R. v. Raponi, [2004] 3 S.C.R. 35, 2004 SCC 50

Walter Raponi Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Raponi

Neutral citation: 2004 SCC 50.

File No.: 29769.

2004: May 17; 2004: July 16.

Present: McLachlin C.J. and Major, Bastarache, Binnie, Arbour,[^1] Deschamps and Fish JJ.

on appeal from the court of appeal for alberta

Criminal law — Detention of things seized — Further detention — Crown applying for extension of time for detention of money seized by police — Defence responding by filing motion for return of money on ground of unlawful seizure — Whether Provincial Court judge has jurisdiction to order return of money under s. 490(2) of Criminal Code or on some other basis — If not, proper procedure to be followed to obtain order for return of money.

Criminal law — Detention of things seized — Further detention — Crown applying for extension of time for detention of money seized by police — Provincial Court judge ordering return of money on ground of unlawful seizure — Whether Provincial Court judge had jurisdiction to make such an order under s. 490(2) of Criminal Code or on some other basis — If not, proper procedure to be followed to challenge order of Provincial Court judge — Criminal Code, R.S.C. 1985, c. C‑46, s. 490(2).

The appellant brought nearly $35,000, in the form of a bag filled with cash, for the release of his client on bail. The police confiscated the bag as “offence-related property” pursuant to s. 11 of the Controlled Drugs and Substances Act, without warrant or demonstration of reasonable grounds. With the approach of the three-month detention limit for items detained by the Crown provided for by s. 490 of the Criminal Code, the police applied to a Provincial Court judge for an extension under s. 490(2). The appellant in response filed a motion for return of the money on the ground that it had been improperly seized contrary to ss. 8 and 9 of the Canadian Charter of Rights and Freedoms. The Provincial Court judge dismissed the Crown’s application and ordered the money returned to the appellant on the basis that it had been improperly seized and the Crown’s possession was unlawful. The Court of Queen’s Bench upheld the order, holding that there was no appeal from a s. 490(2) finding and even if the Provincial Court judge may be assumed to have acted under s. 490(9), which deals with return or forfeiture of detained items, the Crown had not established that the appellant’s possession had been unlawful. The Court of Appeal allowed the Crown’s appeal, vacated the orders of the Provincial Court and Court of Queen’s Bench, and directed that a hearing be conducted under s. 490(9) of the Code to determine whether the money should be returned to the appellant or forfeited to the Crown.

Held: The appeal should be allowed.

The seizure of money in this case failed to comply with s. 11 of the Controlled Drugs and Substances Act and is hence unlawful, but the Provincial Court judge could not order the return of goods on the grounds of unlawful seizure under s. 490(2) of the Criminal Code. Under that provision, the only question to be considered by a Provincial Court judge is whether continued detention is required by a proceeding that has been instituted or by an investigation. Since a Provincial Court judge has no power to order the return of the money outside the Code, it follows that the order was made without jurisdiction. Given that all the motions in this case were brought under s. 490(2), consideration of the precise powers of a Provincial Court judge under s. 490(9) should be left for another day.

The proper procedure (1) for obtaining an order for return of the monies was an application for replevin to the Court of Queen’s Bench; and (2) for challenging the Provincial Court judge’s order was a motion for certiorari seeking to vacate the order for lack of jurisdiction. The appellant did not follow the proper procedure and although the Provincial Court judge made an order for the return of the money, that order under s. 490(2) is a nullity. The Code provides no appeal from an order under s. 490(2) and the Court of Appeal had therefore no jurisdiction to set aside the Provincial Court’s erroneous order or the order of the Court of Queen’s Bench, which was not properly seized of an appeal. Since it has not been validly appealed, the Provincial Court judge’s order for the return of the money remains in force, but it could be set aside if the proper procedure is followed.

Cases Cited

Referred to: Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863; R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81; R. v. Hynes, [2001] 3 S.C.R. 623, 2001 SCC 82; R. v. Daley (2001), 156 C.C.C. (3d) 225, 2001 ABCA 155.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 8, 9, 24.

Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 11, 13.

