Her Majesty the Queen - v. -, 2010 SKPC 162

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 162 Date: November 26, 2010 Information: 31830812 Location: Regina _____________________________________________________________________________ IN THE MATTER OF THE CONVICTION OF CHUN YUNG LI UNDER THE CONTROLLED DRUGS AND SUBSTANCES ACT AND IN THE MATTER OF A CONSEQUENT APPLICATION PURSUANT TO SECTION 16(1) OF THAT ACT FOR AN ORDER OF FORFEITURE OF CERTAIN PROPERTY AND IN THE MATTER OF A HEARING PURSUANT TO SECTION 19(3) BETWEEN: Her Majesty the Queen - and - Tong Cam Appearing: Mr. Craig Neeley For the Crown Mr.

Barry Nychuk For the Respondent JUDGMENT B. TOMKINS , J BACKGROUND [ 1 ] Between February 8 and April 17, 2008, the Regina Integrated Drug Unit and Integrated Proceeds of Crime Unit conducted an investigation into suspected cannabis marihuana production at various properties in Regina. As a result of the investigation, five people were charged with offences contrary to the Controlled Drugs and Substances Act (“ CDSA ”); three were convicted. The allegation in very general terms was that a number of people together operated a number of grow operations at five different residences in Regina.

[ 2 ] Among those charged were Chun Li and his wife Lucy Liu. Mr. Li pleaded guilty to production of marihuana under

section 7 of the CDSA and, on July 16, 2009, he was sentenced to three years in a federal penitentiary. One of the five properties, a residence on Robinson Street that was registered to Lucy Liu, was admitted to be offence-related property for purposes of the CDSA and was forfeited by consent. All charges against Ms. Liu were then stayed. [ 3 ] The Crown applied for forfeiture of the other four properties that were alleged as offence-related.

None of these were registered to any of the persons charged with offences under the CDSA and none of the registered owners of the four other properties were charged with any offences. [ 4 ] The Crown gave notice to the four remaining registered owners of its application for forfeiture of those properties. Mr. Tong Cam, who is the registered owner of property on 3643 E. Hammstrom Way (“the Hammstrom Way property”), resisted that application. THE LEGISLATION [ 5 ] The application for forfeiture is made pursuant to

section 16 of the CDSA which reads as follows: 16.

(1) Subject to sections 18 to 19.1, where a person is convicted of a designated substance offence and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that any property is offence-related property and that the offence was committed in relation to that property, the court shall (

a) in the case of a substance included in

Schedule VI, order that the substance be forfeited to Her Majesty in right of Canada and disposed of by the Minister as the Minister thinks fit; and (

b) in the case of any other offence-related property, (

i) where the prosecution of the offence was commenced at the instance of the government of a province and conducted by or on behalf of that government, order that the property be forfeited to Her Majesty in right of that province and disposed of by the Attorney General or Solicitor General of that province in accordance with the law, and (ii) in any other case, order that the property be forfeited to Her Majesty in right of Canada and disposed of by such member of the Queen’s Privy Council for Canada as may be designated for the purposes of this subparagraph in accordance with the law.

(2) Subject to sections 18 to 19.1, where the evidence does not establish to the satisfaction of the court that the designated substance offence of which a person has been convicted was committed in relation to property in respect of which an order of forfeiture would otherwise be made under subsection (1) but the court is satisfied, beyond a reasonable doubt, that that property is offence-related property, the court may make an order of forfeiture under subsection (1) in relation to that property. [ 6 ] In this case, it is agreed that the Hammstrom Way property is offence-related property. It is also apparent that neither

section 18 nor

section 19.1 is applicable in this case. [ 7 ] However, notwithstanding the wording of

section 16 which appears to mandate forfeiture upon its criteria being met, the Act imposes one further consideration on the Court. Where there is a third party who is the lawful owner of or who is lawfully entitled to possession of the property,

section 19 must be considered. That

section reads as follows: 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.

(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.

