Kelly Dean Brown - v. -, 2014 SKPC 187

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 187 Date: November 28, 2014 Information: 42401885 Location: Saskatoon _____________________________________________________________________________ Between: Kelly Dean Brown - and - Her Majesty the Queen - and - Saskatoon Police Service Appearing: Mr. N. Blenkinsop For the Applicant Mr. D. Howarth For the Crown Mr. G. Bains For the Saskatoon Police Service DECISION ON JURISDICTION B.G. MORGAN , J Introduction

[ 1 ] This case deals with a narrow issue: what is the effect of an Order of Forfeiture vis-a-vis a co-accused who was not party to the proceedings that forfeited the property? This decision deals only with a jurisdictional question respecting that issue: the Order of Forfeiture having been issued out of this Court, what jurisdiction is there for another judge of the same Court to deal with that property now? The short answer is: none. [ 2 ] However, the applicant raises a number of arguments that require consideration.

Many of these arguments go to the merits of his grievance, and I am not dealing with those arguments, all of which are moot unless and until I conclude that I have jurisdiction to hear this application in the first place. Background [ 3 ] The basic facts are not in dispute, although what is to be made of those facts certainly is. [ 4 ] Natasha Peterson and Kelly Brown were jointly charged with, among other things, a number of charges of possession of stolen property. The police had observed some behaviour of Ms.

Peterson which led them to obtain a search warrant, which was executed in July 2008, at the residence the parties then shared. As a result of that search, numerous items were seized, and two joint Informations, #33382982 and #42401885 were laid. Counts 1, 2 and 3 of #33382982 refer to an offence date of July 10, 2008, and count 4 refers to an offence date of July 15, 2008, that count referring to the offence of possession of property of a local store. [ 5 ] Information #42401885 referred to an offence date of July 15, 2008, and contained eight counts.

The first seven all refer to each having in his or her possession specifically identified property owned by a specific individual. The eighth count referred to “. . . possession of property to wit: various articles, the property of unknown persons of a value exceeding $5,000.00 . . .”. (emphasis added). [ 6 ] On April 14, 2009, Ms.

Peterson, having previously elected trial by Provincial Court to an amended count 8 on #42401885, was sentenced on that count which was amended to encompass a 5 day time period and read “... have in his or her possession property, to wit: various articles, the property of various persons.....”. The first seven counts were stayed at the conclusion of sentencing, although the facts respecting all of those charges were part of the sentencing proceedings. All of the items referred to in counts 1 through 7 had been returned to their respective owners.

In addition, she had previously entered a guilty plea to count 2 of Information #33382982, the possession of property of a local store. She was sentenced on this as well that same date. The amendment encompassed those items. [ 7 ] Very briefly, the police had executed the search warrant on July 15, 2008, based on what occurred at the local store on July 10 of that year. The amendment to count 8 of #42401885 was made to include those items taken from the store on July 10, referred to in count 4 of #33382982.

An Order of Forfeiture was made for the items referred to in the amended count 8, although some specifically identified articles were returned to Ms. Peterson, it being acknowledged that those few items were hers. She consented to that order. The comments of the Crown during that sentencing note that “...the accused is acknowledging that she’s not the rightful owner of those [forfeited] pieces of property and—and the property is to be forfeited to the Crown”. The defence also noted that “...Ms.

Peterson owned the property and owned the premises that all of this stolen property was found in.....She’s admitted liability to these offences.” [ 8 ] At the time this Order of Forfeiture was made, Mr. Brown remained in custody awaiting trial on #42401885. All counts on the other Information against him had been withdrawn on March 17, 2009. He was not in Court when Ms.

