R. v. H.G. and I.O.I.C. Inc., 2022 BCPC 298

Citation: R. v. H.G. and I.O.I.C. Inc. 2022 BCPC 298 Date: 20221027 File No: 66146-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. H.G., also known as W.G., AND I.O.I.C. Inc. IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 490(2) OF THE CRIMINAL CODE FOR AN ORDER FOR FURTHER DETENTION OF THINGS SEIZED ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. LEE Counsel for the Crown: H. Russell Counsel for the Respondents: K. Frempong Place of Hearing: Richmond , B.C. Date of Hearing: Aug. 25, Sept. 22, Oct. 07 & 27, 2022 Date of Judgment: October 27, 2022

Introduction [ 1 ] THE COURT: This is an Application for Further Detention of Things Seized pursuant to s. 490(2) of the Criminal Code . The factual background is outlined in the Affidavit of Investigator David Eklof, sworn June 28th, 2022. [ 2 ] The respondents, H.G. and I.O.I.C. Inc., are being investigated for offences under the Immigration and Refugee Protection Act . In

summary, search warrants were executed on three different locations on April 6, 2022, namely: 1. [omitted for publication], Richmond, B.C.; 2. [omitted for publication], Richmond, B.C.; and, 3. [omitted for publication], Richmond, B.C. [ 3 ] What was seized during the execution of these warrants are listed in attachments A, B and C before the Court. In short, the Crown states that the only items that further detention is being sought are items 6 and 12 of the Report to Justice, Form 5.2, Exhibit D of the Affidavit of David Eklof sworn June 28, 2022, namely, two cell phones.

These two cell phones are described as an Apple iPhone 12 and an iPhone ZTE. All other items have been returned, some through prior orders of this Court. [ 4 ] The two iPhones that were seized and subject to this Application for Further Detention, were seized on April 6th, 2022, and granted a detention order for 90 days. The applicant is asking for further detention of these items until April 6th, 2023. [ 5 ] The respondents are opposed to the Application for Further Detention to further detain these items until April 6th, 2023.

They argue that a further detention from six months of the date of the sworn Affidavit of David Eklof is appropriate, that is, further detention until only December 28th, 2022. [ 6 ] Section 490(2) of the Criminal Code states as follows: 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. Issue [ 7 ] What, if any, should be the appropriate length of time for further detention of the two cell phones: A. the law; B. position of the applicant; C. position of the respondent; and, D. determination of the following:

(1) Does this Court have jurisdiction to hear this application under 490(2); and,

(2) Should there be further detention of the two cell phones? Analysis A. The Law [ 8 ] In R. v. Classic Smokehouse v. Leader Cold Storage , 2012 BCPC 232 , the Court stated at paragraph 13, 14, 17, 20, 27 and 29: 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. …

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

section 446 . c. The Nature of the Investigation 20 When determining whether an extension of the detention period is warranted, the justice must have regard to "the nature of the investigation". As noted above, on the s. 490(2) application, the Crown need not establish that the investigation is a "complex" one. Moreover, the justice “should not be second-guessing the investigators in the way that they are conducting the investigation”. Considerable deference is given to those investigators. Edmonton Police Service v.

A.H. , 2011 ABPC 124 at paras.39-39. … 27 I accept that an applicant under s. 490(2) of the Code must satisfy the justice that there is an on-going investigation. However, the burden of proof on this issue is very low. I reject the proposition that this burden can only be met if the affiant sets out in his affidavit the details of the investigative steps that have been taken up to the date of the application. The affidavit filed in support of the application need only contain sufficient information to satisfy the court that there is an on-going investigation.

In my view, the information that is required to meet this burden will depend on the nature of the investigation itself. One can well imagine situations wherein the facts of the case speak for themselves.

For example, in a case alleging fraud upon Revenue Canada over a period of 5 years, coupled with the seizure of 700 boxes of financial documents, an assertion by the affiant that the investigation is on-going and more time beyond the original 3 month detention period is required to analyse the documents would likely be sufficient, on its face, to satisfy the court that a longer detention period was warranted. … 29 Once it has been established that there is an on-going investigation, I see no need for the justice to assess the progress of the investigation prior to the date of the application.

In my view, such an inquiry is of little value when determining how much longer the detention time should be. The danger of embarking upon such an inquiry is that one runs the risk of drifting into an area that is of no concern to the justice on the s. 490(2) application, that being the reasonableness of the investigative steps taken during the initial three month detention period. In my view, that is precisely what happened in the Edmonton Police Service case, supra. B.

Position of the Applicant [ 9 ] The applicant argues that given the nature of the investigation, these cell phones should be detained until April 6th, 2023. The applicant argues that there is an ongoing investigation and that these items are needed for further investigation. The applicant further argues that paragraph 16 of the Affidavit of Cst.

