R. v. Craig

R. v. Craig
Collection
Supreme Court Judgments
Date
2009-05-29
Neutral citation
2009 SCC 23
Report
[2009] 1 SCR 762
Case number
32102
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall
On appeal from
British Columbia
Subjects
Criminal law
Notes
SCC Case Information: 32102
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762
Date: 20090529
Docket: 32102
Between:
Judy Ann Craig
Appellant
and
Her Majesty The Queen
Respondent
‑ and ‑
Attorney General of Ontario and
Criminal Lawyers’ Association (Ontario)
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 68)
Partially Concurring Joint Reasons:
(paras. 69 to 88)
Partially Concurring Reasons:
(para. 89)
Reasons Dissenting in Part:
(paras. 90 to 125)
Abella J. (Binnie and Deschamps JJ. concurring)
McLachlin C.J. and Rothstein J.
LeBel J.
Fish J.
______________________________
R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762
Judy Ann Craig Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario and
Criminal Lawyers’ Association (Ontario) Interveners
Indexed as: R. v. Craig
Neutral citation: 2009 SCC 23.
File No.: 32102.
2008: November 13; 2009: May 29.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Rothstein JJ.
on appeal from the court of appeal for british columbia
Criminal law — Controlled drugs and substances — Forfeiture orders — Specific proportionality test provided for offence‑related real property forfeiture orders — Relationship of test with general sentencing principles — Accused guilty of producing marihuana in her home — Accused fined and given conditional imprisonment sentence — Court of Appeal setting aside fine and ordering forfeiture of house — Whether real property forfeiture orders should be considered together with terms of imprisonment as a global punishment — Whether court empowered to order partial forfeiture of real property — Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 19.1(3) .
The accused pleaded guilty to one count of producing marihuana, contrary to s. 7(1) of the Controlled Drugs and Substances Act (“CDSA ”). The charge related to her activities in her North Vancouver home. By the time she was sentenced, the Canada Revenue Agency had assessed her $250,000 for unpaid taxes relating to marihuana earnings reaching back to 1998. The debt was secured by a lien on her two houses. The trial judge declined to order forfeiture, concluding that it was more appropriate to order a $100,000 fine, in addition to a 12‑month conditional sentence of imprisonment and a victim surcharge of $15,000. The Court of Appeal upheld the conditional sentence but set aside the fine and the victim surcharge. It also ordered the forfeiture of the accused’s home. In its view, the term of imprisonment and the forfeiture order should be considered together as a global punishment.
Held (Fish J. dissenting in part): The appeal should be allowed and the forfeiture order set aside.
1. Per McLachlin C.J. and Binnie, Deschamps, Abella and Rothstein JJ.: The proportionality test set out in s. 19.1 of the CDSA is different from and independent from sentencing.
2. Per LeBel and Fish JJ.: The decision to forfeit under s. 19.1 of the CDSA should be considered in crafting a sentence in cases where forfeiture is punitive.
3. Per Binnie, LeBel, Deschamps and Abella JJ.: Partial forfeiture of real property can be ordered under s. 19.1 of the CDSA .
4. Per McLachlin C.J. and Fish and Rothstein JJ.: Partial forfeiture of real property cannot be ordered under s. 19.1 of the CDSA .
