R. v. Strongitharm, 2013 NLCA 69

Date: 2013 1212 Docket: 13/59 Citation: R. v. Strongitharm , 2013 NLCA 69 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: HER MAJESTY THE QUEEN APPLICANT AND: JULIAN STRONGITHARM RESPONDENT Coram: Green C.J.N.L., Welsh and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201201G0424 (2012 NLTD(G) 178) Application Heard: August 9, 2013 Decision Rendered: December 12, 2013 Reasons for Decision (Dissenting) by Hoegg J.A. Reasons for Decision by Green C.J.N.L. Concurred in by Welsh J.A. Counsel for the Applicant: Andrew Brown Counsel for the Respondent: John Lavers and Laura Brazil Hoegg J.A.: INTRODUCTION

[1] Julian Strongitharm was one of three men jointly charged with trafficking in cocaine as a result of a drug investigation knownas Operation Razorback. Mr. Strongitharm’s charge was severed from the indictment, and it proceeded to trial. He was acquitted. Shortly after his acquittal, he applied to the trial judge for the return of certain property that had been seized by police in theinvestigation, and the trial judge ordered that Mr.

Strongitharm’s wallet, passport, and $6,500 cash found in his knapsack be returned tohim. [2] The Crown appeals the merits of the trial judge’s property order as well as several rulings related to Mr. Strongitharm’sacquittal. In this application the Crown seeks a stay of the trial judge’s property order pending the disposition of its appeal. ISSUES [3] The issue is whether the Crown is entitled to the interlocutory stay. This raises two questions: 1) does this Court havejurisdiction to stay the trial judge’s property order, and if so, 2) should it exercise that jurisdiction to stay the order?

ANALYSIS Jurisdiction [4] The jurisdiction of a court of appeal to hear criminal appeals is statutory (R. v. W.(G.), (SCC), [1999] 3S.C.R. 597). [5] Mr. Strongitharm maintains that the statute governing criminal law appeals (the Criminal Code) does not provide jurisdictionto this Court to stay the trial judge’s property order. He argues that if Parliament had intended that a court of appeal be empowered tostay a trial court’s order pending appeal, it would have specifically said so, which it has not. [6] The Crown argues that this Court has jurisdiction to stay the order and that it derives from several sources.

I will examine twoof them. Ancillary Jurisdiction [7] In R. v. Ivanov, 2003 NLCA 11, 223 Nfld. & P.E.I.R. 44, this Court considered whether it had jurisdiction to grant aninterlocutory stay of a trial judge’s judicial release order which had permitted three respondents to leave the country pending theirextradition proceedings. The respondents challenged this Court’s jurisdiction to do so on the basis that the Extradition Act, SC 1999, c.18 did not specifically authorize such stays.

Cameron J.A. concluded that this Court did have jurisdiction to stay the trial judge’s order,reasoning, at paragraph 9: The weight of authority supports the position that a court has jurisdiction, even in a criminal case, to grant a stay in order that the issuesto be raised by an appellant on appeal (or in this case, applicant for review on review) will not be frustrated … In reaching her decision, she determined that an appellate court’s jurisdiction to grant a stay was a question of control of the court’sprocess and not a question of substantive law. [8] Ivanov involved the Court exercising its statutory jurisdiction to review judicial release orders under the Extradition Act,whereas this case involves the exercise of statutory jurisdiction to hear criminal law appeals.

Despite this difference in the statutory basisfor the exercise of the court’s core jurisdiction, the reasoning in Ivanov is as applicable to criminal law appeals as it is to extraditioncases, as Justice Cameron recognized in the passage above. Accordingly, this Court has jurisdiction, ancillary to its jurisdiction to hearcriminal appeals, to control its own process so as to protect the integrity of its ability to decide matters under its expressly assignedappellate jurisdiction. [9] The same conclusion was reached by the Ontario Court of Appeal in R. v.

Church of Scientology of Toronto (1986), (ON CA), 25 C.C.C. (3d) 149 (Ont. C.A.). In that case, the police had seized documents from the Church of Scientology inthe course of a criminal investigation. The seized documents had been sealed pending a ruling on whether they were privileged. Thetrial judge decided that the documents were not privileged, ending the sealing order. The Church of Scientology appealed the privilegeruling and applied to stay the ending of the sealing order until its privilege appeal was decided. [10] A single appellate court judge heard the stay application.

