R. v. Hoyes, 2021 NSCA 33

Nova Scotia Court of Appeal Citation: R. v. Hoyes, 2021 NSCA 33 Date: 20210412 Docket: CAC 496285 Registry: Halifax Between: Her Majesty the Queen Appellant v. Mark Andrew Hoyes Respondent Judge: The Honourable Justice Peter M. S. BrysonAppeal Heard: February 8, 2021, in Halifax, Nova ScotiaLegislation: Criminal Code, R.S.C. 1985, c. C-46, ss. 489(1), 490(9), 490(17), 676(1), 683, 812(1)(c), 813, 822,839; Canadian Charter of Rights and Freedoms, ss. 8-9, s. 24(2);Cases Considered: R. v. Meltzer, (SCC), [1989] 1 S.C.R. 1764; Kourtessis v. M.N.R., (SCC), [1993] 2 S.C.R. 53; R. v.

Church of Scientology of Toronto (1991), (ONCA), 63 C.C.C. (3d) 328 (Ont. C.A.), leave ref’d 5 C.R.R. (2d) 384n; R. v. Spindloe, 2001 SKCA 58;R. v. Daley, 2001 ABCA 155; R. v. Genge, [1991] N.J. No. 52 (Nfld. C.A.); R. v. Hickey, 2003 NBCA91; R. v. Duguay, [1983] J.Q. No. 47; British Columbia (Attorney General) v. Forseth (1995), (BC CA), 99 C.C.C. (3d) 296 (BCCA) leave to appeal refused [1995] S.C.C.A. No. 426;SPCA Montérégie v. Langelier, 2017 QCCA 606; Sparks v. Nova Scotia (Assistance Appeal Board),2017 NSCA 82; Martell v. Halifax (Regional Municipality), 2015 NSCA 101; R. v. Raponi, 2004 SCC50; R. v.

Backhouse (2005), (ON CA), 194 C.C.C. (3d) 1 (Ont. C.A.); R. v. FlowardEnterprises Ltd. (H. Williams and Co.), 2017 ONCA 448;Subject: Criminal law. Forfeiture of proceeds of crime. Appeals jurisdiction.Summary: Police seized cash believed to be proceeds of crime. Charges of possession of proceeds of crime andpossession of marijuana for purpose of trafficking were eventually withdrawn and charges dismissed. The Crown applied for forfeiture of cash pursuant to s. 490(9) of the Criminal Code.

Provincial judgedismissed application, holding that accused’s ss. 8 and 9 Charter rights had been infringed and orderedexclusion of the cash under s. 24(2) of the Charter. The Crown appealed to the Supreme Court inaccordance with s. 490(17)(

b) of the Criminal Code. The Supreme Court dismissed the appeal. TheCrown applied to the Court of Appeal for leave to appeal, arguing that the

summary convictionprocess of ss. 812-828, referred to in s. 490(17)(b), allowed the Court of Appeal to consider leaveunder s. 839 of the Criminal Code.Issues: Does the Court of Appeal have jurisdiction to consider leave to appeal?Result: Notice of Leave to Appeal quashed. The Court of Appeal has no jurisdiction to consider leave or theappeal. Subsections 490(17)(

a) and (

b) provide two rights of appeal. Subsection (

a) allows an appealto the Court of Appeal from a first instance decision of a superior court—in Nova Scotia, that is theSupreme Court. Subsection (

b) allows an appeal to the “appeal court”. In Nova Scotia, the SupremeCourt—from a first instance decision of a provincial court. Section 490(17) grants no other right of appeal. The

Summary Conviction sections incorporated by ss.(

b) apply to the process of appeal and do not authorize a further appeal to the Court of Appeal. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full courtjudgment consists of 14 pages. Nova Scotia Court of Appeal Citation: R. v. Hoyes, 2021 NSCA 33 Date: 20210412 Docket: CAC 496285 Registry: Halifax

Between: Her Majesty the Queen Appellant v. Mark Andrew Hoyes Respondent Judges: Bryson, Derrick and Beaton, JJ.A. Appeal Heard: February 8, 2021, in Halifax, Nova Scotia Held: Application for leave to appeal quashed, per reasons for judgment of Bryson, J.A.; Derrick and Beaton, JJ.A. concurring Counsel: David Schermbrucker, for the appellant Kevin Burke, Q.C., for the respondent Reasons for judgment: Introduction [ 1 ] Can the Crown appeal to this Court from a dismissal of its appeal to the Supreme Court following rejection of its application for forfeiture of property by the Provincial Court? Mr.

