R. v. Classic Smokehouse and Leader Cold Storage Date:, 2012 BCPC 232

Citation: R. v. Classic Smokehouse and Leader Cold Storage Date: 20120705 2012 BCPC 0232 File No: 217125-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CLASSIC SMOKEHOUSE

(2003) INC. AND STUART DAHLKE AND LEADER COLD STORAGE LTD. RULING ON APPLICATION OF THE HONOURABLE JUDGE HOWARD Counsel for the Crown: J. Lawn Counsel for Classic Smokehouseand Stuart Dahlke : J. Narwal Counsel for Leader Cold Storage : M. Sandhu Place of Hearing: Vancouver , B.C. Date of Judgment: July 5, 2012

RULING ON APPLICATIONS UNDER S. 490(2) OF THE CRIMINAL CODE [ 1 ] Pursuant to s. 490(2) of the Criminal Code , the federal Crown is applying for an order to extend the time for detaining property seized from Classic Smokehouse

(2003) Inc. and from Leader Cold Storage Ltd. The seizures were made under the authority of two separate Criminal Code search warrants alleging offences of "failing to keep records", contrary to s. 61(3) of the Fisheries Act of Canada . [ 2 ] Notices were served upon Classic Smokehouse

(2003) Inc., Stuart Dahlke and Leader Cold Storage Ltd. It is common ground that Dahlke is the owner/president of Classic Smokehouse and that Classic Smokehouse stores fish at Leader Cold Storage. [ 3 ] The applications were heard on June 20, 2012 and July 5, 2012. Classic Smokehouse and Leader Cold Storage appeared with separate counsel to contest the applications.

Counsel for Leader Cold Storage took the position that his client had no ownership interest in the fish seized from his facility but he joined in supporting the arguments advanced by counsel on behalf of Classic Smokehouse. [ 4 ] I dismissed an application by counsel for Classic Smokehouse to cross-examine Fisheries Officer Graham. At the conclusion of the hearing, I ordered that the property seized from Classic Smokehouse and Leader Cold Storage be detained for a further 4 months, up to and including October 23, 2012. Written reasons were to follow. They are set out below. THE FACTS a.

Background [ 5 ] I have before me 3 affidavits sworn by Robert Graham setting out the relevant background information. Robert Graham is one of the Fisheries Officers from the Department of Fisheries and Oceans who has been "tasked" with investigating the alleged Fisheries Act offences that underlie these applications.

In his affidavits, he describes the legal concerns underlying the investigation, these being (1) the statutory requirement for commercial fish plants to keep adequate records regarding all fish that they deal with and (2) the "laundering" of "black market" fish by intermingling it with legitimate fish.

See Affidavits of May 28, 2012, p. 1 and June 13, 2012, paras. 3 and 4: Commercial fish plants and stores are required by law to keep accurate records and information regarding all fish and or fish products that they purchase, process, store, and or sell to other stores and or the public by way of purchase orders, invoices, receipts, and final sales invoices. A serious threat to the conservation of Canada's fish stock is the harvesting and subsequent laundering of fish caught without the authority of a commercial fishing licence.

This 'black market fish' is often intermixed with legitimate fish and sold to the public. Fishery officers and Fishery Inspectors are tasked with inspecting these stores and fish plants in order to ensure compliance with provincial and federal laws. [ 6 ] On March 20, 2012, Fisheries Officers Graham and Newton attended at Classic Smokehouse to conduct an inspection.

That inspection quickly turned into an "investigation" when the officers determined that the neither the documents provided by Dahlke nor the information that he provided during a 'warned statement' could adequately account for the origin of the fish under inspection. Their investigation was and continues to be complicated by "a very confusing and inadequate accounting system used to track lot numbers (fish) through the fish plant". Affidavit of May 28, 2012, p. 1.

In his affidavit of June 13, 2012, Graham further described the accounting system used by Classic Smokehouse as "primitive” (para. 7). [ 7 ] The Fisheries Officers concluded that they had "reasonable grounds to believe that there [was] no legitimate source or lawful origin" for some of the fish at the Classic Smokehouse facility or at their storage space at Leader Cold Storage.