He queried whether he had jurisdiction to stay the order, and hereferred the matter to a three-judge panel. The court decided that, while the Court of Appeal was a statutorily created court, it possessedancillary jurisdiction to control its own process, which included the power to stay an order under appeal so as to prevent frustration of theappeal. Statutory Jurisdiction [11] The Crown argues that this Court also has statutory jurisdiction to stay orders under appeal by virtue of

section 482 of theCriminal Code operating in conjunction with Rule 27 of the Supreme Court of Newfoundland and Labrador – Court of Appeal CriminalAppeal Rules (2002), SI/2002-96 and rule 57.10 of the Rules of the Supreme Court, 1986. [12]

Section 482 of the Criminal Code grants to every court of appeal the power to “make rules of court not inconsistent with this orany other Act of Parliament” to apply “to any prosecution, proceeding, action or appeal … instituted in relation to any matter of acriminal nature or arising from or incidental to any such … appeal”. [13] Rule 27 of the Court of Appeal Criminal Appeal Rules provides that the Supreme Court rules “relating to civil procedure andother related rules of the Court shall, if not inconsistent with these Rules, the Code or any other statute having application, apply to these

Rules in all matters not provided for herein”. [14] Rule 57 of the Rules of the Supreme Court, 1986 authorizes the Court “on the application of a party to an appeal … pendingdisposition of the appeal” to “stay any order appealed from or any order of or proceeding before a judge of the Provincial Court or atribunal in respect of which an order granting or refusing relief under Rule 54 or otherwise has been appealed, and to grant a stay … onsuch terms as the Court deems just”. [15] Mr. Strongitharm offers two reasons why these rules would not allow this Court to stay the order under appeal.

First, he arguesthat the staying of the trial judge’s order is a substantive issue and, as such, must be clearly authorized by the statute. Second, he saysthat the failure to grant a stay of the trial judge’s order would “not impact the appeal process” and therefore whether a stay is granted isnot a matter “incidental to an appeal” as required by

section 482. [16] This Court has already rejected Mr. Strongitharm’s first argument. Ivanov determined that the granting of an interlocutory stayis not a substantive issue; rather, it is a matter of the court’s process. By implication, the Ontario Court of Appeal came to the sameconclusion in Church of Scientology. Accordingly, the staying of the trial judge’s property order until disposition of the Crown’s appealis a procedural issue and not a matter of substantive law. [17] The Crown’s appeal specifically alleges that the trial judge’s order returning the $6,500 to Mr. Strongitharm was in error.

Othergrounds of appeal allege that various rulings leading to Mr. Strongitharm’s acquittal were in error. If the $6,500 is returned to Mr.Strongitharm now, from a practical point of view, the failure to grant the stay could render the ground of appeal challenging thecorrectness of the trial judge’s property order moot because the $6,500 would likely be gone and unavailable for forfeiture.

The appealand the stay application are rationally connected in that the stay application arises directly from issues under appeal and directly impactsthe appeal process by touching on the ground of appeal respecting the correctness of the trial judge’s property order. The Crown’sapplication is therefore “incidental to [the] appeal” within the meaning of

section 482. [18] The Nova Scotia Court of Appeal reached a similar conclusion in R. v. Keating (1991), (NS CA), 106 N.S.R.(2d) 63 (C.A.), where Freeman J.A. found that the appellate court had jurisdiction to stay the enforcement of a probation order throughthe operation of

section 482 of the Criminal Code in conjunction with Nova Scotia’s rules of civil procedure. At page 5 of the decision,Justice Freeman stated that “[s]ection 482 is broad enough to provide the underlying authority to extend the use of stays to situations notspecifically enunciated by Parliament and the Rules give it effect”, and stayed the trial judge’s probation order to “prevent the risk ofinjustice” from the enforcement of it before the appeal was heard. [19] In

summary, this Court has both ancillary and statutory jurisdiction to stay the trial judge’s order returning the $6,500 to Mr.Strongitharm. It is not necessary for the disposition of this application to address the Crown’s other jurisdictional arguments. Should the Trial Judge’s Order Be Stayed? [20] The applicable test for determining whether a stay ought to be granted was set out by the Supreme Court of Canada in RJR‒MacDonald v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311, which endorsed the three-part test the Courthad adopted from American Cynamide Co. v.

