2011 NLCA 72, 2011 NLCA 72

Date: 20111115 Docket: 11/37 Citation: Canada (Attorney General). v. Taylor , 2011 NLCA 72 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : HER MAJESTY THE QUEEN (CANADA) APPELLANT AND : BARBARA TAYLOR RESPONDENT Coram: Wells, Rowe and Harrington, JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 2010 01G 5197 Appeal Heard: October 17, 2011 Judgment Rendered: November 15, 2011 Reasons for Judgment by Wells, J.A. Concurred in by Harrington, J.A. Separate reasons by Rowe, J.A.

Counsel for the Appellant: Andrew Brown Counsel for the Respondent: John Lavers and Laura Brazil Wells, J.A.: [ 1 ] The Crown applies for leave to appeal and, if granted, appeals an interlocutory order of the Trial Division deciding, as a preliminary matter, that the Trial Division and not the provincial Court has jurisdiction to hear an application respecting disposition of property seized by the police in the course of their duties. [ 2 ] During the course of an investigation, the police seized from Canada Post, on April 14, 2004, a package connected with the respondent (“Ms. Taylor”).

It contained cash totalling $84,090.00. On June 16, 2004, the police seized a further $14,680.00 from Ms.

Taylor’s residence. She was arrested and charged that she and others conspired to traffic in cannabis marijuana contrary to section 465(1) (

c) of the Criminal Code of Canada (“ Code ”) and trafficked in cannibis marijuana contrary to section 5(1) of the Controlled Drugs and Substances Act (“ CDSA ”). [ 3 ]

Section 489.1 of the Code mandates a specific procedure that is to be taken by the seizing officers “as soon as is practicable” following such a seizure of property. Subsection (1) reads as follows: 489.1

(1) Subject to this or any other Act of Parliament, where a peace officer has seized anything under a warrant issued under this Act or under

section 487.11 or 489 or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer shall, as soon as is practicable, (

a) where the peace officer is satisfied, (

i) that there is no dispute as to who is lawfully entitled to possession of the thing seized, and (ii) that the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding, return the thing seized, on being issued a receipt therefor, to the person lawfully entitled to its possession and report to the justice who issued the warrant or some other justice for the same territorial division or, if no warrant was issued, a justice having jurisdiction in respect of the matter, that he has done so; or (

b) where the peace officer is not satisfied as described in subparagraphs ( a )(

i) and (ii), (

i) bring the thing seized before the justice referred to in paragraph ( a ), or (ii) report to the justice that he has seized the thing and is detaining it or causing it to be detained to be dealt with by the justice in accordance with subsection 490(1). Information provided by counsel for the Crown, unchallenged by counsel for Ms. Taylor, indicates the steps taken and, as a result, discloses the steps not taken by the seizing officers.

BACKGROUND FACTS [ 4 ] With respect to the April 14, 2004 seizure of $84,090.00, the report to a justice was not filed with the Provincial Court until June 17, 2005, more than one year after the seizure, and, Crown counsel advises, no order dealing with it pursuant to subsection 490(1) was obtained. However, a management order had been obtained from Provincial Court on August 19, 2004, giving possession and control of the seized monies to the Seized Property Management Directorate of the federal Department of Public Works and Government Services. That order was expressed to be made pursuant to

section 14.1 of the CDSA . I would note, however, that

section 13 of the CDSA makes sections 489.1 and 490 of the Code applicable to property seized under the CDSA . [ 5 ] With respect to the June 16, 2004 seizure of $14,680.00, the report to a justice was not filed with Provincial Court until January 6, 2005. Again, Crown counsel advises that no order dealing with the seized property pursuant to subsection 490(1) was obtained in respect of this seizure. A similar management order was obtained from Provincial Court, also on January 6, 2005, but that order was expressed to be made pursuant to

section 490.81 of the Code . [ 6 ] After a variety of extensive delays, a preliminary inquiry was completed on November 6, 2007 and Ms. Taylor and others were committed to stand trial in the Trial Division. After arraignment in that court on November 30, 2007, but before the charges could be tried, Ms. Taylor and others applied, in August of 2008, for a stay of proceedings on the basis of unreasonable delay. The stay was granted on February 25, 2009. That decision was appealed and this Court upheld the stay on April 22, 2010. PRIOR PROCEEDINGS [ 7 ] On October 13, 2010 Ms. Taylor applied to the Trial Division for a return of the money seized from her on the basis that:

Section 490, subsection (7)(

a) provides for an Order under paragraph 9(

c) of

section 490 that the monies seized be returned to the Applicant, Barbara Taylor. Subsections (7) and (9) of

section 490 read as follows:

(7) A person from whom anything has been seized may, after the expiration of the periods of detention provided for or ordered under subsections (1) to (3) and on three clear days notice to the Attorney General, apply summarily to (

a) a judge of a superior court of criminal jurisdiction or a judge as defined in

section 552, where a judge ordered the detention of the thing seized under subsection (3), or (

b) a justice, in any other case, for an order under paragraph (9)(

c) that the thing seized be returned to the applicant ….