Accordingly, they applied for search warrants for both Classic Smokehouse and Leader Cold Storage to look for evidence relating to the offences of "failing to produce documents" and "intermixing these [black market] fish with legitimate fish". Affidavits of May 28, 2012 at p. 1, and June 13, 2012, para 8. [ 8 ] On March 21, 2012, some 1,467 lbs. of fish and many documents were seized from Classic Smokehouse, pursuant to a search warrant issued under s. 487 of the Criminal Code .

On March 23, 2012, some 18,684 lbs. of frozen fish belonging to Classic Smokehouse and numerous documents (invoices, receipts, faxes and other reports and declarations) were seized from the cold storage facilities of Leader Cold Storage, pursuant to a second search warrant issued under s. 487 of the Code .

See Report to Justice for Classic Smokehouse, Form 5.2 dated March 22, 2012; Report to Justice for Leader Storage, Form 5.2 dated March 28, 2012; and Affidavits of June 13, 2012 and May 28, 2012. [ 9 ] On March 29, 2012, the Justice ordered that the property seized under the two search warrants be detained for a period of three (3) months from the date of seizure. b. The Applications for an Extension of the Detention Period [ 10 ] On May 28, 2012, Officer Graham swore his first affidavit in support of an application to seek an extension of the detention period.

On the same day, he filed a Notice of Application with the court addressed to Classic Smokehouse and Dahlke. With the assistance of counsel, Officer Graham drafted two further affidavits in mid-June 2012 and an additional Notice of Application addressed

to Leader Cold Storage. [ 11 ] In his affidavits, Officer Graham describes the 'nature of the investigation' and the various steps that still need to be done. The pertinent extracts from his affidavits are set out below: May 28, 2012 "This investigation is time consuming and complex due to the unique book keeping system used by Classic Smokehouse

(2003) Inc. to track fish through their fish plant which is further compounded with the large volume of paperwork seized during both search warrants. Piecing together the flow of fish in and out of the plant as the same fish change lot numbers is a time consuming task especially given the cryptic codes, overlapping client identifiers, etc." (p. 2) July 13, 2012 Re the seizure from Leader Cold Storage (para. 11): "These 18,864 lbs. of fish are from a source in which Stuart DAHLKE was unable to account by way of legitimate paperwork or records – or – has been mixed in with such fish.

In addition to the fish seized, documentation was seized which indicate there is even more fish that has moved through Leader Cold Storage which is associated to lot numbers with no known source or origin (original supplier)." Re the need for more time: "This investigation is time consuming and complex due to the unique book keeping system used by Classic Smokehouse

(2003) Inc. The tracking system for fish used by this business includes lot numbers containing initials of suppliers that even Stuart DHALKE cannot attribute a source or origin." (para. 14) ". . . the documents seized . . . include: invoices, bills of ladings, sales receipts, purchase receipts, logs of incoming fish, purchase

summary reports, and address books." (para. 15) ". . . this investigation is complex in nature and it is anticipated that it will take several more months before a complete analysis of the seized paperwork is complete and charges are laid." (para. 16) At paragraph 17, Officer Graham sets out 6 investigative steps that need to be completed prior to submitting a report to Crown counsel for charge approval. I will discuss these "steps" later in this Ruling.

With respect to the need to further detain the fish, Officer Graham notes not only the need for testing of the fish by the Canadian Food Inspection Agency, but also the expected application for forfeiture of the seized fish if there is a conviction in the future. (paras. 11(

d) and 19) With respect to the documents seized, I understand that photocopies of the same have been returned to the respondents. However, Officer Graham has attested to the need to keep the "originals", which show the colour of the paper used and the colour of the ink that is on the paper. These were apparently issues during the warned statement taken from DAHLKE. They will be needed for trial if charges are laid. (paras. 18, 20) June 13, 2012 ~ 'Supplementary Affidavit' This affidavit is a shorter version of the primary affidavit of June 13, 2012. c.