(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. [ 8 ] Therefore, where a third party owns or is entitled to property that would otherwise be forfeited, the third party will be given notice and an opportunity to satisfy the Court that the property should not be forfeited. It is in these circumstances and in accordance with this

section that this matter came before me. [ 9 ] The purposes of the legislation were well explained by the Alberta Court of Appeal in R. v. Grimsby [1] ,which was quoted with approval by the Supreme Court of Canada in R. v. Craig [2] , where Justice Wittmann said: The CDSA was enacted by Parliament to combat the illicit drug industry. A review of the CDSA and in particular, the provisions related to the forfeiture of property, indicates that the CDSA does so both through punishment and deterrence.

The forfeiture provisions are punitive to the extent that they deprive one of offence-related property, broadcasting the message that Canadian society regards designated substance offences with abhorrence. But they also introduce an element of deterrence in relation to designated substance offences. In this respect, the forfeiture provisions attach a very real cost to the business of drug crime directly equivalent to the monetary value of the offence-related property that is subject to forfeiture, thus raising the stakes associated with the commission of those offences.

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 a 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.

One might be inclined to think that if the purpose of the forfeiture provisions is to prevent future offences, forfeiture is redundant to the extent that the conviction of the offender presumably guards against the commission of future offences, at least during the period of punishment.

While this may be true with respect to a convicted party, it is often the case that offence-related property is not owned by the offender, but by a culpable third-party with some sort of relationship to him or her, and continues to be used for illicit purposes by other persons notwithstanding the conviction of the designated substance offender. [ 10 ] It is for the latter reason that the CDSA contemplates the forfeiture of offence-related property even in circumstances where the owner of the property was not charged or convicted.

The reasoning presumes that the owner, although not charged or convicted, was aware of and allowed the use to which his property was put – that he was in this sense complicit or culpable in the offence by, at minimum, allowing it to occur in relation to his property. Forfeiture will prevent that owner from allowing his property to continue to or again be used in connection with offences. [ 11 ] However, the Act recognizes that there will be cases where a third party owner was not culpable or complicit in the offence. If so,

section 19 provides that owner an opportunity for relief from forfeiture. POSITIONS OF THE PARTIES [ 12 ] It is agreed that Mr. Cam is the registered owner of the Hammstrom Way property and he was not charged with any offence – designated or otherwise. It is also conceded that he did not acquire his title from anyone who was charged with an offence in relation to the property. He is therefore eligible for relief under section 19(3) of the Act .

[ 13 ] Therefore, if the Court is satisfied that he appears innocent of any complicity in a designated offence or of any collusion in relation to such an offence, the Court may order that the property be returned to him. If so, of course, it would not be forfeited to the Crown. [ 14 ] The Crown entered its case by way of documentary and affidavit evidence; no viva voce evidence was called.

In this regard, the Crown filed documents as follows: • Transcript of the proceedings at the sentencing of Chun Yung Li; • Affidavit of Service respecting Notice of Expert Testimony and attaching thereto as exhibits, inter alia , the affidavit of professional residential appraiser Bill Baumgartner and his appraisal report respecting the Hammstrom Way property; • Certificate of Title issued April 3, 2007, showing Tong Cam as the registered owner of property described as Lot 14, Block/Parcel 41, Plan No. 01RA07377; • Notice of Application for Leave to commence foreclosure proceedings in regard to property described as Lot 14, Block/Parcel 41, Plan No. 01RA07377; and • Affidavit of Sergeant Caroline Houston, Regina Police Service, regarding the investigation of Chun Yung Li and others in regard to violation of the Controlled Drugs and Substances Act . [ 15 ] On behalf of Mr.

Cam, counsel filed documents as well. Some were duplications of documents filed by the Crown and some were cases in support of his legal argument. In addition to these, he filed: • A

summary prepared by Regina Police Service respecting its investigation of Chun Yung Li and others in regard to violation of the Controlled Drugs and Substances Act ; and • Memorandum to the Judge regarding the foreclosure proceedings on the Hammstrom Way property and attaching various related documents. [ 16 ] Mr. Cam did not provide evidence in these proceedings, either viva voce or by affidavit. [ 17 ] Thus, there is evidence before the Court showing that Mr. Cam is the registered owner of the Hammstrom Way property and has been since April 2007. There is information showing Mr.

