2023 BCSC 1769, 2023 BCSC 1769

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: IN THE MATTER of an Application for an order for the further detention of things seized, pursuant to Section 490(3) and 490(9.1) of the Criminal Code of Canada 2023 BCSC 1769 Date: 20231011 Docket: 97905-1 Registry: Kelowna IN THE MATTER of an Application for an order for the further detention of things seized, pursuant to Section 490(3) and 490(9.1) of the Criminal Code of Canada And IN THE MATTER of an Application for an order that things seized be returned, pursuant to Section 490(7) of the Criminal Code of Canada , or in the alternative, forfeited, pursuant to s. 490(9) of the Criminal Code of Canada Before: The Honourable Mr.

Justice B. Smith Reasons for Judgment Counsel for the Crown: P.W. Shyba Counsel for the Respondent: R.J.K. Gill Place and Date of Hearing: Kelowna, B.C. July 25, 2023 Place and Date of Judgment: Kelowna, B.C. October 11, 2023 I. INTRODUCTION [ 1 ] The applicant, Attorney General of Canada on behalf of the Royal Canadian Mounted Police (“RCMP”), applies for an order for further detention of things seized, pursuant to s. 490(3) and 490(9.1) of the Criminal Code of Canada , R.S.C. 1985, c. C-46 [ Code ]. In support of the application, the RCMP relies on the affidavit of Cpl. Dehoog, affirmed July 13, 2023 [“Cpl.

Dehoog’s Affidavit”]. [ 2 ] The respondent, whose identity I have anonymized as N.T. in order to protect his privacy, opposes the RCMP’s application and applies for a return order, pursuant to s. 490(7) of the Code or, in the alternative, a forfeiture order, pursuant to s. 490(9) of the Code . In support of the application, N.T. relies on his affidavit, affirmed June 26, 2023 [“N.T.’s Affidavit”]. [ 3 ] For ease of reference I have categorized the items at issue in these applications into three categories. The items can generally be described as cell phones, computers, hard-drives, and related equipment. [ 4 ] In

summary, the situation in regards to each category of items is as follows: • Category 1 is two cell phones (Exhibit 224511-1 and Exhibit 224511-2), the items have been analyzed and found to contain child pornography, the RCMP seek further detention pending charge approval; N.T. seeks return or forfeiture; • Category 2 is a tower computer (Exhibit 224511-11) and four laptops (Exhibit 224511-23, Exhibit 224511-24, Exhibit 224511-25 and Exhibit 224511-26), the items have not yet been analyzed, the RCMP seek further detention pending analysis and, if necessary, charge approval; N.T. seeks return or forfeiture; • Category 3 is a hard-drive which contains extracted data of the content of the Category 1 items and certain other seized items (Exhibit 224511B-1), the RCMP seek further detention pending charge approval, N.T. seeks return (of the extracted data) or forfeiture; [ 5 ] For the following reasons, I dismiss the RCMP’s application for further detention; and dismiss N.T.’s application for return or forfeiture.

I order the RCMP to return certain other items to N.T., on consent. II. BACKGROUND [ 6 ] The Kelowna RCMP are investigating alleged child pornography offences.

[ 7 ] In December 2021, a social media platform became aware of 13 files of suspected child pornography which had been uploaded using a platform account. The platform reported the account information to the National Centre for Missing and Exploited Children (“NCMEC”). [ 8 ] NCMEC determined that the internet protocol address associated with the computer used to access the account (the “IP Address”) resolved to Kelowna, British Columbia, and that the internet service provider was Shaw Communications Incorporated.

NCMEC provided this information to the National Child Exploitation Coordination Centre (NCECC), which provided it to the British Columbia Integrated Child Exploitation (BC ICE) unit. The BC ICE unit investigated and provided the fruits of its investigation to the Kelowna RCMP. [ 9 ] On April 4, 2022, a police officer, identified in Cpl. Dehoog’s Affidavit as Cst. Heidrei, obtained a production order for the IP Address. On April 30, 2022, Cst. Heidrei received the responsive material, including information about two persons associated to a residential address in Kelowna (the “Address”).

