Truong v. Canada (Attorney General), 2009 SKQB 139

• Judge: Whitmore, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 20, 2009
• Jurisdiction: Saskatchewan
• Citations: 2009 SKQB 139;(2009), 333 Sask.R. 256 (QB)

Truong v. Can. (A.G.) (2009), 333 Sask.R. 256 (QB)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. AP.031

Barbara Truong (applicant) v. The Attorney General of Canada (respondent)

(2008 Q.B.C. No. 16; 2009 SKQB 139)

Indexed As: Truong v. Canada (Attorney General)

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Whitmore, J.

April 20, 2009.

Summary:

The RCMP executed a search warrant on the applicant's property. The applicant was charged with conspiring to produce marijuana and conspiring to possess marijuana for the purposes of trafficking. A court issued a Restraint and Management Order with respect to the applicant's property pursuant to s. 14(1) and s. 14.1(1) of the Controlled Drugs and Substances Act. The applicant was not committed to stand trial on the conspiracy charges but was committed to stand trial on charges of production of marijuana and possession of marijuana for the purposes of trafficking. The applicant applied to vacate the restraint order on the basis that the offences for which the property was seized, namely the conspiracy charges, no longer existed. The applicant also argued that there was no procedure in the Act to provide for the termination of a restraint order other than that set out at s. 19, but those provisions only arose when an application for forfeiture was made. The applicant argued that there was therefore no effective remedy at this time for the applicant and the court could rely on its inherent jurisdiction to fill the gap in the legislation.

The Saskatchewan Court of Queen's Bench held that there was a procedure set out in s. 19 of the Act to have the restraint order set aside but it was premature for the applicant to make that application, as there was no application for forfeiture before the court. The court therefore did not have jurisdiction to vacate the order, as there was no application for forfeiture before it.

Narcotic Control - Topic 2105

Search and seizure - Restraint and other orders - Varying, vacating or setting aside - The RCMP executed a search warrant on the applicant's property - The applicant was charged with conspiring to produce marijuana and conspiring to possess marijuana for the purposes of trafficking - A court issued a Restraint and Management Order with respect to the applicant's property pursuant to s. 14(1) and s. 14.1(1) of the Controlled Drugs and Substances Act - The applicant was not committed to stand trial on the conspiracy charges but was committed to stand trial on charges of production of marijuana and possession of marijuana for the purposes of trafficking - The applicant applied to vacate the restraint order on the basis that the offences for which the property was seized, namely the conspiracy charges, no longer existed - The applicant also argued that there was no procedure in the Act to provide for the termination of a restraint order other than that set out at s. 19, but those provisions only arose when an application for forfeiture was made - The applicant argued that there was therefore no effective remedy at this time for the applicant and the court could rely on its inherent jurisdiction to fill the gap in the legislation - The Saskatchewan Court of Queen's Bench held that there was a procedure set out in s. 19 of the Act to have the restraint order set aside but it was premature for the applicant to make that application, as there was no application for forfeiture before the court - The court therefore did not have jurisdiction to vacate the order, as there was no application for forfeiture before it.

Cases Noticed:

R. v. Trang (D.) (2004), 357 A.R. 1; 334 W.A.C. 1; 28 Alta. L.R.(4th) 50; 2004 ABCA 246, consd. [para. 13].

783783 Alberta Ltd. v. Canada (Attorney General) et al. (2009),  466 A.R. 1; 2009 ABQB 149, refd to. [para. 15].

R. v. Matkowski (L.M.L.) (2005), 274 Sask.R. 64; 365 W.A.C. 64; 2005 SKCA 132, consd. [para. 21].

Statutes Noticed:

Controlled Drugs and Substances Act, S.C. 1996, c. 19, sect. 14(2) [para. 9]; sect. 19 [para. 26].

Counsel:

Jay I. Solomon, for the applicant;

Eric J. Neufeld, Q.C., for the respondent.

This application was heard before Whitmore, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on April 20, 2009.