Peterson was sentenced nor did he appear to have any advance knowledge of what transpired that day. [ 9 ] His matters proceeded to trial in August, and he was found guilty by a different Provincial Court Judge on counts 1 through 7, but not count 8. Count 8 on his Information had not been amended. [ 10 ] During that sentencing, the Crown sought a Forfeiture Order and noted that “a Forfeiture Order had been made with regards to

[ 10 ] During that sentencing, the Crown sought a Forfeiture Order and noted that “a Forfeiture Order had been made with regards to Ms. Peterson as to all of the materials that had been seized during the search. She had consented to that. She filled out a document and specific items were returned to her. Our view on this is that, if Mr. Brown maintains ownership over any of those items that she had already agreed to forfeit to Her Majesty the Queen, then we would require him to prove his ownership interest in that matter.

So we are seeking forfeiture of those items which had been seized during that search which Ms. Peterson had already agreed to be forfeited to the Crown and were not the items which were returned to her. And that’s under s. 491, Your Honour” [s. 491 of the Code has no application to this; it appears the reference was to s. 491.1, which deals with forfeiture of property obtained by crime]. The Court declined to make that order. [ 11 ] Mr.

Brown now brings the application dated June 10, 2014 to this Court claiming return of seized property, under s. 490(9)(c) (all references are to the Criminal Code ), or, in the alternative, the paid proceeds or value of that property, under s. 490(11) (d). In that application, he lists specific items of property that he claims are his, and also seeks “all other property listed on the Forfeiture Order” that had previously been made. All of the individually listed items he claims are set out in that earlier Order of Forfeiture.

All those items have long been sold by auction, so in practical terms, the applicant is looking to be compensated for the value of the items he claims are still his. [ 12 ] This matter was then set for hearing at this point on the sole issue of whether or not this Court had jurisdiction to even hear this application. If it is decided that the Court does, the case would then be heard on its merits. Dealing on the jurisdictional issue only, then, the positions of the various parties, on a condensed basis, are as follows: 1) The Applicant, Mr.

Kelly Dean Brown The applicant argues that there has been no finding of any items being “offence related property” and that it is, in his view, inconceivable that in a case where there was no notice to Mr. Brown, when the Crown knew he had a possessory interest in the property (all of which was seized from the home he shared with Ms. Peterson), his claim and his rights can be ignored. He argues that an order from April 14, 2009, cannot determine anything respecting Mr. Brown’s rights.

Further, he also takes issue with the argument that he should be appealing the April, 2009 order, as it is not even clear on the face of the order what

section of the Code it was made under, so it would be difficult to craft an appeal. Further, he points out, there is no time limit mentioned under s. 490. 2) The Respondent Her Majesty the Queen Mr. Howarth takes the position that on April 14, 2009, the judge made a finding of guilt, specifically respecting count 8, and made a Forfeiture Order with respect to what the judge had specifically found was “offence related property”. Mr. Howarth argues that the fact that there has been consent to dispose of the property by either Ms.

Peterson or the Crown has nothing to do with the validity of the court-issued order that was made. His basic argument is that the brute fact of there being a validly issued order ends the matter, and that a judge of the same level of court should not be going behind that order. He further argues that the April 2009 Forfeiture Order dealt with property ; it did not deal with rights to the property, as the applicant seems to be claiming. On that basis, because the order was made years ago, and it dealt with property, the matter is concluded at this point.

Further, he questions what the practical effect would be if this Court were to make an order in 2014 respecting the same property that was subject to an order of 2009. Put another way, he stresses that there is now a valid court order of some years ago forfeiting certain specific items; if this Court were to make another order returning some of that already forfeited property to the applicant, what happens to the original, unappealed order? 3) The Saskatoon Police Service

Mr. Bains starts by pointing out that there is no legal party known as the “Saskatoon Police Service”. However, for the purposes of this application, he was quite prepared (as were all the others) to simply argue the matter on the basis that some representation should be made on behalf of the police, irrespective of precisely how the police as an entity should be named as a party to this application; it does, after all, among other things, ask for return of items from the police, or seeks compensation from the police. Mr.

Bains argues that there is a 30 day appeal period which started to run April 14, 2009, and as that order referred to “all other items” to be forfeited to The Queen, that in fact dealt with all matters. He further argues that the distinction that is being made by the applicant respecting in rem and in persona m property is irrelevant.