The Affidavit of Stuart Dahlke [ 12 ] On the first day of the hearing, Mr. Dahlke filed his own affidavit in opposition to the Crown's application for a time extension. This affidavit was sworn on June 19, 2012. At paragraphs 9 and 10, he deposes to the financial loss that his company is facing due to the seizures. He notes that the value of the seized fish to his business is $90,000. He cannot replace these fish with new stock because the fishing season is over. He continues to lose business because he cannot satisfy the demand from his customers without the seized fish.

THE LAW [ 13 ] The test for determining whether there should be an order for the further detention of property seized pursuant to a search warrant is set out in s. 490(2) of the Code : No property is to be detained for a period of more than three months after the day of seizure unless a justice, on the making of a

summary application, "is satisfied that, having regard to the nature of the investigation, its further detention for a specified period is warranted". [ 14 ] It is common ground that the overall objective of s. 490 of the Code is to achieve a fair balance between the property rights of individuals and the state’s legitimate interest in preserving evidence during an on-going investigation into criminal activity. A justice acting under s. 490(2) must keep this objective in mind when determining whether a further period of detention is warranted. a.

Jurisdiction [ 15 ] The jurisdiction of the justice acting under s. 490(2) of the Code is limited by statute to a determination of whether further detention of the seized property is warranted. There is no jurisdiction under s. 490(2) to deal with Charter issues, defects in the underlying warrant or issues relating to the manner in which the warrant was executed. R. v. Miller , [1987] O.J. 2278 (Ont. P.C.) ; R. v.

Newport Financial Pacific Group , 2003 ABPC 80 at para. 90 ; Tran (Re) , 2004 BCSC 339 at paras 22-26 . [ 16 ] When acting under s. 490(2), the justice has “ no authority to determine if the items seized were done so lawfully within the parameters of the search warrant”. R. v. 649678 Ontario Limited et al , 2007 ONCJ 230 at para. 18 .

b. Onus of Proof [ 17 ] The onus is upon the Crown to "satisfy" the justice that further detention is warranted. The standard is not an onerous one. See Newport , supra, at para. 92, citing Miller , supra, at para. 32: It is my view that the proof required to satisfy the justice upon an application under section 446(1) of the Criminal Code , is something less than on a balance of probabilities, and requires at the most an indication that the police need or do not need the property seized for the purposes set out in

section 446 . [ 18 ] Still, some degree of 'proof' is required to show that further detention is warranted. See Miller , supra, at para. 31, quoting from Re Director of Investigation & Research (Combines Investigation Act) and Tele-Direct (Publications) Inc. et al , Ont. Pr. Ct., Unreported, June 12, 1986 at pp. 17-19: . . .

While we may not be able to define with scientific precision the meaning and extent of the word "satisfies", however, by exclusion, we can say with some measure of confidence that it excludes a mere perfunctory, rubber-stamp procedure ; that it requires some modicum of "proof"; and that the person to whom the application is made must consider, review, and examine the material before granting or rejecting the application i.e., it is not an arbitrary, knee-jerk reflex matter . ( Emphasis added) [ 19 ] On an application to a superior court justice under s. 490(3) of the Code for a further extension of the detention period beyond the one year mark, the court is required to consider the 'complexity' of the ongoing investigation and whether the continued detention of the seized property is 'reasonable'.

In contrast, on an application under s. 490(2) for an extension of time within the first year following the seizure, the Crown need not establish either the 'complexity' of the investigation or the 'reasonableness' of a further time extension. Indeed, at this early stage, the justice hearing the s. 490(2) application cannot consider such issues without running the risk of exceeding his or her jurisdiction. See R. v. Superior Pharmacy [ 1997] O.J. No. 2270 (Ont. Ct. of J., Gen.

Div.) at para. 1 6 : 16 Therefore, based on the Scientology case, it is my conclusion that the justice of the peace exceeded his jurisdiction by erroneously "imposing" or "reading in" a reasonableness factor into the test under s. 490(2) of the Code." See also Newport , supra, at para. 99: 99 Use of the word "satisfies" in this

section does not import an onus on the Crown to prove that the detention of the items is reasonable. On the other hand, the justice does not simply rubber stamp the conclusion of the officer that the seized items are needed for investigative purposes; rather, the function of the justice is to determine these matters in an objective manner. c. The Nature of the Investigation [ 20 ] When determining whether an extension of the detention period is warranted, the justice must have regard to "the nature of the investigation".

