Gombosh Estate v. R., (1986) 66 N.R. 133 (SCC)

• Judge: Dickson, C.J.C., McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 20, 1985
• Jurisdiction: Canada (Federal)
• Citations: (1986), 66 N.R. 133 (SCC);26 DLR (4th) 641;15 OAC 159;24 CRR 66;[1986] 1 SCR 415;66 NR 133;[1986] ACS no 22;51 CR (3d) 337;1986 CanLII 63 (SCC);[1986] CarswellOnt 113;25 CCC (3d) 297;[1986] SCJ No 22 (QL)

Gombosh Estate v. R. (1986), 66 N.R. 133 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Eric Fleming, Administrator ad Litem of the Estate of Ernest Roland Maria Gombosh, Deceased v. Her Majesty the Queen

(No. 17717)

Indexed As: Gombosh Estate v. R.

Supreme Court of Canada

Dickson, C.J.C., McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ.

April 24, 1986.

Summary:

Gombosh was searched and drugs, drug paraphenalia and cash were seized. He was subsequently charged with Narcotic Control Act offences. He applied under ss. 10(5) and 10(6) of the Act for restoration of the monies seized. The restoration hearing was adjourned. He died before being prosecuted and before the restoration hearing process was completed. Letters of administration were granted to Fleming (the administrator), who pursued the restoration of the seized monies in his capacity as administrator. The Ontario Provincial Court granted the restoration order. The Crown appealed.

The Ontario Supreme Court, allowed the appeal and quashed the Provincial Court judge's order. The administrator appealed.

The Ontario Court of Appeal, in a decision reported (1983), 3 C.C.C.(3d) 575, dismissed the appeal. The administrator appealed.

The Supreme Court of Canada allowed the appeal, set aside the orders of the Court of Appeal and the Supreme Court and reinstated the Provincial Court judge's order for the restoration of the monies to the administrator.

Narcotic Control - Topic 1104

Penalties - Forfeiture of seized goods - When available - The Narcotic Control Act, s. 10(8), provided for forfeiture of seized items which were used in connection with narcotic offences if convictions resulted - The Supreme Court of Canada discussed the Crown's burden of proving at a restoration hearing that seized goods were "tainted" within the meaning of s. 10(8) - The court stated that "in the absence of a specific finding at trial of the requisite 'tainted connection', the Crown may fill the evidentiary gap by proving taint on the reasonable doubt standard at the restoration hearing. Where there is no antecedent conviction and no basis for laying a narcotics related charge, proceedings should be initiated under s. 312(1) of the Criminal Code" (possession of property obtained by crime) - See paragraph 44.

Narcotic Control - Topic 1106

Penalties - Forfeiture of seized goods - Relief from - Order for restoration - Gombosh was searched and drugs and cash were seized - He was charged under the Narcotic Control Act - He applied under ss. 10(5) and 10(6) of the Act for restoration of the monies seized - Gombosh died before he was prosecuted and before the restoration hearing process was completed - His administrator pursued the restoration proceedings - The Supreme Court of Canada held that the monies should be restored to the administrator under s. 10(6), where the monies had no further evidentiary use, the evidence showed that Gombosh was the possessor of the monies and in any event the judge could not deny restoration where there was no evidence of a conviction.

Narcotic Control - Topic 1106

Penalties - Forfeiture of seized goods - Relief from - Order for restoration - The Narcotic Control Act, s. 10(6)(a), provided that any person could apply for restoration of seized goods, where, inter alia, the person was "entitled to possession of the narcotic or other things seized" - The Supreme Court of Canada identified and discussed three interpretive approaches in determining s. 10(6)(a) entitlement; (1) the simple proof of entitlement approach, (2) the public policy approach, and (3) the legislative text approach - The court also indicated the appropriateness of each approach - See paragraphs 1 to 45.

Narcotic Control - Topic 1106

Penalties - Forfeiture of seized goods - Relief from - Order for restoration - The Narcotic Control Act, s. 10(6)(a), provided that any person could apply for restoration of goods seized under s. 10(1), where, inter alia, the person was "entitled to possession of the narcotic or other things seized" - The Supreme Court of Canada discussed the proper approach to determining entitlement under s. 10(6)(a), who had the burden of proving entitlement and what was the standard of proof - See paragraphs 42 to 45.

Narcotic Control - Topic 1106

Penalties - Forfeiture of seized goods - Relief from - Order for restoration - The Narcotic Control Act, s. 10(6)(a), provided that any person could apply for restoration of goods seized under s. 10(1), where, inter alia, the person was "entitled to possession of the narcotic or other things seized" - The Supreme Court of Canada stated that a person claiming entitlement under s. 10(6)(a) should be prepared to show on a balance of probabilities that he was in possession of the property at the time of seizure - See paragraph 42.

Narcotic Control - Topic 1106

Penalties - Forfeiture of seized goods - Relief from - Order for restoration - The Narcotic Control Act, s. 10(6), provided that any person could apply for restoration of seized goods - The Supreme Court of Canada held that where the goods were used in connection with a criminal or non-narcotic offence for which a conviction was entered, the public policy rule that a person could not profit from crime applied and restoration would be denied - The court held, however, where the public policy rule was inapplicable a claimant could establish entitlement to restoration by proving that he was the possessor of the goods and the goods were not needed as evidence - (Where goods seized were used in connection with a narcotic offence for which a conviction was entered, s. 10(8) provided for forfeiture) - See paragraphs 42 to 45.