Hoyes says this Court has no jurisdiction to entertain the Crown’s appeal. The Crown disagrees, arguing that because

summary conviction appeal processes are incorporated by reference into forfeiture appeals, access is available to the Court of Appeal, with leave, under s. 839 of the Criminal Code . [ 2 ] At the opening of the appeal, Mr. Hoyes questioned the jurisdiction of this Court to hear an appeal once the matter had been disposed of in the Supreme Court. The appeal was adjourned to permit the parties to file written submissions. Following written submissions, the Court reconvened. Having heard the parties on the question of jurisdiction, the Court dismissed the appeal for want of jurisdiction, with reasons to follow.

These are the reasons. [ 3 ] After reviewing the facts, these reasons will ask whether this Court has appellate jurisdiction in this case by examining the legislation, its

interpretation by the case law, concluding with a contextual analysis of why forfeiture appeals can be made either to the Supreme Court or the Court of Appeal, but not both. Background facts [ 4 ] On December 24, 2014, police went to Mark Andrew Hoyes’ home in response to a call on the non-emergency police line. The caller reported hearing Mr. Hoyes threatening a woman named “Crystal” with words to the effect “if you touch those drugs, I’ll beat you to death”. [ 5 ] The police arrived. Mr. Hoyes was seen walking from his house to a car in the driveway, carrying a taped box which he put in the car. Mr.

Hoyes was placed under investigative detention for domestic assault and possession of a controlled substance. Shortly thereafter police were told by “Crystal” there had been no assault. [ 6 ] The police believed the box contained drugs. Mr. Hoyes was arrested for possession of a controlled substance. Police opened the box and found $107,240. They then obtained a warrant to search the house and found marijuana. Mr.

Hoyes was charged with possession of proceeds of crime and possession for the purpose of trafficking. [ 7 ] Police seizing property under a search warrant or otherwise in the execution of their duty must file a report to a “justice”— usually the provincial court. If the police wish to keep the seized item for investigative purposes in criminal proceedings, they must request a detention order ( ss. 489.1(1) (b)(ii) and 490(1) of the Criminal Code , R.S.C. 1985, c. C-46 ). The police did so for the $107,240 cash seized from Mr.

Hoyes. [ 8 ] Ultimately, charges of possession of proceeds of crime and possession of marijuana for the purpose of trafficking were withdrawn, and the charges against Mr. Hoyes were dismissed. [ 9 ] The Crown then applied for forfeiture of the seized cash under s. 490(9) of the Code . The Provincial Court judge hearing the Crown’s initial application found that Mr. Hoyes’ ss. 8 and 9 rights under the Canadian Charter of Rights and Freedoms had been infringed and ordered exclusion of the cash as evidence under s. 24(2) of the Charter ( 2018 NSPC 26 ). Accordingly, the Crown could

not meet its burden for forfeiture under s. 490(9). [10] The Crown appealed to the Supreme Court of Nova Scotia in accordance with s. 490(17)(

b) of the Code. The Crown’s appealwas dismissed (2019 NSSC 392). The Crown now seeks leave to appeal, and if granted, appeals to this Court. Does the Court of Appeal have jurisdiction to entertain this appeal? The Legislation: [11] It is well known that appeals are solely creatures of statute (R. v. Meltzer, (SCC), [1989] 1 S.C.R. 1764). There is no inherent jurisdiction to entertain an appeal. Authority must be found in legislation (Kourtessis v. M.N.R., (SCC), [1993] 2 S.C.R. 53). [12] The Crown’s application for forfeiture was brought under s. 490(9) of the Code which authorizes forfeiture to the Crown incertain circumstances: Disposal of things seized