_________________
Per Binnie, Deschamps and Abella JJ.: The forfeiture inquiry under s. 19.1(3) of the CDSA is a discrete and distinct one from terms of imprisonment or other aspects of the sentence. While the rest of an offender’s sentence is governed by the principles of sentencing found in the Criminal Code , the forfeiture of offence‑related real property is determined with reference only to the principles contained in s. 19.1(3) , which set out a different and unique template. [13]
The risk in approaching the forfeiture inquiry as being interdependent with terms of imprisonment is that, based on a “totality” approach, those who have property available for forfeiture will likely be able to trade property for jail time or to avoid jail entirely. This would result in lengthier custodial terms being imposed on those who have no property available for forfeiture, an untenable result. [2‑3] [12] [34‑35]
The purpose and statutory language underlying the forfeiture scheme reflect Parliament’s intention that forfeiture orders be treated independently. While the sentencing inquiry focuses on the individualized circumstances of the offender, the main focus of forfeiture orders is on the property itself. The structure of the CDSA confirms this interpretation. Part I, entitled “Offences and Punishment”, governs sentences for offences under the statute and refers to ordinary sentencing principles, including the circumstances of the offender. Part II, called “Enforcement”, contains a proportionality test in s. 19.1(3) governing the forfeiture of offence‑related real property. The two tests are distinct and s. 19.1(3) notably excludes the circumstances of the offender. Furthermore, forfeiture may apply to property owned by a complicit individual who is neither sentenced nor even charged with an offence, and certain types of forfeiture orders operate without the existence of a term of imprisonment imposed on anyone for the relevant offence. [18] [40‑45]
The fairness of a forfeiture order under the CDSA is further ensured by the availability of partial forfeiture. Partial forfeiture is consistent with the plain language of the statute, as well as with a contextual interpretation of s. 19.1(3) , and allows a court to tailor the amount of property to be forfeited in a way that takes into account the relative weight of the listed factors. The proportionality analysis under s. 19.1(3) and partial forfeiture have a common source, in that both recognize that real property is a qualitatively and quantitatively different kind of asset, and that ordering its forfeiture can be a draconian measure. [50‑56]
Based on the particular circumstances of the case, judges therefore have the discretion to order no forfeiture, partial forfeiture or full forfeiture of offence‑related real property. Each situation will be subject to the judge’s appreciation of how the s. 19.1(3) factors should be applied in the particular circumstances of the case. Although in this case neither the trial judge nor the Court of Appeal treated the forfeiture order as a separate inquiry, the application of the relevant factors shows no reason to interfere with the decision not to order forfeiture. Since the Crown did not ask this Court to reinstate the fine imposed by the sentencing judge, the appropriate disposition is to set aside the Court of Appeal’s forfeiture order. [59] [66‑67]
Per McLachlin C.J. and Rothstein J.: The reasons and conclusion of Abella J. are agreed with, except for her reasons on the issue of partial forfeiture. The phrase “part of the property” in s. 19.1(3) of the CDSA does not empower a court to order that only part of the real property be forfeited. This phrase is more convincingly read as a reflection of the language in s. 19(3) , whereby forfeiture will apply only to the part of the real property remaining after some of it was returned to innocent third parties at their eventual request. This interpretation is more compatible with the general rule, set out in s. 16(1) , that offence‑related property is forfeited in its entirety and with the broader objectives of the statutory scheme. Forfeiture of offence‑related property under criminal law is generally mandatory and total because the intention of Parliament is to deprive offenders and complicit individuals of the tools of the trade. Importantly, no provision is made in the Act for a fine in lieu of forfeiture. Instead, the sole focus of the Act is on the physical property, rather than its value. If Parliament had intended to grant not only the power to relieve against forfeiture of real property, but also to determine what proportion of the property should be exempted, it would have said so in clearer language. It seems reasonable to assume that Parliament intended the forfeiture procedure to be as simple as justice permits. Imposing an unpredictable calculation based on a weighing of the factors listed in s. 19.1(3) would add to the complexity of already complex proceedings. [69] [73-74] [78-79] [81-82]
Per LeBel J.: The conclusion of Fish J. that a sentencing judge may take a punitive order of forfeiture into consideration in crafting a sentence is agreed with. The conclusion of Abella J. that partial forfeiture may be ordered is agreed with. The present appeal should be disposed of as Abella J. proposes. [89]
Per Fish J. (dissenting in part): Forfeiture of offence‑related real property may be taken into account by the sentencing judge when it constitutes punishment of the offender for having committed the offence. Forfeiture is punitive where the property was legally and honestly acquired by the offender before engaging in criminal activity, independently of criminal activity, and not in contemplation of future criminal conduct. Punitive forfeiture is a relevant consideration in determining the appropriate sentence since it is the global punishment that must fit the crime. While taking into account a punitive order of forfeiture may reduce the sentence of imprisonment in certain circumstances, this concern does not justify the disproportionately severe sentences that will inevitably occur, in some cases at least, if sentencing judges are required to entirely disregard punitive orders of forfeiture. The Criminal Code explicitly provides that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”. It is consistent with this mandatory principle of sentencing that jail time should be avoided or reduced where another punishment will suffice. [93] [95-96] [107-108] [111]
The joint conclusion of McLachlin C.J. and Rothstein J. is agreed with as to partial forfeiture. Partial forfeiture will frequently, as a practical matter, deprive persons of the use of their property and this is precisely what the proportionality requirement at s. 19.1 of the CDSA is intended to prevent. Where partial forfeiture leads to the forced sale of a person’s home, that person is deprived of the home, as in full forfeiture, and is left instead with a discretionary percentage of the price realized upon its sale. In the absence of a forced sale, partial forfeiture would impose an inherently litigious partnership on the Crown and the offender as unwilling co‑owners — a result Parliament can hardly have intended. [116]
In the absence of a reviewable error by the trial judge, the Court of Appeal should not have intervened and substituted an order of forfeiture for a fine. The accused should not emerge with neither forfeiture nor a fine. Accordingly, the forfeiture order should be set aside and the sentence imposed at trial should be restored. [119-120] [125]
Cases Cited
By Abella J.
