R. v. Booth, 2021 BCPC 169

Citation: R. v. Booth 2021 BCPC 169 Date: 20210706 File No: 35289-1 Registry: Terrace IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Re: Application pursuant to Section 490(2)(

a) of the Criminal Code and Shawn Ernest Hinton Booth REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. PATTERSON Appearing as the Applicant: Constable J. Campbell Appearing as the Respondent S.E.H. Booth Place of Hearing: Terrace , B.C.

Dates of Hearing: June 17 and July 6, 2021 Date of Judgment: July 6, 2021 [ 1 ] On March 17, 2021, Constable Campbell filed a Report to a Justice (Following Seizure of property and/or Warrant to Search) – Form 5.2 at the Court Registry in Terrace, setting out his seizure of $14,135.55 in cash from Shawn Ernest Hinton Booth on March 16, 2021. [ 2 ] On April 14, 2021, Justice of the Peace Harder was satisfied that the detention of the $14,135.55 was required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding. As such, pursuant to s. 490(1) (

b) of the Criminal Code , Justice of the Peace Harder made a Detention Order For Things Seized , authoring the Royal Canadian Mounted Police (“RCMP”) to detain the seized $14,135.55 for a period of three months from the date of seizure. The exact wording of the Detention Order For Things Seized reads, Upon application of Cst. Jeffrey CAMPBELL and having been satisfied that the detention of the thing(

s) seized is required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding, it is hereby ordered that pursuant to Section 490(1) (

b) of the Criminal Code the articles set out in the Report to a Justice be detained for a period of three months from the date of seizure, unless an application for a order of further detention is made, or proceedings are instituted in which the thing(

s) detained may be required. It is also ordered that the article(

s) be entrusted to the custody of the applicant or his/her designate. [ 3 ] Sometime on or before June 6, 2021, with the detention expiry date approaching, Constable Campbell prepared a Notice of

Application and an Application for an Order for Further Detention of Thing(

s) Seized , setting out that on June 9, 2021, at 9:30 AM, at the Terrace Courthouse, he would be applying pursuant to s. 490(2) (

a) of the Criminal Code to the Court for an order allowing the further detention of the $14,135.55 for a period of more than three months after the day of the seizure. [ 4 ] On June 6, 2021, Constable Campbell served Mr. Booth with the Notice of Application and the Application for an Order for Further Detention of Thing(

s) Seized . [ 5 ] Mr. Booth appeared at the Terrace Court Registry on the morning of June 9, 2021, to oppose the making of the order. Because Constable Campbell had not filed the Application for an Order for Further Detention of Thing(

s) Seized with the Court prior to June 9, 2021, the matter did not appear on the June 9, 2021 court list at 9:30 AM. As a result, court staff sent Mr. Booth away from the courthouse. [ 6 ] After Mr. Booth had departed the Terrace courthouse, Constable Campbell filed the Notice of Application and the Application for an Order for Further Detention of Thing(

s) Seized at the Court Registry, seeking to have the matter heard on that date and time. The Application for an Order for Further Detention of Thing(

s) Seized was added to the courtroom 3 list. [ 7 ] At 11:05 AM on June 9, 2021, the matter was called in courtroom 3 in front of Judge Struyk, who had been advised by the court staff that Mr. Booth had been at the courthouse earlier in the day and had been sent home. Judge Struyk refused to hear the matter in Mr. Booth’s absence and he adjourned Constable Campbell to the Judicial Case Manager at 1:30PM on June 16, 2021, to fix a date for the hearing of the Application for an Order for Further Detention of Thing(

s) Seized . Judge Struyk also directed that Mr. Booth be contacted by court staff and told of the June 16, 2021 fix date. [ 8 ] On June 16, 2021, Judicial Case Manager Leonardes heard the matter. She set the hearing of the Application for an Order for Further Detention of Thing(

s) Seized for 10 AM the following day, June 17, 2021. Day One of the Hearing – June 17, 2021 [ 9 ] On June 17, 2021, Constable Campbell of the RCMP attended the hearing of the Application for an Order for Further Detention of Thing(

