Canada (Attorney General) v. Jamal, 2015 ONCJ 687

Citation: Canada (Attorney General) v. Jamal , 2015 ONCJ 687 ONTARIO COURT OF JUSTICE Old City Hall – Toronto BETWEEN: THE ATTORNEY GENERAL OF CANADA — AND — MOEZ JAMAL and ROSEMINA JAMAL ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) J. Gevikoglu For the Applicant M. Stellato For the Respondents Heard: June 30 and July 2, 3 and 28, 2015 TABLE OF CONTENTS Paragraph A. INTRODUCTION ................................................................................................... 1 B. EVIDENCE ............................................................................................................. 6 (

a) Introduction................................................................................................ 6 (

b) The Legal Framework: A Skeletal Outline........................................... 8 (

c) The Primary Issues................................................................................. 10

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d) Agreed (and Undisputed) Facts........................................................... 11 (

i) Circumstances of the Search and Arrests............................. 12 (ii) 15 Tamora Court........................................................................ 15 (iii) The Arrests................................................................................. 16 (iv) The Criminal Antecedents of the Jamal Family................... 18 (

e) The Forensic Topography of 15 Tamora Court................................. 19 (

f) The Expert Evidence.............................................................................. 25 (

g) The Respondents’ Evidence................................................ 28 (

i) Introduction............................................................... 28 (ii) Moez Jamal.............................................................. 30 (iii) Rosemina Jamal........................................................ 38 (

h) Rosemina Jamal’s First Encounter with the Police................ 43 C. THE STATUTORY FRAMEWORK ................................................. 46 (

a) Introduction: Constitutionality and

Interpretation................... 46..................................................................................................... (

b) The Statutory Framework: As Written.................................. 52 (

c) The Statutory Framework: Deconstructed............................ 54 D. ASSESSING DISPROPORTIONALITY ........................................... 67 E. THE INTERPRETIVE QUANDARIES ............................................. 72 (

a) Introduction......................................................................... 72

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b) The Meaning of “Satisfied”................................................... 73 (

c) The Meaning of “a Person who was Charged with a Designated Substance Offence” in Section 19(1)..................................... 89 (

d) The Meaning of “Appears Innocent”.................................... 103 F. APPLYING THE LAW .................................................................. 111 (

a) Introduction....................................................................... 111 (b) Section 19(3): “Appears Innocent”..................................... 113 (

i) Introduction.............................................................. 113 (ii) The Circumstantial Evidence.................................... 117 1. The Physical Evidence..................................... 120 2. The Knife and the Bat....................................... 127 3. The Respondents’ Financial Circumstances...... 130 4. Rosemina Jamal’s Return to 15 Tamora Court... 134 (iii) The Respondents’ Credibility.................................... 137 (iv) Conclusion as to “Innocence”................................... 138 (

c) Section 19.1(3): The “Proportionality Test”......................... 141 (

i) Introduction............................................................. 141 (ii) Nature and Gravity of the Offence........................... 144 (iii) Circumstances Surrounding the Commission of the Offences ........................................................................ 145 (iv) The Offender’s Criminal Record.............................. 147

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v) Principal Residence: S. 19.1(4).............................. 148 (vi) Assessing Disproportionality................................... 150 (vii) Conclusion with Respect to S. 19.1......................... 152 G. CONCLUSION .............................................................................. 153 REASONS for RULING (Re CDSA Forfeiture Application) MELVYN GREEN, J.: A. INTRODUCTION [ 1 ] Handguns, ammunition and substantial amounts of cash and drugs were seized during the execution of a search warrant at 15 Tamora Court in Toronto on February 21, 2012. Moez Jamal and Rosemina Jamal are husband and wife.

They are the sole owners and, currently, residents of the detached house at 15 Tamora Court. Their adult son, Hanif, lived with them at the time the search was conducted. Their adult daughter Sabrina, who lives in Windsor, was then visiting. All four were charged with various firearms and drug offences. [ 2 ] Pursuant to ss. 14 and 14.1 of the Controlled Drugs and Substances Act (the CDSA ), a “Restraint Order” prohibiting disposition or any other dealings with the Tamora Court property was granted on March 13, 2012.

On August 26, 2013, Hanif Jamal pled guilty before me to some of the offences with which he was initially charged. In particular, he admitted committing four offences arising from his unlawful possession of firearms. He also pled guilty to possessing marijuana and cocaine for the purpose of trafficking. Pursuant to a joint submission, a global sentence of nine years in prison was imposed for these offences, less 27 months credited to 18 months of pre- trial custody.

Forfeiture of seized monies, cellphones and related paraphernalia followed, as did the withdrawal of all the remaining charges for which Hanif Jamal had originally been prosecuted. [ 3 ] Upon Hanif Jamal being sentenced, the Crown withdrew the outstanding charges against his parents and sister. The Crown case respecting these three was never presented, let alone tested, by way of a preliminary inquiry or trial. [ 4 ] The Attorney General of Canada then commenced an application to have the property in which the drugs and guns were found ordered forfeited to the state, pursuant to s. 16 of the CDSA .

The Respondents resist this application. They concede that the Tamora Court residence is “offence-related property” (that is, property that was used in connection with an offence of drug trafficking or production) but say they did not participate in or have any knowledge of their son Hanif’s criminal conduct. Further, and in the alternative, they plead “forfeiture of the house is disproportionate”.

Accordingly, they ask that the Attorney General’s application be dismissed, the restraint order revoked and their residence restored to them. [ 5 ] Drastically summarized: The Respondents own and have lived in the same house for almost 30 years. It is currently valued at close to $800,000 and carries a mortgage and other charges amounting to at least $300,000. That the Respondents’ son used a portion of the house to store and package drugs is not disputed. The estimated commercial re-sale value of the seized drugs, along with the cash hidden in the son’s bedroom, totals approximately $200,000.

The Attorney General’s application is for an order effectively forfeiting the entire value of the Respondent’s equity in their home to the state or, more exactly, Her Majesty in right of Canada. B. EVIDENCE (

a) Introduction

[ 6 ] Although discussed more fully in due course, the complex nature of this application and a terrain of unsettled law command an introduction to the statutory regime in which the points at issue arise. The organization of the evidentiary review that follows reflects these considerations.

A proper adjudication of the most contentious issues – innocence and proportionality – requires a close appreciation of the evidence. [ 7 ] The documentary record includes the transcript of Hanif Jamal’s sentencing proceedings, agreed statements of fact, supplementary admissions, hundreds of photos of the Respondents’ home, and extensive banking and accounting records. Three police officers engaged in the arrests and the execution of the search warrant testified, as did a fourth who was qualified as an expert on matters related to drug trafficking. The Respondents, Moez Jamal and Rosemina Jamal, also testified. (

b) The Legal Framework: A Skeletal Outline [ 8 ] To the degree that they pertain to the immediate application, the broad outlines of the CDSA forfeiture regime follow. [ 9 ] Upon conviction for a drug distribution or production offence, a court, on application of the Attorney General of Canada, is required to order the forfeiture of “offence-related property” unless satisfied that certain statutory exemptions obtain: s. 16.

First, the court may order the property, in whole or part, returned to a lawful owner who has not been “charged” where the court is “satisfied” that person “appears innocent” of any complicity or collusion in the offence: s. 19(3). Second, the court may decline to make a forfeiture order respecting “real property”, in whole or part, where it “is satisfied that the impact of [such order] would be disproportionate to the nature and gravity of the offence”, its surrounding circumstances and the criminal record of the “person charged with or convicted of the offence”: s. 19.1(3).

