for an Order for the Further Detention of Things Seized, 2026 ONSC 4240 COURT FILE NO.: CR-26-4146MO (Chatham)
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: In the Matter of an Application Pursuant to s. 490(3) of the Criminal Code
for an Order for the Further Detention of Things Seized
BEFORE: Carroccia J.
COUNSEL: Ryan Iaquinta, for the Crown
Adana Fraser, Counsel for the Respondent
HEARD: May 25, 2026, by Zoom
REASONS FOR DECISION ON APPLICATION
1The Applicant in this matter, the Crown Attorney, has brought an Application seeking an Order pursuant to s. 490(3)(a) of the Criminal Code for the further detention of things seized from the Respondent following the execution of search warrants. The Order is requested for a period of two years.
2For the reasons that follow, the Application is granted, although the Order will be for detention for a period of one year from the date of this decision.
THE BACKGROUND
3The Chatham-Kent Police Service Internet Child Exploitation Unit (“CKPS ICE”) began an investigation into the activities of the Respondent, Wade Crummy, after receiving information through a CyberTipline Report forwarded by the National Centre for Missing and Exploited Children. The report had been submitted by MediaLab/Kik Messenger and indicated that a user of their service had uploaded child pornography (now referred to as child sexual abuse and exploitation material) to their servers on multiple dates including on August 28, 2024.
4The information provided indicated that a user, with the screen name “chello3006” had shared suspected child sexual abuse and exploitation material with another Kik user. The material was reviewed by CKPS ICE, and it was confirmed that it appeared to meet the definition of child sexual abuse and exploitation material within the meaning of the Criminal Code. The police identified an IP address associated with the uploaded material, as well as an email address, namely: fulcrummechanical@outlook.com.
5The police continued their investigation and in January 2025, applied for and were granted a production order for Microsoft Corporation. On January 8, 2025, Microsoft Corporation responded to the production order and provided subscriber information associated with the identified email address. The information indicated that the email account in question was created by Wade Crummy, with a birthdate of January 31, 1976, on September 17, 2018. A production order was obtained for Xplore Inc. and on February 24, 2025, the police learned that the IP address that had been identified, was associated to 18681 McKinlay Road, Morpeth, Ontario which is the location of Lagasco Inc.
6Further investigation confirmed that Wade Crummy, born January 31, 1976, was an employee of Lagasco Inc. To continue their investigation, CKPS ICE obtained search warrants to search the residence of Mr. Crummy located at 6921 Queen’s Line, Chatham, Ontario, and the business address of Lagasco Inc. to seize devices that might be associated to the offence committed. Those warrants were executed on February 27, 2025, and as a result, the police seized ten devices including an iPhone seized from Mr. Crummy’s person and other phones and computers seized from his residence.
7Eight of the devices seized have been decrypted and analyzed and have been returned because no child sexual abuse and exploitation material was located when they were examined. The CKPS retains possession of the other two devices and have not yet been able to analyze them. No charges have been laid against the Respondent.
8Efforts have been undertaken to examine the contents of the remaining two devices. They have not been decrypted as of yet, although one device has been partially analyzed.
9The affidavit of Sargeant Josh Rose of the CKPS ICE unit, has been filed in support of the Application for continued detention of the property seized. He states that a s. 489.1 Report to Justice was submitted on March 5, 2025, following the execution of the warrants and the seizures made. Justice of the Peace C. Hurst ordered that the property be detained until May 12, 2025, a period of 90 days.
10On May 8, 2025, Sgt. Rose filed a second Report to Justice requesting that the items seized be ordered to be detained for a further 90 days so that the items could be “forensically analyzed per the terms and conditions of the search warrant”. That request was denied by Justice of the Peace H. Debacker who noted that proof of service of notice to Mr. Crummy as required by s. 490(2)(a) of the Code had not been provided. She noted as well that the officer should review subsections 490(1) (2) and (3) of the Code for the proper procedure, and she provided further direction depending on whether charges had been laid. This included directions about the scheduling of a hearing on the issue and the evidence to be provided for use on that hearing.
11According to the affidavit of Sgt. Rose, all efforts to analyze the devices ceased on May 12, 2025, when Justice of the Peace Debacker denied a further detention order, however, the property seized remained in the possession of the police.