s) Seized by telephone and Mr. Booth appeared in person. Both Constable Campbell and Mr. Booth gave evidence under oath. Evidence of Constable Campbell [ 10 ] On March 16, 2021, Constable Jeffrey Campbell was on duty in Terrace, British Columbia, when he encountered Mr. Booth at the Staples store. Constable Campbell knew Mr. Booth and believed that he had grounds to arrest Mr. Booth in relation to two breach charges: Terrace RCMP Files 2021-2141 and 2021-1353. Based upon previous police interactions with Mr. Booth, Constable Campbell also believed that Mr. Booth could be in possession of a weapon.

Accordingly, Constable Campbell arrested Mr. Booth in relation to the two breaches and Constable Campbell searched Mr. Booth for weapons incidental to the arrest. [ 11 ] During the search of Mr. Booth, Constable Campbell located a bundle of money wrapped in elastic bands in Mr. Booth’s outside right coat pocket. A subsequent counting of the money by Constable Campbell confirmed 50 x $100 bills and 250 x $20 bills, for a total of $10,000. [ 12 ] Constable Campbell kept Mr. Booth in-custody and returned to the Terrace RCMP Detachment with Mr. Booth. Before placing Mr.

Booth into cells, Constable Campbell performed a further search of Mr. Booth. The second search resulted Constable Campbell locating $4,100 clumped together inside Mr. Booth’s jacket, plus a further $35.55 in loose bills and change. [ 13 ] Constable Campbell seized all of the money on the basis that he believed the $14,135.55 was proceeds of crime and that Mr. Booth was committing the criminal offence of money laundering. Mr. Booth protested, claiming that the money was legally possessed. Mr. Booth explained to Constable Campbell that he had saved the money from the Canada Emergency Response Benefit (“CERB”).

Constable Campbell did not believe Mr. Booth. [ 14 ] Having seized the $14,135.55, Constable Campbell began an investigation into Mr. Booth and the seized cash. As part of his investigation, Constable Campbell researched the CERB, applied for Production Orders for Canada Revenue Agency (CRA) records related to Mr. Booth, and contacted the BC Civil Forfeiture Office to see if they would be interested in having the cash forfeited as proceeds of crime. Constable Campbell also arranged for a police dog handler to have a drug detection police dog sniff the $14,135.55.

According to Constable Campbell, the drug detection dog indicted positive for the presence of drugs on the money. [ 15 ] Sometime on or before June 6, 2021, with the detention expiry date approaching and not having heard back from the CRA or the BC Civil Forfeiture Office, Constable Campbell realized that w ith no proceedings having been started or likely to start within the three month initial detention period, he needed to seek an order permitting the further detention of the $14,135.55. Evidence of Mr. Booth [ 16 ] Mr.

Booth’s testimony was a monologue that jumped from subject to subject, but in his evidence Mr. Booth did explain why he believes the court should not grant the Order for Further Detention of Thing(

s) Seized sought by Constable Campbell: I just like to tell the court that I had the -- the money on me from CERB which I saved over the year. Yes, technically, I am able to get CERB because of the fact that I make no money personally. I work and don't take money from my company which my main company was -- is SHE -- SEHD Construction Ltd., which I currently was working for Essence Properties for 12 years where I started from the bottom of that company as a -- as a garbage picker to lead that company as a VP of construction.

Now, being multiple projects and homes and stuff like that where I accumulated a savings in my company account. Now, as I save that money over the years, right, and when – the incidents that happened on last February of 2020, right, that's causing this destruction in my life is I haven't had a charge in 20 years prior to that. I had changed my life. I left prison. For 10 years, I was in prison. I got out. I became

a construction guy. I love construction. And health, it's the best thing in the world. I got more passion. My men, I had to leave them. Now, that's not -- that's evidence. I had the money. I saved CERB, period. I saved it. I work. I pay my taxes. I started a new company with that. August 14th, Convenient Service Inc. via ride sharing, I had to. My work, everybody thought I was crazy because I was able -- that why did you do that to the police? Well, they were beating on me. What am I supposed to do? They beat me. I didn't know. I have been in jail to be beaten. It happens. I'm sorry I defended myself.

