2011 QCCQ 15014, 2011 QCCQ 15014

Unofficial English Translation R. c. Bernard 2011 QCCQ 15014 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF QUEBEC LOCALITY OF QUEBEC "Criminal and Penal Division" No.: 200-01-144726-100 DATE: December 5, 2011 ______________________________________________________________________ PRESIDED BY: THE HONOURABLE GILLES CHAREST, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v. GILLES BERNARD Accused ______________________________________________________________________ ORDER ON APPLICATION FOR FORFEITURE OF OFFENCE-RELATED PROPERTY (s. 490.1 Cr.

C. ) ______________________________________________________________________ I.

BACKGROUND [ 1 ] On August 31, 2011, the accused pleaded guilty to having, on March 28, 2010, at Quebec City, operated a motor vehicle while his capacity to drive was impaired by alcohol or a drug (first count) and having consumed alcohol in such a quantity that the concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood (second count). [ 2 ] On September 15, 2011, both parties made their submissions as to sentencing. [ 3 ] Crown counsel and defence counsel then presented a joint suggestion to the Court. [ 4 ] They suggest that the offender be sentenced to twelve months' imprisonment less two days of preventive detention and that he be prohibited from driving any road vehicle for three years in addition to any other sentence. [ 5 ] Crown counsel took this opportunity to file an application with the Court for the forfeiture of the offender's automobile as offence-related property pursuant to

section 490.1 of the Criminal Code . II. THE FACTS AT ISSUE [ 6 ] On the night of March 28, 2010, around 12:45 a.m., the Quebec City police stopped the accused, who was driving his vehicle along Canardière Road in Quebec City with his headlights off. [ 7 ] Observing symptoms of inebriation in the accused, the police arrested him on charges of impaired driving and driving with a blood alcohol concentration over the legal limit.

[8] The accused provided breath samples at the police station.

The lowest level indicated a concentration of alcohol of 191milligrams per 100 millilitres of blood. [9] After his arrest, the accused's vehicle was seized and impounded. [10] His car is a 2008 Kia Sportage, valued at $18,000. [11] This is the vehicle contemplated in the Crown's application for forfeiture. [12] The offender's similar prior convictions were outlined in Crown's submissions and acknowledged by counsel for the defence: - In January 1979, conviction for driving over 80: $75 fine and costs - In August 1991, conviction for driving over 80: $400 fine and costs - In January 1992, conviction for impaired driving and refusal to provide a breath sample: $600 fine and costs - In May 1994, conviction for driving over 80: 4 months' detention - In February 2000, conviction for driving over 80: 5 months' detention - And in November 2001, conviction for impaired driving: 8 months' detention.

The present charges, to which the accused has pleaded guilty, can now be added to his seven prior convictions. III. THE ISSUE IN DISPUTE [13] Since the seized vehicle was obviously used by the accused during the commission of the alleged indictable offences, defencecounsel readily admitted that the seized vehicle was offence-related property within the meaning of

section 2 of the Criminal Code. [14] That being admitted, the debate concerned the only issue in dispute: Is forfeiture a disproportionate proceeding in this case? [15] If this question is answered in the affirmative, forfeiture must not be ordered. IV. ANALYSIS A. THE LAW 1. The Principle [16]

Section 490.1 of the Criminal Code confers jurisdiction on this Court to order the forfeiture of offence-related property: 490.1

(1) Subject to sections 490.3 to 490.41, if a person is convicted of an indictable offence under this Act or the Corruption of ForeignPublic Officials Act and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that any property isoffence-related property and that the offence was committed in relation to that property, the court shall (

a) where the prosecution of the offence was commenced at the instance of the government of a province and conducted by or on behalfof that government, order that the property be forfeited to Her Majesty in right of that province and disposed of by the Attorney Generalor Solicitor General of that province in accordance with the law; and (

b) in any other case, order that the property be forfeited to Her Majesty in right of Canada and disposed of by the member of theQueen’s Privy Council for Canada that may be designated for the purpose of this paragraph in accordance with the law. [17] First, it is appropriate to note the French-language version of this provision, whereby the forfeiture of offence-related property isordered by the "tribunal qui déclare une personne coupable d'un acte criminel" [translation: "court that convicts a person of an indictableoffence].[*] [Emphasis added.] [18] This aspect takes on a certain importance when it is compared to

