2011 QCCA 435, 2011 QCCA 435

Unofficial English Translation R. c. Neault 2011 QCCA 435 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002525-108 (400-01-057879-108) DATE: March 10, 2011 CORAM: THE HONOURABLE J.J. MICHEL ROBERT, C.J.Q. PAUL VÉZINA, J.A. DOMINIQUE BÉLANGER, J.A. (AD HOC) HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v.

STEVEN NEAULT RESPONDENT – Accused JUDGMENT [ 1 ] The appellant appeals from a judgment rendered on May 14, 2010, by the Court of Quebec, Criminal Division, District of Trois-Rivières (the Honourable Judge Guy Lambert), which refused to order the forfeiture of offence-related property, i.e. the respondent’s truck. [ 2 ] For the reasons of Vézina J.A., with which Robert and Bélanger JJ.A. agree, the Court: [ 3 ] TAKES NOTE of the respondent’s promise to pay the storage costs for the truck for 30 days; [ 4 ] ORDERS the return of the truck to the respondent upon payment of this sum, and no more; [ 5 ] DISMISSES the appeal and otherwise AFFIRMS the judgment a quo.

J.J. MICHEL ROBERT, C.J.Q. PAUL VÉZINA, J.A. DOMINIQUE BÉLANGER, J.A. (AD HOC) Mtre Jean-François Bouvette Criminal and penal prosecuting attorney For the appellant Mtre Yvan Braun For the respondent Hearing date: November 5, 2010

REASONS OF VÉZINA, J.A. [ 6 ] The trial judge (the judge) refused the appellant’s application for an order of forfeiture of “offence-related property”, i.e. the respondent’s truck, hence the appeal. The judgment [ 7 ] The judge first summarized the facts that gave rise to the forfeiture application: [TRANSLATION] [1] The facts that led to the seizure of the automobile are not complicated. On February 20, 2010, Mr. Neault was stopped by the police. They detected an odour of alcohol on his breath.

He was taken to the police station to undergo a breathalyzer test, which revealed a blood alcohol level of 112 milligrams of alcohol per 100 millilitres of blood. [2] The accused pleaded guilty on February 23, 2010.

As he had committed two similar offences in 2000 and 2004, he was sentenced to 120 days imprisonment and was prohibited from driving for a period of three years. [3] The Crown brought the following relevant past offences to the Court's attention: 1. 18-12-2000: driving with a blood alcohol level of more than 80 milligrams $800 fine 2. 06-03-2002: driving while disqualified $600 fine 3. 08-04-2004: driving with a blood alcohol level of more than 80 milligrams $900 fine 4. 04-05-2006: driving while disqualified 30 days imprisonment to be served intermittently [ 8 ] The judge then cited the Criminal Code provisions setting out the general rule governing forfeiture of offence-related property (section 490.1) and the exception rule (subsection 490.41(3)), if forfeiture is deemed “disproportionate".

Here are the relevant excerpts:

Définitions 2. Les définitions qui suivent s’appliquent à la présente loi. ... « bien infractionnel » Bien ... qui sert ou donne lieu à la perpétration d’un acte criminel ..., ou qui est utilisé de quelque manière dans la perpétration d’un tel acte, ou encore qui est destiné à servir à une telle fin. … 490.1

(1) Confiscation lors de la déclaration de culpabilité – Sous réserve ... et sur demande du procureur général, le tribunal qui déclare une personne coupable d’un acte criminel ... et qui est convaincu, selon la prépondérance des probabilités, que des biens infractionnels sont liés à la perpétration de cet acte criminel ordonne que les biens infractionnels soient confisqués au profit:

a) soit de Sa Majesté du chef de la province ...

b) soit de Sa Majesté du chef du Canada ... … 490.41 ...

(3) Non-confiscation de biens infractionnels –

Sous réserve ..., le tribunal peut ne pas ordonner la confiscation de tout ou

partie de biens infractionnels confiscables en vertu des paragraphes 490.1(1) ... s’il est convaincu que la confiscation serait démesurée par rapport à la nature et à la gravité de l’infraction, aux circonstances de sa perpétration et, s’il y a lieu, au casier judiciaire de la personne accusée ou reconnue coupable de l’infraction, selon le cas.

