R. v. Lewis, 2021 BCPC 372

Citation: R. v. Lewis 2021 BCPC 372 Date: 20210908 File No: 245230-2 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. DEAUNDRA LEWIS and EVANTEE STONEY RE: APPLICATION PURSUANT TO SECTION 490(2) OF THE CRIMINAL CODE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. LA PRAIRIE Counsel for the Crown: O. French Counsel for Evantee Stoney: V. Hartney Place of Hearing: Surrey , B.C. Date of Hearing: August 24, 2021 Date of Judgment: September 8, 2021

Overview [ 1 ] This is an application by Cpl. Amin Patel of the Surrey RCMP for an Order for the further detention of things seized pursuant to s. 490(2) of the Criminal Code . The RCMP seized the items on March 29, 2021, from Deaundra Lewis and Evantee Stoney, when the police responded to a call of a female having been shot at a residence in Surrey. [ 2 ] A Justice of the Peace authorized the detention of the seized items for a period of three months pursuant to s. 490(1) of the Criminal Code . The detention orders expired on June 29, 2021. On June 22, 2021, Cpl Patel provided notice to Mr.

Stoney, and on June 23, 2021, notice to Ms. Lewis, of his intention to apply for an Order to further detain the seized items. The notice sets out that the application would be made before a Provincial Judicial Justice, by telephone on June 29, 2021. [ 3 ] Through her counsel, Justin Myers, Ms. Lewis advised the officer that she was taking no position on the application. Through his counsel, Valerie Hartney, Mr. Stoney advised the officer that he was opposing the application.

As a result, a hearing was scheduled before a Provincial Court Judge on August 24, 2021. [ 4 ] On August 24, 2021, Olivia French appeared as counsel for the Attorney General of Canada on behalf of the RCMP to speak to the application. Ms. Hartney appeared on behalf of Mr. Stoney to oppose the application. As Ms. Lewis is not opposing the application, no one appeared on her behalf. [ 5 ] There were two issues raised at the hearing by Ms. Hartney on behalf of Mr. Stoney, in opposition to the application. The first issue concerned the jurisdiction of the Court to hear the application, as it was argued by Mr.

Stoney that Cpl. Patel did not comply with the provisions of s. 490(2) of the Criminal Code concerning notice and substance of the application, resulting in a loss of jurisdiction. The second issue concerned the bona fides of the application, assuming jurisdiction was not lost. [ 6 ] For the reasons that follow, I am satisfied that the Court has jurisdiction to hear the application, and the bona fides of the application have been met to Order the further detention of things seized pursuant to s. 490(2) of the Criminal Code . Background [ 7 ] The background of the matter is set out in the affidavit of Cpl.

Patel sworn June 28, 2021. [ 8 ] On March 28, 2021, at 11:51 p.m., the Surrey RCMP received a report of a female having been shot in the basement suite of 16399 113B Avenue, Surrey. The police attended the address and found Deaundra Lewis suffering from a single gunshot wound. Two other persons were present in the residence, Evantee Stoney who is Ms. Lewis’ boyfriend and Randolph Brown. [ 9 ] Ms. Lewis and Mr. Stoney advised the police that a black male had entered the residence, shot Ms. Lewis and then left. Mr.

Brown advised that he was at the back of the suite at the time and did not see or hear the shooting. [ 10 ] The police seized four cell phones from the scene on March 29, 2021. In addition, the clothing that Mr. Stoney was wearing was seized by the police as he was covered in blood. The bloodied clothing seized consisted of a white t-shirt, shorts and sweatpants. [ 11 ] Later on March 29, 2001, a search warrant was granted for the residence and the police seized various items. Certain items were swabbed by the police, while others were sent for fingerprint examination.

