Her Majesty The Queen Appellant v. Alphide Manning, 2013 SCC 1

SUPREME COURT OF CANADA Citation: R. v. Manning, 2013 SCC 1, [2013] 1 S.C.R. 3 Date: 20130117 Docket: 34358 Between: Her Majesty The Queen Appellant and Alphide Manning Respondent - and - Director of Public Prosecutions of Canada, Attorney General of Ontario, Canadian Civil Liberties Association and British Columbia Civil Liberties Association Interveners Coram: McLachlin C.J. and LeBel, Fish, Abella, Cromwell, Karakatsanis and Wagner JJ. Reasons for Judgment: (paras. 1 to 8): Fish J. (McLachlin C.J. and LeBel, Abella, Cromwell, Karakatsanis and Wagner JJ. concurring) R. v.

Manning, 2013 SCC 1, [2013] 1 S.C.R. 3 Her Majesty The Queen Appellant v. Alphide Manning Respondent and Director of Public Prosecutions of Canada, Attorney General of Ontario,

Canadian Civil Liberties Association and British Columbia Civil Liberties Association Interveners Indexed as: R. v. Manning 2013 SCC 1 File No.: 34358. 2012: December 5; 2013: January 17.

Present: McLachlin C.J. and LeBel, Fish, Abella, Cromwell, Karakatsanis and Wagner JJ. on appeal from the court of appeal for quebec Criminal law — Forfeiture orders — Accused who had previously been convicted for multiple alcohol-related drivingoffences and breaches of probation orders and undertakings pleading guilty to the charge of driving a motor vehicle while impaired bydrugs or alcohol — Crown requesting order of forfeiture of motor vehicle — Whether trial judge erred in refusing to issue order. Held: The appeal should be allowed and the forfeiture order granted.

In applying s. 490.41(3) of the Criminal Code, the trial judge held that he was bound to consider the objectives andprinciples of sentencing set out in s. 718 and following of the Code. This error is fatal to his conclusion. The respondent failed to satisfythis Court that the impact of forfeiture would be “disproportionate” within the meaning of s. 490.41(3). The order of forfeiture sought bythe Crown should therefore be granted. Cases Cited Referred to: R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762. Statutes and Regulations Cited Criminal Code, R.S.C. 1985, c. C-46, s. 490.41(3).

APPEAL from a judgment of the Quebec Court of Appeal (Thibault, Pelletier and Dufresne JJ.A.), 2011 QCCA 900,SOQUIJ AZ-50753167, [2011] Q.J. No. 5287 (QL), 2011 CarswellQue 15720, affirming a decision of Boisjoli J. refusing to order theforfeiture of offence-related property. Appeal allowed. Robin Tremblay and Jean-François Bouvette, for the appellant. Patrick Jacques, for the respondent. Written submissions only by Simon William and François Lacasse, for the intervener the Director of Public Prosecutions ofCanada. Susan Ficek and Melissa Adams, for the intervener the Attorney General of Ontario.

Catherine Beagan Flood and Joshua A. Krane, for the intervener the Canadian Civil Liberties Association. Audrey Boctor and Douglas C. Mitchell, for the intervener the British Columbia Civil Liberties Association. The judgment of the Court was delivered by [1] Fish J. — Alphide Manning, the respondent on this appeal, pleaded guilty at trial to impaired driving and theCrown, upon his conviction, sought forfeiture of the truck driven by Mr.

Manning at the time of his arrest. [2] The trial judge declined to grant the order of forfeiture requested by the Crown. [3] Our sole concern here is with s. 490.41(3) of the Criminal Code, R.S.C. 1985, c.

C-46, which, in its relevant part,reads as follows: . . . if a court is satisfied that the impact of an order of forfeiture made under subsection 490.1(1) or 490.2(2)would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and thecriminal record, if any, of the person charged with or convicted of the offence, as the case may be, it may decide not to order theforfeiture of the property or part of the property and may revoke any restraint order made in respect of that property or part. [4] In applying that provision here, the trial judge held that he was bound to consider the objectives and principles ofsentencing set out in s. 718 and following of the Criminal Code. [5] We agree with the Quebec Court of Appeal (2011 QCCA 900 ) that the trial judge erred in this regard: seeR. v.

Craig, 2009 SCC 23, [2009] 1 S.C.R. 762, at para. 13. [6] Unlike the Court of Appeal, however, and with the greatest of respect, we believe that the trial judge’s error is fatalto his conclusion.

[ 7 ] Moreover, on the record as we have it, we are not satisfied that the impact of the order of forfeiture sought by the Crown was “disproportionate”, within the meaning of s. 490.41(3) of the Criminal Code . In concluding otherwise, the trial judge erroneously emphasized Mr. Manning’s personal circumstances and failed to give appropriate weight, as required by s. 490.41(3) , to Mr.

Manning’s criminal record, including five convictions for alcohol-related driving offences and three for breaches of probation orders or undertakings. [ 8 ] Accordingly, we would allow the appeal and grant the order of forfeiture sought by the Crown. Appeal allowed. Solicitor for the appellant: Poursuites criminelles et pénales du Québec, Baie-Comeau, Quebec. Solicitor for the respondent: Patrick Jacques, Beaupré, Quebec. Solicitor for the intervener the Director of Public Prosecutions of Canada: Public Prosecution Service of Canada, Ottawa.

Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto. Solicitors for the intervener the Canadian Civil Liberties Association: Blake, Cassels & Graydon, Toronto. Solicitors for the intervener the British Columbia Civil Liberties Association: Irving Mitchell Kalichman, Montréal.