Definitions 2. In this Act, ... "offence-related property” means any property, ... (

a) by means or in respect of which an indictable offence ... is committed, (

b) that is used in any manner in connection with the commission of such an offence, or (

c) that is intended to be used for committing such an offence; … 490.1

(1) Order of forfeiture of property on conviction – Subject to sections ... if a person is convicted of an indictable 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) …order that the property be forfeited to Her Majesty in right of that province ... (

b) in any other case, order that the property be forfeited to Her Majesty in right of Canada and ... … 490.41 ...

(3) Non-forfeiture of property – Subject to ..., if a court is satisfied that the impact of an order of forfeiture made under subsection 490.1(1) ... 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 ... [ 9 ] The judge stated the matter at issue, the same one as in appeal, noting that the question as to whether the respondent's truck constituted offence-related property was excluded: [TRANSLATION] [12] As the judgments consulted by the Court conclude that a vehicle driven by a person in an impaired state is offence-related property, and as counsel for the defence has conceded this point, the matter is not at issue. [ 10 ] This case revolves around the question of disproportion set out in subsection 490.41(3) Cr.

C. , or the “proportionality test”, the expression used by the Supreme Court in Craig , [1] several excerpts of which are cited below. [ 11 ] The factors considered by the judge in finding that forfeiture was disproportionate are the following: [TRANSLATION]

[13] A person's previous offences are only one of the elements that the Court must take into account in making its decision. It must consider the nature and severity of the offence and the circumstances surrounding its commission. In this case, the accused was stopped with a blood-alcohol level of 112 milligrams, which is above the legal limit but not very high, and there was no accident or careless driving. [14] In each case that comes before us, we must determine if the evidence presented by the defence enables us to apply subsection 490.41(3).

If, for example, it is the only family vehicle and the spouse and children living in a remote area are deprived of their only means of transportation. A spouse can also argue that the vehicle is part of the family patrimony and that she would suffer serious prejudice if it were forfeited. There are also all the other cases where a person drives a vehicle that does not belong to him. [15] In the case before me, I believe it would be disproportionate to order the forfeiture of the accused’s truck. I absolutely condemn impaired driving. I am well-positioned to see all the harm it wreaks on our society.

People die or are disabled for the rest of their lives because of this plague. … [17] Mr. Neault is a young man in the grips of addiction. He is presently trying to overcome this problem. He has the unconditional support of his parents. He is fortunate to have a steady job. He needs his vehicle to operate the “méchoui” business, as he has to travel from place to place to organize the meals. [18] He was sentenced to 120 days imprisonment which, I hope, will be a sufficient deterrent. He is prohibited from driving for three years.

This will cause him great inconvenience, because there is no public transportation in his area. [19] In this case, I believe it would be disproportionate to order the forfeiture of the truck seized at the time of his arrest. * * * Grounds of appeal [ 12 ] The appellant's main ground of appeal [2] is that [TRANSLATION] “the trial judge erred in law in refusing to order the forfeiture of offence-related property and in applying and interpreting subsection 490.41(3) of the Criminal Code ”. [ 13 ] According to the appellant, the judge made an error in law in considering the sentence imposed when ruling on forfeiture.

This argument is well-founded. The sentence is not a relevant factor in determining whether forfeiture would be disproportionate. [ 14 ] The appellant claims, wrongly in my opinion, that the judge made a second error [TRANSLATION] “in linking the offence- related property to the family vehicle, whose forfeiture could deprive a family member, in making a possible link between the offence- related property and the family patrimony, and so on”. [ 15 ] Some less important criticisms are levied at the judge concerning his analysis of the case as regards the three factors provided by the law.

