2020 QCCA 665, 2020 QCCA 665

Unofficial English Translation of the Judgment of the Court Vellone c. R. 2020 QCCA 665 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL Nos.: 500-10-007102-195 (500-38-017719-138) DATE: MAY 25, 2020 CORAM: THE HONOURABLE JACQUES J. LEVESQUE, J.A. MARIE-JOSÉE HOGUE, J.A. STÉPHANE SANSFAÇON, J.A. ROBERTO VELLONE APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT [ 1 ] The appellant appeals from an order of forfeiture of offence-related property rendered on May 22, 2019, by the Honourable Anne-Marie Lanctôt of the Court of Quebec, Criminal and Penal Division, District of Montreal. [ 2 ] For the reasons of Sansfaçon J.A., with which Levesque and Hogue JJ. A. agree, THE COURT: [ 3 ] DISMISSES the appeal. JACQUES J. LEVESQUE, J.A. MARIE-JOSÉE HOGUE, J.A. STÉPHANE SANSFAÇON, J.A.

Mtre Véronique Robert-Blanchard Roy Robert For the appellant Mtre Jean-Christofe Ardeneus Director of criminal and penal prosecutions For the respondent Date of hearing: February 25, 2020

REASONS OF SANSFAÇON, J.A. [ 4 ] The appellant appeals from an order of forfeiture of offence-related property rendered on May 22, 2019, by the Honourable Anne-Marie Lanctôt of the Court of Quebec, Criminal and Penal Division, District of Montreal. [1] [ 5 ] The appellant was arrested in his vehicle on May 1, 2013, for possession of prohibited substances contrary to ss. 5(2) and (3) (

a) of the Controlled Drugs and Substances Act (“ CDSA ”), thereby committing the indictable offence under ss. 5(2) and (3) (

a) of the CDSA . [2] After obtaining a search warrant, the police searched his residence where they found and seized 253 grams of cocaine, a restricted firearm, $110,904, and US$300. The appellant was then charged with the following counts: • Trafficking in a substance included in

Schedule I or represented or held out to be such a substance, thereby committing the indictable offence under ss. 5(1) and (3) (

a) of the CDSA ; • Possession for the purpose of trafficking of a substance included in

Schedule I, thereby committing the indictable offence under ss. 5(2) and (3) (

a) of the CDSA ; • Possession for the purpose of trafficking hashish, thereby committing the indictable offence under ss. 5(2) and (3) ( a.1 ) of the CDSA ; • Possession for the purpose of trafficking cannabis, thereby committing the indictable offence under ss. 5(2) and (3) ( a.1 ) of the CDSA ; • Possession for the purpose of trafficking of a substance included in

Schedule I, thereby committing the indictable offence under ss. 5(2) and (3) (

a) of the CDSA ; • Possession of a firearm (.44 caliber) without being the holder of a licence under which the person may possess it and a registration certificate for it, thereby committing the indictable offence under ss. 91(1) and (3) (

a) of the Criminal Code ; • Possession of a loaded restricted firearm without being the holder of an authorization or a licence under which the person may possess the firearm and the registration certificate, thereby committing the indictable offence under s. 95(2) (

a) of the Criminal Code ; • Possession of a firearm (.44 caliber) knowing that the serial number on it has been altered, defaced, or removed, thereby committing the indictable offence under s. 108(1) ( b )(2)(

a) of the Criminal Code ; • Possession of a firearm (.44 caliber) while prohibited from doing so, thereby committing the indictable offence under ss. 117.01(1) and (3) (

a) of the Criminal Code . [ 6 ] A judge issued a restraint order concerning the residence under s. 14 et seq. of the CDSA . [3] [ 7 ] The appellant presented an application during his trial to exclude the evidence of the money, the firearm, and the drugs found concealed in various places in his residence, based on ss. 7 , 8 , and 24 of the Canadian Charter . [4] The judge ruled on that application and found that the grounds on which the telewarrant was issued were insufficient and that the appellant’s right to be secure against unreasonable search or seizure under s. 8 of the Canadian Charter had been infringed.

As a remedy, the judge excluded this evidence at trial because it would bring the administration of justice into disrepute within the meaning of s. 24(2) of the Canadian Charter . She therefore ordered it excluded such that the appellant was acquitted of all charges, except for the one relating to the offence for which he had been arrested in his car (possession for the purpose of trafficking a substance included in

Schedule I, thereby committing the indictable offence under ss. 5(2) and (3) (

a) CDSA , to which he pleaded guilty. [ 8 ] The respondent then filed an application for forfeiture of the firearm, the money, and the appellant’s residence where they were concealed, in accordance with s. 16(1) and, in the alternative, s. 16(2) CDSA : Forfeiture of property Confiscation 16

(1) Subject to sections 18 to 19.1, if a person is convicted, or discharged under

section 730 of the Criminal Code , of a designated substance offence and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that non-chemical offence-related property is related to the commission of the offence, the court shall 16

