A-129-79
Michael Collins (Applicant)
v.
The Queen (Respondent)
Court of Appeal, Pratte and Ryan JJ. and Lalande
D.J.—Montreal, November 20 and 22, 1979.
Judicial review — Application to review and set aside a
decision of a Judge of Court of Sessions of the Peace of
Quebec dismissing applicant's application for restoration pur
suant to s. 10(5),(6) of the Narcotic Control Act — Whether or
not that decision is one of a 'federal board, commission or
other tribunal" — Narcotic Control Act, R.S.C. 1970, c. N-1,
s. 10(5),(6) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, ss. 2, 28.
Herman v. Deputy Attorney General of Canada [1979] 1
S.C.R. 729, applied.
APPLICATION for judicial review.
COUNSEL:
Jean-Pierre Belhumeur for applicant.
Gaspard Côté, Q.C. for respondent.
SOLICITORS:
Stikeman, Elliott, Tamaki, Mercier & Robb,
Montreal, for applicant.
Deputy Attorney General of Canada for
respondent.
The following is the English version of the
reasons for judgment of the Court delivered orally
by
PRATTE J.: This application, made pursuant to
section 28, is against a decision of Judge Paul A.
Bélanger of the Court of Sessions of the Peace of
the Province of Quebec, which dismissed an
application for restoration made by applicant pur
suant to subsections 10(5) and (6) of the Narcotic
Control Act, R.S.C. 1970, c. N-1.'
We are all of the opinion that this application
should be dismissed. We consider that the decision
a quo was not made by a "federal board, commis
sion or other tribunal" within the meaning of that
definition in section 2 of the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, 2 and for that
reason cannot be reviewed pursuant to section 28
of the said Act.
Judge Bélanger is a judge of the Court of Ses
sions of the Peace, and he was appointed "under or
in accordance with a law of a province", the
Province of Quebec. Decisions which he makes in
his capacity as a judge are thus not decisions of a
"federal board, commission or other tribunal"
within the meaning of that definition in section 2.
Applicant maintained, however, that in rendering
the decision a quo Judge Bélanger was acting not
in his capacity as a judge but as persona desig-
These provisions read as follows:
10....
(5) Where a narcotic or other thing has been seized under
subsection (I), any person may, within two months from the
date of such seizure, upon prior notification having been
given to the Crown in the manner prescribed by the regula
tions, apply to a magistrate within whose territorial jurisdic
tion the seizure was made for an order of restoration under
subsection (6).
(6) Subject to subsections (8) and (9), where upon the
hearing of an application made under subsection (5) the
magistrate is satisfied
(a) that the applicant is entitled to possession of the
narcotic or other thing seized, and
(b) that the thing so seized is not or will not be required as
evidence in any proceedings in respect of an offence under
this Act,
he shall order that the thing so seized be restored forthwith
to the applicant, and where the magistrate is satisfied that
the applicant is entitled to possession of the thing so seized
but is not satisfied as to the matters mentioned in paragraph ,
(b), he shall order that the thing so seized be restored to the
applicant
(c) upon the expiration of four months from the date of
the seizure, if no proceedings in respect of an offence
under this Act have been commenced before that time, or
(d) upon the final conclusion of any such proceedings, in
any other case.
2 For the purposes of this decision, it is only necessary to
reproduce the following part of that definition in section 2:
"federal board, commission or other tribunal" means ... any
person or persons ... exercising ... jurisdiction or powers
conferred by or under an Act of the Parliament of Canada,
other than ... any such person or persons appointed under
or in accordance with a law of a province ....
nata. This argument must be dismissed. As the
Supreme Court observed in Herman v. Deputy
Attorney General of Canada, 3 Parliament, unless
it gives some clear indication to the contrary, is
deemed in conferring powers on a judge to intend
them to be exercised in his capacity as a judge.
Here, there is no indication of any contrary intent
opposed to this presumed intent. Applying the test
suggested by the Supreme Court in Herman, at
page 749, it cannot be said that, in exercising the
powers conferred on him by subsections 10(5) and
(6) of the Narcotic Control Act, Judge Bélanger
exercised "a peculiar, and distinct, and exceptional
jurisdiction, separate from and unrelated to the
tasks which he performs from day-to-day as a
judge, and having nothing in common with the
court of which he is a member".
3 [1979] 1 S.C.R. 729.
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.