These criticisms are unfounded. [ 16 ] They require that we first examine the extent of a judge’s judicial discretion when ruling on an application for a forfeiture order. [ 17 ] It seems appropriate to perform this analysis in the following order:

a) The irrelevance of the sentence;

b) The court’s discretion;

c) The purpose of the order;

d) The three factors provided by the law;

e) The family aspect. [ 18 ] In Craig , the Supreme Court dealt with the

interpretation of a text [3] similar to that of subsection 490.41(3) Cr. C. We must therefore analyze this case according to its teachings.

a) Irrelevance of the sentence [ 19 ] The first lesson learned from Craig is that sentencing and ruling on an application for a forfeiture order are two unrelated and independent steps in a trial that must remain separate from each other. The first three paragraphs of the judgment lay out the problem and state the majority's conclusion: [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. [ 20 ] Further on, Abella J., citing Deschamps J., reiterates that the two steps should be conducted separately: [48] In R. v. Lavigne , 2006 SCC 10 , [2006] 1 S.C.R. 392 , Deschamps J., in considering whether a forfeiture order for the proceeds of crime is part of the sentence, concluded that a court’s discretion in imposing an order is necessarily limited by the purpose of the order to be made and by the statutory factors at issue (paras. 23-24).

The forfeiture factors found in s. 19.1(3), therefore, should similarly be seen to constitute a complete code for deciding whether, and to what extent, a forfeiture order should be made. This exercise of discretion does not engage the full panoply of principles used to determine whether a sentence is fit when the statute sets out its own guiding factors . The expansive principle of proportionality used in sentencing, therefore, has been excluded both expressly and by necessary implication, in favour of the more specific factors outlined in s. 19.1(3) .

The different scope and purpose of the two inquiries suggests that they ought logically to be considered as separate . [Emphasis added] [ 21 ] Craig is unequivocal. When sentencing, the judge must disregard the advertised application for a forfeiture order and, afterwards, when examining the suitability of a forfeiture order, the judge must not go back and consider the sentence imposed.

Consideration of the sentence was the reproach directed by the Supreme Court at the British Columbia Court of Appeal: [46] The Court of Appeal concluded that because s. 19.1(3) states that a court may refuse to order forfeiture if “the impact” of the order would be “disproportionate”, this mandates an inquiry into the accused’s individualized circumstances, including the term of imprisonment or other aspect of a sentence . … In my view, with respect, such an

interpretation is not justified by the wording of the provision. … [Emphasis added] [ 22 ] We can therefore conclude that, as the appellant submits, the judge committed an error in principle by taking into account, at the end of his analysis, the sentence imposed on the respondent: [TRANSLATION] “He was sentenced to 120 days imprisonment which, I hope, will be a sufficient deterrent. He is prohibited from driving for three years”. * * *

b) The court’s discretion [ 23 ] In my opinion, the wording chosen by Parliament still gives the judge a broad discretion when ruling on an application for a forfeiture order. The judge can refuse if the court “is satisfied that the impact of an order of forfeiture… would be disproportionate to…”. [ 24 ] The words “disproportionate to” imply a comparison, a weighing of two realities to see whether there is a balance or an imbalance between them.

On the one hand, there will be the facts relating to the offence, assessed according to the purpose of the order and the three factors provided by the law, and on the other, the more or less drastic consequences of the forfeiture (the impact of the forfeiture). The relative weight of the facts and consequences will tip the scales either in favour of or against forfeiture. [ 25 ] While the law specifies the factors for assessing the offence, it is silent on the consequences that should be considered and how to assess them.

In my opinion, relevant factors to consider include whether the property is superfluous, useful or necessary based on its customary usage; whether the property is of little or great value intrinsically and in the case at bar; whether the property is used for basic needs, to obtain provisions, or for personal care; whether the property is used for recreation or for work; and whether the property helps perform family or social obligations. [ 26 ] Indeed, it is the true consequences of forfeiture of the offender’s property that the judge must weigh, just as, pursuant to the following subsection (490.41(4)), it is “the impact of the order of forfeiture on any member of the immediate family” that must also be considered. [ 27 ] When is there disproportion?

How much must the scales tip to carry the decision? The judge correctly noted that these terms are not defined in the law: [TRANSLATION] [11] The Court must apply the proportionality test. Nowhere in the Criminal Code or in the case law are the terms “disproportion" and "disproportionate" defined. I therefore refer to the definition in the Larousse dictionary: [TRANSLATION] Disproportion, n: "Excess, extremeness, expressed through words, behaviour, and so on”. Disproportionate, adj.: "That which is beyond the usual proportion; enormous. A disproportionate size. 2.