Neither of those persons are respondents to the applications now before the Court. [ 10 ] According to Cpl. Dehoog’s Affidavit, additional queries and surveillance identified N.T. as living at the Address. [ 11 ] On June 7, 2022, Cst. Heidrei obtained a search warrant for a residence at the Address. [ 12 ] On June 17 and 18, 2022, police executed the search warrant for the residence at the Address, and seized 25 items. [ 13 ] On June 26, 2022, a police officer filed an application for a detention order for all 25 items.

On June 27, 2022, a justice of the peace ordered detention of the 25 items for a period of three months from the seizure date. [ 14 ] On September 10, 2022, Cst. Heidrei obtained a search warrant for one of the two Category 1 items. [ 15 ] On September 12, 2022, Cst. Heidrei sent both Category 1 items and some of the other items to a company described in Cpl. Dehoog’s Affidavit simply as Teel Technologies Canada (“Teel”). [ 16 ] Cpl.

Dehoog’s Affidavit does not say what, if anything, transpired in regards to the police investigation during the almost three- month period between when the items were seized, in June 2022; and when they were sent to Teel, in September 2022. [ 17 ] On September 13, 2022, less than a week before the expiry of the June 27, 2022 detention order, Cst. Heidrei attended before a justice of the peace seeking an order for further detention of the seized items. N.T.’s counsel attended and opposed the application. The application was adjourned to September 20, 2022 to

schedule a hearing date. On September 20, 2022, the hearing was scheduled for November 14, 2022, almost two months later. [ 18 ] On October 13, 2022, a police officer, identified in Cpl. Dehoog’s Affidavit as Cst. Nicholson, signed out six items from police exhibits. Cst. Nicholson conducted what is described in Cpl. Dehoog’s Affidavit as a “general review” of five of the six items, noting “no offence material was observed”. A decision was made, presumably by Cst. Nicholson, although Cpl.

Dehoog’s Affidavit does not say, to send the other item to Teel “due to the volume of media files”. [ 19 ] On November 14, 2022, Cst. Nicholson and Cst. Hedrei, attended before a provincial court judge for the scheduled hearing of the application for further detention. The judge granted the application and ordered further detention until February 28, 2023, with the exception of six items, which the judge ordered returned to N.T. “forthwith”. Cst. Nicholson did not return these items to N.T. until January 9, 2023. Cpl. Dehoog’s Affidavit does not say why it took almost eight weeks to return the items.

In N.T.’s Affidavit he describes his various unsuccessful efforts on November 18 and 23, 2022 and December 16 and 27, 2022 to have the items returned to him. [ 20 ] On December 22, 2022, Teel returned: • the items sent to it on September 12, 2002; • the single item sent to it on October 13, 2022; • the Category 3 item it had created, together with “forensic programs needed to search and view evidence related to the exhibits”. [ 21 ] Four weeks later, on January 20, 2023, a police officer identified in Cpl. Dehoog’s affidavit as Cst.

McBride, designated the Category 3 item as police Exhibit 224511-B-1 and created reports from it. Cpl. Dehoog’s Affidavit does not say what, if anything, was done to process the Category 3 item over the course of the four weeks which passed between December 22, 2022 and January 20, 2023. [ 22 ] On February 7, 2022, Cst. Nicholson “was made aware” of Cst. McBride’s reports, and that Cst. McBride “did not review the content in detail” but “came across media on both devices which possibly met the definition of Child Pornography”. As far as I can determine from Cpl.

Dehoog’s Affidavit, the submissions of counsel, and my notes made during the hearing on July 25, 2023, the devices referred to are the Category 1 items. [ 23 ] On February 10, 2023, Cpl. Dehoog applied for a detention order for the remaining seized items, except the Category 3 item. Cst. Nicholson completed a report to a justice for the Category 5 item, and sent two more items to Teel. Cst. Hedrei “reviewed the Digital Mobile Field Technician reports of media extracted from the (Category 1 items)”.

Reading this information together with the aforementioned information concerning the extraction reports created by Cst. McBride on February 7, 2022, I infer that Cst. McBride is the Digital Mobile Field Technician referred to in Cpl. Dehoog’s Affidavit. Cst. Hedrei conducted a “general overview of the media and confirmed numerous images and videos on both exhibit items which met the definition of child pornography as per the Criminal Code ”. [ 24 ] On February 23, 2023, a justice of the peace granted an order for further detention until June 17, 2023. [ 25 ] On June 2, 2023, Cst.

