Gladue v. Alta. (A.G.), (2011) 516 A.R. 17 (QB)

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: Friday March 18, 2011
• Jurisdiction: Alberta
• Citations: (2011), 516 A.R. 17 (QB);2011 ABQB 183

Gladue v. Alta. (A.G.) (2011), 516 A.R. 17 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. MR.180

Brian Kurtis Gladue (applicant) v. Her Majesty the Queen in Right of Alberta as represented by the Attorney General of Alberta, Michael J. Boyd, Chief of Police of Edmonton Police Service, Brenda St. Germain and the Attorney General of Canada (respondents)

(1003 10248; 2011 ABQB 183)

Indexed As: Gladue v. Alberta (Attorney General) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

March 18, 2011.

Summary:

Gladue asked for the return of his non-restricted long guns which had been seized by the Edmonton City Police. The matter in relation to which the seizure was effected was resolved when the charge against Gladue was withdrawn. Gladue had a firearms possession and acquisition license. There was an existing amnesty from registration of non-restricted long guns. Gladue had been denied the return of his firearms presumably because he had informed the police that he did not intend to register his long guns. Gladue was an adherent to Treaty No. 6. He argued that the legislation requiring registration of firearms abrogated or derogated from his aboriginal and treaty rights and was therefore not binding on him.

The Alberta Court of Queen's Bench allowed Gladue's application where his firearms were not being held in relation to any pending procedure, their return to Gladue did not present a public safety concern, and the possession of the firearms by Gladue without registration could not be the subject of charges while the amnesty was still in place. It was not necessary for the court to consider Gladue's arguments respecting his aboriginal and treaty status. The court also held that the Alberta Crown did not have legal responsibility for the actions of the police respecting the firearms.

Criminal Law - Topic 1122

Offences against public order - Weapons - General - Amnesty order - Gladue asked for the return of his non-restricted long guns which had been seized by the Edmonton City Police - The matter in relation to which the seizure was effected was resolved when the charge against Gladue was withdrawn - Gladue had a firearms possession and acquisition license - There was an existing amnesty from registration of non-restricted long guns - Gladue had been denied the return of his firearms presumably because he had informed the police that he did not intend to register his long guns - The Alberta Court of Queen's Bench allowed Gladue's application where his firearms were not being held in relation to any pending procedure, their return to Gladue did not present a public safety concern, and the possession of the firearms by Gladue without registration could not be the subject of charges while the amnesty was still in place.

Criminal Law - Topic 3170

Special powers - Power of seizure - Detention or return of things seized - [See Criminal Law - Topic 1122].

Criminal Law - Topic 3170

Special powers - Power of seizure - Detention or return of things seized - The Alberta Court of Queen's Bench stated that "While the Crown and the police are indivisible for the purpose of disclosure under the Stinchcombe rules, the two are generally separate and independent entities ... Upon the termination of a prosecution, the police, not the Crown, are in care and control of the exhibits ... the government's responsibility with respect to policing is to see that adequate policing is provided to the citizens of Alberta. That political responsibility for ensuring servicing does not translate into a responsibility for the actions of individual police services with respect to the treatment of seized property." - See paragraphs 24 to 26.

Crown - Topic 1529

Torts by and against Crown - Liability of Crown for acts of servants - Police - [See second Criminal Law - Topic 3170].

Police - Topic 5183

Actions against police - For search and seizure of property - Seizure of property - [See second Criminal Law - Topic 3170].

Cases Noticed:

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 5].

