R. v. Peric, 2007 ONCA 738

CITATION: R. v. Peric, 2007 ONCA 738

DATE: 20071025

DOCKET: C46349

COURT OF APPEAL FOR ONTARIO

MACPHERSON, JURIANSZ and LAFORME JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

PERIC, MILOS

Appellant

Milos Peric in person

John McInnes for the respondent

Heard: October 22, 2007

On appeal from the judgment of Justice L. Del Frate of the Superior Court of Justice dated December 21, 2005.

ENDORSEMENT

[1] This is an appeal of a ruling made by Del Frate J. on a pre-trial motion seeking the return of a tractor-trailer the police had taken to a towing compound after it collided with a train on April 26, 2003. The appellant was the lessee of the unit. He was charged with criminal negligence and dangerous driving because of its allegedly unroadworthy condition, though he was not the driver involved in the accident.

[2] The tractor-trailer remained at the towing company’s compound from April 26, 2003 until the end of July 2005 when the police and/or Crown released it from control. Subsequently, it seems the towing company disposed of the vehicle to recover the cost of storing it. Despite the fact the police and Crown no longer controlled the vehicle and its whereabouts were unknown, the appellant brought a pre-trial motion before the judge presiding at his criminal trial headed Motion for an Order Returning Things Seized under s. 490 of the Criminal Code. A copy of that motion was not included in the appeal book, but it is apparent the appellant sought an order that the Crown return the tractor-trailer unit to him. In his notice of appeal, he claims “an order allowing appeal and just restitution of value of the truck trailer in the amount of $42,000”.

[3] The appellant submits that the seizure and detention of the tractor-trailer was never authorized by any judicial authority. He points out that the procedures respecting the seizure and detention of property set out in ss. 489, 489.1, and 490 of the Criminal Code were not followed. He submits that the police are responsible for paying any costs of storing property they have detained for the purposes of their investigation.

[4] The Crown resists responsibility for the storage costs and for the vehicle. The Crown’s position is that after it completed its inspection of the vehicle, the vehicle continued to be stored at the towing compound to permit the appellant a full opportunity to inspect it. Before the trial judge the Crown did not identify the source of its authority to seize and detain the vehicle. In this court, the Crown claimed for the first time that the tractor-trailer could have been detained under s. 217(4) of the Highway Traffic Act, thus entitling it to rely on s. 217(5) of that Act, which provides that “all costs and charges for the care and storage of a motor vehicle detained under subsection (4) are a lien upon the motor vehicle, which may be enforced in the manner provided by the Repair and Storage Liens Act”.

[5] It is unnecessary to unravel these issues in order to determine that the appeal must be dismissed. As the record before the trial judge established that the towing company had disposed of the vehicle, he properly found that he could not order the Crown to return it. The appellant’s claim is, as stated in his Notice of Appeal, for “just restitution of the value of the truck-trailer”. This is a civil claim over which the judge presiding at his criminal trial had no jurisdiction. The judge noted that the appellant did not seek any of the remedies that were within his authority: there was no prejudice to the fairness of the appellant’s trial and the appellant did not seek the exclusion of any evidence obtained from the Crown’s inspection of the vehicle.

[6] The appellant submitted that this court’s decision in The Queen v. Khuan Mihn Mac (1995), 97 C.C.C. (3d) 115 assisted him. However, in that case the property seized, money, remained in the hands of the Crown. The court found that the Crown had no authority to retain the property if it had no authority to seize it, and so it should be returned. Here, the property seized, whether properly or not, is no longer in the hands of the Crown.

[7] In dismissing the appellant’s motion for return of the tractor-trailer, the judge stated he could not address the issues of civil liability and noted that they could be the subject of further litigation. Rather than commencing a civil suit the appellant pursued this appeal. The trial judge’s observations were correct. The appeal is dismissed.

“J.C. MacPherson J.A.”

“R. Juriansz J.A.”

“H.S. LaForme J.A.”```