r v. ANH NGUYEN, 2015 QCCQ 17217

Director of Criminal and Penal Prosecutions c. Nguyen JM 2240 Marijuana grow operation. Forfeiture. Complicity. Collusion. Wilful blindness. Discretionary power. 2015 QCCQ 17217 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Criminal Division No: 500-38-016314-121 DATE: June 12, 2015 ______________________________________________________________________ BY THE HONOURABLE SALVATORE MASCIA, J.C.Q. ______________________________________________________________________ DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS Petitioner v.

ANH NGUYEN JAMES NGUYEN Respondents [1] ______________________________________________________________________ DECISION ON A MOTION FOR FORFEITURE OF OFFENCE-RELATED PROPERTY [2]

Section 16 of the Controlled Drugs and Substances Act [ 1 ] This is an application by the by the Crown under s. 16 of the Controlled Drugs and Substances Act ( CDSA ) for the forfeiture of a house in which a marijuana grow operation was found. [ 2 ] James Nguyen and his sister, Anh Nguyen, the registered owners of the said home, have resisted the Crown’s application.

In essence, they claimed to be innocent third parties who had no actual knowledge that their property—leased in good faith to an individual named Steve Phung—would be converted into a commercial marijuana grow operation. [ 3 ] Pursuant to s. 19(3) of the Controlled Drugs and Substances Act (CDSA), they applied for relief from forfeiture on the basis that they were (

i) the lawful owners of the property and (ii) they were innocent of complicity and collusion in the commission of the offence.

Summary of the Facts The marijuana grow operation at 1405 Jacques-Lemaistre [ 4 ] On May 10, 2012, the police discovered 854 marijuana plants in the basement of a bungalow located at 1405 Jacques-Lemaistre Street in the City of Montreal. By any standard, the marijuana grow operation was extensive and highly sophisticated: The basement contained a large number of high intensity grow lights, protective shields as well as an exhaust system with vents and fans. The electricity to the home had been bypassed at the power mast.

In one of the photographs filed into evidence, we see a disconcerting number of cables twisted in all directions around the electrical box in the basement. [ 5 ] Six individuals were charged in relation to the marijuana grow operation. On March 5, 2013, Duc Duy Nguyen, one of those individuals, pleaded guilty to a charge of production of cannabis.

The purchase of the property [ 6 ] The property was bought back in June 2005 by James Nguyen and Anh Nguyen. At the time of the purchase, they were but 18 and 19 years of age respectively and they lived in Mississauga, Ontario with their mother. [ 7 ] The purchase price of the home was 315 000 dollars and included a down payment of 80 000 dollars. Part of the money for the down payment came from an inheritance the siblings had received from their grandparents in Vietnam; the rest came from a loan their mother took on her life insurance policy.

With respect to the balance of the sale’s price, the siblings obtained a loan (secured by a hypothec [3] on the property) for the sum of 235 000 dollars. [ 8 ] All the formalities with regards to the purchase of the property were undertaken by their mother, Ms Thi Tuan Le, who had a general power of attorney to represent her children. Thus, it was Ms Le—acting as the agent of James and Anh Nguyen—who signed the deed of sale, the hypothecary loan and the loan application. [ 9 ] From the outset, James and Anh Nguyen were absentee landlords who participated minimally, if at all, in the management of the property.

The task of finding suitable tenants and of collecting the rent money was left to their mother, Ms Le. Other chores, such as taking care of the lawn work around the property and picking up mail was handled by the siblings’ father or by an uncle who were both living in Montreal. [ 10 ] The applicants claimed that the property was purchased as an investment vehicle. If that was the true purpose, the applicants were sorely mistaken: The purported rent of 1 400 to 1 500 dollars per month (always paid in cash) was barely enough to cover the mortgage and the municipal tax bill.

Added to that, there were three years when the property was not rented at all. [ 11 ] The applicants explained that they would contribute personally from their own savings in order to cover the costs relating to the property at 1405 Jacques-Lemaistre. The applicants, however, were college students working part-time. When they were not studying, they had jobs which paid only modest salaries. [ 12 ] In her testimony, Anh Nguyen alleged that the rent money was deposited directly into the mortgage account at the Laurentian Bank of Canada.

Oddly enough, the rent money never corresponded with the amount purportedly paid for the rent—often, it was two or three thousand dollars more. There were even multiple same-day deposits in the mortgage account. Surprisingly, the record shows that rent money was deposited even when there were no tenants at 1405 Jacques-Lemaistre Street. [ 13 ] In their testimony, the applicants insisted that the property meant a great deal to them. To begin, all of their inheritance from their grandparents was put into the down payment on the property.

Next, as their family is of modest means, they need the property for financial stability. [ 14 ] They had no idea that their property was converted into a commercial marijuana grow operation. Moreover, they had no reason to even suspect that their property was being used for an illicit purpose. The relevant forfeiture provisions of the CDSA [ 15 ] S. 16 of the CDSA provides for orders of forfeiture of offence-related property : 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 theMinister 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. [ 16 ] At s. 2 of the CDSA, «offence-related property» is defined as follows : “offence-related property” means, with the exception of a controlled substance, any property, within or outside Canada, (

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 [ 17 ] In essence, a forfeiture order is mandatory under s. 16(1) when the Crown proves on a balance of probabilities that : ● A person was convicted of a designated substance offence;

● The property at issue is offence-related property; and ● The offence was committed in relation to that property.[4] [18] The forfeiture provisions of the CDSA, however, were constructed to eliminate adverse collateral damages to innocent propertyowners. Thus, a 16 forfeiture hearing requires that a judge consider the remedial provisions set out at ss. 18 to 19.1 of the CDSA. Therelevant sections for the purposes of the case at bar read as follows : 19(3) Where a court is satisfied that any person, other than (

a) a person who was charged with a designated substance offence, or (

b) a person who acquired title to or a right of possession of the property from a person referred to in paragraph (

a) under circumstancesthat give rise to a reasonable inference that the title or right was transferred for the purpose of avoiding the forfeiture of the property, 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. (emphasis added) [19] Simply put, s.19(3) of the CDSA provides for relief from forfeiture to the applicant who establishes that :

(1) He qualifies for the return of the property be reason of being the lawful owner or otherwise lawfully entitled to possession of theproperty

(2) He appears innocent of any complicity in the designated substance offence or of any collusion in relation to the offence (emphasis added) [20] The onus rests on the s. 19(3) applicant to satisfy the court—on a balance of probabilities—that he appears innocent of anycomplicity or of any collusion in relation to the offence: R. v. La (2008), ABPC 217 (Alta. Prov. Ct.). [21] At s. 19.1(3), the Act provides that real property might escape forfeiture if its impact would be disproportionate whenconsidering the following three factors: 1. The nature and gravity of the offence; 2.

The circumstances surrounding the commission of the offence; and 3. The criminal record of the person charged with or convicted with the offence. [22] In R. v. Craig, [2009] 1 SCR 762, 2009 SCC 23 , Justice Abella explained the factors that a judge should consider whenapplying the proportionality test: 56. What, then, should a judge consider under s. 19.1(3)? The nature and gravity of the offence could include the character andquantity of the substance involved, the level of sophistication of the crime and the extent to which the commercial production ordistribution of drugs was involved. 57.

The second factor, the circumstances surrounding the commission of the offence, might include consideration of the offender’srole in the commission of the offence, the nature of the property and the manner in which it was used in the offence, risks to the securityor safety 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. [23] Under the proportionality test, a Court has the discretion to order partial forfeiture of the offence related property, therebycounterbalancing the potentially harsh effects of a forfeiture order.

As Justice Abella explained at par. 55 in Craig : The proportionality test under s. 19.1(3) therefore allows a court to tailor the amount of property to be forfeited in a way that takes intoaccount the relative weight of the listed factors. Partial forfeiture gives the court greater scope for applying the proportionality test sothat the only options available to the sentencing judge are not a stark choice between full or no forfeiture.