(9) Subject to this or any other Act of Parliament, if

(

a) a judge referred to in subsection (7), where a judge ordered the detention of anything seized under subsection (3), or (

b) a justice, in any other case, is satisfied that the periods of detention provided for or ordered under subsections (1) to (3) in respect of anything seized have expired and proceedings have not been instituted in which the thing detained may be required or, where such periods have not expired, that the continued detention of the thing seized will not be required for any purpose mentioned in subsection (1) or (4), he shall (

c) if possession of it by the person from whom it was seized is lawful, order it to be returned to that person; or (

d) if possession of it by the person from whom it was seized is unlawful and the lawful owner or person who is lawfully entitled to its possession is known, order it to be returned to the lawful owner or to the person who is lawfully entitled to its possession, and may, if possession of it by the person from whom it was seized is unlawful, or if it was seized when it was not in the possession of any person, and the lawful owner or person who is lawfully entitled to its possession is not known, order it to be forfeited to Her Majesty, to be disposed of as the Attorney General directs, or otherwise dealt with in accordance with the law. [ 8 ] On December 17, 2010, Ms.

Taylor amended her application. The amendment deleted reliance on

section 490 of the Code . Instead, that amended application alleged that, by failing to comply with the provisions of

section 489.1 of the Code and by improperly withholding the monies seized, the Royal Canadian Mounted Police (“RCMP”) and the Public Prosecution Service of Canada (“PPSC”) breached her rights under sections 7 and 8 of the Canadian Charter of Rights and Freedoms (the “ Charter ”) and sought return of the seized monies as a remedy pursuant to

section 24 of the Charter . Alternatively, Ms. Taylor claimed that the failures of the RCMP and PPSC to return the seized funds entitled her to an order of mandamus directing immediate return of the funds. [ 9 ] On January 24, 2011, the Crown responded to the amended application denying any failure to comply with the requirements of

section 489.1 and submitting that Ms. Taylor could at any time have applied to the Provincial Court, pursuant to subsection 490(7) of the Code , for an order returning the seized goods but chose not to do so. The Crown’s response also indicated that it reserved “the right to challenge the timing, necessity and jurisdiction of this application” for a

section 24 remedy and/or mandamus . On the same date, the Crown applied to the Provincial Court, pursuant to subsection 490(9), for an order of forfeiture on the basis that the seized funds were obtained by the commission of a criminal offence. [ 10 ] Prior to scheduling the Trial Division hearing of the application that is the subject of this appeal, the parties agreed to ask the applications judge to decide the question of whether, in the words of the applications judge, “the application is properly heard in this court or in the Provincial Court”.

The hearing on that preliminary matter took place on April 5, 2011 and, in an oral decision, the applications judge decided: [2] In my review of all of the provisions of

section 490 it would appear that the Provincial Court certainly has initial jurisdiction to deal with these matters. The subject matter of

section 490 is items seized, and that includes monies. It is not limited to physical items. It is not limited to items that are presented as exhibits in a proceeding in a preliminary inquiry court or in a subsequent proceeding in a trial court. [3] The entire scheme set up in

section 490 is to deal with items that are seized in connection with a proceeding. The language is fairly constant. I am saying this because the Crown has made an argument that in subsection 4 the wording seems to indicate there is a distinction. I have to confess I am having trouble with that, conceptually. The entire

section deals with matters that are seized. But subsection 4 is probably the

section which contains the greatest clarity in

section 490 . It simply says: When an accused has been ordered to stand trial, a justice shall forward anything detained pursuant to subsections 1 to 3, 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. [4] My view of this question is focused on subsection 4. Maybe it is attractive because it is so simple, but it is the one provision in

section 490 which seems to give some clarity. In this case there was a committal in October 2007. Ms. Taylor was committed for trial and arraigned in this court. There is no question in my mind that subsection 4 clearly applies to this situation where a committal to trial in this court was ordered. I find it attractive because it is so simple. In the case of R. v. Gehl , 2008 ONCJ 305 , 2008 CarswellOnt 3913, subsection 4 was described as a termination provision in terms of the jurisdiction to deal with these matters. Because it seems so clear, I am persuaded that it does apply to this situation. [5] The other provisions in this

section cannot logically continue to apply once the events contemplated in subsection 4 take place. They cannot exist together and while I accept that the other provisions are confusing, the one provision which brought clarity to this matter is subsection 4. [ 11 ] On April 15, 2011, the Crown applied to this Court for leave to appeal that decision.

