2011 QCCQ 14192, 2011 QCCQ 14192

Unofficial English Translation R. c. Dion 2011 QCCQ 14192 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ARTHABASKA LOCALITY OF VICTORIAVILLE “Criminal division” No: 415-01-015671-066 (002) 415-01-015701-061 DATE: November 24, 2011 ____________________________________________________________________ PRESIDING: THE HONOURABLE JACQUES TRUDEL ____________________________________________________________________ THE QUEEN Prosecutrix v. SÉBASTIEN DION Accused ____________________________________________________________________ DECISION ON A MOTION FOR FORFEITURE OF OFFENCE-RELATED PROPERTY

section 16 of the Controlled Drugs and Substances Act [1] ____________________________________________________________________ [ 1 ] On April 13, 2010, the accused pleaded guilty to several charges of production of cannabis, conspiracy to produce and traffic in cannabis, and other offences relating to his overall cannabis production activities. [ 2 ] The Attorney General of Quebec seeks the forfeiture, as offence-related property, of an immoveable (real property) owned by Sébastien Dion as designated in the motion on record and consisting of land and a building erected on it.

The evidence does not show that, strictly speaking, cannabis was grown at that location. The evidence does show, however, that this immoveable was used to produce cannabis, serving, for example, as a warehouse for a significant amount of equipment and material used to produce cannabis.

The evidence also shows that work was done in the garage to harvest the buds of cannabis plants to obtain the finished product. [ 3 ] From November 20, 2005, to November 2006, the accused participated in and directed cannabis production activities as principal offender or by complicity with many other people throughout a vast area of Quebec, with a high concentration of production sites in the Bois-Francs region. [ 4 ] A police operation named “Barbelé” (Barbed Wire) aiming to dismantle this operation led to the arrest and charging of dozens of people and the discovery, search and eradication of many production sites.

According to the evidence collected during the police investigation, the accused, along with one Gabriel Payeur and one Éric Boilard, were the directing minds of this vast cannabis production operation. [ 5 ] On April 13, 2010, these men pleaded guilty before the undersigned and, on September 24, 2010, following a joint suggestion by the parties, were sentenced to significant penitentiary sentences of between 34 and 38 months, taking into account the five months of pre- sentence custody and crediting them as ten months. Consequently, Dion’s total sentence was 48 months in penitentiary.

The charges to which Dion pleaded guilty, which we will discuss later on, as well as the sentences imposed by the Court and suggested by counsel, are in themselves indications of the scope of the offences and the degree of criminal liability of the accused persons, including Dion. ISSUES: [ 6 ] Does the immoveable at issue constitute offence-related property within the meaning of

section 16 of the Act? [ 7 ] If so, would the impact of the forfeiture of the immoveable be disproportionate on the basis of the criteria set out at paragraph 3 of

section 19.1 of the Act? Finally, if the forfeiture does not constitute a disproportionate measure, should the Court confiscate all or only a part of the immoveable to be designated? LAW: [ 8 ] First of all, it should be noted that after hearing submissions on sentencing and evidence on the motion, which was adduced exclusively by the applicant, the only possible conclusion is that almost all the facts relied on by the applicant are uncontradicted and are

proved beyond a balance of probabilities. [ 9 ] This is a premise essential to the final outcome of the issues in dispute. [ 10 ] It is also appropriate to note the relevant parts of the legislative provisions that will form the basis of our analysis of the issues. [ 11 ] First of all, certain

definitions from the Act. [ 12 ] Section 2(1) of the Act : “ offence-related property ” means, w ith 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 … “produce” means, in respect of a substance included in any of Schedules I to IV, to obtain the substance by any method or process including (

a) manufacturing, synthesizing or using any means of altering the chemical or physical properties of the substance, or (

b) cultivating, propagating or harvesting the substance or any living thing from which the substance may be extracted or otherwise obtained, [ 13 ] It is understood and undisputed that the offences of producing cannabis and conspiracy to commit this offence constitute designated offences as defined in

section 2 of the Act. [ 14 ] For its part,

section 16 of the Act states the following: 16 (1) … where a person is convicted of a designated substance offence and … 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) …

b) in the case of any other offence-related property, i) … ii) … order that the property be forfeited … Property related to other offences (2) … where the evidence does not establish to the satisfaction of the court that the designated substance offence of which a person has been convicted was committed in relation to property in respect of which an order of forfeiture would otherwise be made under subsection (1) but the court is satisfied, beyond a reasonable doubt, that that property is offence-related property, the court may make an order of forfeiture under subsection (1) in relation to that property. [ 15 ]