(1) Sous réserve des articles 18 à 19.1 et sur demande du procureur général, le tribunal qui condamne une personne pour une infraction désignée ou l’en absout en vertu de l’

article 730 du Code criminel et qui est convaincu, selon la prépondérance des probabilités, que des biens infractionnels non-chimiques sont liés à la perpétration de cette infraction ordonne qu’ils soient confisqués au profit : (

a) if 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 to be disposed of or otherwise dealt with in accordance with the law by the Attorney General or Solicitor General of that province; and

a) soit de Sa Majesté du chef de la province où les procédures relatives à l’infraction ont été engagées, si elles l’ont été à la demande du gouvernement de cette province et menées par ce dernier ou en son nom, pour que le procureur général ou le solliciteur général de la province en dispose conformément au droit applicable;

(

b) in any other case, order that the property be forfeited to Her Majesty in right of Canada to be disposed of or otherwise dealt with in accordance with the law by the member of the Queen’s Privy Council for Canada that is designated by the Governor in Council for the purposes of this paragraph.

b) soit de Sa Majesté du chef du Canada pour que le membre du Conseil privé de la Reine pour le Canada chargé par le gouverneur en conseil de l’application du présent alinéa en dispose conformément au droit applicable, dans tout autre cas. Property related to other offences Biens liés à d’autres infractions

(2) Subject to sections 18 to 19.1, if the evidence does not establish to the satisfaction of the court that property in respect of which an order of forfeiture would otherwise be made under subsection (1) is related to the commission of the designated substance offence of which a person is convicted or discharged, but the court is satisfied, beyond a reasonable doubt, that the property is non-chemical offence-related property, the court may make an order of forfeiture under subsection (1) in relation to that property.

(2) Sous réserve des articles 18 à 19.1, le tribunal peut rendre une ordonnance de confiscation aux termes du paragraphe (1) à l’égard de biens dont il n’est pas convaincu qu’ils sont liés à la perpétration de l’infraction désignée pour laquelle la personne a été condamnée — ou à l’égard de laquelle elle a été absoute — s’il est convaincu, hors de tout doute raisonnable, qu’il s’agit de biens infractionnels non-chimiques. Property outside Canada Biens à l’étranger

(2.1) An order may be issued under this

section in respect of property situated outside Canada, with any modifications that the circumstances require.

(2.1) Les ordonnances visées au présent

article peuvent être rendues à l’égard de biens situés à l’étranger, avec les adaptations nécessaires. Appeal Appel

(3) A person who has been convicted or discharged of a designated substance offence or the Attorney General may appeal to the court of appeal from an order or a failure to make an order under subsection (1) as if the appeal were an appeal against the sentence imposed on the person in respect of the offence.

(3) La personne qui a été condamnée pour une infraction désignée ou en a été absoute peut, de même que le procureur général, interjeter appel devant la cour d’appel de l’ordonnance rendue aux termes du paragraphe (1) ou de la décision du tribunal de ne pas rendre une telle ordonnance, comme s’il s’agissait d’un appel interjeté à l’encontre de la peine infligée à la personne relativement à l’infraction désignée en cause. [ 9 ] The appellant agreed to forfeit the firearm and the money but objected to, through an application to dismiss, the forfeiture of his residence.

The judge granted the Crown’s motion and ordered 50% of the property’s value to be forfeited. The appeal concerns only the order of forfeiture of the residence. * * * [ 10 ] The trial judge held that a judgment rendered during a criminal trial establishing that an accused’s rights were infringed and ordering evidence excluded does not necessarily mean that the same evidence should be excluded at a subsequent hearing to determine whether the property concerned should be forfeited under s. 16 CDSA .

The judge analyzed the doctrine and the case law on forfeiture of proceeds of crime and offence-related property under ss. 462.3, 462.37, and 490 Cr. C. , and noted the similarity between both the wording and objectives of these provisions and s. 16 CDSA . She acknowledged that the appellant could also raise the Canadian Charter during the application for forfeiture, as at trial, but that the analysis of the relevant criteria might lead to a different result from the one obtained during the criminal trial given that the factors to exclude the evidence are likely to be balanced differently.

The judge applied that approach to this case and found that the balancing of the criteria of s. 24(2) of the Canadian Charter weighed against excluding the evidence that had been excluded at the criminal trial. [ 11 ] The judge then analyzed the conditions for applying s. 16 CDSA . First, she found that s. 16(1) CDSA did not apply because the offence-related property (the appellant’s residence) was not related to the offence for which the appellant pleaded guilty, a condition of that subsection.

She then analyzed the conditions for applying s. 16(2) CDSA and found that the evidence proved beyond a reasonable doubt that the offence-related property was used to store and conceal the illegal substances as well as the proceeds from the appellant’s illicit activities. The judge also appeared to take into account the appellant’s prior record in similar matters – even though it went back 10 years – as a contributing factor to this finding (she referred to it only later in her judgment during the proportionality analysis), as well as the evidence that drugs were seized in this same residence in 2004.

