COURT FILE NO.: 1942/12
DATE: 20121221
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
NORA LAPP, ARIELLE ELBAZ, and MICHAEL McEACHREN, for the Public Prosecution Service of Canada
Respondent
- and -
GEORGE BARTHORPE
SUSAN J. VON ACHTEN, for the Appellant
Appellant
EDWARD M. HYER, for Ally Credit Canada Limited
REASONS FOR JUDGMENT
[On appeal from the decision of the Honourable S.R. Clark, dated April 5, 2012]
DURNO, J.
[1] The appellant was arrested while driving his pick-up truck. A search of the truck incident to arrest located ninety oxycondone pills. He was charged with possessing oxycodone for the purpose of trafficking and the vehicle was seized as offence-related property. The assignee of the sales contract by which the appellant bought the truck applied for an order returning the vehicle to the company.
[2] On the date the application was to be heard, the appellant’s counsel’s secretary appeared, requested an adjournment and attempted to file responding material. The application judge did not accept or consider the responding material, refused the adjournment application and ordered the truck returned to the assignee.
[3] The appellant appeals seeking to quash the Order. He submits that the information before the application judge was insufficient to grant the order, that the application judge erred in refusing to grant the adjournment, that there was no basis upon which the truck could have been seized, that the Ontario Court of Justice has no jurisdiction to deal with property and ownership issues, and that the issues of ownership and lawful entitlement to possession of the truck should be determined after his trial.
[4] For the following reasons, the appeal is dismissed.
The Factual Background
The 2011 Dodge Ram Pick-up Truck
[5] On November 16, 2011 the appellant bought a 2011 Dodge Ram pick-up truck by way of a conditional sales contract from Lindsay Dodge Chrysler 1990. The contract was assigned and the vehicle sold to Ally Credit of Canada Limited (Ally). Ally obtained all the seller’s rights including the right to possession of the vehicle upon any default by the buyer. Pursuant to the contract, the title to the vehicle remained with the seller until all of the monies payable under the contract were fully paid. (Clause 18 of the contract) The contract would be in default if any provision of the contract was breached or the seller deemed itself insecure. Upon default, the total amount financed pursuant to the contract, would become due and payable. In addition, the seller, upon default, would have the right to sue for the amount owing and/or to take possession of the vehicle. (Clause 16 of the contract) The contract forbade the illegal use of the vehicle or the creation of any charges, liens or encumbrances in relation to it. (Clause 19 of the contract)
The Appellant’s Arrest
[6] On January 17, 2012, the appellant was stopped by police while driving the truck. He was arrested and charged with possession of oxycodone for the purpose of trafficking. Pursuant to a wiretap authorization, minutes before the appellant was stopped, he was recorded speaking to Bruno Caruso by telephone. Caruso confirmed the appellant needed $1,170 for “ninety of the forties.” Caruso said he had the money and was counting it out. The appellant told Caruso he would meet him at 6:00 p.m.
[7] The police searched the truck and found ninety, forty milligram oxycodone tablets in an unlabelled prescription bottle. The officers seized the vehicle as offence-related property under the Controlled Drugs and Substances Act, S.C. 1996, c.19. If the appellant were to be convicted of the drug offence, the truck would be available for a PPSC forfeiture application. As required, the police reported the seizure to a justice of the peace and the vehicle was ordered detained pending completion of the criminal law proceedings. On January 19, 2012, the OPP were granted a Management Order with respect to the vehicle that required the Seized Property Management Directorate of Public Works and Government Services Canada to manage and otherwise deal with the vehicle. The appellant and Ally were given copies of the Management Order.
The Application
[8] Ally applied for the return of the truck pursuant to s. 490(10) and (11) of the Criminal Code and on March 21, 2012 served the appellant personally for the April 5, 2012 application date.
