IN THE MATTER of an Application for the Further Detention of Things Seized pursuant to Section 490(9.1) of the Criminal Code v. An Order Sealing all Material Filed in Support of and Resulting from, 2018 BCSC 983

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Further Detention of Things Seized (Re), 2018 BCSC 983 Date: 20180615 Docket: X080614 Registry: New Westminster Between: IN THE MATTER of an Application for the Further Detention of Things Seized pursuant to Section 490(9.1) of the Criminal Code And An Order Sealing all Material Filed in Support of and Resulting from The Application before the Court Before: The Honourable Mr. Justice Jenkins Reasons for Judgment Counsel for the Crown (Applicant): N.M.D. Reithmeier The Unnamed Party, Appearing in Person: X.X. Place and Date of Hearing: New Westminster, B.C.

April 17 and 20, 2018 Place and Date of Judgment: New Westminster, B.C. June 15, 2018 [ 1 ] The Crown has applied for a Judicial Authorization for an Order for the Further Detention of Things Seized, specifically to blood vials taken from a potential accused while in hospital following a single vehicle accident in Surrey, B.C. in 2017.

The extension sought by the Crown is for a period to expire eighteen months from the date the vials were seized and relate to an investigation into a possible prosecution for impaired driving. [ 2 ] On February 23, 2017, a warrant to search was granted by a Judicial Justice for blood and other items dated the day of the accident, ie.

February 19, 2017 which resulted in an RCMP officer attending Royal Columbian Hospital on February 24, 2017 to execute the warrant to search and seized two vials of blood designated as from a suspect who is the subject of the police investigation. [ 3 ] On April 27, 2017 an officer of the RCMP obtained a Production Order for the production of health records of the suspect which was executed on April 28, 2017 which resulted in seizure of the health records.

From those health records, the RCMP officer learned that blood had been taken from the suspect at Royal Columbian Hospital and a toxicology screening indicated the suspect’s blood alcohol concentration to have been high on the date of the accident and that cannabis was also detected and referenced as high in the same report. [ 4 ] Subsequently, the vials of blood were sent to the RCMP Forensic Assessment Centre for analysis. A report from an analyst at Centre indicated that the blood contained 119 milligrams of ethyl alcohol in 100 millimeters of blood.

If alcohol is found to exceed 80 milligrams of blood it would amount to an offence under the Criminal Code . [ 5 ] An initial Detention Order for Things Seized was granted on March 1, 2017 by a Justice of the Peace which allowed for the detention of the item for a period of time which expired on May 23, 2017. [ 6 ] The affidavit of Cst. Dharm Prihar of the RCMP was filed in support of this application and starting at para. 24 he stated: . . . . The blood was expected to have been analysed before the 3 month period, however the submission of the exhibit to the lab and analysis took longer than expected. 25.

I learned that the primary investigator (Constable Shane McCarthy) was unaware that the blood was sent to the lab for analysis after the 3 month detention period had expired. I believe that further detention is crucial because of its evidentiary value. [ 7 ] Under the heading “Detention Extension Request”, Cst. Prihar deposed:

24. I believe that the further detention of Exhibits 1 and 2, and 1722613D-1 is required due to the nature of the investigation for the following reasons: i. Preparation of a Report to Crown Counsel; which will include a written synopsis detailing the events, exhibits and witnesses in relation to proposed charges; ii. Submission of a Report to Crown Counsel for consideration and disclosure to Defence counsel; iii.

The vials of blood drawn from XXXXX by hospital staff provides evidence that he was impaired by alcohol at the time of the collision. iv. . . . . . [ 8 ] No additional information has been provided in the affidavit explaining the delay in analyzing the samples of blood. [ 9 ] The Crown relies upon s. 490(9.1) of the Criminal Code which states: 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. [ 10 ] The test under s. 490 (9.1) is for a judge to be satisfied only that the thing detained “might be reasonably required for a purpose mentioned in subsection (1) or (4)” and “it is in the interests of justice to do so”. [ 11 ] Clearly, the vials of blood are reasonably required for the purposes of the investigation and would, if this matter proceeds, be central to the case of the Crown. [ 12 ] If the items are reasonably required for the investigation, is it in the interests of justice that the seized items be retained for an extended period of time and if so, for what period of time? [ 13 ] I refer to the decision of Newport Pacific Financial Group S.A., 2003 APBC 80 at para. 123 regarding the terms “interests of justice”: [123] The use of "interests of justice to do so" in s. 490(9.1) requires the justice to weigh the rights of the lawful owner or person from whom it is seized against the right of the police to have the documents for legitimate purposes.

There is no evidence before me from the respondents of the exact nature of their need for return of the documents or computer information. Nevertheless, it is not their onus. An inference from these circumstances is that these were business documents which may be needed for legitimate business purposes and their retention might cause possible embarrassment. I am sympathetic to their desire for return. This must be weighed against the interests of justice in a completion of a proper investigation where serious allegations of an immense fraud are alleged.

The police and the public have a right to a proper investigation of the alleged offences. [ 14 ] The “things” which are the subject of this application are vials of blood taken from the suspect. There is no reason given in the matter before me of “the exact nature of their need for return” and it is difficult to imagine what possible need the suspect may have for the same.

The items which are the subject of detention could not possibly be needed for any purpose such as if a cellular telephone, a vehicle or other object had been seized which may be used on a regular basis by its owner. [ 15 ] Accordingly, the application of the Crown for continued detention is granted for a period of up to eighteen months from the date the same were seized. “Jenkins J.”