The judge therefore concluded that because the appellant had been convicted of a designated substance offence and because the evidence proved beyond a reasonable doubt that the property in the forfeiture application was property “used in any manner in connection with the commission of a designated substance offence”, it is offence-related property subject to forfeiture. [ 12 ] Last, the judge exercised her discretion under s. 19.1(3) CDSA and found that the complete forfeiture of the property would be disproportionate, and ordered instead forfeiture of 50% of its value. * * * [ 13 ] The appellant raises five grounds that overlap and intersect.

It is appropriate to rephrase them as follows: - Did the judge err in law by conducting anew the analysis of the exclusion of the evidence under s. 24(2) of the Canadian Charter

and relying on the law on the proceeds of crime? - Did the judge err in law by relying on the evidence collected during two searches conducted in 2004 and on the appellant’s criminal record to characterize the residence as offence-related property? - Did the judge make a reviewable error in her analysis and in the exercise of her discretion under the CDSA ? * * * [ 14 ] Both the Criminal Code , at s. 490.1, and the CDSA , at s. 16 , create a forfeiture scheme for property related, in any of the manners set out therein, to a criminal offence.

In this case, because the appellant was convicted of a designated substance offence under the CDSA , the respondent relied on the scheme set out in s. 16 et seq. CDSA and used by the judge as the basis to order the forfeiture of the appellant’s residence. [ 15 ] This scheme covers two situations.

The first situation is under s. 16(1) CDSA and allows the Attorney General to apply to the court that convicts a person of a designated substance offence under that law to order that the offence-related property (other than the substances listed in one of the schedules to the CDSA ) be forfeited, [5] provided the court is satisfied, on a balance of probabilities, that the offence-related property is related to the commission of the offence . [ 16 ] The second situation is under s. 16(2) and allows the Attorney General to apply to the court that convicts a person of a designated substance offence under that law to order that property it is not satisfied is related to the commission of the designated substance offence of which a person is convicted be forfeited, provided the court is satisfied beyond a reasonable doubt that it is offence-related property. [ 17 ] The expression “offence-related property” is defined in the first

section of the CDSA and essentially covers 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”. [ 18 ] Section 16(1) CDSA allows the court to order the forfeiture to the state of any offence-related property related to the commission of the designated substance offence of which it convicts the accused.

Section 16(2), however, allows the court to order the forfeiture of offence-related property when a person is convicted of a designated substance offence under the CDSA , even if the property is not related to the commission of the designated substance offence of which the person is convicted. [ 19 ] In the first case, because the offence-related property served or was used, etc., in the commission of the offence of which the person is convicted, the burden of proving that the property served or was used in that way is not as heavy, i.e., “on a balance of probabilities”, as in s. 16(2).

In the latter case, the legislature requires proof “beyond a reasonable doubt” that the offence-related property for which forfeiture is sought served or was used, etc., in the commission of another designated offence other than the one of which the person is convicted. Therefore, in the second case, the offence-related property does not have to be related to the offence of which the person is convicted (or discharged according to s. 730 Cr. C. ).

Proof beyond a reasonable doubt that the property by means of or in respect of which a designated substance offence was committed or that was used in any manner in connection with the commission of a designated substance offence, or that was intended for use for such purpose, suffices. [6] [ 20 ] In this case, the judge found that the first condition of s. 16(2) CDSA was satisfied because the appellant pleaded guilty to a charge of possession of cocaine for the purpose of trafficking, a designated substance offence under the CDSA . [ 21 ] As for the second condition of that subsection, in the context of the application for forfeiture the parties filed a list of admissions establishing that the above-mentioned substances and money concealed in various locations in different rooms and floors of the residence concerned were seized during the search conducted on May 1, 2013.

It was also admitted that 10 years earlier, on September 29, 2004, this same residence belonged to the appellant and was used to conceal $9,160, US$2,417, and 63.3 grams of cocaine inside and outside the house, and that at the time the appellant had pleaded guilty to a charge of possession for the purpose of trafficking.

However, no application for forfeiture was presented. [ 22 ] The judge thus found that the evidence proved beyond a reasonable doubt that the appellant’s residence was used in 2013 (and at the same time noted the 2004 seizure) to store and conceal illegal substances (cocaine), and that the residence therefore constituted offence-related property.

Because the second condition of s. 16(2) CDSA was thus also satisfied, the judge ordered the residence to be forfeited. * * * [ 23 ] The appellant challenges this last finding that the evidence proved that his residence was used in 2013 and in 2004 to hide CDSA - designated substances and money, and is therefore offence-related property within the meaning of the CDSA .

More specifically, the appellant contests the admissibility of the evidence on the presence of these substances and money in 2013 because this evidence was already ruled inadmissible at the trial stage, which exclusion led to his acquittal on all counts that depended on this evidence.