That which is excessive, exaggerated, completely unreasonable. Disproportionate pride, disproportionate appetite”. [ 28 ] Where does the usual proportion end? Where do excess, exaggeration, and disproportion begin? In some cases, the line is relatively easy to draw, but in other cases, it is much less so. This brings us to the purpose of the forfeiture order. * * *

c) Purpose of the order [ 29 ] The history of the provisions shows that at the outset, the purpose was more limited. [ 30 ] In 1997, the purpose of the Act to amend the Criminal Code (criminal organizations) and to amend other Acts in consequence [4] was to fight “the use of violence by organized criminal gangs”.

The whereases of Bill C-95 are unequivocal; two of the eight are cited below: - Whereas the Parliament of Canada recognizes that the criminal activities of criminal organizations pose a threat to public order and to the safety of individual Canadians ; - Whereas the Parliament of Canada recognizes the importance of depriving criminal organizations and their members of the proceeds of their criminal activities and of the means used to carry out those activities; The definition of “offence-related property” refers to “criminal organization offence”: “offence-related property means any property ... (

a) by means of or in respect of which a criminal organization offence is committed, (

b) that is used in any manner in connection with the commission of a criminal organization offence, or (

c) that is intended for use for the purpose of committing a criminal organization offence, but does not include real property, other than real property built or significantly modified for the purpose of facilitating the commission of a criminal organization offence; [ 31 ] The contemporary remarks of the Honourable Allan Rock (Minister of Justice and Attorney General of Canada, Lib.) confirmed the purpose of the order. He explained that the bill added to existing forfeiture of the proceeds of crime that of forfeiture of offence-related property.

We can read in the Debates of the House of Commons (Hansard): [5] Mr. Rock: Mr. Chairman, at the moment the criminal law provides that in certain categories of crime, the court can seize and forfeit the proceeds of crime. Indeed, in some circumstances the court can make an order, even before conviction, that the property be tied up or suspended, that the accused person be deprived of its use or operation in the period pending trial. We have taken over such things as ski chalets under the provisions of that law where it has been possible to prove that the proceeds of the crime can be traced into assets.

In Bill C-95 the ambit of the proceeds

section have been extended so that they cover criminal organization offences as well as the offences to which they apply at present. However, we have done something else and this is the first time it has been done. We have extended the powers of the court to include the instrumentalities of crime. This has been under discussion for many years in Canadian law. It has never before been done. This means that you can not only seize the money that is made from the crime or the property to which you turn it but you can also seize the property used for the purpose of committing the crime.

If an organized crime syndicate is using boats to take contraband across the border, using trucks to drive explosives to the scene of the crime, using a building, especially fortified or modified, to facilitate the commission of a crime, then the court will be empowered to order the forfeiture of that property as an instrument of the crime as well as the proceeds which would be in keeping with the practice in Canada to date.

We believe this is going to give the authorities an important new tool to take from the criminal organizations those assets which they use to commit their crimes and to provide a way of shutting them down by depriving them of the very tools they need to carry on their nefarious trade. A little further on, a Member of Parliament agreed with these remarks: [6] Mr. Réal Ménard (Hochelaga-Maisonneuve, BQ): … … an extremely interesting and original provision which provides for the forfeiture not only of the proceeds of crime, but also of vehicles used to commit offences.

For example, if a truck is used to commit a crime, it could be confiscated. If a building is used – because the bill also applies to buildings – it could be confiscated. [ 32 ] In 2001, Bill C-24 [7] broadened the notion of offence-related property. The connection with a criminal organization offence was replaced by a connection with any indictable offence:

“offence-related property means any property ... (

a) by means of or in respect of which an indictable offence under this Act is committed, (

b) that is used in any manner in connection with the commission of an indictable offence under this Act , or (

c) that is intended for use for the purpose of committing an indictable offence under this Act; [Emphasis in the bill] [ 33 ] The fight against organized crime was extended to the fight against crime in general.