This establishes a spectrum ofpotential forfeiture orders that can be adjusted to reflect the relative gravity of the case, pursuant to the purposes of the forfeiture scheme. [24] The onus of establishing the disproportionate effect of forfeiture belongs to the property owner who makes such a claim. [25] With regards to a dwelling-house in particular, s. 19.1(4) of the CDSA calls upon the Court to consider additional factors : 1. The impact of an order of forfeiture on any member of the immediate family if the dwelling was the principle residence of theaccused when the charge was laid and continues to be so. 2.

Whether the member of the immediate family appears innocent of any complicity or collusion in relation to the offence. Arguments of the parties [26] In the present matter, there is no dispute that the Crown has met its preliminary burden under s. 16 of the CDSA. To this effect, it

should be noted that one of the individuals accused in the marijuana grow operation pled guilty to a charge of production. In sum, the property was offence related and the offence was committed in relation to that particular property. [ 27 ] The parties disagree, however, on the question of whether or not Mr. James Nguyen and Ms. Anh Nguyen have met their section 19(3) and 19.1(3) burden. [ 28 ] Mr. Michel Aubin, attorney for the two applicants, argued that his clients met their evidentiary burden of establishing that they «appear innocent of complicity or collusion in the offence».

To this effect, he noted that there was no evidence that his clients participated in the marijuana grow operation, let alone evidence that they knew of the illicit activities going on at their property. No charges were ever brought against them. [ 29 ] His clients both lived in Mississauga Ontario. The constraints of work and study coupled with the distance and time it takes to travel back and forth from Mississauga to Montreal precluded them from actively managing their property.

Thus, form the moment they purchased their property in June 2005, they mandated their mother to take care of the day to day obligations inherent to owning rental property. [ 30 ] In the presentation of his case, Mr. Aubin also produced evidence to the effect that the sums used for the down payment came from legitimate sources.

Similarly, banking documents and income statements were filed into the record to show that the expenditures relating to the purchase and maintenance of rental property were legitimately paid for—that is, from the salaries of the applicants along with a monetary contribution from their mother when necessary. [ 31 ] Mr. Aubin also based his case on the good character of his clients. Neither one of them has a criminal record, let alone had any previous brushes with the law.

Both are intelligent, well-educated and hard working. [ 32 ] In a nut-shell, the thrust of Mr Aubin’s pleading was to convince me that his clients have come to court with clean hands. They have nothing to hide. In essence, they correspond to the dictates of s. 19(3) of the CDSA : they appear innocent of both complicity and collusion in relation to the offence. [ 33 ] Finally, in the event that I find that his clients did not meet the burden set out at s. 19(3) of the CDSA , Mr Aubin asked that I consider partial forfeiture as provided for at s.19.1(3) of the CDSA .

He stressed that the property, when purchased in 2005, required all the combined resources of the family just to make a down payment. Moreover, the money used for the down payment came from a legitimate source. Finally, he noted that the property on Jacques-Lemaistre Street was meant to be an investment vehicle not only for James and Anh Nguyen, but for all the siblings (two other siblings, an older brother and a younger sister did not figure as registered owners of the property). [ 34 ] Ms.

Émilie Robert, acting on behalf of the Crown, argued that the applicants have satisfied none of the conditions set out at s. 19(3) to qualify for relief from forfeiture. Her arguments may be summed up as follows : 1. The applicants are not the de facto owners of the property. The siblings—though they appear as the registered owners of the impugned property—were nothing more than figureheads. The real owner—the one pulling all the strings, was their mother, Ms. Thi Tuan Le.

She’s the one who found a real estate agent to purchase the property and she’s the one who take care of all the formalities relating to the purchase of the property (i.e., deed of loan and deed of sale). 2. The p roperty was acquired for the purposes of voiding forfeiture Ms. Robert noted that other members of the Nguyen family had been previously charged with operating a marijuana operation out of the basement of their homes. By placing the property under the names of James and Anh Nguyen, it would attract less attention from the authorities 3.

The applicants do not appear to be innocent of complicity and collusion Given that the investment made no financial sense and given the family’s previous involvement with marijuana plantations, Me Robert argued that the siblings had to have known that their property was being used for illicit purposes. At the very least, they closed their eyes to the facts and deliberately avoided learning the truth. [ 35 ] Finally, with regards to the applicants’ subsidiary request for partial forfeiture, Ms. Robert argued that it was not warranted under the particular circumstances of this case.

More particularly, she noted that : ● The impugned property was not family property. ● The extent and sophistication of the marijuana grow operation does not lend itself to partial forfeiture. The entire basement of the property, noted Me Robert, was dedicated to the marijuana grow operation. ● The fact that the siblings were nothing more than figureheads in the purchase of the impugned property. [ 36 ] In sum, a complete forfeiture order would not be disproportionate with regards to the particular circumstances of the applicants and the particular circumstances of the case. Detailed review of the evidence

Documentary evidence relating to the purchase of the home [ 37 ] The parties filed into the record the following documents relating to the purchase of the home at 1405 Jacques-Lemaistre : A Proxy (Mandate ) : O n the 13 th day of June 2004, before notary, James Nguyen and Ahn Nguyen signed a proxy (mandate) appointing as their agent (mandatee) their mother, Thi Tuan Le. The powers granted to the agent were quite extensive and included the power to administer all the moveable and immoveable assets of the two mandators. Offer to purchase: The offer to purchase was made in the name of Thi Tuan Le personally.

It was signed on the 14 th of May 2005. Loan application at the Laurentian Bank : Though the loan application lists James and Anh Nguyen as the borrowers, neither one of them signed that document. It was signed by Miss Thi Tuan Le by virtue of her power of attorney on the 20 th day of June 2005. Interestingly, the loan application indicates that both James and Ann Nguyen live at [...] St. in Montreal. As we shall see later on in this decision, the St. Firmin address was a pure invention of Miss Thi Tuan Le. In the same document, we read that Anh Nguyen works as a marketing agent at Gestion BMO in Montreal.

That too is a falsehood of Ms. Thi Tuan Le’s doing. A personal credit application for Anh Nguyen : This document also perpetuated the lie that that Anh Nguyen lived at [...] and that she worked as a marketing agent for Gestion B.M.O. Letter confirming employment : This letter, bearing the letterhead of Gestion B.O.M . [5] confirmed that Anh Nguyen, domiciled on St Firmin Street, worked as a marketing representative for the firm. It was dated May 25, 2005 and was purportedly signed by Ms. Tessier Fortin in her capacity as manager. As we will learn in the testimony of Ms.

Thi Tuan le, the document was fabricated in order to buttress the application for the mortgage loan. Deed of loan : A deed of loan was signed before notary on the 13 th day of July 2005. In the deed, the Laurentian Bank loaned 235, 000 to the purchasers. The loan was secured by an immoveable hypothec. Miss The Thi Tuan Le signed the document in her capacity as agent for her children. Notarized deed of sale concerning the property at 1405 Jacques-Lemaistre : In this document, James and Anh Nguyen appear as the purchasers of the property.

It was signed before notary by Ms Thi Tuan Le in her capacity as agent for her children. The purchase price was for the sum of 315 000 dollars with a down payment of 80 000 dollars Documentary evidence found at 1405 Jacques-Lemaistre [ 38 ] When the marijuana grow operation was discovered at 1405 Jacques-Lemaistre, the police recovered the following documents : A lease agreement: In the lease agreement, we read that the property was rented out to Mr. Steve Phung. According to the inscriptions on the lease, it was signed on June 30 th 2011 and covered the period from July 1 st 2011 to June 30 th 2012.

A municipal tax bill: The municipal tax bill was made out to James and Anh Nguyen and was stamped « paid ». The oral testimony Mr. James Nguyen [ 39 ] He was 18 years old when he became co-owner with his sister of the property at 1405 Jacques-Lemaistre in Montreal. It was purchased, primarily, as an investment vehicle. A secondary reason behind the purchase lay in the fact that his sister entertained the idea of studying medicine at McGill University.

