2022 QCCQ 8793, 2022 QCCQ 8793

Translated from the original French R. c. Laffont 2022 QCCQ 8793 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal and Penal Division No.: 500-01-167361-184 Date: November 15, 2022 ______________________________________________________________________ PRESIDING: THE HONOURABLE JOSÉE BÉLANGER, J.C.Q. ______________________________________________________________________ THE KING Prosecution / Respondent v.

NICOLAS LAFFONT Accused / Applicant ______________________________________________________________________ JUDGMENT Decision on the motion to dismiss the respondent’s application for the forfeiture of seized property pursuant to sections 490(9) and 491.1 of the Criminal Code . ______________________________________________________________________ [ 1 ] This decision is about the power of a judge of the Court of Québec to hear an application concerning the forfeiture of things seized ( s. 490(9) of the Criminal Code ). [ 2 ] The parties believe the Court has jurisdiction to rule on the forfeiture of property, but do not agree on the procedural vehicle that must be used. [ 3 ] In the respondent’s opinion, s. 490(9) of the Criminal Code could apply to the situation in this case.

His arguments are based primarily on the decision in Lacelle. [1] Should the Court find otherwise, he submits that it could exercise its power under the common law and pursuant to the maxim ex turpi causa non oritur actio ( no right arises from a dishonourable act or from turpitude ) and decide the issue of forfeiture accordingly.

The respondent submits that the Court’s powers may be exercised both under the common law and as provided in s. 490(9) . [ 4 ] In the applicant’s opinion, an order forfeiting property tainted by criminality at the respondent’s behest is governed both by s. 490(9) and s. 491.1 of the Criminal Code .

The applicant believes the regimes established by those sections of the Code are not the correct procedural vehicles and cannot apply to the present case. [ 5 ] The applicant submits that the case law is clear that a provincial court judge lacks the jurisdiction to apply s. 490 of the Criminal Code , after a trial has ended, to items not filed as exhibits. Background [ 6 ] On May 25, 2021, I decided a motion to exclude evidence under ss. 2(b) , 8 and 24(2) of the Canadian Charter of Rights and Freedoms (the Charter ).

My judgment granted the motion; declared that the applicant’s s. 8 Charter rights had been infringed; invalidated three search warrants; and, in accordance with s. 24(2), excluded the evidence obtained in violation of the Charter . [ 7 ] In these proceedings, the parties specified that, in light of the Charter decision, the Court should take it as a given that an acquittal will need to be entered in this case, and that this acquittal will be entered prior to the forfeiture. Decision [ 8 ] The Court adopts the remarks of Judge André Perreault in Nguyen , [2] where he writes as follows, at para. 88: [ translation ]

Although there continues to be controversy about the application of the regime of

section 490 of the Criminal Code once proceedings have been commenced, it is uncontroverted that a provincial court judge has no jurisdiction to apply s. 490(9) to property that has not been tendered as an exhibit. [ 9 ] The judge continues, at para. 91: [ translation ] The Court, in the form of a judge of the Court of Québec, does not have jurisdiction to apply s. 490(9) to seized property not been tendered as exhibits in proceedings that have begun and ended. [ 10 ] In his decision, Judge Perreault relies on, inter alia , the decision of Myriam Lachance J. in 9141–2023 Québec Inc . [3] [ 11 ] In 9141–2023 Québec Inc ., a truck was not tendered in evidence in the accused’s trials, but the judge at first instance nonetheless ordered its forfeiture after the trials. [ 12 ] With respect to the application of s. 490(9), Lachance J. cites our Court of Appeal in Gagnon , [4] which adopts the reasoning of Jackson J. in Spindloe , cited by Judge Vauclair in EchoStar Corporation , [5] to the effect that the regime of s. 490 of the Criminal Code is [ translation ] “no longer applicable once the proceedings have commenced, and this is all the more the case if the proceedings have ended.” [ 13 ] As Judge Perreault writes in Nguyen with respect to the decision of Justice Lachance in 9141–2023 : [ translation ] She [Justice Lachance] does however acknowledge that the trial judge had jurisdiction to apply s. 491.1(2), which provides, among other things, that where an accused is on trial, the court, if it finds that an offence has been committed and the accused is not convicted, may order property not needed in other proceedings forfeit if its legitimate owners, or the person lawfully entitled to its possession, are not known. [6] [ 14 ] In addition, the Court is of the view that s. 491.1 of the Criminal Code does not apply here either, because the Court has not found that an offence has been committed, as that provision of the Code requires. [ 15 ] As Lacelle , cited by the prosecution, although it is laudably detailed, it was rendered before the Court of Appeal’s judgment in Gagnon .