Cam as resident in Calgary at the time of the purchase and that notice of these proceedings was served on him at an address in Calgary. There is no indication that he has moved from that city. [ 18 ] In the course of surveillance over a period from February 28, 2008 until April 8, 2008, police observed three suspects and their movements between their place of business and five grow operation properties. At no time did they observe Tong Cam; he was not seen at any of the properties, including the Hammstrom Way property, nor was he seen with any of the people under surveillance and subsequently charged.

There is no evidence that he is otherwise connected to any of the men observed or the persons charged. [ 19 ] The Crown argued (and Mr. Cam concedes) that its evidence establishes that Chun Yung Li was convicted of a designated offence contrary to the CDSA in regard to the Hammstrom Way property and that the property is, therefore, offence-related property. The Crown submits that it has met the requirements of

section 16 of the CDSA and the property will forfeit unless Mr. Cam satisfies the Court that he appears innocent in accordance with section 19(3). [ 20 ] Mr. Cam argued that there is no evidence suggesting complicity or collusion in a designated offence and that, therefore, the Court must be satisfied that he appears innocent of same. In his counsel’s words, “He appears innocent on any standard.” [ 21 ] He asked me to consider the consequences. First, Mr. Cam has been stressed and inconvenienced by these proceedings and more important, is at risk of losing his property. Mr. Cam says that in light of the significant consequences, one would expect a shifting

onus to be expressly stated. It is not and this, he argued, suggests that there is no such shift. [ 22 ] He argued that it cannot be right that Mr. Cam can lose his property in a situation where the Crown brings no evidence at all even suggesting that he might be complicit or that he might have colluded in the offence. Otherwise, he said, the legislation holds a third party to a higher standard than someone who was charged or convicted; he says this cannot be right. [ 23 ] The Crown argues that it is Mr.

Cam’s onus to satisfy the Court on a balance of probabilities that he appears innocent of collusion or culpability in the designated offence and he has not satisfied that onus. [ 24 ] He says that there is an absence of evidence in this regard and that an absence of evidence will not satisfy Mr. Cam’s onus pursuant to section 19(3). That is, if there is, as Mr. Cam argues, no evidence at all that shows or tends to show that Mr.

Cam was aware of the use being made of his property or that he was otherwise complicit or culpable, the fact that collusion or complicity are not shown does not and cannot satisfy the Court that he appears innocent of same. Instead, the

section requires Mr. Cam to demonstrate that he appears innocent; this is an active onus that cannot be satisfied by an absence of evidence of the contrary premise. ANALYSIS [ 25 ] There are three issues that arise in this case: A. Which party has the onus under section 19(3) of the CDSA ? B. What is the nature of the onus? C. Has the onus been discharged? A.

Which party has the onus under section 19(3) of the CDSA ? [ 26 ] As I stated in my interim decision in this proceeding, it is clear that the Crown bears the onus under section 16(1) of the CDSA to establish that: • A person was convicted of a designated substance offence; • The property at issue is offence-related property; and • The offence was committed in relation to that property. Once it has done so, forfeiture will follow unless, pursuant to section 19(3), the Court is satisfied that Mr. Cam appears innocent of complicity or collusion in the offence.

The question before me is who bears the onus of that satisfaction. [ 27 ] For reasons given in my interim decision [3] in this matter, I am satisfied that Mr. Cam bears the onus. In the British Columbia Court of Appeal’s decision in R. v. Craig [4] (subsequently overturned by the Supreme Court of Canada on other grounds [5] ), Justice Ryan wrote: Both counsel for the Crown and counsel for Ms. Craig accept that s. 16(1) of the CDSA places the initial onus of proof upon the Attorney General once the application for forfeiture is made.