Eklof outlines the vast amount of work that still needs to be done with respect to the analysis of the cell phones. [ 10 ] The applicant argues that the Application was filed and returnable to court before the expiry of 90 days; that is, it was before the justice of the peace on June 30th, 2022, after giving the respondent the appropriate three days' clear notice, as required. [ 11 ] The matter then appeared before a provincial court judge on July 4th, 2022, at 9:30 a.m., when brief submissions were made and the matter was then adjourned to the judicial case managers later that day to fix a date for a contested hearing. [ 12 ] The hearing date was scheduled for August 29th, 2022, and a contested hearing commenced that day. [ 13 ] The applicant argues that the detention order granted pursuant to s. 490(1) has continued to run past July 6th, 2022 to this day because of the making and perfection of the Application for Further Detention and that, therefore, the Application for Further Detention is properly made under 490(2).

They argue that the Court has not lost jurisdiction to hear this application. C. Position of the Respondent [ 14 ] The respondent argues that it is unclear in the Affidavit why the cell phones are needed for all the work that is described in paragraph 16, work that still needs to be done with respect to the investigation. They argue that, if further detention is warranted, in balancing the interests of the respondents in the cell phones and the nature of the investigation and the need for police to preserve evidence, further detention should only be until December 28th, 2022. D.

Determination of the Following Issues

(1) Does this Court have jurisdiction under s. 490(2) to hear this application? [ 15 ] In R. v. Booth , 2021 BCPC 169 , the Court stated at paragraphs 34 and 35. 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 .

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. The 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 . [ 16 ] The timeline in Booth is outlined in paragraph 31 : 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. [ 17 ] The applicant argues that s. 490 states that the application must be heard before a justice. They argue that s. 2 of the Criminal Code defines a justice as justices of the peace or provincial court judges.

They say that there is no issue or dispute that the respondents received the proper three days' notice of the Application before it appeared before the justice of the peace on June 30th, 2022, a date that is not in dispute by the respondents as being before the expiration of the initial 90-day detention order. [ 18 ] The applicant argues that the facts in Booth were unique, in that the application in Booth was flawed from the outset, as proper notice was not given to Mr. Booth. They also argue that the facts in that case were that Mr.

Booth was told to go home by the registry on the returnable date of June 9th, 2021, and that, therefore, when the Application was filed and called into court later that day, he did not appear as he had not been given proper notice of the application. Therefore, the applicant argues that, given that the notice requirement was insufficient, the returnable date of June 9th, 2021 was not proper and that the first returnable date after proper notice was given was June 17, 2021, which was after the expiration of the 90-day detention period.

The applicant argues that, unlike the facts of Booth , in the case before this Court, there was a proper return date before a justice, namely, a justice of the peace, before the expiration of the 90-day detention period. [ 19 ] In Further Detention of Things Seized (Re) , 2021 BCSC 567 , Mr. Justice Punnett stated at paragraph 38 to 43: 38 The extension order of July 15, 2020 was granted to September 14, 2020. On September 9, 2020 the Crown recommended a further extension be sought and that application was filed September 10, 2020. However, it was set for September 17, 2020.

As a result, the order 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 the matter 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 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... 42 The PCJ in support of her conclusion that scheduling the application after the existing detention order had expired resulted in a loss of 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 complied with 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 CanLII6992 (NB CA), 1995 163 N.B.R. (2d) 206 andsaid 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 effectto the decision in R. v. Papalia should not be interpreted to mean that the application could be heard outside the three-month periodwithout loss of jurisdiction. His comments with reference to the decision in R. v. Papalia quoted above make it clear that he was indisagreement with the view that "...the time limits in s. 490(2)(

a) are suspended pending the hearing of an application for furtherdetention." It appears clear to me that the only part of the decision in Papalia to be given statutory effect is Legg J.’s conclusion that thedecision of the justice or the judge may extend outside the three-month period without loss of jurisdiction.

The three-day notice has tobe given and the application 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,at times, 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 application isreturnable prior to expiration of three months from seizure of these items then it may be adjourned to allow time for the proceeding to becompleted. 43 A review of the authorities referred to in Thériault supports the conclusion of the PCJ that jurisdiction was lost when the applicationwas not returnable before the existing order expired. [20] In Further Detention of Things Seized (Re), 2021 BCSC 1323, Mr.

Justice Riley, in discussing whether an application in theSupreme Court was brought within time or out of time, stated at paragraph 109: 109 Since the prior detention order expired before the application was perfected and spoken to in court, the s. 490(3) application wasbrought out of time. To be clear, the approach I have described herein accounts for the phrase "or any longer period that ends when anapplication made under [this subsection] is decided" as set out in s. 490(3).

That language effectively provides that where the applicationprocess begins before the expiry of the existing detention order, the detention order continues until the application for an extension isdecided. But, in my view, the application process does not begin until the application for further detention is perfected and spoken to incourt, however briefly; the application does not have to be decided, but it has to be perfected. This means the application must bereturnable in court, on three clear days notice to the opposing party, on a date that precedes the expiry of the exiting order.

