Savard, Vauclair, Lavallée
Application for leave to appeal from a judgment of the Superior Court allowing the appeal of a judgment of the Court of Quebec ordering the forfeiture of an amount of money seized. Dismissed.
The Crown seeks leave to appeal from a judgment of the Superior Court acting as an appeal court under s. 490(17) of the Criminal Code (R.S.C. 1985, c. C-46) (Cr. C.). It acknowledges that it does not have a clear right of appeal in this respect and asks the Court to clarify the issue.
Section 490(17) Cr. C. provides a right of appeal from an order made under ss. 490(8), 490(9), 490(9.1), or 490(11) Cr. C. The appeal must be brought before a different court, depending on the initial decision-maker. The appeal must be brought before the Court of Appeal only when the initial order was made by a judge of the Superior Court. In any other case, such as this one, the appeal is brought before the Superior Court.
As noted in Duguay c. R. (C.A., 1983-11-11), 500-10-000271-831, and in R. v. Hickey, 2003 NBCA 91, the right to appeal from an order made by the Superior Court regarding the detention and return of things seized did not exist before the 2008 amendment to the Criminal Code introducing it. However, contrary to what the Crown submits, neither the wording of, nor the circumstances surrounding those legislative amendments suggest that Parliament intended to create a second level of appeal.
In Denis c. Côté (C.A., 2018-04-12), 2018 QCCA 611, SOQUIJ AZ-51484765, 2018EXP-1114, at paragraph 26, the Court stated that it lacked jurisdiction to act as a second level of appeal pursuant to a statutory provision that provided an appeal mechanism similar to the one here, that is, [translation] “a single level of appeal, which varies depending on the identity of the court … initially charged with hearing and deciding the matter”.
That analysis was confirmed by the Supreme Court in Denis c. Côté (S.C. Can., 2019-09-27), 2019 SCC 44, SOQUIJ AZ-51631486, 2019EXP-2674, which reinforces the conclusion that the appeal proposed in this case is not available under s. 490(17) Cr. C. and, consequently, the Court does not have jurisdiction to hear it.
Interpretation of s. 490(17) Cr. C.
Text of the decision: Http://citoyens.soquij.qc.ca