R. v. Harb

R. v. Harb Court Court of Appeal Date 1994-02-23 Citation 1994 NSCA 55 Docket 02937, CAC 02951 Judge/Registrar/Adjudicator Clarke, Lorne O. (Honourable Chief Justice); Hallett, J. Doane (Honourable Justice) (CA); Matthews, Kenneth M., (Honourable Justice) Document Type Decision Decision Content C.A.C. No. 02951/02937 NOVA SCOTIA COURT OF APPEAL Cite as: R. v. Harb, 1994 NSCA 55 Clarke, CJNS; Hallett and Matthews, JJ.A. BETWEEN: THERESA MARIE HARB ) Victor J. Goldberg ) for the Appellant Appellant ) ) - and - ) ) Kenneth W.F. Fiske, Q.C. ) for the Respondent HER MAJESTY THE QUEEN ) ) Respondent ) Appeal Heard: ) February 7, 1994 ) ) ) Judgment Delivered: ) February 23rd, 1994 ) ) ) ) ) ) ) ) THE COURT: Appeal from conviction dismissed; the Crown's appeal from the refusal to order forfeiture is allowed and the forfeiture question is remitted to the trial judge per reasons for judgment of Hallet, J.A.; Clarke, C.J.N.S. and Matthews, J.A. concurring. HALLETT, J.A. The appellant was convicted of keeping a gambling device contrary to s. 202(1)(b) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. We have reviewed the decision of the learned trial judge and the points raised on the appeal. We are satisfied that there were no errors in fact or in law and the appeal ought to be dismissed. The appellant had also been charged with keeping a gaming house contrary to s. 201 of the Code. After the conviction on the s. 202(1)(b) offence the Crown did not offer evidence on the second count and it was dismissed. The Crown made application to the presiding judge of the Provincial Court for an order for forfeiture of the gambling machines, the keys to those machines and the money found in them when they were seized by the police. The Crown argued before the learned trial judge that the property which was seized by a search warrant issued pursuant to s. 487 of the Criminal Code is a seizure made under s. 199(2) and therefore the trial judge could have ordered a forfeiture pursuant to s. 199(3). Section 199(1), (2) and (3) of the Code state: " 199. (1) A justice who receives from a peace officer a report in writing that he believes on reasonable grounds that an offence under section 201, 202, 203, 206, 207 or 210 is being committed at any place within the jurisdiction of the justice may issue a warrant under his hand authorizing a peace officer to enter and search the place by day or night and seize anything found therein that may be evidence that an offence under section 201, 202, 203, 206, 207 or 210, as the case may be, is being committed at that place, and to take into custody all persons who are found in or at that place and requiring those persons and things to be brought before him or before another justice having jurisdiction, to be dealt with according to law. (2) A peace officer may, whether or not he is acting under a warrant issued pursuant to this section, take into custody any person whom he finds keeping a common gambling house and any person whom he finds therein, and may seize anything that may be evidence that such an offence is being committed and shall bring those persons and things before a justice having jurisdiction, to be dealt with according to law. (3) Except where otherwise expressly provided by law, a court, judge, justice or provincial court judge before whom anything that is seized under this section is brought may declare that the thing is forfeited, in which case it shall be disposed of or dealt with as the Attorney General may direct if no person shows sufficient cause why it should not be forfeited." Section 199(1) was held to be unconstitutional by this court in R. V. ARC Amusements Ltd., et al (1991), 108 N.S.R. (2d) 352. It does not meet the minimal requirement for obtaining a search warrant in that the information of the police officer that forms the basis for a justice of the peace issuing the warrant is not supported by an oath as to its truth. The learned trial judge, after stating that the items were seized under s. 487(1) concluded that a s. 199(3) forfeiture refers to items seized under s. 199 and therefore s. 199(3) could not be used to effect the forfeiture. He relied on a statement in Fontana, The Law of Search and Seizure in Canada, 3rd edition at p. 424 which in turn seemed to have been based on the decision of the Manitoba Court of Appeal in R. V. Rocco (1931), 55 C.C.C. 323. In Rocco Prendergast, C.J.M. stated at p. 324: " The ground of appeal is that the confiscated machine was not seized under a search warrant. There is no section in the Code providing in general terms that the devices, weapons or material things which are the subject-matter or the means of committing offences may be confiscated either with or without a search warrant. When confiscation is intended, it is provided for with respect to some particular offence or group of kindred offences." The decision in Rocco turned on the fact that the accused had been charged with an offence not covered by the section that authorized the seizure. The accused had been charged only with keeping a gambling device not keeping a gaming house. In the appeal we have under consideration the appellant had been charged with both offences. After referring to the above quotation from the Rocco decision the learned trial judge stated: " Confiscation clearly was intended in relation to gambling devices. The difficulty is that the Crown can no longer seize under s. 199(1) and, therefore, cannot bring itself in, and I so find, cannot bring itself in within the provisions of that section with respect to specifically designated confiscatory powers created by statute and unique to that particular section. It is clear that I am disagreeing with the determination in the Pony case. I have considered that determination by that Learned Judge and I respectfully disagree with his