He argues that under s. 490 of the Criminal Code , if it can’t be determined who owns the property in question, it is forfeited, citing a number of cases from this Court doing precisely that. [ 13 ] For the reasons that follow, I am satisfied I do not have jurisdiction to hear this matter in a criminal court. To be clear, this decision does not deal with the merits of any other application or appeal that the applicant may think he is entitled to take.

I am simply stating this Court cannot hear this application, for the following reasons. [ 14 ] I start by noting that this application is brought under s. 490 of the Criminal Code .

Section 490 has application with respect to property that is seized pursuant to a search warrant, as in this case, but s. 490(4) has direct application to this case. That

section states that when an accused has been ordered to stand trial, anything that has been detained under s. 490 is to be forwarded “to the Clerk of the Court to which the accused has been ordered to stand trial to be detained by the Clerk of the Court and disposed of as the Court directs .” [ 15 ] In this case, all of the items that are in issue in this application were detained for trial, and once they were forwarded to the Provincial Court for trial, an Order of Forfeiture was made in April 2009. The items are therefore no longer “detained”; they have been “disposed of”.

Section 490 , in my view, ceases to have any application to this matter in these circumstances. [ 16 ] Although there is no specific

section referred to in the Order of Forfeiture, it does state that it was made pursuant “to the provisions of the Criminal Code ”, and the lack of reference as to a specific

section does not, in my view, change matters. [ 17 ] This application is not being dismissed on the basis of which

section of the Code it is brought under; it is being dismissed because I cannot interfere with an order of another judge of this Court. I conclude that the position of the parties opposing this application is succinct and accurate. A Judge of the Provincial Court of Saskatchewan has made an Order of Forfeiture. I am a Judge of the Provincial Court of Saskatchewan.

I cannot make an order dealing with that same property; that would be in effect sitting on appeal of a decision of this same Court. [ 18 ] With respect, I cannot accept the very able submissions of the solicitor for the applicant that there is a distinction between the property , and ownership interest in such property.

Property is often forfeited in situations where either the ownership of that property is unknown, as is often the case when stolen property is subsequently located and the possessor of that property convicted, or ownership is in issue, in which case the party claiming ownership can participate in the proceedings. Obviously, as Mr. Brown points out, that didn’t occur here, but that does not mean that any ownership claim he may be able to assert somehow survives the forfeiture of that property, such that I can now deal with that ownership claim as if it is a property claim years later.

The property is forfeited; there is nothing I can deal with in this Court. [ 19 ] Further, the fact that consent was obtained from Ms. Peterson to the April 2009 order is of no moment; consent or not, it is a valid order of the Court that is made by the Court, irrespective of Ms. Peterson’s consent, or that of the Crown. It is the Court that makes the order, not the parties. The best that can be said of Ms. Peterson’s consent is that it obviously indicates that she is not taking further issue with the matter, and essentially eliminates any prospect of her successfully appealing the order.

However, that does not change the fact that a judge issued the order, as judges are authorized to do. [ 20 ] The fundamental problem I have with the applicant’s position is that he grounds his claim in either lack of notice, or a proprietary interest based on the possession he had at the time of seizure. However, the record is clear: an Order of Forfeiture was made, and if the applicant feels that order was in error, he has the option of dealing with that in any fashion he sees fit, other than through this application.

I cannot agree that his alleged “ownership” interest changes the fact that the property is forfeited.

[ 21 ] Finally, the fact that the Crown requested a Forfeiture Order at Mr. Brown’s sentencing of the same property that had already been forfeited in Ms. Peterson’s case does not change things. In my respectful view, there was no need to make that application, as the property was forfeited. A second Forfeiture Order of the same property would be redundant. [ 22 ] This is not to say that Mr. Brown does not have a remedy. I do not know if he does or does not, and I make no comment on that, other than to say that if he does, or if he feels he does, he is open to pursue that claim in some other fashion.

However, I cannot interfere with an order of this Court, and the application in this Court is dismissed. _________________________ B.G Morgan, J