I note that, if that evidence is admitted, the appellant does not challenge the judge’s finding that the presence of that property leads to the conclusion that the residence is offence-related property because it was used to hide the substances concealed in it. [ 24 ] The appellant submits that the judge could not take into account the evidence collected in 2004 from his residence, which was not excluded at the time, to find that his residence is offence-related property because that event happened too long ago. * * * [ 25 ] The first ground therefore concerns the correctness of the judge’s decision to admit during the application for forfeiture evidence

previously ruled inadmissible at trial. [ 26 ] First, it is important to recall that the illegality of a search that infringes the rights protected by s. 8 of the Canadian Charter may be raised during an application for forfeiture and the evidence collected during that search excluded. [ 27 ] In R. v. Daley , [7] the Court of Appeal of Alberta had to determine the legality of the search of the accused at the time of his arrest and the admissibility in evidence of the money seized.

Contrary to this case, no criminal charges were brought against the accused and there was therefore no earlier judgment on the legality of the search. The Crown presented an application for forfeiture of the money seized under s. 490 Cr. C . (forfeiture of proceeds of crime). The application was contested by the litigant, who argued that the arrest and seizure were unlawful and asked that the evidence seized at the time be excluded as a remedy under s. 24(2) of the Canadian Charter .

The Court of Appeal concluded that the litigant could claim that his rights under s. 8 of the Canadian Charter had been infringed to try and have the evidence seized excluded.

However, the Court of Appeal stated that because the application sought the forfeiture of property and not the criminal conviction of an accused, the weight to be given to each of the criteria during the analysis can lead to a different result than if they had been analyzed during a criminal trial: “The notion of self-incriminating or conscriptive evidence makes little sense in this proceeding where there are no charges, no accused and no risk of conviction”. [8] The Court of Appeal based its reasoning on the criteria developed by the Supreme Court of Canada in R. v.

Collins [9] and on the idea that returning the fruits of their crimes to criminals would offend the public interest and Parliament’s intention underpinning the proceeds of crime forfeiture scheme. [ 28 ] I conclude from that judgment that given that an application for forfeiture of property tainted by criminality has a distinct purpose and consequences for the accused that differ significantly from those faced during a criminal trial, the analysis of the factors to exclude the evidence under s. 24(2) of the Canadian Charter can lead to a different result depending on the analytical context. [ 29 ] In this case, and contrary to the circumstances in Daley , the appellant initially faced criminal charges of which he was acquitted following a judgment that declared the search unlawful and the evidence gathered inadmissible.

The question now is whether, in these circumstances, the appellant can raise that first judgment against the Crown. [ 30 ] Generally speaking, orders to exclude evidence under s. 24(2) Canadian Charter rendered in the same proceeding are final [10] for reasons of principle and of practice to avoid prejudice to the accused. [11] [ 31 ] However, in R. v. Calder , [12] the ratio decidendi of which was recently reconsidered, [13] the Supreme Court held that in very limited circumstances, a material change of circumstances may justify a review under s. 24(2) of the Canadian Charter within the same proceeding.

Writing on behalf of the majority of the Supreme Court, Sopinka J. found that “any order relating to the conduct of a trial can be varied or revoked if the circumstances that were present at the time the order was made have materially changed. In order to be material, the change must relate to a matter that justified the making of the order in the first place”. [14] In concurring reasons, La Forest J. even said that he found it difficult to imagine any special circumstances to which Sopinka J. refers. [15] In R. v.

Cook , [16] the Supreme Court reaffirmed the Calder principle but did not clarify the nature of the special circumstances contemplated by Sopinka J. It nonetheless affirmed that “those circumstances would be very rare indeed”. [17] [ 32 ] These Calder rules only apply, however, to a request to revisit an order rendered during the same proceeding, that is, during the same trial and regarding the same charges likely to result in the same serious consequences for the accused.

Here, the evidence was excluded at the criminal trial, whereas the forfeiture application is presented in the completely different context of an application for forfeiture of offence-related property related to the facts contemplated by the criminal charges, filed after the verdict and sanction. [18] [ 33 ] What happens when an order to exclude evidence is rendered during a criminal trial and the Crown wants to file the evidence during a second proceeding? Does the order have an effect beyond the first trial?

More specifically, does an order to exclude evidence rendered during the criminal proceeding as a remedy for an infringement of rights protected by s. 8 of the Canadian Charter give rise to the application of issue estoppel to a request to present this same evidence during a subsequent proceeding for forfeiture of offence- related property under s. 16(2) CDSA ? [ 34 ] In Canadian criminal law, the doctrine of issue estoppel concerns an issue decided in a previous proceeding that is raised again in a subsequent proceeding. In R. v.