On April 1, 2021, a search warrant was granted in relation to the four cell phones seized at the residence. Fingerprint examinations were completed on April 6, 2021, and the examined items were returned to Cpl. Patel to be held as exhibits. [ 12 ] The police obtained video surveillance of the residence from March 29, 2021. The video depicts a vehicle arriving at the residence at 11:16 p.m., a person walks towards the residence, and approximately 30 minutes later the person is seen returning to the vehicle at a quick pace carrying a bag, with the vehicle departing at 11:47 p.m.

The police have identified a possible suspect but have not been able to locate the suspect. [ 13 ] In his affidavit, Cpl. Patel sets out he is seeking an Order for the further detention of certain seized items, so that the RCMP may conduct further examination of the items. [ 14 ] The notice of application to Ms. Lewis sets out that the RCMP is seeking to further detain the following items seized from her: i. White IPhone 11; and ii. Pajamas bottom with blood. [ 15 ] The notice of application to Mr. Stoney sets out that the RCMP is seeking to further detain the following items seized from him: i.

Grey IPhone 11 Pro; ii. Plain white t-shirt with blood; iii. Black and white Nike shorts with blood; iv. Camp sweatpants with blood; v. One intact 9mm bullet;

vi. Camouflage hoodie covered in blood; vii. Blue cup; viii. Three blue cups; ix. Wray and Nephew rum bottle; x. Five red shooter cups; and xi. Two Mikes Hard Lemonade cans. [ 16 ] The affidavit sets out the basis upon which the police are seeking an extension of the detention order for each of the enumerated items. [ 17 ] The police require further time to extract data from the cell phones. On April 18, 2021, the phones were examined by an officer who is a digital mobile field technician, but the officer was unable to extract data and suggested the phones be sent to the RCMP Digital Forensic Services (“DFS”).

Cpl. Patel believes that the DFS has software to access the phones, but it could take time as the technology is consistently changing. [ 18 ] The blood soaked clothes from both Ms. Lewis and Mr. Stoney have been sent to the RCMP lab for DNA analysis, which can take time if there is no DNA sample with which to compare the results. The RCMP hope to obtain consent DNA samples from both Ms. Lewis and Mr. Stoney. [ 19 ] The cups, bottle and cans seized from the residence have been sent to the RCMP lab for DNA analysis.

From the analysis the police hope to be able to determine the presence of the suspect’s DNA on the items. [ 20 ] The police are seeking to further detain the 9mm bullet seized from the scene. The police would like to be able to compare the bullet to any firearms that are recovered, to determine if the bullet came from a particular firearm. [ 21 ] Cpl. Patel sets out that the investigation is ongoing, with the suspect outstanding and results awaiting from the judicial authorizations, including analysis of the suspect’s DNA. [ 22 ] Cpl.

Patel submitted four Form 5.2 Reports to Justice, in relation to the items seized during the investigation on March 29, 2021. Each Report was signed by a Justice of the Peace, with an expiry date of June 29, 2021. [ 23 ] The police determined that there was no evidentiary value in relation to two Samsung phones, a small coin purse and $2020.00 that were seized. These items have been returned to Mr. Stoney and the family of Mr. Brown, who is now deceased. [ 24 ] Cpl.

Patel is seeking an Order to further detain the remaining items until June 29, 2022, one year from the date of termination of the initial detention order. However, an Order for further detention of the seized items cannot exceed one year from the date of seizure, of March 29, 2021. Therefore, an Order for further detention cannot extend beyond March 29, 2022. Notice Provisions [ 25 ] In his affidavit, Cpl. Patel sets out that he met with Mr. Stoney on June 16, 2021 to obtain his consent to further detain items seized from the scene. Mr.

Stoney would not provide his consent for the police to further detain the items, and requested that the Notice of Application be served on his lawyer. [ 26 ] On June 22, 2021, Cpl. Patel served Ms. Hartney with the Notice of Application by email, as per her client’s request. On June 23, 2021, Cpl. Patel served Mr. Myers, counsel for Ms. Lewis, with the Notice of Application by email, as per his client’s request.