Third, where the property at issue is a dwelling house, the impact of a forfeiture order on innocent family members who reside in the home forms part of the proportionality calculus: s. 19.1(4). Finally, once forfeiture is ordered, parties claiming an interest in the property may apply for a declaration of their interest upon a court being satisfied of both their innocence and their exercise of reasonable care to ensure the property was not likely to be used in connection with an “unlawful act”: s. 20. (

c) The Primary Issues [ 10 ] The application of the Attorney General of Canada (hereafter, the A.G.) for forfeiture of the property situated at 15 Tamora Court is brought under s. 16 of the CDSA . The A.G. and the Respondents are ad idem as to “the main legal issues for the court’s consideration in this application”. As described in the A.G.’s factum, they are: i. Whether the respondents, Moez and Rosemina Jamal, are innocent of complicity or collusion and may apply for return of the property pursuant to section 19(3) of the CDSA ; and ii. Whether the forfeiture of the property would be disproportionate as contemplated in

section 19.1(3) of the CDSA . Apart from the words “and may apply for return of the property”, I agree with this characterization of the central issues. The Respondents’ innocence and the disproportionate impact of a forfeiture order are the primary issues in this inquiry. The construction of the record and the oral and written submissions of both parties consistently frame the central disputes in this manner. My reservation relates to what I see as the insertion of an onus respecting innocence when, in my view, none obtains. I revisit this debate in due course, but it has no effect on the evidentiary canvas that now follows. (

d) Agreed (and Undisputed) Facts [ 11 ] Certain “agreed facts” make up a substantial plank in the evidentiary platform. (

i) Circumstances of the Search and Arrests [ 12 ] With a single material exception, the events surrounding the investigation and arrest of Hanif Jamal and the search of the dwelling-house at 15 Tamora Court are essentially identical to those adopted by Hanif when he entered his plea of guilty in August 2013 and as set out in the Affidavit sworn in support of the Restraint Order issued in March 2012. The exception relates to the conduct of the Respondent Rosemina Jamal when first observed by the police following the arrest of her son Hanif on February 21, 2012.

Both sides called v iva voce evidence with respect to these events. Although somewhat different than the narrative read in on Hanif Jamal’s plea, in the end there was little disagreement between the two accounts. [ 13 ] Members of the Toronto Police Service (TPS) received information in February 2012 about a drug dealer at 15 Tamora Court in Scarborough. They began surveillance on February 21 st . Hanif Jamal was seen leaving the address at 6:20pm the same day. He was stopped, arrested and found in possession of an ounce of cocaine, almost 10 ounces of marijuana and $385.

The information received by the TPS related exclusively to Hanif Jamal. He was the sole target of the police investigation. [ 14 ] The execution of a CDSA -authorized search warrant at 15 Tamora Court followed. No one was in the residence when the TPS entered at 7:30pm on February 21st. During the police search, three handguns, ammunition, nearly 25 grams of MDMA (“Ecstasy”), 1,029.12 grams (a little more than a kilo) of cocaine, 1,225.65 grams of marijuana, a money counter, a vacuum sealer, a baton and a can of bear spray were found in the living room. Some 2.63 grams of cocaine were located in the dining room.

A further 315 grams of cocaine were found in the basement, along with 4.4 kilograms of marijuana. The search of Hanif Jamal’s bedroom yielded a loaded semi- automatic handgun, 162 grams of MDMA. 32 cellphones, over $70,000 in currency and magazines and other documents regarding drug smuggling. In total, the police drug seizures amounted to some 1,370.4 grams (three pounds) of cocaine, 6,843 grams (fifteen pounds) of marijuana and 194.71 grams (seven ounces) of MDMA pills. (ii) 15 Tamora Court [ 15 ] The Respondents purchased the property at 15 Tamora Court in April 1986 for $160,000.

A mortgage of $140,000 attached to the property. The property was remortgaged in 2005, the value of the new charge being $285,000. That mortgage was refinanced in 2010. The appraised value of the property in February 2015 was $786,000. The Respondents are the registered owners of the target

property at 15 Tamora Court. (iii) The Arrests [ 16 ] As noted, Hanif Jamal was arrested outside Tamora Court at 6:25pm on February 21, 2012 – before the execution of the search warrant. Hanif was described as co-operative. Although of no direct probative value in these proceedings, he advised the arresting officer that his parents were not involved in his criminal conduct. [ 17 ] The Respondent Rosemina Jamal was detained around 7:45pm that same evening, soon after she returned from work, and arrested at 8:40pm. Sabrina Jamal was arrested when she arrived home around 9pm.

And Moez Jamal was arrested while at work in the video store he operated on College Street in central Toronto at 9:25pm. (iv) The Criminal Antecedents of the Jamal Family [ 18 ] Hanif Jamal was convicted of possessing drugs for the purpose of trafficking some nine years earlier, on June 12, 2003. He received a conditional sentence and 12 months probation. He was in his mid-30s at the time of his arrest in 2012. Neither Respondent has any criminal record. (

e) The Forensic Topography of 15 Tamora Court [ 19 ] A foyer on entering the front door at 15 Tamora Court narrows to a hallway that extends to a kitchen at the back of the house. A wall separates the hallway from two rooms to its right: a living room at the front of the house that opens to a dining room at the rear. A staircase climbs to the second floor along the left side of the main floor hallway. A few feet across from its bottom step, a second set of stairs descends to the basement. A small washroom and a “family” or “TV” room to the left of the kitchen completes the layout of the ground floor.

Access to the living is through French doors that open from the foyer. The top half of each of these doors is composed of decorative frosted glass that effectively obscures the view into the living room when the doors are closed. Each Respondent testified that the doors from the foyer to the living room were always kept closed. One officer who participated in the execution of the search warrant, D.C. Mantle, testified (some three years after the events) that, “to the best of his recollection”, these doors were open when he entered the residence with Hanif Jamal.

He did not notate this observation, nor were any contemporary photographs of the status of the doors when the police first entered the premises filed on this hearing. Further, the condition of the doors upon the unanticipated police entry, some hours before either of the Respondents ordinarily returned home, says very little about whether they were open or closed when Moez and Rosemina Jamal left home for work on the morning of February 21, 2012.

In my view, whatever their status upon the police entry the foyer doors were closed when each of the Respondents left 15 Tamora Court for work on the morning of their arrest. [ 20 ] With Hanif’s assistance, three handguns were located inside a side-table in the living room, two in heavy plastic gun boxes and the third in a wooden case. One of the guns was fully loaded and a second was a semi-automatic weapon. Each of the unloaded handguns was found with compatible ammunition. A clear sandwich bag containing close to an ounce of cocaine and an expandable baton were located inside the same side-table.

A similar bag containing close to an ounce of Ecstasy (MDMA) pills, a cellphone, and a “FoodSaver” vacuum sealer and compatible plastic bags were also found inside the table. A second phone and a money-counting machine were located on a second side table. A Holt Renfrew shopping bag was sitting on top of an electronic keyboard in the living room. A “brick” of cocaine (wrapped in black cellophane and weighing just over one kilogram) was inside the Holt’s bag.

A bag of marijuana was found under a toy plush dog on the living room sofa and a small bag containing 2.63 grams of cocaine was detected among an array of mundane items on the dining room table. [ 21 ] A loaded and holstered semi-automatic handgun was located in a drawer in the nightstand next to the bed in Hanif Jamal’s second floor bedroom. Over $70,000 in bundled cash was seized from inside a stereo speaker in the same room.

Powdered Ecstasy (162 grams of MDMA) and 32 cellphones were also found in the room. [ 22 ] The police search of the basement yielded six vacuum-sealed bags of marijuana (containing over two kilos, in total) and two duffel bags (containing, respectively, another 1,435 and 707 grams of marijuana packaged in plastic bags). On a table that appears to have been used for drug packaging, the police found twelve Ziploc bags of marijuana (totaling almost one kilogram), six bags of cocaine (314 grams, in total), several empty bags containing cocaine residue and two digital scales with cocaine residue.

The table was in a readily accessible but very messy portion of the basement. The drugs and scales share space with boxes and used linens. [ 23 ] The basement is conspicuously messy. The officer taking photographs agreed it looked like a storage area with “things everywhere”. He could not recall whether there was a door at the top of the basement stairs and he took no photographs of the area. The Respondents testified that there was a door, ordinarily kept closed, at the top of the stairs leading to the basement.