On May 9, 2011, in connection with that application for leave, the Crown filed three affidavits including an affidavit of Constable Gary Crocker setting out a record of the undercover police investigation leading to the charges and the seizure of the funds and an affidavit of Constable Colleen Fox to which was attached the cautioned statement Ms. Taylor gave to the police at the time of her arrest. [ 12 ] On May 10, 2011, Ms. Taylor applied to strike out the application for leave to appeal on the ground of the impropriety of filing the affidavits that were not part of the record and were prejudicial to Ms.

Taylor. She contended that that impropriety established that the application for leave to appeal was vexatious. [ 13 ] In the meantime, on May 19, 2011, Ms. Taylor filed a second amendment to her application before the Trial Division. It continued the request for a

section 24 Charter remedy and the request for an order of mandamus . However, it added, as alternatives, a request for: a declaration that the Crown had no legal authority to withhold the monies; an order that the seized monies be returned pursuant to the superior court’s inherent jurisdiction to deal with seized property; and, an order of replevin releasing the monies unlawfully detained.

[14] When the matter was first called in this Court, in June 2011, and a date set for the hearing of the appeal, the Court askedcounsel to be prepared to address the question of whether this was to be considered an appeal under the Code, in respect of which section674 might have application or whether it was an appeal in a civil matter.

The parties filed further submissions and filed facta. [15] On September 19, 2011, the Crown applied for leave to adduce further evidence in the form of affidavits from two clerks in theRegistry of the Trial Division attesting to the practice followed by that court in respect of seized property where an accused person wascommitted for trial in the Trial Division. Again, the parties filed submissions in respect of that application. PROCEEDINGS ON APPEAL [16] At the commencement of the appeal hearing, the Court asked the parties to identify specifically the issues remaining to beresolved.

Counsel indicated their agreement that: (

i) the basis on which leave to appeal was opposed is “essentially” moot, (ii) the affidavits of Constables Crocker and Fox and the third affidavit are withdrawn, (iii) the application to strike the application for leave to appeal is withdrawn, and leave to appeal should be granted, (iv) the application is a civil application and thus this appeal is a civil appeal, and (

v) there is no longer an issue as to whether this Court has jurisdiction to hear this appeal. Counsel also indicated their agreement that the two issues remaining before this Court are whether the Crown should be granted leave toadduce further evidence in the form of the affidavits from the clerks of the Trial Division Registry and the merits of the appeal itself. Inthe circumstances, leave should be granted and it is. (

a) Argument of the Crown [17] With respect to the application to adduce further evidence the Crown argues that the evidence was necessary to establish that,in practice, the Trial Division has never received funds seized when an accused person is committed for trial after a preliminary inquiryin the Provincial Court. Counsel argues that consideration of that practice should inform

interpretation of subsection 490(4). [18] With respect to the appeal against the decision of the trial judge, the Crown emphasizes that: The Crown’s core disagreement with the applications judge’s ruling is the finding that s. 490(4) of the Criminal Code extinguishesjurisdiction to apply the subsequent provisions in s. 490 when an accused has been ordered to stand trial (following the ruling of OntarioJustice of the Peace Cuthbertson in R. v.

Gehl, [2008] O.J. 2613 (Ont.Ct. of Justice)). [19] Subsection 490(4) of the Code reads: 490(4) When an accused has been ordered to stand trial, the justice shall forward anything detained pursuant to subsections (1) to (3) tothe clerk of the court to which the accused has been ordered to stand trial to be detained by the clerk and disposed of as the court directs.

The Crown argues that subsection (4) only requires the forwarding to the Trial Division, where there is a committal to stand trial in thatcourt, of anything “detained” pursuant to subsections (1) to (3), but does not apply to anything seized that may not have been broughtbefore the justice or may have been ordered detained by the justice.

Thus, the Crown submits, as there was no order by a justice fordetention pursuant to subsections (1) to (3), the jurisdiction to deal with seized funds where detention continued in the police or inanother government agency remained, by virtue of subsections (7) and (9), in the Provincial Court and did not pass to the Trial Divisionby virtue of subsection 490(4).

The Crown then submits that: Applying the statutory scheme in this case would have required the parties to determine their respective claims to the seized cash in theProvincial Court as there had never been a detention order issued by a judge of a superior court of criminal jurisdiction or a judge asdefined by

section 552 of the Criminal Code, as clearly set out in s. 490(5), 490(6), 490(7), 490(8), 490(9), 490(9.1) and 490(10). [20] The Crown’s primary concern, counsel advised, was with the conclusion of the applications judge that the effect of subsection(4) was to operate “as a termination provision in terms of the jurisdiction to deal with these matters”.