Criminal Code, R.S.C. 1985, c. C-46, ss. 489.1 [ad. c. 27 (1st Supp.), s. 72; am. 1993, c. 40, s. 17; am. 1997, c. 18, s. 49], 490 [rep. & sub. c. 27 (1st Supp.), s. 73; am. 1994, c. 44, s. 38; am. 1997, c. 18, s. 50], 812.

APPEAL from a judgment of the Alberta Court of Appeal (2003), 174 C.C.C. (3d) 397, [2003] 10 W.W.R. 75, 18 Alta. L.R. (4th) 34, 106 C.R.R. (2d) 119, 327 A.R. 271, [2003] A.J. No. 457 (QL), 2003 ABCA 128, allowing an appeal from a judgment of Langston J. (2002), 91 C.R.R. (2d) 361, [2002] A.J. No. 92 (QL), 2002 ABQB 67, dismissing an appeal from a judgment of Stevens‑Guille Prov. Ct. J. (2001), 291 A.R. 139, [2001] A.J. No. 175 (QL), 2001 ABPC 30, dismissing the Crown’s motion to extend detention of seized funds and allowing the appellant’s cross‑motion for the return of the seized funds. Appeal allowed.

Peter J. Royal, Q.C., and Deborah R. Hatch, for the appellant.

Robert J. Frater and Marian Bryant, for the respondent.

The judgment of the Court was delivered by

The Chief Justice —

I. Introduction

[1] This case demonstrates how a confusing statutory process, compounded by human error, can produce a procedural conundrum the unraveling of which has required the attention of the courts of this country at every level. One bag of money has occupied the judicial process for four years. And as we will see, the end is not yet in sight.

[2] The saga begins with a normally routine transaction — the posting of bail. The only thing out of the ordinary was that the detainee’s lawyer, Mr. Raponi, presented almost $35,000 for the release of his client in the form of a bag filled with cash. The police seized the bag as “offence-related property” pursuant to s. 11 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). The police had no warrant; nor have they demonstrated that they had reasonable grounds to believe the money was proceeds of crime, as required by s. 11 of the CDSA. All they had was a suspicion.

[3] Section 13 of CDSA makes ss. 489.1 and 490 of the Criminal Code, R.S.C. 1985, c. C-46, applicable to “any thing seized under the [CSDA]”. Under s. 490 of the Code, nothing can be detained by the Crown for more than three months unless an application under s. 490(2) to extend the period is granted. The expiry date approaching, the Crown applied to a Provincial Court judge under s. 490(2) of the Code to extend the detention. Raponi in response filed a motion for return of the money on the ground that it had been improperly seized contrary to ss. 8 and 9 of the Canadian Charter of Rights and Freedoms.

[4] Stevens-Guille Prov. Ct. J. dismissed the Crown’s application: (2001), 291 A.R. 139, 2001 ABPC 30. The money had, in his view, been seized without reasonable grounds and the resulting illegal detention could not be extended under s. 490(2). Crown counsel took the position that “once the police are not entitled to further detention, [the money] must go back.” Stevens-Guille Prov. Ct. J. therefore ordered the money returned to Raponi. On an appeal by the Crown to the Court of Queen’s Bench, Langston J. held that there was no appeal from the finding of Stevens-Guille Prov. Ct. J. that further detention was not warranted under s. 490(2), and that the Crown had not established jurisdictional error: (2002), 91 C.R.R. (2d) 361, 2002 ABQB 67. Even if the Provincial Court judge may be assumed to have acted under s. 490(9), said Langston J., the Crown had not established that Raponi’s possession had been unlawful, and the Provincial Court judge therefore committed no error in ordering return of the money to Raponi.

[5] The Alberta Court of Appeal rejected Raponi’s argument that the appeal was improperly brought, allowed the Crown’s appeal, vacated the orders of Stevens-Guille Prov. Ct. J. and Langston J., and directed that a hearing be conducted under s. 490(9) of the Code to determine whether the money should be returned to the appellant or forfeited to the Crown: (2003), 174 C.C.C. (3d) 397, 2003 ABCA 128.