section 462.37(1) of the Criminal Code regarding theforfeiture of the proceeds of crime. [19] Under that provision, it is "the court imposing sentence on the offender" who orders the forfeiture. [Emphasis added.] [20] It is worth bringing up a second point that has emerged from the case law. [21] In 2009, in Craig (2009 SCC 23 , [2009] 1 S.C.R. 762), the Supreme Court of Canada insisted that the sentencingjudgment and the forfeiture judgment should be separate thereby avoiding any interaction between these two proceedings.

[ 22 ] R. v. Neault ( 2011 QCCA 435 ), a Court of Appeal of Québec judgment rendered on March 10, 2011, expressed this rule as follows: [ translation ] 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. ... Paragraph 19 [ 23 ] And a little further, in paragraph 21: [ translation ] 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. [ 24 ] I note in passing that the judgment rendered by the Court of Appeal in R. v. Neault was the subject of a motion for leave to appeal to the Supreme Court of Canada, but leave was refused on October 3, 2011. 2.

The exception to the rule: disproportionality [ 25 ] Subsection 490.41(3) of the Criminal Code establishes the grounds for exception to the forfeiture rule: Subject to an order made under subsection 490.4(3), if a court is satisfied that the impact of an order of forfeiture made under subsection 490.1(1) or 490.2(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. [ 26 ] As we can see, this exception is based on the notion of disproportionality , which is left up to the assessment and discretion of the court. (

a) The nature of this assessment [ 27 ] The court's assessment is essentially a comparison between the criteria of proportionality set out in

section 490.41(3) and the potential effects or impact of the forfeiture. [ 28 ] In other words, the task before the court is to weigh the advantages against the drawbacks of the forfeiture. [ 29 ] In R. v. Neault , Paul Vézina, J.A., of the Court of Appeal of Quebec clearly illustrates the nature of the assessment a court must perform when ruling on the forfeiture of offence-related property: [ translation ] 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. (Emphasis added.) [ 30 ] At paragraph 25 of that decision, Vézina, J.A. continues: [ translation 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. ... (

b) The importance of the assessment [ 31 ] Once again, we cite the Court of Appeal in Neault , at paragraph 37 , which highlights the importance: [ translation ] 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. (

c) The burden of proof regarding disproportionality [ 32 ] In R. v. Manning ( 2011 QCCA 900 ), a judgment of the Court of Appeal of Quebec rendered on May 15, 2011, I note the following, at paragraph 17: [ translation ] [17] The trial judge correctly applied the law when he stated that the accused had the burden of establishing, on a balance of probabilities , that it would be disproportionate to order the forfeiture of his vehicle given the factors in subsection 490.41 [3] Cr. C. ... [Emphasis added.] (

d) The impact of forfeiture [ 33 ] If the forfeiture of offence-related property can in principle be justified by the factors listed in

section 491.41(3) of the Criminal Code , the impact of said forfeiture must still undergo this important comparative exercise of assessment and weighing to determine whether there is disproportionality. If so, the Court must find that forfeiture is not justified. [ 34 ] Discussing the impact of forfeiture, in paragraph 25 of Neault , the Court of Appeal provides a non-exhaustive list of factors to consider when assessing the impact of forfeiture: [ translation ] ...

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. [ 35 ] The following factors may also be considered: the existence of public transit, the proximity of public transit to the offender's home, the offender's health, the offender's financial means, the importance of the support the offender provides to the family...

B.

EXAMPLES IN CASE LAW [ 36 ] While the case law confirms that every case involving an application for offence-related property turns on its own merits, it also provides several examples of the proportionality or disproportionality of forfeiture in light of the circumstances and factors of each case. [ 37 ] Indeed, a brief overview of court judgments on the forfeiture of offence-related property makes it quite clear that each case takes place against a distinct factual backdrop. [ 38 ] Let us begin by considering the facts in the two decisions to which we have already referred ( Neault and Manning ) to identify the principles that emerge. [ 39 ] R. v .

