Mainville, Healy, Cournoyer

Appeal from a judgment of the Superior Court dismissing an application for prohibition and certiorari in aid. Allowed.

The three appellants were among eleven persons charged with offences under the Criminal Code (R.S.C. 1985, c. C-46) (Cr. C.) and the Controlled Drugs and Substances Act (S.C. 1996, c. 19). One of the co-accused pleaded guilty. Later, the Court of Québec pronounced a stay of proceedings for unreasonable delay against eight co-accused, including the appellants. The respondent then brought proceedings for the forfeiture of property seized or detained in the course of a police investigation. The judge of the Court of Québec affirmed its jurisdiction to hear the application for forfeiture despite the stay of proceedings. The Superior Court dismissed the appellants’ application for prohibition and certiorari in aid to prevent the continuation of proceedings before the Court of Québec and confirmed that the Court of Québec had jurisdiction to hear the applications for forfeiture.

As under subsection 462.37(1) Cr. C., an order under subsection 462.37(2) Cr. C. concerning proceeds of crime may be made only when the court has made a finding of guilt or granted a discharge. A regime similar to that in section 462.37 Cr. C., with the same conditions, exists in section 16 of the Controlled Drugs and Substances Act. As for the order set out in subsection 491.1(2) Cr. C. concerning property obtained by crime, two conditions must be satisfied: the accused must have been tried, and the Court must have concluded that an offence was committed.

In this case, first, there was no trial because a stay of proceedings was ordered with respect to the appellants. Second, there was no proof that an offence was committed except for the guilty plea by a co-accused on one of the counts of the indictment. That guilty plea does not confer jurisdiction on the Court of Québec with respect to the other co-accused and all the property contemplated by the application for forfeiture, including property unrelated to the offence for which the co-accused pleaded guilty.

Moreover, no criminal liability was proved against the appellants, and the effect of the stay of proceedings granted by the Court of Québec was to foreclose any possibility that criminal liability could be proved against them. In the absence of such proof, there is no jurisdiction pursuant to subsections 462.37(2) and 491.1(2) Cr. C. or subsection 16(2) of the Controlled Drugs and Substances Act on which the application for forfeiture can proceed.

Text of the decision: http://citoyens.soquij.qc.ca