(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, […] 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 ofany person, and the lawful owner or person who is lawfully entitled to its possession is not known, order it to be forfeited to HerMajesty, to be disposed of as the Attorney General directs, or otherwise dealt with in accordance with the law. [Emphasis added] [13] A right of appeal is authorized by s. 490(17): Appeal

(17) A person who feels aggrieved by an order made under subsection (8), (9), (9.1) or (11) may appeal from the order (

a) to the court of appeal as defined in

section 673 if the order was made by a judge of a superior court of criminal jurisdiction, in whichcase sections 678 to 689 apply with any modifications that the circumstances require; or (

b) to the appeal court as defined in

section 812 in any other case, in which case sections 813 to 828 apply with any modifications thatthe circumstances require. [Emphasis added] [14] Since the Crown’s initial appeal was from a provincial court decision, the appeal fell under s. 490(17)(

b) to the “appeal court”. Section 812(1)(

c) of the Code defines the appeal court in Nova Scotia as the Supreme Court. [15] Mr. Hoyes maintains that the two appeal routes described in s. 490(17) exhaust the Crown’s right of appeal. If the forfeitureapplication had been brought under s. 490(17)(a), the appeal would lie to this Court. If, as in this case, the application was before theProvincial Court, appeal would lie to the Supreme Court. Mr. Hoyes says there is no further right of appeal. [16] The Crown disagrees, invoking the reference to ss. 813-828 in s. 490(17)(

b) as a path to appeal to this Court under s. 839. [17] Section 490(17)(

b) provides that in any appeal to the “appeal court” (in this case the Supreme Court) ss. 813-828 apply “withany modifications that circumstances require”: Appeal by defendant, informant or Attorney General 813 Except where otherwise provided by law, (

a) the defendant in proceedings under this Part may appeal to the appeal court (

i) from a conviction or order made against him, (ii) against a sentence passed on him, or (iii) against a verdict of unfit to stand trial or not criminally responsible on account of mental disorder; and (

b) the informant, the Attorney General or his agent in proceedings under this Part may appeal to the appeal court (

i) from an order that stays proceedings on an information or dismisses an information, (ii) against a sentence passed on a defendant, or

(iii) against a verdict of not criminally responsible on account of mental disorder or unfit to stand trial, and the Attorney General of Canada or his agent has the same rights of appeal in proceedings instituted at the instance of theGovernment of Canada and conducted by or on behalf of that Government as the Attorney General of a province or his agent has underthis paragraph. [Emphasis added] [18] The Crown says that the appeal to the Supreme Court was an appeal against the order of the Provincial Court judge dismissingthe s. 490(9) forfeiture application, as if it were an order dismissing an Information in a

summary conviction trial. [19] The Crown adds that a further appeal to this Court is authorized by s. 490(17) because it expressly incorporates s. 822: Certain sections applicable to appeals 822

(1) Where an appeal is taken under

section 813 in respect of any conviction, acquittal, sentence, verdict or order, sections 683 to689, with the exception of subsections 683(3) and 686(5), apply, with such modifications as the circumstances require. [Emphasis added] [20]

Section 683 refers to the Court of Appeal in each province. [21] The Crown then invokes s. 839 which says: Appeal on question of law 839

(1) Subject to subsection (1.1), an appeal to the court of appeal as defined in

section 673 may, with leave of that court or a judgethereof, be taken on any ground that involves a question of law alone, against (

a) a decision of a court in respect of an appeal under

section 822; or (

b) a decision of an appeal court under

section 834, except where that court is the court of appeal. […] Sections applicable

(2) Sections 673 to 689 apply with such modifications as the circumstances require to an appeal under this section. [Crown’s emphasis] [22] The Crown elaborates that s. 676(1) provides in part: Right of Attorney General to appeal 676