An historic family photo supports their testimony. [ 24 ] A baseball bat and a sheathed knife were found under the bed in the master bedroom shared by the Respondents. Unlike the three other bedrooms on the second floor, the basement and parts of the living and dining rooms, the police described the master bedroom as “orderly”. (

f) The Expert Evidence [ 25 ] Det. John Margetson was qualified as an expert on matters related to the pricing, packaging and distribution of marijuana, cocaine and MDMA. The brick of cocaine found in the living room was likely shipped from a source country, although it may have been reconstituted in Canada to imitate a direct transfer, and thereby presumably purer product. In 2012, a kilo of cocaine (the weight of the brick) could be purchased for as low as $28,000 at source. Its resale value in Canada was then between $40,000 and $60,000, assuming near-purity.

Sold by the ounce, Margetson estimated the seized cocaine could yield between $63,000 and $78,000. The marijuana would generate between $30,000 and $42,000. [ 26 ] The seized scales, money counter, vacuum packaging machinery, cash, the method by which it was bundled, and the very substantial amounts of seized drugs were all consistent with high-level, commercial, poly-drug trafficking, as were the guns which are

often used for protection or enforcement at this echelon of the business. [ 27 ] Margetson agreed that someone unconnected with the trade would not recognize the black-wrapped object in the Holt’s bag as a brick of cocaine. Contrary to Margetson’s expectations, there was no evidence of debt lists being found in the house. He suggested that some traffickers now store such information on their phones. There was no evidence as to the contents of any of Hanif Jamal’s phones, or of the phones belonging to anyone else who resided at 15 Tamora Court. (

g) The Respondents’ Evidence (

i) Introduction [ 28 ] Moez and Rosemina Jamal emigrated from Tanzania to Canada in 1976. Three children followed, as did their purchase of the house at 15 Tamora Court around 1985. Their eldest child, Hanif, lived with them. He was in his mid-30s. Sabrina, then in her mid-20s, lived in Windsor. She was staying with her parents during a visit to Toronto at the time the search warrant was executed. [ 29 ] Both Respondents testified that they had never seen or were otherwise aware of any of the drugs or guns or large amounts of cash found in their home at 15 Tamora Court. Both worked most days.

They did not socialize. They had effectively retreated to their bedroom and the kitchen (where they ate all their meals) and the adjoining TV room at the rear of the house. They did not occupy or, on their evidence, even enter the other rooms except on rare occasion. (ii) Moez Jamal [ 30 ] Moez Jamal was 58 at the time of the hearing. He owned a video rental store on College Street in Toronto. He opened the store in 1983 or 1984 and closed it in July 2012 (a few months after his arrest) when competition and the demise of video finally forced him out of business.

He kept the shop open from 1pm to 10pm seven days a week. He had no employees. Moez generally left home between 9 and 9:30 each morning, attending on suppliers to restock his store and arranging for the repairs of customers’ VCRs. He returned home between 10:30 and 11 each evening. Moez left 15 Tamora Court at 9:30am on February 21, 2012. His wife Rosemina had already left for work. He was arrested at his shop that evening. [ 31 ] As was always the case, the French doors to the living room were closed when Moez left for work on February 21 st .

He could not recall when he was last in the living room and prior to the police search he had not been in the basement in 2012. To his knowledge, the basement was solely used for storage. [ 32 ] Moez and Rosemina had been the victims of a robbery at 15 Tamora Court the year after they moved there. Moez had then put a baseball bat and sheathed knife under their bed lest there was any recurrence. He had since forgotten they were still there. (Rosemina also recalled the robbery in 1986. She testified that she had later discovered the bat and knife while cleaning under the bed.

When she asked Moez about them, he told her to “just leave them there”.) [ 33 ] Hanif had not been living at 15 Tamora Court when he was arrested in 2003. He moved back into the family home after Moez bailed him out. Hanif had since remained at the family home, although he never paid any rent. Moez understood, through Hanif, that his son had operated a car rental business for several years, but at some location other than the family home. Hanif had pursued his education, but Moez was unclear as to where, how or with what success. He described Hanif as “always at home”.

Hanif drove a Mazda Protégé that Moez had bought new in 2000. Hanif paid for the car’s gas and maintenance. Children, in Moez and Rosemina’s culture, were supported by their parents to the degree they were able and it was necessary. Moez also owned two mid-‘90s Lincolns that he had bought used in 2005 and 2006 when his video business was a thriving concern. [ 34 ] Sabrina lived in a condominium in Windsor in February 2012. Moez had purchased the condominium when she first attended university there, in 2005. The cost was $129,000 and it carried a mortgage of $118,000.

Moez paid the condo fees, utilities and mortgage. Sabrina’s roommate paid approximately $600 a month in rent, money that helped defray the monthly mortgage obligation on the condo. Moez bought Sabrina a used Honda for $1,600 about two years before his arrest. Sabrina paid the gas, insurance and other car-related expenses. [ 35 ] Other than the rental income generated by the Windsor condominium, the video store was Moez’s sole source of revenue. In latter years, the salary Rosemina earned through her employment dwarfed his income from the store.

In 2010, for example, Moez’s declared income (solely derived from the video shop) was $7,163. The family income that year was about $38,000 – much reduced from his and Rosemina’s typical joint annual income as a result of Rosemina suffering a serious illness that kept her from working. Moez estimated that his personal income was probably less in 2011 and 2012 than in 2010. [ 36 ] Moez Jamal’s personal income, debts and assets were subjects of extensive examination.

At the time of his arrest in February 2012, approximately $250,000 was charged to the property at 15 Tamora Court – mortgage principal of $190,000 and a personal line of credit of about $60,000. In addition, Moez then carried credit card obligations on four different accounts, totaling close to $60,000, for which he had been making the minimum monthly payments through 2011 and 2012. [ 37 ] In the first half of 2010, Moez’s personal line of credit, secured against the family home, hovered around $160,000.

By mid- September it had been reduced to $40,619, only to climb back to almost $58,000 by July of the following year. The substantial pay-down of the mortgage in mid-2010 reflected a mortgage anniversary-date transfer of much of Moez’s credit line obligation to the 15 Tamora Court mortgage, which bore a lower rate of interest. His mortgage interest then amounted to about $1,300 a month. In addition, Moez paid property taxes of close to $3,800 a year and regular utility bills that, including gas, totaled about $700 a month.

These latter obligations were usually paid out of the joint bank account he shared with his wife. Rosemina also took care of the groceries. Home and automobile insurance cost a further $1,700 a year. (iii) Rosemina Jamal [ 38 ] Rosemina Jamal is 57. She had worked in the accounting department of a property management firm until around 2008 when she

experienced a seizure. She has since suffered from hypertension and anxiety. For some time she could only work on a temporary basis.She returned to fulltime employment, five days a week, in June 2010. Rosemina left home between 8:45 and 9 each work morning andusually, but not always, left work between 7:30 and 8:30 each evening. The public transport commute (bus and subway) took about oneand a half hours in each direction, although she sometime got a lift home with her husband. She always left for work before Moez. Shecould never be sure when her workday would end.

Rosemina spent most of her weekends caring for her sister who suffered from MS andwhose condition had been deteriorating since 2010. [39] Rosemina’s gross income in February 2012 was $57,500 a year, plus an annual bonus. Her take-home was about $41,000. Herbiweekly pay (about $1,500) was either deposited into one of her own bank accounts or the account she shared with her husband Moez.The mortgage payments on 15 Tamora Court were paid directly out of the joint account.

Rosemina shared an account with her motherand occasionally borrowed money from her (around $500-600 at a time), as happened “quite often” when she suffered lay-offs. She waslaid off in October 2012, re-hired in March 2015, and laid off again on June 30, 2015. Apart from family obligations, Rosemina’spersonal credit card and line-of-credit debts in February 2012 amounted to more than $34,000. Rosemina explained that the cash depositsto her personal accounts reflected withdrawals she made from other joint bank or her own credit card accounts as she tried to balancecreditors’ demands and keep herself afloat.