reasoning. In the specific then, for the reasons stated, I do not find that I have the power to order confiscation, forfeiture in relation to the items seized properly under s. 487." In the case we have under consideration the seizure was made pursuant to s. 487 of the Code and was a lawful seizure. It is clear from the evidence and the face of the search warrant that it was not issued under s. 199(1). The constitutionality of s. 199(2) has not been challenged on this appeal. On a plain meaning of the words used in s. 199(2) a peace officer, if he finds a person keeping a common gaming house, may seize anything that may be evidence that an offence of keeping a gaming house has been committed whether or not he is acting under a warrant issued pursuant to s. 199. Counsel for the appellant has argued that to hold that a search and seizure made pursuant to s. 487(1) is a seizure under s. 199(2) is to torture the language of s. 199(2). It is fair to say that when s. 199(2) was enacted Parliament intended to provide a means to allow peace officers to make seizures without warrant. On the other hand Parliament would not have envisaged s. 199(1) being struck down as the Charter was not part of Canada's Constitution when s. 199 was enacted. Counsel for the appellant argues that s. 199 must be looked at as a self contained package of powers and that the Crown cannot suggest that the meaning of s. 199(2) be extended to include a search and seizure made under s. 487. The learned trial judge accepted this. With respect, I disagree; Section 199(2) simply says that a peace officer may, whether or not he is acting under a warrant issued pursuant to S. 199, take into custody any person whom he finds keeping a common gaming house and may seize anything that may be evidence that such an offence is being committed. The section is very broad and in my opinion a seizure made pursuant to s. 487(1) comes within the perview of s. 199(2). The words of s. 199(2) interpreted according to their plain literal meaning make this clear. The language of s. 199(2) does not have to be tortured to come to the conclusion. If there was any doubt that a seizure could be made under s. 199(2) as a result of a search authorized by s. 487 of the Code the decision of the Supreme Court of Canada in R. v. Grant, [1993] 3 S.C.R. 223 would put the doubt to rest. In concluding that a warrant issued under s. 487 of the Code could be used by the police with regard to narcotic search and seizure operations under the Narcotic Control Act, R.S.C. 1985, Chap. N-1 Justice Sopinka in the Grant decision stated at page 249 that the police would nevertheless be bound by the power specified under whichever statutory framework they had chosen to apply for the search warrant, that is, either s. 487 of the Criminal Code or s. 12 of the Narcotic Control Act. This leads to the question that where the police chose to obtain a warrant under s. 487 in the case we have under consideration does that mean that the things seized could not be forfeited under s. 199(3). I have concluded that insofar as s. 8 of the Charter does not extend to protect property rights that the comments of Sopinka J. that the police officers are circumscribed by the statutory framework they choose to invoke to make the search relates only to the search power and not the power of forfeiture conferred on a judge under s. 199(3). No issue was raised either at trial or on this appeal that the appellant was not keeping a common gaming house when the police entered the premises and seized the machines. The fact that the Crown did not proceed with the charge against the appellant of keeping a common gaming house following the conviction on the s. 202(1)(b) offence does not invalidate the seizure. In summary, s. 199(2) provides for a seizure other than a seizure resulting from a warrant issued under s. 199(1). In my opinion it was open to the police to search and seize the gambling devices under s. 487(1) and such a seizure falls within the wording of s. 199(2) of the Code. Therefore there was a lawful seizure because there was no suggestion that the police acted in any manner that was unreasonable in carrying out the search and seizure. In enacting s. 199(3) Parliament intended that if things which were lawfully seized under either s. 199(1) or (2) were brought before a provincial court judge, he or she would have the discretion to declare the things forfeited. The Charter of Rights and Freedoms does not assist the appellant's position with respect to the forfeiture. The essence of the right guaranteed by s. 8 of the Charter (to be secure from unreasonable search and seizure) is to protect a person's right to privacy. The purpose of s. 8 is not to protect persons rights to property (re Workers' Compensation Board of Nova Scotia v. Coastal Rental Sales & Services Ltd. et al. (1983), 12 D.L.R. (4th) 564 (N.S.S.C.); Re Becker and The Queen in Right of Alberta (1983), 148 D.L.R. (3d) 539 (Alta C.A.). For example, the word "seizure" as used in s. 8 of the Charter does not extend to protect a person from expropriation laws (Re Becker, supra). Nor does seizure as used in s. 8 of the Charter extend to liens on property seized under s. 102 of the Customs Act, R.S.C. 1970 c. C-40 which provides that release of imported goods may be refused pending payment of duty. (Montreal Lithographing Ltd. v. Deputy Minister of National Revenue for Customs and Excise (1983), 8 C.R.R. 299 (F.C.T.D.)). In that decision the court affirmed the statement in the Becker case that the freedom to be secure from unreasonable search and seizure protected by s. 8 relates to searches and seizures in respect of persons and not in respect of property. In R. v. Munn (1990), 54 C.C.C. (3d) 397 (Nfld. S.C.) the court held that the automatic forfeiture, pursuant to provincial legislation, of a radar detection