R. v. Chohan, 2022 BCPC 292

Citation: R. v. Chohan 2022 BCPC 292 Date: 20221028 File No: 249920-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 490(8) AND 490(9) OF THE CRIMINAL CODE FOR AN ORDER FOR RETURN OF THINGS SEIZED REX v. JIMMY CHOHAN and DAVI ESTRADA REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. LA PRAIRIE Counsel for the Crown: Kozulin, B Counsel for the Respondent , Chohan: R. Adair Counsel for the Respondent , Estrada: S. Williams Place of Hearing: Surrey , B.C. Date of Hearing: October 3, 2022 Date of Judgment: October 28, 2022

Overview [ 1 ] This is a ruling on applications filed by Jimmy Chohan and Davi Estrada for the return of seized items pursuant to sections 490(8) and 490(9) of the Criminal Code . [ 2 ] The items were seized by the RCMP on July 31, 2022 when the vehicle Mr. Chohan and Mr. Estrada were riding in was stopped and searched. A Justice of the Peace authorized the detention of the seized items for a period of 3 months pursuant to s. 490(1) of the Criminal Code . [ 3 ] The Form 5.2 detention orders are set to expire on October 30, 2022. [ 4 ] Pursuant to s. 490(8) of the Criminal Code , Mr. Chohan and Mr.

Estrada seek the return of the seized items prior to the expiration of the detention orders. The seized items include cell phones and cash. [ 5 ] Mr. Chohan and Mr. Estrada argue that the seizure of these items has caused them each hardship and that the items are not required for any ongoing investigation by the RCMP. [ 6 ] Cst. Szalay on behalf of the RCMP asserts that the items are required for an ongoing investigation into possession of property obtained by crime, as well as trafficking in a controlled substance. [ 7 ] For the reasons that follow, the applications of Mr. Chohan and Mr.

Estrada for the return of the seized items prior to the expiration of the detention orders are granted. Circumstances of Seizure [ 8 ] The circumstances of the seizures are set out in the affidavit of Cst. Szalay affirmed on September 6, 2022. [ 9 ] Cst. Szalay is a member of the RCMP Surrey Gang Enforcement Team. He was working and in uniform on July 31, 2022 with Cst. Thansingh when they decided to pull over a vehicle which they observed commit various motor vehicle infractions. Mr. Chohan was the driver of the vehicle, Mr.

Estrada was in the front passenger seat and a youth was sitting in the rear passenger seat. The vehicle was registered to a female. [ 10 ] Cst. Szalay recognized the three persons in the vehicle based on their involvement in drug trafficking and gang activity in the Lower Mainland. The officer had a previous encounter with Mr. Estrada who at that time was in possession of a concealed weapon. In addition, Cst. Szalay had recently encountered the youth who was engaged in drug trafficking.

On this basis, the officers detained the occupants of the vehicle and conducted a pat down search for officer safety. [ 11 ] Cst. Szalay located a concealed knife when patting down Mr. Estrada, who was arrested for carrying a concealed weapon. The officers then searched the vehicle pursuant to the arrest of Mr. Estrada. [ 12 ] The officers located a purse on the passenger side floor where Mr. Estrada had been sitting. The purse contained identification for Mr. Estrada, various items that were consistent with drug trafficking, four loose suspected pills of Oxycodone/fentanyl and bulk cash in the amount of $12,280.

The cash was held together with plastic bands which Cst. Szalay recognized as being consistent with drug trafficking. The officers also seized three cell phones from the purse. [ 13 ] Cst. Thansingh searched the rear seat of the vehicle and located bulk cash in a purse where the youth had been sitting. The cash was stored in a manner that Cst. Szalay recognized as being consistent with drug trafficking. The amount of the bulk cash was $10,945. Mr. Chohan later claimed to own the purse on the rear seat containing the bulk cash. [ 14 ] On August 1, 2022, Cst.

Szalay filed a Form 5.2 Report to Justice relating to the items seized from Mr. Estrada. He also filed a Form 5.2 Report to Justice relating to the items seized from Mr. Chohan. Both reports were submitted to a Justice of the Peace on August 8, 2022, with detention orders granted pursuant to s. 490(1) of the Criminal Code . The detention orders are for a period of three months from the date of seizure. The detention orders are set to expire on October 30, 2022. Claim of Hardship [ 15 ] Both Mr. Estrada and Mr.