Now from that, like my life just spiralled. It's the truth. Period, I had the money. I save money. I got more money at home that I saved. I pulled every dollar out of my account because of CERB. I got -- I pulled it out because of the fact, yeah, the CERB, COVID happened. They were scared. I have dates for the times I pulled out all my money. What is wrong with a man to carry his money in his pocket? Okay. I got -- I got 5,000 right now. Where is my wallet? I got 5,000, I'm carrying it on my card. What is wrong with that? A man can't carry money anymore? I was going to buy a vehicle that day.

In my pocket or my wallet where he says it wasn't taken out, five minutes before that, I had just cashed my -- my return from taxes for $3300. The receipt was in there, and they mentioned it. Why can't a man have money? That's it. [ 17 ] After Mr. Booth had finished his explanation as to why he had $14,135.55 in his possession on March 16, 2021, the court and Mr. Booth had the following exchange: The Court : Mr. Booth, now, I am going to ask you, is there any documentation you would like to supply the court to support your verbal -- Mr. Booth: I -- The Court : -- evidence that you have given me today? Mr.

Booth: I have supplied my CRA, that's all I should have to apply for. I -- I gave it to Mr. Campbell. He has it. I printed it off a CRA. I -- I also offered to bring my laptop there so they could look at my CRA. Yeah, I pulled out the money. I saved it. I started a new business Economic Relief. The Court : Okay. I am going to -- I am going to stop you there, Mr. Booth. Because I don't have those documents in front of me, sir. Mr. Booth: I am sorry, sir. The Court : So are you able to get copies of those documents for the court? Mr. Booth: Oh, yeah. I will -- I was going to my office.

I have an office here -- The Court : Okay. Mr. Booth: -- just behind you in the -- The Court : No, no. Mr. Booth: -- Trigo Building. The Court : One -- one moment. Mr. Booth: I will print them off for you. The Court : What we are going to do, sir, is, we are going to adjourn the hearing today. So I am not making a decision as to whether -- Mr. Booth: Yeah. The Court : -- I'm going to extend it or not. Mr. Booth: Yes, sir. The Court : But I am going to adjourn it. And the police can hold onto the money while the adjournment goes on. Mr. Booth: Oh, yeah, definitely.

The Court : So I am going to have a Judicial Case Manager fix a continuation date in front of me for another 30 minutes. Mr. Booth: Yeah. The Court : So that you can bring the documentation that you say supports the evidence you just gave me. Mr. Booth: Yes, sir. [ 18 ] The Judicial Case Manager subsequently set a continuation date for July 6, 2021. Day Two of the Hearing – July 6, 2021 [ 19 ] Constable Campbell and Mr. Booth both attended court on July 6, 2021. Mr.

Booth provided the court with documentation that he argues was downloaded earlier today from the CRA website and supports the evidence he gave on June 17, 2021. It was marked as

Exhibit 1. Analysis Issue One – What was the initial three month detention period authorized by the April 14, 2021 Detention Order For Things Seized ? [ 20 ] Section 490(2) states: Further detention

(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. [ 21 ] The

Interpretation Act , R.S.C., 1985, c I-21 , and relevant case law provide the methodology for computing the three month period in s. 490(2) correctly. I have set out the

Interpretation Act below:

Interpretation Act , R.S.C., 1985, c I-21 Computation of Time Time limits and holidays 26 Where the time limited for the doing of a thing expires or falls on a holiday, the thing may be done on the day next following that is not a holiday. Clear days 27

(1) Where there is a reference to a number of clear days or “at least” a number of days between two events, in calculating that number of days the days on which the events happen are excluded. Not clear days

(2) Where there is a reference to a number of days, not expressed to be clear days, between two events, in calculating that number of days the day on which the first event happens is excluded and the day on which the second event happens is included. Beginning and ending of prescribed periods

(3) Where a time is expressed to begin or end at, on or with a specified day, or to continue to or until a specified day, the time includes that day. After specified day

