nan 2000 SKQB 515 C.C. A.D. 1999 No. 974 J.C. S.C. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SWIFT CURRENT BETWEEN: HER MAJESTY THE QUEEN and MARCELLE DAPHNE BROOKS RESPONDENT C.L. Carlson for Her Majesty the Queen R.A. Nordal for Marcelle Daphne Brooks JUDGMENT MATHESON J. November 14, 2000 [1] On September 8, 1999, black Lincoln Town Car was stopped by member of the R.C.M.Police on highway No. near Maple Creek, Saskatchewan; 28.3 pounds of marihuana was discovered in the trunk of the Lincoln. [2] The driver of the Lincoln was Randall Wesley Fair ("Fair"). The registered owner of the Lincoln Marcelle Daphne Brooks ("Brooks") was in the front passenger seat. Both individuals were charged with trafficking in marihuana and possession of marihuana for the purpose of trafficking. Fair was found guilty of possession of marihuana for the purpose of trafficking. The other charge against him was judicially stayed. Brooks was found not guilty on both counts. [3] The Crown has now applied, pursuant to s. 16(1) of the Controlled Drug and Substances Act, S.C. 1996, c. 19 (the "Act") for an order forfeiting the Lincoln to Her Majesty in Right of Canada. [4] Brooks has, in effect, applied pursuant to s. 20(4) of the Act for an order declaring that her interest in the Lincoln is not affected by any forfeiture order. FORFEITURE APPLICATION [5] Section 16(1) of the Act states: 16(1) Subject to sections 18 and 19, where person is convicted of designated substance offence and, on application of the Attorney General, the court is satisfied, on 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 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 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. [6] "Offence-related property" is defined in s. 2: "offence-related property" means any property, within or outside Canada, (a) by means of or in respect of which designated substance offence is committed, (b) that is used in any manner in connection with the commission of designated substance offence, or (c) that is intended for use for the purpose of committing designated substance offence, but does not include controlled substance or real property, other than real property built or significantly modified for the purpose of facilitating the commission of designated substance offence; [7] Brooks does not dispute the assertion by the Crown that the Lincoln is within the definition of "offence-related property". [8] Section 19(1) of the Act requires that, before forfeiture order is made pursuant to s. 16(1), notice must be given to any person who appears to have valid interest in the property. [9] Section 19(3) provides the authority for the court to make an order of relief from forfeiture: 19(3) Where court is satisfied that any person, other than (a) person who was charged with designated substance offence, or (b) person who acquired title to or right of possession of the property from person referred to in paragraph (a) under circumstances that give rise to reasonable inference that the title or right was transferred for the purpose of voiding the forfeiture of the property, is the lawful owner or is lawfully entitled to possession of any property or any part of any property that would otherwise be forfeited pursuant to an order made under sub-section 16(1) or 17(2) and that the person appears innocent of any complicity in an offence referred to in paragraph (a) or of any collusion in relation to such an offence, the court may order that the property or part be returned to that person. [Emphasis added] [10] Brooks has acknowledged that she is not entitled to relief from forfeiture pursuant to s. 19(3), being "a person who was charged with designated substance offence". Prima facie, then, Her Majesty is entitled to an order of forfeiture pursuant to s. 16(1). [11] But Brooks has submitted that s. 19(3) contravenes the guarantees contained in s. 11(d) of the Canadian Charter of Rights and Freedoms, Part of the Constitution Act, 1982, being Schedule to the Canada Act 1982 (U.K.), 1982, c. 11 (to be presumed innocent until proven guilty according to law) and s. 12 of the Charter (not to be subjected to any cruel and unusual treatment or punishment). [12] It is not necessary to address the Charter submissions with respect to s. 19(3), however, because Crown counsel consented to Brooks' submission being viewed as an application by her for relief from forfeiture pursuant to s. 20. RELIEF FROM FORFEITURE [13] Section 20(1) permits any person who claims an interest in property forfeited pursuant to s. 16(1) to apply for relief from forfeiture. Expressly excluded from applying is person who was convicted of the designated substance offence in relation to which the property was forfeited. [14] Section 20(4) prescribes