(1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal (

a) against a judgment or verdict of acquittal or a verdict of not criminally responsible on account of mental disorder of a trial court inproceedings by indictment on any ground of appeal that involves a question of law alone; (

b) against an order of a superior court of criminal jurisdiction that quashes an indictment or in any manner refuses or fails to exercisejurisdiction on an indictment; (

c) against an order of a trial court that stays proceedings on an indictment or quashes an indictment; or (

d) with leave of the court of appeal or a judge thereof, against the sentence passed by a trial court in proceedings by indictment, unlessthat sentence is one fixed by law. [Crown’s emphasis] [23] The Crown then submits that by reading ss. 490(17), 839(1)(a), and 676(1)(

c) together “it is clear that this Court hasjurisdiction to hear this appeal”. The Case Law: [24] The Crown relies on the Ontario Court of Appeal in R. v. Church of Scientology of Toronto (1991), (ONCA), 63 C.C.C. (3d) 328 (Ont. C.A.); leave refused by S.C.C., 5 C.R.R. (2d) 384n, quoting the Court’s conclusion on this point: In our view, the decision of the General Division judge, which was governed by s. 822, is just as much “a decision of a court in respect ofan appeal under

section 822” (s. 839(1)(a)) as a decision given on an appeal provided for in s. 813. We think that s. 490(17) and s. 813stand on an equal footing as far as s. 822 is concerned. […] [25] The Saskatchewan Court of Appeal followed Church of Scientology in R. v. Spindloe, 2001 SKCA 58. The Alberta Court ofAppeal has also decided a s. 490(17) appeal without addressing the procedure (R. v. Daley, 2001 ABCA 155). [26] The Newfoundland and Labrador Court of Appeal and the New Brunswick Court of Appeal have expressed contrary views. In

R. v. Genge, [1991] N.J. No. 52 (Nfld. C.A.) (Q.L.), Mr. Genge challenged a provincial court order providing that property no longernecessary for the criminal proceedings could be restored to a third party. Mr. Genge appealed to the Supreme Court in accordance withs. 490(17) of the Code. That Court confirmed the disposition order and Mr. Genge appealed further to the Court of Appeal. The Crownopposed the appeal on the basis that the Court lacked jurisdiction to hear it.

The Newfoundland and Labrador Court of Appeal agreed: [6] […] The reference in s. 490(17) to the application of ss. 814 to 828 relates only to the procedure to be adopted in the lodgingand hearing of the appeal to the Trial Division. The right granted by s. 839 to take a further appeal to this Court on a question of lawapplies only to a s. 813 appeal by a Defendant, Informant, or the Attorney General in a criminal matter.

S. 813, it will be noted, is notreferred to in s. 490(17). [7] That there is no such further appeal makes eminently good sense because obviously such a matter can only be based on factualevidence.

Even if a further appeal were possible, then the provisions of s. 839, which allows appeals to this Court on a question of lawalone, would effectively preclude the appellant from obtaining leave to appeal inasmuch as the issue here is concerned totally with fact. [8] In the result, the Notice of Appeal is struck out; this Court having no jurisdiction to hear the matter. [Emphasis added] [27] To similar effect is the New Brunswick Court of Appeal in R. v.

Hickey, 2003 NBCA 91: [19] Having said that, we are in no position to determine whether the judge of the Court of Queen’s Bench had jurisdiction to act inthis case unless subsection 490(17) gives this Court jurisdiction to intervene. In this regard, it is well-established in law that the right toappeal must be provided for in a statutory provision. The statutory provision relied upon must expressly provide for the right ofappeal claimed or, at the very least, be worded in such a way that it leaves no doubt that such a right is implied. See Belliveau v.

RoyalBank of Canada (1998), (NB CA), 205 N.B.R. (2d) 184 (C.A.), at para.13 where the Court has listed relevantcaselaw. [20] The intellectual framework for the position this Court must adopt is simple. Subsection 490(17) provides a right to appeal to“the appeal court, as defined in

section 812”. No other right to appeal is recognized therein. In this Province, “the appeal court, asdefined in

section 812” is the Court of Queen’s Bench. Contrary to other statutory provisions that provide a right to appeal to the appealcourt as defined in s. 812, subsection 490(17) does not confer to a person who feels aggrieved the right to apply for leave to appeal undersubsection 839(1). If the Legislature’s intention was to allow an appeal under subsection 839(1), subsection 490(17) would contain areference to that provision. [21] In my view, the fact that subsection 490(17) contains no reference to subsection 839(1) is determinative of the issue of ourjurisdiction in this case.