To succeed, the Crown must prove, on a balance of probabilities, that the property in question is "offence-related property" and that the offence in question was committed in relation to that property. The

section operates, however, "subject to sections 18 and 19.1". I am of the view that because the governing provision, s. 16(1), is subject to s. 19.1, the order of forfeiture is not automatic. In my view,

s. 16(1) requires the court, before making an order of forfeiture with respect to real property, to examine whether the impact of forfeiture would be disproportionate in light of the factors set on in s. 19.1(3) (and s. 19.1(4) if applicable). At that stage the onus will shift to the offender , against whom the order is being sought, to establish that the impact of the order would be disproportionate . The offender need not call evidence. He or she may rely on the evidence called in the Crown's case.

Thus, if the Crown's case shows that an offender with no criminal record grew one or two plants of marihuana for his or her own use, barring other circumstances, the offender will have established that the impact of the order is disproportionate. In most cases, however, there will be little in the Crown's case that would demonstrate the subjective impact of forfeiture on the offender.

Therefore, speaking practically, the offender will be obliged to call evidence that would satisfy the judge that the impact of forfeiture would be disproportionate. (Italics mine.) [ 28 ] A number of cases also concluded that the onus shifts after the requirements of section 16(1) have been met by the Crown. Of those provided by counsel in support of their positions, regard may be had to the Saskatchewan Court of Queen’s Bench decision in R. v. Brooks [6] , the Alberta Provincial Court decision in R. v. La [7] , the British Columbia Court of Appeal case in R. v.

Bui [8] and the Nova Scotia Court of Appeal case in R. v. Siek . [9] [ 29 ] I am mindful that not all of the cases referenced were decided under section 19(3); some were decided under

section 19.1. However, the premise is identical. Once the requirements of section 16(1) have been satisfied, a presumption for forfeiture has been established. There is no reason in the wording of the sections or otherwise to conclude that the party bearing the onus would differ depending which of the sections offering relief is relied upon. [ 30 ] Mr. Cam argued that this conclusion must be incorrect as it imposes on him an onus to, in effect, prove his innocence. The question arose in R. v. La , supra , a decision of the Provincial Court of Alberta regarding section 19(3).

In concluding that the onus lay on the person asserting the right, Judge Fraser quoted the Quebec Court of Appeal’s decision in R. v. Villeneuve as follows: . . . In the absence of any contrary provision, the person who is asserting a right has the onus of proving its essential components. . . He must establish on a balance of probabilities, which is the civil onus of proof. . . This is why the presumption of innocence does not apply to the present matter.

It is rather a question of determining the economic and civil rights of a third party who claims to have a right with respect to assets which have been declared proceeds of criminal offences and forfeited for the benefit of the Crown. (Emphasis as quoted in R. v. La .) [ 31 ] The passage quoted from Villeneuve arises from a case involving the forfeiture of property pursuant to the money-laundering provisions of the Criminal Code and the Appellant’s application for relief pursuant to

section 462.42(4). [ 32 ]

Section 462.43 provides that a person who claims an interest in property that is forfeited under the money-laundering provisions of sections 462.37(1) or (2.01) or 462.38(2) of the Code may apply for an order under subsection (4) provided the person was not charged with or convicted of a designated offence that resulted in the forfeiture and did not acquire title or right from a person who was charged or convicted of a designated offence that resulted in forfeiture. Subsection (4) then provides:

(4) Where, on the hearing of an application made under subsection (1), the judge is satisfied that the applicant is not a person referred to in paragraph (1)(

a) or (

b) and appears innocent of any complicity in any designated offence that resulted in the forfeiture or any collusion in relation to any such offence, the judge may make an order declaring that the interest of the applicant is not affected by the forfeiture and declaring the nature and extent of the interest. [ 33 ] The significant and applicable parts of

section 462.43, therefore, are not in any material respect different than the parallel provisions of section 19(3) of the CDSA . Like the judge in La , supra , I can see no reason that the quoted portion of the Villeneuve decision is not applicable to section 19(3) of the CDSA . [ 34 ] Similarly, the Quebec Court of Appeal in R. v. Sylvain Houle [10] , in response to an argument similar to that advanced by Mr. Cam, said:

The purpose of the impugned provision is not to determine the criminal liability of anyone but to determine their economic interests. That is why the presumption of innocence is not applicable in this case. That is what Robert J.A., now Chief Justice, stated in Villeneuvev. La Reine, referring to provisions to the same effect, namely the forfeiture of property that had been declared proceeds of crime andforfeited to the Crown. [35] Saskatchewan’s Court of Queen’s Bench reached the same conclusion but in a different manner. In R. v.

Brooks, supra,Justice Matheson concluded that there was a significant difference between being asked to satisfy the Court of one’s innocence andsatisfying the Court of the appearance of innocence. He said that had the onus been to show innocence, he might have found that section20 of the CDSA contravened the Charter. He held Ms. Brooks to the onus. [36] Thus, the matter before me is consequent on a criminal proceeding but is not of itself a criminal proceeding. It follows thatthe shifting of the onus is not unfair or unsupportable.

Indeed, I have not been provided any authority challenging my conclusion that theonus of satisfying the Court pursuant to section 19(3) lies on Mr. Cam, nor have I been able to locate any. [37] Counsel for Mr. Cam suggested that there is an additional obligation on the Crown before the onus shifts to Mr. Cam. He argued that I will find that authority in R. v. ERJO Investments Ltd.[11] which, he argued, concludes that the Crown is obliged, as part ofits burden, to establish at least an inference of knowledge of the offence-related activity at the property before any onus at all lies on Mr.Cam.

He says – correctly – that the Crown has not established such knowledge or an inference thereof in this case and therefore, theonus on him has not yet arisen. [38] Quoting his argument from his Brief of Law, he argued: Returning to the comments of Singer, J., in R. v. ERJO Investments Ltd., supra, at paragraph 34, “Complicity or collusion logicallyrequire that the owner of the property have knowledge of the activity of the offender.” Singer, J. went on to address the Crown’s burdenof proof under s. 19(3) at paragraphs 35 and 36: The Crown concedes that there is no direct evidence that Mr.

Migneault had knowledge of the drug activity going on at 1581. TheCrown suggests that Mr. Migneault ought to have known what was going on or that he was wilfully blind as to what was going on. The concept that knowledge can be proven by what a person ought to know or what a reasonable man would suspect has no place in thecriminal law. Knowledge in criminal law is always subjective. (R. v. Sansregret (1983), (SCC), 18 C.C.C. (3d) 223(S.C.C.), at 233) [39] I do not think counsel has correctly interpreted Judge Singer’s decision in ERJO.

In that case, ERJO was the owner ofproperty from which a drug operation had been run. The Crown applied for forfeiture of the property pursuant to section 16(1) and ERJOresisted that application pursuant to section 19(3). [40] Mr. Migneault, who was the directing mind of ERJO, gave evidence that he did not know that his renter used his property asthe base for his drug operation and therefore, was not complicit in the offence and did not collude with his renter. Apparently the Crownaccepted his evidence as the Crown conceded there was no direct evidence that Mr. Migneault had knowledge of the drug activity.

Instead, the Crown argued that he ought to have known what was going on or was wilfully blind to it. [41] What I understand Judge Singer was saying in the quoted portion is quite different than what counsel suggests. Judge Singeraccepted and the Crown conceded that there was no evidence that Mr. Migneault knew of the drug activity at the property he owned; Mr.Migneault’s evidence to this effect was accepted.