[6] Raponi now appeals to this Court. At issue are the powers of Provincial Court judges to make orders such as this one, the proper way to proceed when a seizure like this is disputed, and what appeals, if any, lie from the initial order of the Provincial Court.

[7] The subject of all this litigation, the bag of money, remains in the hands of the Crown four years after its seizure. No charges have been laid against Raponi, and we still do not know whether the money is in fact connected to a crime.

II. The Code Procedure for Dealing With the Proceeds of Crime

[8] The Code sets up a procedural scheme for dealing with the seizure, detention and release of the proceeds of crime. It also applies to seizures made under the CDSA.

[9] Section 11(7) of the CDSA permits a peace officer to search a place and seize controlled drug-related evidence without a warrant “if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one”. The required condition for obtaining a warrant is the existence of reasonable grounds (s. 11(1)).

[10] Section 489.1 requires the police officer, if he or she believes that there is a dispute as to who is lawfully entitled to possession of the thing, or that its continued detention is required for the purposes of an investigation or proceeding, to make a report to a justice.

[11] Section 490(1) requires the justice to whom the report is made either to order the return of the thing or order its detention if satisfied that it is required for the purposes of investigation or for a proceeding.

[12] Section 490(2) provides that nothing shall be detained for more than three months, unless detention is warranted “having regard to the nature of the investigation” or for a proceeding that has been instituted. An order can then be made for further detention.

[13] Section 490(7) permits an application by the person from whom a thing was seized for the return of the items seized after three months, and s. 490(8) permits this before expiry of the three-month period upon proof of hardship.

[14] Section 490(9) permits the Crown to apply for forfeiture and a cross-application for return of the property to the person who is lawfully entitled to possess it. If possession of it by the person from whom it was seized is unlawful or if it was seized when not in the possession of any person, and the lawful owner is unknown, the judge may order that the item be forfeited to the Crown. Section 490(9) says nothing about returning the item seized on the basis that it was unlawfully seized.

[15] Section 490(10) permits a person who claims to be lawfully entitled to the thing but who is not the person from whom it was seized to make an application for its return at any time upon three clear days notice.

[16] In summary, the Code provides a number of mechanisms for the return of property in different circumstances: ss. 490(7), (8), (9) and (10). However, s. 490(2) is not one of them. Nor is there an appeal from an order made under s. 490(2). Section 490(17) provides for appeals from orders made under s. 490(9) but not from s. 490(2). The appeal is to be brought before an appeal court as defined in s. 812 of the Code. For Alberta, this is the Court of Queen’s Bench.

[17] It should be noted that this statutory scheme does not preclude the possibility of recourse to the plenary jurisdiction of the Court of Queen’s Bench, as will be discussed later.

III. The Anatomy of the Case

[18] The procedures followed in this case failed to comply with the statutory scheme in a number of respects.

[19] First, the police officer who made the seizure without warrant did not comply with the requirements of s. 11 of the CDSA. He lacked reasonable grounds to believe that the money in the bag was obtained in the commission of an offence or would afford evidence of the commission of an offence. All he had was suspicion, as he indicated in his affidavit in support of the s. 490(2) application. Without reasonable grounds, the seizure did not comply with s. 11 of the CDSA. There is no real dispute about this.

[20] The Crown brought an application before the Provincial Court to extend the time of detention beyond three months under s. 490(2). This is the correct section under which to apply for an extension and the Provincial Court was the right place to go, acting under that section, assuming for the purpose of argument that unlawfully seized things fall under s. 490 of the Code. However, Raponi questions whether s. 490(2) applied. The argument is that since the money was not seized lawfully, it does not fall under the Code’s scheme.

[21] Raponi’s cross-application in Provincial Court asking for the return of the money on the ground it had been improperly seized contrary to ss. 8 and 9 of the Charter is more problematic. His application took place in the context of a s. 490(2) hearing. Stevens-Guille Prov. Ct. J., acting on the s. 490(2) application, held that s. 490 was not engaged at all because the seizure was unlawful. The judge did not rely on the Charter in reaching this conclusion. He held that “implicitly, if not expressly, the Criminal Code of Canada confer[red] on [him a] jurisdiction to make an order for the return of what is found not to be lawfully detained” (para. 45). The difficulty, of course, is that the judge’s exercise of jurisdiction required a basis in the Code. However, s. 490(2) says nothing about the return of things or remedies for unlawful seizure, and only grants power to order an extension of time.