[9] On April 5, 2012, counsel for Ally told the application judge that he had been contacted the day before by the appellant’s counsel, Susan Von Achten, and asked if he would consent to an adjournment because Ms. Von Achten had mistakenly thought the application was being heard the next day, Good Friday. Ms. Von Achten’s assistant appeared and asked for an adjournment to the next week, as Ms. Von Achten had a doctor’s appointment that day and was unable to attend. She told the application judge Ms. Von Achten had prepared a response to Ally’s application, which had been served on the Public Prosecution Service of Canada (PPSC) and Ally. She continued, “If Your Honour would like, I can hand up a copy to him.” The trial judge never responded to the request, instead asking when the response was served. Counsel’s assistant told His Honour the response had been served that morning.
[10] Ms. Elbaz, appearing for the PPSC, told His Honour she had been communicating with the appellant’s counsel since February of 2012 about the truck, but had only been advised of the adjournment request the day before the application was returnable.
[11] When counsel’s assistant was asked if she wished to add any comments she said,
No, Your Honour, I have no other instructions from Ms. Von Achten, other than to seek an adjournment to a date when she’s available to attend to speak to the matter.
[12] The application judge held:
Well certainly the court endeavors to give every interested party an opportunity to be heard on any proceedings, any application before the court. And on the face of things, this should be no different. However, I must say I’m satisfied, having heard the other information that Ms. Von Achten is, is representing Mr. Barthorpe, that she has been made aware of this particular application, and was served on March 21.
This being April 5, that would have given her sufficient time to have appreciate (sic) the import of this application and to have made her position known and have filed -- served and filed responding material accordingly. There doesn’t seem to be any indication or any correspondence about this matter being adjourned or, or seeking the permission of other parties to adjourn this.[^1]
Both the Crown and counsel for Ally Credit Union / Ally are here today, ready to proceed. The Crown consents to the application of the car, the subject’s car being returned to Ally. Ally’s material on their face seem to support an appropriate colour of right to that, to that vehicle, and although I appreciate that I haven’t -- do not have the materials that Ms. Von Achten has prepared and wished to file with the court, this is not quite a too-little-too-late situation, but I have the weight of this application being against Ms. Von Achten, so, I’m respectfully not prepared to grant the adjournment but have the matter proceed. And I take it, it does then it’s really a consent matter just between the two of you?
And Ms. Von Achten can take further instructions and seek whatever remedies she feels are appropriate. So I -- the application for an adjournment by Ms. Von Achten is denied and the matter will proceed.
[13] Counsel for the PPSC consented to the Order on the understanding Ally would not return the vehicle to the appellant but would sell it and provide the net proceeds to the Crown in lieu of the truck itself for the purpose of the forfeiture application. His Honour signed the draft orders including that Ally was entitled to possession of the truck and that it was to be returned to Ally.
[14] While the appellant’s responding material was never filed in the Ontario Court, given the appellant’s arguments that the application should not have been granted, it is appropriate to examine the material filed on behalf of Ally and those the appellant sought to rely upon.
The Ally Application Record
[15] Ally’s material established that Lindsay Dodge Chrysler Jeep, the seller, and George Barthorpe and Glenn Barthorpe[^2], as co-buyers, entered a conditional sales contract for the truck on November 16, 2011. In accordance with the provisions of the contract, Ally became the owner of the vehicle and entitled to possession of the truck on any default by the buyer. Title to the truck would not pass to the buyer until all monies owing were fully paid. The outstanding balance was $74,317.88 payable through bi-weekly payments of $408.34.
[16] Ally submitted the appellant had defaulted under two terms of the contract. If either was established, they were entitled to possession of the truck. First, clause 16 provided that if the seller deemed itself “insecure,” it shall be conclusively deemed that the buyer was in default and Ally may take possession of the vehicle. Ally submits that they are ‘insecure’ because the appellant no longer has possession of control of the truck and because of the Management Order.