(4) Where a time is expressed to begin after or to be from a specified day, the time does not include that day. Within a time

(5) Where anything is to be done within a time after, from, of or before a specified day, the time does not include that day. Calculation of a period of months after or before a specified day 28 Where there is a reference to a period of time consisting of a number of months after or before a specified day, the period is calculated by (

a) counting forward or backward from the specified day the number of months, without including the month in which that day falls; (

b) excluding the specified day; and (

c) including in the last month counted under paragraph (

a) the day that has the same calendar number as the specified day or, if that month has no day with that number, the last day of that month. Time of the day 29 Where there is a reference to time expressed as a specified time of the day, the time is taken to mean standard time. Time when specified age attained 30 A person is deemed not to have attained a specified number of years of age until the commencement of the anniversary, of the same number, of the day of that person’s birth.

[22]

Section 28 of the

Interpretation Act is key to the current analysis. In the present case, the last month counted under paragraph (

a) is June 2021. The day that has the same calendar number as the specified day is the 16th. Accordingly, a plain reading of theInterpretation Act suggests that June 16, 2021 is the final day of the Detention Order For Things Seized. [23] Turning to the caselaw, three Ontario decisions are of assistance in determining the correct date that the three month period inthe present case expired. [24] The leading decision is R. v. Ashraf, 2016 ONCJ 584, beginning at paragraph 55. Although Ashraf deals with alleged violationsof the right to be tried within a reasonable time as protected by s. 11(

b) of the Canadian Charter of Rights and Freedoms, it is instructivein interpreting statutory timelines: B. How does one calculate delay? [55] Given the pivotal nature of the 18 month mark, the question of exactly how to compute delay is important. If one counts the totaldays and divides by 30, one result obtains. If one starts at one date, and counts each month that has elapsed, one arrives at a differentanswer. For example: 542 days elapsed between the date of the swearing of the Information and the close of the case on September 21,2016 in this case.

If one divides that number by 30, the result is 18 months and two days. If one begins on March 30, 2014 and countseach complete month plus the remaining days, the result is 17 months and 21 days. [56] The big picture is an overarching theme in Jordan. Judges ought to avoid failing to see the forest for the trees.

At para. 91, whendiscussing the calculation of time, the Court urges judges to refrain from parsing each day or month; rather, “judges should step backfrom the minutiae and adopt a bird’s-eye view of the case.” At para. 111, the Court suggests that the new framework “replaces themicro-accounting process with a global assessment.” [57] By establishing presumptive ceilings, the Jordan decision also aims to “enhance analytical simplicity.” There is an important publicinterest component to this new approach: “the clarity and assurance it provides will build public confidence in the administration ofjustice.” [58] I believe that the method of calculating delay that is most consistent with Jordan’s goals is to start at one date and count the numberof months that have elapsed since.

It is clear, simple and accords with common sense and everyday experience. [59] Interestingly, the

Interpretation Act (which applies only to statutory construction), mandates a similar approach to counting months. [60] Therefore, leaving aside the question of the time the matter is under reserve, I would assess the total delay at 17 months and 21days. [25] The second case of assistance is Tagg Industries v. Rieder, 2018 ONSC 5727, at paragraphs 52 and 53: [52] In R. v.

Ashraf, 2016 ONCJ 584, Band J. determined that a month should be calculated date to date, noting at para. 58 that thisapproach was “clear, simple and accords with common sense and everyday experience.” Ashraf was adopted with respect to this point byPaciocco J. (as he then was) in R. v. J.M., 2017 ONCJ 4, at para. 45. More recently, Ashraf was approved of on this point in R. v. Frail,[2017] ONSC 5886, at para. 23. In Frail, Schreck J. also noted at para. 23, that calculating months in this manner appears to be theapproach used by the Supreme Court in R. v.