Mahalingan , [19] the Supreme Court stated that this doctrine serves three purposes integral to a fair criminal justice system: (1) fairness to the accused who should not be called upon to answer questions already determined in his or her favour, (2) the integrity and coherence of the criminal law; and (3) the institutional values of judicial finality and economy. On behalf of the majority, the Chief Justice wrote: [47] ... Issue estoppel remains a useful and, indeed, necessary part of our criminal law system.

A simple, clear rule is required to prevent issues established in one criminal proceeding from being relitigated in a subsequent proceeding . All would agree that an accused should not be required to defend himself against the same allegations twice; that inconsistent findings on matters of fact are abhorrent to the criminal law; and that finality and economy are important institutional values in the administration of justice.

Adequate protection of these goals requires, at a minimum, a rule that issues determined in one criminal trial cannot be relitigated in a subsequent criminal trial . [Emphasis added.] [ 35 ] This doctrine therefore operates to prevent “the Crown from relitigating an issue that has been determined in the accused’s favour in a prior criminal proceeding, whether on the basis of a positive finding or reasonable doubt”. [20] [ 36 ] The Supreme Court stated that certain preconditions must be met for the doctrine to apply.

First, the issue for which an accused wishes to raise the doctrine was or must necessarily have been resolved in the accused’s favour in the earlier proceeding. [21] Second, the decision resolving the issue must have been final. [22] Third and last, the parties must be the same in both proceedings. [ 37 ] With respect to the first condition, the Court explained: The first requirement for a claim of issue estoppel is that the issue has been decided in a prior proceeding.

This requires the court in the second trial to decide whether the issue the Crown is seeking to prove is the same as an issue resolved in the accused’s favour in a prior

criminal proceeding. The onus of establishing this is on the accused who seeks to bar proof of the issue alleged to have already beenresolved. To establish this, the accused must show that the question was or must necessarily have been resolved on the merits in theaccused’s favour in the earlier proceeding. It is not enough to show that the evidence was led in the earlier proceeding and an acquittalentered. It must be a necessary inference from the trial judge’s findings or from the fact of the acquittal that the issue was in fact resolvedin the accused’s favour.

This approach is consistent with how the requirement is applied in civil cases. It should be remembered that weare not dealing with res judicata which focuses on the fact of acquittal, but on issue estoppel — whether a particular issue has alreadybeen resolved in favour of the accused. [Emphasis added.] [38] Thus, there is no doubt that this rule prohibits an identical issue that has been finally decided in an earlier criminal proceedingfrom being relitigated at a criminal trial. [39] What if the same issue is raised not during a second criminal proceeding, but during a different type of case?

In Mahalingan, themajority indirectly addressed this question during the analysis of the third requirement of the estoppel doctrine: [56] The third requirement of issue estoppel is mutuality — that the parties to the two proceedings at issue are the same. Where issueestoppel is raised by the accused against the Crown, it is in complete harmony with other criminal law principles. If the second trial is acriminal proceeding, the parties are always the same — the Crown and the particular accused person.

Allowing the accused to claimissue estoppel as to matters resolved in the accused’s favour at the first trial poses no problems. If the second trial is not a criminalproceeding but an administrative proceeding, mutuality will not be met and the accused will not be able to raise a prior finding in hisfavour by way of issue estoppel: Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63 . The same wouldappear to apply at a subsequent tort trial based on the same events as a prior criminal trial where the accused was convicted.

None ofthese results distort or strain the criminal law.[23] [Emphasis added.] [40] In my opinion, Mahalingan does not specifically answer the parties’ situation but provides the tools needed for its resolution. [41] First, although the application for forfeiture of offence-related property is presented here during a criminal case, both the natureof the forfeiture application and its potential consequences for the appellant make it more akin to a civil proceeding rather than a criminalone.

It is true that in this case, the residence to be forfeited belongs to the appellant who was the accused in the criminal proceedings thatpreceded the application for forfeiture of offence-related property, but this residence could just as well have belonged to a third partynever charged with a crime. As will be seen below, the primary purpose of forfeiture of offence-related property is to remove it fromcirculation, not to sanction the perpetrator.

Moreover, contrary to the proceeding in which he was a defendant faced with criminalcharges, with the application for forfeiture, the appellant is not at risk of being fined or losing his liberty through imprisonment or evenbeing encumbered with a criminal record along with its associated stigmas. [42] It is not, however, necessary to characterize the nature of the proceeding for forfeiture of offence-related property to determinewhether issue estoppel applies here.

It instead seems to me that the issue raised during the forfeiture application is different, although itappears identical, to the issue resolved during the criminal trial. I will explain. [43] Section 24(1) of the Canadian Charter states that anyone whose rights or freedoms, as guaranteed by the Charter, have beeninfringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just inthe circumstances.

Therefore, the analysis to determine whether evidence should be excluded will be conducted only after it has beenestablished that a protected right has been infringed. [44] In this case, the appellant argued at the criminal trial that his rights protected under s. 8 of the Canadian Charter were infringed.That issue before the trial judge is identical to the one before the judge during the application for forfeiture of offence-related property.The proof that the appellant’s rights were infringed is the same in every respect, regardless of the context in which it is presented.

