R. v. Scott, 2015 MBCA 43

Citation: R. v. Scott, 2015 MBCA 43 Date: 20150420 Docket: AR14-30-08259 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron BETWEEN : HER MAJESTY THE QUEEN ) K. D. Scott ) on his own behalf Respondent ) ) J. S. Kliewer - and - ) for the Respondent ) KURTIS DONALD SCOTT ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) April 20, 2015 BEARD J.A. (for the Court): I.

THE ISSUE [ 1 ] The accused is appealing the dismissal of his motion for the return of his wife’s 2005 Buick Rendezvous sport utility vehicle (the SUV) that was seized by the police pursuant to a search warrant issued under s. 11 of the Controlled Drugs and Substances Act (the CDSA ). The Crown is opposing the appeal on its merits and, in addition, has filed a motion to strike the appeal on the basis that it is an appeal of an interlocutory order made in a criminal proceeding and there is no jurisdiction under the Criminal Code for this court to hear such an appeal. II.

THE FACTS [ 2 ] On March 15, 2012, both a search warrant under s. 11 of the CDSA and an arrest warrant for the accused were issued. On March 16, 2012, the police executed the search warrant and seized a number of items, including the SUV.

The accused was arrested at that time and was charged with eight offences, being participation in the activities of a criminal organization under s. 467.11 of the Criminal Code , the commission of an offence for a criminal organization under s. 467.12 of the Criminal Code , and six charges of trafficking in a controlled substance, being cocaine, under subs. 5(1) of the CDSA. [ 3 ] The Crown acknowledges that it has never filed a report regarding the seizure of the SUV under s. 489.1 of the Criminal Code or obtained a detention order for the SUV under s. 490 of the Criminal Code . [ 4 ] While the charges were originally laid in the Provincial Court, the Crown proceeded by way of direct indictment before a preliminary inquiry was held, so the accused was never committed to stand trial. [ 5 ] The accused, who was (and still is) self-represented, filed a motion for the return of the items seized.

The documents that he filed do not identify the statutory grounds for the motion – he simply alleges that the items belong to him and his family and that they should be returned. The Crown consented to the return of a number of the items that were seized but has opposed the return of the SUV on the basis that its detention is required for another proceeding, being an application for forfeiture of offence-related property under s. 16 of the CDSA. III. THE MOTION JUDGE’S DECISION [ 6 ] The motion judge stated that the accused appeared to be seeking the return of the vehicle on two bases: (

i) that the seizure of the vehicle had created a hardship for the accused’s family; and (ii) that the seizure was contrary to s. 490 of the Criminal Code . He stated that he was unclear as to whether the accused was also advancing a claim for the return of the vehicle under the Canadian Charter of Rights and Freedoms (the Charter ). [ 7 ] The motion judge found that the SUV fell within the definition of offence-related property and was required for the purpose of a future forfeiture proceeding under s. 16 of the CDSA , and, for that reason, the ongoing detention was not contrary to s. 490.

He also found that, if the argument that the seizure was contrary to s. 490 was a motion for relief under s. 8 of the Charter , the motion was premature and should be determined either at trial or at the subsequent forfeiture hearing, when there would be an adequate evidentiary record upon which to make the required determinations.

IV. ANALYSIS (

i) The Crown’s motion to strike for lack of jurisdiction [8] The Crown has filed a motion to strike the accused’s appeal on the basis that it is an appeal of an interlocutory orderand there is no jurisdiction under the Criminal Code to appeal such an order. In support of that proposition, it relies on ss. 674 and 675of the Criminal Code. [9] I agree that ss. 674 and 675 would generally lead to an appeal of an interlocutory order being struck for lack ofjurisdiction. (See, for example, R. v. Druken, (SCC), [1998] 1 S.C.R. 978; R. v. Meltzer, (SCC),[1989] 1 S.C.R. 1764; R. v.

Teerhuis-Moar (S.), 2008 MBCA 85, 228 Man.R. (2d) 248; and R. v. Hyra, 2015 MBCA 17.) This includesa decision on a motion in a criminal proceeding that affects Charter rights. (See Meltzer at pp. 1772-75.) [10] There is, however, jurisdiction under subs. 490(17) of the Criminal Code to appeal orders granted under subss. 490(9)and (11) of the Criminal Code.

Thus, if the accused had the right to make an application under subss. 490(8) and (9) of the CriminalCode for the return of the SUV, then he would have the right to appeal the dismissal of that motion under in subs. 490(17), whether ornot the order is interlocutory in nature. (ii) The accused’s appeal [11] As noted above, the accused has not articulated the legal basis for his claim for the return of the SUV, but, generally, hisposition is that the SUV should be returned because: - the vehicle is registered to, and belongs to, his wife, who was not named in the search warrant or arrest warrant and was not chargedwith any offence; - the vehicle should be returned to his wife pursuant to subss. 19(1) and (3) of the CDSA; - his wife’s rights under s. 8 of the Charter were breached; - the continued detention of the SUV is unlawful due to the failure of the police to comply with the requirements of s. 489.1(reporting) and s. 490 (obtaining a detention order) of the Criminal Code; and - the motion judge erred in ruling that the detention of the SUV was required for the purposes of investigation, a preliminary inquiry,trial or other proceeding. [12] The Crown’s position is summarized as follows: The trial judge did not err in ordering the [SUV] be further detained pending a forfeiture hearing on an evidentiary basis.

