R. v. Martin, 2011 NLCA 10

Date: 20110120 Docket: 10/0111 R. v. Martin , Citation: 2011 NLCA 10 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : RONALD MARTIN APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Rowe, White and Harrington, JJ A Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (General) 201001G3741 Appeal Heard: December 14, 2010 Judgment Rendered: January 20, 2011 Reasons for Judgment by Harrington, J.A. Concurred in by Rowe and White, JJ.A. Counsel for the Appellant: Kenneth J. Mahoney Counsel for the Respondent: Brenda P. Boyd

Harrington, J.A.: [1] The appellant has appealed a decision of a Trial Division judge (“applications judge”) dismissing his request for the releaseof funds seized from him during the execution of a search warrant. The police seized the sum of $56,000.00 from his vehicle. Theseevents were part of an investigation that resulted in his indictment on two charges under the Controlled Drugs and Substances Act(CDSA).

Pursuant to s. 462.34(4)(c)(ii) of the Criminal Code dealing with proceeds of crime, the appellant sought a release of funds topay reasonable legal expenses in the defence of the two CDSA charges. [2] The Crown brought an application to strike on the basis that there is no right of appeal by an accused to this Court arisingfrom the rejection of this type of application. BACKGROUND [3] The appellant is facing a trial on the CDSA charges.

The appellant argues that the applications judge erred in failing torelease all or part of the seized funds to cover his reasonable legal expenses given that he has been rejected for legal aid and that his legalcounsel is representing him at trial on a “pro bono” basis. The applications judge was not prepared to draw an inference that theappellant had established “… a legitimate possession of the funds so as to reduce the concern that these funds may well be the proceedsof crime…”.

The appellant contends that the legitimacy of his possession of the funds was not contested by the Crown before theapplications judge and that the only issue for consideration was the state of the appellant’s financial affairs as it affected his need to paycounsel fees from the seized funds. [4] In R. v.

Druken, (SCC), [1998] 1 S.C.R. 978, the Supreme Court of Canada affirmed the dissent ofCameron J.A. of this Court: (1997), (NL CA), 157 Nfld. & P.E.I.R. 93, which held that an appeal court has noinherent jurisdiction to hear appeals in criminal matters and thus there is no jurisdiction to hear interlocutory appeals save where such anappeal is expressly provided for in the Criminal Code. [5] As the ruling of the trial judge regarding the status of Mr.

Druken’s defence counsel did not determine the real issue betweenthe Crown and the accused but was a collateral matter, it was held to be interlocutory with no right of appeal to this Court. LAW AND ANALYSIS [6]

Section 674 of the Criminal Code provides that: 674. No proceedings other than those authorized by this Part [XXI – Appeals - Indictable Offences] and

Part XXVI [ExtraordinaryRemedies] shall be taken by way of appeal in proceedings in respect of indictable offences. [7]

Section 675 deals generally with the right of appeal of a person convicted and

section 676 deals generally with the right ofappeal of the Attorney General. These provisions set out various rights of appeal with respect to final dispositions, notably a conviction,acquittal or the quashing of an indictment and sentences. Neither s. 675 or s. 676 provides for appeal of an interlocutory decision. Thus,jurisdiction for such an appeal, if it exists, must be found elsewhere in the Criminal Code. [8] Counsel for the appellant submitted in support of a right of appeal to this Court the decision in R. v. Beaulieu Estate, 2001NBCA 107.

There the Crown appealed from a dismissal by an applications judge of a Crown forfeiture application and the granting ofan administrator’s application for restoration, holding that the estate of an accused who died prior to trial had an interest in some of theseized funds. The judge allowed the release of $15,000.00 to pay legal costs. The order of the applications judge was made pursuant tos. 462.34(4)(c)(ii) of the Criminal Code which is the focus of this proceeding.