12Sgt. Rose attests that when he read that endorsement, he mistakenly believed that an Application should be brought in the Superior Court of Justice pursuant to s. 490(3) of the Code. He was later advised by an Assistant Crown Attorney from the West Region Internet Child Exploitation Unit that before resorting to filing an Application under that section, a Summary Application could be made to a Justice of the Peace for an order to detain the things seized for up to one year.
13On November 19, 2025, an Application was filed in the Ontario Court of Justice seeking a further Detention Order pursuant to the provisions of s. 490(2) of the Code. No explanation has been provided for the delay in seeking that Order. The Order was granted by Justice of the Peace Helen Karpouzous and was valid for a period of one year from the date of the seizure in accordance with the provisions of s. 490(3) of the Code and expired on February 27, 2026.
14In his affidavit, Sgt. Rose attests to the efforts that have been made to decrypt the devices. Constable Dan Carrol, an officer who is trained in using digital extraction tools has examined eight of the ten devices seized. Of the two that remain in police custody, a partial extraction has been obtained from one of the iPhones in their possession. Sgt. Rose was advised that it is anticipated that the attempts to decrypt the devices will be successful “eventually”.
15Sgt. Rose advises that Special Constable Quentin Forgie, a Digital Forensic Examiner with the CKPS, advised him that using brute force password acquisition will provide access to the devices. The time required to do so is dependant upon the length and complexity of the passcode. The precise time required to access the devices is unknown.
16After being granted the order by Justice of the Peace Karpouzous, efforts were made to gain access to the devices until the order lapsed. The police used the digital forensic tools available to them, namely “brute force passcode acquisition” which involves systematically trying passcodes until one is found which unlocks the devices. The police have retained possession of the devices in question.
17On February 27, 2026, the Respondent filed an Application for an Order pursuant to s. 490(7) and (9)(c) of the Code in the Ontario Court of Justice (OCJ) seeking the return of the seized items. Prior to the return date, the Crown filed Reply material indicating that they intended to make an Application in the Superior Court for an order for further detention. Accordingly, the Respondent’s Application in the OCJ has not been adjudicated.
THE POSITIONS OF THE PARTIES
18The Applicant Crown seeks a Detention Order for a period of two years to continue their investigation into the matter. The Respondent is opposed to any further Order being made and seeks the return of the property seized.
19The Applicant is seeking a Detention Order pursuant to the provisions of s. 490(3)(a) of the Code. The Crown takes the position that this matter should be dealt with as a Summary Application where the court need only satisfy itself that due to the complex nature of the investigation, that the further detention of the things seized is warranted.
20The Crown submits that the Order sought is reasonable in the circumstances, given the nature of the offence being investigated and the ongoing investigative efforts of the police. It is submitted that the issue of the decryption of digital devices in and of itself has been determined to constitute complexity within the meaning of s. 490(3)(a), and accordingly, they have met their burden, and a further Detention Order should issue.
21Their position is that there has been no “foot dragging” by the police, nor would the use of additional human resources have assisted in moving the investigation forward because the obstacle has been technological complexity. The Crown submits that the order should be granted as requested for a period of two years.
22The Crown is seeking an Order for that length of time due to the nature of the work that must be undertaken and the uncertainty as to the time required to decrypt the devices. In response to an issue raised by the Respondent, the Applicant relies on s. 490(9.1) of the Code which permits the court to make a further Order for Detention even though a previous Order has expired.
23Following the conclusion of the Hearing, the Applicant made further submissions in writing as to their position about the return of the property should the court decline to grant the Order sought. The Crown submits that if the court declines to make the Order sought, that the devices should be ordered forfeited for destruction pursuant to the provisions of s. 490(9) of the Code because they may contain child sexual abuse and exploitation material.
24While the Crown acknowledges that possession of a cell phone is not unlawful, possession of child sexual abuse or exploitation material is, and there are reasonable grounds to believe, based on the investigation conducted, that there may be such material on the devices in the possession of the CKPS. That is the basis for the request.
25The Respondent seeks the return of the devices that remain in the possession of the CKPS. He argues that the police have not been diligent in conducting this investigation, and that the devices have not been examined because the police lost time by failing to comply with the requirements of s. 490 of the Code. This delay militates against making a further Order of Detention.
26Further, the Respondent suggests that the investigation is not complex, and accordingly there is no lawful basis upon which to order the continued detention of the devices. It is an investigation limited to the examination of these devices. He suggests that the police rely on the same affidavit filed in relation to the application made before Justice of the Peace Karpouzos and no additional evidence has been provided to the court to support the position that the investigation is complex or that it is likely that the devices will be decrypted within a reasonable amount of time.