Nicholson emailed Teel inquiring about the two items sent 16 weeks earlier, on February 10, 2023; and

about Teel’s ability to “physically store” other items still at the Kelowna RCMP. [ 26 ] Three days later, on June 5, 2023, Cst. Nicholson received a reply from Teel, indicating they could “accommodate” the items, which I take to mean that Teel could physically store them. [ 27 ] Between June 9 and 11, 2023, Cst. Nicholson prepared and submitted a Report to Crown Counsel. [ 28 ] On June 12, 2023, Cst. Nicholson received a response from Crown Counsel, informing him that they required further steps to be completed before charge approval. Those steps are not identified in Cpl.

Dehoog’s Affidavit, simply that it would take approximately six months to complete them. [ 29 ] On June 17, 2023, the detention order granted by the justice of the peace on February 23, 2023 expired. There have been no further detention orders. [ 30 ] On June 20, 2023, N.T. filed an application for a return order, pursuant to s. 490(7) of the Code ; or alternatively a forfeiture order, pursuant to s. 490(9) of the Code . [ 31 ] The police initially sought further detention of the seized items to January 17, 2024.

At the hearing of the applications on July 25, 2023, counsel on behalf of the RCMP indicated the RCMP now seek further detention for three months only. III. ANALYSIS A. The RCMP’s application for further detention The Category 1 and Category 2 items [ 32 ] The cumulative period of detention sought for the Category 1 and Category 2 items exceeds one year from the seizure dates, and proceedings have not been instituted in which the items may be required. [ 33 ] Before I can order further detention of the Category 1 and Category 2 items, I must be satisfied

a) that the continued detention might reasonably be required for a purpose such as an investigation, trial or other proceeding, and

b) that it is in the interests of justice to do so: Code , s. 490(9.1) . Whether further detention might “reasonably be required” [ 34 ] I am satisfied that further detention of the Category 1 and Category 2 items might reasonably be required for a purpose such as an investigation, trial or other proceeding, for the following reasons. [ 35 ] First, in Cpl. Dehoog’s Affidavit he indicates the police are “close to charge approval”. Second, concerning the Category 1 items, the police have already determined they contain child pornography. Third, concerning the Category 2 items, on the basis of the content of Cpl.

Dehoog’s affidavit, I conclude the objective of the police is to determine whether any of those items contains evidence of child pornography offences. Given that child pornography has already been found on the Category 1 items, this is a reasonable objective, particularly because the Category 2 items are of a similar type and nature, not only to the Category 1 items, but also to each other.

Whether further detention is in the “interests of justice” [ 36 ] I am not satisfied further detention of either the Category 1 or Category 2 items, is in the interests of justice, because I have not been provided with evidence sufficient to satisfy me further detention is required due to complexity of the investigation. Complexity of the investigation [ 37 ] Counsel for the RCMP submits this is a complex investigation, evidenced by the RCMP’s reliance on a specialist third-party, in this case Teel; and the large volume of data on the devices.

Counsel for N.T. takes the contrary position, and argues that had the police investigation been better planned, resourced and executed, the application for further detention would be unnecessary. [ 38 ] The provisions of s. 490 do not purport to impose a timeline for the conduct of police investigations: Alberta (Attorney General) v. Black , 2001 ABQB 216 [ Black ] at paras. 20–21 . Applications under s. 490(3) require the applicant to demonstrate complexity of the investigation: Black , at para. 22 .

The applicant must also demonstrate the complexity requires further detention for the period sought: Further Detention of Things Seized (Re) , 2021 BCSC 1461 at para. 29 ; Further Detention of Things Seized (Re) , 2019 BCSC 1345 [ Re 1345 ] at para. 8 .

As Justice Riley noted in Further Detention of Things Seized (Re) , 2021 BCSC 1323 [ Re 1323 ], at para. 58 : “The applicant’s burden of persuasion – to ‘satisfy’ the presiding judge that further detention is warranted – is not onerous”. [ 39 ] As Justice Riley goes on to note in Re 1323 , at para. 111, “the case law recognizes that, at least in some respects, the burden on the applicant under s. 490(9.1) is higher than the burden the applicant would face under either 490(2) or 490(3): R. v. Newport Financial Pacific Group S.A. , 2003 ABPC 80 at para. 117 ; R. v.