Section 19.1 of the Act: 19.1 (1) … (2) … Non-forfeiture of real property

(3) Subject to an order made under subsection 19(3), if a court is satisfied that the impact of an order of forfeiture made under 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 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. Factors in relation to dwelling-house

(4) Where all or part of the property that would otherwise be forfeited under subsection 16(1) or 17(2) is a dwelling-house, when making a decision under subsection (3), the court shall also consider (

a) the impact of an order of forfeiture on any member of the immediate family of the person charged with or convicted of the offence, if the dwelling-house was the member’s principal residence at the time the charge was laid and continues to be the member’s principal residence; and (

b) whether the member referred to in paragraph (

a) appears innocent of any complicity in the offence or of any collusion in relation to the offence.

[ 16 ] The garage whose forfeiture is sought contained a

section built and fitted out in all likelihood to serve as a residence or dwelling house; at the time of the search it even contained furniture. [2] [ 17 ] This part of the immoveable, concealed from the exterior since it is incorporated into the garage, was not inhabited and, at the time of the search in October 2006, that

section of the garage, which we know was built in 2005 or early 2006 and thus a few months before the final search and seizure operation in October 2006, contained no evidence that it was occupied. [ 18 ] The Court concludes that paragraph 4 of

section 19.1 of the Act does not apply because, in fact – and this is not disputed – at the time of the search and even at the time of the surreptitious searches conducted earlier, this part of the garage was neither kept nor occupied as a permanent or temporary residence within the meaning of the definition of a dwelling-house under

section 2 of the Criminal Code ; hence no member of Dion’s immediate family was occupying that location as their principal residence or even their temporary or secondary residence. Moreover, counsel for the parties submitted no argument on the matter. It was nevertheless necessary to dispose of this issue since the evidence shows the existence of this physical structure in the immoveable. THE EVIDENCE: [ 19 ] Exceptionally, at this stage, it is worth noting the entirety of the charges to which the accused pleaded guilty. [ translation ] File: 415-01-015671-066 (002) 1.

Between December 20, 2005, and October 30, 2006, at Victoriaville, district of Arthabaska, at Plessisville, Laurierville, Saint-Pierre- Baptiste, Inverness, districts of Arthabaska, Frontenac, and elsewhere in the province of Quebec, did conspire with each other and with Dany Bourque, Annie Lapierre, Martin Désilets, David Goulet, Josée Grenier, Annabelle Nadeau, Jonathan Turgeon, Éric Lessard, Chantal Gilbert, Maryse Bégin, Marc Champagne, Léopold Côté, Martin Turgeon, Stéphane Bélanger, Lucie Dion, André Dion and others to commit an indictable offence, to wit: producing cannabis (section 7(1)(2)(

b) CDSA), thereby committing an indictable offence under section 465(1) (

c) of the Criminal Code . 2. Between December 20, 2005, and October 30, 2006, at Victoriaville, and at Cap-Chat, district of Arthabaska, at Plessisville, Sainte- Clothilde-de-Horton, Laurierville, Saint-Albert, Saint-Ferdinand, Saint-Pierre-Baptiste, Inverness, Lyster, St-Jean-de-Bréboeuf, Villeroy, Val-Alain, Ham-Nord, Notre-Dame-du-Bon-Conseil, Saint-Fréféric, districts of Arthabaska, Frontenac, Québec, St-François, Drummond and Beauce, did produce cannabis (marijuana), thereby committing an indictable offence under section 7(1)(2)(

b) of the Controlled Drugs and Substances Act , in conjunction with

section 21 of the Criminal Code . 15. Between September 14, 2006, and September 29, 2006, at Saint-Pierre-Baptiste, district of Frontenac (2010 Hamilton), did produce cannabis (marihuana), thereby committing an indictable offence under section 7(1)(2)(