27The Respondent submits that using “brute force passcode acquisition” has obviously proven to be an ineffective method of decrypting the devices and the police could have sought out third-party support to assist. Based on the evidence provided, there is no way to determine if and when the method being used, will succeed.
28He takes the position that the police investigation has been slow or stalled. Further, they have engaged in “foot dragging” and procrastination and that conduct militates against a finding of complexity and should not be rewarded.
29It is submitted by the Respondent that since the Applicant has failed to comply with the requirements of s. 490(3) of the Code and the Order of Detention has expired, that the court must consider whether it is in the interests of justice, pursuant to the provisions of s. 490(9.1) to order the continued detention of the things seized. The Respondent submits that it is not.
30The Respondent submits that the police have lost “jurisdiction” over the items seized because they filed the wrong Application to authorize their continued detention of those devices after the first Order made by Justice of the Peace Hurst expired. The Respondent relies on s. 490(6) of the Code.
31The Respondent also submits that the failure of the CKPS to comply with the requirements of s. 490(6) of the Code constitutes a violation of his rights pursuant to s. 8 of the Charter of Rights and Freedoms, although the Respondent has not filed a Charter application seeking a remedy.
THE GOVERNING LEGAL PRINCIPLES
32Section 490(3)(a) of the Criminal Code provides authority to a justice of the Superior Court of Justice to order the further detention of items seized. It states:
(3) More than one order for further detention may be made under paragraph (2)(a) but the cumulative period of detention shall not exceed one year from the day of the seizure, or any longer period that ends when an application made under paragraph (a) is decided, unless
(a) a judge of a superior court of criminal jurisdiction or a judge as defined in section 552, 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, having regard to the complex nature of the investigation, that the further detention of the thing seized is warranted for a specified period and subject to such other conditions as the judge considers just, and the judge so orders;
33In Canada Revenue Agency v. Okoroafor, 2010 ONSC 2477, Durno J. dealt with a similar application in circumstances where the Canada Revenue Agency sought the retention of items seized for a further year after Orders had been made pursuant to s. 490(3) of the Code permitting the items to be detained for a total period of one year.
34At para. 18 of Okoroafor, Durno J. stated:
The onus is on the applicant to establish the complexity of the investigation and the need for further detention: Black, supra at para 22. The purposes of s. 490 (1) – (3) are to enable police to effectively carry out criminal investigations while, at the same time, invoking the Court’s supervisory powers to ensure that there is a proper basis for detaining and continuing to detain items seized and protecting the privacy interests of citizens. However, the court must focus on the issue of how the complexity impacts on the need for continued detention: Tran (Re), at para. 24 and 59. The section does not place time limits on police investigations: Black, supra.
35Recently, in R. v. D.F. (Application for Further Detention of Things Seized), 2026 NLSC 59, Simms J. stated the following, at para. 14:
In section 490 applications, the court must find a balance between a supervisory role in ensuring that individual property rights are protected and items are not unnecessarily detained for long periods, and supporting the state’s ability to continue an investigation, as well as society’s interest in complete and thorough investigations of potential criminal activity. The court must also keep in mind that the threshold to justify detention increases the longer the items are detained.
36The court must be satisfied that a further Detention Order is required due to the complexity of the investigation and must specify the period of detention. The issue of complexity can be assessed by considering the work yet to be done, the estimated time for completion and whether the work should reasonably have been done earlier: Okoroafor, at para. 19.
37In Okoroafor at para. 21, Justice Durno identified a non-exhaustive list of factors to be taken into account in assessing complexity, however, I note that that case, decided more than 15 years ago, dealt with a situation involving a large number of documents and an investigation into income tax evasion. Although useful, the factors outlined by Justice Durno have little if any application to an investigation that involves the decryption, retrieval and analysis of digital evidence.
38In R. v. Seguin, 2015 ONSC 1908, Parfett J. dealt with an Application for the further retention of the hard drive of a laptop computer. She concluded in the circumstances of that case that decrypting a hard drive “is a long and complex procedure” which justified the further retention of the hard drive: at para. 47.
39In In the Matter of an Application Pursuant to s. 490(3) of the Criminal Code for an Order for the Further Detention of Things Seized, 2023 ONSC 6899, Carter J. dealt with an Application for the retention of cellular phones that were seized pursuant to an investigation involving the possession of “child pornography”. In that case, the Order for Detention had expired prior to the time that the Application for further detention was heard.