the powers of the court upon the hearing of an application for relief from forfeiture: 20(4) Where, on the hearing of an application made under subsection (1), the judge is satisfied that the applicant (a) is not person referred to in paragraph (1)(a), (b) or (c) and appears innocent of any complicity in any designated substance offence that resulted in the forfeiture of the property or of any collusion in relation to such an offence, and (b) exercised all reasonable care to be satisfied that the property was not likely to have been used in connection with the commission of an unlawful act by the person who was permitted by the applicant to obtain possession of the property or from whom the applicant obtained possession or, where the applicant is mortgagee or lienholder, by the mortgagor or lien-giver, the judge may make an order declaring that the interest of the applicant is not affected by the forfeiture and declaring the nature and the extent or value of the interest. [15] Brooks has deposed as to the ownership of the Lincoln. It has not been questioned that she is the owner. [16] Brooks has also deposed: 5. On September 8, 1999, Randall Wesley Fair (hereinafter referred to as "Randy") and were travelling from Calgary, back to our home in Ontario. We had stayed in hotel the night of the 7th. As was usual, Randy loaded our luggage in to my Lincoln, without my assistance. Randy was driving the Lincoln and was passenger in the front seat. The Lincoln was stopped by the Royal Canadian Mounted Police near Maple Creek, Saskatchewan. 6. member of the RCMP, now known to me to be Constable Baulkham, came to my passenger side window of the Lincoln and spoke to Randy and I. It was discovered that Randy did not have valid drivers' license and as such, Constable Baulkham required Randy to go with him to the RCMP cruiser behind the Lincoln. Constable Baulkham came to my passenger side window again and at that point stated that he saw something on the floor of the front seat and picked up and showed me some "crumbs" of marihuana. do admit to having socially used marihuana and that small amounts of personal use marihuana have been in the Lincoln at times. Therefore can not say for certain that the crumbs had not fallen on the floor from my belongings or clothes. was not aware of the presence of these crumbs of marihuana and have no idea how long they had been there or where they were from. 7. As result of finding the "crumb" of marihuana, Constable Baulkham proceeded to search the entire Lincoln. When the trunk was searched, two tubs containing marihuana were located. did not have any knowledge of the presence of these tubs or of the marihuana inside of them. 9. have never been convicted of drug related offence in my entire life. am law abiding citizen. If had known that Randy intended on transporting marihuana would not have allowed him to put the marihuana in my car. Certainly, would never have traveled[sic] in the car if had known the marihuana was in my trunk. 14. do not believe that should be punished, by losing my investment in my Lincoln, when have not been convicted of any offence. It is my understanding that was innocent of the crimes was alleged to have committed unless proven guilty. was acquitted at trial and again state do not believe should be punished by losing my Lincoln. 15. As stated above, had no knowledge of the presence of the marihuana in the trunk of the car. If the Crown is successful in its application for forfeiture, will be punished for something had absolutely no knowledge or control over, feel this is cruel and unusual punishment. [17] In dismissing the charges against Brooks, the trial judge stated: Insofar as the accused Brooks is concerned, I'm aware of the fact that she was the owner of the motor vehicle and there's some evidence that she may have had knowledge of the existence of the marihuana, but I'm not satisfied beyond reasonable doubt that there's evidence that she consented to the marihuana being in the possession of her co-accused. Consequently, the charges against her must be dismissed. [18] The statement that "there's some evidence that she may have had knowledge of the existence of the marihuana" was based on the following testimony of Constable Baulkham: p. 44 My Lord, while we were up at the vehicle and we refer to Constable Nash, Ms. Brooks and myself at this time Ms. Brooks and myself had conversation and do ask couple of questions, if there was am just trying to think oh, if there was any other drugs in the vehicle and Ms. Brooks stated, "No, just the marihuana", and then asked her how much or asked her how much was there and she wasn't sure how much marihuana was there. So when asked if there was any other drugs in the vehicle, the only other comment recall her