b) of the Controlled Drugs and Substances Act . 16. Between September 20, 2006, and October 6, 2006, at Saint-Pierre Baptiste, district of Frontenac (401 Charles Armand), did produce cannabis (marihuana), thereby committing an indictable offence under section 7(1)(2)(

b) of the Controlled Drugs and Substances Act . 17. Between October 8, 2006, and October 10, 2006, at Inverness, district of Frontenac (2011 Hamilton, lot P-308), did produce cannabis (marihuana), thereby committing an indictable offence under section 7(1)(2)(

b) of the Controlled Drugs and Substances Act . 18. On or about October 10, 2006, at Inverness, district of Frontenac, (2011 Hamilton), did have in his possession a 2006 Argo Avenger, VIN: 2DGSS0BT26NV24456, of a value exceeding five thousand dollars, knowing that the thing was obtained by the commission in Canada of an offence punishable by indictment, thereby committing an indictable offence under

section 355 (

a) of the Criminal Code . 19. On or about October 10, 2006, at Inverness, district of Frontenac (2011 Hamilton), did have in his possession a 2006 Argo Avenger, VIN: 2DGSS0BT76NV24445, of a value exceeding five thousand dollars, knowing that the thing was obtained by the commission in Canada of an offence punishable by indictment, thereby committing an indictable offence under

section 355 (

a) of the Criminal Code . File: 415-01-015701-061 1. Between November 22, 2006, and November 24, 2006, at Val-Alain, district of Québec (currently detained at Victoriaville, district of Arthabaska), did conspire with Richard Roberts to commit an indictable offence, to wit: trafficking in cannabis (marihuana), thereby committing an indictable offence under section 465(1) (

c) of the Criminal Code . 3. On or about November 29, 2006, at Victoriaville, district of Arthabaska, did have in his possession sums of Canadian money ($5,785) and American money ($1,000), of a value exceeding five thousand dollars, knowing that the thing was obtained by the commission in Canada of an offence punishable by indictment, thereby committing an indictable offence under

section 355 (

a) of the Criminal Code . [ 20 ] A reading of these charges indicates the following. The period of time during which the accused was engaged in producing cannabis and conspiring to do so occurred between December 20, 2005, and November 24, 2006.

The charges also name the people with whom Dion conspired to produce cannabis: Gabriel Payeur, Éric Boilard, seventeen other named individuals, and others who are not named in the charges. [ 21 ] Therefore, Dion admits that, between December 20, 2005, and October 30, 2006, he produced cannabis, as principal offender or by complicity, in sixteen localities in the judicial districts of Arthabaska, Frontenac, Québec, Saint-François, Drummond and Beauce, and although it is not raised here by the prosecution, in the locality of Cap-Chat.

The accused admits having produced cannabis by complicity by helping other producers named and unnamed in the counts, in particular by supplying equipment, materials, assistance and advice. In addition, he admits having produced cannabis as the principal offender between September 14 and September 29, 2006, at

2010 Hamilton, at 401 Charles Armand in Saint-Pierre-Baptiste and finally at 2011 Hamilton, lot P-308, at Inverness, the immovable whose forfeiture is requested by the Crown. The accused also admits that on October 10, 2006, he was in possession of two Argo vehicles, which were located on lot P-308. He admits that in October 2006 he conspired with Roberts to traffic 45 pounds of cannabis between November 20 and 24, 2006.

Finally the accused admits having had in his possession a sum of money exceeding $5,000, knowing that this sum of money was obtained by the commission in Canada of an offence punishable by indictment . [ 22 ] In addition, the submissions on sentencing made on September 24, 2010, by Mtre Bouchard and Mtre De Thomasis, representing Gabriel Payeur, Éric Boilard and Sébastien Dion, summarize the circumstances of the offences in the following way. [ 23 ] Noticing a proliferation of cannabis production in the MRC (regional county municipality) de L’Érable between 2003 and 2006, the Sûreté du Québec (Quebec provincial police) decided to launch an operation known as “Barbelé” to dismantle a cannabis production operation involved in everything from the preparation of land, the cultivation of cuttings, and their production up to the harvesting and processing of the plants for marketing. [ 24 ] Armed with multiple judicial authorizations, Sûreté du Québec agents proceeded with a number of observations, surveillances, video recordings, wire taps and searches leading to the discovery of about twenty cannabis plantations in the places named in the counts.

