R. v. Martint, (1977) 5 A.R. 131 (CA)

JudgeMcDermid, Moir and Laycraft, JJ.A.
CourtCourt of Appeal (Alberta)
Case DateJune 21, 1977
Citations(1977), 5 A.R. 131 (CA)

R. v. Martint (1977), 5 A.R. 131 (CA)

MLB headnote and full text

R. v. Martint

Indexed As: R. v. Martint

Alberta Supreme Court

Appellate Division

McDermid, Moir and Laycraft, JJ.A.

June 21, 1977.

Summary:

This case arose out of a charge against the accused of possession of heroin for the purpose of trafficking contrary to s. 4(1) of the Narcotic Control Act, R.S.C. 1970, c. N-1. The accused was arrested in his motel room, where the police found and seized a quantity of heroin and $3,099.00 in cash. The accused applied under s. 10(5) of the Narcotic Control Act for a return of the money seized, but the application was abandoned. At his trial the accused was found guilty of possession of heroin, but not guilty of possession for the purpose of trafficking. The trial judge then ordered the return of the seized cash to the accused. The Crown applied for an order in the nature of certiorari to review the order of restoration. The Alberta Supreme Court dismissed the application. The Crown appealed.

The Alberta Court of Appeal allowed the appeal and held that, since no appeal was otherwise available to the Crown under s. 605(1) of the Criminal Code of Canada, R.S.C. 1970, c. C-34, the Crown could apply for an order of certiorari to review the order. The Court of Appeal found that the trial judge exceeded his jurisdiction in refusing to hear evidence on the issue of whether the police officers made the seizures pursuant to a writ of assistance. The Court of Appeal set aside the judge's order and referred the matter for a determination of whether the facts exist which would give the judge the statutory power to make a restoration order.

Administrative Law - Topic 5003

Judicial review - Certiorari - When available - Where no appeal available - A judge of provincial court ordered the restoration of funds seized from an accused under s. 10 of the Narcotic Control Act, R.S.C. 1970, c. N-1 - The Alberta Court of Appeal held that the Crown could apply for an order of certiorari from the order, since no appeal was otherwise available to the Crown under s. 605(1) of the Criminal Code of Canada, R.S.C. 1970, c. C-34.

Narcotic Control - Topic 1106

Penalties - Forfeiture of seized goods - Relief from forfeiture - Order for restoration -Narcotic Control Act, R.S.C. 1970, c. N-1, s. 10 - Review of order for restoration - A judge of provincial court ordered the restoration of funds seized from an accused under s. 10 of the Narcotic Control Act, R.S.C. 1970, c. N-1 - The Alberta Court of Appeal held that the Crown could apply for an order of certiorari to review the order, since no appeal was otherwise available to the Crown under s. 605(1) of the Criminal Code of Canada, R.S.C. 1970, c. C-34.

Cases Noticed:

Chad Investments Ltd. v. Longson, Tammets and Denton Real Estate Ltd. et al. (1971), 20 D.L.R.(3d) 627, appld. [para. 13].

R. v. Ladd, [1964] 1 C.C.C. 309; 41 C.R. 333 [para. 16].

R. v. Spencer (No. 2) (1974), 16 C.C.C.(2d) 514; 26 C.R.N.S. 231, appld. [para. 16].

Smith v. The Queen (1976), 27 C.C.C.(2d) 252, appld. [para. 16].

R. v. C.P. Ltd., [1977] 1 W.W.R. 203, appld. [para. 13].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 438 [para. 17]; sect. 601 [para. 15]; sect. 605(1) [para. 14].

Narcotic Control Act, R.S.C. 1970, c. N-1, sect. 10 [para. 11].

Counsel:

Manfred Delong, for the Crown appellant;

Rostyk Sadownik, for the accused.

This case was heard before McDERMID, MOIR and LAYCRAFT, JJ.A., of the Alberta Supreme Court, Appellate Division.

On June 21, 1977, MOIR, J.A., delivered the following judgment for the Appellate Division:

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1 practice notes
  • R. v. Lewis, (1979) 21 A.R. 236 (CA)
    • Canada
    • Court of Appeal (Alberta)
    • October 23, 1979
    ...goods under s. 10(6) of the Act ceased once the goods were made exhibits at trial - See paragraph 11. Cases Noticed: R. v. Martint (1977), 5 A.R. 131; 35 C.C.C.(2d) 366, refd to. [para. R. v. Tupper (1977), 32 C.C.C.(2d) 529, refd to. [para. 12]. Statutes Noticed: Narcotic Control Act, R.S.......
1 cases
  • R. v. Lewis, (1979) 21 A.R. 236 (CA)
    • Canada
    • Court of Appeal (Alberta)
    • October 23, 1979
    ...goods under s. 10(6) of the Act ceased once the goods were made exhibits at trial - See paragraph 11. Cases Noticed: R. v. Martint (1977), 5 A.R. 131; 35 C.C.C.(2d) 366, refd to. [para. R. v. Tupper (1977), 32 C.C.C.(2d) 529, refd to. [para. 12]. Statutes Noticed: Narcotic Control Act, R.S.......

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