R. v. Strickland, 2022 NSSC 165

SUPREME COURT OF Nova Scotia Citation: R. v. Strickland , 2022 NSSC 165 Date: 20220616 Docket: Halifax , No. 513009 Registry: Halifax Between: Her Majesty the Queen v.

Christian Strickland DECISION Judge: The Honourable Justice Bodurtha Heard: May 4, 2022, in Halifax, Nova Scotia Final Written Submissions: Oral Decision: Written Decision: May 9, 2022 May 20, 2022 June 16, 2022 Counsel: Leonard MacKay, for the Federal Crown Godfred Chongatera, for Christian Strickland By the Court: Introduction [ 1 ] Defence counsel brought an application for the return and restoration of property seized pursuant to s. 490 of the Criminal Code , R.S.C. 1985, c. C-46 , and a motion to seal the hearing record.

The Crown raised the issue of whether this Court has jurisdiction to hear the application. [ 2 ] At a pre-trial conference call scheduled on April 29, 2022, Crown counsel advised that he had recently tested positive for Covid-19 and would not be able to attend the hearing scheduled for May 2-4, 2022. He suggested bifurcating the hearing and having the parties argue via Microsoft Teams whether this court has the jurisdiction to hear the application and adjourn the hearing of the merits until after a decision on the jurisdiction.

Defence counsel agreed with the suggestion. [ 3 ] The parties submitted their briefs regarding the jurisdiction issue and argued the issue on May 4, 2022. At the conclusion of the hearing, Defence counsel requested an opportunity to provide supplementary briefs regarding the Judicature Act , R.S.N.S. 1989, c. 240 . The request was allowed and supplementary briefs were to be filed as follows: Defence counsel by May 9, 2022; Crown counsel by May 13, 2022; and Defence counsel reply, if any, by May 17, 2022. What follows is my decision.

Legislation [ 4 ] Section 490(7) of the Criminal Code reads: 490(7) Application for order of return

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. [ 5 ] Section 490(9) (

c) of the Criminal Code reads as follows: 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, 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 those 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, … [ 6 ]

Section 552 of the Criminal Code defines “judge” as follows:

Definitions 552 In this Part, judge means, … (

c) in the Province of Nova Scotia, a judge of the superior court of criminal jurisdiction of the Province, … [ 7 ]

Section 2 of the Criminal Code defines “justice” as follows:

Definitions 2 In this Act, … justice means a justice of the peace or a provincial court judge, and includes two or more justices where two or more justices are, by law, required to act or, by law, act or have jurisdiction; [ 8 ] Sections 4 and 8 of the Judicature Act read as follows: Jurisdiction and power and authority 4

(1) The Court shall continue to be a superior court of record, having civil and criminal jurisdiction and it has all the jurisdiction, power and authority that on the coming into force of this Act, was vested in or might have been exercised by the Supreme Court, and such jurisdiction, power, and authority shall be exercised in the name of the Court.

Jurisdiction and power of Supreme Court 8 The Supreme Court shall exercise all the jurisdiction, powers and authority belonging to or exercised by the Supreme Court of Nova Scotia before the first day of August, 1966, and not assigned to the Court of Appeal by this or any other Act and the judges of the Supreme Court shall exercise all the jurisdiction, powers and authority belonging to or exercised by a judge of the Supreme Court of Nova Scotia before that date and not assigned to the judges of the Court of Appeal by this or any other Act.

Background [ 9 ] On January 6, 2021, as part of an ongoing operation file that involved a

Part VI authorization with two renewals, police seized a safe in the possession of Carol Thoms. A search warrant was authorized the next day, and police seized $133,950 in Canadian currency from the safe. On January 8, 2021, a Report to Justice in relation to the currency was filed and an initial Detention Order was issued on January 14, 2021, by the Provincial Court. On April 20, 2021, a further Detention Order was issued by Lenehan, J, of the

Provincial Court, extending the detention to October 7, 2021. [10] Mr. Strickland was charged in June 2021, with an arraignment date of September 8, 2021. This matter is now set for trial inprovincial court in January and February of 2023. The charges were laid before the extended detention order expired. Issues [11] The issue is whether this Court has jurisdiction to hear the Defence’s application to request a return of seized property under: (

a) section 490 of the Criminal Code; or (

b) the Judicature Act.

Section 490 of the Criminal Code [12] Defence counsel purports to bring the application under s. 490(7). It is clear from ss. 490(7) and 490(9)(

c) that the applicationmust be brought to a “justice” unless a superior court judge ordered further detention of the items seized under s. 490(3). Thisapplication can only go before a Supreme Court judge if it was a Supreme Court judge who ordered the detention of the thing seized. This is not the case here. The last detention order was made by Provincial Court Judge Lenehan on April 20,

Section 490indicates that this application must be brought before a Provincial Court justice. [13] In R. v. Flynn, 2011 BCSC 1688, Mr. Flynn was charged with making and possessing counterfeit money. The police, in thecourse of the investigation, seized, pursuant to a warrant, Mr. Flynn’s 2003 Range Rover. Mr. Flynn applied pursuant to ss. 490(7) and490(9)(

c) for an order returning the vehicle to him. The issue was whether a Supreme Court judge had jurisdiction to hear Mr. Flynn’sapplication. [14] The Court held that the application should have been brought in the Provincial Court. Goepel J. stated, at para. 14: … Pursuant to s. 490(7), an application under that

section should only be made to a judge of a superior court where a judge of that courthas ordered the detention of the thing seized under s. 490(3). In any other case, the application is to be made to a justice who is definedin the Code as a justice of the peace or a Provincial Court judge. In this case, a judge of a superior court has not ordered the detention ofthe thing seized and accordingly the application is one that should have been brought in Provincial Court. [15] In Flynn, counsel conceded in their written submissions that the application should have been brought in Provincial Court.