Approximately 16,000 cannabis plants and 827 kilograms of processed cannabis were seized.

More than 10,000 plants came from plantations connected with the accused. [ 25 ] At the hearing of this motion, expert for the prosecution Michel St-Onge, a Sûreté du Québec officer, estimated the value of all of the cannabis seized at all the plantations discovered during operation “Barbelé”, including many managed by the accused or for which he admits his guilt through complicity, to be more than $10 million. [ 26 ] About sixty people were also arrested and charged for having participated in various levels of the cannabis production operation.

The accuseds Payeur, Boilard and Dion managed work teams looking after the various stages of production. The accuseds also shared or mutually provided labour, advice, materials, equipment and expertise. [ 27 ] During the investigation, it was discovered that the accuseds used two main cultivation methods.

The first consisted in dividing black plastic bags containing peat moss in half and placing a cutting in each half; these bags, containing all the nutrients needed to grow the cuttings, were then placed at the various sites used by the accuseds to produce the cannabis. [3] These sites were generally located near water sources from which water was pumped with the required equipment. The second method consisted in using jute bags filled with earth. The bags were closed with metal fasteners, and a cutting was placed in each one.

The bags were then placed in trenches dug in the ground at the selected sites, generally with a mechanical digger. [4] [ 28 ] During the October 2006 search, bundles of jute bags, a package of metal fasteners, pallets of black bags containing peat moss, all identical to or at least very similar to those found at almost all the plantations discovered, were found at 2011 Hamilton. [ 29 ] Other materials and items of equipment identical to or very similar to those seized at 2011 Hamilton, such as army-style tents, burners, generators, vats and other articles used in and sometimes even manufactured for cannabis production, were found at several production sites. [ 30 ] In addition to a mechanical digger registered to Martin Désilets, co-conspirator of the accused, three amphibious vehicles contaminated with cannabis residue were found at lot P-308. [ 31 ] Finally, observations filmed at 2011 Hamilton show the accused and his accomplices handling black bags of peat moss on pallets outside the garage as well as many jute bags containing soil.

ANALYSIS: [ 32 ] The evidence shows on a balance of probabilities that the immoveable located at 2011 Hamilton at Inverness, lot P-308, and the garage erected there served as a warehouse for the material and equipment used or intended to be used for all of the cannabis production activities of the accused and his accomplices, which is not contradicted. [ 33 ] Significant circumstantial evidence shows that the immoveable was also used as a staging area for the cannabis plants, once removed from the plantation sites, to be processed through the operations known as [ translation ] “debudding” and [ translation ] “trimming” in preparation for their sale and consumption. [ 34 ] In addition to the guilty pleas, there is ample evidence to support these conclusions. [ 35 ] We note that the accused pleads guilty to having produced cannabis at 2011 Hamilton, lot P-308, not in this case by complicity, as specified in the seventeenth count of the case number 415-01-015671-066, and this guilty plea alone supports the characterization of the immoveable at issue as offence-related property. [ 36 ] The defence argues that since there is no evidence of cannabis cultivation in the proper sense of the word either at lot P-308 or in the garage that was erected there, this is not offence-related property.

According to the defence, the evidence shows rather that the immoveable was used to store the equipment and materials employed in the production of cannabis as well as in certain activities that, in the opinion of the Court, were nevertheless part of the cannabis production process. [ 37 ] Another defence argument is that the accused was not the principal offender in all of the cannabis production -operations discovered; indeed, in many of them, he was guilty of production by complicity, although he does not clarify this fact either through his counsel or through the evidence. [ 38 ] To summarize, the only evidence available to the Court concerning 2011 Hamilton, lot P-308, is that of the Crown, in addition to the accused’s guilty plea and the submissions on sentencing.