40In that case, Carter J. stated at para. 18:
At this stage, the investigation is really only complex to the extent that trying to discover the passwords is difficult. While the challenge of cracking a phone can be considered complex (R v. Seguin, 2015 ONSC 1908 at para. 4), that does not end the analysis. The Crown must also demonstrate that the further detention of the phones is “warranted” in light of that complexity: Further Detention of Things Seized (Re), 2021 BCSC 1323 at para. 125.
41Justice Carter determined that because there was “little hope” that the passwords would be obtained in a reasonable period of time using the brute force process, that the phones themselves had little intrinsic value to the investigation and a further Order for Detention of the phones would be unlikely to change that situation. As a result, he found that a further Order for Detention was not warranted.
42Section 490(7) of the Code permits a person from whom anything has been seized to apply to a justice either in the Ontario Court of Justice or the Superior Court, depending upon where the Detention Order was made, for the return of those items.
43Section 490(9.1) permits a judge to order the continued detention of things seized whether or not earlier orders have expired. It provides as follows:
(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 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.
44The Respondent suggests that the actions of the police in retaining possession of the devices seized beyond the time set out in the Orders constitutes a violation of his rights pursuant to s. 8 of the Charter.
45Section 8 of the Charter protects an individual’s reasonable expectation of privacy from unjustified state intrusions: Hunter v. Southam Inc. 1984 CanLII 33 (SCC), [1984], 2 S.C.R. 145, at 160.
46A remedy for an alleged Charter violation can only be granted by a court of competent jurisdiction pursuant to s. 24(1) of the Charter.
47The first question to be answered, before a Charter remedy can be granted, is whether this court is a court of competent jurisdiction to determine whether there has been a Charter breach, in the context of this Application and in circumstances where the accused has not been charged with any criminal offence and has not brought an Application seeking a Charter remedy.
48In R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, at para. 16, Lamer J. stated that Superior Courts should have “constant, complete and concurrent jurisdiction” for s. 24(1) Applications in keeping with the Court’s decision in Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863. However, he goes on to say, referencing the decision in Mills:
But it was therein emphasized that the superior courts should decline to exercise this discretionary jurisdiction unless, in the opinion of the superior court and given the nature of the violation or any other circumstance, it is more suited than the trial court to assess and grant the remedy that is just and appropriate. The clearest, though not necessarily the only, instances where there is a need for the exercise of such jurisdiction are those where there is as yet no trial court within reach and the timeliness of the remedy or the need to prevent a continuing violation of rights is shown, and those where it is the process below itself which is alleged to be in violation of the Charter's guarantees. The burden should be upon the claimant, in this case Mr. Rahey, to establish that the application is an appropriate one for the superior court's consideration.
49The case relied on by the Respondent, R. v. Abdelkader, 2025 BCSC 139, provides little assistance to him. The issue in Abdelkader was not whether the court was a court of competent jurisdiction. It involved a decision on a Charter Application brought during the course of a trial. The reasons of Justice Shergill relate to a consideration of whether the police violated the accused’s s. 8 rights after the police seized his vehicle and failed to comply with s. 490 of the Code following an Application being made and evidence being heard by the court on a voir dire.
50In R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 19, the Supreme Court said the following relating to the distinction between evidence at a trial and evidence on a Charter voir dire:
First, the appellant’s submissions fail to account for the purpose of the judicial inquiry in a Charter voir dire, and its distinction from the purpose of a criminal trial. A criminal trial is concerned with determining whether the accused is guilty of an offence. In a Charter voir dire, however, the focus is not on the accused’s guilt, but on whether the accused’s constitutional rights were infringed.
51Very recently, the British Columbia Court of Appeal found that a judge exercising his or her authority pursuant to s. 490 of the Criminal Code does not have the authority to entertain Charter arguments, because it is best left to a trial judge. The court said, at para. 99 of R. v. Hollaman, 2025 BCCA 315:
It is important to bear in mind that the judicial supervision contemplated by the s. 490 regime is delineated by statute. The statutory function of a justice or judge considering an application for further detention under ss. 490(2), 490(3), or 490(9.1) of the Criminal Code does not allow for any determination of the lawfulness of the underlying seizure. Nor does it clothe a justice or judge charged with the determination of an application for further detention with jurisdiction to entertain Charter arguments or grant Charter relief in connection with either the initial seizure, or further detention of seized things: Re 297 at paras. 74–75, citing inter alia, R. v. Raponi, 2004 SCC 50, at para. 30; see also Further Detention of Seized Things (Re), 2024 BCSC 817, at para. 6.