Referred to: R. v. Gisby, 2000 ABCA 261, 148 C.C.C. (3d) 549; R. v. Nguyen, 2007 BCCA 474, 246 B.C.A.C. 263, aff’g 2006 BCSC 1846, [2006] B.C.J. 3202 (QL); R. v. Ouellette, [2004] R.J.Q. 2619, aff’d 2007 QCCA 518, 229 C.C.C. (3d) 563; R. v. Siek, 2007 NSCA 23, 218 C.C.C. (3d) 353; Industrial Acceptance Corp. v. The Queen, [1953] 2 S.C.R. 273; R. v. Green (1983), 148 D.L.R. (3d) 767; R. v. Johnson (1971), 5 C.C.C. (2d) 541; R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530; R. v. Lavigne, 2006 SCC 10, [2006] 1 S.C.R. 392; R. v. Sandover‑Sly, 2002 BCCA 56, 163 B.C.A.C. 312; R. v. Yee, 2008 ABPC 89, [2008] A.J. No. 866 (QL).
By McLachlin C.J. and Rothstein J.
Referred to: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; R. v. Gisby, 2000 ABCA 261, 148 C.C.C. (3d) 549; R. v. Lavigne, 2006 SCC 10, [2006] 1 S.C.R. 392.
By Fish J. (dissenting in part)
R. v. Gisby, 2000 ABCA 261, 148 C.C.C. (3d) 549; R. v. M. (C.A.), [1996] 1 S.C.R. 500.
Statutes and Regulations Cited
Act to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other Acts , Bill C-24, 1st Sess., 37th Parl.
Controlled Drugs and Substances Act , Bill C‑7, 1st Sess., 35th Parl., s. 2 .
Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 2(1) “designated substance offence”, “offence‑related property”, Part I, 4(1), (2), 5(1), (2), 6(1), (2), 7(1), 10, Part II, 16, 17, 18, 19, 19.1, 20.
Criminal Code, R.S.C. 1985, c. C‑46 , Part XII.2, Part XXI, ss. 673, 718.1, 718.2, 734(1)(a), 785.
Narcotic Control Act, R.S.C. 1985, c. N‑1.
Supreme Court Act, R.S.C. 1985, c. S‑26, s. 45 .
Authors Cited
Canada. House of Commons. House of Commons Debates, vol. 133, 1st Sess., 35th Parl., October 30, 1995, p. 15978.
Canada. House of Commons. House of Commons Debates, vol. 137, 1st Sess., 37th Parl., April 23, 2001, pp. 2952, 2955, 2956.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Ruby, Clayton C. Sentencing, 7th ed. Markham, Ont.: LexisNexis, 2008.
APPEAL from a judgment of the British Columbia Court of Appeal (Rowles, Ryan and Low JJ.A.), 2007 BCCA 234, 240 B.C.A.C. 77, 398 W.A.C. 77, 218 C.C.C. (3d) 510, [2007] B.C.J. No. 814 (QL), 2007 CarswellBC 838, reversing in part a decision of Gedye Prov. Ct. J., 2005 CarswellBC 3685. Appeal allowed, Fish J. dissenting in part.