None of the deposited cash was from her son Hanif. [40] The house had last been decorated in the early ‘90s; nothing had since changed. Other than the master bedroom, Rosemina leftothers in the house to clean up after themselves. She agreed that she had put a vase of flowers on a table in the living room, but had nottidied or otherwise occupied the room for many years. She had never seen the Holt Renfrew bag or the money counter.

She identified theshoes in a photograph of a shoe rack in the living room as all belonging to her son Hanif. [41] Hanif had taken a three-year business course at Centennial College, but Rosemina did not think he had finished the program. Hehad been involved in the car rental business at some point, and he had been organizing music events early in 2012. Given her health, shepaid little attention to what, other than her own business, was going on in her house. She was had not been concerned about Hanif’saffairs, believing he was “doing good”. She never suspected, she said, that he had returned to drug dealing.

She did not and would notconsent to drugs or guns in her home. [42] The family RRSPs were gone. She and her husband’s only savings were the equity in their home. They each had considerabledebts. Rosemina had lost her job in June 2015 and, as of July (when she testified), had been unable to find another. Moez continued tooperate a variety store he had opened after his video shop failed. (

h) Rosemina Jamal’s First Encounter with the Police [43] Rosemina Jamal’s conduct on returning from work on February 21, 2012 was framed as a matter of factual dispute. At HanifJamal’s sentencing hearing, the Crown contended Rosemina stepped out of her home, detected the police surveillance and sent a text toher son warning him not to come home. Before me, counsel for the A.G. conceded there was no evidence of any text message. She calleda police witness to establish the material events. Rosemina’s testimony, while generally consistent, affords a benign explanation for herreaction on returning home from work.

On both accounts, Rosemina did not exit her home during the police operation; rather, she wasnot even in the area until well after Hanif was arrested and the search was in progress. [44] Det. Cst. Jennifer Thompson was parked near Tamora Court during the execution of the search warrant. She observed a womanwalk towards and then past Tamora Court. Notified by another officer that the woman was Hanif’s mother, she followed the woman inher vehicle and stopped her at 7:43pm. The woman identified herself as Rosemina Jamal. She told Thompson that she felt like going for awalk rather than directly home.

Rosemina had a cellphone in her hand. It appeared to Thompson that it was or had just been in use as itwas illuminated. Rosemina was placed in the rear of a police vehicle. She advised that she was “not well” and an ambulance wassummoned. She was formally arrested at 8:40pm. [45] Rosemina’s account closely parallel’s Thompson’s. She was not feeling well on February 21, 2012. She left work early. She firstcalled home to speak to Hanif but could not reach him.

She took the TTC from work and then, when walking from the bus stop, saw amarked police car in close vicinity to her house. (There is no dispute as to the presence of a marked police vehicle.) Rosemina panicked.The police were at her door. Her husband was at his store. Hanif was the only member of the family who could possibly be at home, theonly one who had previous trouble with the law, and he had not answered when she had earlier tried to call him. “Oh my God”, shethought, “what’s wrong now!” Fearing Hanif was “in trouble again”, she texted him hoping for some assurance that he was all right.

Apolice officer then removed the cellphone from her hand. Rosemina had indeed told the officer she had gone for a walk rather than goingdirectly home. She was still suffering from the effects of her stroke and was feeling ill when she caught sight of the police car. Shepanicked, felt she needed some fresh air, and continued walking. Her recall of exactly where Thompson stopped her was less thancertain. C. THE STATUTORY FRAMEWORK (

a) Introduction: Constitutionality and

Interpretation [46] The forfeiture regime set out in the CDSA has been held intra vires Parliament pursuant to the assignment of criminal law powerunder s. 91 of the Constitution Act, 1867: R. v. Gisby (2000), 2000 ABCA 261 , 148 C.C.C. (3d) 549 (Alta. C.A.); R. c. Houle, (QC CA), [2003] R.J.Q. 436 (Que. C.A.); and R. v. Van Kessel Estate (2013), 2013 BCCA 221 , 298C.C.C. (3d) 13 (B.C.C.A.). The scheme has also been held Charter compliant in several cases, at least on the basis of the limitedarguments advanced: R. c. Houle, supra, and R. v. Fenn (2013), 2013 ONCJ 206 , 295 C.C.C. (3d) 358 (Ont. C.J.).

I mentionthis in passing only. Certain provisions of the CDSA forfeiture legislation attract, at a minimum, constitutional curiosity. However, noCharter or other constitutionally grounded challenges have as yet been directly considered by the Supreme Court nor, to be clear, are anyadvanced on this application.

[47] Indeed, as the Supreme Court said in introducing the leading forfeiture decision of R. v. Craig, 2009 SCC23 , [2009] 1 S.C.R. 762, at para. 14, the immediate application “is not based on a constitutionalchallenge to the forfeiture provisions; it is based only on arguments relating to statutory

interpretation” – and, ofcourse, the application of the resolution of these arguments to the facts distilled from the evidence led at thishearing. In R. v.

Craig, the central legal issue was whether the CDSA forfeiture regime was properly read as partof an interdependent drug sentencing template or, as the majority ultimately determined, as a discrete inquiry that,in turn, compelled the Court’s close reading of the proportionality calculus set out in s. 19.1(3). [48] Before me, the questions of statutory construction are not based on counsels’ arguments; rather, they are latent in the effort tofairly apply the forfeiture scheme in a manner that honours Parliament’s intendment and the Supreme Court’s instruction that,“Legislation conferring an imprecise discretion must … be interpreted as not allowing the Charter rights to be infringed”: SlaightCommunications Inc. v.

Davidson, (SCC), [1989] 1 S.C.R. 1038, at para. 90. (Among many significant restatements ofthis principle, see, by way of example only: R. v. Williams, (SCC), [1998] 1 S.C.R. 1128, at para. 44; Winko v. BritishColumbia (Forensic Psychiatric Institute), (SCC), [1999] 2 S.C.R. 625, at para. 48; R. v. Wust, 2000 SCC 18 ,[2000] 1 S.C.R. 455, at para. 34; and R. v. Nasogaluak, 2010 SCC 6 , [2010] 1 S.C.R. 206, at para. 2.) [49] The CDSA forfeiture regime gives rise to three interpretive challenges bearing on the instant application.

By way of introductiononly, the first gives rise to the question of whether the phrase “a person who was charged with a designated substance offence” in s.19(3) includes individuals who were acquitted or discharged of such offences or who, like the Respondents, were once charged but laterhad their charges withdrawn. The answer impacts on the procedural avenues available to the Respondents, the relevant evidentiaryrecord and the scope of relief from forfeiture.

A second concern turns on the meaning of the phrase “appears innocent of any complicityin [a designated substance] offence … or of any collusion in relation to such an offence” as it appears in ss. 19(3) and 19.1(4), and, if ofless direct relevance, s. 20(4) of the CDSA.

And the third pertains to the meaning and proper application of the word “satisfied” asstatutorily describes the standard a court is to apply in determining the existence of circumstances that permit it to make or decline, inwhole or part, the forfeiture order sought by the A.G. under the rubric of either innocence (s. 19(3)) or disproportionality (s. 19.1(3)). [50] Although untouched directly by the Supreme Court, these questions have attracted the attention, if only obliquely, of some trialand appellate courts. For the most part, however, they remain either under-addressed or subject to conflicting

interpretations. Anappreciation of the implications of alternative readings depends on an appreciation of both the CDSA forfeiture scheme at large and itssocial policy goals. As to the latter, the majority opinion in the Supreme Court in R. v. Craig, supra, at paras. 16 and 17, favourablyrepeated the following passages from the Alberta Court of Appeal’s judgment in R. v. Gisby (2000), 2000 ABCA 261 , 148C.C.C. (3d) 549: The CDSA was enacted by Parliament to combat the illicit drug industry.

A review of the CDSA and in particular, the provisions relatedto the forfeiture of property, indicates that the CDSA does so both through punishment and deterrence. The forfeiture provisions arepunitive to the extent that they deprive one of offence-related property, broadcasting the message that Canadian society regardsdesignated substance offences with abhorrence. But they also introduce an element of deterrence in relation to designated substanceoffences.