52In Seguin, relying on the authority of R. v. Raponi, 2004 SCC 50, [2004] 3 S.C.R. 35, Parfett J. held that although the Supreme Court did not specifically address whether a Superior Court judge could return goods seized under s. 490(3) of the Code,
… the Court did indicate that a Superior Court could hear the issue of the lawfulness of the seizure if the applicant brought a Charter motion. Effectively, that is what has occurred in this case, and I find that I can decide at this juncture whether there has been a breach of s. 8 of the Charter.” (at para. 17). [emphasis added]
53With respect, I note that in Raponi at para. 30, McLachlin C.J. stated that since the Crown conceded that Charter claims could be considered on s. 490(9) hearings, that issue was not argued. In my view, the Supreme Court did not confirm that the Superior Court is a court of competent jurisdiction to grant a remedy under s. 24(1) of the Charter, in relation to hearings under s. 490(9) of the Code, but the court left that possibility open when it stated:
I do not foreclose the possibility that in an appropriate case a judge acting “under s. 490(9) might be a court of competent jurisdiction” to grant remedies under s. 24 of the Charter: see Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863; R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81; and R. v. Hynes, [2001] 3 S.C.R. 623, 2001 SCC 82. Here the Crown conceded, on the basis of R. v. Daley (2001), 156 C.C.C. (3d) 225, 2001 ABCA 155, that Charter claims can be considered at s. 490(9) hearings. Consequently, the issue as to whether a justice on a s. 490(9) hearing constitutes a “court of competent jurisdiction” for the purpose of Charter motions was not argued. This, plus the fact that all motions in this case were brought under s. 490(2) and not under s. 490(9), suggests that consideration of the precise powers of a Provincial Court judge under s. 490(9) should be left for another day.
54The onus is on the person alleging a violation of his or her Charter rights to establish that there has been a violation, and that they are entitled to a remedy.
ANALYSIS
55At the outset, I will address the position of the Respondent that the police have violated his rights pursuant to s. 8 of the Charter to be free from unreasonable search and seizure in the circumstances of this case by retaining the things seized after the expiration of the court Orders for Detention. The issue was raised in response to the Application brought by the Crown pursuant to s. 490(3) of the Code for an Order for the further detention of things seized following the execution of a search warrant.
56That fact is important for many reasons. This is not a trial. The Respondent did not file an Application setting out the basis upon which he alleges a violation of his Charter rights and the remedy he seeks. No voir dire has been conducted. In fact, the only evidence before the court is the affidavit of Sgt. Rose in support of the Application.
57The Respondent suggests that the failure of the police to comply with the requirements of s. 490(6) of the Code results in a violation of his rights pursuant to s. 8 of the Charter. Section 490(6) of the Code provides as follows:
(6) Where the periods of detention provided for or ordered under subsections (1) to (3) in respect of anything seized have expired and proceedings have not been instituted in which the thing detained may be required, the prosecutor, peace officer or other person shall apply to a judge or justice referred to in paragraph (5)(a) or (b) in the circumstances set out in that paragraph, for an order in respect of the property under subsection (9) or (9.1)
58Section 490(5) in turn refers to circumstances where, before the expiration of any Order of Detention made under subsections (1) to (3);
…the prosecutor, or the peace officer or other person having custody of the thing seized, determines that the continued detention of the thing seized is no longer required for any purpose mentioned in subsection (1) or (4), the prosecutor, peace officer or other person shall apply….to a judge of the superior court or justice as the case may be for an order under (9). [emphasis added]
59From the clear wording of that subsection, it is only applicable in circumstances where the periods of detention have expired, no charges have been laid and the things seized are no longer required for the purpose of any investigation. In my view, that subsection has no application to the circumstances of this case where the Crown is clearly seeking the further detention of the things seized for the purpose of continuing their investigation, which is not yet complete.
60However, this does not end the inquiry. Having so determined, I must consider whether the Respondent’s Charter rights are otherwise engaged.
