ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-095

DATE: 20130710

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

CLIFFORD DAWSON

Applicant

C. Noordegraaf, for the Crown

Defendant Self-Represented

HEARD: July 8, 2013

APPLICATION PURSUANT TO S.490 (9) OF THE CRIMINAL CODE OF CANADA

HEALEY J.

[1] This is an application by Mr. Dawson for the return of a vehicle that has been seized and detained by the Barrie Police Services pursuant an Order of Detention made by Justice of the Peace Puusaari on January 16, 2013 (the “detention order”) pursuant to s.11 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”).

[2] Mr. Dawson is charged with the offences of production of marihuana, possession of marihuana for the purpose of trafficking, possession of marihuana and conspiracy to commit an indictable offence. The vehicle was searched pursuant to a warrant and seized by the investigating officer as offence related property.

[3] Mr. Dawson’s charges have not been dealt with and a judicial pretrial is scheduled for later this month.

[4] The detention order provides that the vehicle shall be detained until the completion of court proceedings. Justice of the Peace Puusaari had the jurisdiction to order a detention period terminating on completion of court proceedings under subsection 490(2) of the Criminal Code.

[5] Section 490 of the Criminal Code provides a comprehensive scheme for the procedure to be adopted for seizure and detention of items seized by the police. The jurisdiction of this Court to make an order for the return of alleged offence related property, where the period in the detention order has not yet expired, is set out in ss. (9) of section 490. Section 490(9) provides:

490(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 is 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 who 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.

[6] Therefore, in order to obtain an order for the return of the vehicle before the final disposition of the charges, Mr. Dawson must establish either that proceedings have not been instituted, which is clearly not the case, or, where the detention period ordered has not yet expired, that the continued detention of the vehicle will not be required for any purpose set out in s. 490(1) to (4) of the Criminal Code.

[7] The Crown asserts that the vehicle will be required for a future forfeiture application if a conviction is secured. I accept the Crown’s submission that a forfeiture proceeding pursuant to s.16 of the CDSA that may be initiated by the Crown if a conviction is secured would be an “other proceeding” referred to in s. 490(1) (a) and (b). This position has precedent in the case law, where courts have determined that a forfeiture application is an “other proceeding”.[1]

[8] While I questioned the Crown on whether a contemplated forfeiture application that has not been commenced could qualify as a “proceeding” within the meaning of s. 490(1), I am now satisfied that the statutory regime set out in s. 490 and sections 16 and 17 of the CDSA work together to mandate an order for forfeiture on application that may be commenced only after there has been a conviction. To prematurely release property that is the potential subject of such proceeding would defeat the intent of the statutory scheme.

[9] Because the time period in the detention order has not yet expired, and because I am not satisfied that the vehicle will not be required for a potential forfeiture application, Mr. Dawson cannot obtain the order that he seeks at this stage in the proceeding.

[10] Although the applicant argued on the grounds of hardship, the wording of s. 490(8) makes clear that hardship is not a grounds for granting the application, but only in permitting the application to be heard prior to the expiration of the detention period.

[11] None of the additional arguments raised by Mr. Dawson allow this application to succeed. The constitutionality of s.490 has not been formally challenged on notice to the Attorney General. The Justice did not have to be satisfied beyond a reasonable doubt before issuing the detention order, or a subsequent management order. Any challenges to the warrant or the search are to be made to the trial judge and are not the subject of this application. The additional facts brought to the attention of the court, including that the accused is the holder of an Authorization to Possess Dried Marihuana for Medical Purposes pursuant to the Marihuana Medical Access Regulations, is evidence relevant to the charges but not to the merits of this application.

[12] For the foregoing reason the application is dismissed without prejudice to the applicant’s right to commence a similar application once the proceedings are concluded.

HEALEY J.

Released: July 10, 2013

[1] R. v. Alchin, 2007 ONCJ 589;

R. v. Buller, 2009 ONCJ 781

R. v. Nikitczuk, 2009 29911 (ON SC)