Ethecon Ltd., [1975] A.C. 396 (H.L.) in Manitoba (Attorney-General) v. MetropolitanStores (MTS) Ltd., (SCC), [1987] 1 S.C.R. 110. Justices Sopinka and Cory summarized the test at page 334: … First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly,it must be determined whether the applicant would suffer irreparable harm if the application were refused.

Finally, an assessment mustbe made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits… [21] Later in the judgment, Justices Sopinka and Cory explained how to assess whether there is a serious question to be tried at page348: ... Unless the case on the merits is frivolous or vexatious, or the constitutionality of the statute is a pure question of law, a judgeon a motion for relief must, as a general rule, consider the second and third stages of the Metropolitan Stores test.

In the next paragraph, the Justices shed light on the meaning of irreparable harm: ... In Charter cases, even quantifiable financial loss relied upon by an applicant may be considered irreparable harm so long as itis unclear that such loss could be recovered at the time of a decision on the merits. and in the next paragraph, they discussed how damage to the public interest must be taken into account when a court assesses thebalance of inconvenience: The third branch of the test, requiring an assessment of the balance of inconvenience, will often determine the result in applicationsinvolving Charter rights.

In addition to the damage each party alleges it will suffer, the interest of the public must be taken into account. The effect a decision on the application will have upon the public interest may be relied upon by either party. These public interestconsiderations will carry less weight in exemption cases than in suspension cases. When the nature and declared purpose of legislationis to promote the public interest, a motions court should not be concerned whether the legislation actually has such an effect. It must beassumed to do so.

In order to overcome the assumed benefit to the public interest arising from the continued application of thelegislation, the applicant who relies on the public interest must demonstrate that the suspension of the legislation would itself provide apublic benefit. [22] Justices Sopinka and Cory added the following at page 349: We would add to this brief

summary that, as a general rule, the same principles would apply when a government authority is theapplicant in a motion for interlocutory relief. However, the issue of public interest, as an aspect of irreparable harm to the interests of the

government, will be considered in the second stage. It will again be considered in the third stage when harm to the applicant is balancedwith harm to the respondent including any harm to the public interest established by the latter. [23] Applying the RJR‒MacDonald test to this case, the Crown must first establish that there is a serious issue to be decided onappeal. If there is, then the Crown must establish that it will suffer irreparable harm if the trial judge’s property order is not stayed.

Because the Crown, a government authority, is the applicant for relief, the issue of public interest must be considered at this stage. If theCrown fails to establish irreparable harm, the analysis will end and the requested stay will not be granted. If the Crown establishesirreparable harm, the balance of inconvenience to the parties must be assessed, which will again involve consideration of the publicinterest. Is There a Serious Issue to Be Decided on Appeal? [24] This case does not involve a final determination of the issue to be decided on appeal and it is not a simple constitutionalquestion.

Therefore, the threshold the Crown must meet to establish that there is a serious question to be tried is low, and it does notinvolve a prolonged assessment of the merits of the appeal. The Crown must establish only that its appeal is not “frivolous or vexatious”as indicated in RJR‒MacDonald. [25] This Court discussed the meanings of “frivolous” and “vexatious” in Walsh v. Johnson, 2010 NLCA 6, 293 Nfld. & P.E.I.R. 101and the meaning of “frivolous” in Holloway Estates v. Giles, 2002 NLCA 68.

In Walsh, a case involving an application to strike anappeal, Green C.J.N.L. stated that an appeal is frivolous if it is without merit and an appeal is without merit only “if it is plain andobvious that the grounds of appeal cannot succeed”. In Holloway, Wells C.J.N.L. stated that an appeal that raises “clearly arguablequestions of law” will not be regarded as frivolous. The Walsh court defined a vexatious appeal as one that is brought for an improperpurpose, such as to harass, annoy or embarrass a party, and not for the legitimate purpose of seeking the vindication of legal rights. [26] Mr.

Strongitharm agrees that the Crown’s appeal is not vexatious and nothing in the record suggests otherwise. However, hemaintains that it is frivolous, arguing that it is plain and obvious that the Crown has no basis for an appeal because the trial judge was“well within her discretion and authority” to order the return of Mr.

Strongitharm’s property. [27] The Crown’s appeal of the trial judge’s property order rests on the assertion that the trial judge erred “in ordering the forthwithreturn of items seized from the Respondent even though they may be required in further proceedings involving the Respondent and/orother persons charged”. On its face, this ground of appeal raises issues respecting the circumstances in which seized property can orought to be returned when it relates to different types of ongoing legal proceedings.