Howard Rubin, Q.C., and David H. Albert, for the appellant.
François Lacasse, W. Paul Riley and Simon William, for the respondent.
John Corelli and Deborah Calderwood, for the intervener the Attorney General of Ontario.
Louis P. Strezos and Brennagh Smith, for the intervener the Criminal Lawyers’ Association (Ontario).
The reasons of Binnie, Deschamps and Abella JJ. were delivered by
[1] Abella J. — The issue in this appeal is how to apply the forfeiture provisions for offence-related real property under ss. 16(1) and 19.1(3) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 .* Two interpretive approaches are possible. Neither is free from difficulty, but one is, it seems to me, generally fairer than the other.
[2] The first approach views forfeiture orders as an aspect of an interdependent global punishment. This approach, which conceptually combines the forfeiture order with terms of imprisonment or other aspects of a sentence, leads almost inevitably to less jail time for those who have property available for forfeiture than for those who have none, on the theory that the accused has been sufficiently punished through the forfeiture order.
[3] The second approach sees the need for a separate inquiry into whether forfeiture is justified based on a discrete statutory proportionality test. This approach, supported by the structure and wording of the statute, seems to me to be preferable because it avoids the unpalatable possibility of trading property for jail time, and therefore ensures that the legitimate liberty interests of individuals will be protected in a more consistent way. In my view, the loss or retention of liberty should not depend on whether an individual has property available as a sacrificial alternative.
Background
[4] Judy Ann Craig pleaded guilty to one count of producing marihuana, contrary to s. 7(1) of the Controlled Drugs and Substances Act . The charge related to activities in the home she owned in North Vancouver.
[5] She had previously been a real estate agent. For a long time, she lived abroad. Some years after her return to Canada, she went through a difficult divorce that left her depressed and unable to work, forcing her to mortgage her property. She owns a second home, also subject to a mortgage.
[6] By the time Ms. Craig was sentenced, the Canada Revenue Agency had assessed $250,000 against her for unpaid taxes relating to marihuana earnings reaching back to 1998. This amount was secured by a lien on her homes. This left her with very little equity in them, though she disputed the assessment. Observing that the tax assessment already amounted to forfeiture, the sentencing judge, Gedye Prov. Ct. J., concluded that what was left of Ms. Craig’s interest in her properties could be dealt with by way of a fine.
[7] In sentencing Ms. Craig, Gedye Prov. Ct. J. noted that she had no criminal record, but that the operation was sizeable and had been going on for a number of years. Ms. Craig was given a conditional sentence of 12 months, fined $100,000, and was also ordered to pay a victim surcharge of $15,000 (2005 CarswellBC 3685).
[8] The Crown had also sought a forfeiture order against Ms. Craig’s house, but Gedye Prov. Ct. J. refused to impose one on the basis that a fine was sufficient.
[9] Both Ms. Craig and the Crown appealed. At the Court of Appeal, Ryan J.A., writing for a unanimous court, upheld the conditional sentence but set aside the fine and the victim surcharge (2007 BCCA 234, 240 B.C.A.C. 77). She also ordered the forfeiture of Ms. Craig’s home. In her view, terms of imprisonment and forfeiture orders had to be considered together as aspects of a single, interdependent, global punishment.
[10] The Court of Appeal’s approach in finding an interdependency between forfeiture and terms of imprisonment, and its conclusion that full forfeiture was warranted in the circumstances, are the subject of Ms. Craig’s appeal. For the reasons that follow, my respectful view is that both this approach and conclusion are contrary to the statutory mandate in the Controlled Drugs and Substances Act .
Analysis
[11] This is the Court’s first opportunity to consider whether there is an interdependent relationship between a forfeiture order for offence-related real property under the Controlled Drugs and Substances Act , and other sentencing consequences. The issue is complex and not easily resolved. On balance, however, it seems to me fairer to approach the forfeiture inquiry as a discrete and distinct one.