Cody, 2017 SCC 31. 2018 ONSC 5727 10 [53] I agree that calculating a month as a calendar month is clear, simple and accords with common sense and everyday experience.Thus, I find that the proper way to calculate a month is not to count days, as advocated by Tagg, but rather to calculate date to date. Thus,if Mr. Rieder was entitled to one months’ notice, his notice would extend from December 5, 2015 to January 5, 2016. And on January 5,he would be entitled to his bonus, which would offset the loan. [26] The third case of assistance is R. v.

Leonard, 2019 ONSC 1493, at pages 36 – 37: The second point I feel compelled to note, at the outset of my analysis, (to the extent it may have relevance notwithstanding otherconsiderations noted below), is my disagreement with the suggestion that the calculation of months, when applying the Jordanframework, should include the date on which an initial event occurs; for example, that 30 months from the date of Mr. Leonard’s arrestat 10:35 p.m. on June 4th, 2016, should be taken as having expired on December 3rd, 2018, rather than on December 4th, 2018.

In thatregard, there seems to be a dearth of authority dealing with the specific issue of precise month calculation, particularly in the context ofdetermining the merits of s.11(

b) Charter applications; a dearth no doubt explained by the probable rarity of situations wherein anaccused seeks to stay a criminal proceeding on the basis that his or her trial exceeded the applicable presumptive Jordan ceiling by asingle day. However, I note, as Justice Band did in the case of R. v. Ashraf, 2016 ONCJ 584 (O.C.J.), that the provisions of the federalInterpretation Act, R.S.C., 1985 c.

I-21 specifically endorse an approach whereby a period of time defined by the passage of a specifiednumber of months after a specified date generally should not include the initial specified date, but instead be viewed as terminating onthe same numerical calendar day of the month the indicated number of months thereafter, without including the month in which theinitial specified date falls. Answer to Issue One [27] I find based upon s. 28 of the

Interpretation Act and the relevant case law set out above, that June 16, 2021 was the last day ofdetention authorized by Justice of the Peace Harder in the April 14, 2021 Detention Order For Things Seized, unless the Crownsuccessfully extended the detention period per s. 490(2)(

a) or proceedings were instituted in which the $14,135.55 may be required per s.490(2)(

b) of the Criminal Code. It is common ground that the Crown initiated no proceedings within the three month detention period. Issue Two – Because of the three month detention period ordered by Justice of the Peace Harder having an initial expiration dateof June 16, 2021 and the s. 490(2)(

a) hearing not having commenced until June 17, 2021, does the court have jurisdiction to grantthe Section 490(2)(

a) Order for Further Detention of Thing(

s) Seized sought?

[28] The decision of Judge Doulis in Re: Applications under Sections 490(9.1) and 487.3 of the Criminal Code, 2021 BCPC 31, isinstructive on the issue before the court. In Re: Applications under Sections 490(9.1) and 487.3 of the Criminal Code, Judge Doulisdealt with an application pursuant to s. 490(9.1) of the Criminal Code.

In explaining the chronology that brought the matter before her,she set out Judge Whyte’s ruling for earlier refusing to hear the matter as an application pursuant to s. 490(2)(a): [34] On October 6, 2020, Justice of the Peace Rocheleau’s detention orders expired. [35] Constable Lynde sought legal advice and understood that because the Crown had commenced proceedings prior to the expiration ofthe detention orders, it was still entitled to proceed under s. 490(2) of the Criminal Code.

As this appears to have been the case in R. v.Classic Smokehouse and Leader Cold Storage, 2012 BCPC 232 , I cannot say Constable Lynde’s belief in this regard wasunreasonable. [36] On November 5, 2020, Constable Lynde filed an affidavit in these proceedings supplemental to her October 1, 2020, affidavit.Constable Lynde stated in her November 5, 2020, affidavit: a. RCMP Constable Ashley Fer is a Cellebrite examiner for mobile devices. He is the RCMP officer who executed Judicial Justice Toy’ssearch warrant for the examination of the cellular devices the RCMP seized in their investigation of this matter.

Constable Fer hadprioritized the searches of the cellphone. He anticipated he could complete his search of Exhibit P-1 (the Samsung cellular phone) byNovember 23, 2020. Constable Fer says there was a 50% probability his search would fail, in which case Exhibit P-1 would need to go toRCMP’s E Division Digital Forensic Services (“E Division”) for further analysis; and b. Gerry Louie, a Member of E Division, advised Constable Lynde it would take a minimum of three to six months to complete a searchof Exhibit P-1.