[17] Second, clause 19 provided that the buyer agreed not to sell or transfer the truck, create or permit to continue any charge, lien or encumbrance of any kind upon the vehicle and not to use it illegally or for hire. With respect to the illegal activity clause, after referencing the Management Order, Ally’s affidavit included the following:
… the vehicle was seized in connection with an alleged offence. Based on my discussions with Detective Constable John Lyall of the Ontario Provincial Police, I believe that the alleged offence was drug related.
By virtue of using the vehicle for illegal activities and have it seized, the buyer has defaulted under clauses 16 and 19 of the contract.
[18] The Management Order states the justice of the peace was satisfied the requirements of sections 6 and 7 of the Seized Property Management Act, S.C. 1993, c.37 have been fulfilled. Section 6 states that an application can be heard at the same time as one under s. 490(1)(b) of the Criminal Code. Section 7 permits a Management Order to be made if the justice is “of the opinion that the seized property may be required for the purposes of any provision respecting forfeiture in any Act of Parliament.”
[19] Seized property is defined as “any property seized under the authority of any Act of Parliament or pursuant to any warrant or any rule of law in connection with any designated offence”.
[20] A designated offence has the same meaning as in s. 462.3(1) of the Criminal Code: a) any offence that may be prosecuted as an indictable offence under this or any other Act of Parliament, other than an indictable offence prescribed by regulation, or b) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counseling in relation to, an offence referred to in para. (a).
[21] Ally submits that using the truck to transport illegal drugs puts the appellant in default on the contract and Ally is entitled to possession of the truck.
The Appellant’s Responding Material
[22] During submissions on the appeal, Ms. Von Achten did not have a copy of the responding material she had sought to have filed before the application judge on April 5, 2012. She submitted that it dealt with whether or not there was any basis upon which the truck could have been seized because of her belief no drugs were found in the truck. All counsel agreed that the responding material should be filed and considered. The responding material was provided by counsel for Ally. While counsel were given an opportunity to provide further submissions, none were received.
[23] The Notice of Application, styled as a “Reply to Notice of the Return of Seized Property and Cross-Claim by Respondent George Barthorpe” was returnable Thursday, April 11, 2012. Ally’s application was returnable Thursday, April 5.
[24] The application sought the return of the vehicle to the appellant upon payment into court of $500 “as monies subject to the claim for forfeiture of the said vehicle” or, in the alternative, that the vehicle remain in the custody of the Minister of Public Works and Government Services of Canada pending the determination of the Crown’s application for forfeiture as offence related property. There was no reference to counsel’s view that no drugs were found in the truck and no submissions in relation to Ally’s argument that the appellant was in default under the contract.
[25] The grounds for the application assert the appellant is the lawful owner of the vehicle and entitled to lawful possession. He submits there is no prejudice to Ally if the vehicle is returned to the appellant or remains with the government because all monthly payments are being made. The $500 deposit was reflective of the down payment upon purchase, the equity in the vehicle when it was seized. The appellant submits that he is employed full-time and the loss of the vehicle to him and his family is placing the family under great stress and pressure.
[26] Finally, the application includes the following: The longer the vehicle remains parked the more deterioration and depreciation of the vehicle will occur, which is to no one’s advantage.
[27] The wording of the Notice of Application is basically repeated in an “information and belief” affidavit sworn by counsel’s assistant who appeared on August 5, 2012.
The Grounds of Appeal
Did the material filed by Ally provide a sufficient basis upon which the make the Order?
[28] Regardless of whether the adjournment should have been granted, if Ally’s material did not provide a sufficient basis upon which the application judge could grant the order, the appeal succeeds. While not included as a ground of appeal, in the course of submissions, the appellant argued the material was deficient. Ally and the PPSC submit there were sufficient grounds established. While more evidence has been presented on the appeal in relation to the seizure, disclosure and an intercepted private communication, this ground is determined on what was before the application judge, not on the enhanced record on appeal.
[29] Given the wording of the Order obtained and Ally’s material in support of the application, the issue is whether Ally had established on a balance of probabilities that Ally was lawfully entitled to possession of the truck. Put differently, was there evidence upon which the application judge could conclude Ally was ‘insecure” and the contract breached?