However, they pointed the Court to s. 7 of the British Columbia Provincial Court Act, R.S.B.C. 1996, c. 379, which permits a judge ofthe Supreme Court to sit as a judge of the Provincial Court and, “when doing so, is a judge of that court.” The Supreme Court judge,after concluding that the application should have been brought in Provincial Court, agreed to hear the matter as a Provincial Court judgeat the request of both parties.

The Court indicated that this was a unique set of circumstances and that it was “sympathetic to the parties'submissions that it would be a waste of time and resources to require the parties to start this matter again in Provincial Court.” (see para.18). [16] There is no corresponding statutory provision in Nova Scotia that permits a judge of the Supreme Court to sit as a judge of theProvincial Court. [17] I find that a judge of a superior court has not ordered the detention of the currency and accordingly the application is one thatshould have been brought in Provincial Court.

The Judicature Act [18] Defence counsel pointed to sections 4 and 8 of the Judicature Act as authority for providing this court with the jurisdiction tohear all matters, including the power as a Supreme Court justice to sit as a Provincial Court judge. [19] I disagree with this proposition.

A plain reading of sections 4 and 8 of the Judicature Act does not provide the authority for aNova Scotia Supreme Court judge to preside as a Provincial Court judge and exercise the powers provided to Provincial Court judges. [20] Defence counsel argued that while the Judicature Act did not explicitly provide the authority for this Court to sit as a ProvincialCourt judge, when read with the case of R. v.

Morris (1988), (NS PC), 85 NSR (2d) 200, 1988 CarswellNS 409 (Prov.Ct.), it is reasonable to argue that a Supreme Court judge has authority to sit as a Provincial Court judge. [21] In Morris, Richard J. – a Supreme Court judge – presided over a Provincial Court proceeding. Thompson, a single mother,provided private, personal information to the Department of Social Services for the purpose of obtaining Social Assistance for thesupport of her child.

Morris, the Minister of the Department of Social Services, was convicted for making public Thompson’s personalinformation without lawful excuse. [22] The Nova Scotia Reports include a notation at the beginning of the decision indicating that Richard J. was “acting as aProvincial Court judge under the Judicature Act.” The context is explained in greater detail in a 2009

article in the Dalhousie LawJournal. Barry Cahill writes in “Ministerial Misfeasance: R. v. Morris and a Unique Early Privacy Breach” (2009), 32 Dalhousie L.J.367, at 375: ... The matter of a trial judge had been referred to Harry How, Chief Judge of the Provincial Court, who decided that a judge of theProvincial Court should not preside lest the independence of the judiciary be seen to be compromised. Judge Atton′s highly unusualrecusal was due to the accused′s being a member of the Cabinet, which appointed Provincial Court judges.

Worse still, Judge Atton waschair and Morris a member of the tribunal which determined the salaries and benefits for judges of the Provincial Court. The case wasthereupon adjourned until 18 December for arraignment and plea. A federally-appointed judge to preside was found. Mr. Justice K. Peter

Richard of the Supreme Court, Trial Division, accepted the invitation to sit as a judge extraordinary of the Provincial Court, which the Judicature Act permitted him to do. It is unclear why none of the three judges of the County Court for District Number One (Halifax County) was called upon to preside. [ 23 ] The Judicature Act , as consolidated by S.N.S. 1972, c. 2 was amended by SNS 1987, c. 39, which added

section 23A. That

section stated, in part [1] : ASSIGNMENT BY CHIEF JUSTICE 23A(1) The Chief Justice of the Trial Division may, on the request of the Chief Judge of the Provincial Court or the Chief Judge of the Family Court, request a Judge of the Trial Division of the Supreme Court to sit as a Judge of the Provincial Court or a Judge of the Family Court, as the case may be, in a particular proceeding.

(2) A Judge who sits pursuant to subsection (1) has all the power and authority and shall perform all the duties of a Judge of the Provincial Court or a Judge of the Family Court, as the case may be, in the particular proceeding. [ 24 ] This

section was proclaimed in force on November 24, 1987, and the Morris matter was heard shortly thereafter. Subsection 23A(1) was consolidated as

section 26 of the Judicature Act , R.S.N.S. 1989, c. 240 ; it was repealed by

section 53 of the 1992 Court Reform Act , S.N.S. 1992, c. 16, which came in to force on January 30, 1993. [2] [ 25 ] As a result, I find there is no longer a provision in the Judicature Act which would permit a Nova Scotia Supreme Court judge to preside as a Provincial Court judge and exercise the powers provided to Provincial Court judges. The provision that allowed for the situation in Morris no longer exists. Conclusion [ 26 ] Defence counsel has failed to convince me that this Court has jurisdiction to hear its application either under s. 490 of the Criminal Code or the Judicature Act .

The application is dismissed. [ 27 ] Defence counsel indicated that, should its application be dismissed regarding the jurisdiction of this Court, it reserves the right to have the matter heard on its merits in the Provincial Court. As I have only made a decision with respect to the jurisdiction issue, as it relates to this court, I see no reason why Defence counsel should not be permitted to proceed with its application on the merits in Provincial Court. Bodurtha, J.