I understand that what Judge Singer intended to convey in the quoted passage was this:if the Court is satisfied that he did not know, the Court cannot consider whether he ought to have known. [42] I do not read the decision as suggesting that there is a general onus on the Crown to show or provide an inference that anapplicant under section 19(3) had knowledge of the illegal activity. Nor do I read it as saying that the applicant’s onus is conditional

upon such evidence being provided. [ 43 ] If I am incorrect in my understanding of my brother judge’s conclusion, I must respectfully disagree with him. I have been provided no authority supporting the assertion of an additional requirement on the Crown regarding knowledge and indeed, a number of cases are discussed above which specifically state that upon the Crown satisfying the requirements of section 16(1), the onus will shift to the applicant. I cannot rectify these cases with the suggested

interpretation of Judge Singer’s decision. [ 44 ] I also disagree with counsel’s argument that Mach, supra, supports his position on this issue. The judge in Mach accepted Mr. Mach’s evidence that he did not know his property was being used for an offence-related purpose. He then considered whether the concept of wilful blindness might be in issue and concluded that, “There was nothing known to Mr. Mach which would have made him believe that there was a need for an inquiry.” In light of these conclusions, Mr. Mach’s application was successful. [ 45 ] Given these findings, I am satisfied that Mr.

Cam bears the onus to satisfy the Court that he was not complicit in and did not collude in respect of Mr. Li’s designated substance offence. I am also satisfied that this onus arises upon the Crown satisfying the prerequisites set out in

section 16 and that there is no requirement on the Crown to, additionally, show knowledge or an inference thereof. B. What is the nature of the onus? [ 46 ] The onus on Mr. Cam is to satisfy the Court on a balance of probabilities that he appears innocent of collusion or culpability in the designated offence. [ 47 ] One finds this conclusion in the quoted excerpt from the decision in Villeneuve above and in La , supra . That it is Mr. Cam’s onus and that it must be discharged on a balance of probabilities is also the conclusion in R. v. Luu [12] , R. v. Dao and Pham [13] , R. v. Zhou [14] , R. v.

Huynh and Ta [15] , R. v. Khaki [16] and, by necessary inference, by Saskatchewan’s Court of Queen’s Bench in R. v. Sithiso . [17] [ 48 ] The only authority that I have been provided which may lead to a different result is R. v. Brooks , supra . In that decision, Justice Matheson concluded that the onus was on Ms. Brooks but said: Section 20(4) does not require Brooks to prove either beyond a reasonable doubt or on a 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”. [ 49 ] The quoted portion has been argued to show that the onus is neither beyond a reasonable doubt nor on a balance of probabilities. But I do not think this is what the quoted portion says. In effect, Justice Matheson says she is not required to prove her innocence on any standard.

He is stating that the onus she bears is not that high: he does not state the nature of the onus when showing an appearance of innocence. [ 50 ] For all of these reasons, I am satisfied that the onus under section 19(3) is to satisfy the Court on a balance of probabilities. C. Has Mr. Cam discharged the onus? [ 51 ] Mr. Cam bears the onus to satisfy me, on a balance of probabilities, that he appears innocent of any complicity in a designated substance offence and of any collusion in relation to such an offence. He argues that there is no evidence before me suggesting he is

complicit in the offence for which Mr. Li was convicted or that he colluded in it. As such, he says, I must be satisfied that he appears innocent of complicity or collusion. I do not agree. [ 52 ] In R. v. Bui , supra , the Court stated at paragraph [42]: Absent an agreement or admission, this will require evidence that satisfies the judge as to that fact on a balance of probabilities. If there is no evidence, or if the evidence falls short of proving that fact, then s. 19.1(4) is not engaged.

Put somewhat differently, there is no onus on the Crown to establish that s. 19.1(4) does not apply and a disputed assertion of fact by the offender will not suffice. This quotation is taken from a case arising from an application under

section 19.1 of the CDSA , a provision parallel to that in section 19(3). As cases referred to above held that in the circumstances of

section 19.1, the onus lies on the applicant on a balance of probabilities, I am satisfied that the quoted position is appropriate as well in respect of section 19(3). [ 53 ] Similarly, in R. v. La , supra , a case decided under section 19(3), Judge Fraser wrote, “I realize the onus is on the party asserting the right to prove essential components. However, she can do no more that state she had no knowledge and subject herself to cross-examination.” [ 54 ] If I were to conclude that the onus can be discharged upon an absence of evidence, I would effectively negate the onus on Mr.

