THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2007 SKCA 63 Date: 20070524 Between: Docket: 1321 Her Majesty the Queen as represented by The Attorney General of Canada and Paul Jonathon Paziuk Coram: Klebuc C.J.S., Lane Hunter JJ.A. Counsel: Wade McBride for the Appellant Richard S. Yaholnitsky for the Respondent Appeal: From: Provincial Court Heard: May 24, 2007 Disposition: Allowed in part (orally) Written Reasons: June 6, 2007 By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Chief Justice Klebuc The Honourable Madam Justice Hunter Lane J.A. (orally) [1] The respondent, resident of Manitoba, was convicted of having in his possession controlled substance for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act[1] (the “Act”) and was sentenced to term of incarceration of nine months with 10 year firearms prohibition. The offence took place in Yorkton. The sentencing judge refused to order forfeiture of the truck the respondent was driving when he was arrested. [2] The respondent was nearly 22 years old at the time of the offence and had no prior record. He was found to have in his possession some 241 ecstasy pills and some marijuana. The Crown put street value on the drugs of between $2000 and $3000, with the respondent valuing the drugs at slightly under $2000. [3] The sentencing judge referred to authorities with an accused of similar age, or with drugs of similar street value. The judge was satisfied the respondent was low risk to reoffend and of no real danger to society. He found the venture to be commercial one, albeit of small-time nature. He noted the respondent was depressed and remorseful. [4] We are all of the view the sentence imposed was at the very low end of the range but, in these circumstances, find there is no basis for interfering with the sentence imposed. [5] A more significant issue is the refusal of the sentencing judge to order forfeiture of the truck used by the respondent to bring the drugs into Saskatchewan and to deliver them. [6] The truck had value of approximately $20,000. It was owned by the respondent and paid for through loan from his parents. The trial judge found that “basically all of the money” to pay for the truck came from the parents’ bank account but they had registered no lien to protect their interests. [7] The sentencing judge found the truck was not “integral to the offence.” He had this to say: don't think the onus has been met and I'm not satisfied that in this offence on the circumstances before me of some 280 pills, first-time offender with no previous criminal record, that the truck was integral in any way to this particular operation, aside from transporting him to various places across the country. It’s not that type of commercial operation, right? This isn’t, you know, the TransCanada where the truck’s full or there’s eight garbage bags full of marijuana. So think on that place the onus isn’t met for me on this particular case with these particular facts. In the event that I’m wrong in that, would grant forfeiture on the basis of the material that’s filed and want to be fair about that. The material that’s filed basically indicates the representation that was made that virtually the truck’s worth $21,000. Of it basically all of the money comes from the parents’ bank account to the kid to pay for the truck. If you had any level of sophistication, if you were commercial enterprise, what you would do is register lien to protect your interest in the truck, right? So have relief on forfeiture in the event that I’m wrong. So ultimately with respect to the issue of forfeiture, all other items think are properly forfeited, but think the truck should be released, okay?[2] [8] He went further: It’s just think in these circumstances it would be guess it would be disproportionate to the offence at the end of the day. felt by my sentence that had no choice but to do incarceration; think that was fair. But think in light of the overall sentencing here, think that justice has been done with what I’ve ordered. So wouldn’t make the order forfeiture with respect to the vehicle, all right.[3] And in further response to the Crown’s objections he stated: understand your position, right. But on the facts before me, so I’m clear, now that you’ve done that, do not find it as integral, okay, to the offence. do not find it is tied particularly to the offence, as I’ve indicated. What do find is he used it as method of transportation. But he wasn’t trafficking out of his truck. mean they were in his truck, that was an incident to. would say this for the record. With different amount and different nature, right, could find it, could come to different resolve. But in this particular case on these circumstances I’m not doing so, all right?[4] [9] refer firstly to these provisions of the Act: 2. ... “offence-related property” means, with the exception of controlled substance, 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; [Emphasis added] (1) Subject to sections 18 to 19.1, 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 (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 (3) person who has been convicted of designated substance offence or the Attorney General may appeal to the court of appeal from an order or failure to make an order under subsection (1) as if the appeal were an appeal against the sentence imposed on the person in respect of the offence. [Emphasis added] [10] It is clear the truck is “offence-related property” in that it was used in connection with the commission of a designated substance offence. The sentencing judge failed to consider the definition in the Act. Upon conviction, the first step he ought to have taken was to determine whether the property was “offence-related property” within the meaning of the Act. The sentencing judge was then required, pursuant to s. 16, to order the property be forfeited because the section mandates the same, subject to sections 18 to 19.1, by the use of the words “shall...order that the property be forfeited....” [11] Before