61In order to determine whether there has been a violation of an individual’s rights pursuant to s. 8 of the Charter, the court must consider whether the individual alleging a breach has a reasonable expectation of privacy in the subject matter of the search, and if so, whether that subjective expectation is objectively reasonable. If their privacy interests are engaged, an assessment of the lawfulness of the search or seizure requires the court to consider whether it was i) authorized by law, ii) whether the law itself is reasonable, and iii) whether the search was conducted in a reasonable manner: R. v. El-Azrak, 2023 ONCA 440, at paras. 28-29.
62Only a court of competent jurisdiction may grant a Charter remedy. When an application is brought pursuant to s. 490(3) of the Code, the court has very little evidence before it upon which a determination of the lawfulness of the seizure and the subsequent detention can be assessed. The seizure in this case was pursuant to a search warrant, which makes it presumptively lawful.
63I agree with the reasoning set out by the British Columbia Court of Appeal in Hollaman. Section 490 of the Criminal Code provides a regime for judicial supervision. Making a determination under the provisions of this section about whether to allow the further detention of things seized by the police does not permit the court to have sufficient evidence upon which the lawfulness of the initial seizure and the continued detention of things seized can be assessed in accordance with Charter principles.
64That is not to say that non-compliance with the provisions of s. 490 does not have Charter implications. It may. However, in my view, a court hearing an Application pursuant to s. 490(3) of the Code is not a court of competent jurisdiction to provide a Charter remedy. I note, as well, that while the Respondent alleged a Charter breach in response to the Crown’s Application, no formal Charter Application was filed.
65As set out in Rahey, a trial court would be better suited to determine whether there has been a Charter violation and to grant a remedy that is fair and just as opposed to this court considering the matter on a summary application.
66Many of the cases relied on by the Respondent address the issue of whether a failure to comply with the provisions of s. 490 of the Code constitutes a s. 8 violation in the context of a Charter voir dire conducted during the course of the trial. In particular, the decision in Abdelkader relied upon by the Respondent does not, in my view stand for the proposition that if the police fail to comply with s. 490(6) of the Code, the failure constitutes a violation of the Respondent’s s. 8 rights.
67Furthermore, in Raponi the court, in obiter, stated that a judge considering a s. 490(9) application might be a court of competent jurisdiction to grant a Charter remedy, but did not decide the issue, leaving it for another day. The Application being considered in this matter is not under s. 490(9) of the Code.
68As for the decision in Seguin, although Parfett J. found that the Superior Court was a court of competent jurisdiction in those circumstances, she did so in circumstances where she determined that the initial seizure was warrantless. I do not read the decision in Raponi as holding that this court is a court of competent jurisdiction to grant a Charter remedy in an Application for the further retention of items seized pursuant to s. 490(3) of the Code.
69Accordingly, I find that this court is not a court of competent jurisdiction for the purpose of determining whether there has been a Charter violation and granting a remedy, and I decline to do so. That is best left to a trial judge.
70In my view, the issue for me to determine is whether the Applicant has satisfied this court, having regard to the complex nature of the investigation, that the further detention of the things seized is warranted pursuant to the provisions of s. 490(3) of the Code. A determination of complexity necessarily depends upon the factors unique to the circumstances being considered.
71Complexity has been described in many ways. In this case, it is submitted that the complexity flows from the manner in which the investigation must be undertaken. That is to say that to further the investigation, the police must determine whether or not the devices in their possession were used to share child sexual abuse and exploitation material. In order to make that determination, they must decrypt the devices using the tools available to them. The evidence before the court is that the tool that the CKPS must use to access the device is brute force passcode acquisition.
72There are competing authorities relating to the issue of whether decrypting digital devices constitutes complexity within the meaning of s. 490(3)(a) of the Code.
73Justice Carter determined in In the Matter of an Application Pursuant to s. 490(3) of the Criminal Code for an Order for the Further Detention of Things Seized, that in the circumstances of that case, that it was only complex “to the extent that trying to discover the passwords is difficult”: at para. 18. Justice Parfett found in Seguin that decrypting the hard drive in that case was “very complex”: at para. 47. In Further Detention of Things Seized (Re), 2025 BCSC 1389, accessing and analyzing digital evidence was found to contribute to the complexity of the matter.