The date listed for the Notice of Application was June 29, 2021, at 10:30 a.m., via conference call with a Participant ID number. [ 27 ] The Notice of Application dated June 22, 2021, refers to the affidavit of Cpl. Patel to be read in support. On June 28, 2021, Cpl. Patel affirmed his affidavit in support of the Application. A copy of the affidavit was provided to Mr. Myers and Ms. Hartney on June 28, 2021. [ 28 ] The Application did not proceed on June 29, 2021, as set out in the Notice. Rather, the Application was adjourned by consent of the parties to be heard by a Provincial Court Judge.

Statutory Provisions [ 29 ] The relevant provisions of the Criminal Code are found in sections 490(1) , (2) and (3) addressing the detention of things seized: Detention of things seized 490

(1) Subject to this or any other Act of Parliament, where, pursuant to paragraph 489.1(1)(

b) or subsection 489.1(2), anything that has been seized is brought before a justice or a report in respect of anything seized is made to a justice, the justice shall, (

a) where the lawful owner or person who is lawfully entitled to possession of the thing seized is known, order it to be returned to that owner or person, unless the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the detention of the thing seized is required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or (

b) where the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the thing seized should be detained for a reason set out in paragraph (a), detain the thing seized or order that it be detained, taking reasonable care to

ensure that it is preserved until the conclusion of any investigation or until it is required to be produced for the purposes of a preliminary inquiry, trial or other proceeding.

(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) More than one order for further detention may be made under paragraph (2)(

a) but the cumulative period of detention shall not exceed one year from the day of the seizure, or any longer period that ends when an application made under paragraph (

a) is decided, unless (

a) a judge of a superior court of criminal jurisdiction or a judge as defined in

section 552, 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, having regard to the complex nature of the investigation, that the further detention of the thing seized is warranted for a specified period and subject to such other conditions as the judge considers just, and the judge so orders; or (

b) proceedings are instituted in which the thing detained may be required.

(3.1) A thing may be detained under paragraph (1)(

b) for any period, whether or not an application for an order under subsection (2) or (3) is made, if the lawful owner or person who is lawfully entitled to possession of the thing seized consents in writing to its detention for that period. Issues [ 30 ] Two issues have been raised by Mr. Stoney on this Application. [ 31 ] The first issue concerns the jurisdiction of the Court to hear the Application based on timing and completeness. Ms. Hartney argues on behalf of Mr. Stoney, that Cpl.

Patel did not comply with the provisions of s. 490(2) by providing 3 clear days’ notice of the application, as the affidavit filed in support of the application was not affirmed and served until June 28, 2019, the day before the expiry of the Detention Orders. [ 32 ] In addition, Mr. Stoney points out that the application and materials in support of the application were filed with the court on June 29, 2021, the date scheduled for the hearing, as well as the date the detention order expired.

It is his position that this does not comply with the three clear day notice required under s. 490(2) . [ 33 ] In the circumstances, Mr. Stoney argues that the Court has lost jurisdiction to grant an extension order under s. 490(2) , as the application is out of time, and no application has been made for an extension order pursuant to s. 490(9.1). [ 34 ] In the alternative, Mr. Stoney argues that the affidavit of Cpl. Patel does not meet the bona fides for the granting of a further order of detention of seized items. Legal Considerations [ 35 ] In the case of R. v.

Classic Smokehouse and Leader Cold Storage , 2012 BCPC 232 , Judge Howard addresses the legal considerations applicable in determining whether there should be an order for the further detention of seize items pursuant to s. 490(2) . [ 36 ] At paragraphs 13 through to 16 she makes the following comments: 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. No. 2278 (Ont. Prov. Ct.) ; R. v. Newport Pacific Financial Group S.A. , 2003 ABPC 80 (Alta. Prov. Ct.) at para. 90 ; Tran, Re , 2004 BCSC 339 (B.C.