[30] While somewhat skeptical initially, on further review, I am persuaded the material filed provided a sufficient basis upon which the application judge could conclude Ally was “insecure” and make the Order. In relation to the contractual default based on the Management Order, the material identified the contract’s clauses that were breached and a copy of the Management Order was provided. Subject to the other grounds of appeal, that evidence established Ally’s claim to possession of the truck.
[31] In relation to the “illegal use” clause, the affidavit referred to the appended Management Order and continued, “As appears from [the Management Order], the vehicle was seized in connection with an alleged offence. Based on my discussions with Detective Constable John Lyall of the Ontario Provincial Police, I believe that the alleged offence was drug related.” While Ally submitted in their factum and in argument that using the truck to transport drugs was illegal, there was no evidence before the application judge that the truck was used for transporting drugs. Similarly, there is no indication in the affidavit or elsewhere that the officer seized the truck as “offence related property”, under what legislation it was seized or for what reasons the vehicle was seized.
[32] While the Management Order noted the vehicle was “seized property,” that term means any property seized under the authority of any Act of Parliament or warrant or any rule of law in connection with any designated offence. Certain offences are designated offences, including any offence that can be prosecuted by indictment under any Act of Parliament. The only reference to an offence in the affidavit is that it was drug related. On that record, I am not persuaded the application record before the application judge established any illegal use of the truck. However, that Ally was ‘insecure” was sufficient to support the Order.
Did the trial judge err in refusing to grant the adjournment?
[33] The appellant submits the application judge erred in refusing his adjournment application. The PPSC and Ally submit His Honour properly exercised his discretion in refusing the adjournment. In the alternative, the PPSC submits that regardless of whether the adjournment should have been granted, the result of the application would inevitably have been the same. The appellant breached the contract and Ally was entitled to possession of the truck.
[34] Most of the authorities relied upon by counsel were adjournment applications in criminal trials. In R. v. Hazout (2005), 199 C.C.C. (3d) 474, the Court of Appeal held:
31 When an accused person requests an adjournment of his or her trial on the date set for trial, the trial judge is required to balance two rights. The first is the accused's constitutional right to be represented by counsel including, when possible, counsel of choice. This is a fundamental right vigorously guarded by the court. The second is the trial judge's right to control the trial process, a right that includes a wide discretion to grant and refuse adjournments. An appellate court should only interfere with a trial judge's balancing of these rights if the refusal of an adjournment deprives an accused of a fair trial or the appearance of a fair trial. See R. v. McCallen (1999), 43 O.R. (3d) 56 (C.A.); R. v. Nichols (2001), 148 O.A.C. 344, leave to appeal to S.C.C. dismissed [2001] S.C.C.A. No. 508, [2002] 1 S.C.R. viii.
[35] Applying Hazout, the test on appeal is not whether the appellate judge or another judge would or might have granted the adjournment. It is whether the appellant has shown the application judge’s refusal to grant the adjournment deprived him of a fair hearing or the appearance of a fair hearing.
[36] While this proceeding was under the Criminal Code and the vehicle was seized under the Controlled Drugs and Substances Act, this was not a trial. The application was more akin to a civil motion in relation to property. In the civil law context, the Court of Appeal has examined the applicable principles when adjournments are sought in civil trials in Graham v. Vandersloot 2012 ONCA 60 at para. 5:
[5] Adjournment decisions are highly discretionary and appellate courts are rightly reluctant to interfere with them. Laskin J.A. succinctly summarized the operative legal principles in Khimji v. Dhanani (2004), 69 OR. (3d) 790 (C.A.). Although he was in dissent, the majority accepted his articulation of the statement of principles. At paras. 14 and 18 he said:
A trial judge enjoys wide latitude in deciding whether to grant or refuse the adjournment of a scheduled civil trial. The decision is discretionary and the scope for appellate intervention is correspondingly limited. In exercising this discretion, however, the trial judge should balance the interests of the plaintiff, the interests of the defendant and the interests of the administration of justice in the orderly processing of civil trials on their merits. In any particular case several considerations may bear on these interests. A trial judge who fails to take account of relevant considerations may exercise his or her discretion unreasonably and if, as a result, the decision is contrary to the interests of justice, an appellate court is justified in intervening. In my opinion, that is the case here. [Emphasis added.]