It arose from the dismissal rather than the grant of anapplication by the Crown of a forfeiture order as well as the granting of a restoration order in favour of the estate of the accused. Theprovision reads in relevant part:

(4) On an application made to a judge under paragraph (1)(

a) in respect of any property and after hearing the applicant and the AttorneyGeneral and any other person to whom notice was given pursuant to paragraph (2)(b), the judge may order that the property or a partthereof be returned to the applicant…. …. (

c) for the purpose of (ii) meeting the reasonable business and legal expenses of a person referred to in subparagraph (i) [… who was in possession of theproperty at the time the warrant was executed], … if the judge is satisfied that the applicant has no other assets or means available for the purposes set out in this paragraph and that noother person appears to be the lawful owner of or lawfully entitled to possession of the property. [9] The jurisdiction of the New Brunswick Court of Appeal to hear the appeal was not contested by the parties but wascommented upon by way of obiter at paragraph 16: … The Attorney General’s right to appeal may arise from some other provision, one not mentioned in the Notice of Appeal.

See, forexample, s. 462.45(b), which was not raised by either party. That provision refers to an appeal taken from an order of forfeiture orrestoration in respect of the subject property. Thus, while the New Brunswick Court of Appeal proceeded as if it had jurisdiction to hear an appeal in a matter such as this, it expresseduncertainty as to the basis for the jurisdiction. That decision, therefore, cannot be taken as appellate authority that there is a statutoryjurisdiction to deal with an appeal of a decision made pursuant to

section 462.34(4) of the Criminal Code.

[10] Courts of Appeal have rejected attempts to ground a right of appeal based on a “civil” characterization of the interlocutorymatter. In R. v. Aggek (D.I.) (1999), (NB CA), 209 N.B.R. (2d) 16 (C.A.) the court dealt with an appeal by theaccused from an order of a single appellate judge in favour of the Crown extending the time for service of the notice of appeal.

Thecourt ruled at para. 9: The judge hearing the motion [for an extension of time] was exercising jurisdiction set out in the Criminal Code and this procedural stepcannot be characterized as a civil matter just because it also exists in civil practice. [11] The only potential sources of appellate jurisdiction in the case on appeal are sections 462.44 and 462.45 of the Criminal Codewhich are noted in Beaulieu. Those sections provide: 462.44 Any person who considers that they are aggrieved by an order made under subsection 462.38(2) or 462.41(3) or

section 462.43may appeal from the order as if the order were an appeal against conviction or against a judgment or verdict of acquittal, as the case maybe, under

Part XXI, and that Part applies, with such modifications as the circumstances require, to such an appeal. 462.45 Despite anything in this Part, the operation of an order of forfeiture or restoration of property under subsection 462.34(4),462.37(1) or (2.01), 462.38(2) or 462.41(3) or

section 462.43 is suspended pending … (

b) any appeal taken from an order of forfeiture or restoration in respect of the property … (Underlining added) [12] Those sections, however, do not expressly provide a right to appeal in a case such as the case on appeal. In Proceeds of Crimeand Money Laundering, German, (Toronto: Carswell, 2010 – Looseleaf – Release 3) at pp. 15-1 to 15-3 the author comments: Although other sections of the Criminal Code make reference to appeals, the only

section in

Part XII.2 devoted to the issue is 462.44. Itreads: [section omitted] …

Part XII.2 permits appeals from some, but not all, orders. Where the Code is silent respecting a right of appeal, no right is presumed.When considering the ability to appeal an order under s.462.35 [footnote omitted], the Court of Appeal for Saskatchewan commented asfollows, in R. v. Derksen [(1999), (SK CA), 180 Sask. R. 271]: This is in direct contrast to other sections of the Criminal Code that relate to property seized as proceeds of crime, for which a right ofappeal is granted (see Criminal Code sections 490.1(3), 490.6, 462.44, 491 and 673).

Since Parliament specifically granted the rights ofappeal in some situations but not in others, it must be taken to have intended that there would be no right of appeal from orders madeunder s.462.35. … No right of appeal is provided from an order made under s.462.34.