device does not constitute a search or seizure and is not subject to challenge under s. 8 of the Charter. In Serrano v. Canada (1992), 73 C.C.C. (3d) 437; 91 D.L.R. (4th) 747 the court held that a restraint order made pursuant to s. 462.33 of the Code which authorizes the judge to make a restraint order against property if that property may be forfeited under s. 462.37 as being the proceeds of a crime does not constitute a seizure under s. 8 of the Charter. The Court, in that case, made the point that the restraint order does not interfere with the right to privacy which is the essence of s. 8 of the Charter. Based on the foregoing authorities a forfeiture of property under s. 199(3) is not a seizure within the meaning of s. 8 of the Charter. Counsel for the appellant argued that this court decided in R. v. ARC Amusements Ltd., et al (1991), 108 N.S.R. (2d) 352 that a section 487 search and seizure could not be grafted onto a seizure made under s. 199 so as to validate a search and seizure made under s. 199. He argues that the doctrine of stare decisis makes this decision binding on this court. In that case two search warrants had been issued; one under s. 199(1) and another under s. 487. In that case this court dismissed the Crown appeal from the decision of the provincial court judge who had ruled that the seizure under s. 199(1) of the Code infringed s. 8 of the Charter. This court held that as no attempt had been made to justify the search the search under subsection 1 of the Charter, then s. 199(1) was consequently of no force or effect under s. 52(1) of the Constitution Act, 1982. The only argument put to the court by the Crown on that appeal was that the court should read into s. 199(1) the minimal procedural safeguards for the issuance of a search warrant under s. 487(1) so as to satisfy the constitutional objection. The court rejected this argument. In the ARC Amusements case the court concluded its decision with the following statement: " As the search under s. 199(1) was not lawful, I agree with the trial judge that an order of forfeiture could not be made under s. 199(3). In the result I would grant leave to appeal and dismiss the appeal and confirm the order of the trial judge." It must be remembered that the scope of the appeal in that case did not involve an attempt by the Crown to justify the search and seizure under s. 199(2). This is clear from paragraph 5 where Mr. Justice Jones stated: " On the argument on the appeal, counsel for the Crown conceded that the application for forfeiture was not being pursued under s. 490 or 199(2) of the Code. The Crown also conceded that s. 199(1) did not provide a standard of reasonableness for search and seizure compatible with s. 8 of the Charter. The following is from the appellant's factum: 'The appellant's essential submission is that the learned Provincial Court judge could have read into the provisions of s. 199(1) the minimum procedural safeguards required for a reasonable search to comply with s. 8 of the Charter. Those minimum procedural safeguards were met on the facts of this case. An information on oath was presented to the Justice, and reasonable grounds existed for the issuance of the warrant. In these circumstances, the appellant respectfully submits Judge Sherar erred in striking down not only s. 199(1) of the Code but also the forfeiture proceedings brought under s. 199(3).'" As a consequence this court did not consider if a seizure under s. 487(1) was within the scope of s. 199(2). Therefore the doctrine of stare decisis does not apply to the issue raised on this appeal. The appellant's counsel also argued that the refusal to order forfeiture is a matter of discretion for the trial judge and this court should not interfere with the trial judge's decision to refuse the Crown's application in this case. With respect, I disagree. In this case the learned trial judge refused to order forfeiture not because he decided it would be inappropriate to do so on the facts of this particular case but as a result of a misinterpretation of the relevant provisions of the Criminal Code. In my opinion the learned trial judge erred in rejecting the reasoning on this issue in R. v. Pony Amusements Inc. (1991), 14 W.C.B. (2d) 632 . In my opinion the search and seizure made under s. 487 of the Code in this case was a seizure within the meaning of s. 199(2) and therefore an order for forfeiture could have been made by the learned trial judge pursuant to s. 199(3). Prior to imposing sentence in connection with the conviction of the appellant for the s. 202(1)(b) offence of keeping gambling devices the learned trial judge dealt with the forfeiture application. After dismissing it he fined the appellant $660 and in default two weeks in jail. Section 199(3) gives the provincial court judge the discretion whether or not to declare forfeiture of the things seized under s. 199(2). As a general rule gambling devices, being unlawful, should be forfeited unless the owner can show sufficient cause why they should not be. Obviously a judge when considering what an appropriate sentence would be in a given case would give consideration to whether or not a forfeiture was ordered and the effect of it on the person convicted. The transcript would indicate that the learned trial judge had this in mind. Therefore it would be appropriate to return the matter to the trial judge to deal with the forfeiture application. The appeal from conviction is dismissed; the Crown's appeal from the refusal to order forfeiture is allowed and the forfeiture question is remitted to the trial judge. Hallett, J.A. Concurred in: Clarke, C.J.N.S. Matthews, J.A. C.A.C. No. 02951/02937 NOVA SCOTIA COURT OF APPEAL BETWEEN: THERESA MARIE HARB ) Appellant ) - and - ) REASONS FOR ) JUDGMENT BY: HER MAJESTY THE QUEEN ) ) HALLETT, J.A. ) Respondent ) ) ) ) ) ) )