Judge rules Crown can hold onto seized items in 2021 crane collapse investigation for another year

Cops can hold crane data

A Kelowna Supreme Court judge has ordered the further detention of evidence in the criminal investigation of the July 2021 crane collapse in downtown Kelowna that killed five people, despite arguments to the contrary from Stemmer Construction's lawyer.

On July 12, 2021, a crane operated by Stemmer Construction collapsed during disassembly in downtown Kelowna, near Bernard Avenue and Bertram Street. Four young construction workers – Cailen Vilness, Jared Zook, and Patrick and Eric Stemmer – were killed in the collapse, along with Brad Zawislak, who was working in a nearby building that was hit by the falling crane.

Following the horrific incident, WorkSafeBC, the BC Coroners Service and the RCMP all began independent, parallel investigations into what led to the fatal collapse.

Last month, the Crown applied for the further detention of 112 items that the RCMP has seized during its investigation. According to the Criminal Code, the RCMP can only hold onto seized items for one year if a charge hasn't been laid. If police need to hold the items longer, a superior court judge must rule that the investigation is particularly complex, and further detention is required.

In response to the Crown's application for further detention, a lawyer for Stemmer Construction, Kevin Westell, argued the RCMP had improperly seized data from three particular laptops belonging to the construction company. When the officers filed the “Form 5.2 Reports to a Justice” about the items seized, they listed the three laptops, but made no reference to the data contained on the devices.

“Sections 489.1 and 490 of the Criminal Code set out a specific statutory scheme under which the police, in this case the RCMP, must account for and administer property in the course of criminal investigations. The purpose of these provisions is to ensure that the police remain accountable for the items seized and that the items are not retained past the time required for an investigation or trial,” wrote Justice Briana Hardwick in her recent decision.

“When an item is seized by the police in the course of an investigation, the police are first required by s. 489.1 to report the items seized to the court 'as soon as is practicable.' This is done through the above mentioned Form 5.2 Report to a Justice.”

While the RCMP had obtained judicial authorization to search the laptops, the data that was copied from the laptops and seized was not listed on the Form 5.2 as required. In a BC Supreme Court decision from earlier this year, R. v. Teixeira, a judge ruled that data is a “thing,” and must be reported separately on a Form 5.2.

Westell, representing Stemmer Construction, argued the data from the laptops is therefore “unlawfully held,” and must be returned.

But ultimately, Justice Hardwick agreed with the Crown that she does not have the jurisdiction to rule on the lawfulness of the seized data during the Crown's application that was being dealt with. She said any arguments made by Stemmer Construction about the lawfulness of the seizure or other Charter issues must be made separately.

“If such an application or applications are brought, and any breach is found, it will also be at the discretion of the court to fashion a remedy which is proportional to the conduct at issue," Justice Hardwick wrote.

“This a nuanced and technical area of the law. It is also evolving, as seen in Teixeira, given the increasing importance of data in police investigations and the previously recognized significant privacy interest in such data."

Justice Hardwick noted that in the Teixeira case, the evidence in question was not actually excluded.

She also rejected Westell's argument that investigators have been “negligent or dilatory” by breaching their reporting obligations.

As a result, Justice Hardwick granted the Crown's application to further detain the 112 items for a further one-year period.

It's not clear how long the RCMP's investigation into the tragic crane collapse may take. No criminal charges have been laid in connection to the incident at this time.

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