In its factum, the Crown “…concedes that in appropriate cases, the jurisdiction of the …Trial Division encompasses the ability to entertain a civil application by aperson that property be returned to him or her…”, but argues that, in the circumstances of this case, “… the applications judge shouldhave declined to exercise such jurisdiction in favour of the procedures outlined in s. 490(5) through (9) of the Criminal Code”. In supportof that submission the Crown cites Gendron v.

Supply and Services Union of the Public Service Alliance of Canada, Local 50057, (SCC), [1990] 1 S.C.R. 1298. [21] In Gendron, the Court was addressing the issue of jurisdiction in the context of an argument that by enacting a comprehensivelabour code, including provision for an adjudicative process, Parliament had, by necessary implication, ousted the common lawjurisdiction of the ordinary courts to entertain a claim dealing with issues provided for in the statute.

In deciding that Parliament hadousted the common law jurisdiction in that case, L’Heureux-Dube wrote, at page 1319, that: “…while the legislation does not expresslyoust the common law duty…it does…effect this end by necessary implication… [as]…Parliament has, by the enactment of this particularlegislative scheme, expressed its intentions with ‘irresistible clearness’ ” [Emphasis in original]. [22] Based on those arguments, the Crown seeks a declaration that: “the disposition of the seized cash is properly determined by ajustice under s. 490 of the Criminal Code”. (

b) Argument of Ms. Taylor

[23] With respect to the admission of the affidavits of the clerks from the Trial Division Registry, Ms. Taylor does not take issuewith the information sought to be introduced. However, her counsel submits that the Palmer test for adducing further evidence onappeal must still be met.

Counsel submits that that test cannot be met in this case primarily because the information contained in theaffidavits is not relevant to the issue on the appeal, i.e., whether the Trial Division, or the Provincial Court, has jurisdiction to deal withthe issues arising on the application before the Trial Division. [24] With respect to the appeal itself, counsel for Ms. Taylor refers the Court to the interlocutory order filed as a result of thepreliminary argument respecting jurisdiction made to the applications judge.

That order reads: The Supreme Court of Newfoundland and Labrador, Trial Division, (General), has jurisdiction to deal with all matters in this actioninvolving the disposition of things seized during the course of the initial investigation. Counsel argues that the correctness or otherwise of any further comments of the applications judge in his reasons for decision are notmatters that should properly be considered by this Court at this time because the application has not yet been heard.

This Court, counselsubmits, should deal only with what is necessary to determine the question of jurisdiction. [25] It is argued on behalf of Ms. Taylor that the intention of Parliament, expressed in sections 489.1 and 490 of the Code is toensure that the handling of property detained as part of a criminal investigation is judicially supervised. Counsel cites R. v. Backhouse(2005), (ON CA), O.A.C. 80, 194 C.C.C. (3d) 1 (ONCA), as authority for the proposition that “there is an obligationon the justice to supervise its detention”.

Counsel also submits that Backhouse is authority for the proposition that there is no differencebetween the treatment of seized things that are placed in court or ordered by the justice to be detained in the custody of others. [26] Counsel for Ms. Taylor also cites R. v.

Raponi, [2004] 3 S.C.R. 35, 2004 SCC 50, as authority for the proposition that, incircumstances such as exists here, where there is no specific provision respecting disposition of seized things subsequent to the entry of astay of proceedings, “no remedy was available to [the accused] in Provincial Court: any cause of action of which [s]he could haveavailed [her]self would have been located in a superior court.” ANALYSIS (

a) The Application to Adduce Further Evidence [27] The law respecting the admission of fresh evidence in the course of hearing an appeal is well settled and not in dispute in thismatter. It was set out, in the criminal context, in R. v. Palmer, (SCC), [1980] 1 S.C.R. 759, at page 775. The fourprinciples are: (

i) The evidence should generally not be admit​ted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases; (ii) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (iii) The evidence must be credible in the sense that it is reasonably capable of belief, and (iv) It must be such that if believed it could reasonably, when taken with the other evi​dence adduced at trial, be expected to haveaffected the result.

This Court and most other courts of appeal in Canada have applied these principles in civil cases as well as criminal cases. [28] Counsel for Ms. Taylor is correct when he asserts that the further affidavit evidence sought to be adduced by the Crown doesnot conform to the requirements of the first, second and fourth of those principles. With respect to the first, the evidence was readilyavailable on the hearing of the application. As to the second, while the evidence contained in the affidavits may be said to be connectedwith a decisive issue, it cannot be said to bear on it as a determinant of that issue.

As to the fourth, the result of the appeal must bedetermined by interpreting the expressed intention of Parliament not by the practice, correct or incorrect, in a particular court registry. In the circumstances leave to adduce the evidence is denied. (

b) The Jurisdiction Question (

i) Treatment by the Court [29] I also agree with counsel for Ms. Taylor that, on this appeal, the Court should confine its consideration and comments to thosestatutory provisions and matters necessary to resolve the questions as to jurisdiction that are specifically raised on this appeal, i.e.jurisdiction to deal with property seized pursuant to the Code but not disposed of by a judicial order, in factual circumstances such asexist in this case.