I begin with the overriding goal of our modern Rules of Civil Procedure: to ensure as far as possible that cases are resolved on their merits. This goal is expressly set out in Rule 2.01(1)(a), which gives a judge power to grant any relief necessary “to secure the just determination of the real matters in dispute”. Courts should not be too quick to deprive litigants of a decision on the merits. The trial judge does not appear to have sufficiently taken into account that his order deprived the parties, especially the appellant, of a determination of “the real matters in dispute.”
[37] Here, there were factors which might have led to a different result including that neither the appellant nor his counsel played any role in selecting or agreeing to the application date in advance, the request was for a short adjournment to the next week, the appellant had prepared responding materials that were never viewed by the application judge apparently because they were not given to Ally and the prosecution until the morning of the application and there appears to be no rule when responding material was required to be filed. Viewed in isolation, those factors would support an adjournment.
[38] However, the application judge had reviewed the material and concluded “Ally’s material on their face seem to support an appropriate colour of right to that vehicle,” and “the weight of the application was against Ms. Von Achten.” His Honour asked if the appellant’s agent wanted to add anything and was told she had “no other instructions from Ms. Von Achten other than to seek an adjournment to a date when she’s available.” Counsel’s agent said she had a medical appointment on the application date. In her appeal factum, the appellant says Ms. Von Achten was in another court and could not attend on April 5, 2012. During submission on the appeal, counsel said she was in another court and had a medical appointment. There was no explanation why the responding material was not served and filed in advance of the application date when counsel was aware of the application about two weeks earlier, no evidence why the appellant did not bring an adjournment application with a supporting affidavit, and counsel’s assistant said nothing to dispute what Ally’s and the PPSC’s counsel told the Court regarding the appellant’s counsel’s involvement before the application date. While not specifically stated on the record,[^3] it is implicit that counsel knew before the application date that her adjournment request would be opposed. Finally, to permit counsel to file “eleventh hour” responding material and seek an adjournment without proper notice or supporting material with no explanation for the timing of the adjournment application could be viewed as sanctioning and/or encouraging a lackadaisical approach to counsel’s responsibilities to the Court and other counsel involved in the proceeding.
[39] On this record, it may very well have been prudent for the application judge to at least look over the appellant’s responding material before considering the adjournment application. However, His Honour had reviewed the material in advance and concluded Ally’s material “seems to support an appropriate colour of right” and that the “weight of the application” was against the appellant. His Honour ultimately found Ally’s claim was established. He also factored into the decision the conduct of the appellant’s counsel, the late serving of responding material and the last-minute oral adjournment request.
[40] In assessing this ground of appeal, it is appropriate to consider what the appellant sought to argue in his responding material – that he should deposit $500 and get the truck back or the truck should remain with the government until after the trial. The material did not address Ally’s bases for arguing the contract was breached. Put simply, the appellant would have provided no answer to Ally’s claim. Applying the criminal trial criteria, in all the circumstances, I am not persuaded the appellant was deprived of a fair hearing or the appearance of a fair hearing when His Honour refused to adjourn the application.
[41] Applying the civil trial criteria, while His Honour clearly did not consider the appellant’s responding material, he gave counsel’s agent an opportunity to add further submissions and received none. The application judge had reviewed Ally’s material and found they provided a basis for the Order sought. While other judges would have granted the adjournment, in these particular circumstances, I am not persuaded applying the civil trial criteria that His Honour erred. It was within His Honour’s discretion to refuse the adjournment application and to decline to look at the responding material. Given what was in that material, it cannot be said the application judge exercised his discretion unreasonably, nor was his decision contrary to the interests of justice.
