Alberta (Minister of Justice) et al. v. McNair et al., 2014 ABQB 27

• Judge: Anderson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 07, 2013
• Citations: 2014 ABQB 27;(2014), 585 A.R. 35 (QB)

Alta. v. McNair (2014), 585 A.R. 35 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. JA.108

Minister of Justice and Attorney General for Alberta (plaintiff/respondent) v. Gordon Fraser McNair, Toronto Dominion Bank and Chief of Police Calgary Police Service (defendants/applicant)

(1301 05693; 2014 ABQB 27)

Indexed As: Alberta (Minister of Justice) et al. v. McNair et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Anderson, J.

January 14, 2014.

Summary:

Police searched McNair's home and seized a number of alleged cannabis plants and related grow op equipment. McNair was charged with offences under the Controlled Drugs and Substances Act to which he pled not guilty. Prior to his trial on the criminal charges, the Minister of Justice, Civil Branch, proceeded with a property disposal hearing under the Victims Restitution and Compensation Payment Act. McNair applied for a stay of the property disposal proceedings. He deposed that he intended to make a claim against the restrained property, but in order to do so, he was required to file an affidavit on the same subject matter as the criminal charges and be subject to cross-examination. McNair asserted that this requirement infringed upon his Charter right to silence.

The Alberta Court of Queen's Bench dismissed the application.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - [See Practice - Topic 5277 ].

Civil Rights - Topic 4302

Protection against self-incrimination - General - Right to remain silent - [See Practice - Topic 5277 ].

Civil Rights - Topic 4461

Protection against self-incrimination - Use of incriminating evidence in other proceedings - General - [See Practice - Topic 5277 ].

Criminal Law - Topic 53

Protection against self-incrimination - Right to remain silent - [See Practice - Topic 5277 ].

Criminal Law - Topic 7062

Civil remedies for unlawful activity - Civil Remedies Act, Civil Forfeiture Act, etc. - Remedies - Forfeiture - [See Practice - Topic 5277 ].

Practice - Topic 5277

Trials - General - Stay of proceedings - When available - Police searched McNair's home and seized a number of alleged cannabis plants and grow op equipment - McNair pled not guilty to drug offences - Before his trial, the Minister of Justice, Civil Branch, proceeded with a property disposal hearing - McNair applied for a stay of the property disposal proceedings - He deposed that he intended to make a claim against the restrained property, but in order to do so, he was required to file an affidavit on the same subject matter as the criminal charges and be subject to cross-examination - McNair asserted that this requirement infringed upon his Charter right to silence - The Alberta Court of Queen's Bench dismissed the application - McNair did not present evidence of any prejudice or exceptional or extraordinary circumstances to justify the stay - Assuming that his concern was potential disclosure, through the civil proceedings, of the nature of his defence in the criminal proceedings, this was not necessarily exceptional - Asserting that the civil proceedings could not proceed until the criminal matter was resolved on the basis of the right to silence disregarded s. 13 of the Charter and incorrectly assumed that the stay should granted as a matter of right - If there was an attempt to improperly use McNair's testimony from the civil proceedings in the criminal proceedings, then that matter should be decided by the judge hearing the criminal matter to determine the appropriate remedy, if any.

Cases Noticed:

Alberta (Minister of Justice) et al. v. Pazder et al. (2010), 487 A.R. 267; 495 W.A.C. 267; 2010 ABCA 183, refd to. [para. 5].

Alberta (Minister of Justice and Attorney General) v. Echert et al. (2013), 563 A.R. 74; 2013 ABQB 314, refd to. [para. 5].

Saccomanno v. Swanson (1987), 75 A.R. 393 (Q.B.), refd to. [para. 7].

Haywood Securities Inc. v. Inter-Tech Resource Group Inc. (1985), 68 B.C.L.R. 145 (C.A.), refd to. [para. 8].

Treat America Ltd. v. Leonidas (2012), 306 O.A.C. 219; 2012 ONCA 748, refd to. [para. 12].

R. v. Henry (D.B.) et al. (2005), 342 N.R. 259; 376 A.R. 1; 360 W.A.C. 1; 219 B.C.A.C. 1; 361 W.A.C. 1; 2005 SCC 76, refd to. [para. 12].

Doucette v. Wee Watch Day Care Systems Inc. et al. (2008), 372 N.R. 95; 252 B.C.A.C. 1; 422 W.A.C. 1; 2008 SCC 8, refd to. [para. 12].

National Bank Financial Ltd. v. Potter et al. (2012), 314 N.S.R.(2d) 252; 994 A.P.R. 252; 2012 NSSC 90, refd to. [para. 15].

Ontario (Attorney General) v. $41,700 in Canadian Currency et al., [2011] O.T.C. Uned. 2058; 2011 ONSC 2058, refd to. [para. 16].

Phillips et al. v. Richard, J., [1995] 2 S.C.R. 97; 180 N.R. 1; 141 N.S.R.(2d) 1; 403 A.P.R. 1; 39 C.R.(4th) 141, refd to. [para. 17].

R. v. Nedelcu (M.) (2012), 436 N.R. 1; 297 O.A.C. 93; 2012 SCC 59, refd to. [para. 18].

Alberta (Minister of Justice) et al. v. Chau et al. (2010), 506 A.R. 334; 2010 ABQB 758, refd to. [para. 19].

Alberta (Minister of Justice) et al. v. Clarke et al., [2009] A.R. Uned. 609; 2009 ABQB 518, refd to. [para. 19].

Counsel:

Eleanor J. Funk, for the applicant/defendant, Gordon Fraser McNair;

Sarah Dolgoy, for the respondent/plaintiff, Minister of Justice and Attorney General for Alberta.

This application was heard on August 7, 2013, before Anderson, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following memorandum of decision on January 14, 2014.