These issues raise “clearly arguable questions oflaw” to which there are not ready answers that plainly and obviously show the ground to be without merit. Accordingly, the Crown’sappeal of the trial judge’s property order is not frivolous. [28] It follows that the Crown has established that there is a serious question to be decided on appeal. Is There Irreparable Harm to the Crown if the Trial Judge’s Order is not Stayed? [29] Consideration of the irreparable harm aspect of the test requires an appreciation of the facts. Mr.

Strongitharm’s wallet hasbeen returned to him, and his passport, which had been sent to Ottawa after it was seized, has expired. The Crown’s real concern is thereturn to Mr. Strongitharm of the $6,500 cash found in his knapsack, which is now in the bank. [30] The trial judge gave no written reasons for her decision.

However, a transcript of the hearing shows that she ordered the returnof the $6,500 because the $6,500 was “not so enormous a sum that it might not be collectible from Julian Strongitharm or some, Isuppose, recourse … to recover the money.” [31] As a preliminary point, while I agree that $6,500 is not an enormous sum of money, I do not regard that amount of cash found ina knapsack to be insignificant. The Parties’ Positions on Irreparable Harm [32] The Crown’s irreparable harm argument is not based on preserving evidence.

Rather it is based on the loss of the opportunity toseek forfeiture of the $6,500 if future circumstances permit. The Crown argues that once the money is returned to Mr. Strongitharm, itwill no longer be available to be forfeited, for it will likely disappear, and its disappearance will thwart the Crown’s ability to seek aforfeiture order in the event that its appeal succeeds and the outcome of subsequent proceedings allow for a forfeiture order to be made. The Crown maintains that losing the opportunity to seek a forfeiture order constitutes irreparable harm. [33] Mr.

Strongitharm responds by saying that the Crown is not irreparably harmed because, if he is eventually convicted andremains so after all appeals are exhausted, the Crown can seek a $6,500 fine in lieu of forfeiture pursuant to the provisions of subsection462.37(3) of the Criminal Code. Mr. Strongitharm provides no information respecting whether he would pay or be able to pay a $6,500fine in future. While it is arguable that Mr. Strongitharm bears no burden to show that he could or would pay a future fine of $6,500, Iam mindful of Lord Mansfield’s words in Blatch v.

Archer (1774), 1 Cowp. 63, 98 E.R. 969, page 970, quoted at page 320 of Snell v.Farrell, (SCC), [1990] 2 S.C.R. 311, by Sopinka J., following his observations that “the allocation of the burden ofproof is not immutable”, and “the burden of proof … [is] a flexible concept”: It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced,and in the power of the other to have contradicted.

In any event, the fact that he says he needs the money now to pay legal expenses establishes a credible reason for uncertainty as towhether he would be able to pay such a future fine (see Rees v. Royal Canadian Mounted Police et al, 2005 NLCA 4, 244 Nfld. &P.E.I.R. 72, para. 60). [34] I also note that, perhaps understandably but nevertheless so, Mr. Strongitharm’s argument does not address the possible

relationship of the $6,500 found in his knapsack to ongoing legal proceedings involving his former co-accuseds. [ 35 ] The Crown replies to Mr. Strongitharm’s argument by saying that having to rely on the provisions of subsection 462.37(3) of the Criminal Code to recover a $6,500 fine is not the same as being able to rely on the forfeiture provisions of

section 16 of the Controlled Drugs and Substances Act or

section 462.37(1) of the Criminal Code . The Crown maintains that convincing a judge to impose a $6,500 fine on Mr. Strongitharm, who resides in British Columbia, would involve additional legal considerations requiring effort and expense to investigate and prove. And if Mr. Strongitharm were ultimately fined and he defaulted on paying the fine, his committal to prison would involve the additional expense of his incarceration.

Analysis of Irreparable Harm Issue [ 36 ] Subsection 462.37(3) of the Criminal Code reads: If a court is satisfied that an order of forfeiture under subsection (1) or (2.01) should be made in respect of any property of an offender but that the property or any part of or interest in the property cannot be made subject to an order, the court may, instead of ordering the property or any part of or interest in the property to be forfeited, order the offender to pay a fine in an amount equal to the value of the property or the part of or interest in the property.