[42] Given the conclusion on the first two grounds of appeal, it is not strictly necessary to address the other grounds advanced. However, if I am wrong on these grounds and to complete the record, I will address the other issues raised by the appellant.
Did the arresting officer have grounds to seize the truck?
[43] In the appellant’s factum, he argued there was no basis upon which the truck could be seized because the vehicle was not obtained by the commission of an offence, it was not used in the commission of an offence, would not afford any evidence of a crime, and no drugs were found in the vehicle. Accordingly, it was not used in the commission of an offence. This issue was not raised in the appellant’s responding material. In effect, the appellant raising the content of disclosure introduced a new issue and effectively fresh evidence on the appeal. In these circumstances, the PPSC filed additional material to address the issue of whether the disclosure showed drugs were seized and the intercepted private communication indicated earlier. In these circumstances, it is appropriate to address this issue on the enhanced record on appeal.
[44] The truck was seized as “offence related property” under the Controlled Drugs and Substances Act. Offence related property means, with the exception of a controlled substance, any property, within or outside Canada,
a) By means of or in respect of which a designated substance offence is committed,
b) That is used in any manner in connection with the commission of a designated substance offence, or
c) That is intended for use for the purpose of committing a designated substance offence.
[45] Possession of the purpose of trafficking is a “designated substance offence.”
[46] The PPSC submits the truck is the means by which the appellant is alleged to have possessed the oxycodone. It is alleged he used the truck to transport the drugs for sale. Therefore, it was used in the commission of a designated substance offence.
[47] While there remains a dispute about whether or not the page of disclosure that indicated ninety oxycodone tablets were found in the truck was given to Ms. Von Achten, it is now clear the police evidence would establish on a balance of probabilities that there was a drug related conversation between the appellant and Caruso shortly before his arrest, drugs were found in the vehicle and the truck was used in the commission of an offence. The officer had the grounds to seize the truck.
Should the application be adjourned until the completion of the appellant’s trial?
[48] The appellant submits that since he continues to make all monthly payments on the truck that there is no prejudice to Ally to adjourn the determination of whether the truck should be returned to Ally until after the trial. Ms. Von Achten says Ally’s application is premature. It should be determined after a court concludes whether the PPSC has established the appellant is guilty, not before. I disagree for the following reasons.
[49] First, the submission ignores that Ally has two bases upon which the application was based. The first is that Ally is ‘insecure’ by reason of the Management Order. Ally’s collateral is no longer in the possession or under the control of the buyer. That “stand alone” ground, based entirely on a breach of the contract, does not involve a determination whether the appellant committed an offence or whether the truck was offence related property. At this time, the truck is subject to a Management Order which results in Ally’s claim of insecurity being clearly established. Section 490(11) is mandatory, once it is established the property is not required for any of the reasons indicted in s. 490(1-4) and the applicant is lawfully entitled to possession as Ally is, the order must be made unless the property was forfeited, sold or otherwise dealt with. If it were determined in the future that the OPP lacked grounds to seize the truck, the appellant’s remedies lie in civil proceedings.
[50] Even with respect to Ally’s alternative basis which I have found was not established before the application judge, that the appellant used the vehicle for illegal activity, the legislation permits an application judge to make findings, on a balance of probabilities, on the basis of the application material. It would not be necessary to have the criminal “trial” as part of an application. The parties file affidavits and it is within the discretion of the application judge whether to permit cross-examination on those affidavits. To preclude a lawful owner or someone lawfully entitled to possession from applying until after the trial, could lead to the problems identified under the third reason below.
[51] Second, the legislation provides for application without any limitation of the timing, reflective of Parliament’s intention that applications can be brought in advance of trial.