A residence in Montreal would obviously be convenient for that purpose. [ 40 ] Though he visited the home once before purchasing it, he was not involved in the legal formalities relating to the purchase of the property. Such matters were handled by his mother who was authorized—under a general power of attorney—to act on his behalf. [ 41 ] The purchase of the house included a down-payment of 80 000 dollars. In examination-in chief, he explained how that money was raised. Firstly, there was an inheritance of 44 000 dollars U.S. that came from the estate of his paternal grandparents in Vietnam.

The said sum was given to all 4 siblings: James Nguyen, Anh Nguyen, Thompson (the eldest) and Nancy (the youngest). [ 42 ] He also explained the circumstances in which he and his siblings received the money from the estate: In the summer of 2004, he went to Vietnam with his three siblings and his mother and father. Though his parents were divorced at the time, they travelled as a family. The purpose of the trip was two-fold: (

i) to visit family and (ii) to collect the 44 000 dollar inheritance bequeathed from the paternal grandparents to their grandchildren. [ 43 ] Mr. Ngoc Thu Nguyen, the uncle of Mr James Nguyen and the oldest of his father’s siblings, was charged with liquidating the estate. The money was remitted in cash to Mr. James Nguyen and his family. It was also brought back to Canada in cash.

Though he can’t be sure, he believes that the sums were declared to the authorities. [ 44 ] As for the rest of the down-payment, his mother borrowed money against her life insurance policy. [ 45 ] Though a large part of the initial down payment for the property came from an inheritance bequeathed to all four siblings, only

two of them appeared on the title deed: Mr. James Nguyen and his sister, Ms. Anh Nguyen. [ 46 ] Mr. James Nguyen participated little, if at all, in managing the property. The extent of his participation lay in handing over five hundred to six hundred dollars per month (or as needed) to his sister in order to cover the mortgage payments. [ 47 ] Save for the purchase price and the initial down payment, he knew very little of the property he invested in.

Though he had a vague notion of the mortgage payments, he had no idea of all the other costs relating to the upkeep and management of rental property : tax bills, repair bills, hydro bills, maintenance bills and so on. He explained that it was his sister who took care of all the paper work. [ 48 ] He saw the property once before it was purchased. Since then, however, he has only visited it twice. He doesn’t know if the home was inspected prior to finalizing the sale.

He doesn’t know if it needed repairs of any kind or even if repairs were undertaken since it was purchased in 2005. [ 49 ] He claimed that the property was rented for the sum of 1 400 dollars. However, he never participated in the process of screening and finding suitable tenants. For that matter, he never met any of the supposed tenants of the property. The collection of the rents, he explained, was left to his father and an uncle who lived in Montreal. [ 50 ] He was aware, however, that the property was not always rented.

According to his recollection, It was rented for the periods 2005-2006, 2007-2009 and 2011 to May 10, 2012 (the date the grow operation was discovered). The property, therefore, was not leased for a total of three years: 2006 to 2007 and 2009 to 2011. [ 51 ] From Mr James Nguyen’s testimony it was obvious that this property was a financial black hole.

Though the property was purchased primarily for investment purposes, the rent—when it was paid—would barely cover the mortgage payments along with all the other costs relating to the ownership and maintenance of real property. [ 52 ] Part of the applicants’ case, however, was intended to show that the family had the financial stamina to meet all their financial obligations regarding the property at Jacques-Lemaistre Street. Mr. James Nguyen recounted that he earned circa 28 000 to 35 000 per year.

As explained earlier, he would contribute, when necessary, a sum of 500 to 600 dollars in cash towards the payment of the mortgage. The money was remitted to the sister who would then take care of all the formalities to pay the holder of the mortgage. [ 53 ] Though the investment produced nothing but red ink, the losses were never declared in his income statement. He simply explained that he did not know that losses on a rental property could be declared. [ 54 ] Ms. Robert cross-examined Mr James Nguyen on the marijuana grow operations involving two of his family members.

More particularly, in November 2004, his father was charged with regards to a marijuana grow operation discovered in the basement of the family residence on Ivor Crescent Street in Mississauga. Earlier, in October 2004, his older brother, Thomson, faced similar charges for running a marijuana grow operation in the basement of his home on Jefton Crescent Street in Mississauga . [ 55 ] James Nguyen did not deny knowing that his father had been arrested for the production of cannabis back in November 2004.

However, he insisted that he had no idea that there was a marijuana plantation in the basement of the family home. The Crown doubted the sincerity of his answer by noting that he was living at the family home when the marijuana plantation was dismantled. He blamed his youth and naïveté for his ignorance. To use his own words : « I was young, I had no idea something was going on down there…I didn’t know the specifics…nor was I involved…So I just was not informed…. » [6] [ 56 ] It is worth noting, however, that Mr.

James Nguyen was 18 years old at the time the marijuana grow operation was discovered in the basement of the family home. Only seven to eight months removed from the date he purchased the property at 1405 Jacques- Lemaistre Street. [ 57 ] With regards to the marijuana plantation at his brother’s home on Jefton Crescent Street in Mississauga back in October 2004, he knew nothing about it. It’s only after the arrest of his brother that he found about the grow operation.

Interestingly, the Nguyen family lived at this home prior to selling it to the eldest child. [ 58 ] His want of knowledge with regards marijuana grow operations extended to the illicit activities going on at his property at 1405 Jacques-Lemaistre Street in Montreal. He claimed, moreover, that he had no reason to even suspect that his property was transformed into a commercial-sized marijuana plantation. [ 59 ] He expressed being confused, shocked and dismayed when he found out that the authorities issued a restraint order with regards to the said property.

The mere idea that his property was used for the illicit production of drugs made him very upset and angry. Anh Nguyen [ 60 ] At the time the property was purchased, Ms. Anh Nguyen was but 19 years of age. Like her brother, she explained that the property was purchased for investment purposes. Not without consideration, the property could potentially serve as her residence in the event that she should study medicine at McGill University. [ 61 ] She visited the property once before making an offer to purchase. Like her brother, she did not participate in the day to day management of the property.

The task of finding suitable tenants for the property was left to her mother who travelled regularly to Montreal on account of her work as a seamstress. Except for the last lease (the one in which the property was purportedly leased to a Mr. Steve Phung for 2011-2012), she never met any of the tenants. [ 62 ] While her mother was in charge of renting the property, the job of collecting the rent money was left to her father and maternal uncle, both of whom were living in Montreal at the time. Her father also had a key to the property.

[ 63 ] Ms. Anh Nguyen explained, however, that she did take care of paying the monthly mortgage. Usually, she would transfer the funds from her personal TD bank account to the mortgage account (Laurentian Bank in Montreal). If the funds were insufficient to cover the mortgage, her brother would chip in with a contribution of five hundred to six hundred dollars. If needed, her mother would also contribute some money. [ 64 ] Ms. Nguyen took care of paying the hydro bill. Interestingly, the hydro bill was always under the name of Anh and James Nguyen and addressed to 1405 Jacques-Lemaistre Street.

She never bothered to advise Hydro-Quebec that the property was rented. The Hydro-Quebec bills were collected by either her father or her uncle at the Jacques-Lemaistre property and then remitted to her in person or by mail. [ 65 ] Ms. Anh explained her limited implication in the management of the property by the fact that she was either busy studying or busy working. When the property was purchased in 2005, she was completing the second year of an undergraduate degree in science at McMaster University. While studying full-time, she also worked on a part-time basis.

From 2007 to 2009 she was employed at the Credit Valley Animal Centre. From 2009 to 2011 she went to medical school as St. Eustatius University in the Caribbean’s. From 2011 she’s been working as a client service representative at a medical clinic in Ontario. [ 66 ] Part of the testimony of Ms. Anh Nguyen was aimed at proving the legitimate provenance of the money used to make the initial down payment. In essence, she corroborated her brother’s account that the siblings received 44 000 dollars from the sale of an ancestral home in Vietnam. Mr.