As noted above, on the s. 490(2) application, the Crown need not establish that the investigation is a "complex" one. Moreover, the justice “should not be second-guessing the investigators in the way that they are conducting the investigation”. Considerable deference is given to those investigators. Edmonton Police Service v.

A.H. , 2011 ABPC 124 at paras.39-39 [ 21 ] In the present case, there is some disagreement between the crown and counsel for the respondents about whether the inquiry into the '”nature of the investigation” necessarily includes a review of the work that has been done by the investigators up to the time of the application. If this proposition is correct, as argued by the respondents, then the affidavit filed in support of the application for an extension of time should contain details about the investigative steps taken by the investigators during the first 3 month detention period.

In fact, counsel for the respondent has taken the position that there can be no proper inquiry into the “nature of the investigation” unless this information is before the court. It is his position that the affidavits before me are deficient in this regard; hence, I cannot rely upon them for the purpose of determining whether to grant an extension. [ 22 ] In support of his argument, counsel for the respondent relies upon the decision in R. v. Tennina , [2007] O.J. No. 4678 (Ont. Sup. Ct.) , 2008 ONCA 498 (Ont. C.A.) , a decision that was followed in the Edmonton Police Service case, supra.

The issue in Tennina was whether the justice of the peace had erred in refusing a second application for an extension of the detention period. The exhibits had already been detained for 9 months. The justice had ruled that this nine month period had been "a reasonable length of time given the nature of the investigation". Corbett J. of the Ontario Superior Court quashed the refusal to grant a further time extension on the grounds that the justice had erred in law.

At para. 32: 32 In the case at bar, the learned justice of the peace did not put his mind to the correct questions, which relate, not to the quality of the investigation to date, but rather, to whether the nature of the investigation justifies detention of the seized materials for a further period. In particular, it is clear that there is an ongoing investigation, and significant resources have been expended on it.

It is not a case where authorities have seized materials and then done nothing. [ 23 ] Corbett J. then proposed that, during a s. 490(2) hearing, the justice “should assess the progress of the investigation”. Tennina , supra (2007) at para. 27. To this end the crown needs to adduce evidence of "what has been done to date" on the investigation (para. 23). In very brief reasons, the Ontario Court of Appeal indicated that they "substantially agreed" with the reasons of Corbett J. R. v. Tennina , 2008 ONCA 498 at para. 3 . At para. 5, the Court of Appeal noted: 5.

From the reasons of the Justice of the Peace, it is apparent that the focus of his inquiry was on the approach to the investigation taken by the Crown since the seizure as opposed to the criteria set out in s. 490(2) whereby he had to be satisfied that "having regard to the nature of the investigation, [the material's] further detention for a specified period is warranted." Where an extension is sought, some consideration of the conduct of the enquiry up to the date of the request for an extension is appropriate.

The focus however, must remain on the needs of the ongoing investigation. [ 24 ] Corbett J. was obviously alert to the well-established principle that prohibits a justice acting under s. 490(2) from assessing the reasonableness of the actions of the investigators prior to the application for a time extension. He expressly confirmed that "the justice is

not to embark on an inquiry into the efficiency or reasonableness of the investigation to-date". Tennina, supra (2007) at para. 27. [25] So, what then is the purpose of the proposed inquiry into the investigative steps undertaken during the preceding detentionperiod? According to Corbett J., the justice should assess the progress of the investigation “for the limited purpose of determining whatadditional period of time the materials should be held, to enable orderly completion of the investigation." Tennina, supra (2007) atpara. 27. I do not find this proposition to be particularly persuasive.

It seems to me that a decision as to how much more time ought tobe granted to the investigators, if any, can only flow from an assessment of the work that has yet to be done. After determining that anextension of the time for detention of the exhibits is warranted, the justice must examine the investigative steps that will be taken in thefuture and the time estimates provided by the investigators. He or she will then come to a common sense conclusion as to how muchmore time should be allowed.