This radically increased the number of future offence-related properties. [ 34 ] As a counterbalance, Parliament added subsection 490.41(3) , supra , whereby a judge may refuse to order a “disproportionate" forfeiture. [ 35 ] This change in direction does not do away with the previous goal of fighting organized crime, which remains "particularly relevant", as Abella J. points out after citing the Minister of Justice on Bill C-24: [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 combating organized crime. [Emphasis of Abella J.] . . . 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. (House of Commons Debates, Vol. 137, 1st sess., 37th leg., April 23, 2001, at 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. [ 36 ] The last words of the quote, “ rendering [offence-related property] unavailable for future ... offences”, show that the notion of offence-related property use to concern, and still does, property “ intended” for use in committing an indictable offence, and now property “ used in any manner in connection with the commission of an indictable offence” has been added. [ 37 ] According to my understanding of the purpose of the order, the more we are in the presence of organized crime, the more the order is called for and, similarly, the more it appears that the property is “intended for use” in committing an offence, the more important it is not to leave it in the hands of the offender.

Conversely, if the offence is unrelated to organized crime and if the property was not “intended for use” in committing the offence, but was “used in any manner” connected with the commission of the offence, it is

important to determine whether its forfeiture would be disproportionate. [ 38 ] To conclude this chapter, it is useful once again to cite Abella J., who, after having elaborated on the three criteria, but before applying them to the facts of the case, mentions a judge's discretionary power and the importance of this factor in the fight against organized crime: [59] Based on the particular circumstances of the case, therefore, judges have the discretion to order no forfeiture, partial forfeiture or full forfeiture of offence-related real property. The extent of the property forfeited will vary.

Full forfeiture may be anticipated, for example, in the case of a fortified property purchased for criminal purposes and solely dedicated to the commercial production and distribution of illegal substances, perhaps with a connection to organized crime. On the other hand, one might decline to order forfeiture in the case of an individual with no criminal record and no connection to organized crime who grows very little marihuana in her home.

Each situation will be subject to a judge’s appreciation of how the s. 19.1(3) factors should be applied in the particular circumstances, which, as previously stated, may result in no, partial or full forfeiture. [60] The forfeiture scheme is not aimed strictly at defeating organized crime, as a plain reading of the provisions shows. However, even absent the legislative history to this effect, there is no doubt that involvement in organized crime is a relevant factor in applying the proportionality test under s. 19.1(3) .

It is significant not only because it is a serious circumstance in itself, but also because it indicates that the property was dedicated to and adapted for criminal purposes.

d) The three factors provided by the law [ 39 ] Let us look at how the judge applied the three criteria provided by the law, as explained by the Supreme Court. 1- Nature and severity of the offence [ 40 ] The judge examined this criterion and pointed out that the respondent's case was not one of the worst, while reiterating that impaired driving is unacceptable: [TRANSLATION] [13] … In this case, the accused was stopped with a blood-alcohol level of 112 milligrams, which is above the legal limit but not very high, and there was no accident or dangerous driving. [15] … I am well-positioned to see all the harm it wreaks on our society.

People die or are disabled for the rest of their lives because of this plague.

People die or are disabled for the rest of their lives because of this plague. [16] Sentences are increasingly severe and government advertisements are more frequent, but there are still recalcitrants. 2- Circumstances surrounding the commission of the offence [ 41 ] It is important to cite the development of this criterion by the Supreme Court: [57] The second factor, the circumstances surrounding the commission of the offence, might include consideration of the offender’s role in the commission of the offence, the nature of the property and the manner in which it was used in the offence, risks to the security or safety of the community, whether the property was used in a manner that detrimentally affected its legitimate use and enjoyment, whether the property was fortified or otherwise adapted to accommodate the grow operation, the extent of the offender’s involvement in organized crime and whether the property itself was held by a criminal organization. [ 42 ] Concerning this second criterion, the judge examined Ms.

Craig’s situation. How she was led to produce marihuana “at the suggestion of a friend”. Whom she sold it to, “...including to some of her friends suffering from AIDS.” “She lived alone in her house.” She ran this small illegal business for a number of years. [ 43 ] It seems that the judge approached the case at bar in the same manner, pointing out the following special circumstances: [TRANSLATION] [17] Mr. Neault is a young man in the grips of addiction. ... He is fortunate to have a steady job.

He needs his vehicle to operate the “méchoui” business, as he has to travel from place to place to organize the meals. [ 44 ] The dissenting opinion on another issue, though “satisfied [like the majority] that the impact of forfeiture would be disproportionate”, points out that “[t ]he property was not purchased for the purpose of establishing a grow operation”. [ 45 ] Here, the truck was purchased for a legitimate purpose. Indeed, no one purchases a vehicle to drive in an impaired state. [ 46 ] Ms.

