R. v. Le and Nguy Date:, 2018 BCPC 48

Citation: R. v. Le and Nguy Date: 20180301 2018 BCPC 48 File Nos: 81066-1/81066-2 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 490(2) OF THE CRIMINAL CODE FOR AN ORDER FOR FURTHER DETENTION OF THINGS SEIZED REGINA v. Tony Ching LE and Jeanette Yee NGUY RULING ON APPLICATION OF THE HONOURABLE JUDGE D. SUDEYKO

Agent for the Public Prosecution Service of Canada: David Patterson Counsel for Mr. Le: Brent Anderson Place of Hearing: New Westminster, B.C. Date of Hearing: February 7, 2018 Date of Judgment: March 1, 2018 Background [1] On November 6, 2017, the police attended a domestic call, but soon discovered evidence of drug trafficking in the home. As aresult, they arrested the occupants for Possession for the Purpose of Trafficking (“PPT”) and seized some money incidental to thatarrest.

The police then obtained a search warrant for the residence that resulted in the seizure of various items in connection with drugtrafficking, including illicit drugs and drug paraphernalia, electronic communication devices, computers, money in differing amounts andcurrency, as well as some ammunition and a machete. The total number of seized items totals 138. [2] Although the police expect to recommend charges of PPT against the occupants, no charges have yet been laid. [3] The police filed a Report to Justice pursuant to s. 489.1 of the Criminal Code on November 20, 2017, documenting the itemsseized.

As required under s. 490(1), the police satisfied the Justice, in this case, that “detention of the seized thing is required for thepurposes of any investigation”. This granted the police a maximum 3 month period to detain the items from the date they were seized. [4] However, the Crown now applies for the continued detention of the seized items for a further period. Pursuant to s. 490(2),this is a

summary application and I must be “satisfied that, having regard to the nature of the investigation, its further detention for aspecified period is warranted”. [5] The Crown have filed an affidavit from an investigating police officer in support of their application, which also lists anddescribes in

summary form the many seized items allegedly related to the drug trafficking operation. The affidavit describes the need foranalysis of certain seized items for the investigation, and estimates the time required to complete that and allow review by the Crown,that being a further 5 months. In their submissions, the Crown also says that the concern over delay, arising from the R. v.

Jordan, 2016SCC 27 , [2016] 1 S.C.R. 631 decision, leads to the intention to only lay charges when most, if not all, of the Crown disclosurecan be provided to the charged party. [6] One of the occupants of the residence, Tony Ching Le (“Mr. Le”), opposes the order for continued detention of the seizeditems. Mr. Le says that the Crown has an onus to provide some evidential basis for the continued detention of all of the seized items andthat the affidavit fails, in regard to many of the items, to do so.

He has also applied for return of certain items pursuant to s. 490(7) and490(9)(c), but acknowledges that there is no authority to do so if the continued detention is ordered under s. 490(2). [7] The issue in this case is whether the affidavit in support of the Crown’s application provides sufficient information to grant thecontinued detention of the seized items. The Legal Principles [8] I was referred to the cases of R. v. Tennina (ON SCDC), 88 O.R. (3rd) 27 and 2008 ONCA, R. v. Raponi,2004 SCC 50 , [2004] 3 S.C.R. 35, R. v. Evangelista 2001 ABQB 13 , 2001 A.B.Q.B. 13, as well as R. v.

Craig (2016)2016 BCCA 154 , 335 C.C.C. 28 (B.C.C.A.). [9] From these cases, I adopt the following legal principles relevant to the applications before me: 1. That the purpose of s. 490 is to ensure the property rights of individuals are fairly balanced against the legitimate need ofongoing investigations; 2. That once it is established that the seized items are required to be detained for the criminal investigation pursuant to s. 490(1),the scope of the inquiry under s. 490(2) is primarily prospective and limited to the investigative steps yet to be taken and the estimate oftime required to do so; 3.

That substantial deference should be shown to investigators, especially at first instance following the 3 month limit under s.490(1). Analysis [10] The Crown’s onus at this stage does not make it necessary to re-establish that each seized item’s detention is required for thepurpose of the investigation, since that was done by the Justice pursuant to s. 490(1). Moreover, Mr.

Le has not put forward anyevidence, or even made submissions, that the finding of the Justice no longer applies to any of the seized items. [11] The focus at the s. 490(2) stage is to determine if, and to what extent, the request for additional time to detain the seized itemsfor the purpose of the investigation is warranted. [12] In my view, the affidavit filed by the Crown, together with their submissions, is sufficient to satisfy the basis for the continueddetention of all of the seized items for the period of time requested.

[ 13 ] Although the examination by the court of the progress of the investigation to date is to be minimal, the affidavit certainly shows that the investigation is indeed proceeding, with several items having been forwarded for analysis. [ 14 ] The affidavit also establishes that the police are awaiting the results of those analyses, including the alleged drugs seized and data evidence from the electronic devices, and estimates the time necessary to receive those results, complete the report to Crown, and allow for review by the Crown.

Having regard to the nature of the investigation, I conclude that the specified period of 5 months for further detention of the seized items is warranted. Conclusion and Order [ 15 ] I grant the Crown’s application for a 5 month continuation of detention of all seized items pursuant to s. 490(2) of the Criminal Code , and dismiss the application of Mr. Le for return of any of the items. The Honourable Judge D. Sudeyko Provincial Court of British Columbia