Forfeitureof a vehicle used in the course of trafficking cocaine is consistent with the purpose of the legislation. Premature restoration of the[SUV], if a basis for forfeiture were established at trial, will have frustrated the purpose of the legislation. There is no applicablestatutory provision that would provide for the [SUV] to be returned to the [accused’s] wife while preserving it for later forfeiture, orimposing a fine [or a] period of detention on the [accused] in lieu of forfeiture.

The [accused’s] wife will have full opportunity to be heard as to her interest in the [SUV] in the course of a forfeiture hearingshould the [accused] be convicted. [13] If the accused’s wife has recourse to apply for the return of the SUV at this time (on which I express no opinion), she hasnot made any application, so we are not in a position to deal with her rights. That said, an application under s. 19 of the CDSA is madeduring a forfeiture hearing, which comes only after the accused has been convicted. As there has, as yet, been no trial, any suchapplication by her would be premature.

Likewise, if she has a claim for a remedy under the Charter (on which I take no position), shemust advance that claim on her own behalf and by following the appropriate procedures. Finally, if the wife has a claim undersubss. 490(10) and (11) of the Criminal Code, that claim is subject to the same problem as a motion by the accused under subss. 490(8)and (9), which I will deal with below. [14] In

summary, the accused is arguing that the seizure, or the continued seizure, of the SUV is unlawful. The SupremeCourt of Canada considered the application of ss. 489.1 and 490 to an unlawful seizure in R. v. Raponi, 2004 SCC 50, [2004] 3 S.C.R. 35,and concluded that s. 490 is not available to challenge an unlawful seizure (see paras. 28-31). The court stated that there are avenues ofredress that may be available, including (see paras. 33, 36): (

a) an accused could file a civil action in the superior court for replevin; (

b) an accused could make an application for relief under the Charter; and (

c) there may be other possibilities. (See also R. v. Backhouse (J.) (2005), (ON CA), 195 O.A.C. 80 at para. 113.) [15] Given that s. 490 cannot be used to obtain the return of items on the basis that the seizure was unlawful, to the extent thatthe accused’s application is based on s. 490, it must fail.

[16] Even if the accused could apply for the return of the SUV under subss. 490(8) and (9), or if his wife could apply undersubss. 490(10) and (11), the prerequisites are: (

i) the periods of detention under subss. 490(1) to (3) have expired and proceedings havenot been instituted in which the thing detained may be required; or (ii) where such periods have not expired, the continued detention ofthe thing seized will not be required for any purpose mentioned in subss. (1) or (4). The only relevant purpose in subs. (1) is that thedetention of the thing seized is required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding. Subsection (4) applies only after the accused has been ordered to stand trial.

The accused in this case has not been ordered to stand trialbecause the Crown proceeded by direct indictment, bypassing the requirement for a preliminary inquiry. Thus, subs. (4) is notapplicable. [17] The first prerequisite in subss. 490(9) and (11) cannot be met because the proceedings in which the SUV may be requiredhave been instituted, in that the accused has been charged under subs. 5(1) of the CDSA and trial dates have been set. In this case, theCrown admits that the SUV is not required for the trial: it is being held only for the forfeiture proceeding.

This raises the question ofwhether the laying of charges commences the proceeding in which the SUV will be required. The trial, while not the proceeding inwhich forfeiture will be dealt with directly, is clearly a prerequisite to, and therefore an essential part of, the forfeiture proceeding. Thus,the forfeiture proceeding is commenced by the laying of charges. (See, for example, R. v. Alekseev (1990), (BC PC),58 C.C.C. (3d) 544 at 550 (B.C. Prov.

Ct.).) [18] As regards the second prerequisite, the only evidence before the motion judge was the affidavit of a police officer whodeposed that the SUV was required for the forfeiture proceedings under s. 16 of the CDSA. As the SUV will be required for “[an]otherproceeding,” the second prerequisite cannot be met either. (On whether “any other proceeding” includes a future forfeiture proceedingsee, for example, Alekseev at p. 550; R. v. Alchin, 2007 ONCJ 589 at para. 14, 61 M.V.R. (5th) 278; R. v. Nikitczuk (2009), (ON SC), 244 C.C.C. (3d) 389 at para. 15 (Ont. Sup. Ct.); and R. v.

Dawson, 2013 ONSC 4706 at para. 8, 48 M.V.R. (6th)106 (QL).) [19] Thus, neither the accused, under subs. 490(9), nor his wife, under ss. 490(10) and (11), would be able to meet theprerequisites for the return of the SUV, so neither could succeed on a substantive basis.

Therefore, even if the accused and his wifecould appeal any adverse findings, their appeals could not succeed on the facts of this case. [20] While it may be open to the accused to challenge the continued detention of the SUV by way of a civil action for replevin(see Raponi), that issue was not raised in the motion before the motion judge and is not before this court.

It should be noted that replevinis a civil and not a criminal remedy, so it would have to be raised as a civil claim. [21] The motion judge addressed any Charter application regarding unlawful seizure that the accused may have beenadvancing by finding that any Charter issues should be decided at the trial, on the basis of an adequate evidentiary record. That is aninterlocutory decision and, as such, it is not open to appeal for the reasons set out in para. 9 herein. V. DECISION [22] For these reasons, I would find that the motion judge did not err in dismissing the accused’s motion.

To the extent thatthis court is without jurisdiction to hear the appeal of an interlocutory decision, I would grant the motion and strike the appeal. To theextent that there is jurisdiction to appeal, I would dismiss the appeal. J.A. I agree: J.A. I agree: J.A.