A-740-76
Manfred Postel, Winfried Bastian, Bjorn Ole
Hindsberg (Applicants)
v.
Judge Patrick Falardeau (Respondent)
and
Attorney General of Canada (Mis -en-cause)
Court of Appeal, Jackett C.J., Pratte and Le Dain
JJ.—Montreal, June 1, 1977.
Judicial review — Jurisdiction for s. 28 application depend
ent on applicants' obtaining restitution pursuant to s. 10(5) of
Narcotic Control Act, and magistrate's committing error in
law in refusing to order it — Entitlement to sums seized at
filing of s. 10(5) application prerequisite to magistrate's
making order — Not established — Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, s. 28 — Narcotic Control Act, R.S.C.
1970, c. N- I, s. 10(5).
APPLICATION.
COUNSEL:
Denis Péloquin for applicants.
Jack Waissman for respondent.
No counsel present for mis -en-cause.
SOLICITORS:
Leith man, Goldenberg & Guberman, Mont-
real, for applicants.
Deputy Attorney General of Canada for
respondent and mis -en-cause.
The following is the English version of the
reasons for decision of the Court delivered orally
by
PRATTE J.: This application pursuant to section
28 cannot be allowed unless the Court is satisfied
that applicants were entitled to obtain restitution
of the sums claimed under section 10(5) of the
Narcotic Control Act, R.S.C. 1970, c. N-1, and
that the magistrate committed an error in law in
refusing to order this restitution. For the magis
trate to make the requested orders of restitution
applicants had to show, inter alia, that they were
entitled to possession of the sums seized at the
time they filed their application under section
10(5). To establish that his clients did in fact meet
this condition, counsel for the applicants relied on
the fact that the money claimed was in their
possession at the time of the seizure, which, in his
opinion, indicated that applicants were entitled to
possess the sums claimed. However, nothing in the
record indicates that the sums were in applicants'
possession at the time of the seizure; and contrary
to what was maintained in this Court, such a
conclusion cannot be drawn from the simple fact
that the peace officer who seized the money
informed the Department of National Revenue,
which in turn sent each applicant a tax assessment
on the income for sums approximately equal to
those seized.
For these reasons, it would seem that the
impugned decision was not incorrect. We will not,
however, comment on the question of whether
applicants would have been entitled to the orders
claimed if they had proved that the sums were in
their possession at the time of the seizure. We also
will not comment on the reasons given by the
magistrate for his decision.
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.