A B.C. Supreme Court judge has upbraided Surrey Mounties for an \u201cinexplicable\u201d failure to properly investigate the contents of a cellphone in connection with a 2024 shooting in Surrey as he granted a USB\u2019s continued detention to April.<\/p>\n
Justice Eric Gottardi rejected the Crown\u2019s request to let the Surrey RCMP keep the device for another four months, until June 1. However, he reluctantly agreed to extend the order allowing police to hold it until April 1.<\/p>\n
Gottardi had originally and incorrectly rebuked<\/a> the \u201cSurrey Police\u201d for this in his February 3 reasons for judgment but on February 19 corrected himself.<\/a><\/p>\n Surrey Police Service Staff Sergeant Lindsey Houghton had revealed that \u201cthe actual court decision is incorrect.<\/p>\n \u201cThere are factual errors in the decision and that\u2019s for lawyers to deal with at the Supreme Court level,\u201d he told the Now-Leader.<\/p>\n Houghton said the judge\u2019s reference to seized items \u201cdetained by the Surrey Police Service\u201d is \u201cnot correct.\u201d He added that line 32 of the judge\u2019s reasons for decision \u201cwhere it says \u2018the failures on the part of the Surrey Police,\u2019 that is not correct either.\u201d<\/p>\n \u201cThis file was always with and has been retained by the RCMP,\u201d Houghton said.<\/p>\n The court heard the USB, containing \u201cpersonal and private data,\u201d was located on a phone that was in a suspect\u2019s possession. Gottardi noted that \u201cjurisprudence makes it clear that the data stored on cellular phones is of an intensely personal nature.\u201d<\/p>\n \u201cThis decision, unfortunately, falls into the \u2018hold your nose\u2019 category of judicial decision-making. It is a case which, despite the objective seriousness of the incident being investigated, comes perilously close to the line,\u201d the judge remarked while rendering his decision in New Westminster on Feb. 3.<\/p>\n \u201cThe failures on the part of the Surrey RCMP to investigate the contents of this data more diligently and to properly preserve their lawful authority to maintain its detention are inexplicable and fall short of the conduct which we expect from professional law enforcement,\u201d Gottardi found. \u201cThat said, I appreciate that errors can, and do, occur from time to time. On balance, I am satisfied that the continued detention of the material is reasonably required for the purpose of the ongoing investigation and that detention is in the interests of justice.\u201d<\/p>\n Gottardi noted in his reasons for judgment that the police investigation concerns a late-night shooting on a residential street in Surrey on Jan. 1, 2024. Two people were parked in a black Mercedes on the roadside when a man from a white vehicle allegedly shot one of them, identified only as I.J.<\/p>\n \u201cA short time later police received a report of a vehicle fire involving a white Dodge Caliber, which was later identified as the suspect vehicle in the Surrey shooting,\u201d the judge noted. Police found cigarette butts at the scene, sent them to the RCMP lab for analysis and a suspect\u2019s DNA was found on one of them.<\/p>\n \u201cCoincidentally,\u201d Gottardi continued, the Coquitlam RCMP on Jan. 30, 2024 arrested a suspect, whom he identified only as T.O., on a weapons charge and \u201ctwo cell phones were seized from T.O. on that occasion. Pursuant to a separate investigation those phones were downloaded and searched.\u201d<\/p>\n The judge said the Mounties found information related to the Surrey shooting. \u201cThat information indicated that T.O. was involved in the shooting of I.J., and its planning. Images of the shooting scene and the area where the white Dodge was burnt were also found in the data.<\/p>\n \u201cWhile I am alive to the importance of the public\u2019s confidence in the law enforcement\u2019s ability to investigate and prosecute crimes, the administration of justice must protect individuals\u2019 rights against unauthorized state interference,\u201d Gottardi said. \u201cUnauthorized state conduct becomes particularly concerning with the prevalence of modern technology such as cellular phones, tablets, and laptops. Search and seizure of these devices is considered highly intrusive, extensive, and invasive.\u201d<\/p>\n While the judge said he\u2019s satisfied that seizure and retention of data from cell phones and other electronic devices \u201cis likely to engage significant privacy interests,\u201d he also noted that \u201cthe investigation of those who conspired in the attempted killing of another individual, even where that attempt was unsuccessful, is of the utmost seriousness. The gravity is enhanced by the fact that firearms were used in the offence. Further, the perpetrators attempted to destroy evidence of their wrongdoing in the aftermath of the shooting.<\/p>\n \u201cThat said,\u201d Gottardi added, \u201cit is almost inexplicable that nothing seems to have been done to investigate and search through this seized data until September 2024.\u201d<\/p>\n The Crown set out in its submissions \u201cthat the police of jurisdiction in Surrey has moved from the RCMP to a municipal police force though this investigation has remained with the Mounties, it resulted in the loss of a certain form of investigator.\u201d<\/p>\n Gottardi said that \u201cat the heart of the Crown submission is the notion that the expiry date for the prior detention order simply slipped through the cracks,\u201d as a result of a police officer going on paternity leave in May 2025.<\/p>\n A police affidavit before the court indicates the Surrey Serious Crime Investigative Team didn\u2019t know until August 2025 the order had been dealt with in court and a constable asserted she only learned it had expired on Aug. 6, 2025 after a Department of Justice lawyer sent her a copy of the expired order on Sept. 8, 2025. She told the court she informed the investigative team \u201cthat same day.\u201d<\/p>\n \u201cDespite that, an application to renew the detention order was not filed until mid December 2025. Counsel for the Crown, frankly and appropriately, conceded that this application could have been brought on with greater dispatch,\u201d Gottardi said.<\/p>\n \u201cThere are obvious errors in the chain of communication between the police and counsel for the Department of Justice that resulted in a failure to bring on an application within the statutory time frame. I do not find, however, that the order lapsed because of any intentional disregard for the Code regime or systemic carelessness,\u201d he found.<\/p>\n Nevertheless, he concluded, that evidence contained within the data is \u201ccrucial\u201d to the Crown\u2019s case and although \u201cthe lapse of the order which puts that evidence at risk is due to inadvertent carelessness\u201d the value of police retaining it is \u201cobvious.<\/p>\n \u201cThere is evidence contained within this data that T.O. communicated with other individuals involved in the planned shooting of I.J. The data provides connections between T.O. and the shooting scene and the location in which the Dodge was set ablaze. The public interest in seeing this investigation come to a conclusion is a most compelling one,\u201d Gottardi said.<\/p>\n \u201cI am not prepared however to extend the detention to June 1, 2026. The investigative file is currently with the Crown Prosecution Service for a charge approval assessment. The file has been in their bailiwick for several months already. The detention order will be renewed and extended to April 1, 2026.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"A B.C. 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