This estimate could increase or decrease if his unit's current workflow was to change. [37] The Section 490(2) Applications came before Judge Whyte for hearing in Williams Lake Provincial Court on November 9, 2020.Constable Lynde represented the Crown, Mr. B. Herdy represented J.B. and M.I., Mr. P. McMurray represented R.H. and J.C. K.B. didnot intend in person or by legal counsel or agent. [38] Judge Whyte ruled that because the period of detention provided in the Section 490(1) Detention Orders expired, the Crown couldnot proceed on its application under s. 490(2) of the Criminal Code.

The Crown had to reapply for a further detention order under s.490(9.1), which is an exception to s. 490(9). Section 490(9) states: 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. [39] Section 490(9.1) provides: Exception

(9.1) Notwithstanding subsection (9), a judge or justice referred to in paragraph (9)(

a) or (

b) may, if the periods of detention provided for orordered under subsections (1) to (3) in respect of a thing seized have expired but proceedings have not been instituted in which the thingmay be required, order that the thing continue to be detained for such period as the judge or justice considers necessary if the judge orjustice is satisfied (

a) that the continued detention of the thing might reasonably be required for a purpose mentioned in subsection (1) or (4); and (

b) that it is in the interests of justice to do so. ….. [76] The second prong of the s. 490(9.1) test require the Crown to establish the continued detention of the item sought detained is in theinterests of justice under s. 490(9.1)(b). This is a very different test than the one for s. 490(2). In R. v. Raponi, 2004 SCC 50 ,the Supreme Court held the only question a provincial court judge is entitled to consider under s. 490(2) is whether continued detentionis required by a proceeding that has been instituted or by an investigation.

The evidentiary burden on the Crown is something less than abalance of probabilities. At most it requires an indication the peace officers need or do not need the property seized for the purposes setout in s. 490(2). The Applications judge has no jurisdiction under s. 490(2) to determine Charter issues, the lawfulness of therespondent’s arrest or the validity of the warrant, or the manner in which it was executed: Classic Smokehouse, at para. 15- 17; Trieu,

para. 38; and Tingley, para. 16. [29] As set out by Judge Doulis above, Judge Whyte had determined earlier that even though the Application for an Order for FurtherDetention of Thing(

s) Seized had been filed in the Court Registry within the initial three month detention period, because the hearing hadnot commenced within the initial three month detention period, the court lost jurisdiction and could not make the requested Order forFurther Detention of Thing(

s) Seized. [30] A month after Re: Applications under Sections 490(9.1) and 487.3 of the Criminal Code, Justice Punnett had occasion in FurtherDetention of Things Seized (Re), 2021 BCSC 567, to expand on what happens when an application for extension of a detention period isfiled within the time limit, but the hearing does not begin until after the expiration of the time limit. Beginning at paragraph 38: [38] The extension order of July 15, 2020 was granted to September 14, 2020. On September 9, 2020 the Crown recommended a furtherextension be sought and that application was filed September 10, 2020.

However, it was set for September 17, 2020. As a result, theorder expired before the hearing date. [39] The PCJ concluded: [36] However, the application before me was scheduled to be returnable after the existing order already expired. Jurisdiction is lost.There are no consents to save that jurisdiction and the application must fail. [40] The Crown submits it was not unreasonable that the hearing was set for September 17, 2020, although there is no evidence why thematter was not set sooner. [41] Section 490(2) provides in subsection (a): (

a) a justice, on the making of a

summary application to him after three clear days notice thereof to the person from whom the thingdetained was seized, is satisfied that, having regard to the nature of the investigation, its further detention for a specified period iswarranted and the justice so orders; or ... [42] The PCJ in support of her conclusion that scheduling the application after the existing detention order had expired resulted in a lossof jurisdiction, relied on R. v.