[52] Third, while the appellant continues to make payments, should the truck be ordered returned to Ally after the trial Ally would get a truck that has sat idle for at least one to two years. The value of a 2011 truck in 2012 is more than the same truck in 2013 or 2014. As the appellant submitted in the material that was to be filed on the application – the longer the vehicle remains parked the more deterioration and depreciation of the vehicle will occur. In addition, on the appellant’s approach, if there was an appeal after trial, the application would be further delayed. That could mean Ally could get the truck in 2014, 2015 or 2016.
[53] I am not persuaded the application should be adjourned until after the appellant’s criminal proceedings are completed.
Can a Judge of the Ontario Court of Justice Determine Ownership and Title?
[54] Sections 489.1 and 490 of the Criminal Code include detailed provisions by which property seized by police is either returned to the person lawfully entitled to it, is brought before a justice or a report made that the property has been seized. The justice can order the seized property detained if it is required for an investigation, or for a preliminary inquiry, trial or other proceeding. A post-conviction forfeiture hearing is an “other proceeding”. R. v. Nikitczuk 2009 ONSC 2991
[55] Section 490 provides the mechanism by which the accused person, the lawful owner, or a person lawfully entitled to possession of the seized item can apply for the return of seized and detained property.
[56] In his factum, the appellant submits for the first time, that there are competing interests between Ally and him. He argues he has a proprietary title to the truck, while Ally has an equitable interest in it. The appellant submits there are competing federalism and provincialism issues. The Superior Court has jurisdiction to determine issues of ownership and title to property, while the Ontario Court has no such authority. He contends the Ontario Court cannot make an order with respect to legal ownership or who is legally entitled to possession. Title and legal entitlement to possession must be decided in the Superior Court.
[57] The appellant submits the application judge failed to consider the issue of competing rights of ownership in any way whatsoever and accordingly, failed to comply with s. 490(11) which states the property is to be returned if the judge is satisfied the applicant is the lawful owner or lawfully entitled to possession.
[58] While framed otherwise, in most of these arguments, the appellant is raising a constitutional challenge to the legislation arguing judges of the Ontario Court of Justice have no jurisdiction to determine property issues including ownership and title. There is no constitutional challenge here. In addition, since this argument was never advanced in the appellant’s responding material that were to be filed before the application judge, it would be inappropriate to permit the appellant to advance a new argument for the first time on appeal. Pursuant to the Criminal Code provisions, judges of the Ontario Court have the jurisdiction as trial judges to determine property issues under other Criminal Code sections. Finally, once there was a finding the contract was breached, Ally was entitled to possession of the truck. There was nothing left to determine under s. 490(10) and (11) provided the property was not required for any of the reasons noted in s. 490(1-4).
[59] This ground fails.
Is the Appellant entitled to the Return of the Truck pursuant to s. 490(7) of the Criminal Code?
[60] Pursuant to s. 490(7) the person from whom property was seized can apply for its return. That is the relief the appellant requested in the “responding material”. To succeed, he would have to establish the property is not required for the purpose of a forfeiture application and no other person is lawfully entitled to possession of the truck. For the previous reasons, the appellant would fail on both points.
Ally’s Costs Application
[61] The issue of costs is covered by s. 826 of the Criminal Code. Counsel may make written submissions, not to exceed three double spaced pages, in relation to costs by January 15, 2012.
Conclusion
[62] The appeal is dismissed.
DURNO, J.
Released: December 21, 2012
COURT FILE NO.: 1942/12
DATE: 20121221
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
Her Majesty the Queen
Respondent
- and –
George Barthorpe
Appellant
REASONS FOR JUDGMENT
[On appeal from the decision of the Honourable S.R. Clark,
dated April 5, 2012]
DURNO, J.
Released: December 21, 2012
[^1]: I infer that the application judge was referring to no written indication of an adjournment request or communications prior to the day before the application was scheduled to be heard.
[^2]: Glenn Barthorpe is the appellant’s father and guarantor of the contract.
[^3]: The appellant’s material on the application to extend the time within which to file the appeal indicates Ally had refused to consent to the adjournment request before April 5, the application date.