An assessment of the work that has already been done is of limited assistance, if any, to thisdetermination. [26] To my knowledge, the decision in Tennina has not been the subject of comment in any decision by a British Columbia court. [27] I accept that an applicant under s. 490(2) of the Code must satisfy the justice that there is an on-going investigation. However,the burden of proof on this issue is very low. I reject the proposition that this burden can only be met if the affiant sets out in his affidavitthe details of the investigative steps that have been taken up to the date of the application.

The affidavit filed in support of theapplication need only contain sufficient information to satisfy the court that there is an on-going investigation. In my view, theinformation that is required to meet this burden will depend on the nature of the investigation itself. One can well imagine situationswherein the facts of the case speak for themselves.

For example, in a case alleging fraud upon Revenue Canada over a period of 5 years,coupled with the seizure of 700 boxes of financial documents, an assertion by the affiant that the investigation is on-going and more timebeyond the original 3 month detention period is required to analyse the documents would likely be sufficient, on its face, to satisfy thecourt that a longer detention period was warranted. [28] Once the justice is satisfied that there is an on-going investigation, the justice must then determine, having regard to the natureof the investigation, whether an extension of the period for detaining the seized property is warranted and, if so, how long.

The focushere is on the general nature of the investigation, the investigative steps that still need to be taken and the affiant's assessment of theamount of additional time that is required. In this respect, I am mindful of the concluding word of Corbett J. in Tennina, supra (2007) atpara 37: Where there is an active, ongoing investigation, it should only be in the rarest of cases that an extension is refused within the first year ofdetention.

Thereafter, the bar is raised higher. [29] Once it has been established that there is an on-going investigation, I see no need for the justice to assess the progress of theinvestigation prior to the date of the application. In my view, such an inquiry is of little value when determining how much longer thedetention time should be. The danger of embarking upon such an inquiry is that one runs the risk of drifting into an area that is of noconcern to the justice on the s. 490(2) application, that being the reasonableness of the investigative steps taken during the initial threemonth detention period.

In my view, that is precisely what happened in the Edmonton Police Service case, supra. d. The Nature of the Proceeding and the Use of Affidavit Evidence [30] The application under s. 490(2) of the Code is a 'summary application'. The evidence in support of the application can be byway of viva voce evidence, affidavit evidence, and even by way of facts agreed upon by all parties. Newport, supra, at paras. 9 and126(10). [31] In the present case, counsel for the respondent Classic Smokehouse objects to the affidavits filed by the Crown in support ofthe applications on the basis that they contain hearsay statements.

In this regard, he relies upon the decision of Canada (AttorneyGeneral) v. Acero, 2006 BCSC 1015 (B.C.S.C). In this case, Bennett J., as she then was, ruled that affidavit evidence is permissible onan application under s. 490(9) for forfeiture of seized property; however, hearsay information is not admissible. [32] In my view, the Acero decision, supra, is not applicable to an application under s. 490(2) of the Code.

A forfeiture hearingunder s. 490(9) is a form of trial at the end of which the court must make a final determination as to whether the respondent will retain orlose his ownership interest in the seized property. The onus of proof is 'beyond a reasonable doubt'. This is in marked contrast to aproceeding under s. s. 490(2). The authorities are clear: The s. 490(2) proceeding is neither a pre-trial hearing, nor a trial, nor apreliminary inquiry.

The ruling made by a justice acting under s. 490(2) is a limited one – the property seized by the investigators will orwill not be detained for a further specified period of time. The total period of detention cannot exceed one year in duration. The rulingby the justice has no effect on the final property rights of the respondent. [33] Given the

summary nature of the s. 490(2) application, the very narrow determination that the justice makes during the hearing,and the low standard of proof required by the applicant, I am of the view that hearsay evidence is permissible in the affidavits filed insupport of the application. In other words, the affiant may refer to facts provided by other informants, so long as the reliability of thoseinformants is established.