I believe that the absence of a reference to subsection 839(1) indicates that Parliament intended to put an endto appellate challenges under subsection 490(17) at the level of the appeal court as defined in

section 812. [Emphasis added] [28] Although these comments are dicta Chief Justice Drapeau devoted careful consideration to the jurisdictional issue, no doubt forprecedential purposes. [29] Hickey and Genge both followed the Quebec Court of Appeal in R. v. Duguay, [1983] J.Q. no. 47 (Q.L.). It appears that Gengeand Duguay were not argued in Church of Scientology or Spindloe. [30] The British Columbia Court of Appeal left the question of jurisdiction open since it was not argued in British Columbia(Attorney General) v.

Forseth (1995), (BC CA), 99 C.C.C. (3d) 296 (BCCA), leave to appeal refused [1995] S.C.C.A.No. 426. More recently the Quebec Court of Appeal also left the question of appellate jurisdiction open in SPCA Montérégie v.Langelier, 2017 QCCA 606, notwithstanding Duguay. [31] The Crown responds to Hickey and Genge by emphasizing that they do not discuss s. 822 of the Code which is here repeatedfor convenience: Certain sections applicable to appeals 822

(1) Where an appeal is taken under

section 813 in respect of any conviction, acquittal, sentence, verdict or order, sections 683 to689, with the exception of subsections 683(3) and 686(5), apply, with such modifications as the circumstances require. [Emphasis added] [32] As we shall see, resort to s. 822 makes no difference. Analysis: [33] When interpreting a statute, the law requires that, “the words of

an Act are to be read in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Sparksv. Nova Scotia (Assistance Appeal Board), 2017 NSCA 82 at para. 24). [34] Looking at s. 490(17) itself, two avenues of appeal are described. The first is to the provincial court of appeal from a decisionmade by an “appeal court” (490(17)(a))—in Nova Scotia’s case, the Nova Scotia Supreme Court. The second avenue of appeal (490(17)(b)) is to the “appeal court”. It is significant that appeals under subsection (

b) apply “in any other case”. This suggests that the tworoutes of appeal are exhaustive.

[ 35 ] There is no additional subsection (

c) describing appeals from the “appeal court” to the “court of appeal”. The appeal is from an order granted under other subsections in s. 490. Those orders may be granted at first instance by a provincial court judge or a superior court judge. [ 36 ] Although s. 490(17)(

b) says that ss. 813 -828 apply to appeals to a superior court judge, it does not mention s. 839(1) which authorizes appeals to the Court of Appeal, with leave. [ 37 ] On its face, s. 490 does not contemplate a further third route of appeal. It describes two routes of appeal only. [ 38 ] The Crown cites s. 839 , relying respectively on ss. 822 and 813 : Appeal on question of law 839

(1) Subject to subsection (1.1), an appeal to the court of appeal as defined in

section 673 may, with leave of that court or a judge thereof, be taken on any ground that involves a question of law alone, against (

a) a decision of a court in respect of an appeal under

section 822 ; or (

b) a decision of an appeal court under

section 834, except where that court is the court of appeal. [Emphasis added] [ 39 ] The Crown then notes that s. 822 refers to appeals “taken under s. 813”. But this is not an appeal taken under s. 813 , but under s. 490(17). The right of appeal is conferred by s. 490, not s. 813 ; so the language of s. 822 referring to an appeal “under” s. 813 does not apply. [ 40 ] Most of the cases predate the present wording of s. 490(17), with its clearly defined two routes of appeal. Previously it read: Appeal

(17) A person who feels aggrieved by an order made under subsection (8), (9), (9.1) or (11) may appeal from the order to the appeal court , as defined in

section 812, and for the purposes of the appeal the provisions of sections 814 to 828 apply with such modifications as the circumstances require. [Emphasis added] [ 41 ] The problem with the foregoing is that the “order” under appeal may have been granted by a superior court. So the appeal would also have been to the superior court. In 2008 the

section was amended to address the anomaly. The 2008 amendments ensured that an appeal of a decision from a superior court judge did not flow to another superior court judge but rather to the Court of Appeal. Legislative comments at the time confirm this. On November 13, 2007, the Honourable Senator Donald H. Oliver spoke at length in the Senate about the proposed changes to the Code through Bill C-13. He characterized the amendments to subsection 490(17) as follows: A procedural change to the current regime in

section 490 of the Criminal Code is proposed. This provision sets out the process to be followed for the return of property seized or detained during the investigation of an offence. The person from whom the property was seized may make a court application to request that the property be returned. Depending on the situation, that order can be made by a justice, a provincial court judge or a superior court judge. An appeal mechanism is also provided for such court orders.