The process before the applications judge having been interrupted by the challenge to his jurisdiction, he has not yetfully dealt with the whole of the matters before him. While some overlapping may be unavoidable, comments in these reasons shouldavoid matters not strictly necessary to resolve the questions as to jurisdiction raised by the Crown. [30] Nevertheless, it will not be sufficient to simply declare the outcome decided by the Court. The parties, and for that matter thepublic, are entitled to reasons for judgment, not simply a declaration of the result.

The reasons for judgment must be sufficient to conveyto the parties and to the public the reasoned basis on which the Court came to the conclusions it reached and be sufficient to facilitate anyfurther appellate review to which either party may be entitled and to which either may wish to have resort. (ii) General [31] That the Trial Division, as a court having inherent jurisdiction, has jurisdiction to deal with matters of the nature of thoseraised in the amended application, as it was expressed at the date that the applications judge heard the preliminary question respecting

jurisdiction, is, in my view, beyond question. It is an application for an order pursuant to

section 24 of the Charter, or in the alternativean order in mandamus, to return the seized property to the person from whom the property was seized in connection with criminalcharges against her, in circumstances where the charges against her were disposed of by the Trial Division. There can be no question asto the jurisdiction of the Trial Division to hear such an application, or the application as it has subsequently been amended to include,alternatively, a declaration of Ms.

Taylor’s entitlement to possession, an order in replevin, or the exercise of the inherent jurisdiction ofthe court (See Raponi, at paragraph 33). [32] Clearly, that reasoning is sufficient to support the conclusion that, in the ordinary course, a superior court has jurisdiction todeal with the matters raised in the application. It is not, however, sufficient to address the issue specifically raised by the Crown in thisappeal. The Crown argues that: notwithstanding that such matters are, in the ordinary course, within the jurisdiction of the TrialDivision, the provisions of

section 490 effectively assign to the Provincial Court exclusive jurisdiction to determine questions ofrestoration or forfeiture of the seized property in circumstances where a judge of a superior court of criminal jurisdiction or a judge asdefined in

section 552 has not made a detention order respecting the seized property pursuant to subsection (3) of

section 490. [33] The Crown makes two specific arguments to support its submission that the provisions of the Code give that jurisdictionexclusively to the Provincial Court. First, the Crown argues that subsection (4) is quite explicit and requires a justice to forward to theclerk of the court to which the accused is committed for trial, “anything detained pursuant to subsections (1) to (3)”.

As no suchdetention orders were made in this case, the Crown argues that subsection (4) does not cause the transfer to the Trial Division, ofjurisdiction over the seized property, with jurisdiction over the accused and the charge. [34] The Crown also argues that, in circumstances such as exist in this case, where a judge of a superior court of criminaljurisdiction or a judge as defined in

section 552 has not, pursuant to subsection 490(3), ordered or extended detention of the seizedproperty, subsections (7) and (9) explicitly confer jurisdiction on a judge of the Provincial Court, as “a justice in any other case”, todetermine the disposition of the seized property.

As a result, the Crown submits, the principles in Gendron would require that the TrialDivision should decline to exercise any jurisdiction it may have in respect of civil remedies bearing on these matters. [35] Resolution of that issue is not addressed by simply deciding that, in the ordinary course, the Trial Division has jurisdiction tohear such an application. On the plain meaning of the words used in each of the subsections referred to in the Crown’s argument, thesubmission of the Crown has the appearance of being persuasive.

In my opinion the Crown’s submission does not reflect the correctinterpretation of the relevant subsections and must, for the reasons that follow, be rejected. [36] It is not necessary to set out here all of the provisions of

section 490 referred to by counsel in argument. To the extent thatsetting out any particular provision, beyond those set out in paragraphs 7 and 19 above, may be necessary, that can more conveniently bedone in the course of the analysis. [37] As

interpretation of statutory provisions is the primary concern, it is appropriate to mention briefly the approach that is to betaken. It was clearly expressed in Bell Express Vu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42. There Iacobucci J.wrote: 26 In Elmer Driedger’s definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed. 1983): Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Driedger’s modern approach has been repeatedly cited by this Court as the preferred approach to statutory

interpretation across a widerange of interpretive settings: see, for example,… [authorities deleted]. I note as well that, in the federal legislative context, this Court’spreferred approach is buttressed by s. 12 of the