In this respect, the affidavit stands on the same footing as the Information to Obtain the search warrant that ledto the original seizure of the property in issue. [34] Finally, there is some authority to the effect that the respondent may apply to the justice for leave to cross-examine the affiantduring a s. 490(2) hearing. Tran (Re), supra, para. 27; R. v. Evangelista (2001), 2001 ABQB 103 , 284 A.R. 155 (Alta. Q.B.).

In Evangelista, supra, it was proposed that the justice should apply a test similar to that used by the court when considering whether toallow cross-examination of an affiant in a search warrant case. If the test has been met and cross-examination is permitted, it must belimited to "eliciting testimony tending to discredit the claim [that] the retention of the exhibits is warranted (para. 21)". The 'thresholdtest' for permitting cross-examination of an affiant in a search warrant case is well known. Mere 'fishing expeditions' are not permitted.

The defence must show "a reasonable likelihood" that the cross-examination will elicit “testimony of probative value” that tends todiscredit the existence of one of the preconditions to the issuance of the search warrant, as for example the existence of reasonable andprobable grounds. See R. v. Pires and Lising, 2005 SCC 66 , [2005] 3 S.C.R. 343 at para. 3 and 10; R. v. Garofoli, (1991),

(SCC), 60 C.C.C. (3d) 161 at p. 198. [35] Given the nature of the hearing, the low burden of proof and the very narrow parameters within which the justice must operate,I am far from satisfied that cross-examination of the affiant during a s. 490(2) application should ever be allowed. However, since I amdismissing the application for leave to cross-examine in this case, I do not propose to comment further on this issue. ANALYSIS a. The Application to Cross-Examine [36] Counsel for Classic Smokehouse has applied to cross-examine the Fisheries Officer who swore the three affidavits that arebefore me.

In keeping with the Evangelista decision, supra, he has stated that his objective is to "discredit the claim that the furtherretention of the property is warranted". By itself, this general assertion does not provide a sufficient basis upon which to permit cross-examination. Counsel has provided some indication as to the specific areas of concern to him.

They include: the basis for the Officer'sassertion that he needed more time to investigate; the nature of the investigative steps taken since the seizure; how much time wouldeach of the proposed investigative steps take; why certain fish had been seized under the warrant when the Officer had originallyindicated they could be released (see the Dahlke affidavit on this issue); and why certain investigative steps were even necessary.

Onthis latter point, counsel specifically wants to know why the Officers need to create "a flowchart that illustrates the overall flow of fishthrough the plant and a timeline depicting movement of fish". (See para. 17(

b) of the Graham Affidavit of June 13, 2012) [37] Assuming there is a right to cross-examine the affiant on this s. 490(2) hearing, I am satisfied that the application for leave to doso must be dismissed in this case. After considering the submissions of counsel, in context with the affidavits as a whole, I haveconcluded that the threshold test for permitting cross-examination has not been met. The types of questions that counsel seeks to askamount to a far-reaching fishing expedition dealing generally with matters that are peripheral to the determination that I must make.

Inmy view, the proposed cross-examination is unlikely to assist me in reaching a conclusion on the narrow question before me. In comingto this conclusion, I have again been mindful of the low burden on the crown (something less than a balance of probabilities) and thewell established principles that, under s. 490(2), the crown need not lead evidence to satisfy the court that the steps taken by theinvestigators to date have been reasonable or lawful, or that the continued detention of the exhibits would be reasonable in thecircumstances.

In this respect, an application for leave to cross-examine the affiant on a s. 490(2) hearing, even if permissible, will be ona far different footing than a similar application in a proceeding under s. 490(3) of the Code. b. The Applications for an Extension of Time for Detention [38] I begin by noting that the affidavits of Officer Graham are far from perfect.

Still, I am satisfied that they provide a reasonableand reliable basis upon which to consider the applications to extend the time for detention of the exhibits. [39] Taken as a whole, the affidavits in this case provide a good picture of the 'nature of the investigation'. Here, I refer back to thosepassages from the affidavits that are set earlier in these reasons. The Form 5.2 Reports also reveal that countless 'totes' of fish andcountless documents were seized. However the case is far from just a 'paper chase'. Ultimately, the Fisheries Officers must try to sortout the origin of the seized fish.