74In Okoroafor, Durno J. defines complexity in the following terms, at para. 20:
A complex investigation is one that has many varied interrelated parts, patterns, or elements and consequently is hard to understand fully. It is an investigation that involves many parts, aspects, details, and notions necessitating earnest study or examination to understand or cope with: Alberta (Attorney General) at para. 23. It is “something intricate and composite, something requiring analysis and reflection before moving forward to results and always considering the implications: R. v. Westmorland Fisheries Ltd. (1995), 1995 CanLII 16692 (NB QB), 168 N.B.R. 138 (Q.B.).
75In this case, ten devices including an iPad, iPhones and a computer were seized upon execution of the search warrants. In the 15 months since the seizure of those items, eight of them have been examined and released to the Respondent. This is so despite the fact that no attempt to decrypt or analyze the devices was being made during the time when the Detention Orders had lapsed, that is, between May 15, 2025, to November 19, 2025, and between February 27, 2026, and the date of this Hearing. The police were able to analyze the eight devices within a very short period of time, approximately six months.
76In order to complete their investigation, the police need to decrypt and analyze the devices in their possession to determine whether they contain child sexual abuse and exploitation material. Since they cannot compel the Respondent to provide them with the passcodes for those devices, they must use the forensic tools that are available to them. The evidence before the court is that brute force passcode acquisition is the tool being used.
77It is not the function of this court to determine whether other investigative tools might have been more successful if utilized, or to question the manner in which the police are conducting their investigation. The question to be determined is whether the complexity of the investigation is sufficient to warrant an Order for the further detention of the things seized.
78There is no question that the police failed to comply with the requirements of both s. 490(2) and s. 490(3) of the Code by allowing the previously issued Detention Orders to expire. This resulted in a situation where the police have been holding the last two devices in their possession without authorization. The Respondent has both a property interest and a privacy interest in the devices that are being detained. However, based on the evidence, I do not find that the CKPS have conducted themselves in a manner that suggests that they have intentionally disregarded the Respondent’s rights. I am satisfied with the explanation provided in the affidavit of Sgt. Rose. However, I hasten to add that if a further Detention Order is sought, it would be unlikely that it would be granted if the provisions of the Code are not complied with.
79Evidence of “foot dragging” or failure to dedicate adequate resources to the investigation may adversely impact an assessment of its complexity. However, in this case, there is no evidence that the police have been dragging their feet. There is also no evidence to suggest that sufficient resources have not been dedicated to the investigation. The obstacle has been the technology in accessing the remaining devices.
80Based on the totality of the circumstances, I am satisfied that the technological complexity of the investigation in accessing the devices warrants the further detention of the things seized.
81Having determined the issue of complexity, I must now consider the application of the provisions of s. 490(9.1) of the Code since the Detention Order previously issued has expired.
82Section 490(9.1) permits the court to issue an Order that the things seized may continue to be detained, where charges have not been laid, if the court is satisfied that:
(a) the continued detention of the thing might reasonably be required for an investigation, and
(b) that it is in the interests of justice to do so.
83Based on the foregoing reasons, it is clear that the devices are required to be detained in order for the police to continue their investigation. Accordingly, the first element has been satisfied.
84When considering whether it is in the interests of justice to order the continued detention of the things seized, the court must balance the property and privacy interests of the Respondent against the interests of law enforcement and society in the proper investigation of crime: Further Detention of Things Seized (Re), 2021 BCSC 1323, at para. 117.
85This investigation involves serious allegations. The possession and distribution of child sexual abuse and exploitation material is an insidious crime that necessarily involves the utilization of digital technology. To suggest that such investigations should not or cannot be conducted because accessing and decrypting digital devices takes too long would be contrary to the interests of justice. As a result, in the circumstances it would be in the interests of justice to order the continued detention of the things seized for a reasonable period of time to permit the police to continue their investigation.
86For all of these reasons, the Crown’s Application is granted and there will be an Order that the devices that remain in the possession of the CKPS may be detained until May 25, 2027, to permit the police to complete their investigation.
XXXXXXXXXXXXXXX
Maria V. Carroccia
Justice
Released: July 21, 2026
for an Order for the Further Detention of Things Seized, 2026 ONSC 4240
COURT FILE NO.: CR-26-4146MO (Chatham)
DATE: 20260721
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: In the Matter of an Application Pursuant to s. 490(3) of the Criminal Code for an Order for the Further Detention of Things Seized
BEFORE: Carroccia J.
COUNSEL: Ryan Iaquinta, Counsel for the Crown
Adana Fraser, Counsel for the Respondent
REASONS FOR DECISION ON APPLICATION
Carroccia J.
Released: July 21, 2026