R. v. Horne (D.G.), (1999) 253 A.R. 349 (QB)

• Judge: Veit, J.
• Court: Court of Queen''s Bench of Alberta (Canada)
• Case Date: Wednesday May 19, 1999
• Citations: (1999), 253 A.R. 349 (QB)

R. v. Horne (D.G.) (1999), 253 A.R. 349 (QB)

MLB headnote and full text

Temp. Cite: [1999] A.R. TBEd. OC.118

Her Majesty The Queen v. Damon Gregory Horne

(Action No. 9903 0863 C2 0101; 1999.ca.ab.qb.754)

Indexed As: R. v. Horne (D.G.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

October 13, 1999.

Summary:

The accused was acquitted on a robbery charge. The accused applied for the return of certain cash seized from him and sought costs of the proceedings. He also sought an order for the release of cer­tain exhibits for the purpose of scien­tific testing (Criminal Code, s. 605).

The Alberta Court of Queen's Bench dis­missed the application for the return of the seized cash where the accused failed to prove, on a balance of probabilities, that he was in lawful possession of the cash when it was seized from him. The court found it unnecessary to consider the application for costs since the accused was unsuccessful on his application for the return of the cash. The application for the release of exhibits for testing was also denied.

Criminal Law - Topic 3170

Special powers - Power of seizure - De­tention or return of things seized - The accused was acquitted on a bank robbery charge - The accused applied for the return of certain cash seized from him - The Alberta Court of Queen's Bench dis­missed the application for the return of the seized cash where the accused failed to prove, on a balance of probabilities, that he was in lawful possession of the cash when it was seized from him - The court held that s. 490(7) of the Criminal Code imposed on the accused the burden of establishing that his possession of the cash was lawful - The court concluded, how­ever, that the accused need only prove that he had lawful possession on a balance of probabilities - The court ordered that the cash be forfeited to the Crown where the bank did not claim the money - See para­graphs 13 to 31.

Criminal Law - Topic 5071

Appeals - Indictable offences - Duties and powers of Minister of Justice - General - [See Criminal Law - Topic 5578 ].

Criminal Law - Topic 5578

Evidence and witnesses - Exhibits - Release of - The accused was acquitted on a robbery charge - The accused sought an order for the release of certain exhibits for the pur­pose of scientific testing (Criminal Code, s. 605) - The Alberta Court of Queen's Bench dis­missed the application for the release of exhibits for scientific testing - The court held that there was no trial and no appeal in relation to the rob­bery; there was, therefore, no ongoing lis between the accused and the state - There was no basis for the exercise of s. 605 - Moreover, the court noted that the accused had applied, pursuant to the provisions of s. 690 of the Code, for the Minister's mercy - "To even consider an application under s. 605 (for a legal right) while Mr. Horne [the accused] has chosen to ask for the Minister's mercy would dangerously blur both issues" - See para­graphs 33 to 35.

Cases Noticed:

R. v. Pawlowski (M.) (1993), 61 O.A.C. 276; 79 C.C.C.(3d) 353 (C.A.), refd to. [para. 5].

R. v. Taylor (1986), 31 C.C.C.(3d) 21 (B.C.S.C.), red to. [para. 6].

R. v. McGillivary (1990), 107 N.B.R.(2d) 361; 268 A.P.R. 361; 56 C.C.C.(3d) 304 (C.A.), refd to. [para. 6].

R. v. Pang (B.L.) (1994), 162 A.R. 24; 83 W.A.C. 24; [1994] 4 W.W.R. 442; 35 C.R.(4th) 371; 95 C.C.C.(3d) 60 (C.A.), refd to. [para. 6].

R. v. Jacobs (1971), 2 C.C.C.(2d) 26; 16 D.L.R.(3d) 591 (S.C.C.), red to. [para. 6].

Quebec (Attorney General) v. Cronier (1981), 63 C.C.C.(2d) 437; 23 C.R.(3d) 97 (Que. C.A.), refd to. [para. 6].

Mayrand v. Cronier (1981), 63 C.C.C.(2d) 561; 23 C.R.(3d) 114 (Que. C.A.), refd to. [para. 6].

R. v. P.R.S. (1987), 38 C.C.C.(3d) 109; 60 C.R.(3d) 159 (Ont. H.C.), refd to. [para. 6].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 26 C.R.N.S. 1; 15 C.C.C.(3d) 524; 44 D.L.R.(3d) 351, refd to. [para. 6].

British Columbia (Attorney General) v. Forseth (1995), 60 B.C.A.C. 310; 99 W.A.C. 310; 99 C.C.C.(3d) 296 (C.A.), refd to. [para. 6].

R. v. Savion and Mizrahi (1980), 52 C.C.C.(2d) 276; 13 C.R.(3d) 259 (Ont. C.A.), refd to. [para. 6].

R. v. O'Quinn, [1976] W.W.D. 130 (B.C.C.A.); 36 C.C.C.(2d) 364, refd to. [para. 6].

Canada (Attorney General) v. Ross (1971), 15 C.R.N.S. 71 (Que. C.A.), refd to. [para. 6].

R. v. Bryers (1975), 28 C.C.C.(2d) 466 (Ont. Co. Ct.), refd to. [para. 6].

R. v. Vales (1979), 46 C.C.C.(2d) 269 (Ont. H.C.), refd to. [para. 6].

R. v. Rhab (1985), 21 C.C.C.(3d) 97 (Ont. H.C.), refd to. [para. 6].

R. v. Walsh (1981), 59 C.C.C.(2d) 554 (Ont. Prov. Div.), refd to. [para. 6].

R. v. McGee (1973), 15 Crim. L.Q. 468 (B.C. Prov. Ct.), refd to. [para. 6].

R. v. Doig, [1961] 130 C.C.C. 95 (B.C.C.A.), refd to. [para. 6].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1, refd to. [para. 6].

Gombash Estate v. R. [1986] 1 S.C.R. 415; 66 N.R. 133; 15 O.A.C. 159; 25 C.C.C.(3d) 297, refd to. [para. 7].

Fleming v. The Queen - see Gombash Estate v. R.

R. v. Mac (K.M.) et al. (1995), 80 O.A.C. 26; 97 C.C.C.(3d) 115 (C.A.), refd to. [para. 7].

R. v. Collins (1983), 7 C.C.C.(3d) 377 (Que. C.A.), refd to. [para. 7].

Thatcher v. Canada (Attorney General), [1997] 1 F.C. 289; 120 F.T.R. 116 (T.D.), refd to. [para. 7].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 490(7) [para. 18]; sect. 605 [para. 33]; sect. 690 [para. 35].

Authors and Works Noticed:

Fontana, J.A., Law of Search and Seizure in Canada (4th Ed.), generally [para. 7].

Counsel:

Damon Gregory Horne, on his own behalf;

John Watson, for the Crown.

This matter was heard at Edmonton, Alberta, on May 19, 1999, before Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on October 13, 1999.