Chohan claim that they have suffered hardship as a result of the seizure of items from them on July 31, 2022. Both have sworn affidavits in support of their claims of hardship. [ 16 ] In his affidavit sworn 4 August 2022, Mr. Estrada sets out that the seized funds represent a significant amount of money to him and his family. He states that the funds were given to him as a gift from an individual in the real estate industry. The money was given to Mr. Estrada as a gift for referring clients to this individual. Mr.

Estrada states that he is the primary source of income for his family, as his wife had to take time away from work due to a traumatic incident that occurred on April 4, 2022. The seizure of the funds has caused Mr. Estrada hardship in supporting his wife and daughter. [ 17 ] A second affidavit of Mr. Estrada filed in relation to an application for the return of seized items involving the Vancouver Police Department (“VPD”), outlines the traumatic incident involving his wife. On April 4, 2022, the VPD stopped Mr.

Estrada’s wife and daughter in a 2022 Mercedes-Benz GLE 53 at gunpoint, seizing the vehicle and its contents. Personal items were seized from the vehicle, including a Louis Vuitton side bag, a Louis Vuitton card holder, a Louis Vuitton key holder, two blackberry devices and $450 cash. The affidavit sets out that Mr. Estrada is facing hardship due to the seizure of these items by the VPD. [ 18 ] In support of Mr. Estrada’s application, an affidavit was sworn by Iqbal Singh who sets out that he is a mortgage advisor based in Langley. On July 31, 2022, Mr. Singh gave Mr.

Estrada $13,500 as a gift for referring clients to his business over the past two years. Cst.

Szalay’s affidavit sets out that the police seized $12,180 from Mr. Estrada. [ 19 ] Mr. Chohan has sworn two affidavits in support of his application. In the first affidavit sworn 22 August 2022, Mr. Chohan sets out that he has been employed as a respiratory therapist for the past 1 ½ years. He has no criminal record and is legally married. When the police stopped and searched the vehicle he was driving, Mr. Chohan was returning from visiting a childhood friend who is also a business acquaintance who owns five residential properties. Mr.

Chohan refers clients to this friend and is paid a commission for this service. The money the police seized from Mr. Chohan was given to him by his friend for the referrals. Mr. Chohan sets out that the amount of cash seized by the police was $10,300. Cst. Szalay’s affidavit sets out that it was $10,945. [ 20 ] In his second affidavit sworn 9 September 2022, Mr. Chohan sets out that he was hoping to pay off a portion of the student loans owed by both himself and his wife. He asserts that this is causing him significant hardship. [ 21 ] Mr. Singh provided an affidavit in support of Mr. Chohan’s application.

In his affidavit sworn 4 August 2022, Mr. Singh states that he is a mortgage broker based in Langley and that Mr. Chohan refers him clients. On July 31, 2022, Mr. Singh provided Mr. Chohan with $10,300 as a gift for a series of client referrals over the past two years. [ 22 ] In his affidavit, Cst. Szalay states that he conducted queries on August 24, 2022, for Iqbal Singh in the BC Financial Services Authority online database. There is no registered mortgage broker in BC by the name of Iqbal Singh. Police History of Applicants [ 23 ] In his affidavit of September 6, 2022, Cst.

Szalay sets out background information concerning police interactions with Mr. Estrada and Mr. Chohan. [ 24 ] Mr. Estrada has a criminal record with a trafficking conviction from 2017, as well as a failure to comply conviction. Mr. Estrada was charged with offences of possession for the purpose of trafficking, obstruction, kidnapping and aggravated assault, which were all stayed. In June 2022, Cst. Szalay assisted in a traffic stop arrest of Mr. Estrada and the same youth who was in the rear of the vehicle on July 31, 2022. At that time, they were found to be in possession of $3,900 along with Oxycodone pills.

In August 2021, he was stopped in a rental vehicle and found to have a knife in his pocket, plus $4,400 in cash. In July 2021, Mr. Estrada was stopped in a rental vehicle with bear mace in the driver’s side pocket, as well as eight cell phones. In April 2020, he was stopped in the company of Sukhdeep Pansal, who is involved in the Lower Mainland gang conflict, and they were found to be in possession of ten cell phones, as well as $10,000 in cash. [ 25 ] Mr.