Currently, honourable senators, the code provides that when an order to return seized property is made by a superior court judge, the appeal of such an order is to be heard by a judge of the same court, not to an appeal court. This anomaly needs to be corrected, as appeals are usually heard by a higher court.

The corrective amendment will now provide that the appeal route of an order made by a superior court judge with respect to the detention of things seized is to proceed to the court of appeal. [Emphasis added] [ 42 ] In Committee, the Minister of Justice, the Honourable Robert Douglas Nicholson, echoed these sentiments, describing the amendment to subsection 490(17) as “correct[ing] an anomaly by identifying the proper appeal route for judicial orders to seized property.” [ 43 ] These amendments occurred after most of the foregoing caselaw was decided; in particular, Church of Scientology, Spindloe, Hickey and Genge .

If anything, the amendments strengthen the

interpretation of Hickey and Genge because of the reference to appeals “in any other case” when describing the appellate authority of a superior court. The first route of appeal is to the provincial appeal court; the second is to the superior court “in any other case”. [ 44 ] Reading s. 490(17), no right of appeal to the court of appeal is available if the first decision originates in the provincial court.

And because ss. 812- 813 and s. 839 make no mention of s. 490 , they do not add a route of appeal absent from s. 490 . [ 45 ] However, the plain language of the statute does not conclude the interpretive analysis. As this Court explained in Martell v. Halifax (Regional Municipality) , 2015 NSCA 101 , at para 32 : [32] The Appellant’s assertion that the existence of an ambiguity in the by-law was a necessary springboard to permit the

interpretation which followed, is flawed. A finding of ambiguity is not a precondition of a proper contextual analysis. As this Court said in Isaac Walton Killam Health Centre v. Nova Scotia (Human Rights Commission) , 2014 NSCA 18 , citing the Supreme Court of Canada, such an analysis is required in any event:

[26] In McLean, the Supreme Court was satisfied that the plain meaning of the statutory words were consonant with the BritishColumbia Security Commission’s

interpretation. But the court went on to say: [43] However, satisfying oneself as to the ordinary meaning of the phrase “is not determinative and does not constitute the end of theinquiry” ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, at para. 48). Althoughit is presumed that the ordinary meaning is the one intended by the legislature, courts are obliged to look at other indicators of legislativemeaning as part of their work of

interpretation. That is so because [w]ords that appear clear and unambiguous may in fact prove to be ambiguous once placed in their context. The possibility of thecontext revealing a latent ambiguity such as this is a logical result of the modern approach to

interpretation. (Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, at para. 10) [Emphasis added] [46] Ruth Sullivan explains in Statutory

Interpretation, 3rd ed (Toronto: Irwin Law, 2016) at p. 185 that the purpose of a statute is“used as the standard against which proposed

interpretations are tested: an

interpretation that promotes the purpose is preferred over onethat does not, while

interpretations that would tend to defeat the purpose are avoided”. [47] Inferences about purpose may be drawn from the scheme of the Act itself: […] In carrying out this analysis the court, in effect, retraces the steps of the legislative drafter, examining the relationship amongprovisions to surmise the overall plan. It attempts to discover why each provision was included and the contribution each makes towardimplementing the legislature’s goals.

It looks at the way provisions are grouped under headings or divided into parts to discover acommon theme or rationale. [Sullivan on the Construction of Statutes, 6th ed (Markham: Lexis Nexis Canada, 2014) at p. 282] [48] In R. v. Raponi, 2004 SCC 50, the Supreme Court of Canada described s. 490 as containing a comprehensive set of rulesproviding for judicial supervision of property that has been seized by police.