Cam and place it back on the Crown. This, of course, is entirely illogical. [ 55 ] Instead, it is for Mr. Cam to satisfy the Court and to establish the appearance of innocence. The onus might, in an appropriate case, be discharged based on the evidence called by the Crown but the evidence before me does not discharge the onus. [ 56 ] The evidence in this case establishes that Mr. Cam is the registered owner of the Hammstrom Way property and that it is offence-related property as it is one of the properties used by Mr. Li in the marihuana grow operation for which he was convicted.

It establishes that at the time of the purchase and thereafter, Mr. Cam resided in Calgary, Alberta. It establishes that on the dates of surveillance, Mr. Cam was not seen at any of the offence-related properties or with any of the persons suspected by the police. [ 57 ] This does not establish that he was not complicit in the grow operation or that he did not collude with those who were convicted. Nor does it establish that he did. This shows the impact of the onus. The Crown has not shown that he did but the law requires that Mr.

Cam show me that it appears he did not; these are very different things. [ 58 ] Failing evidence in the Crown’s case that is sufficient to satisfy the Court of the appearance of innocence, it falls to Mr. Cam to bring such evidence. He did not. [ 59 ] The onus is his and he has not discharged it. DISPROPORTIONALITY [ 60 ] There was a suggestion from Mr. Cam’s counsel that he submitted as well, that forfeiture was disproportionate and that it might be refused on that basis. He did not indicate the

section of the Act pursuant to which the argument might be raised. [ 61 ] Under any

section of the CDSA providing relief in the event of disproportionality, the onus and obligation are the same as under section 19(3). Therefore, such application, if made, must fail as there is no evidence at all on which the matter of disproportionality could be considered.

[62] If advancing the argument, Mr. Cam bears the onus to satisfy the Court and he has not discharged it. CONCLUSION [63] I am satisfied that the property at 3643 E.

Hammstrom Way in Regina is offence-related property for purposes of section16(1) of the Controlled Drugs and Substances Act. [64] I am satisfied that Tong Cam is the lawful owner of that property. [65] I am satisfied that Tong Cam is not a person who was charged with a designated substance offence or one who acquired titleto the property from a person who was charged with a designated offence. [66] I am satisfied that in order to obtain relief from forfeiture pursuant to section 19(3) of the Controlled Drugs and SubstancesAct, Tong Cam bears the onus to satisfy the Court on a balance of probabilities that he appears innocent of any complicity in a designatedsubstance offence or of any collusion in relation to such an offence. [67] Mr.

Cam has not met the onus on him. [68] I am therefore satisfied that the property at 3643 E. Hammstrom Way shall be forfeited to the Crown. Dated at Regina, Saskatchewan on November 26, 2010. B. Tomkins, J [1] 2000 ABCA 261 , 2000 CarswellAlta 1045, 148 C.C.C. (3d) 549 [2] 2009 SCC 23 [3] 2010 SKPC 119

[4] 2007 BCCA 234 [5] 2009 SCC 23 , [2009] 1 S.C.R. 762 [6] 2000 SKQB 515 [7] 2008 ABPC 217, [2008] A.J. No. 898 [8] 2010 BCCA 279 [9] 2007 NSCA 23 [10] [2003] J.Q. No. 339, [11] 2005 SKPC 14, 259 Sask. R. 246 [12] Oral reasons, August 9, 2005 (B.C. Prov. Ct.) [13] November 2, 2007 (B.C. Prov. Ct.) [14] 2008 CarswellMan 52, 2008 MBQB 19, 223 Man. R. (2d) 304 [15] 2005 BCPC 431 , 2005 BCPC 0431 [16] 2007 CarswellBC 758, 2007 BCPC 93 [17] 2004 SKQB 366