In particular, a court may order the offender to pay a fine if the property or any part of or interest in the property (

a) cannot, on the exercise of due diligence, be located; (

b) has been transferred to a third party; (

c) is located outside Canada; (

d) has been substantially diminished in value or rendered worthless; or (

e) has been commingled with other property that cannot be divided without difficulty. [ 37 ] To obtain a fine in lieu pursuant to subsection 462.37(3), the Crown would be required to establish not only that an order for forfeiture ought to be made, which it would have to establish in any event, but also that the $6,500 returned to Mr. Strongitharm could not be forfeited because it was not available to be forfeited.

Proving that $6,500 is not available to be forfeited would require the Crown to satisfy a court that it exercised due diligence in trying to locate the money, which of necessity would require investigation and then proof. As well, application for a fine in lieu involves risk, for the imposition of a fine under this

section is discretionary (see R. v. Lavigne , 2006 SCC 10 , [2006] 1 S.C.R. 392), although a court has no discretion to take ability to pay into account when determining the amount of the fine to be imposed instead of forfeiture. So, depending on certain circumstances, a court may exercise its discretion not to impose a fine. [ 38 ] If a Court did impose a $6,500 fine under subsection 462.37(3), a term of imprisonment in the event of default of payment of the fine would be imposed (this is mandatory pursuant to subsection 462.37(4)). In this regard, I note that Mr.

Strongitharm says that he needs the $6,500 now to help defray legal expenses, and that he does not suggest that he would have the ability or resources to pay a $6,500 fine in the future. Risk that money would not be available for recovery if an appeal succeeded was a factor which led this Court to stay the effect of a civil trial judgment in Antle v. Stratos Global Corp. , 2005 NLCA 47 , 248 Nfld. & P.E.I.R. 97 (see paras. 25-26) although the amount of money involved in Stratos Global was much greater. [ 39 ] If a fine were imposed and Mr.

Strongitharm were to default, a hearing under subsection 734.7(1) of the Criminal Code to commit him to prison would necessarily ensue. At such a hearing, the Crown would have to prove that civil and other options for payment would not be appropriate, or establish that Mr. Strongitharm “has refused without reasonable excuse, to pay the fine”. This burden on the Crown may not be easily overcome (see R. v. Wu , 2003 SCC 73 , [2003] 3 S.C.R. 530), but if it were, Mr. Strongitharm would be incarcerated at the expense of the state.

These additional burdens and risks, as well as those referred to in paragraph 37, are far from speculative; they are realistic possibilities. As such, they constitute irreparable harm in that they show uncertainty that a fine in lieu could be recovered in future ( RJR‒MacDonald , paragraph 79 and Rees , paragraph 60 ). [ 40 ] The payment of the $6,500 cash to Mr. Strongitharm in this case also raises a public interest issue which must be addressed at this stage of the analysis. The public interest at stake is the public interest in the enforcement of legal forfeiture provisions.

In Lavigne , at paragraphs 8-9 , Justice Deschamps described the public interest in targeting the proceeds of crime, and explained the context in which the forfeiture provisions were enacted: 8 The new provisions allowed the prosecution to use unprecedented investigative methods (s. 462.32), created new offences (s. 462.31(1)) and established special rules for sentencing (ss. 462.31(2) and 462.37). As P. M.

German correctly writes, Parliament goes beyond the offender him or herself and targets the proceeds of crime ( Proceeds of Crime: The Criminal Law, Related Statutes, Regulations and Agreements (loose - leaf ed.), at p. 3 - 4): … 9 Great importance is thus attached to the proceeds of crime, and one of the stated goals is to neutralize criminal organizations by depriving them of the profits of their activities. The Honourable Ray Hnatyshyn, who was the Minister of Justice when the bill was introduced, said that traffickers had been insufficiently deterred by traditional sentencing methods.

Canada therefore had to adopt methods by which it could deprive offenders of the profits of their crimes and take away any motivation to pursue their criminal activities. Of all the methods chosen, the primary one is forfeiture (House of Commons, Minutes of Proceedings and Evidence of the Legislative Committee on Bill C - 61, Issue No. 1, November 5, 1987, at p. 1:8). The effectiveness of the adopted methods depends largely on the severity of the new provisions and on their deterrent effect ( Quebec (Attorney General) v. Laroche , [2002] 3 S.C.R. 708, 2002 SCC 72 , at para. 25 ).