[22] The Crown takes the position that notwithstanding that they had thought they were proceeding under s. 490(2), the order was really made under s. 490(9), which refers to the return of seized property. The Crown says this despite the fact that s. 490(9) does not purport to deal with the return of goods on the ground of unlawful seizure. Asserting the order was made under s. 490(9) permits the Crown to argue that it had a right of appeal from the order under s. 490(17), which it would not have from an order under s. 490(2). The Crown argues that this supposed s. 490(9) order must be set aside because it received no notice that the Raponi was proceeding under s. 490(9) — hardly surprising since Raponi himself did not think he was proceeding under s. 490(9) — and that the Crown thus had no opportunity to cross-apply for forfeiture. Raponi argues that the idea the order was made under s. 490(9) is pure fiction, and that the Crown’s appeals are consequently invalid since there is no appeal from a s. 490(2) order.

[23] The submission the Provincial Court judge was really acting under s. 490(9) raises the further question of whether a Provincial Court judge has the power under this section to consider the issue of unlawfulness and Charter breach, and grant a remedy under s. 24 of the Charter. If the Provincial Court judge were found to have this power, the Crown argues that he did not exercise it since he did not even consider s. 24 in making his decision to order the money returned.

[24] Raponi too asks us to enter the world of fiction. While seeking to benefit from the lack of statutory appeal from s. 490(2) orders, he now says the Provincial Court judge was acting neither under s. 490 of the Code nor under the Charter, but simply on the basis of a common law power inherent in any judge to order the return of goods that have been wrongfully taken.

[25] The Crown appealed to the Court of Queen’s Bench from the Provincial Court’s order for the return of the money. The Court of Queen’s Bench confirmed the order. The difficulty concerning under what authority the Provincial Court judge was acting — common law or s. 490(9) — is replicated at this stage. If the Provincial Court judge were acting under s. 490(2), as he purported to be, there was no appeal from his order. If the Provincial Court judge’s order were made under s. 490(9), then the appeal was properly brought under s. 490(17). Langston J. held that the order must be treated as made under s. 490(9), that the Provincial Court judge could consider unlawfulness under that section, and that his conclusion that the money should be returned was correct.

[26] The Court of Appeal, like Langston J., held that the order must be treated as though it had been made under s. 490(9), and that a judge under s. 490(9) is entitled to consider the lawfulness of the seizure but must then consider if he or she has jurisdiction to order s. 24(2) Charter remedies. It further held that the Crown had been deprived of the right to argue for forfeiture by lack of notice that the matter was proceeding under s. 490(9). It concluded that the lack of notice and the Provincial Court judge’s failure to consider s. 24(2) of the Charter required a s. 490(9) rehearing.

IV. Legal Analysis of the Issues

[27] The preceding discussion suggests the following issues.

1. Can a Provincial Court judge order the return of goods on the grounds of unlawful seizure under s. 490 of the Code?

(a) under s. 490(2)?

(b) under s. 490(9)?

2. If a Provincial Court judge has no power to order return of property for unlawfulness under s. 490 of the Code, can he or she do so on some other basis?

3. If the answer to these questions is no, what was the proper procedure and what should be done now?

A. Can a Provincial Court Judge Order the Return of Goods on the Grounds of Unlawful Seizure Under Section 490 of the Code?

[28] Section 490, while purporting to provide a complete scheme for dealing with property seized in connection with crime, does not tell us what happens when the seizure fails to comply with the requirement of reasonable grounds and is hence unlawful.

[29] The first question is whether a Provincial Court judge can order improperly seized items returned under s. 490(2). The short answer to this question is no. While the Provincial Court judge acted in a s. 490(2) hearing, that section deals only with extending the time of detention beyond three months. The only question to be considered by the Provincial Court judge is whether continued detention is required by a proceeding that has been instituted or by an investigation.

