time, as the case may be, to complete the hearing.

If an adjournmentis necessary in the Court’s discretion, then section 490(2) provides that the previous detention period will end when the Application forfurther detention is decided. This

interpretation of section 490(2) will allow the necessary flexibility that parties and/or the Court may,at times, need to properly address issues raised in some of those applications. [26] To that effect, I quote with approbation Judge Allen in R. v. Newport Financial Pacific Group S.A.

(2003) ABPC 80 Can LIIat paragraph 126-11: Section 490(2) provides a time limit of three months from the date of seizure as one alternative. Another alternative is “or any longerperiod that ends when an application made under paragraph (

a) is decided”. This latter alternative means that as long as the applicationis returnable prior to expiration of three months from seizure of these items then it may be adjourned to allow time for the proceeding tobe completed. [35] The consents obtained in the case before me cure the service issues with respect to both Messrs. Caci not only with respect to thelateness of the service for the July 15 application but for the prior one as well. That is the effect of section 490 (3.1).

The order extendedthe time for detention of the items seized to September 14, 2020. [36] However, the application before me was scheduled to be returnable after the existing order already expired. Jurisdiction is lost.There are no consents to save that jurisdiction and the application must fail. [37] If I am wrong and the extension order can be validly made, I must balance the legitimate interests of the person lawfully entitledto possession of the items seized, and the public interest in having this investigation conducted properly. [38] In his affidavit filed July 14, 2020, Cst.

Thompson described the nature of the investigation. The precise details are not requiredfor this application. Broadly speaking, Artan Caci was driving a commercial vehicle when he was stopped for a vehicle inspection. Hisson, Gerart Caci, was a co-driver in the vehicle. Due to discrepancies in the log book, the Commercial Vehicle Safety EnforcementOfficer Hardy searched the vehicle’s driver compartment. During the course of that search, Mr. Hardy observed some garbage bags inthe sleeper that he thought were suspicious. He contacted the RCMP. Cst. Thompson was one of those responding officers. [39] The Messrs.

Caci were detained for a drug investigation. [40] Following a review of the investigation conducted by Mr. Hardy and his own review of the log books, Cst. Thompson then

arrested the Cacis for possession for the purposes of distributing cannabis. This led to a further search of the vehicle incidental to the arrest. In the course of that search, Cst. Thompson found bags of cannabis bud, bricks of suspected cocaine, and a box of suspected fentanyl, cocaine and methamphetamine. He seized six cellular phones, a GPS device and SIM cards. The exhibit list is comprised of close to 216 pages. Much of it includes drugs and drug paraphernalia. [ 41 ] Cst. Thompson deposed that he has reasonable grounds to believe that the following offences had been committed:

a) Possession for the purpose of trafficking a controlled drugs and substance contrary to s. 5(2) of the Controlled Drugs and Substances Act ; and

b) Possession for the purposes of distributing cannabis contrary to s. 9(1) of the Cannabis Act . [ 42 ] Cst. Thompson then set out the steps that were taken following the arrest. During the course of March, he contacted Canada Immigration to determine if the Cacis were citizens; interviewed the registered owner of the semi unit; and processed the exhibits seized.

In the month of April, he completed the Report to Justice and Property Reports; contacted the crime analyst to obtain information on the Cacis, the vehicle, the business and other names in the vehicle to assist in providing a nexus of criminal element; requested that the interviews he conducted be transcribed; prepared an Information to Obtain a Search Warrant to search the electronic devices (this was on April 27, 2020) and successfully obtained that search warrant on April 29, 2020. Cst. Thompson executed the warrant on May 4, 2020.

He also sent a request to a trained member to complete the data extractions on the electronic devices and cell phones. None of this seems to be an unreasonable amount of time to undertake these various steps. [ 43 ] Some of the personal items were returned to the Cacis while the bulk of the items were required for further investigation. [ 44 ] In his affidavit sworn July 14, 2020, Cst. Thompson deposed that the phones were being processed by Cst. Aaron Penner who had examined some cell phones, SIM cards and the GPS, while four remaining devices had to be examined. Cst.

Penner had difficulties connecting the Motorola device which contained text messages in another language. He had to conduct a manual search, finding the text messages and pictures of a marijuana grow operation. He advised Cst. Thompson that the text messages would have to be translated and sent to “Tech Crime” for further analysis. Similarly, one of the Blackberry’s would not hold a charge or turn on so it would have to be sent to Tech Crime for analysis. Some of the SIM cards were passcode protected and would also have to be sent to Tech Crime for a further analysis. [ 45 ] Cst.