S.C.) 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 Ltd. , 2007 ONCJ 230 (Ont. C.J.) at para. 18 .

[ 37 ] Addressing the bona fides of an application Judge Howard commented at paragraph 17, that the onus is upon the Crown to satisfy the justice that further detention is warranted; noting that the standard is not an onerous one. She further commented at paragraph 19, that on an application under s. 490(2), the Crown need not establish either the complexity of the investigation or the reasonableness of a further extension of time.

Rather, the function of the justice is to determine these matters in an objective manner (quoting para. 99 of Newport , supra). [ 38 ] At paragraph 30, Judge Howard addresses the type of evidence that can be relied upon in support of an application under s. 490(2), stating: [30] The application under s. 490(2) of the Code is a 'summary application'. The evidence in support of the application can be by way of viva voce evidence, affidavit evidence, and even by way of facts agreed upon by all parties. Newport , supra, at paras. 9 and 126(10). [ 39 ] Finally, noting the

summary nature of an application under s. 490(2), the very narrow determination that the justice makes during the hearing and the low standard of proof required by the application, Judge Howard concludes that hearsay evidence is permissible in the affidavits filed in support of an application. (Para. 33) [ 40 ] In Alberta (Attorney General) v.

Black, 2001 ABQB 216 , Marceau J. made the following comments at paragraph 9, concerning the applicable procedures for the further detention of seized items under s. 490: [9] Section 490(1) sets out the basic rule that things seized should be returned to their lawful owner unless they are required for an investigation or court proceedings. Section 490(2) requires that the Crown apply to a Justice if they want to retain the thing seized for more than 3 months.

Finally, s. 490(3) allows the Crown to make more than one application under 490(2), but provides that the detention shall not exceed one year unless they show the continued detention of the thing seized is warranted given the complexity of the investigation, or given that the items may be necessary for a court proceeding. [ 41 ] In Further Detention of Things Seized (Re), 2020 BCSC 2226 , Ker J. noted that s. 490 does not function as a limitation period for investigations, but rather forces an exercise of responsibility carried by all participants in the justice system to make the most of limited resources. (See para. 17, referencing ACJ Holmes in Further Detention of Things Seized (Re) , 2019 BCSC 1345 ) [ 42 ] Mr.

Stoney relies upon the decision of Judge Patterson in R. v. Booth , 2021 BCPC 169 , to argue that this Court has no jurisdiction to hear the s. 490(2) application, as it was not filed within the time limits set out in the legislation, and by the time the application came before the court, the detention order had expired. The following comments of Judge Patterson at paragraph 34, are relied upon by Mr. Stoney: [34] An application pursuant to s. 490(2)(

a) for an Order for Further Detention of Thing(

s) Seized must be filed with the Court Registry in advance of the expiration date of the Detention Order for Things Seized . The Crown must also provide the person from whom the thing detained was seized three clear days' notice of the date and time for the hearing of the s. 490(2)(

a) application. Finally, the s. 490(2)(

a) hearing must begin before the expiration date of the Detention Order for Things Seized . That is: as long as the hearing has started within the detention period allowed for by the Detention Order for Things Seized , it can be adjourned for continuation to a date inside or outside of the detention period allowed for by the Detention Order for Things Seized . [ 43 ] Mr. Stoney also relies upon the comments of Justice Riley in the recent decision of Further Detention of Things Seized (Re) , 2021 BCSC 1323 , setting out what is required to perfect an application under s. 490(3).

In that case, Riley J. relied upon the Criminal Rules of the Supreme Court British Columbia , in particular Rule 2, governing pre-trial applications in superior court, in order to determine whether notice of an application pursuant to s. 490(3) had been perfected.