Thériault, 2015 NBPC 9, a decision of the New Brunswick Provincial Court: [33] At paragraph 22, the court sets out the requirements of s. 490(2) as follows: [22] The second issue raised that is relevant to the jurisdiction of the Court is whether the requirements of section 490(2) were compliedwith by the Attorney General. According to section 490(2), a party seeking further detention needs to: 1 file a

summary Notice of Application with Court; 2 obtain a hearing date; and 3 serve the person from whom the things detained was seized with the Notice at least three clear days before the date of the hearing; All of this before the expiration of the previous detention order. [34] With respect to timing, the court said this at paragraph 24 citing from R. v. Theriault as follows: [24] In R. v. Hickey [2003] N.B.J. No. 118, Justice McIntyre, in addressing the issue of the timeliness of the Application, reviewedthe decision of Legg J. in R. v. Papalia (BC SC). [1987], 38 C.C.C. (3d) 37 (which was decided prior to theamendment of section 490(2)(

a) that came into force on April 1st, 1995) and the comments made by Justice Hoyt of the N.B.C.A. in R.v. Mandate Erectors and Welding Ltd. et al (NB CA), 1995 163 N.B.R. (2d) 206 and said as follows: 16 In my view, the comment of Hoyt, C.J.N.B. in Mandate Erectors that the amendment to paragraph 490(2)(

a) gave statutory effect tothe decision in R. v. Papalia should not be interpreted to mean that the application could be heard outside the three-month period withoutloss of jurisdiction. His comments with reference to the decision in R. v. Papalia quoted above make it clear that he was in disagreementwith the view that “...the time limits in s. 490(2)(

a) are suspended pending the hearing of an application for further detention.” It appearsclear to me that the only part of the decision in Papalia to be given statutory effect is Legg J.’s conclusion that the decision of the justiceor the judge may extend outside the three-month period without loss of jurisdiction.

The three-day notice has to be given and theapplication heard prior to the expiry of the three months. (...) Following the hearing of the application within the statutory period, the justice or the judge may now with the 1995 amendmentadjourn for decision to a date outside the three-month period without loss of jurisdiction. [25] In my view, the decision of Justice McIntyre in R. v. Hickey (supra) should not be interpreted to mean that the Applicationcannot be adjourned outside the previous detention period to allow time, as the case may be, to complete the hearing.

If an adjournmentis necessary in the Court’s discretion, then section 490(2) provides that the previous detention period will end when the Application forfurther detention is decided. This

interpretation of section 490(2) will allow the necessary flexibility that parties and/or the Court may, attimes, need to properly address issues raised in some of those applications. [26] To that effect, I quote with approbation Judge Allen in R. v. Newport Financial Pacific Group S.A.

(2003) ABPC 80 Can LII atparagraph 126-11: Section 490(2) provides a time limit of three months from the date of seizure as one alternative. Another alternative is "or any longerperiod that ends when an application made under paragraph (

a) is decided”. This latter alternative means that as long as the applicationis returnable prior to expiration of three months from seizure of these items then it may be adjourned to allow time for the proceeding to

be completed. [43] A review of the authorities referred to in Thériault supports the conclusion of the PCJ that jurisdiction was lost when the application was not returnable before the existing order expired. [44] The Crown also submits that the PCJ was referred to s. 490(9.1) , and erred in not relying on it. I repeat s. 490(9.1) for convenience: 490(9.1) EXCEPTION — Notwithstanding subsection (9), a judge or justice referred to in paragraph (9)(

a) or (

b) may, if the periods of detention provided for or ordered under subsections (1) to (3) in respect of a thing seized have expired but proceedings have not been instituted in which the thing may be required, order that the thing continue to be detained for such period as the judge or justice considers necessary if the judge or justice is satisfied (

a) that the continued detention of the thing might reasonably be required for a purpose mentioned in subsection (1) or (4); and (

