A Kelowna Superior Court judge has ordered the further detention of evidence in the criminal investigation into the July 2021 crane collapse in downtown Kelowna that killed five people, despite arguments to the contrary by Stemmer Construction’s lawyer. On July 12, 2021, a crane operated by Stemmer Construction collapsed during dismantling 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 on a nearby building that was hit by the falling crane. Following the horrific incident, WorkSafeBC, the BC Coroners Service and the RCMP all launched independent, parallel investigations into what led to the fatal collapse. Last month, the Crown applied for further custody of 112 items seized by the RCMP during their investigation. Under the Criminal Code, the RCMP can only hold seized items for one year if no charges have been laid. If the police need to keep the items longer, the senior judge must rule that the investigation is particularly complex and that further detention is required. In response to the Crown’s application for further remand, a lawyer for Stemmer Construction, Kevin Westell, argued that the RCMP had improperly seized data from three specific laptops belonging to the construction company. When officers filed their ‘Form 5.2 Reports to a Judge’ about the items seized, they listed the three laptops but made no mention of 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 manage property during 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 held longer than necessary for an investigation or trial,” Judge Briana Hardwick wrote in her recent ruling. “Where an item has been seized by the police during an investigation, the police are first required by s. 489.1 to report the seized items to the court “as soon as possible”. This is done via the aforementioned form 5.2 Report to a Judge.’ While the RCMP had received court authorization to search the laptops, the data copied from the laptops and seized was not reported on Form 5.2 as required. In a decision of the Supreme Court of B.C. at the beginning of 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 that data from the laptops was “unlawfully held” and should be returned. But in the end, Justice Hardwick agreed with the Crown that it did not have jurisdiction to rule on the lawfulness of the data seized during the Crown’s application under review. He said any arguments made by Stemmer Construction about the legality of the seizure or other Charter issues must be made separately. “If such an application or applications are made and any violation is found, it will also be within the court’s discretion to create a remedy commensurate with the conduct at issue,” Judge Hardwick wrote. “This is a delicate 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.” Judge Hardwick noted that in the Teixeira case, the evidence in question was not actually excluded. He also rejected Westell’s argument that the investigators had been “negligent or diligent” in breaching their reporting obligations. As a result, Judge Hardwick granted the Crown’s application for further custody of the 112 items for a further period of one year. It is unclear how long the RCMP investigation into the tragic crane collapse may take. At this time, no criminal charges have been filed in connection with the incident. Photo: Colin Dacre Photo of a crane in downtown Kelowna that would later collapse, killing 5 people, in July 2021.