Neault ( 2011 QCCA 435 ) This case involved a charge of driving with a blood alcohol concentration over the legal limit (112 milligrams per 100 millilitres of blood) in 2010. The accused had a record of similar offences committed between April 2004 and December 2010. The case involved a young, single man who needed his vehicle to operate a pig-roasting business. The accused's father had financed the purchase of the vehicle. The evidence revealed that there was no public transit in the area in which the accused lived with his parents (St-Luc-de- Vincennes). The forfeiture was refused. [ 40 ] R. v .

Manning , ( 2011 QCCA 900 ) In this case, the accused was out of work and on welfare, and his car was the only asset he possessed. He was 62 years old and lived with his spouse in a motel room at Chute-aux-Outardes. He had health problems that required him to make regular visits to the hospital in Baie-Comeau. He and his spouse also needed the vehicle to purchase food and clothing, since he did not have the money to take taxis. The forfeiture was refused in this case. [ 41 ] R. v . Rheault ( 2010 QCCQ 8555 ) This case concerned a fifth conviction on similar charges (drinking and driving).

The lowest reading indicated 202 milligrams per 100 millilitres of blood. The accused lived alone and had no dependants, and no one was indirectly affected by the forfeiture. The Court ordered the forfeiture of his vehicle, a 2004 Honda Accord. [ 42 ] R. v . Thiffault ( 2008 QCCQ 2391 ) In this case, the Court also ordered the forfeiture of a vehicle (2003 Mazda Protege) on which there was no lien. The accused, 48 years old, was arrested for driving with a blood alcohol concentration over the legal limit (146 milligrams per 100 millilitres of blood).

He had six prior convictions for similar offences between 1981 and 2000, in addition to a charge of refusing to take a test in 2000, dangerous driving in 1992, and five charges of driving while disqualified under the Criminal Code between 1996 and 2004.

[ 43 ] R. v . Bergeron ( 2009 QCCQ 15576 ) In this case, the accused pleaded guilty to a charge of driving with a blood alcohol concentration higher than the legal limit (the lowest reading: 222 milligrams per 100 millilitres of blood). It was his seventh such offence. The accused's mother was the guarantor of the accused's loan, although there was no lien on the vehicle. The amount of the loan, however, was $13,000. The Court ordered the forfeiture of the seized vehicle . [ 44 ] R. v .

Lemieux (EYB 2010 177133) This judgment, rendered by the Court of Appeal of Quebec on July 22, 2010, outlines the following facts: The accused was 72 years old when he was convicted of driving an ATV while impaired. He had a criminal record. The value of the vehicle was $8,000. He was an individual that the Court described as [ translation ] "not rich", and he lived on a country road about 20 or 30 kilometres from the village. The accused needed the ATV to pull a wood splitter and get his wood supply. The judgment notes that the sentences for his previous offences were all fines.

The Court of Appeal upheld the refusal to forfeit the vehicle. [ 45 ] R. v . Adamson ( 2007 BCSC 1143 ) In that case, the accused was convicted of dangerous driving causing bodily harm and refusal to take a test. The incidents took place in August of 2006. The accused had no prior record and the Court considered that the forfeiture of the 2002 Mercedes Kompressor, valued at $26,000, was not disproportionate , even though the accused needed it for work. C. APPLICATION TO THE FACTS OF THE CASE 1. According to the principles of

section 490.41(3) a. Nature and gravity of the charges [ 46 ] It is worth pointing out that the offences of impaired driving and driving with a blood alcohol concentration over the legal limit constitute a scourge on society with serious social repercussions. [ 47 ] Despite the government awareness campaigns and educational programs that have been implemented, drunk drivers are still on the roads and continue to endanger human life and to create a risk of serious harm to the young and the not so young.

Sometimes, sadly, they themselves fall victim to this scourge. . [ 48 ] Because in this case the charges against the offender are by way of indictment, the legislator provides for a maximum sentence of five years' imprisonment. [ 49 ] While the sentence for this type of offence is not among the most severe, the legislator has nevertheless indicated the gravity of these offences by imposing minimum sentences , namely, 30 days for the second offence and 120 days for each subsequent offence, pursuant to section 255(1) (

a) of the Criminal Code . b. Circumstances of commission of offence [ 50 ] Fortunately, of course, there was no physical accident or injury in this case.

