R v. Shiner

In Fish Cases, Forfeiture, Offences on (Updated )

This case involved the seizure of a large number of seal pelts pursuant to a prosecution under the Marine Mammal Regulations. After the expiration of an order granted by a justice of the peace to extend the time for detention of the seized items and before sentence for one accused and the trial of others, the fishers brought an application under both s. 490.01 of the Criminal Code and ss. 71(1) and 73.1(1) of the Fisheries Act for compensation for the value of the seized pelts that had been disposed of.

In this application, the fishers argued that the seized goods or the proceeds of sale there from should be returned because of the expiration of the order extending the time for detention. The Crown argued that the applications were premature.

In denying the application, the court ruled as follows:

1) Based in part upon s. 34(2) of the Interpretation Act, the Criminal Code provisions were not applicable (para. 18);

2) The court has no inherent jurisdiction to order that seized items be returned (para. 32);

3) The failure to obtain an extension of time to hold goods as required by s. 71(3) and (4) of the Fisheries Act does not necessarily make the seizure unlawful or give the court the authority to order the goods released (para. 33);

3) The court had no statutory jurisdiction to order return of the seized items until either (a) at a sentence hearing it has exercised its discretion under s. 72(1) to not order forfeiture; or (b) after the final conclusion of a proceeding under s. 73.1. For reasons that were not explained, the court also stated an order could result from an evidentiary ruling at trial? (para. 34).

Editor’s note: The court’s finding that the Criminal Code provisions regarding seized goods have no application is consistent with an earlier decision of the S.C.C. R. v. Ulybel Enterprises Ltd. 2001 SCC 56 (digested herein) at paragraph 37. For a B.C. case regarding the legal implications of failure to obtain an extension of time for detention of goods see R. v. Reid [2006] B.C.J. No. 1202, 2006 BCPC 220 (digested herein).