Interpretation Act, R.S.C. 1985, c. I-21, which provides that every enactment “is deemedremedial, and shall be given such fair, large and liberal construction and

interpretation as best ensures the attainment of its objects”. 27 The preferred approach recognizes the important role that context must inevitably play when a court construes the written wordsof a statute: as Professor John Willis incisively noted in his seminal

article “Statute

Interpretation in a Nutshell” (1938), 16 Can. BarRev. 1, at p. 6, “words, like people, take their colour from their surroundings”. This being the case, where the provision underconsideration is found in

an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and thescheme of the Act are more expansive. In such an instance, the application of Driedger’s principle gives rise to what was described in R.v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, 2001 SCC 56, at para. 52, as “the principle of

interpretation that presumes a harmony,coherence, and consistency between statutes dealing with the same subject matter”. (See also Stoddard v. Watson, (SCC), [1993] 2 S.C.R. 1069, at p. 1079; Pointe-Claire (City) v. Quebec (Labour Court), (SCC), [1997] 1 S.C.R. 1015,at para. 61, per Lamer C.J.) [38] Applying those principles to this case requires some consideration of the context in which the disputed provisions wereenacted. In Backhouse the Ontario Court of Appeal did a detailed assessment of the nature and purposes of sections 489.1 and 490 of theCode.

Rosenberg, J.A. traced the legislative history of those sections and concluded that they appeared to have been “an attempt byParliament to enact a more comprehensive scheme that would apply to all seizures made under federal legislation, except that morespecific provisions in other legislation would prevail over

section 489.1 and

section 490 procedures.” He also wrote that: [110] Since proclamation of the Charter of Rights and Freedoms there has been an explosion of legislative activity in the field of searchand seizure. In Hunter v. Southam, (SCC), [1984] 2 S.C.R. 145, the Supreme Court of Canada held that warrantlesssearches for purposes of criminal investigation are presumptively unreasonable and in R. v. Collins the Court held that for a search to bereasonable it must be authorized by law.

In the result, Parliament has moved quickly to fill in gaps in the legislative scheme of searchand seizure to provide the police with the necessary tools to investigate crime while ensuring that the public and individual interests inprivacy are adequately protected. This new legislation provides for a mixture of warrant and warrantless procedures. Although s. 489.1was an early enactment after proclamation of the Charter it reflects Charter values and principles. It favours judicial supervision.

It ispart of a scheme that includes s. 490 and that is designed to regulate state activity that interferes with privacy interests. As indicated, italso reflects an interest in protecting the rights of victims of crime.

…. [112] The final factor to consider is the legislative context. I have already touched on this factor.

Section 489.1 is part of a scheme to protect property and privacy interests that is more fully developed in s.

Section 490 provides that where things have been brought before a justice or a report made to a justice in respect of anything seized under s. 489.1, there is an obligation on the justice to supervise its detention. The

section also sets out an elaborate scheme to facilitate the return of items seized to their lawful owners. If s. 489.1 were given the narrow

interpretation advocated by the Crown in this case, material seized in the course of common law searches incident to arrest would also fall outside the comprehensive scheme set out in s. 490 for supervising and ensuring return of items seized. As indicated, s. 490 applies only where the property or the report had been brought before the justice “pursuant to paragraph 489(1)(

b) or subsection 489.1(2)”. [ 39 ] I would agree with that assessment by Rosenberg J.A. As a result, following the approach in Bell Express Vu , I am of the view that the subsections of

section 490 , that relate to the issues in this appeal, are to be interpreted in the context of that assessment of the “comprehensive scheme” put in place by Parliament. (iii)

Interpretation of the disputed provisions [ 40 ] The Supreme Court of Canada has considered related questions in similar but not identical circumstances in Raponi . There, the issue was whether a provincial court judge could order, pursuant subsection 490(2), return of seized property on the basis that the seizure was unlawful, or whether a provincial court judge could so order on any other basis.

In the process of deciding that a provincial court had no such jurisdiction, McLachlin C.J., writing for the Court, expressed conclusions as to the nature of the jurisdiction of both a provincial court and a superior court of criminal jurisdiction that are of assistance in deciding for purposes of this appeal, whether the provisions of

section 490 limits the jurisdiction of the Trial Division in the circumstances of this case, by conferring jurisdiction on the Provincial Court, as the Crown argues is the case. However, those comments cannot be relied upon to be determinative of the issue in this appeal because of Chief Justice McLachlin’s comment that: 30 …the issue as to whether a justice on a s. 490(9) hearing constitutes a “court of competent jurisdiction” for the purpose of Charter motions was not argued.

This, plus the fact that all motions in this case were brought under s. 490(2) and not under s. 490(9), suggests that consideration of the precise powers of a Provincial Court judge under s. 490(9) should be left for another day. [ 41 ] The extent and nature of the powers of a provincial court judge under subsection 490(9) is precisely the issue the Crown raises for determination on this appeal.

