COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Talbot, 2012 ONCA 460

DATE: 20120628

DOCKET: C51040

Doherty, Watt and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

William Talbot

Appellant

Ryan M. Naimark, for the appellant

Lisa Mathews and Amber Pashuk, for the respondent

Heard and released orally: June 22, 2012

On appeal from the forfeiture order of Justice Pardu of the Superior Court of Justice, dated June 24, 2011.

ENDORSEMENT

[1] We are satisfied that it would be an abuse of process to allow the appellant to advance the arguments he seeks to pursue on this appeal.

[2] On the appellant’s sentencing, which we note proceeded by way of a joint submission, the appellant specifically disavowed any interest in the Crown’s claim for the forfeiture of any paraphernalia associated with the Hell’s Angels Motorcycle Club seized from the appellant. The appellant, through counsel, on at least two occasions, advised the sentencing judge that the question of whether that material should be forfeited would have to be resolved in a separate proceeding in which an entity referred to as the Hell’s Angels Motorcycle Corporation (the “Corporation”) would advance a claim that it was the lawful owner of the paraphernalia. The appellant made it clear that it was his position that any claim in respect of the material would be made by the Corporation whom he considered to be the lawful owner of that paraphernalia.

[3] The Crown subsequently proceeded with a forfeiture claim relating to the paraphernalia seized from the appellant and paraphernalia seized from several other individuals convicted in separate proceedings. The Corporation appeared on the forfeiture application and sought the return of the material claiming that it was the owner of the property and entitled to the return of the property under s. 490.4(3). The appellant, although served with notice of the forfeiture proceedings, chose not to appear or participate in those proceedings. The forfeiture judge ultimately ordered all of the material, including the material seized from the appellant’s residence, forfeited.

[4] The Corporation purported to appeal from the forfeiture order, but that appeal was ultimately dismissed as abandoned. Section 490.1(3) makes it crystal clear that the Corporation had no right of appeal. The appellant then stepped forward as a substitute for the Corporation and now seeks to advance the arguments that were advanced by the Corporation in the forfeiture proceeding. Under the language of s. 490.1(3), the appellant, as a convicted person, does have a right of appeal.

[5] When an appellant has chosen not to participate in the proceedings from which the order under appeal emanates, a heavy onus rests on the appellant when he seeks to have this court allow him to challenge an order made in proceedings he chose to ignore.

[6] The appellant argues that he should be allowed to participate in the proceedings at the appellate stage for the first time because the judge on the forfeiture motion made a finding that the Corporation was not the lawful owner of the paraphernalia. He submits that this finding somehow allows him to resile from the position he expressly took on his own sentencing and implicitly reiterated on the forfeiture application when he chose not to participate.

[7] We see no connection between the finding of the forfeiture judge rejecting the Corporation’s ownership claim and the appellant’s argument that he should be permitted to challenge an order made in proceedings in which he chose not to participate.

[8] The proceedings before the forfeiture judge proceeded as they did because of the parties who were before her and the positions taken by those parties. We have no way of knowing how the proceedings would have gone had other persons, such as the appellant, chosen to participate in those proceedings. The forfeiture judge was faced with what was essentially a relief from forfeiture claim brought by the Corporation on the basis that it was the lawful owner of the property and was not complicit in the relevant criminal conduct. The forfeiture judge made her evidentiary rulings and her ultimate determination in the context of the arguments put before her by the party who chose to appear before her. We have no way of knowing how she might have dealt with arguments advanced by the appellant in his capacity as a “convicted person” had he chosen to appear before her.

[9] The administration of justice would inevitably fall into disrepute if persons were allowed to appeal from orders made in proceedings in which those persons, despite having been given notice, made a considered decision not to participate. The appellant has advanced no basis upon which we should exercise our discretion and allow him to join battle with the Crown at this very late stage.

[10] The appeal is dismissed.

“Doherty J.A.”

“David Watt J.A.”

“Alexandra Hoy J.A.”