[12] Interdependency would entail an overall application of the sentencing provisions in ss. 718.1 and 718.2 of the Criminal Code, R.S.C. 1985, c. C-46 , particularly those dealing with proportionality, parity and totality. This would result in what is to me an unacceptable risk, namely that those who have no property available for forfeiture will likely attract longer jail sentences than those with property.
[13] This appeal, it is worth remembering, is not based on a constitutional challenge to the forfeiture provisions; it is based only on arguments relating to statutory interpretation. A combination of the words of — and the policy underlying — the Controlled Drugs and Substances Act leads me to conclude that Parliament intended that the forfeiture of offence‑related property be a discrete inquiry. This leads to the result that while the rest of an accused’s sentence is governed by the principles of sentencing found in the Criminal Code , the forfeiture of offence‑related real property is governed by the principles contained in s. 19.1(3) of the Controlled Drugs and Substances Act , which provide a different and unique template.
[14] The Controlled Drugs and Substances Act is the statutory successor to the Narcotic Control Act, R.S.C. 1985, c. N-1. It originated in Bill C-7 in 1994 and came into force in 1997.
[15] While the original text of the Bill included a forfeiture scheme, the scheme did not apply to real property. Bill C-7 was subsequently amended to address the problem of fortified drug houses used by criminal organizations for the production of illegal substances (House of Commons Debates, vol. 133, 1st Sess., 35th Parl., October 30, 1995, at p. 15978). The definition of “offence-related property” was accordingly changed to include “real property built or significantly modified for the purpose of facilitating the commission of a designated substance offence” (Bill C-7, Controlled Drugs and Substances Act , 1st Sess., 35th Parl., s. 2 ).
[16] This scheme received extensive judicial consideration in R. v. Gisby, 2000 ABCA 261, 148 C.C.C. (3d) 549. Wittmann J.A. described the purposes of the legislation as follows:
The CDSA was enacted by Parliament to combat the illicit drug industry. A review of the CDSA and in particular, the provisions related to the forfeiture of property, indicate that the CDSA does so both through punishment and deterrence. The forfeiture provisions are punitive to the extent that they deprive one of offence-related property, broadcasting the message that Canadian society regards designated substance offences with abhorrence. But they also introduce an element of deterrence in relation to designated substance offences. In this respect, the forfeiture provisions attach a very real cost to the business of drug crime directly equivalent to the monetary value of the offence-related property that is subject to forfeiture, thus raising the stakes associated with the commission of those offences. [para. 19]
[17] He also concluded that forfeiture served a preventative purpose, helping “prevent or at least reduce the likelihood of future offences by removing from the illicit drug industry property which, by virtue of the definition found at s. 2(1) , is being used to facilitate the commission of a designated substance offence” (para. 20). Finally, he noted that “it is often the case that offence-related property is not owned by the offender, but by a culpable third-party with some sort of relationship to him or her, and continues to be used for illicit purposes by other persons” (para. 21).
[18] The Controlled Drugs and Substances Act was amended by Bill C-24 in 2001. It contained two important changes of relevance to this appeal: it expanded the definition of offence-related property to include any real property, including property not built or significantly modified for criminal purposes, and it set out a proportionality test in s. 19.1(3) .
[19] Various routes to forfeiture are provided in the statute. The one at issue in this case is set out in ss. 16 and 19.1 , the relevant portions of which state:
16. (1) Subject to sections 18 to 19.1 , where a person is convicted of a designated substance offence and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that any property is offence‑related property and that the offence was committed in relation to that property, the court shall
(a) in the case of a substance included in Schedule VI, order that the substance be forfeited to Her Majesty in right of Canada and disposed of by the Minister as the Minister thinks fit; and
(b) in the case of any other offence‑related property,
(i) where the prosecution of the offence was commenced at the instance of the government of a province and conducted by or on behalf of that government, order that the property be forfeited to Her Majesty in right of that province and disposed of by the Attorney General or Solicitor General of that province in accordance with the law, and
(ii) in any other case, order that the property be forfeited to Her Majesty in right of Canada and disposed of by such member of the Queen’s Privy Council for Canada as may be designated for the purposes of this subparagraph in accordance with the law.
19.1 . . .