making the order of forfeiture the Court shall require, pursuant to s. 19, notice be given to any person who in the opinion of the Court has valid interest in the property. In the particular circumstances of this case, nothing turns on the failure to give notice as the parents were fully aware of the proceedings and their interests were dealt with by the sentencing judge, although he was wrong in his decision. This section allows innocent parties who have valid interest in the property to apply for an order of restoration of the property. However, the innocent party must be either the lawful owner or lawfully entitled to possession of the property which would otherwise be forfeited. The Court may order in its discretion that the property be returned to the innocent person. [12] The following sections are relevant at this stage of the analysis: (1) Before making an order under subsection 16(1) or 17(2) in relation to any property, court shall require notice in accordance with subsection (2) to be given to, and may hear, any person who, in the opinion of the court, appears to have valid interest in the property. (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 avoiding 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 subsection 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. 19.1 (1) Where all or part of offence-related property that would otherwise be forfeited under subsection 16(1) or 17(2) is dwelling-house, before making an order of forfeiture, court shall require notice in accordance with subsection (2) to be given to, and may hear, any person who resides in the dwelling-house and is member of the immediate family of the person charged with or convicted of the indictable offence under this Act in relation to which the property would be forfeited. (3) Subject to an order made under subsection 19(3), if court is satisfied that the impact of an order of forfeiture made under subsection 16(1) or 17(2) 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) or 17(2) is dwelling-house, when making 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. [13] There is no reference to proportionality in regard to personal property and it is only in regard to forfeiture of real property that the judge can take into account the impact of an order of forfeiture and whether it is proportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record of the person charged or convicted. [14] Thus, in relation to dwelling house, the Court may take into account the impact that an order of forfeiture may have on the immediate family of the person charged or convicted of the offence provided the dwelling house was member’s principal residence at the time the charge was laid and continues to be the member’s principal residence, and if the member is innocent of any complicity in the offence or of any collusion in relation to the offence (s. 19.1(4)). [15] Parliament clearly intended that the proportionality test does not apply to personal property under the provisions of the Act. In contrast, the proportionality test in the Criminal Code applies to both real and person property. Section 490.41(3) reads as follows: (3) Subject to an order made under subsection 490.4(3), if court is satisfied that the impact of an order of forfeiture made under subsection 490.1(1) or 490.2(2) 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. [16] As stated above, the vehicle was owned by the respondent and the parents are not lawfully entitled to possession of the property. The sentencing judge had no discretion but was required to order forfeiture and erred in failing to do so. He further erred in considering proportionality as a factor to be considered when dealing with the forfeiture of personal property. [17] The Crown is therefore granted leave to appeal, the appeal against the length of sentence is dismissed and the appeal of the failure to order forfeiture of the truck is allowed. The truck is ordered forfeited. [1] R.S.C. 1996, c. 19. [2] Sentencing transcript at pp. 37-38. [4] Ibid. at pp. 39-40.
The respondent was convicted of having in his possession a controlled substance for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act (CDSA) and was sentenced to a term of incarceration of 9 months with a 10 year firearms prohibition. The issues on appeal were: 1) the length of the sentence; and 2) the refusal of the sentencing judge to order forfeiture of the truck used by the respondent to bring the drugs into Saskatchewan and to deliver them. The sentencing judge found the truck was not 'integral to the offence.' HELD: The Crown is granted leave to appeal. 1) The appeal against the length of sentence is dismissed. 2) The appeal of the failure to order forfeiture of the truck is allowed. The truck is ordered forfeited. 1) Although the sentence imposed was at the very low end of the range, in these circumstances, there is no basis for interfering with it.  2) Upon conviction, the first step the trial judge ought to have taken was to determine whether the property was 'offence-related property' within the meaning of the CDSA. It is clear the truck is 'offence-related property' in that it was used in connection with the commission of a designated substance offence. The sentencing judge failed to consider the definition in the CDSA. Section 19 of the CDSA allows innocent parties who have a valid interest in property to apply for an order of restoration. However, the innocent party must be either the lawful owner or lawfully entitled to possession of the property which would otherwise be forfeited. The Court may order in its discretion that the property be returned to the innocent person. In this case, the vehicle was owned by the respondent and the parents are not lawfully entitled to its possession. The sentencing judge had no discretion but was required to order forfeiture and erred in failing to do so. He further erred in considering proportionality as a factor to be considered when dealing with the forfeiture of personal property.