T-4089-74
Morris Jerome Smith (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Addy J.—Toronto, September 2;
Ottawa, September 16, 1975.
Crown—Plaintiff arrested for narcotic trafficking—Money
seized as evidence—Money not related to offence—Plaintiff
not applying for return—Minister now refusing to surrender
money—Whether forfeited to Crown—Narcotic Control Act,
R.S.C. 1970, c. N-1, s. 10(1)(c), (5), (7), (8).
Plaintiff was arrested for trafficking in narcotics, and some
$13,110 found in his possession was seized. There is no evidence
that the money was related to the offence. Plaintiff never
applied for the return of the money, and the question is now
whether he has forfeited the money under section 10(7) of the
Act.
Held, awarding the sum to plaintiff, section 10(7) is not a
limitation section barring right to recovery. In order to consti
tute a procedural limitation of a right of action, the section
must clearly so state. The Minister's power is custodial, and
decides no question of title. Any statute under which the Crown
claims that an absolute property right has been forfeited and
extinguished must clearly so state. As well, under section 10,
the only forfeiture is for money seized which was "used for the
purchase of [a] narcotic". The Minister's discretion is subject
to any property rights of persons interested in the seized
"thing". Additionally, provision that any money seized under
the Act would be forfeited after two months would, in fact, be
ultra vires, as it would infringe on property and civil rights
jurisdiction.
Regina v. Ladd (1963) 43 W.W.R. 237 and Spencer v.
The Queen (1974) 26 C.R.N.S. 231, discussed.
ACTION.
COUNSEL:
A. S. Price for plaintiff.
G. R. Garton for defendant.
SOLICITORS:
Price & Black, Toronto, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
ADDY J.: This is an action for the return to the
plaintiff of the amount of $13,110 seized by offi
cers of the defendant which the plaintiff alleges is
being withheld illegally from him by the
defendant.
The facts in the case are quite simple and were
set out in an agreed statement of facts filed.
The plaintiff had been accused of and eventually
pleaded guilty to a charge of possession of a
narcotic for the purpose of trafficking contrary to
section 4(2) of the Narcotic Control Act'. At the
time of his arrest, the sum of $5,020 was found on
the plaintiff's person and the sum of $8,090 was
found on the premises occupied by the plaintiff.
These sums were seized by the RCMP, at the time
as evidence, under the authority of a writ of
assistance. The amounts were admitted as exhibits
at the plaintiff's trial.
Although not specifically stated in the agreed
statement of facts, at the hearing before me coun
sel for both parties were in agreement that there
was no dispute as to the fact that the plaintiff was,
at the time of the seizure, the owner of the sum of
$13,110 above referred to. There was no evidence
or finding whatsoever that the monies were in any
way related to or used in connection with the
offence to which the accused pleaded guilty. Sec
tion 10(1) of the Narcotic Control Act reads in
part as follows:
10. (1) A peace officer may, at any time,
(a) without a warrant enter and search any place other than
a dwelling-house, and under the authority of a writ of
assistance or a warrant issued under this section, enter and
search any dwelling-house in which he reasonably believes
there is a narcotic by means of or in respect of which an
offence under this Act has been committed;
(b) search any person found in such place; and
(c) seize and take away any narcotic found in such place,
any thing in such place in which he reasonably suspects a
narcotic is contained or concealed, or any other thing by
means of or in respect of which he reasonably believes an
offence under this Act has been committed or that may be
evidence of the commission of such an offence. [The under-
R.S.C. 1970, c. N-1.
lining is mine.]
Section 10(5) of the above-mentioned Act reads
as follows:
(5) Where a narcotic or other thing has been seized under
subsection (1), any person may, within two months from the
date of such seizure, upon prior notification having been given
to the Crown in the manner prescribed by the regulations,
apply to a magistrate within whose territorial jurisdiction the
seizure was made for an order of restoration under subsection
(6). [The underlining is mine.]
There is no dispute between the parties that the
"thing," in section 10(1)(c) above, and "other
thing," in section 10(5) above, must be taken to
include money.
The plaintiff never made any application for the
return of the monies seized as provided for in
section 10(5) above quoted and the case turns on
whether the plaintiff can now bring an action for
the return to him of the monies seized, or whether
section 10(7) in effect operates as a forfeiture of
the monies to the Crown, the Minister, upon
application made to him by the plaintiff for the
return of these monies, having refused to part with
them. Section 10(7) reads as follows:
(7) Where no application has been made for the return of
any narcotic or other thing seized under subsection (1) within
two months from the date of such seizure, or an application
therefor has been made but upon the hearing thereof no order
of restoration is made, the thing so seized shall be delivered to
the Minister who may make such disposition thereof as he
thinks fit. [The underlining is mine.]
In this case, an application was originally made
to the Court of Appeal under section 28 of the
Federal Court Act for review of the decision of the
Minister under which he directed that the monies
be disposed of by depositing same to the account of
the Receiver General of Canada. By judgment
dated the 25th of October, 1974 [[1974] 2 F.C.