Thefacts and circumstances surrounding the search remain objectively invariable, as do the criteria applicable to determining whether hisrights were infringed and the resulting analysis. The doctrine of issue estoppel applies here to the finding that the appellant’s rights wereinfringed. [45] The same cannot automatically be said of the order to exclude evidence.

A person who asks that evidence unlawfully obtained beexcluded as a remedy for the denial of his or her rights must establish, and the court must be satisfied, that “having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute” (s. 24(2)).

The analysis ofthe applicable criteria must necessarily consider the context in which the Crown wishes to present the unlawfully seized evidence, whichincludes the consequences of its admission or exclusion on the applicant and the interest of society. [46] Once it has been established that rights protected under s. 8 of the Canadian Charter have been infringed, the court moves on tothe second step and analyzes the criteria developed by the Supreme Court to determine whether the evidence should be excluded under s.24(2) of the Canadian Charter.

If the proceeding is criminal, like the one in which the evidence was previously excluded, the issue of itsadmissibility will be considered identical and the Crown will therefore be estopped from presenting it again. Otherwise, the questionposed may be characterized as different and the Crown may ask the Court to reassess the criteria of s. 24(2) of the Canadian Charter.Therefore, the same infringement may result in the evidence being admitted or excluded depending on the result of the analysis of therelevant analytical criteria. [47] This was the trial judge’s approach.

She did not question her conclusion at the criminal trial that the search infringed theappellant’s rights protected under s. 8 of the Canadian Charter: the appellant’s rights were not less infringed because the Crown nowwishes to prove, in the context of an application for forfeiture of offence-related property, that the seized property was concealed therein. [48] The judge then moved on to the second step of her analysis, the criteria to exclude the evidence under s. 24(2) of the CanadianCharter.

She found that because the circumstances of the forfeiture application were different from those that existed at the criminal

trial, she could reassess the criteria to exclude the evidence as a sanction for the unlawful conduct, an assessment that led her to concludethat the evidence was admissible. [49] I find that the judge was right to conclude as such and that the first ground raised by the appellant must fail because the doctrineof issue estoppel does not apply here. [50] In R. v. Grant,[24] a majority of the Supreme Court judges revisited the approach developed in R. v. Collins[25] and repositionedthe criteria to be analyzed to determine the consequences of an infringement of rights protected under s. 8 of the Canadian Charter.

Now,when faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence onsociety’s confidence in the justice system having regard to three primary criteria: (1) the seriousness of the Charter-infringing stateconduct, (2) the impact of the breach on the Charter-protected interests of the accused, and (3) society’s interest in the adjudication ofthe case on its merits. With respect to the third requirement, the judges wrote: [79] Society generally expects that a criminal allegation will be adjudicated on its merits.

Accordingly, the third line of inquiry relevantto the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of theevidence, or by its exclusion. This inquiry reflects society’s “collective interest in ensuring that those who transgress the law are broughtto trial and dealt with according to the law”: R. v. Askov, (SCC), [1990] 2 S.C.R. 1199, at pp. 1219-20.

Thus the Courtsuggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence onthe repute of the administration of justice, but the impact of failing to admit the evidence. [51] The Court added that “[h]aving made these inquiries, which encapsulate consideration of “all the circumstances” of the case, thejudge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring theadministration of justice into disrepute”.[26] The Supreme Court stated: In all cases, it is the task of the trial judge to weigh the various indications.

No overarching rule governs how the balance is to be struck.Mathematical precision is obviously not possible. However, the preceding analysis creates a decision tree, albeit more flexible than theStillman self-incrimination test. We believe this to be required by the words of s. 24(2).[27] [52] In R. v. Craig,[28] rendered the same year, the Supreme Court this time considered the applicable criteria of the forfeiturescheme under the CDSA.

Abella J. (with whom Binnie, Deschamps, and, on this issue, McLachlin and Rothstein JJ., agreed), afterreviewing the history of the scheme, wrote that while there was no doubt that forfeiture “may be punitive in its impact”,[29] given theowner’s loss of the offence-related property, it is distinct from sentencing and has its own scheme under s. 19.1(3) CDSA. [53] Therefore, while a forfeiture application is generally dealt with at the same time as the sanction, it is a totally distinct proceedingand the criteria of one should not be considered during the adjudication of the other, which this Court moreover acknowledged in Kubalac.

R.:[30] [translation] [8] ... In R. v. Craig, the majority concluded that an application for forfeiture of offence-related property is a distinct and independentproceeding from sentencing and that the decision to order forfeiture should not be considered when determining the sentence. Thisposition was adopted by the Court in R. c. Neault, where the Court stated: [translation] “When sentencing, the judge must disregard theadvertised application for a forfeiture order and, afterwards, when examining the suitability of a forfeiture order, the judge must not goback and consider the sentence imposed”.