Maltais , 2018 NBQB 149 at para. 35 ”. [ 40 ] The key point in considering detentions beyond one year under s. 490(3) is the concept of complexity. Although complexity is not referred to in s. 490(9.1) , I agree with Justice Riley that “investigators should not be able to place themselves in a better position by bringing an application out of time than they would have been in had they complied with the law by bringing the application in time”: Re 1323 at para. 111. I agree too with Justice Riley’s conclusion that “in the context of an application under s. 490(9.1) to detain things

seized for more than one year after the date of the original seizure, the interests of justice analysis necessarily involves a consideration of the requirements for further detention under s. 490(3) ”: Re 1323 at para. 118. [ 41 ] There are a number of factors courts typically consider before making a finding for or against complexity: see, for example, the factors referred to in Re: Tran , 2004 BCSC 339 [ Tran ] at para. 30 ; Canada Revenue Agency v.

Okorafor , 2010 ONSC 2477 [ Okorafor ] at paras. 21 — 23 . [ 42 ] While consideration of factors for and against a finding of complexity are important, it is not a mathematical formula, the side with the most items automatically prevailing.

Rather, assessing factors such as those referred to in the cases, and any case-specific factors, may require one or more factors being afforded greater weight: Okorafor at para. 27 . [ 43 ] I agree with Justice Riley’s comments in Re 1323 at para. 122 about the notion of complexity: [122] To my way of thinking, I would not necessarily regard the notion of complexity as a binary concept, as in an investigation either being complex or not complex. There will, I expect, be some investigations that are manifestly not complex.

A straightforward allegation of theft or assault with one or two witnesses to the crime comes to mind. However, when it comes to investigations that are more involved, there may well be degrees or levels of complexity.

Certainly to justify further detention for a specified period of time under s. 490(3) , 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 seized things within one year of the date of seizure. [ 44 ] To date this has not been a straightforward investigation.

Some degree of complexity in the history of the investigation could be inferred from the process of applying for, obtaining, and executing judicial authorizations, and the subsequent seizure, data extraction, review, analysis of items for evidentiary value, and creation of investigative work product.

The question, however, is whether the investigation is of such complexity that further detention for a specified period is required. [ 45 ] As is evident from cases dealing with applications such as here, it is not unusual for police officers to seek assistance from specialist police or third-party agencies when investigative resources, whether human, technological, or otherwise, are not up to the task: see, for example, Further Detention of Things Seized (Re) , 2020 BCSC 2226 ; Further Detention of Things Seized (Re) , 2022 BCSC 1240 . [ 46 ] That an investigation involved forensic analysis by persons with specialist training, skill or experience is not determinative of whether the investigation is of such complexity that further detention for a specified period is required. [ 47 ] In Tran , at para 29 , Allan J. referred to the definition of “complex” found in R. v.

Westmorland Fisheries Ltd. (citations omitted), adopted and applied in Canada (M.N.R.) v. Hunter (citations omitted), as: “something intricate and composite, something requiring analysis and reflection before moving forward to results and always considering the implications”.

On the evidence before me, I am unable to conclude that this investigation falls within that description. [ 48 ] As noted, some degree of complexity in the history of the investigation could be inferred from the process of seizure, data extraction, review and analysis of the items for evidentiary value, and creation of investigative work product. These are all steps which have been part of the overall investigation. In this case, those steps are not yet fully complete, and I accept they need to be completed.

I recognize too the time period within which the police anticipate they will have completed them is relatively short. [ 49 ] The problem here, however, is simply that finding complexity of the investigation requiring further detention for a specified period would require me to speculate about matters not in evidence before me on the applications. [ 50 ] Plainly put, Cpl. Dehoog’s Affidavit says nothing about how any past steps or future steps relate to the issue of complexity of the investigation, or the requisite nexus between complexity and the need for further detention for a specified period. [ 51 ] Cpl.