(3) Subject to an order made under subsection 19(3), if a court is satisfied that the impact of an order of forfeiture made under subsection 16(1) . . . in respect of real property would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted of the offence, as the case may be, it may decide not to order the forfeiture of the property or part of the property and may revoke any restraint order made in respect of that property or part.
(4) Where all or part of the property that would otherwise be forfeited under subsection 16(1) . . . is a dwelling‑house, when making a decision under subsection (3), the court shall also consider
(a) the impact of an order of forfeiture on any member of the immediate family of the person charged with or convicted of the offence, if the dwelling‑house was the member’s principal residence at the time the charge was laid and continues to be the member’s principal residence; and
(b) whether the member referred to in paragraph (a) appears innocent of any complicity in the offence or of any collusion in relation to the offence.
[20] In introducing the amending legislation, the Honourable Anne McLellan, then Minister of Justice and Attorney General of Canada, stated:
. . . I am pleased today to lead off the debate on an issue of major concern to all Canadians: the problem of organized crime and the legislative tools available to our police, prosecutors and courts to address that problem.
. . .
Not all provisions of the bill specifically target organized crime groups. Several elements in the proposed legislation are meant to improve criminal law generally. These improvements to the law will nonetheless be extremely useful in combatting organized crime.
. . .
The last element that I want to stress deals with offence related property. The bill contains amendments to make the offence related property forfeiture regime in the code apply to all indictable offences. As well, the present exemption from forfeiture for most real property would be eliminated. [Emphasis added.]
(House of Commons Debates, vol. 137, 1st Sess., 37th Parl., April 23, 2001, at pp. 2952, 2955 and 2956)
[21] As is apparent from the scheme’s wording, the forfeiture provisions were intended to be of general application. However, the above statement by the Minister of Justice indicates that organized crime may be a relevant factor in the forfeiture inquiry. The preoccupation with organized crime becomes particularly relevant, in my view, in applying the proportionality analysis, as discussed later in these reasons.
[22] In addition to providing insight into the purposes intended by Parliament, a number of salient features of the legislative scheme emerge from its history. First, I think it is reasonable to infer that the s. 19.1(3) proportionality test was adopted to counterbalance the potentially harsh effects of extending the definition of offence-related property, without qualification, to all real property. The test, therefore, should be read in this remedial light. Second, the legislative history supports Ryan J.A.’s observation (at para. 51) that while the offender’s involvement in organized crime is not the only focus of the forfeiture of offence-related property scheme, it can nevertheless be an important factor in applying the test under s. 19.1(3) . Finally, while a forfeiture order may have a punitive impact on an offender, it is also aimed at taking offence-related property out of circulation and rendering it unavailable for future designated substance offences.
[23] “[O]ffence-related property” is broadly defined in s. 2(1) of the Controlled Drugs and Substances Act to include “any property, within or outside Canada, (a) by means of or in respect of which a designated substance offence is committed, (b) that is used in any manner in connection with the commission of a designated substance offence, or (c) that is intended for use for the purpose of committing a designated substance offence”.
[24] A “designated substance offence” is defined in s. 2(1) to mean “(a) an offence under Part I, . . . or (b) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a)”. The offences referred to in this definition are: obtaining a substance (s. 4(2)); trafficking in a substance (s. 5(1)); possession for the purpose of trafficking a substance (s. 5(2)); importing or exporting a substance (s. 6(1)); possession for the purpose of exporting a substance (s. 6(2)) and production of a substance (s. 7(1) ). Mere possession of a substance is not included.
[25] An order for forfeiture under s. 16(1) is subject to s. 19.1 . That means that before a court orders forfeiture, it must consider the factors set out in s. 19.1 . This includes the proportionality factors in s. 19.1(3) , the provision dealing with real property.
[26] Under s. 19.1(3), the court must consider whether “the impact of an order of forfeiture . . . would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted of the offence”. If so, the court “may decide not to order the forfeiture of the property or part of the property”.
[27] If the real property is a dwelling-house, a further inquiry is mandated by s. 19.1(4), which states that a court deciding whether to order forfeiture under s. 19.1(3) must additionally take into consideration the impact of an order of forfeiture on any member of the immediate family of the person charged with or convicted of the offence, if it was, and remains, that family member’s principal residence at the time the charge was laid. That family member’s apparent innocence of any complicity in the offence or any collusion in relation to the offence is also to be taken into account.