Nguyen Ngoc Thu, her uncle (brother to her father) took care of liquidating the estate and of distributing the money, in cash, to his brother’s family. The cash money was then brought back to Canada. [ 67 ] Ms. Nguyen also confirmed that part of the down payment for the purchase of the property came from a loan on her mother’s life-insurance policy. [ 68 ] Though a substantial portion of the down payment came from the inheritance money, only two of the siblings figure on the deed of sale.

When first questioned about this, she simply stated that it was a family decision that the other two siblings remain silent partners. [7] But immediately, thereafter, she gave the following contradictory response when explaining why her brother’s name didn’t figure on the deed : I can’t explain why he wasn’t on the deed of sale; it was just something we had not agreed on as a family. [8] [ 69 ] Part of her testimony was intended to show that the payment of the mortgage had a legitimate source.

Thus, documents were filed into evidence that showed that the mortgage payment was done via an internet transfer of funds from her TD account to the mortgage account.

These documents, however, date from March 2012 and onward, just two months before a restraint order was issued on the Jacques Lemaistre property. [9] Moreover, no similar documentation was filed to show that from the date the property was purchased in 2005, mortgage payments were regularly made via bank transfers. [ 70 ] In the same vein, some banking documents dating back to 2005 were filed to show that important sums of money were deposited in Miss Nguyen’s personal TD account.

Unfortunately, there was no evidence that the sums deposited in her personal account were later transferred to the Laurentian bank in Montreal in order to make the monthly mortgage payments. [ 71 ] Ms. Anh Nguyen also confirmed that the property was vacant for a significant amount of time.

Her account of the occupancy and vacancy periods for the property at Jacques-Lemaistre parallels the one given by her brother: it was rented from 2005 to 2006, 2007 to 2009 and from 2011 to May 10 th 2012 (the day the police discovered and dismantled the grow operation); and it was not rented from 2006 to 2007 and from 2009 to 2011. [ 72 ] The rent was approximately 1 400 to 1 500 dollars per month and it was always paid in cash. The rent was collected by either her father or her uncle. [ 73 ] In cross-examination, Ms.

Anh Nguyen was confronted with the numerous cash deposits that were made in the mortgage account. The cash deposits—made at the cashier’s counter—included amounts as high as two to three thousand dollars. In some instances, important cash deposits were made on the same day, but at different branches of the Laurentian Bank. For instance, on the 14 th day of June 2007, an initial deposit of two thousand dollars was followed by another deposit of two thousand dollars at a different branch and still another deposit of 850 dollars at a third branch for a grand total of 4 850 dollars.

The individual who made all three deposits used the initials «C.D» to identify himself or herself. [ 74 ] One also notes that significant cash deposits were made on different days of the same month. More often than not, the deposit slips bore the initials «C.D. ». [ 75 ] In 2006, over 31 000 dollars in cash was deposited in the mortgage account. An important sum when one considers that the property—according to the testimony of the applicants was not even rented. For the years 2007 to 2009, a little more than 20 000 dollars per year was put in the coffers of the mortgage account.

In 2010 and 2011, the said account was replenished with deposits of little more than 20 000 dollars per year in spite of the fact that the property was vacant. For the year 2011, the cash deposits slipped to 16 900 dollars. Finally, for the year 2012, the cash deposits plummeted to only 5 000 dollars. One will note, however, that the marijuana grow operation was dismantled in May 2012, explaining the smaller cash sums deposited in the mortgage account for that year. [ 76 ] None of the cash deposits corresponded to the amount of the rent charged for the property on Jacques-Lemaistre Street.

On a few occasions, the amounts deposited were smaller than 1 500 dollars, more specifically around the 1 000 dollar range. However, for the vast majority of deposits, they largely surpassed whatever rent was charged for the property. Even more surprising, substantial cash deposits were made when the property was not rented. [ 77 ] Ms. Nguyen could not give a rational explanation for the deposits. Perhaps it was the rent money deposited by either her father or uncle. Some of the deposit slips were signed by her mother whose signature or initials she recognized on the deposit slips. However, she

had no clue with regards to the identity of the person who affixed the initials « C.D. » on numerous deposit slips. [ 78 ] The financial obligations of maintaining the property were onerous; especially when one considers that the property was not rented for a significant period of time. From her testimony, however, Ms. Anh Nguyen indicated that the combined resources of the entire family were more than adequate to meet their financial obligations. [ 79 ] In cross-examination, however, we learned that her salary at the Valley Crest Animal Center was very modest.

At best her annual salary was around 12 000 per year for the period between 2007 and 2009. Prior to that, she was a full time student at McMaster University. Though she worked on a part-time basis while earning a science degree, her income could not have been very substantial. From 2009 to 2011, she did not work as she was studying medicine at St Eustatius University. [ 80 ] Her limited financial resources were compounded by the considerable debt she carried from her student days. Her student loan from McMaster was circa 24 000 dollars. Her medical studies from 2009 to 2011 cost her 8 000 U.S per semester.

Based on an academic year that included three semesters, her medical-school tuition alone set her back some 48 000 dollars U.S. She admitted that the said sum did not take into account the cost of food, lodging and the purchase of text books and materials. [ 81 ] Student loans offered by the Ontario government helped to defray the cost of her medical studies, but it amounted to a mere 9 000 per year. She also used her credit cards in order to make ends meet. [ 82 ] Despite the obvious hardship of her situation, she claimed that payments relating to the Jacques-Lemaistre property were never delinquent.

As mentioned earlier, she would get a little help from her brother and mother when needed. [ 83 ] She did not react well to the news that there was a restraint order on the property she owned. It was a difficult time for her: mentally, emotionally and physically. She had to take a leave of absence from medical school as she couldn’t concentrate on her studies. [ 84 ] She was asked by her attorney what the property means to her. In essence, the property was viewed as an investment.

As she explained in her testimony, losing it would mean financial hardship to her and her family : It’s difficult to say, because when we first planned on purchasing a house, it was my intention to live there because of medical school and it was also an investment for me and my siblings…You know, we don’t come from a family that has a lot of money and because we got this inheritance from my grandparents, we thought it was something that all four of us could invest into our future ….

I have a large amount of debt from medical school….I don’t know what we would do if we lose this house, and it’s not just for myself, you know, it’s for my younger brother and my younger sister as well. You know, we’re trying to find some financial stability [10] [ 85 ] She was cross-examined regarding her knowledge of the marijuana plantations operated by two of her family members.

She explained that she was studying at McMaster University when the police charged her brother for a grow operation at Jefton Crescent Street in October 2004 and her father for a grow operation in the basement of the family residence on Ivor Crescent Street in November of 2004. [ 86 ] She was questioned with regards to the Montreal address on St. Firmin Street that appears on the loan application form of the Laurentian bank and on the deed of sale.

She answered that she never lived at the said address nor did she ever make any claims to having lived there. [ 87 ] Similarly, in the said documents one reads that Anh Nguyen worked as a marketing representative for Gestion BOM. She denied having ever worked for that firm, nor did she ever make any claims that she did. Thi Tuan Le [ 88 ] Ms. Thi Tuan Le is the mother of the applicants. Essentially, the purpose of her testimony was to corroborate the testimony of her children with regards to (

i) the legitimate provenance of the deposit money; (ii) the family’s ability to pay the mortgage and all other costs relating to the property and; (iii) the manner in which the property was managed. [ 89 ] In the first part of her testimony in chief, she recounted the family trip to Vietnam and the manner in which an important sum of money was bequeathed to her children. For the essentials, her account of the inheritance money follows the general outline of the one recounted previously by her children.

There is, however, one notable discrepancy, while her children claimed that the inheritance amounted to 44 000 dollars U.S, she stated that the amount was 54 000 U.S. [11] [ 90 ] Also, the math in her account of the inheritance money doesn’t add up. For the trip back home to Canada, she divided the money among her children: each one of them carried six thousand dollars. She explained that this was necessary as there were limits on the amount of cash money an individual could carry out of the country.