Dehoog’s Affidavit says nothing about whether the seized items require forensic analysis by persons with specialist training, skill and experience in order to determine whether they contain anything of evidentiary value. It says nothing about the specialist qualifications, or lack thereof, of any of the police officers involved in the investigation.

It simply refers to seized items being sent to Teel and returned after a period of time, together with the Category 3 item, described only as “a 10-terabyte-sized evidence drive that contained extractions of each media device as well as forensic programs needed to search and view evidence related to the exhibits”. [ 52 ] Concerning the reference in Cpl. Dehoog’s Affidavit to a Digital Mobile Field Technician, while I am prepared to infer that Cst.

McBride is the Digital Mobile Field Technician referred to, his affidavit says nothing about: • the role of a Digital Mobile Field Technician in RCMP investigations; • their qualifications; • the resources they have at their disposal; • whether, and to what extent, they prioritize their work; and • their role in the investigation of suspected child pornography offences. [ 53 ] Concerning Teel, other than the reference to Teel by name, Cpl. Dehoog’s Affidavit says nothing about: • the nature of Teel’s services; • the qualifications of Teel’s employees;

• the resources they have at their disposal; • whether, and to what extent, they prioritize their work; • the nature of the relationship between the RCMP and Teel; • the RCMP’s expectations and powers, if any, in regards to Teel’s services, particularly concerning whether the RCMP has any ability to control Teel’s prioritization and pace of work; • whether the RCMP uses any alternatives to Teel, either within the RCMP or otherwise; and • the nature of Teel’s involvement with the investigation. [ 54 ] Considerations such as those referred to above all inform the complexity analysis. [ 55 ] Cpl.

Dehoog’s Affidavit describes why further detention should be ordered as follows: DETENTION EXTENSION REQUEST 56. I believe that the further detention of the Items Sought is required due to the nature of the investigation for the following reasons: a. Evidence of Child Pornography has already been located on the Items Seized. Returning these items to [N.T.] could, itself, constitute the offence of distribution of Child Pornography. b. Several of the items sought for return are copies of data. The RCMP should be permitted to lawfully detain these items under section 490(13) of the Criminal Code . c.

The RCMP are close to charge approval in this matter. [ 56 ] Two points are worth making about the above description. First, Cpl. Dehoog’s Affidavit does not refer at all to the issue of complexity, either in the above excerpt from his affidavit, or elsewhere in his affidavit. Second, it is misleading to say that child pornography has been located on the “Items Seized”. Child pornography has been located on some of the items seized, specifically the Category 1 items.

Whether any of the Category 2 items contains child pornography remains unknown. [ 57 ] Looking forward, the process of review and analysis may simply involve determining whether there is child pornography present on the Category 2 items. Alternatively, and assuming here that child pornography is found on the Category 2 items, the process might engage questions such as which, if any, offences can be proved, who committed those offences, and whether they did so alone or jointly with others, to name just a few.

It could be that the process of review and analysis will include consideration of how the child pornography detected by the social media platform corresponds to what was found on the Category 1 items, and any found on the Category 2 items. New avenues of investigation may become necessary, while others are abandoned. [ 58 ] Cpl.

Dehoog’s Affidavit does not address any of these potential outstanding aspects of the investigation: whether they are contemplated, and if so, what they would involve in terms of human and other resources, and how long the process might take. [ 59 ] It is evident that some investigative work remains to be done. Initially the police were seeking further detention to January 17, 2024, but they now are seeking only three months further detention. While this might suggest there has been some streamlining in the process of the investigation, I have no evidence before me in that regard. [ 60 ] Cpl.

Dehoog’s Affidavit does not say whether there is a particular plan or process for how seized items will be sent to Teel, such as in a specific order or phases, or how that might relate to the issue of complexity. [ 61 ] Reading Cpl. Dehoog’s Affidavit as a whole, what I can conclude is that first, the Category 1 and some other items were sent to Teel. Then, when those items were returned, along with the Teel-created Category 3 item, the investigators inquired whether Teel could physically store further items.

This may have been because Teel was unable to physically store everything at once, as I understand from the submissions of counsel for the RCMP that Teel was either at capacity, backlogged, or facing space constraints. Now the investigators want to send the Category 2 items to Teel. [ 62 ] I recognize that the fact the Category 2 items have not yet been sent to Teel must be considered in the context of the investigation as a whole, and not in isolation.