Section 490 works together with s. 489.1 which imposesobligations on peace officers who have seized property. (See also R. v. Backhouse (2005), (ON CA), 194 C.C.C. (3d)1 (Ont. C.A.), paras. 109 to 112 which describes the legislative overhaul of ss. 490 and 489.1). [49] As the Ontario Court of Appeal said in R. v. Floward Enterprises Ltd. (H.

Williams and Co.), 2017 ONCA 448 at ¶ 31, theoverall purpose of s. 490 is “to ensure that, subject to judicial supervision, police return a seized item to the lawful owner or personlawfully entitled to its possession when its continued detention is not required for the purposes of an investigation or court proceeding”. [50] Hickey provides a compelling contextual analysis of s. 490(17) appeals: [22] After all, legislators have at their disposal unambiguous wording when they want to provide an avenue for challenges ofdecisions rendered by the appeal court as defined in

section 812 to Provincial Appeal Courts. Subsections 111(10) and 395(3) of theCriminal Code contain this type of wording. [23] Subsection 111(10) reads as follows: Application of

Part XXVII to appeals - The provisions of

Part XXVII, except sections 785 to 812, 816 to 819 and 829 to 838, apply inrespect of an appeal made under subsection (8) or (9), with such modifications as the circumstances require and as if each reference inthat Part to the appeal court were a reference to the superior court. [24] As to subsection 395(3), it provides as follows: Appeal - An appeal lies from an order made under paragraph (2)(

b) in the manner in which an appeal lies in

summary convictionproceedings under

Part XXVII and the provisions of that Part relating to appeals apply to appeals under this subsection. [25] There are other provisions that create a right to appeal under subsection 839(1) just as clearly as do subsections 111(10) and395(3).

For instance, subsection 116(1) of the Provincial Offences Procedure Act, S.N.B. 1987, c.P-22.1, provides as follows: For the purposes of an appeal under this Act, sections 812 to 839, except sections 814, 826 and 827 and subsections 830(4), 839(3) and839(5) of the Criminal Code apply, with the necessary modifications. [26] With respect, we cannot subscribe to the view taken in R. v. Church of Scientology of Toronto that a decision of an appeal courtas defined in

section 812, made under subsection 490(17), constitutes a “decision of a court in respect of an appeal under s. 822” withinthe meaning of paragraph 839(1)(a). Appeals under s. 822 are appeals made pursuant to

section 813. There is no mention of thissection in subsection 490(17) and clearly, Mr. Hickey’s appeal was not “an appeal under

section 822”, but an appeal undersubsection 490(17). In fact, this is the

section Mr. Hickey relied upon to challenge Chief Judge Dumas’s decision. Finally, we mustremember the wording used in subsection 490(17) which sets out the object of s. 822. Subsection 490(17) provides that s. 822 applies forthe purposes of the appeal to the appeal court, as defined in

section 812. [Emphasis added] [51] This analysis from Hickey is strengthened by the 2008 amendments, contrasting, as it does, appeals to the court of appeal andappeals to a superior court. A contextual analysis enhances the ordinary meaning of the words used in s. 490(17). [52] Section 490(17) furthers the legislative objective by providing an additional level of judicial scrutiny with respect toentitlement to seized property. It limits the right of appeal to certain circumstances (for example, orders under ss. (8), (9), (9.1) and

(11)). Furthermore, Parliament distinguished which court should hear an appeal under which circumstance, the court of appeal in the case of a review of a superior court order, a superior court “in any other case”. Parliament did not go further and provide a right of appeal from the superior court which had already discharged an appellate jurisdiction in reviewing a decision of the provincial court.

These two disparate avenues do not suggest any further right of appeal. [ 53 ] Examining the ordinary meaning of the language used, its context, the object of s. 490(17) and the judicial scrutiny authorized there, a further right of appeal to this Court from the Supreme Court is not available. [ 54 ] The application for leave to appeal should be quashed as we have no jurisdiction to consider it or the appeal. Bryson, J.A. Concurred in: Derrick, J.A. Beaton, J.A.