[ 39 ] In fact, this evidence does not show that the accused or any other person working with or for him grew cannabis at that location. The evidence does show, however, on a balance of probabilities, that this location served exclusively as a place to store the equipment used or intended for the production of cannabis. The evidence also shows that the immoveable was used as a staging area not only for the equipment but also for the cannabis harvested at some of the production sites with which the accused is associated. This evidence is based in particular on the contamination of almost all of the garage

section of the immoveable by cannabis residue, by the contamination of the equipment, by observation of the sites, and by electronic surveillance. [ 40 ] In light of the objects found and seized in that garage during the search, conversations between Martin Désilets and Dion and between Annabelle Nadeau and David Goulet show that the buds of the cannabis plants were indeed harvested at that location, and that the cannabis plants were thus processed so as to keep only the consumable part, of which 1151 grams of buds were indeed found in five Ziploc bags, all hidden in a black plastic barrel. 2011 Hamilton, lot P-308, at Inverness, property intended for or used for the production of cannabis [ 41 ] Between December 20, 2005, and October 30, 2006, the accused produced cannabis as the principal offender or as accomplice and, as acknowledged during the sentencing hearing, he did so as the directing mind.

On November 8, 2005, shortly before the established offence, he acquired 2011 Hamilton, lot P-308, at Inverness, a property on which, since the previous August, he had been keeping the equipment used to produce cannabis: drier, semi-trailer, trailer, Argo amphibious vehicle, black plastic boxes for cuttings, metal harnesses and other items. [5] [ 42 ] In December 2005, the accused began to erect on lot P-308 a garage measuring about 100 by 40 feet that would be finished and ready for use at the beginning of the cannabis production season in May 2006. [ 43 ] During that same period, i.e., from November and December 2005 until the final search carried out in October 2006 at 2011 Hamilton, the many observations and searches led to the discovery and demonstration that activities related to cannabis production were taking place at that location, namely, the storage and transport of peat moss bags and jute bags filled with soil, the activities of the accused and his accomplices and/or co-conspirators related to the materials stored on the premises, and finally activities related to the harvesting of the buds from the cannabis plants. [6] [ 44 ] It is important to note that the individuals observed and filmed at 2011 Hamilton during this period were precisely Dion’s accomplices and/or co-conspirators: David and Jonathan Goulet, Martin Désilets, and Gabriel Payeur.

In assessing the evidence, it is important to note that almost all of the materials, equipment and machinery seen either inside or outside the garage had been used, were being used, or were intended for use for cannabis production, from the planting of cuttings to the harvesting of buds and the preparation of the cannabis for sale. [ 45 ] Moreover many of the objects seen and seized in October 2006 were found in great quantities on the premises.

In other words, the search did not turn up merely a few objects here and there in or around the garage, but rather pallets of 19 peat moss bags, packs of jute bags, a package of clips to fasten those bags, stacks of cardboard boxes, and several burners, ventilators, lights, driers, water pumps, and boxes of Ziploc bags. [7] [ 46 ] During this same period, from December 2005 to October 2006, the police operation led to the discovery of some twenty cannabis production sites in the localities where the accused admits having produced cannabis as principal offender or by complicity.

In the majority of those plantations, objects and cannabis production materials similar or identical to those discovered in the garage at 2011 Hamilton were found, for example, army-style tents, burners, animal traps, swimming pool water pump pipes, bundles of jute bags with fasteners, bags of black peat moss, cardboard boxes labelled “Mitchell Lincoln”, bags of fertilizer sold by the Fernand Corbeil company, cutting trays, blue and white bags of fertilizer labelled “Jack's professional water-soluble fertilizer”. [ 47 ] A radio beacon installed on the Ford 350 belonging to the accused indicates that the vehicle travelled to several of those plantations or their immediate surroundings, not to mention the numerous times it was found at 2011 Hamilton. [ 48 ] We will take just one example among all the other production sites to illustrate the concordance or similarity between the objects found and seized in the garage at 2011 and those found at plantations, as well as the concomitance of similar objects at a production site and in the garage: this is the site at 2010 Hamilton in St-Pierre-Baptiste, on land located very near the immoveable at issue and searched on September 29, 2006.