Chohan has no criminal record but was charged with offences of possession for the purpose of trafficking, failure to comply with a recognizance, kidnapping and aggravated assault, which were all stayed. In January 2022, he was stopped in a vehicle with a canister of bear spray in the driver’s door pocket. In July 2021, he was stopped in the company of Mr. Pansal and had $3,000 in his possession. In June 2021, he was stopped in a vehicle with a canister of bear spray in the pocket and $5,580 in cash. Ongoing Investigation [ 26 ] On August 10, 2022, Cst. Szalay forwarded the seized monies to the RCMP Drug

Section to upload the cash to the Currency Reading and Tracing System, which reads the serial numbers of the bank notes to determine if any of the cash has been used in the purchase of drugs during police undercover operations. On August 11, 2022, he sent a sample of the suspected Oxycondone/fentanyl to the drug lab for analysis. On August 26, 2022, Cst. Szalay contacted the Canada Revenue Agency to ascertain the declared incomes of Mr. Estrada and Mr. Chohan, the information is still pending. [ 27 ] Cst.

Szalay sets out in this affidavit that he will be writing an Information to Obtain (“ITO)” for the three cell phones that were seized. He anticipates that he will have the ITO completed by October 30, 2022, and once a search warrant is issued and executed for the cell phones, there could be further ITO’s prepared for banking records of Mr. Estrada and Mr. Chohan. [ 28 ] To date no charges have been sworn against Mr. Estrada or Mr. Chohan. However, Cst.

Szalay sets out that he has grounds to believe that they have committed the offences of possession of property obtained by crime exceeding $5,000 as well as trafficking in a controlled substance. In his affidavit, Cst. Szalay sets out that the items seized from Mr. Estrada and Mr. Chohan on July 31, 2022 are required for the ongoing investigation into these offences. Statutory Provisions [ 29 ] The relevant provisions of the Criminal Code are found in sections 490(1) , (7) , (8) and (9) . 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. Application for order of return

(7) A person from whom anything has been seized may, after the expiration of the periods of detention provided for or ordered undersubsections (1) to (3) and on three clear days notice to the Attorney General, apply summarily to (

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

section 552, where a judge ordered the detention of thething seized under subsection (3), or (

b) a justice, in any other case, for an order under paragraph (9)(

c) that the thing seized be returned to the applicant. Exception

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

section 552, where a judge ordered the detention of thething seized under subsection (3), or a justice, in any other case, may allow an application to be made under subsection (7) prior to theexpiration of the periods referred to therein where he is satisfied that hardship will result unless the application is so allowed. Disposal of things seized

(9) Subject to this or any other Act of Parliament, if (

a) a judge referred to in subsection (7), where a judge ordered the detention of anything seized under subsection (3), or (

b) a justice, in any other case, is satisfied that the periods of detention provided for or ordered under subsections (1) to (3) in respect of anything seized have expiredand proceedings have not been instituted in which the thing detained may be required or, where those periods have not expired, that thecontinued detention of the thing seized will not be required for any purpose mentioned in subsection (1) or (4), he shall (

c) if possession of it by the person from whom it was seized is lawful, order it to be returned to that person, or (

d) if possession of it by the person from whom it was seized is unlawful and the lawful owner or person who is lawfully entitled to itspossession is known, order it to be returned to the lawful owner or to the person who is lawfully entitled to its possession, and may, if possession of it by the person from whom it was seized is unlawful, or if it was seized when it was not in the possession ofany person, and the lawful owner or person who is lawfully entitled to its possession is not known, order it to be forfeited to HerMajesty, to be disposed of as the Attorney General directs, or otherwise dealt with in accordance with the law.

Legal Considerations [30] The obligation of the police to seek an order of detention for seized items required for investigative purposes, was addressed byJustice Bennett (as she then was) in AG Canada v. Acero, 2006 BCSC 1015 at para. 2:

Section 489.1 requires the police officer who seizes items pursuant to a warrant issued under the Criminal Code or other federal Acts toreturn the item if there is no dispute as to who is legally entitled to possess it and it is not required for Court or further investigation. Ifthe item is required for further investigation or other Court purposes or there is a dispute as to ownership, then the police officer mustbring the matter before a justice and the justice is then to deal with the matter pursuant to s.490(1). [31] This obligation was reiterated in Alberta (Attorney General) v.

Black, 2001 ABQB 216 at para. 9: “Section 490(1) sets out thebasic rule that things seized should be returned to their lawful owner unless they are required for an investigation or court proceedings.” [32] In Acero, Bennett, J. commented that section 490(9) applies when proceedings have not been instituted and the time for detentionhas expired. At that stage, the court must determine whether to order the detained item be returned to the person from whom it wasseized or to the person who is lawfully entitled to the item, or if the possession is unlawful the court may order forfeiture.