In this case,the application was not perfected and spoken to in court before the expiry of the existing order.

In these circumstances, to obtain an orderfor further detention, the applicant must rely on s. 490(9.1) of the Criminal Code, discussed below. [21] In the case before the Court, the respondent argues that although the returnable date for the application was June 30th, 2022, andwas prior to the expiration of the existing 90-day detention period, the hearing did not commence on that day, although the matter wasspoken to in court, albeit briefly. [22] In my view, it is clear from the various authorities that an Application of Further Detention of Things Seized under s. 490(2) mustbe perfected prior to the expiration of the current detention period or jurisdiction will be lost under s. 490(2).

Furthermore, in my view,for an application to be perfected under s. 490(2), the following must take place prior to the expiry of the current detention period:

a) The Application must be filed and a returnable date given for a court appearance before a justice.

Section 2 of the Criminal Codedefines justices as "justice means a justice of the peace or provincial court judge, and includes two or more justices where two or morejustices are, by law, required to act or, by law, act or have jurisdiction".

b) There must be three clear days' notice given to the opposing party with respect to the returnable date.

c) The returnable date must be prior to the expiration of the detention period. In this case, the current detention period was 90 days.

d) The returnable date must be before a justice.

e) The matter must be spoken to in Court, as per Mr. Justice Riley in Further Detention of Things Seized (Re), 2021 BCSC 1323,"however briefly". There is no suggestion by Mr. Justice Riley that a hearing such as a contested hearing must actually commence. [23] Once all of the above is done, then the application is seen to be perfected and all of this must take place prior to the expiry of thecurrent detention period. Again, in this case, the initial detention period was 90 days.

[24] In this case, the Application was filed prior to the expiration of 90 days. There is no dispute as to that fact. [25] There is also no dispute that three clear days' notice was given to the respondents. [26] The first returnable date was June 30th, 2022, before a justice of the peace. Therefore, the matter did appear before a justice, ascontemplated in s. 490(2). [27] Finally, the matter was spoken to, however briefly, on June 30th, 2022. There is no dispute by the respondent that the matter wasspoken to in court on June 30th, 2022.

The respondent, however, argues that the actual contested hearing did not commence on that day.However, in my view, Mr. Justice Riley emphasizes that the matter must only be spoken to, as opposed to a contested hearingcommencing. [28] Mr. Justice Punnett in Further Detention of Things Seized (Re), 2021 BCSC 567, refers to when the "returnable date" was.

Inthat case, the returnable date and the hearing date was on the same day, namely, September 17th, 2020, three days after the expiry of theinitial detention period of 90 days and, therefore, the facts in that case are different from the facts before this Court, as we have areturnable date on June 30th, 2022, which was before the expiration of the initial 90-day detention period. [29] In Booth, the first returnable date was without proper notice to the opposing party, Mr. Booth, and was thus invalid. The firstproper returnable date before the justice was after the expiration of the 90-day detention period.

It is clear that perfection of theapplication in Booth failed to take place before the expiry of the 90-day detention period and the Court ultimately found that the Courtlost jurisdiction under s. 490(2). [30] In this case, I do find that the application was perfected prior to the expiration of 90 days. [31] I also find that this application was properly brought before the Court under s. 490(2) of the Criminal Code.

(2) Should there be further detention of the two cell phones? [32] I am satisfied that there is an ongoing investigation. [33] I am satisfied that the burden is on the applicant to show that further detention of the seized items, namely, the two cell phones,is warranted. However, this burden is not an onerous one. I agree with the applicant, and am satisfied, that Affidavit materials outlinesufficiently the work that still needs to be done with respect to this investigation as it pertains to these two cell phones.

I have balancedthe property rights of the individuals from whom the cell phones were seized with the state's legitimate interest in preserving evidenceduring an ongoing investigation into alleged criminal activity. [34] In R. v.

Teninna, (ON SCDC), the Court stated at paragraph 37: [37] For the reasons I have expressed, I am not satisfied that the text of the Code provisions preclude any kind of substantive reviewof the investigation, as part of determining whether continued detention is justified by reason of the "nature of the investigation".However, that review must be circumspect, deferential to investigatorial and prosecutorial discretion, and have as its focus setting futuredeadlines.

Where there is an active, ongoing investigation, it should only be in the rarest of cases that an extension is refused within thefirst year of detention. Thereafter, the bar is raised higher. [35] Thus, considering all of the above and considering the nature of the entire investigation before the Court in this matter, I find thatthe applicant has met the onus upon them, that is, that further detention of the two cell phones in question are warranted until April 6th,2023, and I do so order further detention of those two cell phones until April 6th, 2023. (ORAL REASONS FOR JUDGMENT CONCLUDED)