R. v. Scott (K.D.), 2015 MBCA 43

• Judge: Beard, Monnin and Cameron, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: April 20, 2015
• Jurisdiction: Manitoba
• Citations: 2015 MBCA 43;(2015), 319 Man.R.(2d) 39 (CA)

R. v. Scott (K.D.) (2015), 319 Man.R.(2d) 39 (CA);

      638 W.A.C. 39

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. MY.013

Her Majesty The Queen (respondent) v. Kurtis Donald Scott (accused/appellant)

(AR 14-30-08259; 2015 MBCA 43)

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

Manitoba Court of Appeal

Beard, Monnin and Cameron, JJ.A.

April 20, 2015.

Summary:

The accused appealed the dismissal of his motion for the return of his wife's Buick Rendezvous sport utility vehicle that was seized by the police pursuant to a search warrant issued under s. 11 of the Controlled Drugs and Substances Act. The Crown opposed the appeal on its merits and, in addition, filed a motion to strike the appeal on the basis that it was an appeal of an interlocutory order made in a criminal proceeding and there was no jurisdiction under the Criminal Code to appeal such an order.

The Manitoba Court of Appeal held that the motion judge did not err in dismissing the accused's motion. To the extent that the court was without jurisdiction to hear the appeal of an interlocutory decision, the court granted the motion and struck the appeal. To the extent that there was jurisdiction to appeal, the court dismissed the appeal.

Criminal Law - Topic 2965

Jurisdiction - Appeals - Interlocutory orders - General - [See both Criminal Law - Topic 3170 ].

Criminal Law - Topic 3170

Special powers - Power of seizure - Detention or return of things seized - The accused appealed the dismissal of his motion for the return of his wife's Buick Rendezvous sport utility vehicle that was seized by the police pursuant to a search warrant issued under s. 11 of the Controlled Drugs and Substances Act - The Crown moved to strike the accused's appeal on the basis that it was an appeal of an interlocutory order and there was no jurisdiction under the Criminal Code to appeal such an order - The Crown relied on ss. 674 and 675 of the Code - The Manitoba Court of Appeal stated that "I agree that ss. 674 and 675 would generally lead to an appeal of an interlocutory order being struck for lack of jurisdiction. ...  This includes a decision on a motion in a criminal proceeding that affects Charter rights ... There is, however, jurisdiction under subs. 490(17) of the Criminal Code to appeal orders granted under subss. 490(9) and (11) of the Criminal Code. Thus, if the accused had the right to make an application under subss. 490(8) and (9) of the Criminal Code for the return of the SUV, then he would have the right to appeal the dismissal of that motion under in subs. 490(17), whether or not the order is interlocutory in nature" - See paragraphs 8 to 10.

Criminal Law - Topic 3170

Special powers - Power of seizure - Detention or return of things seized - The accused appealed the dismissal of his motion for the return of his wife's Buick Rendezvous sport utility vehicle (the SUV) that was seized by the police pursuant to a search warrant issued under s. 11 of the Controlled Drugs and Substances Act (CDSA) - The Manitoba Court of Appeal held that the motion judge did not err in dismissing the accused's motion - The accused's wife had not made any application for the return of the SUV, so the court was not in a position to deal with her rights - That said, an application under s. 19 of the CDSA was made during a forfeiture hearing, which came only after the accused had been convicted - As there had, as yet, been no trial, any such application by her would be premature - Likewise, if she had a claim for a remedy under the Charter, she had to advance that claim on her own behalf and by following the appropriate procedures - Finally, if the wife had a claim under ss. 490(10) and (11) of the Criminal Code, that claim would be subject to the same problem as a motion by the accused under ss. 490(8) and (9) - Given that s. 490 could not be used to obtain the return of items on the basis that the seizure was unlawful, to the extent that the accused's application was based on s. 490, it had to fail - Further, neither the accused, under s. 490(9), nor his wife, under ss. 490(10) and (11), would be able to meet the prerequisites for the return of the SUV - Therefore, even if the accused and his wife could appeal any adverse findings, their appeals could not succeed - The motion judge addressed any Charter application regarding unlawful seizure that the accused may have been advancing by finding that any Charter issues should be decided at the trial, on the basis of an adequate evidentiary record - That was an interlocutory decision and, as such, it was not open to appeal - See paragraphs 11 to 21.

Criminal Law - Topic 4825

Appeals - Indictable offences - Right of appeal - From an interlocutory decision - [See both Criminal Law - Topic 3170 ].

Cases Noticed:

R. v. Druken (J.K.), [1998] 1 S.C.R. 978; 228 N.R. 1; 166 Nfld. & P.E.I.R. 107; 511 A.P.R. 107, refd to. [para. 9].

R. v. Meltzer and Laison, [1989] 1 S.C.R. 1764; 96 N.R. 391, refd to. [para. 9].

R. v. Teerhuis-Moar (S.) (2008), 228 Man.R.(2d) 248; 427 W.A.C. 248; 2008 MBCA 85, refd to. [para. 9].

R. v. Hyra (J.) (2015), 315 Man.R.(2d) 121; 630 W.A.C. 121; 2015 MBCA 17, refd to. [para. 9].

R. v. Raponi (W.), [2004] 3 S.C.R. 35; 323 N.R. 373; 354 A.R. 292; 329 W.A.C. 292; 2004 SCC 50, refd to. [para. 14].

R. v. Backhouse (J.) (2005), 195 O.A.C. 80 (C.A.), refd to. [para. 14].

R. v. Alekseev (1990), 58 C.C.C.(3d) 544 (B.C. Prov. Ct.), refd to. [para. 17].

R. v. Alchin (2007), 61 M.V.R.(5th) 278; 2007 ONCJ 589, refd to. [para. 18].

R. v. Nikitczuk (J.), [2009] O.T.C. Uned. E05; 244 C.C.C.(3d) 389 (Sup. Ct.), refd to. [para. 18].

R. v. Dawson (C.), [2013] O.T.C. Uned. 4706; 48 M.V.R.(6th) 106; 2013 ONSC 4706, refd to. [para. 18].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 489.1, sect. 490 [para. 3]; sect. 674, sect. 675 [para. 8].

Counsel:

K.D. Scott, on his own behalf;

J.S. Kliewer, for the respondent.

This appeal was heard on April 20, 2015, before Beard, Monnin and Cameron, JJ.A., of the Manitoba Court of Appeal. The following decision of the Court of Appeal was delivered by Beard, J.A., on the same date.