R. v. T.A.V. (2001), 299 A.R. 96; 266 W.A.C. 96; 2001 ABCA 316, refd to. [para. 5].

R. v. Zaba (D.) (2010), 355 Sask.R. 291; 2010 SKPC 85, refd to. [para. 5].

R. v. Chuhaniuk (B.D.) (2010), 292 B.C.A.C. 89; 493 W.A.C. 89; 2010 BCCA 403, refd to. [para. 5].

R. v. Merchant et al. (1991), 117 A.R. 32; 2 W.A.C. 32 (C.A.), appld. [para. 5].

R. v. Raponi (W.), [2004] 3 S.C.R. 35; 323 N.R. 373; 354 A.R. 292; 329 W.A.C. 292; 2004 SCC 50, refd to. [para. 5].

R. v. Dagenais (A.L.) (2009), 342 Sask.R. 188; 2009 SKPC 113, refd to. [para. 5].

Neill v. Vancouver Police Department, [2005] B.C.T.C. 277; 2005 BCSC 277, refd to. [para. 5]

Canada (Attorney General) v. Acero, [2006] B.C.T.C. 1015; 2006 BCSC 1015, refd to. [para. 5].

Butler v. Canada (Attorney General), 1981 CanLII 373 (B.C.S.C.), refd to. [para. 5].

Quebec (Attorney General) v. Moses et al., [2010] l S.C.R. 557; 401 N.R. 246, refd to. [para. 5].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 5].

R. v. Sundown (J.), [1999] l S.C.R. 393; 236 N.R. 251; 177 Sask.R. 1; 199 W.A.C. 1, refd to. [para. 5].

R. v. Simon, [1985] 2 S.C.R. 387; 62 N.R. 366; 71 N.S.R.(2d) 15; 171 A.P.R. 15, refd to. [para. 5].

Ward v. Vancouver (City) et al., [2010] 2 S.C.R. 28; 404 N.R. 1; 290 B.C.A.C. 222; 491 W.A.C. 222, refd to. [para. 5].

R. v. Peacock-McDonald (C.A.) (2007), 221 O.A.C. 93; 2007 ONCA 127, refd to. [para. 6].

R. v. Hudson (A.J.), [2007] O.T.C. Uned. C85 (Sup. Ct.), refd to. [para. 6].

R. v. McCormack (R.D.), [2007] B.C.T.C. Uned. F68; 2007 BCSC 1526, refd to. [para. 6].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321, refd to. [para. 7].

R. v. Morris (I.) et al., [2006] 2 S.C.R. 915; 355 N.R. 86; 234 B.C.A.C. 1; 387 W.A.C. 1; 2006 SCC 59, refd to. [para. 7].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 7].

Reference Re Firearms Act (Can.), [1999] 2 W.W.R. 579; 219 A.R. 201; 179 W.A.C. 201; 1998 ABCA 305, refd to. [para. 7].

Reference Re Firearms Act (Can.), [2000] 1 S.C.R. 783; 254 N.R. 201; 261 A.R. 201; 225 W.A.C. 201; 2000 SCC 31, refd to. [para. 7].

R. v. McNeil (L.) (2009), 383 N.R. 1; 246 O.A.C. 154; 2009 CarswellOnt 116 (S.C.C.), refd to. [para. 8].

R. v. McCarthy, 2008 CarswellAlta 29 (Q.B.), refd to. [para. 8].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 CarswellNS 61; 2002 SCC 12, refd to. [para. 8].

R. v. Dore (D.) (2002), 162 O.A.C. 56; 2002 CarswellOnt 2373 (C.A.), refd to. [para. 8].

R. v. Carloss, 2000 BCPC 19, refd to. [para. 9].

R. v. Day (R.M.), [2006] O.T.C. 716 (Sup. Ct.), refd to. [para. 9].

R. v. K.G.S., [2011] Nu.J. No. 4, refd to. [para. 9].

Authors and Works Noticed:

Canada, Special Bulletin for Police No. 78 (March 2010), generally [para. 14].

Kennedy, Priscilla, The Prosecutorial Power in Canada (1984), generally [para. 5].

Counsel:

Priscilla Kennedy (Davis LLP), for Mr. Gladue;

Martine Sallaberry, for Edmonton Police Service;

James Shaw, for Justice Canada;

Lisa Farion (Alberta Justice Civil Law - Litigation), for Alberta Justice;

Brenda Germaine, appeared on her own behalf.

This application was heard on February 3, 9 and 15, 2011, by Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on March 18, 2011.