[ 41 ] If the $6,500 is given to Mr. Strongitharm now, the Crown, as a government authority representing the public interest, will have lost its ability to seek forfeiture of the proceeds of drug trafficking in accordance with the objectives of the legislation if future circumstances permit. The fine in lieu provision of subsection 462.37(3), while part of the overall forfeiture provisions, is neither an alternative to forfeiture nor an equal substitute for it, as shown by the discussion above. [ 42 ] As well, if a $6,500 fine in lieu of forfeiture were imposed on Mr.

Strongitharm, it would not achieve the objectives of the proceeds of crime legislation in the same way as forfeiture of the money would. While the fine in lieu provision is necessary to address situations where proceeds of crime cannot be located, it touches only an individual offender and not others charged or criminal organizations. It does not achieve the same end as forfeiture, and therefore does not fully vindicate the objectives of the legislation. In this regard, I note that the appeal of the trial judge’s property order references that the return of seized items to Mr.

Strongitharm, “may be required in further proceedings involving Mr. Strongitharm and/or other persons charged ” and observe that the provenance and/or ownership of the $6,500 may be a live issue in future proceedings, if any, involving not only Mr. Strongitharm, but also his former co- accuseds. [ 43 ] In

summary, a comparison of the opportunity to avail of the relatively straightforward forfeiture proceedings in relation to the banked $6,500, to being able to avail of the fine in lieu proceedings which involve substantial additional cost and effort, the real risk of no recovery in which case the objectives of the forfeiture provisions would not be vindicated, and the further risk of paying for the cost of incarceration, shows that they are not the same.

The irreparable harm to the Crown is its loss to the public interest of the ability to seek forfeiture as the primary objective of the proceeds of crime legislation, as well as the potential loss to the public interest of partial vindication of the objectives of the proceeds of crime legislation through the imposition of a fine in lieu, owing to the real uncertainties related to seeking and enforcing a fine in lieu. Accordingly, the Crown has shown irreparable harm, and the balance of inconvenience must be assessed.

Balance of Inconvenience [ 44 ] The balance of inconvenience assessment involves determining which of the parties will suffer greater harm from the granting or refusal of the stay.

In this regard, I refer to paragraph 61 of Rees , wherein Wells C.J.N.L. stated, after quoting from the Supreme Court of Canada in RJR‒MacDonald that “a court should not … attempt to ascertain whether actual harm would result from the restraint sought”, that it is “the potential for harm to the respondents that granting a stay would have which must be weighed against the potential for harm to the appellants that would arise from the refusal of the stay.” (Emphasis in original.) [ 45 ] Likewise, in Stratos Global, this Court balanced the inconvenience of a delay in a litigant obtaining his damages award against the risk of the funds being dissipated if the stay were not granted.

The Court granted the stay, saying that there was a risk that the damages award would not be available for recovery if the stay were not granted and the appeal succeeded. [ 46 ] Public interest must be considered in this part of the analysis ( RJR‒MacDonald ) as well. [ 47 ] Mr. Strongitharm argues that he will be inconvenienced by not having the $6,500 now. He says that he has incurred significant legal expenses and that he requires this money to fund his continuing need for a defence.

He also argues that any inconvenience the Crown might face by not having the money retained is mitigated by the fine in lieu option. [ 48 ] It is not hard to see that Mr. Strongitharm would be inconvenienced by not having the $6,500 at his disposal now. There are any number of uses to which he or anyone else could doubtless put the money if it were accessible, among which, for him, is contributing to payment of his legal expenses.

However, if the money is not returned to him now, there is no risk that it will not be available to him in the future if, following the disposition of the Crown’s appeal and any other relevant proceedings, he is entitled to it. [ 49 ] The Crown’s appeal is on track to be heard in the usual course, and its outcome will likely be known in the not too distant future. Mr.

Strongitharm’s desire to use the money to “fund the continuing need for a defence” is not so urgent that it cannot wait this period of time, especially as there is no suggestion that he will be denied legal representation on his appeal if he cannot have the $6,500 at issue available to him now. In this regard, I observe that it was and is open to Mr. Strongitharm to apply for access to this money to use for his legal expenses under the provisions of subsection 462.34 of the Criminal Code .

On the other hand, the potential losses to the Crown of never being able to achieve the primary objective of the forfeiture provisions and the risk of not being able to obtain a fine in lieu are not matters of delay. [ 50 ] To the extent that judicial discretion figures into the balance of inconvenience assessment, my counsel would be of prudence, like this Court in Stratos Global and Rees , and I would exercise my discretion in favour of staying the trial judge’s property order until the results of the appeal are known. [ 51 ] On my analysis, the balance of inconvenience weighs in favour of the applicant Crown.