They can only do this by tracking backwards through the documents. This work is time-consumingprecisely because of the discrepancies between the paperwork and the 'totes' of fish that have been seized and because of the lack ofadequate reporting and accounting records. [40] The following comments in the affidavits are also informative insofar as the 'nature of the investigation' is concerned.

Theyindicate, albeit in somewhat vague terms, that a review of the seized documents and the seized fish has begun: ". . . the search warrant documents confirmed that some of the fish stored at this facility [Leader Cold Storage] was associated to lotnumber that [during his earlier warned statement] Stuart DAHLKE could not provide a know source or origin (supplier). . . .

In addition to the fish seized, documentation was seized which indicate there is even more fish that has moved through Leader ColdStorage which is associated to lot numbers with no known source or origin (original supplier)." (June 13, 2012, para. 11) ". . . Piecing together the flow of fish in and out of the plant as the same fish change lot numbers is a time consuming task especiallygiven the cryptic codes, overlapping client identifiers, etc." (May 28, 2012, p. 2) "This investigation is time consuming and complex due to the unique book keeping system used by Classic Smokehouse

(2003) Inc. Thetracking system for fish used by this business includes lot numbers containing initials of suppliers that even Stuart DHALKE cannotattribute a source or origin." (June 13, 2012, para. 14) [41] Based on the information set out in the affidavits, I am satisfied that there is indeed an on-going investigation.

In thecircumstances of this case, the fact that the affidavits do not detail the various investigative steps taken so far does not detract from thisconclusion. [42] Indeed, it would appear that, through their investigative work, Officers quickly realized that they would not be able to completetheir investigation within the original three (3) month detention period.

Officer Graham was expeditious in seeking an order forextending the detention period, filing his first affidavit and Notice of Application at the two month mark (May 28, 2012), rather thanwaiting until the 3 month deadline. [43] The June 13, 2012 affidavit of Officer Graham lists a number of steps that need to be taken by the investigators. When it comesto assessing the nature of this investigation and the amount of time that might be required to complete the investigation, this list hasproven to be quite informative. See para. 17: a.

Analyze the original paperwork and work towards creating a flowchart that illustrates the overall flow of fish through the plant anda timeline depicting movement of fish.

b. Follow up investigating invoices with suppliers and po t ent i ally match up carbon copies and take statements from such alleged suppliers of fish shipments. c. Take statements from involved parties, which will include showing them original documents. d. Organize with the Canadian Food Inspection Agency to test all fish seized. This test will determine the age of the fish along with the presence of any pathogens . These tests will confirm whether or not the suspect fish is fit for public/human consumption . e. Attempt to determine the source of the fish so as to determine whether it was lawfully possessed. f.

Investigate the defence due diligence. [ 44 ] As noted above, I am satisfied that there is indeed an on-going investigation. Based on the information contained in the affidavits before me, I am also satisfied that an extension of the time period for detaining the exhibits is warranted, having regard to the nature of the investigation [ 45 ] The applications before me are both for time extensions of 9 months.

However, within the body of each affidavit there is a more specific statement to the effect that "it will take several more months before a complete analysis of the seized paperwork is complete and charges are laid." (June 13, 2012, para. 16; Supplementary Affidavit of June 13, 2012, para 5; May 28, 2012, p. 2) [ 46 ] In determining the appropriate length of time for an extension of the detention period, I must take into account not only the needs of the investigators, but also, to some lesser degree, the financial impact that the seizures have had and continue to have on Classic Smokehouse.

However, I am mindful of the fact that, during a s. 490(2) hearing, the weight to be given to this latter factor is minimal. CONCLUSION [ 47 ] The property seized from Classic Smokehouse and Leader Cold Storage is to be detained for a further period of time, up to and including October 23, 2012. In effect, the original 3 month detention period is extended by a further 4 months. [ 48 ] There is a last minute application by the crown asking me to order the return of cell phones seized pursuant to the two warrants.

I have indicated that I will sign an Order to this effect, as drafted by counsel. ______________________________ The Honourable Judge F.E. Howard Provincial Court of British Columbia