Craig’s home was “adapted to some degree for the purpose of growing marihuana”. [8] The respondent’s truck was not modified or adapted in such a way as to interfere with its legitimate use. [ 47 ] “Ms. Craig had no links to organized crime”, [9] the respondent even less. [ 48 ] There is no question in either case of violence or of organized crime. “No weapons were found” in Ms. Craig’s home. [ 49 ] It was, however, offence-related property “intended for use” in growing marihuana:

[63] … Her operation included three growing rooms and one drying room, as well as industrial lighting, ventilation and irrigation systems. Her home, in which she lived alone, was therefore adapted to some degree for the purpose of growing marihuana. … [ 50 ] This was not the case with the respondent’s truck. It constitutes offence-related property only in that it was “used” during the offence. [ 51 ] Ms. Craig had operated her business for some time. At the time of the seizure, “the value of the plants was $87,500 and the value of the marihuana seized from her was $15,000”.

The tax authorities claimed $250,000 in unpaid taxes on her sales. In the present case, the respondent did not benefit from the offence. The loss of his truck would have constituted a net loss, not to mention the loss of future income because it was used for the business he worked for. [ 52 ] As for the fact that forfeiture of the truck would prevent the commission of future offences, the judge was able to assess this.

It was proven that a completely legitimate use for the truck had been planned, i.e., that another employee of the business would drive it for the “méchouis”. [ 53 ] The judge deemed that, in this case, forfeiture of the truck was too draconian a measure.

Not surprising, in comparison. 3- Criminal record [ 54 ] It seems that the appellant views this as the primary proportionality criterion; at least that is what emerges from its answer to the judge: [TRANSLATION] [4] As the prosecution rarely, at least for now, asks for forfeiture of vehicles when the driver is found guilty of driving with alcohol- impaired faculties, I asked Crown counsel if the prosecution had a common position in this type of case. [5] Crown counsel informed me that they are asked to consider applying for a forfeiture order in the following cases:

a) if a person is being sentenced for a third time and has already been found guilty of driving while disqualified;

b) if a person is found guilty of impaired driving for a fourth time. [ 55 ] The appellant’s statement goes in the same direction.

After discussing the criteria to consider or disregard according to the law, the appellant focuses solely on the respondent’s criminal record, without examining whether the other criteria, as analyzed by the judge, suffice to justify his refusal to issue a forfeiture order. [ 56 ] In his brief judgment, the judge nonetheless gave a detailed account of the respondent’s criminal record, and he certainly took it into account. * * * [ 57 ] In sum, the assessment of the case according to the relevant criteria – the purpose of the order and the factors provided by the law – itself justified the judge’s decision, regardless of any consideration of the sentence imposed. [ 58 ] In Craig , the trial judge exercised his judicial discretion and refused to issue a forfeiture order.

The Supreme Court upheld his decision, and the parallels with the case at bar call for a like ruling.

e) Family considerations [ 59 ] The appellant argues that the judge should not have expressed the opinion that the impact of forfeiture on the offender’s family could be considered in determining if there was disproportion. The judge wrote: [TRANSLATION] [14] In each case that comes before us, we must determine if the evidence presented by the defence enables us to apply subsection 490.41(3) . If, for example, it is the only family vehicle and the spouse and children living in a remote area are deprived of their only means of transportation.

A spouse can also argue that the vehicle is part of the family patrimony and that she would suffer serious prejudice if it were forfeited. There are also all the other cases where a person drives a vehicle that does not belong to him. [ 60 ] According to the appellant, the impact of forfeiture on the family should not be considered because this factor, provided for in subsection 490.41(4), applies only if the offence-related property is a dwelling-house:

490.41 … Facteurs: maison d’habitation

(4) Dans le cas où les biens confiscables en vertu des paragraphes 490.1(1) ou 490.2(2) sont composés d’une maison d’habitation en tout ou en partie, le tribunal, pour rendre sa décision au

titre du paragraphe (3), prend aussi en compte les facteurs suivants:

a) l’effet qu’aurait la confiscation à l’égard d’un membre de la famille immédiate de la personne accusée ou reconnue coupable de l’infraction, si la maison était la résidence principale de ce membre avant que l’accusation soit portée et elle continue de l’être par la suite;

b) le fait que le membre de la famille visé à l’alinéa a) semble innocent ou non de toute complicité ou collusion à l’égard de l’infraction. 490.41 … Factors in relation to dwelling-house

(4) Where all or part of the property that would otherwise be forfeited under subsection 490.1(1) or 490.2(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. [ 61 ] This textual argument does not convince me. [ 62 ] Clearly, the above subsection obliges the judge to “consider” the impact on a family member, but is any consideration of this nature prohibited by the preceding subsection? I doubt it. The second factor may encompass many aspects, as Craig has shown .

