A B.C. Supreme Court judge has upbraided Surrey Police for an “inexplicable” failure to properly investigate the contents of a cellphone in connection with a 2024 shooting in Surrey as he granted a USB’s continued detention to April.
Justice Eric Gottardi denied the Crown’s application for the Surrey Police Service to retain the device for another four months – to June 1 – but, “albeit reluctantly,” extended the detention order to April 1.
The court heard the USB, containing “personal and private data,” was located on a phone that was in a suspect’s possession. Gottardi noted that “jurisprudence makes it clear that the data stored on cellular phones is of an intensely personal nature.”
“This decision, unfortunately, falls into the ‘hold your nose’ 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,” the judge remarked while rendering his decision in New Westminster on February 3.
“The failures on the part of the Surrey Police 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,” Gottardi found. “That 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.”
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.
“A 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,” the judge noted. Police found cigarette butts at the scene, sent them to the RCMP lab for analysis and a suspect’s DNA was found on one of them.
“Coincidentally,” Gottardi continued, the Coquitlam RCMP on Jan. 30, 2024 arrested a suspect, whom he identified only as T.O., on a weapons charge and “two cell phones were seized from T.O. on that occasion. Pursuant to a separate investigation those phones were downloaded and searched.”
The judge said the Mounties found information related to the Surrey shooting. “That 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.
“While I am alive to the importance of the public’s confidence in the law enforcement’s ability to investigate and prosecute crimes, the administration of justice must protect individuals’ rights against unauthorized state interference,” Gottardi said. “Unauthorized 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.”
While the judge said he’s satisfied that seizure and retention of data from cell phones and other electronic devices “is likely to engage significant privacy interests,” he also noted that “the 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.
“That said,” Gottardi added, “it is almost inexplicable that nothing seems to have been done to investigate and search through this seized data until September 2024.”
The Crown set out in its submissions “that 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.”
Gottardi said that “at the heart of the Crown submission is the notion that the expiry date for the prior detention order simply slipped through the cracks,” as a result of a police officer going on paternity leave in May 2025.
A police affidavit before the court indicates the Surrey Serious Crime Investigative Team didn’t know until August 2025 the order had been dealt with in court and a constable asserted she only learned it had expired on August 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 “that same day.”
“Despite 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,” Gottardi said.
“There 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,” he found.
Nevertheless, he concluded, that evidence contained within the data is “crucial” to the Crown’s case and although “the lapse of the order which puts that evidence at risk is due to inadvertent carelessness” the value of police retaining it is “obvious.
“There 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,” Gottardi said.
“I 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.”