In this respect, the forfeiture provisions attach a very real cost to the business of drug crime directly equivalent to the monetaryvalue of the offence-related property that is subject to forfeiture, thus raising the stakes associated with the commission of those offences.[Para. 19] [Forfeiture also helps] “prevent or at least reduce the likelihood of future offences by removing from the illicit drug industry propertywhich … is being used to facilitate the commission of a designated substance offence. [Para. 20] In short, the CDSA forfeiture regime has punitive, deterrent and preventative objectives, all of which must be borne in mind in exercisingjudicial discretion, particularly that afforded by s. 19.1(3). [51] Before setting out Parliament’s exact language, I note that forfeiture schemes are not exclusive to the CDSA or even the federalexercise of criminal law powers.

In Ontario, for example, property implicated in unlawful activity is subject to forfeiture under the CivilRemedies Act, S.O. 2001, c. 28 (the CRA). The CRA regime is materially different than that controlling the disposition of the instantapplication. However, the recent case of A.G. Ontario v. Kittiwake Sailboat (2015), 2015 ONSC 6106, determined under the CRA,speaks to normative and equitable considerations that help inform an appreciation of forfeiture proceedings. As explained by Corbett J.,at para. 30: Forfeiture under the CRA is a confiscation of private property by the state, without compensation.

Where proceeds of crime areconfiscated, there is no countervailing interest to balance: criminals can rightly be deprived of the fruits of their criminal activity. Whereproperty is used for the purpose of committing criminal acts, there may be conflicting values at play. Where the property is not ownedlawfully in the first place, there is a strong argument for confiscation without compensation.

Where the property is owned and usedlegitimately by its owner, but also happens to be used in connection with a crime, the case for confiscation without compensationbecomes more problematic. [Emphasis added.] These comments arise in the context of a distinct forfeiture regime. Nonetheless, they speak to the “problematic” nature of the instantapplication and the need for a careful reading of the relevant provisions and the interplay among them. (

b) The Statutory Framework: As Written [52] The statutory provisions that govern this application are set out under the heading “Forfeiture of Offence-Related Property” inPart II (titled “Enforcement”) of the CDSA. Excepting a “controlled substance” (that is, a drug listed in a

Schedule to the CDSA),“offence-related property”, as defined in s. 2 of the Act, means, “any property” (

a) by means of or in respect of which a designated substance offence is committed, (

b) that is used in any manner in connection with the commission of a designated substance offence, or

(

c) that is intended for use for the purpose of committing a designated substance offence. A “designated substance offence” is, in turn, any drug offence (or related counseling, conspiracy or after-the-fact accessoryship) other than that of simple possession. [ 53 ] A recitation of lengthy portions of the controlling legislation cannot be avoided. The text and context of the more controversial facets of the scheme both matter. To the degree they pertain, however indirectly, to the instant proceedings, the pertinent provisions of the CDSA forfeiture regime are set out below. Those commanding particularly special attention are ss. 19(3) and 19.1(3). 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. … 17.

(1) Where an information has been laid in respect of a designated substance offence, the Attorney General may make an application to a judge for an order of forfeiture under subsection (2).

(2) Subject to sections 18 to 19.1, where an application is made to a judge under subsection (1) and the judge is satisfied (

a) beyond a reasonable doubt that any property is offence-related property, (

b) that proceedings in respect of a designated substance offence in relation to the property referred to in paragraph (

a) were commenced, and (

c) that the accused charged with the designated substance offence has died or absconded, the judge shall order that the property be forfeited and disposed of in accordance with subsection (4).

(3) For the purposes of subsection (2), an accused shall be deemed to have absconded in connection with a designated substance offence if (

a) an information has been laid alleging the commission of the offence by the accused, (

b) a warrant for the arrest of the accused has been issued in relation to that information, and (

c) reasonable attempts to arrest the accused pursuant to the warrant have been unsuccessful during a period of six months beginning on the day on which the warrant was issued, and the accused shall be deemed to have so absconded on the last day of that six month period.

(4) For the purposes of subsection (2), (

a) in the case of a substance included in

Schedule VI, the judge shall 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 proceedings referred to in paragraph (2)(

b) were commenced at the instance of the government of a province, the judge shall 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, the judge shall 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. … 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 theproperty.

(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, … is the lawful owner or is lawfully entitled to possession of any property or any part of any property that would otherwise be forfeitedpursuant to an order made under subsection 16(1) or 17(2) and that the person appears innocent of any complicity in an offence referredto 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 thatperson. 19.1

(1) Where all or part of offence-related property that would otherwise be forfeited under subsection 16(1) or 17(2) is a dwelling-house, before making an order of forfeiture, a court shall require notice in accordance with subsection (2) to be given to, and may hear,any person who resides in the dwelling-house and is a member of the immediate family of the person charged with or convicted of theindictable offence under this Act in relation to which the property would be forfeited.

(2) A notice shall (

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

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

c) set out the offence charged and a description of the property.

(3) Subject to an order made under subsection 19(3), if a court is satisfied that the impact of an order of forfeiture made under subsection16(1) or 17(2) in respect of real property would be disproportionate to the nature and gravity of the offence, the circumstancessurrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted of the offence, as thecase 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 inrespect of that property or part.

(4) Where all or part of the property that would otherwise be forfeited under subsection 16(1) or 17(2) is a dwelling-house, when makinga 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, ifthe dwelling-house was the member’s principal residence at the time the charge was laid and continues to be the member’s principalresidence; and (

b) whether the member referred to in paragraph (

a) appears innocent of any complicity in the offence or of any collusion in relation tothe offence. Omitted from this recital are those provisions that address the treatment of property situated outside Canada (ss. 16(3) and 17(5)), rightsof appeal (ss. 16(3), 20(5), 21 and 22), and voidable transfers (ss. 18 and 19(3)(b)), as they have no direct bearing on the disposition ofthis application. The text of s. 20 is also omitted.

Its importance to the analysis that follows primarily rests on its assertion that onceproperty has been ordered forfeited on an application by the A.G. under ss. 16(1) or 17(2), it then falls to anyone claiming an interest inthe property to apply for a remedy. (The statutory remedy is limited to a declaration of interest ultimately honoured by a return of theclaimant’s recognized property interest or compensation for its value.) The A.G. has at no time suggested that the appropriate route forany property claim advanced by the Respondents is through a

summary forfeiture order under s. 16(1) followed by the Respondents’timely application for a declaration of their interest pursuant to s. 20. (

c) The Statutory Framework: Deconstructed [54] The relevant CDSA regime is both intricate and dense. Employing uncharacteristically “plain terms”, the Supreme Court, inMcLean v. British Columbia (Securities Commission), 2013 SCC 67 , [2013] 3 S.C.R. 895, at para. 32, noted that, “legislaturesdo not always speak clearly”. The forfeiture scheme set out in the CDSA is but one illustration of this general proposition.

While not ascryptic or opaque as some statutory language, it would be helpful if, like many Ikea products, these provisions carried a caution thatsome assembly is required. [55] Sections 14 through 22 of the CDSA set out the forfeiture scheme respecting “offence-related property” where the offence atissue is a “designated substance offence” – in essence, any offence under the CDSA other than that of simple possession. The provisionsof direct concern to the instant application are ss. 16, 17, 19 and 19.1 – those dealing with the content and procedure of a forfeitureapplication.

The primarily bookend provisions address matters that are of no immediate moment: restraint and management orders; thetreatment of voidable transfers; the remedial mechanisms available to “any person who claims an interest in the property” after themaking of an order of forfeiture; and appellate rights in regard to forfeiture orders.

[56] There are two statutory bases by which the A.G. may apply for forfeiture of offence-related property under the CDSA. The first,pursuant to s. 16(1), applies, as here, in cases where a person – any person – is “convicted” of a designated substance offence that was“committed in relation” to “offence-related property”. The second, grounded in s. 17, is an in rem proceeding that obtains where a personcharged with the “offence” end of “offence-related property” absconds or dies before his or her trial.

By way of predicate conditions toan order of forfeiture, a court, in the first instance, must be “satisfied on a balance of probabilities” both that the target property isoffence-related and that the offence was committed “in relation to that property”. In the latter case, that of an absconding or deadaccused, the court must be “satisfied beyond reasonable doubt” that the property at issue is “offence-related property”.

Section 17proceedings have no direct application to the immediate application. However, the language and compass of the provision has somebearing on the appropriate construction of s. 19(3), a matter of importance to the resolution of this application. [57] The making of a forfeiture order premised on either of these two platforms is “subject to sections 18 to 19.1” of the CDSA. Complimentary language appears by way of introduction to the two provisions, ss. 19 and 19.1, which compel judicial consideration ofthe claims of owners and other interested parties before forfeiture may be ordered.

Section 19, which contemplates an assessment of aproperty owner’s innocence, begins with the words, “Before making an order under subsection 16(1) or 17(2)…”.

And ss. 19.1(3)(involving disproportionality considerations) and (4) (incorporating into this calculus the predicament of an immediate family memberfor whom the target property serves as a principal residence) both require judicial consideration of the effect of the order sought under ss.16(1) or 17(2) before forfeiture may be ordered. [58] Sections 19(3) and 19.1(3) are the two statutory routes by which an owner or other interested or affected party may secure therestoration of seized or restrained property prior to the making of a forfeiture order.

The interests protected in each (respectively,innocence and the impact of disproportionality), and Parliament’s command that judges consider these interests before granting anAttorney General’s application, reflect a concern to address the palpable risk of overreach associated with a forfeiture power. [59] To repeat, the purposes of the forfeiture scheme are punitive, deterrent and preventative. This potentially “draconian” power, asdescribed by the Supreme Court in Craig, supra, at para. 50, explains a number of statutory safeguards intended to limit the potentialabuse of forfeiture.

For example, a court must ensure that notice is given to the potentially interested or affected parties, as directed by ss.19(1) and 19.1(1). As said by the Court of Appeal in R. v. Trac, (2013), 2013 ONCA 246 , 298 C.C.C. (3d) 360, at para. 99,with respect to a parallel forfeiture regime in the Criminal Code, The judge hearing the forfeiture application will also have to ensure that all appropriate notices are given so that those with alegitimate interest in any of the property sought forfeited have an opportunity to take

part in the forfeiture proceeding. [Emphasisadded.] [60] Two safeguards against the potentially harsh effects of forfeiture have direct relevance to the immediate application. Together,they reflect the differential treatment afforded property owners on the basis of their moral blameworthiness. First: lawful (andunconvicted and uncharged) owners of property who “appear innocent” of complicity or collusion in a predicate CDSA offence are, tothe degree of their proprietal interest, effectively exempted from forfeiture: s. 19(3).

Second: irrespective of the nature or extent of theirblameworthiness, any owner of real property (including convicted offenders) may be relieved, in part or whole, from a forfeiture order if,and to the degree, the impact of the order is disproportionate: s. 19.1(3). As put in R. v.

Trac, supra, at para. 96, in regard to s. 19.1(3),no matter how culpable the offender, Parliament recognized that there would inevitably be cases where the forfeiture of “offence-related property” would be unjust in thecircumstances. … Parliament chose … to protect against the injustice of excessive forfeiture by giving trial judges the discretion torelieve from forfeiture: see Craig, paras. 22-23 and 50-51. [61] In short, s. 19(3) reprieves from forfeiture on the basis of innocence while s. 19.1(3) permits tailored relief against thedisproportionate impact of forfeiture on the truly blameworthy.

Indeed, the vast majority of reported cases determined under the CDSAforfeiture regime (including all three of those composing the “Craig trilogy”) involve an assessment of disproportionality with respect topersons whose real property is subject to forfeiture by virtue of they having been convicted of a designated substance offence. [62] As noted, the first of the two remedial provisions, s. 19(3), comprehends the claims of any person who is a lawful owner orlawfully entitled to possession of the target property and who, a court is “satisfied”, “appears innocent of any complicity in [a designatedsubstance] offence … or of any collusion in relation to such offence”.

Unlike aspects of ss. 16 and 17, the word “satisfied” is not hingedto any conventional standard of proof such as “balance of probabilities”, as in s. 16(1), or “beyond a reasonable doubt”, as in ss. 16(2)and 17(2). [63] Further, while the meaning of the phrase introduced by the words “appear innocent” are judicially underdeveloped, it isindisputable that persons convicted of such an offence have no claim to relief from forfeiture under this provision: as common sensedictates, persons convicted of a designated substance offence cannot also be or appear “innocent” of the same offence.

In short, convictedoffenders cannot seek or obtain relief from forfeiture under s. 19(3). The difficulty, at least for the Respondents, is that the sameprovision prohibits persons merely “charged”, but not convicted, from having their property returned to them on grounds of innocence.As set out in clause 19(3)(a), even if a “lawful owner” of the property at issue, “a person who was charged with a designated substanceoffence” is not eligible for relief from forfeiture on the basis of his or her innocence.

This latter phrase, on its face, appears to encompassnot only an “accused person charged with the designated substance offence” who, in the language of s. 17(2), “died or absconded” beforehis or her trial but, as well, those charged and acquitted of such offences, those whose charges were stayed and, as in the case of theRespondents, those whose charges were withdrawn by the Crown. [64] Unlike claims founded on disproportionate impact (s. 19.1(3)), the word “property” is unqualified in s. 19(3) and has beenuniversally construed as inclusive of both real and personal property.

It “is only in connection with real property” in s. 19.1(3), themajority in Craig explained, at para. 54, “that one finds language which … supports a discretion to order the partial forfeiture of even ablameworthy individual’s property”. This, the Court went on, “is consistent with the recognition in the proportionality analysis that realproperty is a quantitatively and qualitatively different kind of asset”.

[65] Accordingly, where “real property” is at issue and “innocence” is not, a court hearing the application may, pursuant to s. 19.1(3),decline to order forfeiture, in whole or part, where “satisfied” that the impact of the order would be “disproportionate”, as assessed byconsideration of three factors: the nature and gravity of the offence, its surrounding circumstances, and the criminal record of the person“charged with or convicted of the offence”.

Subsection 19.1(4) extends judicial discretion respecting proportionality to circumstanceswhere the property at issue is a dwelling-house that continues to serve as the principal residence of a member of the immediate family ofa person charged with or convicted of a designated substance offence and where the family member “appears innocent” of any complicityor collusion. [66] This selective review of the CDSA forfeiture regime is clearly intended to identify several interpretive issues of relevance to whatI see as the proper disposition of the A.G.’s application.

I return to each of them – the meanings of “satisfied” and, in the context of s.19(3), “appears innocent” and “charged” – in due course. I turn first to a far more settled area of discourse, that pertaining to the doctrineof proportionality in s. 19.1. D. ASSESSING DISPROPORTIONALITY [67] While there remains a level of ambiguity or uncertainty respecting several portions of the CDSA forfeiture regime, the doctrine ofdisproportionality, as prescribed in s. 19.1(3), has been authoritatively dissected.

The test for the exercise of judicial discretion on thisbasis was developed by the Supreme Court in a trilogy of cases: R. v. Craig, supra; R. v. Ouellette, 2009 SCC 24 , [2009] 1S.C.R. 818; and R. v. Nguyen, 2009 SCC 25 , [2009] 1 S.C.R. 826. The Court of Appeal, in R. v. Pammett (2015), 124 O.R. (3d)278, at paras. 39-44, recently summarized the Supreme Court’s guidance in this regard: In Craig, the majority opinion was written by Abella J.

She held, at para. 48, that the “forfeiture factors found in s. 19.1(3) … should …be seen to constitute a complete code for deciding whether, and to what extent, a forfeiture order should be made”. These factors, whichshe collectively called the “proportionality test”, allow a court to tailor the amount of property to be forfeited in a way that takes intoaccount the relative weight of the listed factors. In addition, forfeiture is to be treated as an inquiry distinct from sentencing.

At paras.56-60, Abella J. provided principles to guide lower courts on the application of the three-part proportionality test: What, then, should a judge consider under s. 19.1(3)? The nature and gravity of the offence could include the character and quantity ofthe substance involved, the level of sophistication of the crime and the extent to which the commercial production or distribution ofdrugs was involved.

The second factor, the circumstances surrounding the commission of the offence, might include consideration of the offender’s role inthe commission of the offence, the nature of the property and the manner in which it was used in the offence, risks to the security orsafety 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 inorganized crime and whether the property itself was held by a criminal organization.

The criminal record of the offender is self-explanatory. It will be of particular relevance if the prior offences were drug related. Abella J. determined that a judge has discretion to order no forfeiture, partial forfeiture, or full forfeiture of offence-related real property. She provided examples at para. 59: Full forfeiture may be anticipated, for example, in the case of a fortified property purchased for criminal purposes and solely dedicated tothe commercial production and distribution of illegal substances, perhaps with a connection to organized crime.

On the other hand, onemight decline to order forfeiture in the case of an individual with no criminal record and no connection to organized crime who growsvery 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 appliedin the particular circumstances, which … may result in no, partial or full forfeiture. … In Nguyen, the Supreme Court was unanimous that full forfeiture was justified.

The marijuana grow operation was moderately sized butsophisticated; there was some evidence of fortification; the house was likely bought for the sole purpose of growing marijuana; and,while an 18 year old daughter resided in the house, the rest of the family lived elsewhere. The two offenders, a couple, did not havecriminal records nor any ties to organized crime. In Ouellette, the Supreme Court … majority uph[eld] the Quebec Court of Appeal’s 50 per cent forfeiture order. In that case, theoffender lived on the property which was used for a marijuana grow operation.

His criminal record was limited to an impaired drivingconviction, which was irrelevant to the proportionality analysis. A gun and a makeshift surveillance system were found on the property. [68] Missing from the Court of Appeal’s reasons in R. v. Pammett are the results in R. v. Craig, the workhorse companion case to R.v. Nguyen and R. v. Ouellette. The trial judge had declined to order any forfeiture on sentencing Ms. Craig in 2005. The British ColumbiaCourt of Appeal ordered full forfeiture on appeal.

Based on several considerations, including “the circumstances of the offence”, theSupreme Court, at paras. 67-68, reversed the forfeiture order imposed by the Court of Appeal in Craig and affirmed both the trial court’s“decision not to order forfeiture” and the appeal court’s decision to set aside the substantial fine imposed at trial.

As described at paras.4-9 and 63-65, the offender was a middle-aged woman without criminal antecedents who was convicted of producing marihuana.Approximately half of the property at issue, the offender’s home, was dedicated to marihuana cultivation, production and storage and hadbeen for at least several years. The house was extensively adapted to the offender’s unlawful trade. She had been lucratively engaged inthe illicit business for at least a half-decade as she owed back taxes for “marihuana earnings reaching back to 1998”. Further, shedistributed as well as grew her product, delivering it in her car.

The value of the seized plants and harvested material amounted (as withthe seized drugs in the matter before me) to over $100,000. The case of R. v. Nguyen, supra, where full forfeiture was affirmed, wasdistinguished on the basis, first, that the house in that case was bought as a commercial grow-op, so that, as put at para. 2, it “was taintedfrom the outset by a criminal purpose”, and, second, that its “main function was as the site of a grow operation” rather than a residence. [69] Significantly, and unlike the immediate Respondents, the subjects of the forfeiture order inquiry in Craig, Nguyen and Ouellette

had each been “convicted of a designated substance offence” that “was committed in relation to” offence-related property.

Accordingly, itis not surprising that the Supreme Court did not directly address the meaning of “innocent of any complicity … or of any collusion” in adesignated substance offence, which consideration only arises with respect to claims from persons who, unlike the three appellants thenbefore the Court, have “a valid interest in the property” and who were neither convicted of or, pursuant to clause 19(3)(a), “charged”with a property-related designated substance offence [70] However, the Court did develop a theory of liability for disqualifying unconvicted claimants from relief from forfeiture and,thereby, poured meaning into the concept of “innocence” as it is used in s. 19(3).

As explained in Craig, supra, at paras. 41 and 42: Individuals who have allowed their property to be used for criminal purposes, even if their conduct does not rise to the level of criminalliability with respect to the particular offence, may, as a result, also be subject to forfeiture orders, as reflected in s. 19(3), which providesa recovery mechanism for third-party owners of offence-related property to be forfeited. Under that section, a court must be satisfied thatindividuals are innocent of any complicity or collusion in the offence before they can recover their property.

This is consistent with thehistoric roots of forfeiture as punishment for negligently allowing one’s property to be used for wrongful purposes, a consequenceconnected to, but not identical to, punishment for the offence. … [T]here is a separate blameworthy element to using or allowing the use of one’s property for criminal purposes. [71] Drawing on the legislative history of s. 19.1(3), several supplementary propositions (“salient features”, in the language of theCourt) are set out in Craig, supra, at para. 22 (emphasis in original) that are germane to these proceedings: • “First, … the s. 19.1(3) proportionality test was adopted to counterbalance the potentially harsh effects of extending the definition ofoffence-related property, without qualification, to all real property.

The test, therefore, should be read in this remedial light.” • “Second, … while the offender’s involvement in organized crime is not the only focus of the forfeiture of offence-related propertyscheme, 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 ofcirculation and rendering it unavailable for future designated substance offences.” In R. v.

Van Bemmell (2010), 2010 ONCA 276 , 253 C.C.C. (3d) 284, the Court of Appeal, relying on “the trilogy”, made clearthat, as regards the disproportionality calculus, “[r]elief against forfeiture is not restricted to cases in which the offences are minor ortechnical in nature” but, rather, depends on application of all three factors set out in s. 19.1(3). E. THE INTERPRETIVE QUANDARIES (

a) Introduction [72] Craig and its companion cases put to rest a number of vexing questions arising from the application of the “proportionality test”in s. 19.1(3) of the CDSA. As earlier suggested, there are at least three further areas of interpretive controversy that impact on theimmediate application of the regime. One challenge arises from the meaning to be attributed to the word “satisfied” that appearsthroughout the forfeiture regime.

Two others (the complexities of which have already been introduced) are of particular importance ingiving proper effect to s. 19(3): first, the meaning of “a person who was charged with a designated substance offence” and, second, themeaning of “appears innocent of any complicity … or any collusion …”. Clearly, if the Respondents are among those captured by theterm “charged” in s. 19(3), then they are not lawfully entitled, no matter how “innocent”, to have their home returned to them under thatprovision.

If, however, they are eligible under s. 19(3), their claim then turns on the meaning of the phrase “appears innocent” in thisstatutory context. (

b) The Meaning of “Satisfied” [73] A successful forfeiture application under s. 16 of the CDSA depends on a court being “satisfied” of several statutorypreconditions. These include a court being satisfied that the lawful owners of the property at issue (here, the Respondents) do not“appear innocent”, as put in s. 19(3), of any complicity or collusion and, second (and as typically arises in forfeiture applications) that the“impact” of such order is not “disproportionate” as calibrated by the factors itemized in s. 19.1(3).

These, as already noted, are the twocontentious issues on this application. [74] While Craig and its sister cases offer considerable guidance on the assessment of disproportionality, the meaning and applicationof the term “satisfied” in ss. 16 through 20 of the CDSA have not yet been addressed by the Supreme Court. There is, however, no dearthof judicial opinions on the subject, most framed in terms of the allocation of legal or evidentiary burdens.

One braid of authority, onwhich the A.G. relies, holds that the CDSA scheme effectively creates a presumption of forfeiture once the predicate conditions are metand, accordingly, it is the person against whom an application is brought who bears the onus, on the civil standard, to displace thepresumption by satisfying the court of his or her innocence or of the disproportionate impact of a forfeiture order.