[28] Separate sections deal with protecting the interests of innocent third parties in the property to be forfeited.
[29] This argues for the following process. When an offender is convicted of a designated substance offence and the Attorney General requests the forfeiture of real property, the court has a discretion under s. 19.1(3) and (4) to refuse to order forfeiture, in whole or in part. Pursuant to s. 19.1(3), this discretion must be exercised having regard to the applicable statutory factors. In addition, if the real property is a dwelling-house, s. 19.1(4) applies, obliging the court to consider the interests of the offender’s family members residing in the home and their degree of involvement in the offence.
[30] This brings us to the central question in this appeal: whether a forfeiture order for offence-related real property under the Controlled Drugs and Substances Act should be considered as a distinct inquiry, or interdependently with terms of imprisonment or other aspects of a sentence. This involves deciding between two approaches: the first resting on an overall application of the principles of sentencing found in the Criminal Code ; the second as an independent inquiry resting on an application of the specific test set out in s. 19.1(3) and (4) to a forfeiture order.
[31] The approach adopted in the prior proceedings in this case and in the companion cases of R. v. Nguyen, 2007 BCCA 474, 246 B.C.A.C. 263, and R. v. Ouellette, [2004] R.J.Q. 2619 (C.Q.), treats terms of imprisonment and forfeiture orders as interdependent and therefore subject to general sentencing principles. This may be described as the “totality” approach. The application of these principles leads to the conclusion that because forfeiture may have a punitive impact, one can take it into consideration in deciding whether, in combination with the imposition of a jail sentence, the total punishment would be unduly harsh. This approach led to conditional sentences in each of the three cases under review.
[32] The other approach, adopted by the Nova Scotia Court of Appeal in R. v. Siek, 2007 NSCA 23, 218 C.C.C. (3d) 353, treats a forfeiture order under the Controlled Drugs and Substances Act as a distinct and independent consequence tailored to serious drug offences.
[33] Although neither approach is free from difficulty at a policy level, the statutory scheme does not support an approach that results in an exchange of jail time for property.
[34] There is no doubt that forfeiture may be punitive in its impact. (See Industrial Acceptance Corp. v. The Queen, [1953] 2 S.C.R. 273, at p. 278, R. v. Green (1983), 148 D.L.R. (3d) 767 (Ont. H.C.J.), at p. 768, and Gisby, at para. 19.) It does not follow, however, that it should be consolidated with sentencing on a totality approach, especially since it almost inevitably leads to lower terms of imprisonment for offenders with property if one treats the “total” punishment (jail plus forfeiture) as unduly harsh. In other words, people with property might be able to avoid jail or receive reduced custodial terms, while those without property would not.
[35] Such a result troubles not only the conscience by inadvertently rewarding offenders with property available for forfeiture and penalizing those without, it offends our bedrock notions of fitness in sentencing since individuals with no property to forfeit are no more blameworthy than those with property. It would be unjust for them to receive more severe custodial terms simply because they have no property to forfeit.
[36] As McKinnon C.J.N.S. forcefully observed in R. v. Johnson (1971), 5 C.C.C. (2d) 541 (N.S.S.C., App. Div.), in explaining why he refused to impose a jail sentence rather than a fine on an accused who was a “man of means” who could, it was argued, readily afford monetary penalties: “What concerns the Court deeply is the cardinal principle upon which our criminal judicial system, with which we are concerned here, is based, namely, that all persons stand equal before the Court. It matters not what the race, creed, colour, status in society, whether pauper or rich man, an accused must receive equality of treatment before the law” (p. 543). (See also Clayton C. Ruby, Sentencing (7th ed. 2008), at para. 11.17, and R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530.)
[37] The sentencing principles of the Criminal Code themselves suggest that the deprivation of an individual’s liberty is qualitatively different from other sanctions. Section 718.2 (d) states that, “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”. Offenders should not be able to avoid jail time or receive lesser terms of imprisonment simply because they have more property. Yet considering forfeiture orders and the rest of the sentence interdependently would mandate precisely this kind of troubling calculation.
