R. v. Skejeie and Mountain, 2023 BCPC 97

Citation: R. v. Skejeie and Mountain 2023 BCPC 97 Date: 20230503 File Nos: 36556-1, 36557-1 Registry: Terrace IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. KALE HARRIS SKEJEIE and LEE-ANNE MOUNTAIN IN THE MATTER OF AN APPLICATION TO A JUDGE PURSUANT TO SECTION 490(2) OF THE CRIMINAL CODE BY CONSTABLE MARSDEN RULING ON APPLICATION OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown: Cst. Marsden, by teleconference Counsel for the Defendant, Kale Skejeie J. Maxwell, by videoconference Place of Hearing: Terrace , B.C. Date of Hearing: May 3, 2023 Date of Judgment: May 3, 2023

[ 1 ] THE COURT: An application pursuant to s. 490(2) (

a) of the Criminal Code for an Order For Further Detention Of Things Seized must be filed with the court registry before the valid Detention Order For Things Seized expires. That was done in this case. [ 2 ] The Crown, or in this case the RCMP, must also provide the person from whom the thing detained was seized three clear days notice of the date and time for the hearing of the s. 490(2) (

a) application. Based on what the officer has told me, that was not done in this case. [ 3 ] Finally, the s. 490(2) (

a) hearing must begin before the valid Detention Order For Things Seized expires. That is, as long as the hearing starts within the detention period allowed for by the valid Detention Order For Things Seized , the hearing can be adjourned for continuation to a date inside or outside the detention period allowed by the valid Detention Order For Things Seized . In my view, that did not occur in this case. [ 4 ] Instead, on March 2, 2023, the justice of the peace adjourned the matter to March 16, 2023, a date outside the three months allowed for in the initial valid Detention Order For Things Seized .

The file appeared in front of Judge Wright. After determining that 30 minutes would be required for the hearing, Judge Wright adjourned the matter back to the judicial case manager to fix a 30-minute hearing. A hearing date of April 3, 2023, was set before Judge Purewal. As no court time was available on April 3, 2023, the file was sent back to the judicial case manager to select a different hearing date. May 3, 2023, was then set for the hearing of the matter. [ 5 ] By way of interest, in R. v. H.G. and I.O.I.C. Inc. , 2022 BCPC 298 , Judge Lee agrees with the first two procedural points above.

Still, he disagrees with my conclusion regarding the need to commence the actual hearing during the period that the Detention Order For Things Seized is valid for, as I set out above and in R. v. Booth , 2021 BCPC 169 . [ 6 ] H.G. and I.O.I.C. Inc. stands for the proposition that: 1. As long as you apply for an Order For Further Detention Of Things Seized in the court registry before the valid Detention Order For Things Seized expires, 2. Provide the opposing party with three clear day’s notice, and 3.

The application gets placed in front of a judicial officer, including a justice of the peace, before the valid Detention Order For Things Seized expires, then the actual hearing does not have to commence. As stated in paragraph 27 of H.G. and I.O.I.C. Inc. : Finally, the matter was spoken to, however briefly, on June 30, 2022. There is no dispute by the respondent that the matter was spoken to in court on June 30, 2022. The respondent, however, argues that the actual contested hearing did not commence on that day. However, in my view, Mr.

Justice Riley emphasizes that the matter must only be spoken to, as opposed to a contested hearing commencing. [ 7 ] In the present case, nothing turns on the different

interpretations that Judge Lee and I have on the current state of the law. [ 8 ] The difficulty I have, though, Constable, to be blunt, is that you did not give three clear days' notice to either of the two applicants or respondents. I appreciate there are all kinds of reasons for that. You could not locate one, and the other just moved back to town. But the result is that I am dismissing your application. So your application for an Order For Further Detention Of Things Seized is denied. [ 9 ] However, you are at liberty to bring an application under 490(9.1) of the Criminal Code .

The test is slightly different under 490(9.1). I will leave it up to you and counsel for the RCMP to determine the paperwork and procedure required for making a s. 490(9.1) application. [ 10 ] Mr. Maxwell, when and if your client or Ms. Mountain want to apply to the court for the return of the things seized, they can do that as well. I suspect the RCMP will race to get their 490(9.1) application in front of the court and try to locate the two individuals to serve them or make an application for substitute service. [ 11 ] But in any event, the application on the list today is dismissed. [ 12 ] CST.

MARSDEN: Thank you, Your Honour. [ 13 ] THE COURT: Thank you very much, everyone. (RULING CONCLUDED)