43], the Federal Court of Appeal dismissed the
plaintiff's application on the grounds that the
direction of the Minister under section 10(7) of the
Narcotic Control Act was not a decision required
by law to be made on a judicial or on a quasi-judi
cial basis and was therefore not reviewable under
section 28 of the Federal Court Act; the Court also
held that the Minister's power under that subsec
tion as well as under subsection 10(8), to which I
shall refer, was merely custodial and was not a
power to decide any question of title to property.
It appears evident that section 10(7) does not
constitute a limitation section which will bar a
right of action for recovery, for, in order to 'consti-
tute a procedural limitation of a right of action,
the section must clearly state so. In this regard,
counsel for the defendant readily conceded that
section 10(7) was not a limitation provision pre
scribing an otherwise valid right of action, but
argued that it in effect created a forfeiture of the
plaintiff's substantive right of ownership , and
possession if action was not taken within two
months from the date of seizure.
As stated by the Court of Appeal in the former
hearing in the present case, the Minister's power
under section 10(7) (as well as under section
10(8)) is merely custodial and does not decide any
question of title to property.
If, in order to create a procedural bar to an
action, the statute must clearly state so, a fortiori,
any statute under which the Crown claims that an
absolute right to property has been extinguished
and forfeited to it, must clearly state so. The
relevant portions of section 10(8) read as follows:
(8) Where a person has been convicted of an offence under
section ... 4 ... any money so seized that was used for the
purchase of that narcotic ... is forfeited to Her Majesty and
shall be disposed of as the Minister directs.
It is obvious that section 10(8), in addition to
providing that the Minister may direct the disposi
tion of money seized, specifically stipulates that
any money seized which was used for the purchase
of a narcotic is forfeited to Her Majesty. This is
the only case where any provision is made as to
forfeiture of monies and it is clear from the admit
ted facts, in the case at bar, that the monies in
question were not so used. Altogether apart from
the principle that if a statute purporting to forfeit
a property right must specifically state so, in view
of the specific provisions as to forfeiture in subsec
tion (8), I must conclude that subsection (7) does
not in any way provide for the forfeiture of any
property right or any right to possession since no
forfeiture is mentioned in that subsection. Thus,
the discretion of the Minister in that particular
subsection is subject to any property rights of
persons interested in the "thing" seized.
The cases of Regina v. Ladd 2 and Spencer v.
The Queen 3 were referred to by both counsel
during argument.
In the first case, the County Court Judge,
having tried two accused and having found one of
the accused not guilty, upon an application being
made to him on behalf of that accused at the
conclusion of the criminal trial and well after the
expiration of the two-month period, held that he
did not have jurisdiction to order the return of the
money since no application had been made to a
magistrate pursuant to section 10(5) of the Nar
cotic Control Act. In my view, the learned Judge
was quite correct in his decision but the case, of
course, did not deal in any way with the question
presently before me. Similarly in the second case,
the accused having appealed his conviction and
sentence on a charge of possessing hashish for
trafficking applied to the Appeal Court, hearing
the criminal appeal, for the return of certain
monies which had been seized by the police at the
time of the raid. The Appeal Court held that it did
not have the jurisdiction to order the return of the
monies since no application had been made to a
magistrate within two months from the date of the
seizure. The Appeal Court in this instance was of
course sitting as a court of criminal jurisdiction
and had no right to determine any question as to
property and would only be vested with the right to
order the return of the money if the lower court
had been so vested.
It is worthy to note however that MacKeigan,
C.J.N.S., in delivering orally the decision of the
Court, is quoted at page 233 as having said:
According to the evidence given at the trial $300 of the
$1,930 was paid by Constable Arsenault to one Philip Wills for
the purchase of hashish and then turned over by Wills to
Spencer shortly before the search. That $300, doubtless, will be
returned by the Minister to the R.C.M.P., from whom it
originally came. It may in event be forfeitable under s. 10(8)
since it was money used for the purchase of narcotics which
had been in Spencer's house. The rest of the money would
2 (1963) 43 W.W.R. 237.
3 (1974) 26 C.R.N.S. 231.
appear to belong to Spencer who may apply to the Minister for
its return. [The underlining is mine.]
It is quite clear from the above statement that
the Court was not considering any question of title
or the question of whether, in a proper action for
possession, section 10(7) would act as a bar to
recovery.
It seems quite clear to me that subsections (5)
and (7) of section 10 are merely procedural and
custodial. They provide a ready mechanism for a
person to obtain by some re-application the return
of anything which has been seized and also provide
for the custody of same in the event of any
application not being made or in the event of the
application being denied. They do not either
explicitly or by necessary implication cause any
property right to be forfeited.
I might add that if, in enacting these subsec
tions, the Parliament of Canada did purport to
provide that any money whatsoever, seized in a
police raid under the Narcotic Control Act, includ
ing money which is not eventually connected with
the commission of a criminal offence, would be
forfeited to the Crown in the right of Canada in
the event of an application not being made for the
return of same within two months, then, these
provisions would be ultra vires as infringing on the
property and civil rights jurisdiction of the
provinces.
For the above reasons, I find that the plaintiff is
entitled to the relief claimed and a judgment shall
issue against the Crown in the amount of $13,110
plus costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.