Quoting fromthe decision of R. v. Mac (1995), (ON CA), 97 C.C.C. (3d) 115 (Ont. C.A.), Bennett, J. noted that a person ispresumed to be in lawful possession of any items in their possession and the onus is on the Crown to prove unlawfulness beyond areasonable doubt. (See paragraphs 4 and 6) [33] This concept was summarized by Judge Blake in R. v. Vandale, 2003 BCPC 409, at paragraph 15, where he noted that a personfrom whom property has been seized has the initial burden to prove on a balance of probabilities, that they possessed the property.

Oncethe burden of possession has been discharged, the person enjoys a presumption that the possession was lawful. The Crown may onlyrebut that possession by proving beyond a reasonable doubt that the possession was unlawful. [34] The provisions of sections 490(7) and (8) were addressed in the decision of R. v. Soares, 2020 ONCJ 243.

At paragraph 6, thecourt notes that “[S]ection 490 of the Code sets out a comprehensive procedural scheme.” [35] At paragraph 7, the court states: Subsection 490(7) provides that a person from whom anything has been seized may, after the expiration of the periods of detentionordered under s.490(1), bring an application for its return.

Subsection 490(8) provides that the court may allow an application to be madeunder subsection (7) prior to the expiration of the time frame referred to therein if the judge is satisfied that hardship will result unlessthe application is so allowed. [36] The hardship provisions relate to the timing of when an application can be brought. (See para. 8) [37] Under s.490(9) a seized item can be ordered returned to the possessor prior to the expiration of the period of detention, if the item

is not needed for any of the purposes outlined in s.490(1) or (4); specifically an investigation, preliminary inquiry, trial or other proceeding. (See para. 10) [ 38 ] Recently, Justice Riley made the following comments in Further Detention of Things Seized (Re) , 2021 BCSC 1323 , at paragraph 56 : The overall purpose of s. 490 of the Criminal Code is to provide for the administration and judicial supervision of things seized in connection with criminal investigations, in a manner that achieves a balance between the societal interest in the investigation of crime on the one hand, and the property and privacy interests of individuals with an interest in things that have been seized in a criminal investigation on the other hand.

The scheme includes a requirement for investigators to report the initial seizure to a justice (per s. 489.1 ), and sets out the steps required to obtain orders authorizing detention of seized things for various periods of time (per ss. 490(1) , (2) , and (3) ) prior to the commencement of proceedings in which the seized things will be required. However, s. 490 does not purport to impose a timeline for the conduct of criminal investigations: Alberta (Attorney General) v. Black , 2001 ABQB 216 at para. 20—21 .

Rather, the statutory scheme provides for judicial supervision of the periods of time in which seized things can be detained, up to the point where either proceedings have been instituted in which those things are required, or the investigative authorities determine that the seized things are no longer required. The regime "aims for the expeditious return of seized items because the lawful owner may want and need those items": Further Detention of Things Seized (Re) , 2019 BCSC 1345 …at para. 16.

The scheme also provides for other aspects of the administration of seized things, including a process for interested parties to access or view the seized things (per s. 490(15)), and a process for lawful disposition of seized things after the periods of detention provided for in the statute have expired (per s. 490(9)). Analysis Possession of Seized Items [ 39 ] Both Mr. Estrada and Mr. Chohan claim that they had possession of the items seized by the police and which they seek the return of prior to the expiration of the detention orders. [ 40 ] Mr.

Estrada seeks the return of $12,180 plus three cell phones found in the purse seized by the police from the front passenger floor. In his affidavit, Mr. Estrada states the amount of cash seized was $13,500, which is the same amount set out in the affidavit of Mr. Singh, but he concedes that the amount seized was actually $12,180 as set out in Cst. Szalay’s affidavit. [ 41 ] Mr. Chohan seeks the return of $10,945 found in a purse on the back seat of the vehicle. In his affidavit, Mr. Chohan states the amount of cash seized was $10,300, which is the same amount set out in the affidavit of Mr.

Singh, but concedes that the amount seized was actually $10,945 as set out in Cst. Szalay’s affidavit. [ 42 ] The first issue to be determined on an application for the return of seized items is whether the person seeking the return of the item was in possession of the seized item. [ 43 ] No issue has been raised on these applications that either Mr. Estrada or Mr. Chohan possessed the items they claim were seized from them. The Crown did not take the position that either Mr. Estrada or Mr.