The search led to the discovery of a large quantity of cannabis plants: 80,000 grams of plants drying in an old building and in an army-style tent like that found in the garage.

Other equipment, a generator, jute bags, burners, ventilators and trimmers similar to those seen and eventually seized a month later at 2011 Hamilton were also found at the site. [8] Extent of the accused’s involvement in the production and trafficking of cannabis [ 49 ] The previously summarized evidence reveals, and the accused’s guilty pleas confirm, the scope of the cannabis productions and related operations in which the accused was directly involved as directing mind with Éric Boilard and Gabriel Payeur. [ 50 ] The accused’s involvement in the production and trafficking of cannabis is such that, even after the search and seizures carried out at 2011 Hamilton, the accused conspired with one Richard Roberts to traffic 45 pounds of bagged cannabis – an offence to which he pleaded guilty, moreover. [ 51 ] The scope of the accused’s involvement is also indicated by the testimony of Martin Guimond, owner in April 2005 of lot 1388 at Inverness, where he operated a piggery.

During that time, the accused met the witness and offered him $2,000 to plant four to five hundred cannabis plants on his land. The witness told the Court that he had seen the plants near his piggery and had in fact found $2,000 in a brown envelope in his mailbox shortly after seeing the cannabis plants. [ 52 ] In 2006, the accused made the same request of the witness, this time for the amount of $4,000. Guimond claimed that he refused for fear of being caught, but a little later he again noticed that there were cannabis plants on his land.

[ 53 ] All of this evidence shows beyond a balance of probabilities that 2011 Hamilton at Inverness, lot P-308, was used for and was even intended for the production of cannabis, an offence for which the accused pleaded guilty, during the same period in which he acquired the immoveable at issue, built the garage there, and used it until the search in October 2006. [ 54 ] There is no evidence that lot P-308 was bought and used or intended by the accused for any other purpose than the production of cannabis. As indicated above, Dion neither testified nor called evidence supporting that conclusion or even raising a reasonable doubt in that regard. The fitting out of a

section of the garage to serve as a living space, commonly referred to as a residence, also confirms the intended use of the immoveable. In fact, such a cannabis production operation and the work required to obtain the finished product, which can only be done in a clandestine manner, certainly renders it useful to fit out a living space for the individuals working to produce the cannabis, including the processing stage during which the buds are harvested.

The fact that this living space is to some extent hidden, at least from the exterior since it is inside a building serving as a garage, also indicates the true intended use of this living space. [ 55 ] In addition, given where the garage is situated, that is, in the middle of a wooded area on a plantation, it is unlikely that an individual, let alone a family, would choose it for their permanent or even temporary residence. This is no doubt why 84 boxes, each containing 40 Ziploc bags, were found in this

section of the immoveable. [ 56 ] It must be concluded that lot P-308 and the garage erected there was fitted out and used only for the cannabis production operation run by the accused or in which he participated. This must be concluded even though the accused did not, strictly speaking, grow cannabis there, for two reasons: first, the immoveable served as a staging and processing area for the cannabis plants and, second, even if that were not true, the evidence summarized above shows that 2011 Hamilton was used to produce cannabis by serving as a warehouse for all of the equipment needed and used for that purpose. Notion of offence-related property [ 57 ] The

interpretation of the definition of

section 1 of the Act reveals that this definition replaced a previous one that was much more restrictive and provided in particular that, to be an offence-related property, an immoveable must have been significantly modified for the purpose of facilitating the commission of a designated substance offence . [9] In 2001, this definition was altered and extended to cover all immoveables and to establish a proportionality test . [10] [ 58 ] Referring to this legislative development, the Supreme Court of Canada states the following In Craig : [11] [22] In addition to providing insight into the purposes intended by Parliament, a number of salient features of the legislative scheme emerge from its history.

First, I think it is reasonable to infer that the s. 19.1(3) proportionality test was adopted to counterbalance the potentially harsh effects of extending the definition of offence-related property, without qualification, to all real property. … Finally, while a forfeiture order may have a punitive impact on an offender, it is also aimed at taking offence-related property out of circulation and rendering it unavailable for future designated substance offences. [ 59 ] Recently, in R. v.