Here’s where the sums don’t balance : If all four children were carrying with them six thousand dollars, we only arrive at the sum of 24 000 dollars—30 000 short of the amount bequeathed to the kids. If we allow for the possibility that Ms. Thi Tuan Le and her husband also carried some cash money out of the country, we arrive at the sum of 36 000. We’re still 18 000 dollars short of the amount the siblings purportedly received from the sale of the paternal grandparents’ home. [ 91 ] According to Ms.

Thi Tuan Le, the entire cash amount was divided and given to the children on the way to the airport or at the airport. [ 92 ] The inheritance money was part of an 80 000 dollar down payment for the purchase of the Jacques-Lemaistre property in Montreal. The rest of the money, she borrowed from a life insurance policy.

[ 93 ] She admitted lying in the loan application with regards to the claim that her daughter lived in Montreal and that she was working as a marketing representative for Gestion B.O.M. She even admitted having engineered the phoney letter which stated that Ms. Anh Nguyen had been working on a full time basis for Gestion B.O.M. for two years and that she earned an annual salary of 42 000 dollars. The fabrications, she explained, were intended to bolster the merits of the mortgage-loan application. [ 94 ] Her work as a seamstress brought her to Montreal circa once per week or once every two weeks.

As she travelled regularly to Montreal, it was only normal that she take care of the formalities with regards to the purchase of the property as well as the day-to-day obligations of running a rental property. She claimed to be the only one with a key for the Jacques-Lemaistre property. [ 95 ] Though she spoke no French and very little English, she took care of finding tenants for the property.

In 2005, she found her first tenant by placing an ad on the billboard of an Asian supermarket. [ 96 ] Not only did she collect the rent, she also deposited it in her children’s joint mortgage account at the Laurentian bank. Some of the deposit slips bear her signature or initials. Sometimes, a man called «Chang» would also assist with the collecting of the rent from the tenants and with depositing said rent in the mortgage account. She claimed that the initials « C.D. » on the deposit slips were those of Mr. Chang. [ 97 ] There were times when the property was not rented.

Her recollection of the occupancy and vacancy periods corresponded to the one given earlier by both her children. [ 98 ] The initial sales price of the house was for 320 000 dollars. However, as the house needed some repairs—the roof needed some work—she was able to negotiate the purchase price down to 315 000 dollars. [ 99 ] Many questions were centered on her ability to contribute financially to the mortgage payments (and other costs relating to real property) for the Jacques-Lemaistre home. From her work as a seamstress, she earned about 30 000 per year.

Though that sum may seem modest, she also had a line of credit with a chartered bank for the sum of 231 000 dollars. [ 100 ] In cross-examination, Ms. Robert wanted to highlight the fact that the financial obligations of Ms. Thi Tuan Le were substantial, making it doubtful that she could contribute in any meaningful way to the costs required to sustain the Jacques-Lemaistre property. Thus, we learned that in 2005, Ms. Thi Tuan Le bought a house under her own name in the City of Laval, Quebec. The house cost 200 000 dollars and she gave a cash deposit of 33 000 towards its purchase.

She rented the property for one year but was forced to sell it in 2006 or 2007 as she could no longer afford it. Not unlike the Jacques-Lemaistre property, the rent at her Laval property was also paid in cash. [ 101 ] In Mississauga, Ms. Thi Tuan Le purchased a home on Ivor Crescent Sreet for 335 000 dollars; the sum of 100 000 dollars was given as a down payment. The evidence does not disclose what the mortgage payments were for that property. [ 102 ] A quarrel with her ex-husband (who had come back to live with her and the children) forced her to leave the family residence.

Along with the children, she rented a property on Charburn Street in Mississauga. During this time, her husband lived alone at the Ivor Crescent Street even though he contributed not a dime to the mortgage payment. [ 103 ] Though the evidence doesn’t disclose the exact amount she paid to rent the home on Charburn Street, the message from Ms. Robert’s cross-examination was clear: How could this woman possibly contribute financially with the Jacques-Lemaistre property when she already has to pay (

i) a mortgage on a property in Laval; (ii) a mortgage on a property on Ivor Crescent street; and (iii) a rent on a property on Charburn street? [ 104 ] She was questioned with regards to the marijuana charges implicating her ex-spouse and her eldest son. Concerning her son, she only found out about the Marijuana grow operation after he was arrested. With regards to her ex-spouse’s charge of production of marijuana, she had not the faintest inkling. She explained that she was not even living at Ivor Crescent Street when the plantation was discovered by the police.

As mentioned earlier, she left the family home on Ivor Crescent and moved to a rental property with her children on account of the constant bickering between her and her ex-husband. [ 105 ] She was cross-examined with regards to the many cash deposits on the mortgage account. She explained that the amounts corresponded to the rent money collected either by herself or her friend Mr.

Chang. [ 106 ] Questioned why the sums deposited in the account never corresponded to the amount paid for rent, circa 1 400 to 1 500 dollars per month, she offered the following explanation : Because the money, we would spend some of it and then we would just put enough money in the bank to cover for the mortgage…. [12] [ 107 ] With regards to the restraint order on the Jacques-Lemaistre property in May 2012, she recounted being shocked and perplexed. She also added that she knew none of the individuals charged in the marijuana grow operation.

Analysis of the Testimony James Nguyen —On his claim to being unaware of the marijuana grow operation at the family residence [ 108 ] I cannot believe that Mr. James Nguyen was unaware of the marijuana grow operation in the basement of the family home at Ivor Crescent in November 2004. His excuse that he was but a young man with no knowledge of such matters carries no weight. I do not think that I am stretching the bounds of judicial knowledge by affirming that marijuana—even in its raw state—has a strong and

distinctive smell. Mr. James Nguyen was 18 years old at the time. It defies logic that he was unaware of the marijuana grow operation in the basement of the home where he lived and slept every night. [ 109 ] He also claimed to be unaware of the plantation at his brother’s basement home on Jefton Crescent, dismantled by the police in October 2004. His claim of ignorance would require me to believe that he never visited his brother at the place which once used to be the family home.

One visit would have been sufficient to note the distinctive and pervasive smell of marijuana. [ 110 ] This being said, I am mindful of not judging James Nguyen by the actions of one of his sibling. He is not his brother’s keeper.

Though I have strong suspicions that he knew of the marijuana plantation at his brother’s house, it will not carry much weight in my final decision. —The inheritance money from Vietnam [ 111 ] These comments apply not only to Mr James Nguyen’s version of the inheritance money but also to the one recounted by his sister, Anh Nguyen, and his Mother, Thi Tuan Le. [ 112 ] In describing the family trip to Vietnam and the collection of 44 000 dollars U.S. from their paternal grandparents’ estate, the applicants wanted to impress upon me that the money for the down payment came from a legitimate source.

I must note, however, that the case for the applicants included no legal or official document attesting to the inheritance and the liquidation of the estate. Instead of a will, they filed into evidence an affidavit from their uncle wherein one reads (

i) that he was charged with selling the property of his parents (the paternal grandparents); and (ii) that the proceeds therefrom were to be distributed to all the grandchildren. [ 113 ] The Crown, though wary of the authenticity of the document, did not object to the filing of the affidavit. Essentially, it changed nothing for her case.

After all, the case at bar deals with the forfeiture of offence related property and not with the proceeds of crime. [ 114 ] Next, I find it difficult to believe that the proceeds of the sale would be bequeathed to all the grandchildren rather than to the actual children of the deceased. According to the testimony, the grandchildren hardly knew their grandparents. In making these remarks, I realise full well that I am totally ignorant of Vietnamese culture and Vietnamese law regarding successions.

I add, however, that it is just one of the factors that allows me to discount the inheritance part of the testimony. [ 115 ] Let us not forget that the parents of the applicants were divorced when the entire family went to Vietnam in 2004. Surprising that the uncle would remit the money to estranged wife of his brother. [ 116 ] There was a discrepancy with respect to the total amount of the inheritance. While Ms. Thi Tuan Le claimed that the inheritance amounted to 54 000 dollars, her children placed the amount at a more modest 44 000 dollars. [ 117 ] Also, Ms.