Accordingly, I would stay the trial judge’s order returning the $6,500 to Mr. Strongitharm pending disposition of the Crown’s appeal. L. R. Hoegg J.A. Green C.J.N.L. [ 52 ] I would deny the application for a stay. [ 53 ] I agree with my colleague, Hoegg J.A.’s conclusions that this Court has jurisdiction to entertain the Crown’s application to stay

the trial judge’s order returning the $6,500 to Mr. Strongitharm.

I also agree with my colleague’s description of the test for a stay in thesecircumstances, as set out in paragraphs 20 -23 of her reasons. [54] Where my colleague and I differ is with respect to the manner in which the test for ordering or denying a stay should be appliedon the facts of this case. [55] I start by saying that I agree that, with respect to the first part of the test (whether there is a serious issue to be dealt with on theappeal), the Crown has established that the appeal is not frivolous or vexatious and that, accordingly, there is a serious issue to bedecided. [56] On the second branch of the test (whether the Crown will suffer irreparable harm if the stay were not to be granted), the Crownmust establish that “the nature of the harm, rather than its magnitude” is irreparable (RJR-MacDonald v.

Canada (Attorney General), (SCC), [1994]1 S.C.R. 311, per Sopinka and Cory, JJ. at para. 79). I also accept, for the purposes of this appeal, that anaspect of irreparable harm to the interests of the Crown is negative impact on the public interest. [57] The Crown concedes that the actual bills comprising the $6500 are not needed for the purpose of evidence at any retrial of Mr.Strongitharm or for the trial of any of his alleged co-conspirators. Indeed, the actual bills no longer exist. They have been deposited intoa bank pursuant to a management order. Proof of the discovery of the money in Mr.

Strongitharm’s knapsack in his hotel room can begiven by police witnesses. The implications to be drawn from this evidence do not depend on presentation of the actual bills in court.

Forexample, there is no suggestion that there is any significance to the serial numbers or any other special markings on the bills in question. [58] The Crown has argued here that if the $6,500 were returned to the respondent now and he were to dispose of it in the meantime,the Crown will be deprived of an opportunity to seek a forfeiture of the money at the end of the case (assuming the Crown is successfulon appeal in obtaining a new trial and that on that new trial a conviction will be obtained).

While the possible loss of such an amount ofmoney could probably not be said to amount, in itself, to irreparable harm, it is the implication for the system of administration of justiceof the inability of the Crown to obtain forfeiture that is really in issue here. [59] The significance of the loss of an opportunity to seek forfeiture must be considered in the context of the purpose and objectivesof the governing provisions of the Criminal Code.

Subsection 462.37(3) provides that where a court is satisfied that an order of forfeitureshould be made in respect of an offender’s property but that the property “cannot be made subject to an order, the court may, instead ofordering the property … to be forfeited, order the offender to pay a fine in an amount equal to the value of the property. …” [60] The purpose of this provision which provides for forfeiture, or a fine of equal value in lieu, has been described by Deschamps J.in R. v. Lavigne, 2006 SCC 10 , [2006 1 S.C.R. 392 as follows: [10] … The intention of Parliament is clear.

Not only must the act itself be punished, but it must not benefit the offender. Parliament’spurpose in doing this is to ensure that crime does not pay. ... … [16] Parliament’s intention in enacting the forfeiture provisions was to give teeth to the general sentencing provisions. While the purposeof the latter provisions is to punish an offender for committing a particular offence, the objective of forfeiture is rather to deprive theoffender and the criminal organization of the proceeds of their crime and to deter them from committing crimes in the future.

Theseverity and broad scope of the provisions suggest that Parliament is seeking to avert crime by showing that the proceeds of crimethemselves, or the equivalent thereof, may be forfeited. … [18] Forfeiture of the proceeds of crime is not always practicable. The proceeds of a crime may have been used, transferred ortransformed, or may simply be impossible to find.

To ensure that the proceeds of crime do not indirectly benefit those who committed it,Parliament has provided that the court may impose a fine instead of forfeiture of the proceeds of crime. … (Underlining added.) [61] While forfeiture was said in Lavigne (paragraph 9) to be the “primary” method of taking away any motivation to pursuecriminal activity, it is not the only one. The Code specifically recognizes the imposition of a fine in an amount equal in value to theproceeds of the crime as an alternative in the event forfeiture is not available.

