R. v. Kohi, 2010 ONCJ 593

COURT FILE No.: 09-92619 DATE: 2010-12-07 Citation: R. v. Kohi , 2010 ONCJ 593 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — AMAWN WAHID KOHI Before Justice Zisman Heard on October 21, 2010 Reasons for Judgment released on December 7, 2010 M. Edward Graham .................................................................................................... for the Crown S.

Darroch ................................................................................ for the accused Amawn Wahid Kohi ZISMAN J.: INTRODUCTION [ 1 ] This is an application by the Attorney General of Canada for a forfeiture order, of a 2008 Ford Mustang MGT (the “Mustang”) licence number BECM360, pursuant to section 16 (1) of the Controlled Drugs and Substances Act ( CDSA ) as offence- related property.

FACTUAL BACKGROUND [ 2 ] On June 25, 2009 the defendant was charged with two counts of possession of a controlled substance for the purpose of trafficking, two counts of trafficking in a controlled substance, and one count of production of a controlled substance following a lengthy police investigation. [ 3 ] Prior to the laying of the charges, the defendant was observed by police on several occasions utilizing this Mustang to transport and to facilitate the sale of illicit drugs and substances. [ 4 ] On June 22, 2010 the defendant pleaded guilty to one offence of trafficking in a controlled substance, namely marihuana with an agreement that the facts on all of the charges would be read in. [ 5 ] At the time of the defendant’s arrest $3,455.00 in cash was seized.

A search warrant was executed for his residence where police seized four pounds of marihuana valued at $8,000.00, 2 digital scales, a debt list, and a small indoor grow operation of six plants valued at $4,200.00. EVIDENCE ADDUCED AT FORFEITURE HEARING [ 6 ] At the hearing, the Crown relied on the affidavit of Detective Constable Tim Cowley of the Halton Regional Police Service.

On behalf of the defendant, the affidavit of his father Ibrihim Kohi was filed and he gave viva voce and was cross-examined. [ 7 ] Based on information received by the police, surveillance was conducted by member of the Halton Regional Police Service, on June 12 and 25, 2009. The defendant was observed on each day to be driving the Mustang and various individuals would enter the car and shortly thereafter exit the car. It appeared that the defendant was engaged in various drug transactions. The Mustang was also observed to be parked at the defendant’s residence.

[ 8 ] Detective Constable Cowley deposed that he interviewed Ibrahim Kohi, the father of the defendant, who advised him that he purchased the 2008 Mustang for his son, Amawn Kohi. He also indicated that he placed the vehicle in his wife’s name, Guljan Kohi and that at this time the defendant was the only driver of the vehicle. [ 9 ] Detective Constable Cowley determined that the Mustang was equipped with an ignition interlock system.

This device was specifically installed for the defendant as a result of being convicted of driving with more than 80 milligrams of alcohol in 100 millilitres of blood on November 26, 2007. [ 10 ] Mr. Kohi is 66 years old and retired from the Ford Motor Company after working there for 23 years. His source of income is from his Ford pension and Canada Pension and his total monthly income is $2,600.00. [ 11 ] It was the evidence of Ibrihim Kohi that he purchased the 2008 Mustang on August 8, 2008 from his savings and he provided proof of the purchase agreement and a copy of the bank draft for $34,908.08.

He registered the Mustang in his wife’s name and the vehicle is insured under his car insurance policy. [ 12 ] He denied that he purchased the vehicle for his son. He testified that his son did not even drive the car for many months after its purchase. He testified that he purchased the Mustang for himself and he had wanted a Bullitt edition Mustang and decided to reward himself after many years of hard work. He testified that it was his “dream car”. [ 13 ] Mr.

Kohi testified that he that he did allow his son to use the Mustang as he required transportation to and from Sheridan College which he commenced in September 2008. He also deposed that in order for his son to legally operate any motor vehicle an ignition interlock device was required to be installed. [ 14 ] When asked in cross-examination why the device was not installed in either his car or his wife’s car, he replied that his son wanted to drive the Mustang. He admitted that the vehicle remained at the defendant’s residence.

He testified that he only allowed his son to use the vehicle temporarily. [ 15 ] When cross-examined about the statement that Mr. Kohi gave to the police, he testified that the statement was written by someone else and although he signed it, now he was not sure if he reviewed it. Although in the statement, Mr. Kohi confirms that he never drove the vehicle with the interlock device, and he initially gave the same evidence, he then changed his testimony and testified that he had driven the vehicle with the interlock ignition device.

POSITION OF THE PARTIES [ 16 ] It is the position of the Crown that Ibrihim Kohi gifted the Mustang to the defendant and that the defendant is the actual owner of the Mustang. As the Mustang is an offence-related property it should be forfeited. It was not alleged that Mr. Kohi was aware that the vehicle was being used for illegal purposes by the defendant or that Mr. Kohi was in any way involved with any illegal offence. [ 17 ] It is the position of the defendant that his father, Ibrihim Kohi, is the lawful owner of the Mustang and that it should be returned to him.

It is further the position of the defendant that even if the Court finds that the defendant is the owner of the Mustang that it would be disproportionate to the gravity and the circumstances surrounding the offence and based on the defendant having no criminal record for the Mustang to be forfeited. THE LAW [ 18 ] The relevant sections of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 ( the “ CDSA ”) are sections 2 , 16 and 19 . Those sections provide as follows: 2.

(1) In this Act, offence-related property” means, with the exception of a controlled substance, 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; Order of forfeiture of property on conviction 16. (1)(

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 19.

