R. v. Maxmenko, 2013 BCSC 2542

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Maxmenko , 2013 BCSC 2542 Date: 20131025 Docket: 34647-3 Registry: Port Alberni Regina v. Graham Maxmenko Ban on Publication 486.4(2) Before: The Honourable Mr. Justice B.D. MacKenzie Oral Ruling Re Application Re Seized Items Counsel for Crown: C.S. Proteau Counsel for Defendant: P.J. Wilson, Q.C. Place and Date of Hearing: Port Alberni, B.C. October 25, 2013 Place and Date of Judgment: Port Alberni, B.C. October 25, 2013 [ 1 ] THE COURT: This is an application by Mr.

Maxmenko to have items returned to him that were seized by the RMCP in March of 2012 when Mr. Maxmenko was arrested. I assume he was driving, because there is no issue that the items were retrieved from Mr. Maxmenko's automobile. [ 2 ] The basis for the application and the material filed originally under

section 490, originally dealt with the issue of whether these items are required for the upcoming trial, which is to be heard in May or June of this year. [ 3 ] But during the course of submissions today, it became clear that these items were seized, and there has never been an application pursuant to s. 490 to extend the three-month detention period, which section 490(1)(

a) deals with. With respect to section 490(2), I note it says the following: Nothing shall be detained under the authority of paragraph (1)(

b) for a period of more than three months after the day of the seizure, or any longer period that ends when an application made under paragraph (

a) is decided, unless … A justice on a

summary application -- and I am not quoting now -- unless a justice on a

summary application after three clear days' notice is satisfied that its further detention for a specified period is warranted and the justice so orders. [ 4 ] Looking at the subsections under

section 490 that I have just referred to, in my view it is clear that where there has been no court order for a further detention beyond the specified three months, that nothing can be detained.

So for those reasons alone, I am satisfied that there is no lawful authority, no lawful order and therefore no jurisdiction for the items to be retained any longer by the RCMP, the seizure having been made approximately 18 months ago. [ 5 ] I will also state that if I am incorrect with respect to that conclusion, that having regard to the totality of the submissions I have heard so far, I would be of the view that given that it has been 18 months, given that there is no affidavit material or any other evidence before me as to why, if further investigation was necessary, it could not have been done to this point in time, coupled with the fact that the Crown quite fairly has acknowledged that the photographs that are before me today that were retrieved from the camera are available, and in the absence of any further evidence, I simply would not be able to conclude that the detention of the laptop or the red camera is required for the purposes of the upcoming trial. [ 6 ] I also would state that I would conclude that the decision of Mr.

Justice Goepel in Mac , following the decision by Mr. Justice Meiklem in Felix , would be a full answer to any submission that there is authority to detain these items on the basis that they may be subject to an application for forfeiture by the Crown if and when a conviction is entered. [ 7 ] So for all of those reasons, the items on the flowchart, there is eight of them, the Crown quite properly concedes that those other items, apart from the camera and the laptop, should be returned. But as I have just said, for those reasons, the camera and the laptop will also be returned to Mr. Maxmenko forthwith. “B.D.

MacKenzie, J.”

The Honourable Mr. Justice B.D. Mackenzie