By Kyle SmythMarch 28, 2025
The Supreme Court of Canada (“SCC”) is set to hear the appeal of Nguyen c. Director of Criminal and Penal Prosecutions, 2024 QCCA 674 [Nguyen] where the Court of Appeal of Québec (“QCCA”) overturned the decision of the Court of Québec, which held that it had jurisdiction to hear the application of the prosecution [41400].
Facts
Nguyen et al. (the “appellants”) were three of the eleven persons charged with eleven offences under both the Criminal Code, RSC 1985, c C-46 and Controlled Drugs and Substances Act, SC 1996, c 19 [CDSA]. One of the eleven accused persons pleaded guilty before the Court of Québec in November 2016. In December 2017, the case-management judge pronounced a stay of proceedings against the appellants for unreasonable delay, the prosecution attempted to appeal that judgement but was dismissed (Nguyen, para 8).
Judicial History
The prosecution's application for the forfeiture of property seized over the course of the police investigation was assigned to Perreault J. in the Court of Québec. The appellants brought a motion to dismiss the application on the grounds that the procedure was not allowed in light of the stay of proceedings under both the Criminal Code and CDSA. Perreault J. dismissed the appellants’ motion and affirmed that the Court of Québec had the jurisdiction to proceed under subsections 462.47(2) and 491.1(2) of the Criminal Code and subsection 16(2) of the CDSA (Nguyen, para 9).
The appellants subsequently brought an application for prohibition with certiorari in aid to prevent the continuation of proceedings before the Court of Québec. Poulin J. of the Superior Court, district of Montréal, determined that the Court of Québec had the jurisdiction to hear the application for the forfeiture of seized property, and that the decision of the Court of Québec did not contain an error that would justify the extraordinary remedy sought by the appellants. Poulin J. noted that an error of law in the examination of the application would not be sufficient for drastic intervention, and that jurisdiction to hear the application did not imply that the application would be granted (Nguyen, para 10).
The appellants appealed the decision of Poulin J. of the Superior Court to the QCCA.
Issue(s) on Appeal
Did the Superior Court judge err in holding that the Court of Québec had the jurisdiction to hear the forfeiture application pursuant to subsections 462.47(2) and 491.1(2) of the Criminal Code and subsection 16(2) of the CDSA?
QCCA Decision
Healy J.A., writing for a unanimous court, allowed the appeal and declared that the Court of Québec did not have jurisdiction to hear the prosecution's application for an order of forfeiture against the appellants (Nguyen, para 22).
The statutory provisions which allow the application for the forfeiture of property contain required conditions. Firstly, subsections 462.37(1) and 462.37(2) of the Criminal Code both require a finding of guilt or a discharge under section 730 of the Criminal Code. On a balance of probabilities, it must be proven that the proceeds of crime are derived from the commission of a designated offence. Secondly, subsection 462.37(2) allows the prosecution to apply for a forfeiture order even where the evidence does not prove the porenance of property from a designated offense, so long as the prosecution can prove beyond a reasonable doubt that the property constitutes the proceeds of a crime as defined under section 462.3 of the Criminal Code (Nguyen, para 12).
A similar regime to section 462.37 of the Criminal Code exists in section 16 of the CDSA. Both regimes prevent a court from granting the application for the forfeiture of property in the absence of a finding of guilt or a discharge (Nguyen, paras 12-13).
Subsection 491.1(2) was also relevant in the Court of Québec decision which can only apply upon the satisfaction of two conditions: first, the occurrence of a trial, and second, the court concluded that an offence has been committed. In the present case, there was no trial, as the proceedings were stayed in December 2017. As such, there was no proof at trial that an offence was committed other than the guilty plea of a co-accused individual. The guilty plea was not an offence which would apply to the other ten co-accused to bring the property seized during the police investigation within the scope of subsection 491.1(2). Thus, subsection 491.1(2) does not apply to confer jurisdiction over the application for forfeiture (Nguyen, paras 14-15).
A judicial stay of proceedings is essentially an acquittal, as the proceedings against the appellants were concluded before trial by the decision to stay. The question remains as to whether the Court of Québec has jurisdiction to hear an application for forfeiture where the prosecution was dismissed without a trial or finding of guilt. The prosecution contended that the guilty plea of the co-accused was sufficient to confer jurisdiction on to the Court of Québec under subsection 462.37(2) or 491.1(2). Although the guilty plea would apply to any offence covered by the plea, it does not apply to all of the property identified in the application for forfeiture—some of which was not related to any offence admitted by the co-accused in the guilty plea (Nguyen, paras 16-17).
Of the 11 total counts, the guilty plea was only in relation to a co-accused for Count 4, and cannot be extended to the appellants—who were never found guilty on the indictment. Further, the appellants will never be found guilty on the applicable charges due to the protection afforded by the principle against double jeopardy. The application for the forfeiture of property confiscated in the course of an investigation is a procedure limited by the requirement of proven criminality under the statute. The application does not act as a substitute for charges of criminal liability, but instead arises as a consequence of criminality being previously demonstrated (Nguyen, paras 18-19).
The appellants were never proven criminally liable and the stay foreclosed the possibility of future criminal liability. Absent criminal liability, there was no jurisdiction pursuant to subsections 462.37(2) or 491.1(2) of the Criminal Code nor subsection 16(2) of the CDSA. However, the QCCA declined to make an order to return the seized items (Nguyen, paras 20-21).
Analysis
The QCCA overturned the Superior Court on the basis that there was no jurisdiction to hear an application for the forfeiture of property related to criminal activity without a demonstration that the property was, in fact, related to criminal activity. The statutory frameworks under the Criminal Code and CDSA limit the availability of the forfeiture of confiscated property to instances where there has been a demonstration of guilt at trial or discharge under section 730. The inclusion of this requirement imposed a limitation on the jurisdiction of the Court of Québec, due to the inability to obtain such a determination after the stay of proceedings.
The Supreme Court of Canada will likely address to what extent a stay of proceedings equates to an acquittal as opined by the QCCA, and whether such an occurrence entirely precludes a court’s jurisdiction to hear a forfeiture application in those circumstances. The co-accused’s guilty plea in relation to Count 4 may permit a limited application where the prosecution can pursue the application to confiscate property related to that charge—despite the appellants in Nguyen not being within the purview of that plea. However, that result would unduly extend the plea beyond the co-accused and onto the appellants, who were never subject to a finding of guilt or discharge.
The implications of the mechanics of the appeal before the Supreme Court of Canada will impact the Crown's ability to retain property seized during police investigations, particularly in cases where one of several parties subject to charges resulting from that investigation pleads guilty.