Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2021 04 27 FILE No.: RCMP – 20 1356942 Project OLUNAR

RE: IN THE MATTER OF AN APPLICATION FOR Extension of a Detention of Seized Items pursuant to s. 490(2) of the Criminal Code

Before: Justice G.P. Renwick

Application Heard on: 27 April 2021 Reasons released on: 27 April 2021

Counsel: M. Flagg, counsel for the Applicant R. Victorin, counsel for the Respondent Sebastien Vachon-Desjardins

REASONS FOR GRANTING THE APPLICATION

RENWICK J.:

INTRODUCTION

[1] Today, I heard an Application for the R.C.M.P. to continue to detain items seized from the Respondent’s residence and bank safety deposit boxes on 27 and 28 January 2021. I granted the search warrant that authorized the seizure of the items that are the subject of this Application on 24 January 2021.

[2] The parties agreed that $79,980 seized from safety deposit box #3 at the TD Canada Trust located at 750 Montee Paiement, Gatineau, Quebec, should be returned to Ms. Sarah-Emilie Larocque Pilon of Gatineau, Quebec within 30 days.

[3] The Application included an affidavit and written submissions and the Applicant did not oppose the cross-examination of the affiant, R.C.M.P. Corporal Mark Southern, during the hearing. The Respondent did not lead or file any materials, jurisprudence, or evidence in opposition to the Application.

[4] The Respondent opposed the granting of the Application on the following grounds:

i. The police have not specified why they need to continue to detain some of the items seized;

ii. It is not necessary to continue to detain $238,620 seized from safety deposit box #118 at the National Bank located at 1056 Boulevard Maloney Ouest, Gatineau or $98,070 seized from safety deposit box #123 at the National Bank located at 455 Montee Paiement, Gatineau ($336,690 total seized from the two National Bank safety deposit boxes);

iii. There is no link between the crimes under investigation and the $336,690; and

iv. The rules that divide an individual from the enjoyment of their property should be applied restrictively.

THE EVIDENCE

[5] Corporal Southern testified under cross-examination only. He adopted his affidavit, which includes Appendices A, B, C, D, E, and F.

[6] When asked about the 4-6 month time estimate at paragraph 97 of his affidavit, Cpl. Southern testified that 4 months would be the bare minimum it would take members of the Digital Forensic Service (“D.F.S.”) to analyze the devices seized.

[7] I counted over 30 separate devices, USB keys, cell phones, etc., that were seized from the Defendant’s residence and included in Appendix A of the affidavit.

[8] Although the Respondent took issue with the time estimated to analyze the digital devices and storage media, there was no serious challenge or any evidence to suggest that the time period sought was unreasonable.

[9] I note that the investigators also seized suspected drugs, documents, receipts, a locked safe, insurance papers, and “manual papers + receipts related to crypto mining.”

[10] I accept the evidence of Cpl. Southern without hesitation. He testified in a calm, neutral manner. He appeared genuine and earnest in an attempt to answer questions, and he did not overstate his beliefs in any respect. I am satisfied on a balance of probabilities that it will take at least 4-6 months to analyze the digital devices and storage media that were found in the Respondent’s home. It may well take longer than this.

THE LAW

[11] The Respondent did not provide any jurisprudence or make submissions on the law as contained in the Applicant’s written submissions. It appears that there is no serious contest to the law, or my role on this Application.

[12] The law in this area is not complicated or unknown. Investigators may seek the continued detention of items seized for on-going investigations, preliminary hearings, trials, or other proceedings, pursuant to s. 490(1) of the Criminal Code. This detention lasts for up to three months post-seizure, unless a justice orders the items to be detained for a longer period, or proceedings are instituted (s. 490(2)).

[13] For ease of reference, subs. 490(2) of the Code is reproduced here:

(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.

[14] Our courts have interpreted this section to require the prosecutor to demonstrate that having regard to the nature of the investigation, the continued detention of the things seized is warranted for a further specified time. [1]

DISCUSSION

[15] In passing a regime for the continued detention of items apparently lawfully seized under court order, Parliament has sought to balance the legitimate needs of law enforcement, where grounds to arrest may not have crystallized, and the private property rights of individuals. The authority of the state to control an individual’s property under s. 490(2), where no charge has been laid, is constrained by duration and demonstrated necessity:

Authorities cannot seize property and keep it indefinitely in the exercise of their investigative powers. The seizure must be justified in the first instance. Then the detention must be warranted for investigative purposes. But even then, it is expected that detention will be limited to three months unless a justice is persuaded that continued detention is warranted. [2]

[16] The justice reviewing the matter does not have carte blanche to assess the request to extend the detention of items seized. At this stage, the court is not entitled to inquire into whether the pace or manner of investigation has been reasonable. [3] This court is limited to asking whether in light of the nature of the investigation there is an on-going need for the authorities to retain items already seized.

[17] In my view, this is a normative assessment rather than a qualitative one. I cannot sit here far removed from the specifics of the investigation, without any knowledge of the forensic value of the seized items and determine the pace of the investigation, the exigencies of the investigation, or, whether there is any merit to the investigation as a whole. Rather, I must ask whether on the evidence before me, it is reasonable to claim that the seized items are further required during the investigative stage.

[18] In the case before me, a complex, international theft of data for ransom scheme is alleged. The Respondent is merely a suspect. Various orders have been granted to permit law enforcement to encroach on the privacy and property rights of the Respondent.

[19] In reliance upon the orders granted, the authorities have seized from the Respondent a massive cache of materials, both digital and not. The police have been in possession of the Respondent’s monies, documents, and digital storage media for three months, already.

[20] The evidence, which I accept, suggests it may take another 4-6 months to complete an evaluation of the digital materials alone. This is an estimate which may prove conservative given the number of devices and the potential expense of time to possibly unlock the devices, read the contents, and analyze the data contained within.

[21] I am persuaded well beyond a balance of probabilities that it is reasonable for the authorities to require more time to examine the seized materials, understand them, and consider their forensic value in a potential prosecution for a sophisticated and complex international criminal offence.

[22] Save for the monies taken from the TD Canada Trust safety deposit box, I completely reject the notion that the monies seized are not required for investigative purposes and ought to be returned to the Respondent. The amounts are staggering (over $600,000 in cash has been seized from the Respondent alone, without counting the millions of dollars in cryptocurrency) and unlikely the product of legitimate employment or provenance. Regardless, the tracing of the monies alone may require expert investigation, analysis, and reporting to be properly understood. These inquiries may well be underway and likely to happen concurrent to the digital analyses yet to be completed. Nonetheless, investigations of this magnitude and complexity, neither of which was contested during this hearing, take time.

[23] I cannot judge the pace or progress of the investigative efforts to date. It is neither my role nor within my current abilities on the limited record before me to comment on the time required to complete the analyses underway. The extension sought, up to six more months, is not unreasonable in the context of the information and evidence before me.

CONCLUSION

[24] I am satisfied that it is appropriate to continue the detention of all of the items seized in Appendices A, B, C, and E of the affidavit of Cpl. Southern, sworn 20 April 2021, until at least 26 October 2021 (9 months post-seizure).

[25] For these reasons, the Application is granted.

Released: 27 April 2021 Justice G. Paul Renwick

[1] R. v. McNamara, [2006] O.J. No. 1194 (S.C.J.) at para. 27. [2] R. v. Tennina, 2007 ONSC 51706, [2007] O.J. No. 4678 (S.C.J.) at para. 14; aff’d: 2008 ONCA 498, [2008] O.J. No. 2469 (C.A.). [3] Tennina, supra, at para. 15 and McNamara, supra, at para. 25