Chohan had failed to prove on a balance of probabilities that either of them possessed the items, which they seek to have returned. Therefore, I am satisfied that Mr. Estrada has established that he was in possession of the $12,180 and three cell phones seized by the police. Likewise, I am satisfied that Mr. Chohan has established that he was in possession of the $10,945 seized by the police. [ 44 ] The presumption in law is that Mr. Estrada and Mr. Chohan each possessed the items lawfully. Although the affidavit of Cst. Szalay sets out a history of police involvement with both Mr. Estrada and Mr.

Chohan, including drug trafficking and gang affiliations, the Crown did not attempt to allege that they possessed the seized items unlawfully. Therefore, for the purpose of these applications, I must find that Mr. Estrada and Mr. Chohan were in lawful possession of the items seized from them, which they seek to have returned. Finding of Hardship [ 45 ] Both Mr. Estrada and Mr.

Chohan have filed affidavits setting out the hardship they have experienced due to the seizure of the items in their possession by the police on July 31, 2022. [ 46 ] An application for the return of seized items prior to the expiration of a detention order involves a two-step process. That process is set out in s. 490(8) of the Criminal Code . The first step requires the applicant to satisfy the justice that hardship will result unless the application is allowed.

The second step requires the applicant to satisfy the justice that the continued detention of the thing seized will not be required for any purpose mentioned in s. 490(1) or (4) of the Criminal Code . [ 47 ] The onus is on the applicant to meet these two steps. [ 48 ] Mr. Estrada’s affidavit does not address how the seizure of the cell phones has caused him hardship. However, in the affidavit he does set out that the seizure of the cash has caused him hardship, as he is the primary source of income for his family. There is no indication what his source of income is in the affidavit. [ 49 ] In Mr.

Chohan’s second affidavit, he sets out that the seizure of the cash has caused him hardship, as he has not been able to use the funds to pay off student loans for himself and his wife. [ 50 ] The onus is upon the applicants to establish hardship pursuant to s. 490(8). I am somewhat sceptical about the claims of hardship raised by Mr. Estrada and Mr. Chohan. However, the Crown did not challenge their claims of hardship, but rather took no position on whether the issue of hardship had been met on the first step under s. 490(8).

Therefore, in the circumstances, I am bound to accept the contents of the affidavits filed by Mr. Estrada and Mr. Chohan on the issue of hardship. As a result, I find that they have demonstrated hardship and the first step of the application pursuant to s. 490(8) has been met.

Ongoing Investigation [ 51 ] The second step in this application involves an assessment of the requirement to detain the seized items for the purposes of an ongoing investigation. As no charges have been laid, and no preliminary inquiry has occurred, or other proceeding identified, the sole issue to be determined is whether the seized items are required for an ongoing investigation as set out in s. 490(1) . [ 52 ] Cst. Szalay has set out in his affidavit the basis upon which he states the seized items are required for an ongoing investigation.

The offences being investigated are possession of property obtained by crime exceeding $5,000 and trafficking in a controlled substance. In his affidavit, he provides the investigative steps that are still in progress concerning the seized items. The investigative steps are as follows:

a) A full review and compilation of all of the evidence seized needs to be completed;

b) An Information to Obtain a Search Warrant for the cell phones needs to be completed and is currently in progress;

c) An Information to Obtain a Search Warrant for banking records is being considered depending on the results of the search warrant for the cell phones;

d) The results of the drug analysis needs to be received;

e) The results of the queries with the CRA (Canada Revenue Agency) needs to be received;

f) The true identity and activities of Iqbal Singh, who swore an affidavit to the courts, needs to be determined;

g) Based on the information learned from the aforementioned investigational steps, including the results of the search warrant on the cell phones and banking records, the determination needs to be made as to whether the seized currency is possession of property obtained by crime; and

h) Once the investigation is complete, a determination will be made of whether a Report to Crown Counsel (“RCC”) will be written seeking charge approval. The RCC will not be finalized until all other investigative tasks are completed. All of the items listed on Exhibit “A” and Exhibit “B” are still required as evidence in support of the recommended charges. [ 53 ] The affidavit of Cst. Szalay was sworn on 6 September 2022. The applications of Mr. Estrada and Mr. Chohan were heard on October 3, 3022. No follow up affidavit was provided by Cst.

Szalay outlining the status of the investigation since his affidavit was sworn. [ 54 ] It seems odd that Cst. Szalay needs three months for a review and compilation of all of the evidence seized on July 31, 2022. The Form 5.2’s filed by the officer for the detention orders, set out that a folding knife, three cell phones and cash were seized from Mr. Estrada, and that cash was seized from the vehicle, which relates to Mr. Chohan. Why the officer needs three months to catalogue these items is unexplained in the affidavit. [ 55 ] It also seems odd that Cst.