Thi Tuan Le’s account of how the inheritance money was divvied up among her children (on account of strict quotas regarding the amount of cash that could be carried out of the country) does not balance with the total amount her ex brother-in-law supposedly handed to her. At 6 000 dollars per family member, we are 30 000 dollars short of the 54 000 thousand dollars she claimed her children inherited.

Even allowing for an extra 6 000 for herself and her ex-husband, we still fall 18 000 short. [ 118 ] My doubts about the inheritance story are directly linked to the fact that only two of the siblings appear on the deed of purchase. If the inheritance money was destined for all four children, why is it that only two of them appear on the deed? The applicants could not provide a satisfactory answer. The explanations of Ms.

Nguyen on the topic were contradictory. [ 119 ] If the two other siblings were indeed silent partners, why is it that they don’t make the slightest monetary contribution to the upkeep of the house? After all, a partnership usually involves sharing in both the profits and the losses. [ 120 ] In the end, the best explanation for including only two of the siblings on the property deed comes from the testimony of Ms. Thi Tuan Le.

She didn’t want the name of her eldest son on the deed as he already had a previous run-in with the law. [ 121 ] Finally, the ubiquitous use of cash money in the case at bar allows me to doubt the veracity of the 44 000 (or 54 000) dollars in inheritance money. Too often, cash was used to justify the absence of corroborating documentary evidence. The rent, for instance, was always paid in cash. Not surprising, therefore, that the evidence contains not one example of a cheque drawn on a supposed tenant’s bank account.

Similarly, the alleged cash nature of the inheritance dispenses the applicants from producing any documentary evidence that it ever existed. Interestingly, Ms. Thi Tuan Le explained that the cash money from the inheritance was divided among the family members so as to avoid declaring it to the authorities. [ 122 ] One cannot disprove with absolute certainty the claim that the Nguyen family brought home a significant cash bonanza from Vietnam. The claim, however, that all rents (from 2005 to may 2012) were paid in cash defies credulity.

The facility with which cash is used to explain away the want of documentary evidence regarding the rents paid allows me to entertain serious doubts as to whether or not the Nguyen family brought back to Canada a cash inheritance of 44 000 or 54 000 dollars. —The investment aspect of the purchase [ 123 ] Mr. James Nguyen bought the property for investment purposes.

However, the property could also have served to house his sister, Anh, in the event that she should study medicine at McGill [ 124 ] If the property was occupied by his sister, however, it would foil the investment component of the venture not only for James Nguyen but for all the other siblings as well. —The disinterested property owner

[ 125 ] In the end, there is nothing in the conduct of Mr. James Nguyen that shows that he had a veritable interest in the property. Aside from the 500 to 600 dollars (in cash) that he would give to his sister so as to cover the mortgage payments, he is totally uninvolved in the management of the property. [ 126 ] On the subject of the 500 to 600 dollars in cash that he gives to his sister, there was no record—not one single deposit slip—to confirm that that it was ever done. Once again, the use of cash serves to exempt the applicant(

s) from presenting any real proof. [ 127 ] The property constitutes a financial albatross round the neck of Mr. James Nguyen. Logic defies his passive interest in the property. Surely a contribution of 500 to 600 dollars on a monthly basis has to represent a princely sum for a student. [ 128 ] Similarly, logic defies why he would continue to own a property that is financially burdensome rather than putting it up for sale. His income is clearly insufficient to assume the burden of owning the home at Jacques-Lemaistre Street. (These last comments apply equally to Ms. Anh Nguyen and Ms. Thi Tuan Le).

In a patent understatement, Mr. James Nguyen stated that the property was «obviously mismanaged ». The evidence shows that he had no interest in the management of the property at all. [ 129 ] Finally, it is worth noting that Mr. James Nguyen never declared the substantial losses he must have incurred from ownership of the Jacques-Lemaistre property. The losses would have surely reduced his taxable income which, in turn, may have given him a tax refund. [ 130 ] Mr. Nguyen claimed that he had no idea that he could claim losses from rental income. I do not believe him. By all accounts he is an intelligent young man.

He studied business administration and information technology at Sheridan University. If he truly spent his money on maintaining the property, he would have had an economic interest in declaring the losses. Testimony of Anh Nguyen —On her capacity to pay for the Jacques-Lemaistre home [ 131 ] Ms. Anh Nguyen’s debt load was considerable. Given her limited financial resources, it is difficult to believe that she could assume the financial obligations that came with ownership of the impugned property. She had to repay the student loans that were used to defray the costs of her studies at McMaster University and St.

Eustatius University. The tuition alone for her medical studies amounted to 48 000 dollars U.S. over a two-year period. Debt was also accumulated on her credit cards. [ 132 ] Her salary, at the time, was extremely modest. Reimbursing her debts must have been challenging enough, let alone pay for the financial sink-hole on Jacques-Lemaistre Street. The reimbursement of debt would have been even more difficult when one considers that the property was not rented for three years. [ 133 ] Under these circumstances, ownership of the property makes no financial sense for Ms Anh Nguyen (and her brother).

It is obvious that the property was financed from another source. —Evidence of mortgage payments [ 134 ] In her examination in chief, she stated that the mortgage payments—for the most part—were made by transferring sums from her T.D account to the mortgage account at the Laurentian Bank. Mr. Aubin even filed into the record documents attesting to the fact that cheques of a significant monetary value were deposited into her personal account.

In cross-examination, however, the Crown highlighted the fact that there was no evidence that funds from the personal account were ever transferred to the Laurentian bank in order to cover the monthly mortgage payments for the Jacques-Lemaistre property. —Explanations regarding the substantial cash deposits in the mortgage account [ 135 ] With regards to credibility, the most relevant part of the cross-examination was when Ms. Robert confronted Ms. Nguyen with the thousands of dollars deposited in cash in the mortgage account. The sums deposited were substantial, often two or three thousand dollars at a time.

On several occasions, deposits were made the same day but at different branches. [ 136 ] Was it rent money? Not a chance. None of the sums deposited corresponded to the rent supposedly paid by a supposed tenant of the property. For the most part, the sums deposited were far greater than the supposed rent paid by a supposed tenant of the property. [ 137 ] How can one rationally explain the multiple same-day deposits at different branches? Am I to believe that rent was collected on the same day from the same tenant on two or three separate occasions?

A more reasonable explanation is that the person making the deposits wanted to avoid attracting the attention of the bank personnel. [ 138 ] Likewise, the record shows several same-month deposits. Sometimes the intervals between deposits were less than one day or one week apart. Am I to believe that rent was collected and deposited from the same supposed tenant more than once a month? [ 139 ] A still more telling incongruity: the fact that important cash deposits were made even when there was no tenant in the property? [ 140 ] How do you explain the cash deposits? Who had an interest in making these deposits?

One thing for sure, the cash deposits did not come from the rent money for the impugned property. —Payment of the hydro bills [ 141 ] Another difficulty with her testimony lies in the manner in which she claimed the hydro bills were paid. Regardless of whether or not the property was rented, the hydro bills were always mailed to the Jacques-Lemaistre address and to the attention of James and Anh Nguyen. Hydro-Quebec was never alerted when new tenants occupied the impugned property.

[ 142 ] What complicates the matter further still was her assertion that the tenants were responsible for the payment of the hydro bill. According to her testimony, the hydro statements—mailed out to the names of James and Anh Nguyen at the Jacques- Lemaistre address —were collected by either her father or her uncle and then remitted to her either by mail or in person. [ 143 ] Here is why I can’t believe this convoluted story. To begin, both James Nguyen and Anh Nguyen are intelligent people who lead buys lives.

Surely, it must have crossed their minds that it would be far simpler for the hydro bill to be sent directly to their address in Mississauga. For that matter, it would have been even simpler to notify Hydro-Quebec that the statement should be made out to the new tenant. After all, the new tenant had the obligation of paying the hydro bill. Next, if the premises were occupied by a tenant, how could one rest assured that the hydro bill had effectively been paid? [ 144 ] Anh Nguyen claimed that she was the one taking care of the hydro bill.

