COLEMAN HICKEY Appellant - v. -, 2003 NBQB 121

2003 NBQB 121 File numbers: B/M/51/02 IN THE COURT OF QUEEN’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF BATHURST BETWEEN: COLEMAN HICKEY Appellant - and - HER MAJESTY THE QUEEN Respondent BEFORE : Mr. Justice J. Roger McIntyre HELD AT : Bathurst, New Brunswick

DATE OF HEARING : July 18, 2002 DATE OF DECISION : March 20, 2003 APPEARANCES : Jean-Guy Henry, Esq., for the appellant Michel Bertrand, Esq., for the respondent McIntyre J.: The appellant appeals a decision of Chief Provincial Court Judge Camille Dumas on the issue of his jurisdiction to grant an order extending the period within which the property of the appellant may be detained, pursuant to paragraph 490(2) (

a) of the Criminal Code of Canada . THE FACTS The facts may be summarized as follows: On November 28, 2001, a warrant was issued pursuant to

section 11 of the Controlled Drugs and Substances Act to search the residence of the appellant. No drugs were seized, but the police did seize cash in the amount of $22,411. On the same date, a detention order was granted ordering the detention of the money seized for a period of three months. The expiry date was February 28, 2002.

On February 26, 2002, counsel for the Attorney General of Canada forwarded the following correspondence to Chief Judge Dumas: RE: Her Majesty the Queen –vs- Coleman Hickey Dear Judge Dumas, Further to our telephone conversation, this will confirm that the Crown will apply on the ___ day of _____, 2002 at ____a.m/p.m. in Court in ________, for the purpose of the granting of an extension of the period of detention pursuant to Section 490(2) of the Criminal Code of Canada in relation to exhibits seized from Coleman Hickey. In accordance with provisions of

Section 490, the crown is required to give Mr. Hickey three (3) clear days notice of the hearing and accordingly, a Notice of Application with the supporting affidavit of Cpl. Denis Roy will be served on Mr. Hickey prior to the hearing in accordance with the section. Would you kindly sign a copy of this letter in the space provided for your signature, confirming the time and date for hearing and that this letter was received by your office by fax on February 26 th , 2002.

P.S.: If possible, could the date be the 8 th of April or after? On April 9, 2002, counsel again wrote to the Chief Judge as follows: RE: Her Majesty the Queen - vs - Coleman Hickey Dear Judge Dumas, Further to our telephone conversation with regard to this matter and our facsimile correspondence, a copy of which is attached hereto, to your offices on the 26 th of February, 2002 in support of an Application for the Extension of Detention, would you kindly provide this office with a date for the return of this Application. In accordance with the provisions of

Section 490, we are required to give the respondent, three (3) clear days notice of the time, date and place of hearing. I thank you for your assistance in this matter. It is uncertain whether a notice of application was filed with the Provincial Court at this time because the original is not in the record and the copies contain two separate dates. One copy is dated April the 9 th and the other copy, the one served on the appellant, is dated April 23 rd , 2002. From the correspondence in the record, however, it appears that the original notice of application was only filed on the date of the hearing, May 3, 2002.

On April 22, 2002, Chief Judge Dumas informed counsel for the Crown that the hearing would be held in Bathurst on May 3 rd , 2002. The appellant was served with a copy of the notice of application together with a copy of the affidavit of Cst. Denis Roy on April 29, 2002. At the hearing of the application on May 3 rd , the appellant contested the jurisdiction of the Court on the ground that the application had not been made nor had notice been given within the three-month period prescribed by paragraph 490(2) (

a) of the Criminal Code . In a decision rendered on May 23 rd , 2002, Chief Judge Dumas ruled that he had jurisdiction. He ruled (p. 3 of the transcript): […] The Crown applied to the Court on February 26, 2002 to obtain a date for a hearing to have the detention order extended. Defence counsel suggests that the application is not made until the respondent is served. I do not share that view.

One is mindful that the person from whom the goods were seized may have moved, it may be impossible to locate him or her, or the person may be avoiding service. […] On the issue of the timeliness of the application, the judge referred to the 1994 amendment to paragraph 490(2) (a). He referred to the decision of the British Columbia Supreme Court in R. v. Papalia (1987), 1987 CanLII 2826 (BC SC) , 38 C.C.C. (3d) 37 and to the

decision of Hoyt C.J.N.B. in R. v. Mandate Erectors and Welding Ltd. et al. (1995), 1995 CanLII 6992 (NB CA) , 163 N.B.R. (2d) 206 and concluded as follows: So, obviously, this matter deals with events subsequent to the amendment and I am bound by the decision of the Court of Appeal of New Brunswick. And in using the words of Mr. Justice Hoyt, and giving effect to the decision of Justice Legg in Papalia of which the statutory amendment gave effect to, that is, the 1995 Statutory amendment, I hold that the application was filed on time and I do have jurisdiction. RELEVANT STATUTORY PROVISIONS Paragraph 490(2)(

a) prior to the 1994 amendment: 490.