Nevertheless, the fact remains that the lowest blood alcohol concentration reading of the offender arrested by the police officers indicated 191 milligrams per 100 milligrams of blood, more than twice the legal limit. [ 51 ] The evidence reveals that the offender was stopped while driving his vehicle on a main thoroughfare of Quebec City (Chemin de la Canardière), in the middle of the night with all of his headlights off, with about ten kilometres to go before reaching his home. c.

Criminal record [ 52 ] It is altogether consistent with reality to characterize the offender in this case as a repeat offender with numerous impaired driving offences on his record. [ 53 ] In this respect, it should be noted that the offender in this case has seven prior convictions for similar offences, although the last conviction was over ten years ago, in 2001. [ 54 ] It is relevant to add that the last three convictions resulted in the offender serving prison terms of four months, five months, and eight months. 2. The effects of forfeiture a.

The vehicle used during the commission of the offence [ 55 ] As noted above, the vehicle of which the Crown seeks forfeiture has a current value of $18,000 (Kia Sportage). [ 56 ] According to the offender's testimony during the forfeiture hearing, the vehicle was purchased with cash in 2008 for $24,000.

[ 57 ] There is no lien on the vehicle in favour of any bank or any member of the offender's family. b. Offender's financial situation [ 58 ] When his spouse died, the offender sold the family home and with the profits from the sale bought the vehicle referred to above, as well as a condominium. [ 59 ] The evidence is silent, however, on the value of the condominium, the amount of the mortgage, and the amount of his mortgage payments. [ 60 ] The offender collects a yearly pension in the amount of $17,500 (after tax deductions). c.

Age and health of the offender [ 61 ] The offender is now 69 years old and has no significant health issue aside from his drinking problem. On this subject, the Court takes note that the offender has been attending AA meetings for a year and half. d. Place of residence [ 62 ] The offender has been living alone in a condo at ...., Beauport, since he purchased it. His residence is near public transit, with a bus stop at the corner of Albert-Chrétien Street and Saint-David Street; the offender has already used this mode of transportation on a few occasions. e.

Living conditions [ 63 ] As noted in the preceding paragraph, the offender has been living alone in his condo since his wife died. He has two children, who are 43 and 45 years old.

One lives in Quebec City and the other is in Montreal. [ 64 ] The offender states that his vehicle could be used to get supplies such as food or to go to the doctor on occasion. [ 65 ] The evidence submitted through the offender's testimony reveals that he has been getting around by bus or taxi for the last year and a half. [ 66 ] If necessary, and in the alternative, the offender states in his testimony that he is prepared to someday sell his vehicle. D.

CONCLUSION IN LIGHT OF THE FACTS OF THIS CASE [ 67 ] The Court finds that the use of the vehicle contemplated in the application for forfeiture may be somewhat useful to the offender, but far from necessary. [ 68 ] As a matter of fact, for the last year and a half, the offender has been deprived of his vehicle and using other means of transportation at no major convenience to himself or to his family members. [ 69 ] A consideration and weighing of the facts relating to the impact of a forfeiture leads the Court to conclude that the criteria set out in

section 490.41(3) prevail over the possible negative impact on the offender of the forfeiture of the vehicle, and that the forfeiture is not disproportionate in light of the criteria set out in this Criminal Code provision. V.

CONCLUSION IN LIGHT OF THE PRECEDING AND FOR THESE REASONS, THE COURT: ORDERS the forfeiture of the 2008 Kia Sportage vehicle, licence number ...., identification number ...., to the Attorney General of Quebec, who becomes the sole owner empowered to dispose of this vehicle in accordance with the instructions of the Director of Criminal and Penal Prosecutions, the whole in accordance with the law. This decision now being rendered, I shall now rule from the bench on the reasonableness of the sentence suggested by counsel and then determine the sentence. _________________________________ GILLES CHAREST, J.C.Q.

Mtre Jean-Philippe Robitaille For the prosecutrix Mtre Charles Levasseur For the accused

Date of hearing: September 15, 2011