Unfortunately, no documents were filed attesting to any payment she would have made to Hydro-Quebec. [ 145 ] Also, from 2009 to 2011, she was studying medicine full time in a foreign country. I can’t believe that she was still encumbered with the responsibility of paying the hydro bill. Similarly, I can’t believe that her father or uncle would have had the audacity to send the hydro statement to St. Eustatius. [ 146 ] For someone who claimed to have always paid the hydro bill, it is surprising that she had such little knowledge as to the actual amount of the statement.

She estimated that the costs were more or less 180 dollars per month. However, a billing history of the property indicates that the costs were much greater than the amount suggested by Anh Nguyen. [ 147 ] When I consider all the evidence, I cannot help but conclude that someone else had an interest in taking care of the hydro bill. [ 148 ] When the police entered the property on Jacques-Lemaistre Street, they found a municipal tax statement addressed to both James Nguyen and Anh Nguyen.

The statement bore the stamp « paid ».This municipal tax bill shatters all pretence of truth in Anh Nguyen’s claim that bills were sent to her by her father or her uncle. Why would a municipal tax bill—whose payment concerns but the owner of the property—be in a home that was supposedly occupied by a tenant? Why wasn’t this bill—like the hydro bills—picked up by her father or uncle and sent to her residence in Mississauga? Who would have had an interest in opening the statement and leaving it at the Jacques-Lemaistre property? [ 149 ] The municipal tax statement was stamped « paid ».

Obviously, the bill was not paid by Anh Nguyen. Which begs the question : why would the tax bill be paid by someone other than the legitimate owners of the property? Obviously, someone other than James and Anh Nguyen had an interest in paying the municipal tax bill. —Never claimed rental losses for income tax purposes [ 150 ] Like her brother, Anh Nguyen never claimed the losses from the Jacques-Lemaistre property. The losses were important and would have contributed to reducing her taxable income.

I can’t believe that an educated and intelligent young woman would not know that losses from rental income were deductible against earnings. If she had truly incurred the losses for the Jacques-Lemaistre property, she would have declared them —On who had the key to the property [ 151 ] Ms. Anh Nguyen claimed that only her father had a key to the Jacques-Lemaistre property. This affirmation totally contradicts the testimony of her mother, Ms.

Thi Tuan Le, who claimed to be the only one with a copy of the key. —Purpose for purchasing the property [ 152 ] The property was purchased partly for investment purposes and, perhaps, to live there in case she studied medicine at McGill University. As mentioned above, the investment component of the purchase made no sense. I cannot believe that the property was purchased with a view to generating income from rent.

The financial incongruity of the investment along with the applicants disinterest in managing the property constitutes further proof that they were nothing more than figureheads. [ 153 ] With regards to using the property as a home away from home for her medical studies at McGill University, one should note that she was still a science undergraduate in June 2005. There was no guarantee that she would be one of the few students selected from the vast number of hopeful applicants. For that matter, there was no evidence that she even applied to study medicine at McGill.

Testimony of Thi Tuan Le —Concerning her frequent trips to Montreal for work-related purposes [ 154 ] She claimed that she came to Montreal once per week or twice per week on account of her work as a seamstress. Here is why I cannot believe this part of her story: To begin, what seamstress job could pay enough money to warrant the time and inconvenience of travelling 1 200 kilometres to Montreal and back to Mississauga? According to her testimony, she earned circa 30 0000 per year as a seamstress. Next, she stated that the person who gave her work in Montreal had a lot of employees of his own.

Why, then, would he need to hire Ms. Thi Tuan Le as a seamstress? Finally, this supposed boss of hers never came to testify. In a s.19 (3) application, one must be mindful that the burden lies with the applicants. It would not have been very complicated to subpoena Ms. Thi Tuan Le’s boss. [ 155 ] If Ms. Thi Tuan Le did indeed come to Montreal on a regular basis, I am convinced that it could not have been for her work as a seamstress.

—Fabrication of false documents [ 156 ] By her very own testimony, she admitted to falsifying information on a bank application loan and on a notarial deed. Just as troubling, she arranged for a phoney letter indicating that her daughter worked as a marketing representative at a firm in Montreal where she earned 44 000 dollars per year.

The purpose behind the deceit was to buttress the chances of obtaining the loan necessary to purchase the property. [ 157 ] Regardless of the purpose, her ability and willingness in falsifying information greatly affects her credibility. [ 158 ] I take a moment to note that the phoney letter of employment grossly exaggerated any income that Ms. Anh Nguyen could have earned in 2005. Clearly, the mother knew or at least feared that revealing her daughter’s true income would hamper the chances of having the loan approved.

In essence, the mother knew what we’ve known all along: namely, that her children’s income would not support the financial obligations of owning the property at 1405 Jacques-Lemaistre Street. — Previous knowledge of the marijuana grow operations at the family residence [ 159 ] Ms. Thi Tuan Le claimed that she had no knowledge of the marijuana grow operation at the family home on Ivor Crescent street back in November of 2004. She added that she did not even live there when the police discovered it.

According to her explanations, constant quarrelling with her ex-spouse obliged her to leave the family residence with her children and to rent a home on Chadburn Street. [ 160 ] For the following reasons, I do not believe Ms. Thi Tuan Le. Firstly, it’s difficult for me to believe that Ms. Thi Tuan Le would leave the home that she owned and for which she alone paid the mortgage. Moreover, her claim that she didn’t live with her husband at the time of the police operation was wholly contradicted by the testimony of her son, James Nguyen.

One will recall his admission to the effect that he lived at the family residence on Ivor Cresenct Street when the marijuana grow operation was discovered. Therefore, Ms. Thi Tuan Le cannot be telling the truth when she claimed to be living at a rental property with her children when her ex-spouse was arrested and charged for production of marijuana. —Her explanations with regards to the cash deposits in the mortgage account [ 161 ] Ms. Thi Tuan Le attempted to explain the significant cash deposits in the mortgage account.

She gave a name for the individual who used the initials « C.D. » when making cash deposits at the counter : Mr. Chang. According to her testimony, Mr. Chang assisted her—from time to time—with the collection and deposit of the rent money. [ 162 ] I do not give any credence to this story. Firstly, Mr. Chang—if he ever existed—never took the stand in order to corroborate the testimony of Ms. Thi Tuan Le. Secondly, the participation of a Mr.

Chang in the collection of the rent money was contradicted by the testimony of the applicants, James and Anh Nguyen, who claimed that the rent money was collected by their father or uncle. Finally, the sums deposited in the mortgage account never corresponded to the amount of the supposed rent paid by a supposed tenant. [ 163 ] She offered a lame explanation for the discrepancy between the rent charged and the amount actually deposited in the mortgage account: Some of the money collected from the tenant would be spent—leaving a different amount to be deposited. [ 164 ] Her explanation holds no water.

If only some of the money was spent, one would find cash deposits that were inferior to the rent of circa 1 400 or 1 500 per month. Unfortunately (for Ms. Thi Tuan Le’s story), most of the deposits were for significantly greater sums. As was seen earlier, on one multiple-deposit day, 4 850 dollars was deposited in the mortgage account. — Concerning who had the key to the property [ 165 ] Ms. Thi Tuan le claimed to have the only key to the property.

This assertion was contradicted by the testimony of Anh Nguyen who claimed that it was her father who had the key. —On the decision to exclude the other siblings from the deed of purchase [ 166 ] One will recall that Ms. Thi Tuan Le did not want her son to figure as co-owner of the property at Jacques-Lemaistre on account of his arrest regarding a marijuana grow operation. If the property was legitimately purchased for the purposes of investment, why would her son’s previous brushes with the law constitute a bar to ownership of the property?