Neault , [12] considering the notion of offence-related property, the Court of Appeal of Quebec emphasized the intended purpose of the property: [ translation ] [36] … the notion of offence-related property used to concern, and still does, property “ intended” for use in committing an indictable offence … [37] According to my understanding of the purpose of the order, the more we are in the presence of organized crime, the more the order is called for and, similarly, the more it appears that the property is “intended for use” in committing an offence, the more important it is not to leave it in the hands of the offender. [ 60 ] While examining legislative intent, the Court of Appeal, per Vézina J.A., cited the House of Commons Hansard, wherein the Honourable Allan Rock, Minister of Justice states: This means that you can not only seize the money that is made from the crime or the property to which you turn it but you can also seize the property used for the purpose of committing the crime . [13] [ 61 ] In light of legislative developments concerning offence-related property and of certain decisions, it is clear that the definition of offence-related property must be given an inclusive construction, largely by bearing in mind Parliament’s objective, that is, to ensure that property whose immoveables are used in any manner in the commission of an offence and above all are intended for use for that purpose are not used again for that purpose and are therefore confiscated and kept out of the hands of offenders. [ 62 ] In addition, a literal

interpretation of the definition in

section 2 of the Act equally clearly reveals the intention of covering a large number of situations through the use of the following expressions: “ by means of or in respect of which a designated substance offence is committed … that is used in any manner in connection with the commission of a designated substance offence … or… that is intended for use for the purpose of committing a designated substance offence ”. [ 63 ] Insofar as it is fair to say, as the accused submits, that lot P-308 was used indirectly in the production of cannabis (which the Court does not find), it is also fair to say, to use Parliament’s words, that this immoveable was used, “ in any manner in connection with the commission of a designated substance offence ”. [ 64 ] In addition, the Court concludes that the evidence shows on a balance of probabilities that the accused acquired lot P-308 and built the garage there to be used for such a purpose; the purchase of the land and the construction of the garage at the same time as the accused’s production activities are certainly not a coincidence.

Notion of production

[ 65 ] The evidence and the accused’s guilty plea show that he and his accomplices or co-conspirators used the garage to process the cannabis plants by removing the buds from the plants. It is difficult to reconcile the guilty plea of the accused concerning 2011 Hamilton and his counsel’s claim in this motion that the operation consisting in removing the buds from the cannabis plants is not the offence of cannabis production.

In any event, the Court wishes to dispose of this issue of the notion of production. [ 66 ] As with the notion of offence-related property, we note that the notion of the offence of production has also been the subject of legislative development over the years, revealing Parliament’s intention to be more inclusive and to cover a larger number of activities in the definition of the notion of production.

Whereas the former Act [14] provided for the offence of “cultivation”, the current Act defines the notion of production more broadly in the following words: … to obtain the substance by any method or process including… … [15] [ 67 ] In a recent decision on this issue in The Queen v.

Bégin , [16] Jacques Lacoursière J writes the following after a lengthy analysis: [ translation ] [38] It follows from the above that the task entrusted to the accuseds of removing the buds from a cannabis plant is part of production within the meaning of the Act. [39] As a result of the method they used, the accuseds obtained or [ translation ] ”manufactured” or [ translation ] “synthesized” cannabis intended for the market. [ 68 ] The Court shares the opinion of Lacoursière J. and concludes that there was cannabis production at 2011 Hamilton by the operation consisting of removing the buds from the cannabis plants, making this immoveable offence-related property.

The relation between the property and the offences of which the accused was convicted [ 69 ] It would be redundant to revisit the extent of the cannabis production in which the accused participated. The circumstantial evidence establishes, on a balance of probabilities, the connection between most of the plantations connected to the accused and the property, equipment, and materials observed and seized at 2011 Hamilton.

This connection also follows from the concomitance of the accused’s production activities and the use of 2011 Hamilton. [ 70 ] On this point, the definition of offence-related property must be read together with section 16(1) of the Act, which states that the Court can confiscate an offence-related property if it is satisfied on a balance of probabilities that the offence-related property is related to the commission of the offence or offences for which the Court has convicted the accused. In this case, there is proof of this relationship well beyond a balance of probabilities.