(1) Before making an order under subsection 16(1) or 17(2) in relation to any property, a 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 a valid interest in the property. Manner of giving notice

(2) A notice given under subsection (1) shall (

a) be given or served in such manner as the court directs or as may be specified in the rules of the court; (

b) be of such duration as the court considers reasonable or as may be specified in the rules of the court; and (

c) set out the designated substance offence charged and a description of the property. Order of restoration of property

(3) Where a court is satisfied that any person, other than (

a) a person who was charged with a designated substance offence, or (

b) a person who acquired title to or a right of possession of the property from a person referred to in paragraph (

a) under circumstances that give rise to a 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. Notice 19.1

(1) Where all or part of offence-related property that would otherwise be forfeited under subsection 16(1) or 17(2) is a dwelling- house, before making an order of forfeiture, a 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 a 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. Manner of giving notice

(2) A notice shall (

a) be given or served in the manner that the court directs or that may be specified in the rules of the court; (

b) be of any duration that the court considers reasonable or that may be specified in the rules of the court; and (

c) set out the offence charged and a description of the property. Non-forfeiture of real property

(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) 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. Factors in relation to dwelling-house

(4) Where all or part of the property that would otherwise be forfeited under subsection 16(1) or 17(2) 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. 2001, c. 32, s. 53 . ANALYSIS [ 19 ] A forfeiture order under the CDSA serves three purposes namely, it punishes the offender by taking away the property that was used in the commission of the designated substance offence, it acts as a deterrent by imposing a very real cost to those who either use or permit to be used their property in the commission of a designated offence and it ensures that the property is no longer available for continued use in criminal activities. See R. v.

Craig 2009 SCC 23 (CanLII) , [2009] 1 S.C.R. 762 at para. 16 , 17, 22 and 41; Canada (Attorney General) v. Huynh 2005 BCPC 431 (CanLII) , [2005] B.C.J. No. 2168 at para. 2 . [ 20 ] The forfeiture scheme in the CDSA envisions that after an offender has been convicted of a designated substance offence the Attorney General may apply for forfeiture of offence-related property.

Under section 16(1) of the CDSA the Court must order forfeiture where the Attorney General establishes on a balance of probabilities that the property is offence-related property in relation to which the designated substance offence was committed.

[ 21 ]

Section 19 of the CDSA deals with the rights of an innocent owner or other person who may have a valid interest in the offence-related property. Section 19(1) requires that any person appearing to have a valid interest in offence-related property be notified of the forfeiture proceedings. This

section allows innocent parties who are either the lawful owner or lawfully entitled to possession of the property to apply for an order that the property be returned to them. [ 22 ] Section 19(3) of the CDSA provides for the return of property that would otherwise be forfeited to the lawful owner or the person lawfully entitled to possession of the property in circumstances where the owner or the person who acquired possession of the property from the offender, in circumstances where there is a reasonable inference that the property was transferred for the purpose of avoiding forfeiture of the property, and where the owner or the person lawfully entitled to the possession of the property appears to be innocent of complicity or collusion with respect to the offence. [ 23 ]

Section 19.1 of the CDSA specifically deals the circumstances where all or part of offence-related property is a dwelling- house. Further,

section 19.1(3) sets out the factors to be considered in determining whether the impact of the forfeiture order would be disproportionate to the offence. [ 24 ] There is no reference to proportionality with respect to personal property and it is only in regard to real property that the court can take into account the impact of an order of forfeiture and whether or not 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. [ 25 ] Further it is only with respect to a dwelling house that the court may take into consideration the impact that an order of forfeiture may have on the immediate family of the person charged or convicted of the offence provided that the dwelling house was a family member’s principal residence at the time of the charge was laid and continues to be the principal residence of the family member.

The family member must also be innocent of any complicity in the offence or of any collusion in relation to the offence. (section 19.1(4)) [ 26 ] Parliament clearly must have intended that the proportionality test did not apply to personal property under the CDSA . In contrast, the proportionality test in the forfeiture provision in

section 490.41 of the Criminal Code applies to both personal and real property. [ 27 ] Accordingly, in forfeiture applications of personal property involving third parties the questions to be asked are as follows: 1. Is the property in question offence-related? 2. Was the offence committed in relation to that property? 3. Does the third party qualify for the return of the property as the lawful owner or is the third party otherwise lawfully entitled to possession of the property? 4. Does the third party appear innocent of any complicity in the designated substance offence? 5.

Does the third party appear innocent of any collusion in relation to the designated substance offence? [ 28 ] In this case, it was conceded by the defendant that the Mustang is an offence-related property and that the defendant committed the offence of trafficking using the Mustang.

It was never suggested by the Crown that the defendant’s father, Ibrihim Kohi, is anything but an innocent third party who was not in any way involved in any illegal activity. [ 29 ] Therefore the only issue to be decided is whether or not Ibrihim Kohi is the lawful owner of the Mustang or is otherwise entitled to possession. [ 30 ] There is uncontradicted evidence that Mr. Kohi purchased the Mustang entirely with his financial resources, it is registered in his wife’s name and insured on his car insurance policy.

Despite the evidence that the Mustang was used exclusively by the defendant during the time of the offence, specially equipped with an ignition interlock device for the benefit of the defendant and kept at his residence, nevertheless, the Mustang remained the legal property of Mr. Kohi and his wife. Mr. Kohi could have at any time required that the defendant return the Mustang to him as he had purchased the Mustang and his wife was the registered legal owner.

The Mustang was only in the defendant’s possession due to the generosity of his father however, I do not find that this would have elevated his use of and possession of the Mustang to either legal ownership or legal entitlement to the Mustang. Conclusion [ 31 ] I find that Ihrihim Kohi is lawfully entitled to possession of the Mustang. The Crown’s application for forfeiture of the Mustang is dismissed and I order that the Mustang be returned to Ihrihim Kohi. Released: December 7, 2010 Signed: “Justice Roselyn Zisman”