b) that it is in the interests of justice to do so. [45] The application was brought under s. 490(2) not 490(9.1). The PCJ does not mention s. 490(9.1) presumably because there was no s. 490(9.1) application, nor had “the periods of detention provided for” under subsection (1) to (3) passed. As a result, there was no jurisdictional error by the PCJ. [46] In my view the application of s. 490(9.1) before me does not arise from either the appeal or the application for prerogative relief nor was there a “fresh” s. 490(9.1) before me. [ 31 ] In the present case before the court, the timeline is as follows: Date of seizure of the $14,135.55: March 16, 2021. Date of service of the s. 490(2) (

a) application upon Mr. Booth: June 6, 2021. Date of filing of the s. 490(2) (

a) application in the Terrace Court Registry: June 9, 2021. Date of first court appearance in relation to the s. 490(2) (

a) application: June 9, 2021. Date the Judicial Case Manager fixed the s. 490(2) (

a) hearing date: June 16, 2021. Date the April 14, 2021 Detention Order For Things Seized expired: June 16, 2021. First day of the s. 490(2) (

a) hearing: June 17, 2021. Concluding date of the s. 490(2) (

a) hearing: July 6, 2021. Answer to Issue Two: [ 32 ] There is no evidence before the court that Mr. Booth consented to the start of the hearing of the Application for an Order for Further Detention of Thing(

s) Seized being outside the three month detention period provided for in the Detention Order for Things Seized . [ 33 ] Based upon the law set out in Re: Applications under Sections 490(9.1) and 487.3 of the Criminal Code and Justice Punnett’s teachings in Further Detention of Things Seized (Re) , which are binding on this court, I find that because the s. 490(2) (

a) hearing in the present case did not begin until June 17, 2021, the day after Justice of the Peace Harder’s Detention Order for Things Seized expired, the court lost jurisdiction. Without jurisdiction, the court cannot make the s. 490(2)(

a) Order for Further Detention of Thing(

s) Seized sought by Constable Campbell. Conclusion: [ 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 t he 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 . [ 35 ] In light of the law as it currently stands, the Crown must be vigilant to ensure that once their s. 490(2)(

a) application is filed in the Court Registry: 1 . The hearing is set to begin within the detention period allowed for by the Detention Order for Things Seized ; 2 . T he person from whom the thing detained was seized is given three clear days’ notice of the date and time for the hearing; and 3 . The hearing actually begins within the detention period allowed for by the Detention Order for Things Seized . [ 36 ] In the present case, Constable Campbell waited until June 9, 2021 to file his Application for an Order for Further Detention of Thing(

s) Seized . Had Constable Campbell filed the Application for an Order for Further Detention of Thing(

s) Seized with the court in advance of June 9, 2021, the matter could have appeared June 9, 2021 on the 9:30 AM court list and a judge could have commenced the hearing. Even if there had not been sufficient time available in court on June 9, 2021 to complete the hearing, as per Justice Punnett in Re: Applications under Sections 490(9.1) and 487.3 of the Criminal Code , the seized judge could have adjourned the continuation of the hearing to a date after June 16, 2021 without the court losing jurisdiction.

[ 37 ] I accept that the present case is nothing like the situated faced by Justice Masuhara in R. v. Gill , 2021 BCSC 152 and R. v. Gill , 2021 BCSC 377 . Constable Campbell was trying to comply with the legal requirements of s. 490(2)(a), albeit apparently without the assistance of legal counsel from the RCMP, the BC Prosecution Service, the Public Prosecution Service of Canada or the Director of Civil Forfeiture. [ 38 ] Constable Campbell has not asked the court to grant an Order for Further Detention of Thing(

s) Seized pursuant to s. 490(9.1) . The present application was brought pursuant to s. 490(2), not 490(9.1). There was no s. 490(9.1) application before the court on June 17, 2021 and there is no s. 490(9.1) application before the court today. Furthermore, the legal test in s. 490(2) is different from the legal test in s. 490(9.1) . [ 39 ] In the result, the court having lost jurisdiction, I decline making the s. 490(2)(

a) Order for Further Detention of Thing(

s) Seized sought by Constable Campbell and I also decline to order that the $14,135.55 continue to be detained pursuant to s. 490(9.1) . _____________________________ The Honourable Judge D. Patterson