Thus it is not forfeiture itself that is the key to theeffectiveness of the legislation but the imposition of measures that will ensure that the offender does not benefit from his crime, therebyremoving any incentive to engage in that sort of criminal activity in the future. The legislation expressly contemplates other methods forachieving that same end.

The loss of a right to forfeiture, therefore, does not in itself result in frustration of the purpose of the legislation. [62] Accordingly, potential loss of a right to forfeiture itself at the end of any retrial cannot be said to be harm to the public interest“to ensure that crime does not pay.” [63] Even if it could be said that there may be some harm to the public interest, in the sense that achievement of the statutorypurpose may be made more inconvenient if a fine in lieu of forfeiture has to be sought, such harm to the public interest is in any eventnot “irreparable” because the purpose of ensuring that the offender not benefit from his crime can ultimately be accomplished by othermeans.

While there can be no guarantee that an application for a fine in lieu of forfeiture would ultimately be successful, the mechanismfor achieving the statutory purpose remains available and is not lost.

The fact that if a fine equal to the amount of the seized funds wereimposed and left unpaid, the accused might have to be imprisoned at public expense as an alternative is, at this stage, far too speculativeto allow it to be weighed in the analysis. [64] To say that being faced with the possibility of having to invoke a more inconvenient or potentially more costly alternative toachieve the statutory purpose amounts to “irreparable” harm could potentially be seen as placing an impartial court in the position of

putting a premium on facilitating a prosecution at the expense of the interests of the accused facing that prosecution. [65] Finally, I would not place emphasis, as my colleague Hoegg J.A. appears to do in paragraph 33 of her Reasons, and again inparagraph 38, on the fact that “Mr. Strongitharm provides no information respecting whether he would pay or be able to pay a $6,500fine in future” (paragraph 33). Given the burden on the Crown to establish irreparable harm, it is the Crown, if anyone, who should beleading evidence to establish “a credible reason for uncertainty” (per Welsh J.A. in Antle v.

Stratos Global Corp., (2005), 2005 NLCA 47, 248 Nfld. & P.E.I.R. 97 (NLCA) at para. 9) as to whether payment of $6,500 in the future would be beyond Mr.Strongitharm’s resources; it is only if such evidence is presented that Mr. Strongitharm might be regarded as having an evidentiaryburden to respond with his own contrary information (Antle, paragraph 15). At best, the absence of evidence from both the Crown andMr. Strongitharm on this point is merely a neutral factor.

In any event, I am of the view, as was the trial judge, that $6500 is not such alarge amount that an ordinary citizen, absent special circumstances, could not be expected to be able to pay it, given a reasonableopportunity to do so. [66] Having concluded that the Crown has not met its obligation of showing that it will suffer irreparable harm if the stay is notgranted, that is, technically, the end of the matter. The stay should be refused.

I nevertheless observe that even if the Crown could havesurmounted the irreparable harm hurdle, it would also fail on the third arm of the test (the balance of inconvenience). [67] In the decision under appeal, the trial judge determined, on application, that there was no good or sufficient reason not to returnthe money to Mr. Strongitharm following his acquittal. Implicit in this is a conclusion that there was no reason to believe that the moneywas not his or that he at least did not have a right to possession of it. [68] Mr.

Strongitharm says that he needs access to the money to help defray his legal expenses, which, of course, will continue tomount with respect to his response to the current appeal and, if the appeal is allowed, his retrial. He will suffer a clear and quantifiableharm if he is further deprived of his money. One cannot speculate that the time of this deprivation would be very short, and thus not agreat hardship. The fact is that although the appeal was filed nearly four and a half months ago, the transcript of the trial evidence has notyet been prepared.

The Court has been advised that it is not likely to be completed until February 15, 2014. The appeal book has not beenfiled, nor have any factums. The appeal is not likely to be heard, therefore, until May 2014 at the earliest. [69] Balanced against Mr. Strongitharm’s claimed need for immediate use of the money is the Crown’s speculative claim that it willsuffer additional inconvenience and expense of having to convince a court on any retrial that a fine in lieu of forfeiture should beimposed, assuming, of course, the Crown is successful in obtaining a conviction on any retrial.

In my view, the balance of inconveniencefavours Mr. Strongitharm. [70] Accordingly, for the foregoing reasons, I would refuse a stay. J. D. Green C.J.N.L. I concur with the reasons of the Chief Justice: B. G. Welsh J.A.