Furthermore, it must be noted that, in 9141-2023 , the Superior Court reversed the decision of Judge Bonin, who, following the trial, had ordered the forfeiture of a truck that had not been tendered as an exhibit. [ 16 ] For all these reasons, the Court finds that s. 490(9) of the Criminal Code does not apply in the present case.

What is the applicable regime in this case? [ 17 ] In their treatise on criminal procedure and evidence, Traité général de preuve et de procédure pénales , authors Martin Vauclair and Tristan Desjardins discuss the power of intervention of statutory courts based on a “doctrine of jurisdiction by necessary implication” in their

chapter Le pouvoir des tribunaux de régir leurs procédures .

They write: [ translation ] 3.32 Statutory courts have an intervention power grounded in a doctrine of jurisdiction by necessary implication, which gives them [ translation ] “control over their procedures for the purposes of effectively administering justice without reservation.” Thus, in both cases, the courts are fully able to conduct their proceedings soundly. 3.36 In most cases, superior courts and statutory courts can each take the same measures to ensure the matters before them proceed properly, even though the source of that power may differ: an inherent source for superior courts, and necessary implication for statutory courts.

As Justice Lachance writes in 9141-2023 : [63] Thus, the Court of Québec, as a court created by statute, has “the powers conferred by an enabling statute [which] are construed to include not only those expressly granted but also, by implication, all powers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime.” [ 18 ] Although I have decided that Lacelle is not to be followed with regard to the application of s. 490(9) of the Criminal Code , I find it quite pertinent on other matters, such as the sources of the court’s power regarding forfeiture. [ 19 ] Like Judge Bonin, I am of the opinion that the maxim ex turpi causa non oritur actio (no right arises from a dishonourable act or from turpitude), which originates in the common law, continues to be applicable on a separate basis failing the application of specific statutory provisions regarding the forfeiture of property, provided no conflicting provisions exist.

It is understood that the maxim applies only if there is turpitude. [ 20 ] As Judge Bonin specifies: [7] [ translation ]

“Where that turpitude is a criminal wrong, criminality must be demonstrated in accordance with normal procedures”, which is to say, beyond a reasonable doubt. [ 21 ] In this regard, Judge Bonin cites the Supreme Court’s decision in Fleming (Gombosh Estate) , [8] a case that deals with this maxim, in which Justice Wilson writes as follows: Although Garfinkel Prov. Ct.

J. quotes extensively from Aimonetti , he uses the language of public policy in his conclusion at p. 95: In the case before me, it is equally contrary to public policy and against the public interest for a court to grant an order of restoration if to do so would place in the hands of the applicant money which, on the facts before me, was associated with an illegal drug transaction and was intended to be used in an illegal drug transaction.

I want to say I am not deciding the issue of ownership, which could be the subject of civil proceedings. [ 22 ] With respect to the definition of the ex turpi rule, Justice Wilson writes as follows: In general, I agree with the following characterization of the ex turpi rule by Lord Diplock in Hardy v . Motor Insurers' Bureau , [1964] 2 All E.R. 742, at pp. 750 - 51 , and with his assumption that a successor stands in the shoes of the original claimant: All that the rule means is that the courts will not enforce a right which would otherwise be enforceable if the right arises out of

an act committed by the person asserting the right (or by someone who is regarded in law as his successor) which is regarded by the court as sufficiently anti - social to justify the court's refusing to enforce that right. Conclusion [ 23 ] Given the foregoing, the Court finds that ss. 490(9) and 491.1 of the Criminal Code do not apply to this case. [ 24 ] The Court also finds that it has all the jurisdiction required to decide the issues pertaining to the forfeiture, or alternatively, the restitution of the property concerned.

FOR THESE REASONS, THE COURT: [ 25 ] GRANTS the motion to dismiss; [ 26 ] DECLARES that it does not have jurisdiction to dispose of the things seized pursuant to s. 490 of the Criminal Code ; [ 27 ] DECLARES that it has the jurisdiction under the common law to dispose of the things seized. __________________________________ JOSÉE BÉLANGER, J.C.Q. Mtre Jérôme Laflamme Directeur des poursuites criminelles et pénales Counsel for the prosecution Mtre Claudia Morin Bérubé Counsel for the accused / applicant Date of hearing: September 22, 2022