I strongly suspect that the decision to exclude her eldest from formal ownership was predicated on the need to keep a low-profile—thus avoiding the attention of the authorities. —Knowledge of the marijuana grow operation at 1405 Jacques-Lemaistre [ 167 ] Ms. Thi Tuan Le claimed that she had no knowledge of the illicit activities going on at 1405 Jacques-Lemaistre. Though there was no smoking gun let alone any evidence that she was at the property during the time the marijuana plantation was in operation, I do not believe her.

Let me outline why: ● Inexplicable cash deposits in the mortgage account She’s depositing a considerable amount of cash money in a mortgage account that belongs to her two children. The money, however, cannot possibly come from the collection of rent. In the absence of a satisfactory explanation, what could possibly be the source of the said money?

In answering the question, I cannot help but consider that a sizeable and sophisticated marijuana grow operation was found at the property she was mandated to manage for her kids. ● Frequent visits to Montreal Assuming that Ms Thi Tuan Ti Le visited Montreal on a regular basis, she must have surely dropped by the property that she managed for her children. If so, how could she be oblivious to the commercial sized plantation that was operating out of the basement of the property? Likewise, if she collected the rents,

how could she not have smelled the strong and distinctive odour of raw marijuana? ● Familiarity with marijuana grow operations A marijuana grow operation was found in thebasement of the family home on Ivor Crescent street. I also add that a marijuana grow operation was discovered at the home of her eldestson—the same home that once served as the family residence.

Application of the law to the case at bar On the issue of lawful or legitimate ownership [168] The crown objected to relief on the grounds that both James and Anh Nguyen were but figureheads with regards to the ownershipof the property at 1405 Jacques-Lemaistre Street.

As such, they didn’t qualify under s. 19(3) of the CDSA « as the lawful owner or as theperson entitled to possession of any property … that would otherwise be forfeited pursuant to an order made under s. 16(1) » [169] I agree with the Crown that James and Anh Nguyen were but figureheads with regards to the ownership of the property.However, as the registered owners of the property they still qualify as « lawful owners » or owners « entitled to the property. » According to the title deeds, they are the lawful owners.

Thus, their role as figureheads does not disqualify them from a s. 19(3)application for relief Property transferred for the purposes of voiding forfeiture [170] The Crown also argued that the applicants did not qualify for relief from forfeiture on the grounds that the property waspurchased « under circumstances that give rise to a reasonable inference that the title or right was transferred for the purpose of voidingthe forfeiture of the property purchased. » [171] Like the Crown, I suspect that the names of James Nguyen and Anh Nguyen appeared on the title deed so as to avoid attractingthe attention of the authorities.

Contrary to the eldest sibling, neither one of the applicants has a criminal record let alone any previousrun-ins with the law. I also suspect that the property was registered in the names of James and Anh Nguyen—two hardworking students—in order to present a more sympathetic s. 19(3) case in the event of a forfeiture application. [172] This being said, the CDSA only disqualifies from its relief provisions the property owner who purchased or acquired the title froma person charged with a designated substance offence. This

interpretation is the only one consistent with s. 19(3)

a) and

b) of the CDSAwhich disqualifies from relief : (

a) a person who was charged with a designated substance offence, or (

b) a person who acquired title to or a right of possession of the property from a person referred to in paragraph (

a) undercircumstances that give rise to a reasonable inference that the title or right was transferred for the purpose of avoiding the forfeiture ofthe property. (Underlining added) [173] In the case at bar, there is nothing to suggest that the person selling or transferring the property back in June 2005 was chargedwith a designated substance offence or that he did so with a view of avoiding a forfeiture order.

Do the applicants appear innocent of complicity or collusion? [174] The Crown also argued that relief from forfeiture should be denied on the grounds that the applicants do not appear to beinnocent of complicity or collusion in the offence. Ms. Robert did not suggest that the applicants participated in the marijuana growoperation on Jacques-Lemaistre Street. Rather, she argued that they had to have known or, at the very least, strongly suspected that amarijuana plantation was operating out of their property.

By closing their eyes to the truth, they allowed their property to be used forcriminal purposes. [175] The concepts of complicity, collusion and wilful blindness are difficult to get a handle on. A review of the case law would behelpful. [176] In R. v. ERJO, 2005 SKQB, (14 CanLII), at paragraphs 33 and 34, Justice Singer of the Provincial Court of Saskatchewanprovided the following

definitions for complicity and collusion : Complicity is a partnership in wrong doing, the root of the word is the same as for the word accomplice. Collusion is a fraudulent secretunderstanding or the act of secretly acting with another to achieve a fraudulent or illegal purpose. Complicity or collusion logically require that the owner of the property have knowledge of the activity of the offender. [177] In the leading case of R. v.

Villeneuve, (QCCA), Justice Robert of the Court of Appeal of Quebec noted thatthe concept of complicity was well-known and well-defined in criminal law while collusion is a civil law concept whose scope has to bedefined. He then quoted from different sources the definition of «collusion»: La complicité est un concept bien connu et bien défini en droit criminel; la collusion au contraire, est un concept de droit civil, dont ondoit définir la portée. Gérard Cornu, dans son vocabulaire juridique, définit la (collusion) ainsi :

« Entente secrète entre deux ou plusieurs personnes en vue d'en tromper une ou plusieurs autres. » Le Dictionary of Canadian Law, quant à lui, en donne la définition suivante : « Coming together to commit fraud to deceive. » Hubert Reid propose la définition qui suit : « Entente secrète entre deux ou plusieurs personnes dans le but de causer un préjudice à une ou plusieurs personnes ou d'atteindre unobjectif prohibé par la Loi. » [178] From the afore-mentioned

definitions in Villeneuve, collusion includes two components, first an agreement and second an aimwhich is to mislead one or more person.[13] [179] How does one establish complicity or collusion? For justice singer In ERJO, complicity or collusion logically requires that theproperty owner have knowledge of the illegal activity of an accused.

In this respect, knowledge may be established by wilful blindness.He cautioned, however, that wilful blindness is a restrictive rule : [36] The concept that knowledge can be proven by what a person ought to know or what a reasonable man would suspect has noplace in the criminal law. Knowledge in criminal law is always subjective. [37] However, as Glanville Williams has said, « Willful blindness is the equivalent of knowledge. » [38] In R. v.

Barbeau, The Quebec Court of Appeal explained that the test for « willful blindness » was subjective, dependant uponwhat the individual actually knew, not what he should have known or what he might normally have known. [39] Wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquirybecause he does not wish to know the truth but would prefer to remain ignorant.[8] [180] In Sansregret v.The Queen, (SCC), Justice McIntyre explained the limited scope of the wilful blindness doctrineand the subjective test required for its application : Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in acourse of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become awareof the need for some inquiry declines to make the inquiry because he does not wish to know the truth.

He would prefer to remainignorant.

The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilfulblindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry. [14] [181] In Villeneuve, supra, the Quebec Court of Appeal stated that wilful blindness may be taken into consideration to establishcollusion : Le comportement de l’appelant que le juge qualifie d’aveuglement volontaire peut être pris en compte non pour établir en soi s’il y aaveuglement volontaire mais plutôt pour établir s’il y a collusion. [182] In other words, conduct which constitutes wilful blindness may be taken into account not to establish wilful blindness but rather toestablish that there was collusion.[15] [183] Mere knowledge or presumed knowledge of the illicit activities going on at the property at Jacques-Lemaistre is insufficient toprove complicity (R v.

Erjo)). Complicity, as defined in Erjo, is a partnership in wrong doing. In the case at bar, there is no doubt that therespondents knew or should have known that their property was being used for the production of cannabis. However, there was noevidence that they were in league with any of the individuals who participated in the offence. [184] Collusion is another matter altogether. As explained in Villeneuve, it includes two components, first an agreement and second anaim to mislead one or more persons.

The mere fact that the applicants acted as figureheads in the purchase of the impugned propertyattests to their « aim of misleading one or more persons ». [185] From Villeneuve, we also learn that wilful blindness may be taken into account to establish collusion. Given the nature of theevidence, there could be no doubt that the applicant

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