[30] The next question is whether a Provincial Court judge can order improperly seized items returned under s. 490(9). The Court of Queen’s Bench and the Court of Appeal answered affirmatively. Section 490(9) permits return of items where (1) the time for detention has expired and proceedings have not been instituted, or (2) where the time has not expired but the item is not required for an investigation or proceeding — basically property management functions that do not raise the propriety of the seizure of property. I do not foreclose the possibility that in an appropriate case a judge acting “under s. 490(9) might be a court of competent jurisdiction” to grant remedies under s. 24 of the Charter: see Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863; R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81; and R. v. Hynes, [2001] 3 S.C.R. 623, 2001 SCC 82. Here the Crown conceded, on the basis of R. v. Daley (2001), 156 C.C.C. (3d) 225, 2001 ABCA 155, that Charter claims can be considered at s. 490(9) hearings. Consequently, the issue as to whether a justice on a s. 490(9) hearing constitutes a “court of competent jurisdiction” for the purpose of Charter motions was not argued. This, plus the fact that all motions in this case were brought under s. 490(2) and not under s. 490(9), suggests that consideration of the precise powers of a Provincial Court judge under s. 490(9) should be left for another day.

[31] I conclude that the Provincial Court judge in this case had no power under s. 490(2) of the Code to order the money returned for unlawful seizure.

B. Can a Provincial Court Judge Order the Return of Goods Unlawfully Seized on Some Other Basis?

[32] Raponi’s initial motion was a cross-application on a Crown motion under s. 490(2) of the Code. It was styled as an application for Charter relief. However, Raponi now seeks to support the order for return of the money on a different basis. He argues that because the seizure did not comply with the statutory requirements for warrantless searches, it falls outside the scheme the Code sets up for dealing with crime-related property and must be judged on the basis of common law powers. He asserts that at common law adjudicators confronted with a situation where property has been taken unlawfully have the power to order the property returned to its rightful possessor. Raponi’s argument reflects the Provincial Court judge’s holding that he possessed an implied power to order the return of unlawfully seized goods under the Code.

[33] A number of objections can be raised to this position. First, it ignores the fact that before a judge can make any order, there must be a legal substratum or vehicle to support the order. The legal vehicle for the return of goods unlawfully taken or held is the civil action of replevin before the Court of Queen’s Bench. Another vehicle might be a Charter application to a judge of the Court of Queen’s Bench. Yet other possibilities may exist. The point is simply that a claim must be grounded in a legal cause of action that permits the judge to grant a remedy.

[34] Second, even if the difficulty of a proper cause of action or source of law could be met, a Provincial Court judge has no jurisdiction to deal with such an action, since the Provincial Court is a court of statutory not inherent jurisdiction. No remedy was available to Raponi in Provincial Court: any cause of action of which he could have availed himself would have been located in a superior court.

[35] I conclude that the Provincial Court judge had no power to order the return of the money outside the Code. Even though it has not been validly challenged and hence stands for the time being, the Provincial Court judge’s order for the return of the money to Raponi was made without jurisdiction, and is liable to be set aside in an appropriate proceeding.

C. What Was the Proper Procedure and What Should Be Done Now?

[36] The proper procedure for obtaining an order for return of the monies was an application for replevin to the Court of Queen’s Bench. The appellant Raponi did not make such an application. (The proceedings by way of appeal to the Queen’s Bench cannot be considered to be such an application.)

[37] The proper procedure by which to challenge the order of the Provincial Court judge was a motion for certiorari seeking to vacate the order for lack of jurisdiction. The Crown failed to make such a motion, purporting instead to appeal under s. 490(9).

[38] Both parties proceeded on the wrong basis.

[39] The appellant did not follow the proper procedure and although the Provincial Court judge made an order for the return of the money, later upheld in the Court of Queen’s Bench, that order under s. 490(2) must be a nullity. An order for the return of the money requires an application to a court of competent jurisdiction, of the sort mentioned earlier, and not under s. 490(2). The order in this appeal was made pursuant to s. 490(2) and it cannot now be treated as though it were made on a different basis.