When trying to work out the future use of the property, if we may consider the fact that an offender is a gang member or has ties to organized crime, may we not, conversely, consider that he is a breadwinner and has ties to an honest employer? [ 63 ] The particularity in the case of a dwelling-house is that even if forfeiture was justified in relation to the offender, according to subsection 490.41(3), it will have to be re-assessed and ruled out if the impact on a family member is disproportionate. [ 64 ] Parliament’s intention to protect innocent third parties cannot be ignored. [ 65 ] This intention is also expressed in

section 491.4, which provides that a third party who is the lawful owner of property that was misused by the offender may claim that property. [ 66 ] The fact that a vehicle is used for the family, and thus included in the family patrimony, shows that the family has an interest in this property even if, from a strict legal point of view, it is not its owner and cannot claim it. [ 67 ] Similarly, in our case, the father who financed the purchase of his son's truck and who, because of this family relationship, did not obtain a real security on the vehicle as any lending institution would, nevertheless has an interest in this property. [ 68 ] That’s real life.

And the judge’s opinion seems correct to me. The family aspect can be considered as long as there is a connection with the property concerned. The possible role of the property in future crime can also be taken into account.

Abella J. writes: [40] …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. * * * [ 69 ] In conclusion, I believe that the judge’s decision resulted from his exercise of discretionary power and that, the error in principle having been excluded, the Court should intervene only if there is a palpable error, which is not the case. * * * Other grounds of appeal [ 70 ] The leave to appeal sets out the other grounds of appeal in the following terms: [TRANSLATION] The trial judge erred in law in limiting the storage costs payable (see paragraph 20 of the judgment);

The trial judge erred in law in assuming a fact that was not of judicial notice, i.e., that [ translation ]“there is no public transportation in his area” (see paragraph 18 of the judgment); [ 71 ] These questions are really marginal in relation to the key issue revolving around the

interpretation of subsection 490.41(3). As the file concerning this part of the appeal is incomplete, it is difficult to analyze these questions. [ 72 ] The total storage costs are not specified. We can presume that they exceed $5,000 to date. The judge was rightly concerned about this very concrete consideration for the respondent. [ 73 ]

Section 209.2. of the Highway Safety Code , [10] invoked by the appellant, provides for the impounding of the vehicle for 30 days. Under what authority was it subsequently held? If it was for a possible application for a forfeiture order, is this allowed by the law? The appellant says nothing about this.

The respondent informs us that the seizure was extended [TRANSLATION] “at the appellant’s request”, without further explanation, in which case would it not be excessive for the storage costs to be charged to the respondent when the order was refused? [ 74 ] The appellant faults the judge for not having given the parties the opportunity to argue this point. [ 75 ] First, it is a question of costs, a point where the silence of the parties generally means that they leave it to the discretion of the court.

Second, if the appellant wanted to obtain these costs even if forfeiture was refused, it should have expressly asked for them. [ 76 ] The respondent is willing, however, to pay for the first 30 days of storage. This seems in accordance with the law, which authorizes impounding for a 30-day period. The judgment will therefore be amended accordingly. [ 77 ] As for the last point, the appellant goes too far.

There is no need for formal proof in such a case, as the judge knows whether there is a bus service in his area. [ 78 ] For these reasons, I believe the Court should render the following decision: TAKES NOTE of the respondent’s promise to pay the storage costs for 30 days; ORDERS the return of the vehicle to the respondent upon payment of this sum, and no more; DISMISSES the appeal and otherwise AFFIRMS the judgment a quo. PAUL VÉZINA, J.A. [3] Controlled Drugs and Substances Act , S.C. 1996, c. 19 .