R. v. Brown (K.D.), (2014) 463 Sask.R. 259 (PC)

• Judge: Morgan, P.C.J.
• Court: Provincial Court of Saskatchewan (Canada)
• Case Date: November 28, 2014
• Jurisdiction: Saskatchewan
• Citations: (2014), 463 Sask.R. 259 (PC);2014 SKPC 187

R. v. Brown (K.D.) (2014), 463 Sask.R. 259 (PC)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. DE.058

Kelly Dean Brown v. Her Majesty the Queen and Saskatoon Police Service

(Information No. 42401885; 2014 SKPC 187)

Indexed As: R. v. Brown (K.D.)

Saskatchewan Provincial Court

Morgan, P.C.J.

November 28, 2014.

Summary:

Two informations (#33382982 and #42401885) were laid jointly charging Peterson and Brown with, inter alia, a number of possession of stolen property offences. Information #33382982 referred to an offence date of July 10, 2008. Information #42401885 referred to an offence date of July 15, 2008, and contained eight counts. The first seven counts referred to each accused having in his or her possession specifically identified property owned by a specific individual. The eighth count referred to the possession of various articles of property belonging to unknown persons and having a value exceeding $5,000. Peterson elected trial by Provincial Court to an amended count 8 on Information #42401885. The amendment encompassed a five day period and referred to the property of various persons, including the items that were taken from a local store on July 10, 2008. All of the items referred to in counts 1 through 7 were returned to their respective owners.

The Saskatchewan Provincial Court found Peterson guilty of count 8. Peterson also pleaded guilty to count 2 of Information #33382982 (the possession of property from the local store). The matter proceeded to sentencing. The Crown, with Peterson's consent, sought a forfeiture order respecting the property referred to in the amended count 8.

The Saskatchewan Provincial Court, in a 2009 decision not reported in this series of reports, determined an appropriate sentence for Peterson and granted an order of forfeiture respecting the items referred to in the amended count 8. The court stayed counts 1 to 7 of Information #42401885. At the time of the order, Brown remained in custody awaiting trial. Brown's trial proceeded before a different Provincial Court judge.

The Saskatchewan Provincial Court, in a decision reported at 342 Sask.R. 158, found Brown guilty on count 1 in Information #33382982 and counts 1 to 7 of Information #42401885, but not guilty on count 8 (which had not been amended). The matter proceeded to sentencing. The Crown sought a forfeiture order. Brown applied for the return of the seized property. As the property had been part of the 2009 forfeiture order and had been sold at auction, Brown was, in practical terms, looking to be compensated for the value of the items.

The Saskatchewan Provincial Court dismissed Brown's application on the basis that it lacked jurisdiction to deal with the already forfeited property.

Courts - Topic 566

Judges - Powers - To review orders of judge of same court - [See Criminal law - Topic 3170 ].

Criminal Law - Topic 3170

Special powers - Power of seizure - Detention or return of things seized - Peterson and Brown were jointly charged with a number of possession of stolen property offences - In 2009, Peterson pleaded guilty to one offence and was convicted of another - Peterson's sentence included a consent forfeiture order respecting the stolen property that had not been returned to the victims - Brown's trial proceeded before a different Provincial Court judge - He was found guilty on eight counts - The matter proceeded to sentencing - The Crown sought a second forfeiture order - Brown applied for the return of the seized property - As the property had been part of the 2009 forfeiture order and had been sold at auction, Brown was, in practical terms, looking to be compensated for the value of the items - The Saskatchewan Provincial Court stated that s. 490(4) of the Criminal Code provided that when an accused has been ordered to stand trial, anything that has been detained under s. 490 was to be forwarded to, and detained, by the Clerk of the Court "... and disposed of as the Court directs" - As the seized items had been disposed of, s. 490 ceased to have any application - The court could not make an order dealing with the same property that had been the subject matter of another judge's forfeiture order - To do so would have the effect of the court sitting on appeal of a decision of the same court - The court rejected Brown's assertion that there was a distinction between the property and ownership interest in the property - The property was forfeited - There was nothing for the court to deal with - The fact that Peterson consented to the 2009 order was of no moment - Consent or not, the 2009 order was a valid court order - The fact that the Crown had requested a second (unnecessary) forfeiture order did not change things.

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 490 [para. 14].

Counsel:

N. Blenkinsop, for the applicant;

D. Howarth, for the Crown;

G. Bains, for the Saskatoon Police Service.

This application was heard at Saskatoon, Saskatchewan, by Morgan, P.C.J., of the Saskatchewan Provincial Court, who delivered the following judgment on November 28, 2014.