Section 462.45 suspends the operation of an order under s.462.34(4),in certain circumstances. [13] The reasoning in Derkson is at play in this case as Parliament specifically granted rights of appeal in some situations but not inothers. It may be taken to have been intended that there would also be no right of appeal from orders made under s.462.34(4). However,the

section considered in Derkson, s. 462.35, is not listed in s. 462.45. Thus, it is clear that while Parliament did not contemplate anappeal from a s. 462.35 disposition, the reference to the suspension of the operation of a forfeiture or restoration order pending anyappeal taken from such orders tends to leave the door ajar. [14] The problematic wording in s. 462.45 may be avoided, however, when one considers that the accused has a right to seek leaveto appeal to the Supreme Court of Canada pursuant to

section 40 of the Supreme Court Act. This reality gives meaning to the reference to“any appeal taken from an order of forfeiture or restoration …” provided for in s. 462.45(

b) of the Criminal Code. [15] This

interpretation was confirmed by the Supreme Court of Canada in Québec (Attorney General) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708.[1] The appeal arose from restraint orders and special warrants of seizure made under ss. 462.32 and462.33 of the Criminal Code respecting alleged proceeds of crime. The Court was considering the nature and scope of restraint ordersand whether the actions taken under the orders under attack represented a “seizure” within s. 8 of the Charter of Rights and Freedoms. The case came before the Supreme Court of Canada from the Québec Superior Court as a direct appeal under s. 40 of the Supreme CourtAct. The accused sought a review under s. 462.34(4)(

b) of the Criminal Code to have a restraint order and special warrants of seizurequashed and the seized property returned. [16] The reviewing judge quashed the restraint order and the special warrants of seizure. With respect to the real property affected,the reviewing judge concluded that the investigating officer's assertions had been discredited, removing the basis for the restraint order.

With respect to the seizure of vehicles, the reviewing judge concluded that the provincial vehicle licensing agency had erred in providingthe police with the information that had initiated the investigation without a warrant. The reviewing judge concluded that all of thesubsequent warrants and seizures were invalid as a result of the initial illegal search. [17] In the course of its reasons, the Supreme Court noted the following: 21 On March 6, 2001, De Blois J. of the Superior Court granted a stay of execution under s. 65.1 of the Supreme Court Act, R.S.C.

1985, c. S-26, until judgment was rendered on the application for leave to appeal to this Court. Leave to appeal was then granted. This is a direct appeal under s. 40 of the Act, because the legislation in question does not provide for any appeal to another cour t. … 46 Again, it will have been noted that the Criminal Code as it now stands does not make satisfactory provision for the appeal of decisions made under

Part XII.2 [Proceeds of Crime]. The legislation contains no procedure for an appeal to the intermediate appellate courts in the case before this Court. Those courts are therefore unable to perform their error correction function in the application of the law. The legislation as it stands also deprives these courts of the opportunity to take

part in the development of this particular part of the law. Criminal trials have undergone changes. The number of situations in which pre-trial, interlocutory or incidental decisions are made has risen substantially. The evolution of the law, and particularly the need to protect the constitutional rights of third parties such as victims, persons bound by professional privilege or the media, have given rise to new kinds of issues, which remain incidental to the main issue between the Crown and the accused.

Unfortunately, criminal procedure has scarcely kept up with these changes, as Major J. recently pointed out in the case of a direct appeal to this Court concerning a problem involving professional privilege ( R. v. Brown , 2002 SCC 32 [parallel citations omitted] at paras. 105-10 ).

We must therefore examine this case in a situation in which the parties have been denied an opportunity for a comprehensive review of the issues by the Quebec Court of Appeal. (Underlining added) [ 18 ] At para. 46, the Supreme Court clearly expressed concern over the lack of recourse to courts of appeal regarding various interlocutory matters arising from the evolution of the criminal law including the granting of restraint orders and orders for seizure under proceeds of crime provisions of the Code .

However, the clear message from the Court is that although access to intermediate courts of appeal should be provided for under the Code “… to perform their error protection function in the development of this part of the law…”, that is not now the case. [ 19 ] Therefore, I concur with the Crown’s submission based on Laroche that the appellant has no right of appeal to this Court arising from the dismissal by the applications judge of his request for the release of some or all of the seized funds to cover his legal expenses.

DISPOSITION [ 20 ] For the reasons set forth, this Court grants the application by the Crown striking the appellant’s notice of appeal. _____________________________ M.F. Harrington, J.A. I concur: _______________________ M.A. Rowe, J.A. I concur: _______________________ C.W. White, J.A.