R. v. Gill (N.) et al., 2007 ABPC 69

JudgeJohnson, P.C.J.
CourtProvincial Court of Alberta (Canada)
Case DateMarch 06, 2007
Citations2007 ABPC 69;(2007), 415 A.R. 340 (PC)

R. v. Gill (N.) (2007), 415 A.R. 340 (PC)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. MR.077

In The Matter Of an Application Pursuant to Sections 490(7) and 490(10) of the Criminal Code of Canada for the Return of Monies Seized on the 6th Day of May, 2005, at Edmonton, Alberta by Members of the Edmonton Police Service.

And In The Matter Of an Application Pursuant to Sections 7, 8, 9 and 10(b) of the Charter of Rights and Freedoms

Her Majesty the Queen (respondent) v. Nicole Gill and Larry Rust (applicants)

(051385284Z1; 2007 ABPC 69)

Indexed As: R. v. Gill (N.) et al.

Alberta Provincial Court

Johnson, P.C.J.

March 6, 2007.

Summary:

The Crown applied for forfeiture of seized funds. Gill and Rust applied for the return of the funds seized on a variety of grounds. Each party moved for particulars from the other party.

The Alberta Provincial Court directed each party to prepare a statement of particulars and deliver it to the other party together with a copy to the court.

Criminal Law - Topic 3170

Special powers - Power of seizure - Detention or return of things seized - The Alberta Provincial Court reviewed the scheme of s. 490 of the Criminal Code for dealing with the seizure, detention, release and forfeiture of things seized - The court stated that the jural context of a s. 490 application was different from that of a criminal trial - It was a dispute over money, an in rem hearing - It did not deal with the liberty of a subject, it dealt with the nature of the money or property in question - There were no mens rea considerations - Section 490 contemplated the participation of differently situated parties in the process, including: the "lawful owner" (or "person who claimed to be the lawful owner"); the "person lawfully entitled to possession"; and the person from whom the thing was seized - The person "from whom the thing was seized" could bring an application under s. 490(7) - The "lawful owner or person lawfully entitled to possession" could bring an application under s. 490(10), a section which by its terms was unavailable to persons "from whom the thing was seized" - The person in possession at the time of the seizure was presumed to have lawful possession - The role played by each participant determined the burden (if any) borne by each - The person in possession had to prove that she/he was actually in possession - Where possession was established, the Crown had to prove that the possession was unlawful (that the property was tainted) - The Crown had to prove that the property generally represented the proceeds of crime, but not the transaction(s) that gave rise to the taint - Where a party advanced a claim as lawful owner (apart from the claim of the person in possession), that claimant had to prove that he/she was the lawful owner - See paragraphs 9 to 14.

Criminal Law - Topic 3170

Special powers - Power of seizure - Detention or return of things seized - The Crown applied for forfeiture of seized funds - Gill and Rust each applied under ss. 490(1) and 490(7) of the Criminal Code and ss. 7, 8, 9 and 10(b) of the Charter for the return of the funds seized on a variety of grounds - Each party moved for particulars from the other party - The Alberta Provincial Court adopted and applied the following principles: (1) although this was neither a civil nor a criminal trial, the general principles relating to delivery of particulars in those contexts were of assistance; (2) the pleadings of each party should be sufficient to "... engage the Court to make an authoritative decision as to the monies under all jurisdictional possibilities"; (3) the capacity or capacities in which each party claimed, the basis for each party's claim and the specific relief sought should be clear from the outset - This was particularly important where Charter relief was sought; (4) particulars should aid in preventing surprise and in permitting each party to understand the other's position; and (5) the particulars would assist the court in making evidentiary and procedural rulings - The courted directed the Crown to provide a brief statement of material fact relative to its allegation that the seized currency was tainted by criminality - The court ordered Gill and Rust to each provide particulars respecting, inter alia, the grounds on which each asserted ownership over the funds and the nature of their respective claims for Charter relief - See paragraphs 15 to 41.

Criminal Law - Topic 3171

Special powers - Power of seizure - Forfeiture of things seized - [See both Criminal Law - Topic 3170 ].

Cases Noticed:

R. v. Raponi (W.) (2004), 323 N.R. 373; 354 A.R. 292; 329 W.A.C. 292; 2004 SCC 50, refd to. [para. 9].

R. v. Raponi (W.) (2006), 405 A.R. 78 (Q.B.), refd to. [para. 10].

Canada (Attorney General) v. Co-operators General Insurance Co., [2001] M.J. No. 484 (Prov. Ct.), refd to. [para. 10].

Pellettieri, Re (2002), 169 Man.R.(2d) 9 (Prov. Ct.), refd to. [para. 10].

R. v. Mac (K.M.) et al. (1995), 80 O.A.C. 26; 97 C.C.C.(3d) 115 (C.A.), refd to. [para. 14].

R. v. Hicks, [2000] B.C.J. No. 2653 (Prov. Ct.), refd to. [para. 14].

R. v. Buck (1932), 57 C.C.C. 290 (Ont. C.A.), refd to. [para. 19].

R. v. Canadian General Electric Co. et al. (1974), 17 C.C.C.(2d) 433 (Ont. H.C.), refd to. [para. 20].

R. v. Stevens (1904), 8 C.C.C. 387 (N.S.S.C.), refd to. [para. 21].

Ault v. Read (1956), 115 C.C.C. 132 (Alta. C.A.), refd to. [para. 21].

R. v. Imperial Tobacco Co. (1940), 73 C.C.C. 18 (Alta. S.C.), refd to. [para. 21].

R. v. McGavin Bakeries Ltd. (1950), 99 C.C.C. 330 (Alta. S.C.), refd to. [para. 21].

Welco Expediting Ltd. v. Harris and Q Process Equipment Ltd. (1995), 171 A.R. 341; 31 Alta. L.R.(3d) 173 (Q.B.), refd to. [para. 22].

R. v. Dwernychuk (M.K.) (1992), 135 A.R. 31; 33 W.A.C. 31 (C.A.), refd to. [para. 24].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 490 [para. 9 et seq.].

Counsel:

J. Johnson, for the Crown;

S. Tarrabain, for the applicants.

This case was heard on January 8 and 9, 2007, at Edmonton, Alberta, before Johnson, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on March 6, 2007.

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1 practice notes
  • R. v. Villaroman (O.O.), 2012 ABQB 630
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • October 16, 2012
    ...[2004] 3 S.C.R. 35; 323 N.R. 373; 354 A.R. 292; 329 W.A.C. 292; 185 C.C.C.(3d) 338; 2004 SCC 50, refd to. [para. 142]. R. v. Gill (N.) (2007), 415 A.R. 340; 72 Alta. L.R.(4th) 387; 2007 ABPC 69, refd to. [para. Moyer, Re (1994), 95 C.C.C.(3d) 174 (Ont. Gen. Div.), refd to. [para. 145]. R. v......
1 cases
  • R. v. Villaroman (O.O.), 2012 ABQB 630
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • October 16, 2012
    ...[2004] 3 S.C.R. 35; 323 N.R. 373; 354 A.R. 292; 329 W.A.C. 292; 185 C.C.C.(3d) 338; 2004 SCC 50, refd to. [para. 142]. R. v. Gill (N.) (2007), 415 A.R. 340; 72 Alta. L.R.(4th) 387; 2007 ABPC 69, refd to. [para. Moyer, Re (1994), 95 C.C.C.(3d) 174 (Ont. Gen. Div.), refd to. [para. 145]. R. v......

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