Szalay requires three months to draft ITO’s for the cell phones. He has not explained in the affidavit why he requires this amount of time to request search warrants for the phones. [ 56 ] It appears that many of the other investigative steps are dependent on the results of search warrants for the phones. The affidavit is silent as to why it would take three months to swear ITO’s for the cell phones and execute search warrants. [ 57 ] If the four pills of suspected Oxycodone/fentanyl analyse as controlled substances, Cst.

Szalay has not provided any details in the affidavit how that supports an offence of trafficking in controlled substances. [ 58 ] The identity of Mr. Singh could have been determined by cross-examining him on his affidavits filed in support of the applications. There was no request by the Crown to cross-examine Mr. Singh. Cst. Szalay has not set out in his affidavit how the detention of the seized items relate to the identification of Mr. Singh. [ 59 ] Cst. Szalay has not provided any details of the Currency Reading and Tracing System concerning the seized bank notes. As the currency was forwarded to the Drug

Section on August 10, 2022, it seems logical to expect the police are in possession of the results from that examination. The affidavit is silent on the results of the currency tracing. [ 60 ] The affidavit of Cst. Szalay falls short in explaining how the seized items, the cash and cell phones, are required for an ongoing investigation. From the affidavit, it does not appear that anything has been done to further this investigation.

It is also unclear why the police require a time period of three months to carry out the investigative procedures outlined in the affidavit. [ 61 ] I take guidance from the decision of Judge Solomon in R. v. Murray , Unreported, March 18, 2021, Surrey Registry, File No. 243673-1. Mr. Murray brought an application for the return of a cell phone and $7,356.70 cash seized from him by Cst. Szalay on February 19, 2021. The application was brought pursuant to sections 490(7) (8) and (9) of the Criminal Code , prior to the expiration of a detention order. The items were seized from Mr. Murray by Cst.

Szalay during a traffic stop for a motor vehicle infraction. [ 62 ] On the application before Judge Solomon, the first step of hardship under s. 490(8) was agreed to by the parties, as was the lawful possession of the items by Mr. Murray. At paragraph 4, Judge Solomon noted, “the only issue to be decided on this application is whether the detained things are required for the purpose of any investigation”. [ 63 ] At paragraph 5, Judge Solomon noted that the applicable standard for a further detention of seized items pursuant to s. 490(2) is a low threshold, referencing R. v.

Classic Smokehouse and Leader Cold Storage , 2012 BCPC 232 at para. 17-19 . On an application for the return of seized items pursuant to s. 490(8), Judge Solomon commented that: “the applicant bears the onus to prove that the low standard for continued detention is not met in this case”.

[ 64 ] In determining whether the detained things are required for the purpose of an investigation, Judge Solomon found that the applicable standard is one of an objective manner. (See paragraph 15 and 16) [ 65 ] In Murray , Judge Solomon determined that the seized cell phone and cash were not required for an ongoing investigation related to the possession of proceeds of crime, as there was no evidentiary basis set out in the affidavit of Cst. Szalay why the cash and cell phones were required for the investigation. Pursuant to s. 490(9), Judge Solomon ordered the return of the cell phone and cash to Mr.

Murray. [ 66 ] I find that Cst.

Szalay’s affidavit is lacking an evidentiary basis to establish that the seized cash and cell phones are required for an ongoing investigation into proceeds of crime or drug trafficking. [ 67 ] From an objective viewpoint, it is unclear how the seizure of four pills of Oxycodone/fentanyl, along with cell phones and cash constitutes an offence of trafficking in a controlled substance. [ 68 ] Likewise, it is unclear how the seizure of cash along with cell phones, could constitute the offence of possession of proceeds of crime. [ 69 ] In the circumstances, I am satisfied that the applicants have met the onus on them to establish that the seized cash and cell phones are not required for an ongoing investigation.

Conclusion [ 70 ] Pursuant to s. 490(9) of the Criminal Code , the items seized from Mr. Estrada, being $12,180 a white iPhone, a black iPhone and a black Samsung phone, are ordered returned to him. [ 71 ] Pursuant to s. 490(9) of the Criminal Code , the items seized from Mr. Chohan, being $10,945 are ordered returned to him. _____________________________ The Honourable Judge P. La Prairie Provincial Court of British Columbia