Noting that this is a case specific finding, Riley J. found that where the notice of application itself is lacking in detail, an affidavit in support cannot be relied upon, unless provided to the opposing party at least three clear days before the hearing. (See paras. 103 and 104) [ 44 ] Acknowledging that the Criminal Rules of the superior court are only applicable to applications brought pursuant to s. 490(3), not to applications in the Provincial Court pursuant to s. 490(2), Riley J. commented that “In the end, it is for Judges of the Provincial Court to address the procedural requirements for applications brought under s. 490(2)”. (See para. 66) [ 45 ] In the companion case of Further Detention of Things Seized (Re) , 2021 BCSC 1450 , Riley J. made the following comments concerning notice provisions under s. 490(3), at paragraph 4: [4] As a general observation, I would say an exercise of this sort — delving into the minute details of notice — should not normally be necessary.

The notice requirements under s. 490(3) of the Criminal Code as set out in the companion case of Further Detention of Things Seized (Re), 2021 BCSC 1323 (“ are relatively straightforward and can be summed up in two points. First, as a general rule, those from whom things have been seized must be given actual notice of an application for further detention, at least three clear days before the date on which the matter is spoken to in court.

Second, as in any pre-trial application brought in criminal proceedings in this Court, notice of an application under s. 490(3) must contain sufficient detail to comply with Rules 2(1) and 2(2) of the Supreme Court Criminal Rules, SI/97–140 (" Criminal Rules ”). Of course there are some exceptions or qualifications to these two points, and the Court has the discretion to vary the requirements for notice based on case-specific evidence, as explained in Re: Further Detention and M.P. at para. 75 to 81 and 96 to 97.

Thus, the Criminal Rules import sufficient flexibility to deal with a variety of circumstances where the applicant may face practical or legal challenges in meeting the notice requirements in the Criminal Code . Analysis Jurisdictional Issue [ 46 ] The first issue to determine is whether the court has jurisdiction to hear the application pursuant to s. 490(2). Mr. Stoney argues that jurisdiction was lost when Cpl. Patel did not provide three clear days’ notice of the application, as the affidavit dated June 28, 2021 was not included with the Notice of Application dated June 22, 2021 and served on Ms. Hartney.

As the detention order expired on June 29, 2021, Mr. Stoney argues that the court lost jurisdiction to hear the application pursuant to s. 490(2), as the notice provisions were not

complied with under the legislation. [ 47 ] I am satisfied that the Notice of Application was served on Mr. Stoney through his counsel Ms. Hartney within the time limits set out in s. 490(2). I also find that the filing of the application and materials in support on June 29, 2021, is of no consequence to the provision of notice. The fact that the materials were filed with the court on the date set for the hearing, does not render the notice a nullity, or reduce the timing of the notice. [ 48 ] Cpl. Patel met with Mr. Stoney on June 16, 2021, to obtain his consent to further detain items.

At that time he was advised to serve the Notice of Application on Ms. Hartney, counsel for Mr. Stoney. The Notice of Application, was served on Ms. Hartney on June 22, 2021, with a return date of June 29, 2021. On its face, the notice complied with the three clear day service requirement under the legislation. However, Mr. Stoney argues that the notice was not perfected, because Cpl. Patel did not include his affidavit with the notice, setting out the basis upon which the further detention would be sought. [ 49 ] Mr.

Stoney relies upon the decision of Justice Riley, to support his position that the notice served on Ms. Hartney on June 22, 2021 was lacking and not in compliance with the provisions of s. 490(2). [ 50 ] I am mindful of the fact that Justice Riley was dealing with an application pursuant to s. 490(3) of the Code , which permits the investigating officer to apply for an order to further detain items for a period of in excess of one year, from the date of seizure. That is an application, which can only be heard by a superior court judge.

At the hearing, the presiding judge must be satisfied that further detention of the seized things for a specified time is warranted having regard to the complex nature of the investigation. Under s. 490(2), a justice must be satisfied that having regard to the nature of the investigation, its further detention for a specified period is warranted. The test is not as onerous on a s. 490(2) application, as on a s. 490(3) application. [ 51 ] The real issue to determine in this case, is whether the absence of the affidavit of Cpl.