I recognize too that the activity of the investigators and others must be considered in the context of the reality that this investigation is but one of many such investigations, that investigative resources are finite, and that a certain amount of prioritizing of material can reasonably be expected. [ 63 ] However, as with my comments concerning the process of review and analysis, a phased approach, assuming that is indeed what was employed in this investigation, does not lead inexorably to a finding of complexity requiring further detention for a specified period. [ 64 ] On the evidence before me, the picture which emerges is that while this investigation may have been somewhat logistically challenging, it is not particularly complex. [ 65 ] In reaching my conclusion, I have considered a consolidation of factors identified in Tran at para. 30 and Okorafor at para. 21 and 23 , a number of which also point to a finding of non-complexity. [ 66 ] On the evidence before me, the investigation has not: • required the assistance of lawyers or accountants to decipher the things seized or for other purposes (while there is no evidence any of the things seized were locked, password-protected or encrypted, I recognize there is some evidence from which it can be inferred

the investigation has required the assistance of computer technicians, or similar professionals); • required the cooperation of police authorities throughout the world; • required witnesses to be interviewed outside Canada; • involved several law enforcement agencies in multiple jurisdictions (NCMEC, NCECC and BC ICE were not involved post- seizure of the items); • involved government departments (I do not consider the fact that the RCMP was represented by counsel from Justice Canada as falling within this category); • involved foreign governments; • covered an extensive time frame or wide geographical area; • involved a proceeds of crime aspect with a detailed or confusing paper chase; • involved alleged offences committed in more than one jurisdiction, with multiple accused or the use of nominees; • required complex or time-consuming net worth calculations; • been a “paper case” or one where the “tentacles of evidence are wide-ranging”; • involved third parties over which the investigating agency has no control (Cpl.

Dehoog’s Affidavit does not say whether this applies to the RCMP’s relationship with Teel); • that documents or communications must be translated; • that transcripts of intercepted private communications must be prepared. [ 67 ] I have also considered the following factors listed at para. 23 of Okorafor which specifically do not support a conclusion of complexity: • damages to one’s reputation, financial or emotional hardship; • that insufficient resources have been assigned to the investigation; • that there is substantial “grunt work” required to complete the investigation; • that voluminous material must be reviewed and/or that the investigators did not have enough time to fully review the documents seized; • that there have been difficulties in obtaining information from third parties if procedures that could have required the third party to cooperate more fully, speedily and readily were not employed. [ 68 ] Counsel for N.T. submits the police have been responsible for some three months of unexplained delay between June and September 2022.

Counsel for the RCMP acknowledges there are “moments things might have gone quicker”. [ 69 ] As Holmes, A.C.J. stated in Re 1345 at para. 10, the focus on complexity “indirectly forces an examination of the work yet to be done, the estimated time for completion, and whether the work should reasonably have been done before”. Holmes, A.C.J. went on to say: R. v.

Jordan , 2016 SCC 27 imbued the s. 490 regime with additional significance, because the regime provides a context for assessing and bringing into balance the efficiency of the process and the other important goals of justice and fairness, as Jordan requires: (quote from Jordan , para 27 omitted): Re 1345, at para. 16. [ 70 ] Cpl. Dehoog’s Affidavit does not say what investigative activity, if any, was occurring in the investigation during the three months between June and September 2022.

While I am not prepared to find that the absence of evidence in that regard leads to the conclusion that the work should reasonably have been done before now, I am also not prepared to draw the opposite conclusion. [ 71 ] While Cpl. Dehoog’s affidavit does not say what investigative activity, if any, was occurring during the initial three-month period of detention, it is apparent that significant steps in the investigation have been taken since then. Some items have been sent to Teel and returned. The Teel-generated Category 3 item has been reviewed and analyzed, either completely or partially.

As a result, child pornography has been found on the Category 1 items. Other items have been returned to N.T., with more to follow. The Category 2 items have yet to be sent to Teel. The police have prepared and submitted a Report to Crown Counsel.

