Michael McEachren

The applicant sought review of a chambers judge's order refusing to extend time to appeal a forfeiture order made over a decade earlier.

The applicant also sought appointment of counsel.

The Court of Appeal dismissed both motions, finding that the forfeiture order was the subject of a joint submission related to the applicant's guilty plea and that there was no evidence to support any basis for the proposed appeal.

The court also found no basis to appoint counsel.

The applicant sought an order to release seized funds for legal fees and a declaration that s. 462.37(3) of the Criminal Code violates Charter rights if applied to such fees, creating a conflict of interest for counsel.

The Crown resisted, arguing lack of jurisdiction and prematurity for the constitutional issue.

The court found jurisdiction to release the funds, distinguishing previous case law, and determined the applicant had no other means to pay.

However, the court dismissed the declaratory relief, deeming the constitutional question premature as several contingencies must occur before s. 462.37(3) could apply, and emphasized that an offender truly unable to pay a fine in lieu of forfeiture would not face incarceration.

The applicant sought directions in advance of a hearing under s. 20(4) of the Controlled Drugs and Substances Act for relief from forfeiture of residential property previously ordered forfeited in related criminal proceedings.

The applicant requested that the upcoming hearing be treated as de novo and that the record be purged of references to the earlier Ontario Court of Justice decision ordering forfeiture.

The court held that the s. 20 application was a fresh proceeding in which the judge would not be bound by earlier findings, particularly given the Crown’s concession not to rely on estoppel or res judicata.

However, the earlier ruling remained part of the court record and there was no legal basis to expunge it.

Allegations of reasonable apprehension of bias arising from unrelated comments by the earlier judge in a different case were rejected.

The appellant was arrested for possession of oxycodone for the purpose of trafficking, and his truck was seized as offence-related property.

The assignee of the conditional sales contract for the truck, Ally Credit Canada Limited, applied for its return under s. 490 of the Criminal Code.

On the application date, the appellant's counsel's assistant requested an adjournment, which the application judge refused, ordering the truck returned to Ally.

The appellant appealed the order.

The Summary Conviction Appeal Court dismissed the appeal, finding that the application judge did not err in refusing the adjournment and that Ally had established it was entitled to possession of the truck due to the appellant's breach of the contract.