Patel, from the Notice of Application dated June 22, 2021, was in compliance with the provisions of s. 490(2). [ 52 ] The Notice of Application served on Mr. Stoney on June 22, 2021, sets out the 11 items the police wish to further detain pursuant to s. 490(2). The notice refers to the affidavit of Cpl. Patel, which will be relied upon at the hearing set for June 29, 2021. [ 53 ] The affidavit of Cpl. Patel was provided to Ms. Hartney on June 28, 2021, the day before the scheduled hearing.

The affidavit is 10 pages long, plus exhibits A through H. [ 54 ] The affidavit contains the following headings: Purpose of Application, Offences Under Investigation, Details of the Investigation, Previous Detention Orders, Return of Items, Notice of An Application to Obtain an Order for Further Detention of Things Seized, and Detention Extension Request, including a sub-heading of Future Investigative Steps. The affidavit of Cpl. Patel is not lengthy or time consuming to read. It is not difficult to follow.

It clearly lays out the status of the investigation and the reason for the application to further detain the listed seized items. [ 55 ] Addressing the necessity to provide an affidavit, along with a Notice of Application, Riley J. made the following comments at paragraph 92, of Further Detention of Things Seized (Re) , 2021 BCSC 1323 : [92] However, requiring the applicant to provide a copy of the supporting affidavit along with the notice would be problematic for a variety of reasons. As Sgt.

Bell-Irving explains, requiring an investigator to produce a sworn affidavit in time to include it with the notice, three clear days before the hearing, may leave investigators in a situation where they must rely on stale-dated information. This is a particular concern s. 490(2) applications where the period of detention is only three months, and the investigation may be moving very quickly. In other instances, investigators may seek to rely upon an affidavit that is sealed, or partially sealed, to protect aspects of an ongoing investigation.

In such circumstances, the authorities could not be expected to give the opposing party a copy of the affidavit in advance of the hearing, as that would undermine an ongoing investigation and defeat the purpose of any subsequent sealing order. Finally, the case law indicates that the application may be based on viva voce evidence, in which case no affidavit is ever prepared.

All of this augers against an approach that would require the applicant to provide the opposing party with notice accompanied by a sworn affidavit three clear days before the application. [ 56 ] I am satisfied that the notice provisions in s. 490(2) were complied with by Cpl. Patel. The affidavit provided in support of the application set out the status of the investigation and the reason for the further detention of the seized items. As noted by Justice Riley, whether the provisions of notice have been perfected, is a case-specific finding.

In the circumstances of this application, I am satisfied that the notice was perfected when it was served on Mr. Stoney on June 22, 2021 for a hearing on June 29, 2021. The notice set out the nature of the application, the seized items in question and the date of the hearing of the application. In addition, the notice referred to the affidavit of Cpl. Patel, which would be relied upon in the application. [ 57 ] I appreciate the affidavit was not provided to counsel for Mr. Stoney until the day before the scheduled hearing.

However, I am mindful of the comments of Justice Riley concerning the necessity of providing an affidavit along with the Notice of Application. The appropriate remedy in this case would be to adjourn the scheduled hearing to permit counsel further time to consider the contents of the affidavit, if necessary. I do not find that the provision of the affidavit on June 28, 2021, delayed the date of notice from June 22 to June 28, 2021. I am satisfied the notice was perfected on June 22, 2021, when it was provided to Ms. Hartney, counsel for Mr. Stoney. [ 58 ] In

summary, I am satisfied that the notice provisions pursuant to s. 490(2) were adhered to by Cpl. Patel. The application was perfected and before the court prior to the expiration of the detention order. The adjournment of the hearing scheduled for June 29, 2021, did not result in a loss of jurisdiction. Bona Fides [ 59 ] The second issue to determine concerns the bona fides of the application. As noted by Judge Howard in Classic Smokehouse , the onus of proof is not an onerous one. (See para. 17)

[ 60 ] At paragraph 18, Judge Howard commented that: In determining whether an extension of the detention period is warranted, the justice must have regard to “the nature of the investigation”. She further comments, that considerable deference is to be given to the investigators and the justice should not second guess the way they are conducting the investigation. At the same time, the justice should not simply rubber stamp the application, but determine the issue in an objective manner. [ 61 ] In his affidavit, Cpl.