This position was followed by the various appellate courts and the Supreme Court had theopportunity to reiterate the same position.

The law therefore appears to be well settled. [References omitted.] [54] The Supreme Court’s decision in Craig is especially relevant here with respect to the specific purpose of the forfeiture scheme.The majority acknowledged that the scheme’s primary purpose is to take offence-related property out of circulation and to confrontorganized crime, whether or not the property is owned by the offender: “Individuals who have allowed their property to be used forcriminal purposes, even if their conduct does not rise to the level of criminal liability with respect to the particular offence, may, as aresult, also be subject to forfeiture orders, ...”.[31] [55] Much more than a procedural distinction distinguishes the charge and the criminal trial from an application for forfeiture ofoffence-related property.

While the first may result in a conviction and serious consequences for the accused’s liberty, a forfeitureapplication’s primary objective is not to convict or punish an accused, but to take property used to commit a designated substanceoffence out of circulation, regardless of who the owner is, so that it can no longer be used for a criminal purpose.

This is what I believeallows the forfeiture judge to reassess the admissibility of evidence excluded at trial, despite a judgment declaring the searchunlawful.[32] [56] In this case, the judge considered the evidence admissible because the exclusion of the evidence led to an acquittal, there was nodanger of an unfair trial, and the accused’s liberty was no longer at stake. Let us consider this more closely. [57] When the application to exclude evidence was presented during the criminal trial, the judge analyzed the first criterion in Grantto determine the sanction for having infringed the appellant’s rights.

She found that the fact that the police acted too quickly, based onsuspicions rather than on reasonable grounds, weighed in favour of excluding the evidence. [58] Her analysis of the second criterion, the impact of the breach on the accused’s rights because his residence was searched, led herto state that it also weighed in favour of excluding the evidence. [59] With respect to the third criterion, i.e., the interest in adjudicating on the merits, the judge felt that two aspects, i.e., that the itemsseized were essential to the prosecution and that they were reliable and relevant real evidence, weighed in favour of their admissibility.

[ 60 ] Last, when balancing the three criteria, the judge explained that despite the aspects favouring the evidence’s admissibility, the protection of individual freedoms guaranteed by the Canadian Charter [ translation ] “to those accused of serious crimes” [33] led her to grant more weight to the other aspects and to exclude the evidence. [ 61 ] When the application for forfeiture of the appellant’s residence was presented, the judge revisited the analysis of the criteria under s. 24(2) of the Canadian Charter developed in Grant to determine whether the evidence should be admitted or excluded.

She did not find it necessary to revisit the first two criteria, which she considered still weighed in favour of excluding the evidence needed to establish that the substances were in the residence. [ 62 ] When analyzing the third criterion, the interest in the adjudication of the case on the merits, and when balancing the three criteria, the judge explained that the stakes were different from those at the criminal trial and that the accused’s liberty was no longer at stake. The judge again balanced the three factors.

She noted the abundant case law stating that the integrity of the justice system would be undermined if crime-related items were returned to the perpetrator. [34] The judge found that the integrity of the justice system would be similarly undermined if the offence-related property at issue, which was also related to a crime and thus tainted by criminal activity, was put back into circulation, not to mention the impact on public opinion resulting from the fact that the appellant had already benefitted one time from the exclusion of the evidence excluded.

She therefore concluded that to exclude this evidence during the application for forfeiture of this offence-related property would bring the administration of justice into disrepute to such an extent that it had to be admitted. [ 63 ] Appeals against a judgment on an application for forfeiture are bound by the same exacting standard of intervention as appeals against sentence.

The forfeiture decision is discretionary and absent an error in principle, failure to consider a relevant factor or an overemphasis on the appropriate factors, appellate courts will not intervene. [35] In this case, the three purposes integral to a fair criminal justice system served by the doctrine of issue estoppel are preserved: (1) fairness to the accused who should not be called upon to answer questions already determined in his or her favour, (2) the integrity and coherence of the criminal law, and (3) the institutional values of the finality of judgments and judicial economy.

I therefore find that the trial judge did not commit any error justifying the Court’s intervention. [ 64 ] The appellant adds that the judge erred by basing her reasoning on the case law concerning the admissibility of evidence during applications for forfeiture of proceeds of crime [36] because the possession of proceeds of crime is illegal on its own, while this is not necessarily true for offence-related property.

This ground has no merit: the judge’s comparison is valid because, in both cases, the crime- related property’s fate, one of Parliament’s primary purposes when enacting this forfeiture scheme, is similar: to prevent the accused or other persons from continuing to use the offence-related property for illicit purposes. [37] [ 65 ] The last ground on the evidence’s admissibility is that the judge erred by considering the fact that the appellant’s residence had been similarly used to conceal narcotics nearly 10 years earlier.