making was, "No, just in the blue tubs". The 28.3 pounds of marihuana contained in the plastic bags were in two plastic blue tubs stacked one on top of each other in the trunk of the Lincoln. [19] There was no evidence adduced at trial to rebut the foregoing testimony of Constable Baulkham. [20] Section 20(4) does not require Brooks to prove either beyond reasonable doubt or on balance of probabilities her innocence of any complicity in the designated substance offence and that she exercised all reasonable care. It is sufficient for Brooks to merely satisfy the judge that she "appears innocent". [21] Brooks and Fair were travelling together. They had stayed overnight on September 8, 1999, at hotel in Calgary. It appears from the affidavit of Brooks that this was not their first overnight stay. She has deposed that "as was usual, Randy loaded our luggage in to my Lincoln. .". [22] Coupled with the unchallenged testimony of Constable Baulkham, quoted above, it is quite impossible to conclude that Brooks "appears innocent of any complicity" in the offence of which Fair was convicted and that she "exercised all reasonable care to be satisfied" that the Lincoln was not likely to be used in the commission of the offence. ALLEGED CHARTER VIOLATIONS [23] Section 11(d) of the Charter states" 11 Any person charged with an offence has the right nan (d) to be presumed innocent until proven guilty according to law in fair and public hearing by an independent and impartial tribunal; [24] Section 11 of the Charter applies only when person has been charged with an offence. There is no charge against Brooks at this time alleging the commission of an offence. [25] Section 12 of the Charter states: 12 Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [26] In Steele v. Mountain Institution, 1990 CanLII 50 (SCC), [1990] S.C.R. 1385 it was stated that it would only be on rare and unique occasions that court will find sentence so grossly disproportionate that it violates the provisions of s. 12 of the Charter. The test for determining whether sentence is disproportionately long is very properly stringent and demanding. lesser test would tend to trivialise the Charter. [27] The "test" was enunciated by Lamer J. in R. v. Smith, 1987 CanLII 64 (SCC), [1987] S.C.R. 1045 at 1073: In assessing whether sentence is grossly disproportionate, the court must first consider the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender. The other purposes which may be pursued by the imposition of punishment, in particular the deterrence of other potential offenders, are thus not relevant at this stage of the inquiry. This does not mean that the judge or the legislator can no longer consider general deterrence or other penological purposes that go beyond the particular offender in determining sentence, but only that the resulting sentence must not be grossly disproportionate to what the offender deserves. If grossly disproportionate sentence is "prescribed by law", then the purpose which it seeks to attain will fall to be assessed under 1. Section 12 ensures that individual offenders receive punishments that are appropriate, or at least not grossly disproportionate, to their particular circumstances, while s. permits this right to be overridden to achieve some important societal objective. [28] In R. v. Goltz, 1991 CanLII 51 (SCC), [1991] S.C.R. 485 it was stated that when determining whether any punishment is grossly disproportionate to the offence, the court should consider, inter alia, whether the punishment is necessary to achieve valid penal purpose. [29] The societal purpose of the Act, and the forfeiture provisions thereof, was alluded to by Whitman J.A. in R. v. Gisby, 2000 ABCA 261 (CanLII), [2000] A.J. No. 1145 QL (Alta. C.A.): ¶19 The CDSA [Controlled Drug and Substances Act] was enacted by Parliament to combat the illicit drug industry. 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 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. ¶20 The forfeiture provisions serve another purpose. In addition to punishment and deterrence, they help 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 designated substance offence. Provided that all requisite conditions are met, property that has been used to facilitate such offences will be forfeited and thus cannot be used to aid the perpetration of future offences. [30] Quite simply, Parliament has authorized forfeiture of conveyances utilized to transport controlled drugs and substances. That surely cannot constitute cruel and unusual treatment, or punishment, of the offender. But what about those persons who may own, or have an interest in, the forfeitable conveyance and have not been convicted of the designated substance offence, or even have any knowledge of the