Patel sets out the details of the investigation, the seized items, and those for which an extension of the detention order is sought. The seized items can be categorized into four headings: the cell phones, blood soaked clothing, blood splattered items and a bullet. [ 62 ] On April 1, 2021, search warrants were granted for the cell phones seized by the police. Cpl. Patel sets out in the affidavit that the police examined the seized cell phones but were unable to extract data from them due to unsupported software.

The police are requesting an extension of the detention order for the two IPhones so that they may be examined by the RCMP E Division Digitial Forensic Services. He notes that the extraction of data by the forensic unit can take time, as the software is consistently changing. [ 63 ] The blood soaked clothing has been sent to the RCMP lab for DNA analysis. Although the police have a potential suspect, they do not have a known DNA sample of the suspect to compare to the DNA located on the clothes. As a result, the DNA analysis can take longer to complete.

Likewise, the blood splattered items have been sent to the lab for DNA analysis, but there is no known DNA sample of the suspect to use in comparison. [ 64 ] The bullet has been sent to the RCMP lab for analysis to determine if it has the suspect’s DNA on it. Additionally, the police are hoping to compare the bullet to any firearms they seize as part of the on-going investigation, so they can analyse the tooling on the round of any firearms to see if the bullet came from a particular firearm. [ 65 ] The extension order being sought by Cpl.

Patel is to June 29, 2022, which is one year from the expiry of the initial detention order. However, the extension order being requested pursuant to s. 490(2), shall not exceed one year from the date of seizure, which would be March 29, 2022.

In any event, the affidavit sets out the investigative steps taken by the police to date, along with a justification for the continued detention of the listed seized items. [ 66 ] I am unable to conclude from the affidavit, that the police have been lacking in their efforts to move the investigation forward, or that they have failed to provide justification for the continued detention of the listed seized items.

As noted by Justice DeWitt-Van Oosten, as she then was, in Further Detention of Things Seized (Re) (07 December 2018), Vancouver 27752-1/27752-2 (B.C.S.C.), at paragraph 9, the threshold test under s. 490 for the further detention of seized items is relatively low. [ 67 ] I am satisfied based upon the affidavit of Cpl. Patel, filed in support of the Notice of Application, that the bona fides of the application under s. 490(2) have been met.

Conclusion [ 68 ] In relation to the first issue, the jurisdiction of the court to entertain the application pursuant to s. 490(2), I am satisfied that the notice provisions set out in the legislation were complied with and the Court has jurisdiction to consider the merits of the application pursuant to s. 490(2). [ 69 ] In relation to the second issue, the bona fides of the application pursuant to s. 490(2), I am satisfied that having regard to the nature of the investigation, the further detention of the seized items for the specified period stipulated is warranted. [ 70 ] Therefore, pursuant to s. 490(2) of the Criminal Code , there will an Order for the Further Detention of the Seized Items listed in the Notice of Application to Mr.

Stoney, dated June 22, 2021. An Order for Further Detention is granted to March 29, 2022. [ 71 ] Likewise, pursuant to s. 490(2) of the Criminal Code , there will be an Order for the Further Detention of the Seized Items listed in the Notice of Application to Ms. Lewis, dated June 22, 2021. Ms. Lewis did not oppose the application. An Order for Further Detention is granted to March 29, 2022. _____________________________ The Honourable Judge P. La Prairie Provincial Court of British Columbia