Thompson deposed that due to COVID-19 the forensic lab was not working at full capacity. There is no real explanation of why this is except to say there was a delay in getting items analysed. He was still awaiting the drug samples report. The suspected drugs would not be returned to the Cacis anyway, so this should not impair the progress of the investigation with respect to the other items seized. [ 46 ] As I noted, Cst. Thompson has deposed that due to the global pandemic it has made the process of investigation slower but does not explain why or how.

I do not know whether it is because there are less personnel available to assist, whether he has reduced hours, or whether they were subject to lockdowns or health and safety protocols that slowed the investigation. In all likelihood, the global pandemic has had some impact on the investigation but there must be more than a mere assertion of that fact. [ 47 ] In his affidavit sworn September 16, 2020, Cst. Thompson essentially repeated what he had deposed to previously, but updated it with the following:

a) Crown Counsel had advised him on September 9, 2020 that it was a complex file, it would take time for Crown to process, and recommended that there be an extension of the Order for the Detention of Things Seized.

b) The Certificates of Analysis were all received on September 9, 2020. Again, Cst. Thompson cites COVID-19 as a cause of the delay but not why or how it has caused this delay.

c) On September 10, 2020, Cst. Thompson obtained a hearing date of September 17, 2020. He filed his application that day. He also identified items that had been returned previously to the Cacis and were no longer the subject of the application. [ 48 ] There is no update of any substance related to the ongoing investigation of the items that Cst. Penner was examining. It is essentially a repeat of the prior affidavit. However, on September 10, 2020, a member of the General Investigation

Section contacted Cst. Thompson to advise him that the four remaining devices remained to be extracted and additional time was required. There is no information given about what progress had been made on examining those devices, how much time would be needed to complete the investigation or why there was a delay. This evidence must be before the court. [ 49 ] In that same time, Cst. Thompson sent a request to the Toronto Police Services to serve the Notice of Application on the Cacis. He also contacted Mr.

Selamaj by e-mail on September 15, 2020 advising him of the hearing date of September 17 and asking if he would accept the e-mail as service. [ 50 ] Cst. Thomspon contacted each of the Cacis by telephone on September 16, 2020, the day before the hearing, to inform them of the date and time of the hearing. Gerart Caci spoke with Cst. Thompson and confirmed that he was aware of the time and day. Artan Caci did not answer and so Cst. Thompson left a voicemail. [ 51 ] Cst.

Thompson also deposes that he is seeking the extension to allow for the steps outlined to be taken in order to complete the investigation and allow Crown Counsel to review this “complex file”. However, this is a relatively straight forward roadside seizure. There is no indication of what makes the file more complex than any other such seizure. I can surmise that the difficulty accessing the various devices and cards is part of the complexity, but there is nothing to indicate how long it will take or what progress has been made.

I can also surmise that the translations will add a layer of complexity but, again, I have not been given evidence to say how long that will take or whether a translator has even been assigned. This is essential evidence to have before the court on an application such as this.

CONCLUSION [ 52 ] An application under s. 490(2) must be served. That service, unless there is an agreement otherwise, must be personal service. It cannot be a voicemail message. It cannot be a courier delivery. It must be served personally three clear days before the hearing of the application. [ 53 ] The application itself may be heard outside the detention period, but only to complete the hearing commenced before the detention period expired or to allow a judge to render a decision following the hearing.

In such case, the detention period expires when the application for a further detention is decided. [ 54 ] I am not satisfied that the supporting application is adequate to extend the detention order in any event. While it appears that some progress had been made, the affidavit does not indicate how much more time is required, why the delay has been incurred, or why a further term is required before charges can be laid. This is inadequate to the purposes of the application. [ 55 ]

Section 490 provides significant powers for police to detain items seized pursuant to an investigation before charges are laid. The time limits and requirements for service are not merely dressing but are essential components that enable those from whom goods have been seized to take a position with respect to any extended order. When an extension of the order is required, it behoves the police or crown to explain any delay. That delay cannot be a persistent and ongoing systemic delay, but one that is arising from the circumstances of the investigation and other ongoing competing investigations of the time.

Certainly in the time of the pandemic, it is likely that delay can be explained. All the same, it must still be explained. [ 56 ] I am not satisfied that the application contains evidence that supports a further extension of the detention order. In any event, the detention order expired before the hearing was set and therefore the court has lost jurisdiction. The application for extension is dismissed. ________________________________ S.D. Frame Provincial Court Judge