[38] The conditional sentences imposed in all three of the appeals under consideration demonstrate what may likely result when forfeiture orders and terms of imprisonment are considered interdependently. There is no doubt that in the circumstances of at least two of the cases, a prison term would otherwise have been ordered. Ryan J.A. stated in this case: “I agree with the Crown that, viewed in isolation of forfeiture, a conditional sentence as the primary sentence was unfit, and a sentence of conventional incarceration would have been appropriate” (para. 126). Similarly, in the companion case of R. v. Nguyen, 2006 BCSC 1846, [2006] B.C.J. No. 3202 (QL), the trial judge stated: “The only impediment to the imposition of a conditional sentence in this case is the failure of such a sentence to provide an adequate level of deterrence. With forfeiture of a home with an equity of some $150,000, that impediment is now removed” (para. 19).
[39] The only accused, therefore, who will benefit from a “global” approach to the forfeiture order are those with property available for forfeiture, who will be able to argue that its imposition should result in a more lenient jail term. A legal system that tolerates differences about who goes to jail based on whether they have property, risks impairing its own integrity and credibility.
[40] In addition to my concern that those without property should not be treated more harshly than those who have it, I see the purpose and statutory language underlying the forfeiture scheme as a reflection of Parliament’s intention that forfeiture orders be treated independently, pursuant to a separate rationale and as a distinct response to distinct circumstances. The sentencing inquiry focuses on the individualized circumstances of the offender; the main focus of forfeiture orders, on the other hand, is on the property itself and its role in past and future crime.
[41] For a start, the fact that forfeiture may apply to property owned by a complicit individual who is neither sentenced nor even charged with an offence is, to me, an indication that forfeiture orders and terms of imprisonment or other aspects of a sentence were intended to be treated as separate and distinctive consequences. The forfeiture scheme is focused in part on taking offence-related property out of circulation and on confronting organized crime, whether or not the property is owned by the offender. Individuals who have allowed their property to be used for criminal purposes, even if their conduct does not rise to the level of criminal liability with respect to the particular offence, may, as a result, also be subject to forfeiture orders, as reflected in s. 19(3), which provides a recovery mechanism for third-party owners of offence-related property to be forfeited. Under that section, a court must be satisfied that individuals are innocent of any complicity or collusion in the offence before they can recover their property. This is consistent with the historic roots of forfeiture as punishment for negligently allowing one’s property to be used for wrongful purposes, a consequence connected to, but not identical to, punishment for the offence.
[42] Certain types of forfeiture orders under the Controlled Drugs and Substances Act operate without the existence of a term of imprisonment imposed on anyone for the particular designated substance offence. Under s. 16(2), even if certain property is not related to the designated substance offence for which an offender was convicted, forfeiture may nevertheless be ordered if the property can be established to be offence‑related beyond a reasonable doubt. In addition, under s. 17 , the Attorney General may apply for in rem forfeiture where the property is found to be offence-related beyond a reasonable doubt, the accused has died or absconded, and proceedings have been commenced. In these situations, a relevant custodial sentence will not exist and therefore clearly cannot be related to any forfeiture order. This further suggests Parliament’s view that there is a separate blameworthy element to using or allowing the use of one’s property for criminal purposes.
[43] The very structure of the Controlled Drugs and Substances Act confirms the separate character of the two orders. Part I is called “Offences and Punishment”. In this part, s. 10(1) deals with the principles applicable to sentences for offences under the statute and states that “[w]ithout restricting the generality of the Criminal Code , the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.”
[44] These are, in essence, the ordinary sentencing principles, and refer specifically to the circumstances of the offender. The forfeiture provisions, on the other hand, are in a separate section of the statute, Part II, called “Enforcement”. This is where we find s. 19.1(3). The proportionality analysis mandated under s. 19.1(3) sets out different considerations from those mandated by the sentencing principles under the Criminal Code . What it directs, unlike s. 10(1) found in Part I, is that the court consider whether “the impact of an order of forfeiture . . . would be disproportionate to the nature and gravity o