That determination cannot, however, be made by considering the words of subsection 490(9) in isolation; they must be considered in the context of what McLachlin C.J. refers to, at paragraph 8 of Raponi, as “the procedural scheme for dealing with the seizure, detention and release of the proceeds of crime”. In other words, the meanings to be ascribed to the words in issue in the subsections of

section 490 relied on by the Crown must, as Driedger suggests, “take their colour from their surroundings” in order to produce “harmony, coherence and consistency” with the other statutory provisions dealing with the same subject matter. [ 42 ] Although, as Raponi indicates, there are gaps and circumstances not provided for, Parliament has put in place a quite comprehensive regime respecting seizure of property, balanced to protect the property and privacy interest of the persons from whom property has been seized and, at the same time, facilitate the investigation and prosecution of crimes.

There is a variety of Code provisions dealing with the matter, including sections 487 , 489 , 489.1, 490 , 490.81 and 491 . For purposes of this appeal it will only be necessary to give specific consideration to sections 489.1, 490 and 490.81 . [ 43 ] Even a cursory examination of

section 489.1, set out in paragraph 3 above, indicates that it is mandatory and it applies to anything seized pursuant to the Code and any other act of Parliament, unless

an Act otherwise provides. It requires the peace officer to return seized property to the person lawfully entitled, if there is no dispute as to who that person is and continued detention is not necessary for investigation, preliminary inquiry or trial purposes. If the peace officer is not satisfied as to both those requirements, that

section requires the officer to bring the seized property, or a report of its seizure, before a justice to be dealt with in accordance with subsection 490(1). It should be noted that these steps, under

section 489.1, are not optional, they are mandatory , and they are required to be taken “as soon as practicable”. [ 44 ] Subsection 490(1) requires that the justice before whom the seized property is brought, pursuant to paragraph 489.1(b), return the property to the lawful owner or person entitled to possession, unless the justice is satisfied that detention of the seized property is required for purposes of an investigation, a preliminary inquiry, trial or other proceeding.

In that case, the justice is to “detain the thing seized or order that it be detained taking reasonable care to ensure that it is preserved” until so required. Again, these steps are not optional. They are required by law to be taken. Unlike subsections (2) and (3), subsection (1) does not provide for an exception to that requirement where proceedings, in respect of which the detained property may be required, have been instituted. Subsection (1) requires that a justice make an order if the seized property is to be detained. [ 45 ] However, subsections (2) and (3) of

section 490 quite severely restrict continued detention of the seized property, beyond the detention initially ordered pursuant to subsection (1) which, by subsection (2), is limited to a period of three months after the date of seizure unless one of the two circumstances identified in subsection (2) exists. Subsections (2) and (3) provide: 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 he so orders; or (

b) proceedings are instituted in which the thing detained may be required.

(3) More than one order for further detention may be made under paragraph (2)(

a) but the cumulative period of detention shall not exceed one year from the day of the seizure, or any longer period that ends when an application made under paragraph (

a) is decided,

unless (

a) a judge of a superior court of criminal jurisdiction or a judge as defined in

section 552, on the making of a

summary application tohim after three clear days notice thereof to the person from whom the thing detained was seized, is satisfied, having regard to thecomplex nature of the investigation, that the further detention of the thing seized is warranted for a specified period and subject to suchother conditions as the judge considers just, and the judge so orders; or (

b) proceedings are instituted in which the thing detained may be required. [46] Two significant conclusions can be drawn from these two subsections. The first is that a justice or provincial court judge has nojurisdiction to authorize detention beyond one year. In circumstances where proceedings have not been instituted and the police desirecontinued detention of the seized property beyond one year after the seizure, a provincial court judge has no jurisdiction to make such anorder. An application must be made to a judge of a superior court of criminal jurisdiction or a judge as defined in

section 552. [47] The second conclusion is that no further detention order, beyond the initial detention order under subsection (1), or extensionof a detention order beyond a cumulative period of one year is necessary from and after the point in time that “proceedings are institutedin which the thing detained may be required”. That is consistent with the conclusion that was reached by the Saskatchewan Court ofAppeal in R. v. Spindloe, 2001 SKCA 58, 154 C.C.C. (3d) 8. There Jackson J.A. wrote: Based on this analysis, s. 490 must be interpreted as providing the extraordinary remedy of forfeiture before conviction, indeed beforeproceedings have been instituted. The

section does not address disposal of exhibits, but rather regulates return of things seizedprior to proceedings being instituted, and, empowers the courts, in exceptional cases, to order forfeiture without proceedings havingbeen instituted. (Emphasis added) [48] It would seem clear that once proceedings are instituted neither subsections (2) nor (3) have any further relevance to the seizedproperty.

Consistent with normal procedures under the Code, the court having jurisdiction over the proceedings, “in which the thingdetained may be required”, has jurisdiction over further detention or other disposition of that thing. [49] While subsections (7) and (8) may appear, on the face of each considered alone, to apply to circumstances where proceedingshave been instituted, they do not, in fact, so apply. Those subsections merely provide for the procedural steps necessary to obtain theorder permitted by subsection (9).

