The accused made an application for the return of 12 firearms seized by the RCMP when he was charged with uttering a threat to injure an animal. He argued that the RCMP did not extend the detention order and that the guns were no longer needed for any proceeding. He also said keeping them caused hardship because he relies on them for sustenance hunting that is culturally essential to his Indigenous community.
The Crown position was that the application should be dismissed for two reasons (para.17):
a) Since proceedings were instituted, an application under 490(7) cannot proceed without Mr. Jackson first establishing under s. 490(8) that he would suffer hardship if his application was not allowed to proceed now. He has failed to do so; and
b) Even if Mr. Jackson establishes hardship, he has failed to meet the onus under 490(7) to establish that the seized items are not required for the proceedings.
The Court accepted that the applicant did suffer hardship, but held that he did not prove the firearms would not be required for trial (e.g., to show means, ownership, forensic classification). Since proceedings were already instituted, it was determined that the continued detention of the firearms was lawful.
The application was dismissed.
https://canlii.ca/t/k2msh