offence? [31] If person has an interest in forfeitable conveyance, but there was no possible means by which that person could have determined that the conveyance might have been utilized to commit the offence, should that person's interest be forfeited? If so, that person might very well be deemed to have been subjected to cruel and unusual treatment. [32] But the Act distinguishes between three types of persons who might own, or have an interest in, conveyance which is "offence-related property". [33] Firstly, the interest of person who has been convicted of the offence is forfeitable pursuant to s. 16(1). [34] Secondly, by virtue of s. 19(3) the interest in the property of person who has neither been convicted nor charged with the offence will not be affected if the person "appears innocent of any complicity" in the offence. Most applications would presumably arise under this category: commercial lessors of motor vehicles; family member permitting another family member to utilize motor vehicle with no knowledge whatever that it might become "offence-related property", etc. [35] The third category encompasses someone in the position of Brooks: she was unable to apply pursuant to s. 19(3) because she was charged with the offence which gave rise to the forfeiture application. As result of being in the third category, she must satisfy the judge hearing the application that not only does she "appear to be innocent of any complicity" but that she also "exercised all reasonable care to be satisfied that the property" was not likely to have been used in connection with "the designated substance offence". [36] Thus, forfeiture is not, except with respect to an offender, arbitrary. Those "apparently" innocent of any complicity of an offence will not have their property interest forfeited. And those who are charged with designated substance offence, but not convicted, are entitled to relief from forfeiture if they are apparently innocent of complicity in the offence and exercised reasonable care regarding the property. [37] If relief from forfeiture was only available upon proof, by some standard, of innocence of complicity in the offence, forfeiture might then be deemed to be cruel and unusual treatment or punishment. But it is only necessary to satisfy judge that the applicant is "apparently innocent" to avoid forfeiture. [38] In view of the provisions available in the Act to obtain an order of relief from forfeiture, it cannot be concluded that empowering a court to grant an order of forfeiture constitutes cruel and unusual treatment or punishment of any person who may have an interest in the property sought to be forfeited.  Consequently, the application of Brooks must be dismissed and an order of forfeiture will issue pursuant to s. 16(1) of the Act.
The Crown applied for an order forfeiting a vehicle pursuant to s.16(1) of the Controlled Drug and Substances Act. The registered owner applied for an order declaring her interest in the vehicle was not affected by any forfeiture order. The owner was passenger when 28.3 pounds of marijuana was discovered in the trunk of her Lincoln. She was found not guilty of trafficking and possession of marijuana for the purpose of trafficking. The driver was found guilty of possession for the purpose of trafficking. The trafficking charge against him was judicially stayed. HELD: An order of forfeiture issued pursuant to s.16(1). The application for relief was dismissed. 1)It was not necessary to address the Charter submissions with respect to s.19(3) because Crown counsel consented to the respondent's application being viewed as an application for relief from forfeiture under s.20. 2)It was impossible to conclude the respondent 'appeared innocent of any complicity' in the offence for which the driver was convicted and that she 'exercised all reasonable care to be satisfied' that the Lincoln was not likely to be used in the commission of the offence. 3)Section 11 of the Charter applies only when person has been charged with an offence. There was no charge against the respondent at this time. 4)The Act distinguishes between three types of persons who might own, or have an interest in, conveyance which is 'offence-related property': the interest of person convicted of the offence is forfeitable pursuant to s.16(1); if the person has been neither convicted nor charged and appears innocent of any complicity in the offence; someone charged with the offence which gave rise to the forfeiture application (as here). The forfeiture is not, except with respect to an offender, arbitrary. In view of the provisions available under the Act to obtain relief from forfeiture it cannot be concluded that empowering a court to grant an order of forfeiture constitutes cruel or unusual punishment.