Narcotic Control - Topic 1106

Penalties - Forfeiture of seized goods - Relief from - Order for restoration - The Narcotic Control Act, s. 10(6)(a), allowed persons entitled to possession of seized narcotics or other things to apply for restoration - s. 10(8) provided that where a person was convicted of a narcotic offence, seized items used in connection with the offence were forfeited to the Crown - The Supreme Court of Canada held that although s. 10(8) dealt with forfeiture of tainted goods used in connection with narcotic offences, it did not preclude the operation of the ex turpi causa non oritur actio rule under s. 10(6)(a), where things were seized in connection with a conviction for a non-narcotics offence - See paragraph 45.

Narcotic Control - Topic 1106

Penalties - Forfeiture of seized goods - Relief from - Order for restoration - Section 10 of the Narcotic Control Act provided for a restoration process of goods seized under s. 10(1) of the Act - The court stated that a magistrate under s. 10 cannot in any circumstances deny restoration of things seized to their proper owner, where no conviction was entered, and where the evidentiary use of the things has either expired or is non-existent - The court stated that a conviction was a condition precedent to forfeiture - See paragraph 46.

Narcotic Control - Topic 1106

Penalties - Forfeiture of seized goods - Relief from - Order for restoration - Ex turpi causa non oritur actio - The Supreme Court of Canada discussed the rule of public policy, ex turpi causa non oritur actio, as it related to restoration of seized goods under s. 10 of the Narcotic Control Act - See paragraphs 20 to 27, 42 to 45.

Narcotic Control - Topic 1106

Penalties - Forfeiture of seized goods - Relief from - Order for restoration - The Narcotic Control Act, s. 10(6), provided that any person could apply for restoration of goods seized - The court held that where a person was convicted in connection with the seizure of goods, the rule of public policy, ex turpi causa non oritur actio (a person cannot profit from crime) applied and the seized goods should not be restored - The court stated that "where the rule of public policy legitimately applies, the status of [a person claiming entitlement to seized goods] as the innocent representative of a convicted but deceased owner would not entitle the applicant to restoration" - See paragraph 46.

Cases Noticed:

Largie v. R. (1982), 25 C.R.(3d) 289, consd. [paras. 6, 12, 19, 21, 22, 30-32, 36, 37].

R. v. Aimonetti (1981), 8 Man.R.(2d) 271; 58 C.C.C.(2d) 164, consd. [paras. 6, 19, 22, 30, 32, 33, 36, 37, 39].

Burgess v. R. (1975), 18 Cr. L.Q. 254, consd. [para. 12].

Smith v. R., [1976] 1 F.C. 196, consd. [paras. 13, 39].

Hicks and R., Re (1977), 36 C.C.C.(2d) 91, consd. [paras. 15, 23].

R. v. Robinson, [1951] S.C.R. 522, consd. [para. 17].

Collins and R., Re (1983), 7 C.C.C.(3d) 377, consd. [para. 18].

R. v. Molina (1985), 7 O.A.C. 235, consd. [paras. 19, 32].

R. and Blaney, Re (1979), 50 C.C.C.(2d) 395, consd. [paras. 21, 23].

Sowrey v. Minister of National Health and Welfare, [1985] 1 W.W.R. 85, consd. [para. 21].

R. v. Buxton (1981), 62 C.C.C.(2d) 278, revsd. 32 A.R. 108, consd. [paras. 25, 26].

Minister of National Health and Welfare v. Medd, [1983] 6 W.W.R. 304; 23 Man.R.(2d) 119 (Man. C.A.), consd. [paras. 24, 26].

R. v. Tupper (1976), 32 C.C.C.(2d) 529, consd. [para. 29].

Woolmington v. D.P.P., [1935] A.C. 462 (H.L.), refd to. [para. 34].

R. v. Appleby, [1972] S.C.R. 303, refd to. [para. 35].

Goodyear Tire and Rubber Co. v. R., [1956] S.C.R. 303, consd. [para. 37].

R. v. Aimonetti (1985), 60 N.R. 227; 19 C.C.C.(3d) 481, consd. [para. 40].

MacDonald v. Lane (1882), 7 S.C.R. 462, refd to. [para. 42].

R. v. Meloche, [1970] 3 O.R. 798 (C.A.), refd to. [para. 42].

R. v. Bagshaw, [1970] 3 O.R. 3 (C.A.), refd to. [para. 42].

Hardy v. Motor Insurers Bureau, [1964] 2 All E.R. 742, agreed with [para. 45].

Statutes Noticed:

Canadian Bill of Rights, R.S.C. 1970, App. III, sect. 2(f) [para. 17].

Narcotic Control Act, R.S.C. 1970, c. N-1, sect. 10.

Authors and Works Noticed:

Halsbury's Laws of England (4th Ed.), para. 1122 [para. 42].

Shilton, B.R., Drug Monies - The Fruits of Crime?, 25 C.R.(2d) 294 [para. 8].

Counsel:

Alan D. Gold, and W.B. Horkins, for the administrator;

Bruce Shilton, for the Crown.

This appeal was heard on November 20, 1985, before Dickson, C.J.C., McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ., of the Supreme Court of Canada. The following decision of the court was delivered by Wilson, J., on April 24, 1986: