2012 QCCQ 16873, 2012 QCCQ 16873

Unofficial English Translation Directeur des poursuites criminelles et pénales c. Larouche 2012 QCCQ 16873 JP2098 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF SAINT-HYACINTHE LOCALITY OF SAINT-HYACINTHE "Criminal and Penal Division" No.: 750-01-039617-129 750-01-039618-127 750-01-039619-125 DATE: November 30, 2012 ______________________________________________________________________ THE HONOURABLE SUZANNE PARADIS, J.C.Q., PRESIDING ______________________________________________________________________ DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS Applicant v.

SYLVAIN LAROUCHE Respondent ______________________________________________________________________ RULING ON AN APPLICATION FOR AN ORDER OF FORFEITURE OF OFFENCE-RELATED PROPERTY (section 490.1 Criminal Code ) ______________________________________________________________________ [ 1 ] On September 18, 2012, the respondent pleaded guilty to having, on August 28, 2012: (

a) fraudulently personated another person, living or dead, to wit, one Michel St-Amand Jr., with intent to gain advantage for himself, thereby committing the offence set out under section 403(1) ( a )(3)(

a) of the Criminal Code ; (

b) operated a motor vehicle while disqualified from doing so, thereby committing the offence set out under section 259(4) (

a) of the Criminal Code ; (

c) while subject to a probation order in case 450-01-074526-125, failed or refused to comply with that order by failing to keep the peace and be of good behaviour, thereby committing the offence set out under

section 733.1(1) (

a) of the Criminal Code . [ 2 ] On September 18, 2012, counsel for both the applicant and the respondent presented their submissions on sentencing. [ 3 ] The Court imposed the following sentence on the respondent: - on the count of operating a motor vehicle while disqualified from doing so: incarceration for 60 days less 21 days of pre-sentencing custody; - on the count of fraudulently personating another person, living or dead: incarceration for 15 days to be served consecutively; - on the count of having failed or refused to comply with a probation order: incarceration for 15 days to be served consecutively; - an order prohibiting him from driving any motor vehicle for a period of 3 years. [ 4 ] It was then that counsel for the applicant presented the Court with an application for an order of forfeiture respecting the respondent's car as offence-related property, in accordance with the provisions of

section 490 of the Criminal Code . THE FACTS AT ISSUE

[ 5 ] On the afternoon of Tuesday, August 28, 2012, police officers intercepted the respondent behind the wheel of a vehicle while driving on a public road. [ 6 ] The officers noted that the respondent had three orders prohibiting him from operating a motor vehicle. [ 7 ] Furthermore, the respondent fraudulently personated another person to avoid having the police officers realize that he was in breach of probation. [ 8 ] On September 6, 2012, following the issuance of a search warrant, the police officers seized the vehicle used during the commission of offences, an Audi Q5, 2012, registration number ..., serial number WA1MKCFP7CA062215. [ 9 ] The applicant served a notice of intention to seek the forfeiture of the automobile at issue. [ 10 ] Counsel for the applicant listed the respondent's prior offences, which the respondent admitted, and which break down as follows: (

a) October 2010, file 405-01-025659-102 [ 11 ] In October of 2010, charges were laid against the respondent. He pleaded guilty to the count of operating an automobile after having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood. [ 12 ] His blood alcohol concentration exceeded 160 mg of alcohol in 100 ml of blood. Sentencing, which took place on March 23, 2012, imposed a prohibition from operating a motor vehicle for one year. (

b) June 2011, file 750-01-036205-118 [ 13 ] The respondent pleaded guilty to having operated a motor vehicle after having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood, pursuant to paragraph 253(1)( b ). [ 14 ] Sentencing, which took place on May 30, 2012, prohibited the respondent from operating a motor vehicle for three years. (

c) February 2012, file 450-01-074526-125 [ 15 ] Charges were laid against the respondent under paragraph 253(1)(

b) for operating a motor vehicle after having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood. [ 16 ] His blood alcohol level exceeded 160 mg of alcohol in 100 ml of blood. Sentencing, which took place on March 13, 2012, prohibited the respondent from operating a motor vehicle for three years. (

d) June 2012, file 405-01-028635-125 [ 17 ] Charges were laid against the respondent on three counts, including: - paragraph 403( a ), identity fraud; - paragraph 129( a )( e ), obstructing a peace officer in the execution of his duties; - paragraph 259(04)( b ), that is, driving while disqualified. [ 18 ] The offence occurred on April 20, 2012, and the case is still pending. [ 19 ] The Court notes that in a very short time frame, the respondent has been convicted of breaching three orders prohibiting him from operating a motor vehicle.

ISSUE IN DISPUTE [ 20 ] Faced with the evidence that the seized motor vehicle was used by the respondent in committing the alleged criminal acts, his counsel admitted that the seized vehicle was indeed offence-related property within the meaning of

section 2 of the Criminal Code . [ 21 ] The only issue in dispute is whether forfeiture would be a disproportionate measure. ANALYSIS [ 22 ] Before sentencing, counsel for the applicant declared his intention of having the Court rule on the issue respecting the offence- related property. [ 23 ] Subsection 490.41(3) of the Criminal Code establishes the grounds for the exception to the forfeiture rule:

Section 490.41(3) "Non-forfeiture of property" 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) 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. [ 24 ] At the outset, this Court applies the rule that has been well-established by the Court of Appeal, whereby sentencing and ruling

on the application for an order of forfeiture are two stages of the trial that are neither related nor interdependent and must remain separate from each other. [1] [ 25 ] It is trite law that the Court must separate the ruling on sentencing from that on forfeiture, avoiding any interaction between processes. [2] [ 26 ] Here is the principle established by the Court of Appeal in R. v. Neault : [3] In my opinion, the wording chosen by Parliament still gives the judge a broad discretion when ruling on an application for a forfeiture order.

The judge can refuse if the court “is satisfied that the impact of an order of forfeiture… would be disproportionate to…”. 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. While the law specifies the factors for assessing the offence, it is silent on the consequences that should be considered and how to assess them.

In my opinion, relevant factors to consider include whether the property is superfluous, useful or necessary based on its customary usage; whether the property is of little or great value intrinsically and in the case at bar; whether the property is used for basic needs, to obtain provisions, or for personal care; whether the property is used for recreation or for work; and whether the property helps perform family or social obligations. [ 27 ] The Court will analyze the three factors stated in subsection 490.41(3) : (

A) NATURE AND GRAVITY OF THE OFFENCES [ 28 ] Impaired driving is a scourge with significant social repercussions. The higher the blood alcohol level, the more serious the offence is. [ 29 ] The offence charged is punishable by a maximum prison sentence of five years.

Parliament has indicated the gravity of this type of offence by imposing minimum prison sentences in matters involving impaired driving. [ 30 ] The respondent has been convicted three times of operating a motor vehicle while his blood alcohol level exceeded 80 mg of alcohol in 100 ml of blood, including twice where his blood alcohol level exceeded 160 mg alcohol in 100 ml of blood.

The respondent has also been convicted three times of breaching orders prohibiting him from operating a motor vehicle. [ 31 ] An order prohibiting the operation of a motor vehicle in three different judicial districts in the same year was imposed for the offences committed in 2010, 2011, and 2012. During the prohibition, this conduct is an indictable offence and also punishable by a maximum prison sentence of five years. [ 32 ] There is no doubt that the first criterion respecting the nature and gravity of the offence has been met in the present case. (

B) CIRCUMSTANCES SURROUNDING THE COMMISSION [ 33 ] When the respondent drove on a Tuesday afternoon in August of 2012, he knew of the three driving prohibitions ordered on March 13, 2012, March 23, 2012, and May 30, 2012. [ 34 ] The informations laid in respect of the offences committed are from October of 2012, June of 2011, and February of 2012. [ 35 ] On December 27, 2011, the respondent, aware that his situation respecting his criminal record was precarious, purchased a 2012 Audi Q5 for $65,000.

He paid $25,000 in cash and still owes an outstanding balance of $39,696.02 to VW Credit Canada Inc., which has reserved ownership of the vehicle until it is paid off. [ 36 ] The respondent has made equal and consecutive monthly payments of $805.47 since January 27, 2012. [ 37 ] The respondent works on a farm as a day labourer. [ 38 ] When the police officers intercepted him, he fraudulently personated another person to avoid the consequences of his actions. [ 39 ] Furthermore, when he was arrested behind the wheel of his new 2012 Audi, during his lunch hour on a Tuesday, there was no emergency justifying his use of the vehicle in any way whatsoever. (

C) IMPACT OF THE FORFEITURE (

i) Description [ 40 ] It is a luxury vehicle paid for in part by the respondent after receiving an indemnity from his insurers following an accident he had with the vehicle he had prior to purchasing his new 2012 Audi. [ 41 ] He is the sole owner of this vehicle, which is subject to a legal lien by VW Credit Canada Inc.

[ 42 ] The vendor reserves the ownership of the vehicle until it is entirely paid off, and assigns all of its rights to VW Credit Canada Inc. (ii) Financial situation [ 43 ] He lives alone as a boarder. He states that he does not need a car to go to work since his employer is about two kilometres from his home and he can walk there or carpool. [ 44 ] He is capable of supporting himself financially, all the more so since he no longer has to make the $805.47 monthly payments for the Audi. [ 45 ] He has had the same job for some time. (iii) Age and health of the respondent [ 46 ] He is 36 years old.

He has a good job. Absent evidence to the contrary, he appears to be in excellent health. (iv) Living conditions [ 47 ] As mentioned above, the respondent lives alone and the evidence does not indicate that he has any financial obligations. [ 48 ] The Court has not been made aware of the respondent's financial situation, in terms of either his assets or his liabilities. [ 49 ] The respondent wishes to sell the Audi himself to obtain the best possible price and thus minimize the loss on his investment.

He fears that VW Credit Canada Inc. will sell the car for a lower price at auction. [ 50 ] Counsel for the respondent did not present any evidence of the necessity of keeping the car. [ 51 ] His argument stems from the desire to minimize the loss of the respondent's investment should the car be sold at auction by the finance company. [ 52 ] Overall, the defence's evidence and theory maintaining that the forfeiture is disproportionate is based on the risk that the respondent might sustain a financial loss. [ 53 ] The particular facts and set of circumstances of the respondent's criminal record show that he has not complied with any of the orders rendered by the Court, revealing the respondent’s flagrant contempt for the law. [ 54 ] The Court takes into account the fact that this is his first conviction following the offence of driving while disqualified. [ 55 ] The very fact, however, that he bought a luxury vehicle and drove on public roads on a Tuesday during his lunch hour attests to his carelessness and disregard for the law. . [ 56 ] By weighing the facts relating to the consequences of forfeiture, the Court finds that the respondent has not shown that forfeiture would be disproportionate with respect to the criteria stated in subsection 490.31(3) of the Criminal Code .

It is not exaggerated, disproportionate, or excessive. [ 57 ] The value of the vehicle by itself does not make the forfeiture disproportionate in light of the fact that the respondent, by his own admission, will not suffer any harm by not having a vehicle to drive and because the circumstances of the perpetration justify the forfeiture. [ 58 ] For all of these reasons, the Court, using the definition of the concept of "disproportionate" expressed by the Court of Appeal, [4] finds that the respondent has not demonstrated that the forfeiture is disproportionate.

On the contrary, the evidence shows that this measure is necessary and justified in the circumstances. FOR THESE REASONS, THE COURT: ORDERS that the 2012 model Audi Q5, registration number ..., serial number WA1MKCFP7CA062215, be forfeited to the Attorney General of Quebec, who becomes its one and only owner for the purpose of disposing of it according to the instructions of the Director of Criminal and Penal Prosecutions (DCPP), the whole in accordance with the law. __________________________________ SUZANNE PARADIS, J.C.Q.

Mtre Miguel Mpetsi Lemelin Counsel for Respondent Mtre Marie-Claude Morin Counsel for the applicant

Date of hearing: November 30, 2012