Crown Counsel require the police to complete further steps before completing further charge assessment. [ 72 ] This is not a situation in which the police have either done nothing at all, or in which the investigation has stalled and is not likely to go anywhere. [ 73 ] However, none of the activity described above satisfies me that the investigation is of such complexity that an order for further detention is justified.

I have asked myself the question pithily posed by Justice Durno in Okorafor , at para. 19 : “Put bluntly, is it a complex investigation requiring further detention or a non-complex investigation that investigators have had insufficient time to complete? The former leads to further detention. The latter does not.”

[ 74 ] I conclude that, in this case, the answer to Justice Durno’s question is that this is a non-complex investigation that investigators have had insufficient time to complete. [ 75 ] On the evidence before me, the RCMP have failed to establish that complexity of the investigation requires further detention for a specified time. Consequently, in these circumstances, further detention is not in the interests of justice.

The Category 3 item [ 76 ] I decline to order further detention of the Category 3 item, because I am not persuaded I have jurisdiction to do so, due to the fact that the item has not been detained for more than a year. [ 77 ] The Category 3 item is a “thing” which was created as part of the police investigation and is subject to the s. 490 regime: R.v. Craig , 2016 BCCA 154 at paras. 180–181 ; R. v T #1 , 2022 BCSC 344 at para. 121 . It has not been detained for more than a year.

An application for further detention of an item up to one year from the seizure date is brought, pursuant to s. 490(2), in the provincial court before a “justice”, defined in s. 2 to mean a justice of the peace or a provincial court judge. [ 78 ] Counsel submit the wording of s. 490(3) is sufficiently broad that I can exercise jurisdiction over the Category 3 item, but have not provided me with any authority to that effect. [ 79 ] In my view, as matters stand, the preferred approach would be for the RCMP to seek further detention of the Category 3 item by an application to a provincial court judge, pursuant to s. 490(2).

B. N.T.’s application for a return order or a forfeiture order [ 80 ] N.T.’s application for a return order, or in the alternative, a forfeiture order, is dismissed. [ 81 ] Section 490(7) provides that a person from whom anything has been seized may, after the expiration of the periods of detention provided for, apply for an order, pursuant to s. 490(9)(

c) that the thing be returned: s. 490(7). [ 82 ] Section 490(9) provides that if possession by the person from whom the thing has been seized is unlawful, a judge may order it forfeited to His Majesty, to be disposed of as the Attorney General directs, or otherwise be dealt with in accordance with the law. [ 83 ] The Category 1 items were seized from N.T. They contain child pornography. Distribution of child pornography is a criminal offence. A return order would be perverse. The power to order forfeiture is permissive. I decline to exercise it.

A forfeiture order concerning evidence of a serious criminal offence in a matter which may yet be prosecuted would also be perverse. [ 84 ] Concerning the Category 2 items, on the evidence before me, I am not satisfied they meet the requirements of either s. 490(7) or s. 490(9) , namely that the items were seized from N.T., or unlawfully in his possession. In N.T.’s Affidavit he claims the items were seized from “my residence”. This assertion is vague, and not sufficient to satisfy me that the circumstances meet the requirements of either s. 490(7) or s. 490(9) . As noted previously, Cpl.

Dehoog’s Affidavit indicates that in the initial stages of the investigation two other persons were also associated with the Address where the items were seized. [ 85 ] I am not prepared to order the return of the Category 3 item for the same reason that I am not prepared to order the return or forfeiture of the Category 1 and Category 2 items.

While N.T. may have a privacy interest in the content of the Category 3 item, some of the content, namely the extraction obtained from the Category 1 items, contains child pornography. [ 86 ] Finally, I order the return of the following items, on consent: • 224511-3 Western Digital Hard-drive • 224511-4 Interim BC Driver’s Licence • 224511-6 Western Digital Hard-drive • 224511-7 Identification Documents • 224511-8 USB drives • 224511-9 Dell laptop computer • 224511-10 Nvidia router • 224511-12 Motorola telephone • 224511-13 Samsung telephone • 224511-14 Dell telephone • 224511-15 LG telephone • 224511-18 Western Digital Hard-drive • 224511-19 Western Digital Hard-drive [ 87 ] My decision on these applications should not be interpreted as foreclosing the possibility of future s. 490 applications in connection with any of the items seized. “B.

Smith J.” SMITH J.