The admissibility of this evidence is not disputed on appeal, subject to its distance in time, and appears on the list of admissions filed by the parties at the hearing on the forfeiture application. At the time, the appellant was convicted of a designated substance offence under the CDSA but no application for forfeiture of his residence was presented. [ 66 ] I am of the view that the judge did not err by referring to this event.

First, I am far from convinced that she referred to it to add to the evidence seized in 2013, which she moreover considered admissible, but even if that were the case, the appellant has failed to establish how this is an error. Furthermore, this proven fact certainly added to the argument that the administration of justice would be adversely affected were the evidence to be excluded.

It should be recalled that one of the primary purposes of the offence-related property forfeiture scheme is precisely to remove this property from the hands of the people who used or let it be used to commit a designated substance offence so that it can no longer be used for this purpose. The residence was not forfeited following the conviction for the 2013 offence and that is exactly what happened. * * * [ 67 ] The last ground of appeal is that the judge committed a reviewable error in her analysis and in the exercise of her discretion under the CDSA . The appellant submits that the trial judge erred in her

interpretation of the discretion granted under s. 16(2) CDSA when she stated in paras. [60] and [61] that this provision does not necessarily grant her broad discretion. In the appellant’s view, the use of the word “may” in s. 16(2) CDSA and the application of s. 19.1(3) CDSA on forfeiture of real property establish that the trial judge had broad discretion.

The appellant also argues that the trial judge’s forfeiture order is disproportionate because: (1) the judge did not consider that the appellant’s fundamental rights had been infringed, which resulted in the evidence from the 2013 search being excluded at trial; (2) the judge should have considered the circumstances of the offence, including that the appellant was a drug user at the time and has since completely turned his life around; and, (3) she should have considered the appellant’s patrimonial situation and the property’s sentimental value.

The appellant submits that in light of these events, only 10% of the property’s value should have been forfeited. [ 68 ] First, the judge correctly found that her discretion to order the forfeiture of offence-related property under s. 16(2) CDSA is limited once proof of the requirements thereunder has been made, subject to the discretion granted under s. 19.1(3) CDSA when real property is involved. [ 69 ] Nor did the judge err in exercising her broad discretion under s. 19.1(3) CDSA , which states:

19.1. […]

(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 subsection 16 (1) or 17 (2) in respect of real property would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted, or discharged under

section 730 of the Criminal Code , 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. 19.1. […]

(3) Sous réserve d’une ordonnance rendue en vertu du paragraphe 19(3), le tribunal peut ne pas ordonner la confiscation de tout ou

partie de biens immeubles confiscables en vertu des paragraphes 16(1) ou 17(2) et annuler toute ordonnance de blocage à l’égard de tout ou

partie des biens, s’il est convaincu que l’effet de la confiscation serait démesuré par rapport à la nature et à la gravité de l’infraction, aux circonstances de sa perpétration et, s’il y a lieu, au casier judiciaire de la personne qui est accusée de l’infraction, condamnée pour cette infraction ou en est absoute en vertu de l’

article 730 du Code criminel , selon le cas. [ 70 ] The appellant is also wrong to argue that the trial judge failed to consider that his rights had been infringed when she exercised her discretion. She stated that she accepted [ translation ] “the circumstances surrounding the seizure of the evidence” as relevant to this exercise. Furthermore, the discretion was exercised within the limits of this provision.

The case law [38] is unequivocal in this regard: only the criteria set out in ss. 19.1(3) and (4) may be considered when the Court exercises its discretion concerning forfeiture of offence- related property under s. 16(2) CDSA because a forfeiture proceeding is not bound by sentencing principles. [39] Consequently, the property’s sentimental value and the appellant’s patrimonial situation are irrelevant to the trial judge’s exercise of her discretion and unrelated to the nature or seriousness of the offence, its circumstances, or the appellant’s criminal record. [ 71 ] Last, in Craig , Abella J. described the distinction between the structures and analytical criteria of both the sentencing and forfeiture schemes, and noted the fact that Parliament specifically excluded the offender’s individualized circumstances from the forfeiture scheme, an aspect that is generally central to sentencing. [ 72 ] I find that the trial judge did not commit any reviewable error by failing to consider the fact that the appellant was a drug user at the time of the offence and has since turned his life around, even though she mentioned it earlier in her reasons. [40] The appellant submits that it is relevant to the analysis of the circumstances of the offence.

With all due respect, I disagree. That criterion focuses on the property’s role in the commission of the offence and the offender’s connection with organized crime, which is at the heart of the forfeiture scheme. Furthermore, the elements raised by the appellant relate more to his individual circumstances, whereas the forfeiture scheme focuses on the property and its role in past and future crimes. [41] Moreover, the trial judge accepted from the evidence that the property was used by the appellant primarily as his residence, [42] which is the main reason she refused to order its total forfeiture.

In short, the appellant has not raised any error of principle, failure to consider a relevant factor, or overemphasis warranting the Court’s intervention. [ 73 ] For all these reasons, I would dismiss the appeal. STÉPHANE SANSFAÇON, J.A.