By its terms subsection (9) is only applicable where proceedings, in which the seized property may berequired, have not been instituted or continued detention is not necessary. [50] Those conclusions, however, raise the further question: what constitutes institution of proceedings? “Proceeding” is not definedin

section 2 or in

Part XV of the Code. That question was, however, given consideration by the Ontario Court of Appeal in R. v.Southwick (1967), (ON CA), 2 C.R.N.S. 46. There Evans J.A. wrote: A complaint by an informant which complies with the conditions prescribed by s. 439 becomes a completed information when it isreduced to writing and sworn to before a justice of the peace. This is the commencement of proceedings. (Emphasis added) [51] I would adopt and apply that

interpretation in the context of Parliament’s scheme for judicial supervision of seized property. Itis also completely consistent with the express provisions of subsection (4) which requires a justice who has made a detention order undersubsections (1) to (3) to forward the seized property to the clerk of the court to which the accused has been ordered to stand trial “to bedetained by the clerk and disposed of as the court directs” [emphasis added].

From and after the making of a committal order undersubsection (4), the justice or provincial court judge has no jurisdiction over the accused, the charge or any related seized property inrespect of which he has made an order under subsections (1) to (3). [52] Nevertheless, counsel for the Crown argues, the wording of subsection (4) is quite explicit. It only requires the justice toforward to the clerk of the court to which the accused has been committed to stand trial, “anything detained pursuant to subsections (1) to(3)”.

Therefore, counsel argues, that subsection would not operate to require the justice to forward to the court to which the accused isbeing committed for trial seized property not, in fact, ordered detained pursuant to one of those subsections. [53] Again, on the plain meaning of the words used in subsection (4), that argument may, superficially, appear persuasive.

Althoughthe record indicates that a report to a justice required by subsection 489.1 was filed, albeit belatedly, the mandatory follow-up steprequired by subsection 490(1), obtaining a detention order where the property was not being returned, was never taken. However, in myview, that failure to conform to the specific requirements of the Code cannot now be relied upon to confer on the provincial court ajurisdiction which it would not have had it been asked to make, and made, the order that the law required it to make.

If that property wasrequired, by law, to have been the subject of a detention order, it must be treated as having been so subject, for purposes of the remainingremedial subsections of

section 490. [54] For the reasons outlined above, use of the words “a justice in any other case” cannot support construing

section 490 asimplicitly ousting the jurisdiction of the Trial Division with the “irresistible clearness” referred to in Gendron. Nothing else in the firstnine subsections of

section 490 can be so interpreted as to result in the Provincial Court having exclusive jurisdiction to deal with thedisposition of seized property where, as here, more than one year has elapsed after the property was seized, or where, as here,proceedings in which the seized property may be required have been instituted and proceeded with in another court. [55] Thus, the principle in Gendron, relied on by the Crown, does not operate to limit the civil jurisdiction that the Trial Divisionhas been asked to exercise in this case. The declaration sought by the Crown, that “disposition of the seized cash is properly determinedby a justice under

section 490 of the Criminal Code”, must be refused. Accordingly, leave to appeal is granted and the appeal of theCrown is dismissed.

[ 56 ] Ms. Taylor asks that the Court order costs. The Crown opposes this but does not take a strong position. Indeed, it acknowledges that it would not be unusual to order such costs in matters of this nature. [ 57 ] In all of the circumstances there would seem to have been little justification for the bringing of an interlocutory appeal. Crown counsel acknowledges that the Crown was primarily concerned with the comment of the applications judge that subsection (4) extinguishes jurisdiction to subsequently engage the other subsections of

section 490 . That could have awaited appeal following the hearing of the application. It is appropriate, therefore, to order that the Crown pay Ms. Taylor costs in proceedings before this Court, taxed on the column 3 scale. C. K. Wells, J.A. I concur: M. F. Harrington, J.A. Rowe, J.A. [ 58 ] I agree with the result set out by Justice Wells. However, my reasons are more simple. As Justice Wells noted in para. 6, following a preliminary inquiry in Provincial Court, Ms. Taylor was committed to stand trial in the Supreme Court. She was arraigned in that court.

Thus, her case passed out of the jurisdiction of the Provincial Court into that of the Supreme Court. When a stay of the charges against her was entered in Supreme Court, that did not cause jurisdiction to revert back to Provincial Court. Thus, jurisdiction remains with the Supreme Court. It is before that court that the Crown will seek to rely on the relevant Criminal Code provisions to obtain forfeiture of the seized goods. It is before that court that Ms. Taylor will assert her various claims for return of the seized goods. M. H. Rowe, J.A.