[40] The question then is whether the Court of Appeal had jurisdiction to set aside the orders. The Code provides no appeal from an order under s. 490(2). It follows that the Court of Appeal had no jurisdiction to set aside the Provincial Court’s erroneous order or the judgment of the Court of Queen’s Bench, which was not properly seized of an appeal.

[41] Since it has not been validly appealed, the Provincial Court judge’s order for the return of the money to Raponi remains in force. The Crown should have instituted an action for certiorari seeking to have the Provincial Court judge’s order set aside for want of jurisdiction.

[42] I add this. It is regrettable that an improper seizure of money which even today the Crown cannot say is connected to any crime, has occasioned so much expense and consumed so much energy. Both parties took the wrong procedures. Had the appellant brought an action for replevin or Charter review to the Court of Queen’s Bench instead of his cross-motion under s. 490(2), things might have been otherwise. The fault of the Crown is even greater: first it seized the money, and then when an order was made for its return, followed a non-existent route of appeal. The point is not to cast blame, but to seek to improve this aspect of the administration of justice. Parliament may well wish to consider whether s. 490 should be amended to provide a clear route of challenge and appeal where it is alleged that property is seized in an unlawful manner.

V. Conclusion

[43] The appeal is allowed, and the order of the Court of Appeal set aside without prejudice to the parties’ rights to proceed in the proper manner. Each party will bear its own costs.

APPENDIX

Legislative Provisions

Controlled Drugs and Substances Act, S.C. 1996, c. 19.

11. (1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that

(a) a controlled substance or precursor in respect of which this Act has been contravened,

(b) any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed,

(c) offence‑related property, or

(d) any thing that will afford evidence in respect of an offence under this Act

is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it.

(5) Where a peace officer who executes a warrant issued under subsection (1) has reasonable grounds to believe that any person found in the place set out in the warrant has on their person any controlled substance, precursor, property or thing set out in the warrant, the peace officer may search the person for the controlled substance, precursor, property or thing and seize it.

(7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one.

13. (1) Subject to subsections (2) and (3), sections 489.1 and 490 of the Criminal Code apply to any thing seized under this Act.

(2) Where a thing seized under this Act is offence‑related property, sections 489.1 and 490 of the Criminal Code apply subject to sections 16 to 22 of this Act.

Criminal Code, R.S.C. 1985, c. C-46

490. (1) Subject to this or any other Act of Parliament, where, pursuant to paragraph 489.1(1)(b) or subsection 489.1(2), anything that has been seized is brought before a justice or a report in respect of anything seized is made to a justice, the justice shall,

(a) where the lawful owner or person who is lawfully entitled to possession of the thing seized is known, order it to be returned to that owner or person, unless the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the detention of the thing seized is required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or

(b) where the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the thing seized should be detained for a reason set out in paragraph (a), detain the thing seized or order that it be detained, taking reasonable care to ensure that it is preserved until the conclusion of any investigation or until it is required to be produced for the purposes of a preliminary inquiry, trial or other proceeding.

(2) Nothing shall be detained under the authority of paragraph (1)(b) for a period of more than three months after the day of the seizure, or any longer period that ends when an application made under paragraph (a) is decided, unless

(a) a justice, on the making of a summary application to him after three clear days notice thereof to the person from whom the thing detained was seized, is satisfied that, having regard to the nature of the investigation, its further detention for a specified period is warranted and the justice so orders; or

(b) proceedings are instituted in which the thing detained may be required.

(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, or

(d) if possession of it by the person from whom it was seized is unlawful and the lawful owner or person who is lawfully entitled to its possession is known, order it to be returned to the lawful owner or to the person who is lawfully entitled to its possession,

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 of any person, and the lawful owner or person who is lawfully entitled to its possession is not known, order it to be forfeited to Her Majesty, to be disposed of as the Attorney General directs, or otherwise dealt with in accordance with the law.

(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.

Appeal allowed.

Solicitors for the appellant: Royal, McCrum, Duckett & Glancy, Edmonton.

Solicitor for the respondent: Attorney General of Canada, Ottawa.

[^1]: Arbour J. took no part in the judgment.