A contrary (and,frankly, minority) view is that the A.G., as the moving party, bears the burden throughout the application, and so must persuade a judgethat the property owner is not innocent or that the effect of the forfeiture sought would not be disproportionate. A third position holdsthat there are no presumptions and, as a result, no burden on either party to clear an orthodox standard of proof; rather, the determinationof any disproportionality (the specific concern of this line of cases) simply falls to the presiding justice as guided by the factors set out ins. 19.1(3).

In my view, this latter approach best captures the nature of the appropriate inquiry with respect to both disproportionality (s.19.1(3)) and innocence (s. 19(3)). Further, it is consistent with the approach taken to the term “satisfied” in other statutory contexts,particularly other sentencing-related regimes where it has been read as defining a level of factual persuasion rather than the assignment ofa legal or evidentiary onus.

[75] As earlier cited, in Craig, supra, at para. 41, the Supreme Court observed that under s. 19(3) a judge “must be satisfied thatindividuals are innocent of any complicity or collusion in the offence before they can recover their property”. With all due respect, thispassage does not fairly support the A.G,’s reliance on it for the proposition that the “burden is on the respondents to show that they areinnocent of complicity or collusion”; the Supreme Court’s words merely repeat, rather than construe, the language of the statutoryprovision. The Court is conspicuously silent on the question of onus.

It is not central to the Court’s disposition of Craig or its companioncases, and there was clearly no pressing reason to determine the issue. The Court’s single subsequent opportunity to address the issueproved no more illuminating. Pursuant to a closely parallel regime in the Criminal Code (s. 490.41(3), in particular), the Court orderedforfeiture of a truck in R. v.

Manning, 2013 SCC 1 , [2013] 1 S.C.R. 3, commenting, at para. 7, only that, “on the record as wehave it, we are not satisfied that the impact of the order of forfeiture sought by the A.G. was ‘disproportionate’”. [76] Other courts, as noted, have been less reticent or, more fairly put, less able to evade or avoid the controversy. For example, inVilleneuve v.

Canada (1999), (QC CA), 140 C.C.C. (3d) 564, at 574, the Quebec Court of Appeal held that the onusis on the interested party “to convince the judge that he appears innocent of any complicity or collusion”, and that the standard of proofis “on a balance of probabilities, which is the civil onus of proof”. The A.G. also relies on the authority of Villeneuve with respect to thenature and carriage of the onus. Further support for this approach is often sourced to R. c. Houle, (QC CA), [2003]R.J.Q. 436 (C.A.) and R. v. 1431633 Ontario Inc. (2010), 2010 ONSC 266 , 250 C.C.C. (3d) 354 (Ont.

S.C). [77] Significantly, these cases all deal with the onus that obtains where a person claims an interest in property that has already beenordered forfeited and seeks by way of his or her own application to have that order set aside, pursuant to s. 20 of the CDSA or equivalentforfeiture provisions in the Criminal Code, rather than, as here, the allocation of onus, if any, in the course of an application brought bythe A.G. to secure an order of forfeiture. As West J. noted in R. v. Fercan Developments, [2013] O.J.

No 748, at para. 22: It is generally accepted that a party, which brings an application, bears the onus of establishing their position on a balance ofprobabilities. … [Post-forfeiture] cases dealing with section 20(4) of the CDSA … or sections 462.42(4) or 490.5(4) of the CriminalCode … are not particularly helpful in determining which party bears the onus under section 19(3) of the CDSA.

Other than these post-forfeiture cases and, in my view, misplaced reliance on the Supreme Court’s reasons in Craig, counsel for the A.G.cites but a single decision in support of its claim that the “burden is on the respondents to show that they are innocent” under s. 19(1): R.v. Cam, 2010 SKPC 162 , [2010] S.J. No. 711 (Prov. Ct.). There is, however, more formidable authority for the sameproposition. One example is afforded by R. v. Old Navy Property, 2012 ONSC 6845, at para. 58, appeal dismissed on jurisdictionalgrounds, 2014 ONCA 471; leave to appeal denied, (S.C.C.). And Antillas Communication Inc. v.

The Queen (2007),2007 QCCA 1719 , 232 C.C.C. (3d) 553 (Ont. S.C.) and R. v. Sankar, 2012 ONSC 1498 are to identical effect, although eachaddresses a closely analogous forfeiture regime under the Code rather than the CDSA. [78] With respect to the parallel issue under s. 19.1(3), the relevant jurisprudence has almost uniformly held, as pled by the A.G., that“the burden of establishing disproportionality” rests, on the civil standard, on an offender seeking restoration of some or all of theoffence-related real property. The A.G. here relies, inter alia, on R. v.

Old Navy Property Corp., supra, at para. 64: “The burden of proofis also on the Respondent under s. 19.1(3) to show entitlement to relief from forfeiture based on disproportionality”. (See also: R. v.Oullette, (QC CQ), [2004] J.Q. no. 6258 (C.Q.); R. v. To, 2005 ONCJ 463 , [2005] O.J. No. 2137 (Ont.C.J.); R. v. Huynh and Ta, [2007] B.C.J. No. 815 (C.A.); R. v. Siek, (2007), 2007 NSCA 23 , 218 C.C.C. (3d) 353 (N.S.C.A.); R.v. La, 2008 ABPC 217 , [2008] A.J. No. 898 (Prov. Ct.); Canada (A.G.) v. Nguyen, [2012] A.J. No. 26 (Prov. Ct.); and R. v.Sodhi, [2011] O.J.

No. 2740 (C.J.).) [79] Clearly, this approach to “proof” of disproportionality is well endorsed. Nonetheless, I am again of the view that it is inconsistentwith the fundamental proposition that the moving party – here, the A.G. – carries the burden of persuasion.

Further, it fails toacknowledge the statutory distinction between an application brought by an A.G. for forfeiture (pursuant to s. 16 or 17 of the CDSA) withan application initiated, under s. 20, by an individual for return of or compensation for his or her interest in property that has already beenordered forfeited to the state. [80] Finally, this line of authority imposes a legal burden and fixes the degree of that burden where Parliament is not onlyconspicuously silent but where it has elsewhere in the very same statutory regime seen fit to stipulate the precise standard of proof that isto apply. (As already noted, the standard of “satisfied” is amplified by the phrases “on a balance of probabilities” and “beyond reasonabledoubt” in s. 16(1) and ss. 16(2) and 17(2), respectively.) As said by Hourigan, J. (as he then was), in R. v.

Sportun, 2010 ONSC 2986, atpara. 27, with respect to the migration of the legal burden within the CDSA forfeiture provisions, it is only with respect to s. 20applications (dealing with property claimants efforts to secure relief after forfeiture has already been ordered) that, “the onus … shiftsaway from the Crown and on to the party who is bringing the application”. (See also, R. v.

Nguyen, 2015 ONSC 2857, at para. 67.) [81] For similar if converse reasons, and in particular those related to Parliament’s careful choice of statutory language, I havedifficulty subscribing to a reading that imposes a civil standard of proof on the A.G. with respect to issues of complicity and collusion (asdoes Fercan Developments, supra) or disproportionality.

In the language of Fercan Developments (one of many forfeiture cases in whichthe office of “Crown” is used interchangeably with that of the “Attorney General”), at para. 61: [T]he Crown bears the onus, on a balance of probabilities, to satisfy the court that the lawful owner or person lawfully entitled topossession is complicit in the designated substance offence or in collusion relation to such an offence and therefore is not entitled thereturn of the property. The Crown bears the onus establishing that the property is forfeitable throughout its application under

section 16. (See also, R. v. Pelly, [2014] S.J. No. 578 (Prov. Ct.), at para. 15: “the Crown bears the onus throughout the forfeiture application”.)While I agree that the application judge must be convinced that the threshold conditions precedent to granting a forfeiture application aremade out before making such order, I cannot accept a c

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