Proportionality of the measure [ 71 ] The immoveable at issue is described in the motion for forfeiture as well as in the deed of sale. [17] It is a plot of land acquired by the accused on November 8, 2005, at a cost of $14,000. On November 30, 2005, by another deed of sale, [18] the accused sold a portion of lot P-308 to Jonathan Turgeon at a cost of $12,000; the Attorney General does not apply for forfeiture of this land.

The MRC de l’Érable attributes a computerized value of $92,600 to the garage built on lot P-308. [ 72 ] The offences related to this immoveable are amply and sufficiently described by the counts themselves, the submissions on sentencing and the evidence on this motion, as summarized above. [ 73 ] The issue is, therefore, whether forfeiture would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence, and finally the criminal record of the accused, if any. [19] Nature and seriousness of the offence [ 74 ] These are offences involving cannabis production on several sites from which large quantities of planted, drying, and bulk cannabis were seized.

The offence of conspiracy to produce cannabis is both a designated substance offence related to offence-related property and an aggravating factor. [ 75 ] The offences committed by the accused were committed in connection with a cannabis production operation producing cannabis valuated at several million dollars by expert witness St-Onge. Finally, the wording of the count of conspiracy indicates the large number of people involved in this vast cannabis production operation, revealing once again the extent and seriousness of the offences.

Circumstances [ 76 ] The accused is one of the three directing minds of the cannabis production operation. Consequently, as director or participant and even investor – since, as we have concluded, the purchase of lot P-308 as well as the construction of the garage constitute an investment on the part of the accused intended to be used for the production of cannabis – his criminal liability is very high. [ 77 ] In addition, more than fifty people were arrested and charged in connection with this cannabis production operation.

Finally, another aggravating factor is the fact that some of the machinery used and stored at lot P-308 was stolen. Criminal record

[ 78 ] It is relevant that the accused was sentenced on December 19, 2002, for a narcotics offence, namely, possession of cannabis for the purpose of trafficking. He received a suspended sentence with two years’ probation. [ 79 ] An examination of all of the evidence both as to sentence and on the motion establishes that although his cannabis production activities were not the accused’s only activity, they were no doubt his principal activity or occupation. [ 80 ] In Neault , [20] the Court of Appeal suggests that the issue of proportionality be analyzed by weighing two factors: on the one hand, the facts relating to the offence (according to the objective and the three criteria set out in

section [should read 19.1] of the Act) and on the other hand, the impact of forfeiture. [ 81 ] Noting that the Act is silent as to what factors to consider with regard to the impact of forfeiture, the Court of Appeal proposes to examine the following factors: the use of the property in relation to its usual use, the value of the property, and the utility of the property for activities other than the offence, such as family or social activities.

Finally, the Court proposes to consider the impact of forfeiture on the accused’s immediate family. [ 82 ] As was previously mentioned, the accused did not submit evidence likely to mitigate the seriousness of the offences committed or aiming to show the disproportion of the forfeiture such as evidence relating to the costs, the value of the offence-related property, or its real partial or potential use.

The only impact is the monetary loss, concerning which the accused submitted no evidence or argument. [ 83 ] The only evidence before the Court concerning the value of the immoveable is that ensuing from the computerized value generated by the MRC de l’Érable, which totals $158,000. [ 84 ] In the face of such convincing evidence of the intended purpose and actual use of the immoveable at issue for criminal activity, namely, cannabis production, the Court is convinced on the one hand that the immoveable at issue is an offence-related property and on the other hand that its forfeiture is not disproportionate and that it must thus be delivered in full.

FOR ALL THESE REASONS: [ 85 ] The Court declares the immoveable located at 2011 Chemin Hamilton, Inverness, designated as lot number P-308-20, P-308-21, and part of 308, to be offence-related property and orders its forfeiture pursuant to the accompanying order. ________________________________ Jacques Trudel, J.C.Q. Mtre Karine Frenette For the prosecution Mtre Claude Olivier For the accused Hearing dates: June 29, 2011 June 27, 2011 May 12, 2011 May 11, 2011 May 10, 2011 May 9, 2011 December 8, 2010