(2) 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 unless, before the expiration of that period, (

a) a justice, on the making of a

summary application to him after three clear days’ notice thereof to the person from whom the thing detained was seized, is satisfied that, having regard to the nature of the investigation, its further detention for a specified period is warranted and the justice so orders; or […] Paragraph 490(2)(

a) which came into force on April 1 st , 1995: 490.

(2) 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) a justice, on the making of a

summary application to him after three clear days’ notice thereof to the person from whom the thing detained was seized, is satisfied that, having regard to the nature of the investigation, its further detention for a specified period is warranted and the justice so orders; or¸ […] ISSUE The issue in the present appeal is whether Chief Judge Dumas erred in concluding that the application for an extension of time to detain the items seized complied with the requirements of paragraph 490(2) (

a) of the Criminal Code . ANALYSIS AND DECISION Prior to the 1994 amendment, an application under paragraph 490(2) (

a) had to be made within three months of the making of the original detention order upon giving three clear days’ notice to the person against whom the order was made. In R. v. Papalia supra, the issue arose as to whether the hearing of the application and the decision of the Justice of the Peace before whom the application was made had to respect the time limitation contained in paragraph 490(2)(a). In Papalia , the application for further detention was made prior to the expiry of the three months, but had not been heard when the statutory period expired.

Legg J. for the B.C.S.C. held that as long as the application was made within the three-month period, it could then be adjourned for hearing beyond the three months. It follows that the decision could also be rendered outside the statutory period without loss of jurisdiction. As a result of the decision in R. v. Papalia , paragraph 490 (2)(

a) of the Criminal Code was amended by the Criminal Law Amendment Act , S.C. 1994, c. 44 to provide that the original detention period may continue until the justice hearing the application has rendered a decision. The new

section came into force on April 1 st , 1995.

When the same issue arose before the N.B.C.A. in the Mandate Erectors case, the new

section had been in force for only 20 days. In deciding the issue, Hoyt, C.J.N.B. dis agreed with Legg J. in Papalia . With reference to the amendment to paragraph 490(2)(

a) he states at p. 214 of the decision: This amendment gives statutory effect to the decision of Legg, J. in Papalia . With respect, however, I can not agree with the submission of the Crown that this amendment merely declared the previous law. Rather, like both Casey, P.C.J., and Turnbull, J., (and Hughes, C.J.N.B.), it is my view that s. 490(2)(a), prior to the 1994 amendment, required that an order for the further detention of goods be made within three months of the seizure. Section 490(12), which was considered in Papalia , in my view, does not lead to the conclusion that the time limits in s. 490(2)(

a) are suspended pending the hearing of an application for further detention. Rather, s. 490(12) relates to applications questioning the detention of things seized. […] In my view, the comment of Hoyt, C.J.N.B. in Mandate Erectors that the amendment to paragraph 490(2)(

a) gave statutory effect to the decision in R. v. Papalia should not be interpreted to mean that the application could be heard outside the three-month period without loss of jurisdiction. His comments with reference to the decision in R. v. Papalia quoted above make it clear that he was in disagreement with the view that “ …the time limits in s. 490(2)(

a) are suspended pending the hearing of an application for further detention. ” It appears clear to me that the only part of the decision in Papalia to be given statutory effect is Legg J.’s conclusion that the decision of the justice or the judge may extend outside the three-month period without loss of jurisdiction. The three-day notice has to be given and the application heard prior to the expiry of the three months.

In the present case, Chief Judge Dumas erred, in my view, in concluding that the letter of February 26, 2002, transmitted to him by Crown counsel requesting a hearing date, was in the nature of an application for an extension order. In order to comply with the statutory requirements of paragraph 490(2)(

a) in the present case, the Crown was obligated to make a

summary application to a Provincial Court judge on or prior to February 28, 2002 having given three clear days’ prior notice to the appellant. Following the hearing of the application within the statutory period, the justice or the judge may now with the 1995 amendment adjourn for decision to a date outside the three-month period without loss of jurisdiction. The date of the making of the application in the present case was May 3 rd , 2002, over two months beyond the termination of the original order on February 28 th . Chief Judge Dumas was without jurisdiction to hear the application.

The order dated the 23 rd day of May 2002 is removed into this Court and is quashed. The appellant is entitled to the possession of the money seized unless it is ordered retained by application of another provision of the Criminal Code of Canada . The appeal is allowed with costs in the amount of $600. __________________________________ JUDGE OF THE COURT OF QUEEN’S BENCH Bathurst, N. B.

March 20, 2003