ET ENTRE : 141-12-CA TREVOR HOWIE DOW APPELLANT TREVOR HOWIE DOW APPELANT - v. -, 2014 NBCA 15

COURT OF APPEAL OF NEW BRUNSWICK 139-12-CA HER MAJESTY THE QUEEN APPELLANT SA MAJESTÉ LA REINE APPELANTE - and - - et - TREVOR HOWIE DOW RESPONDENT TREVOR HOWIE DOW INTIMÉ AND BETWEEN: ET ENTRE : 141-12-CA TREVOR HOWIE DOW APPELLANT TREVOR HOWIE DOW APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Dow v. R., 2014 NBCA 15 Dow c.

R., 2014 NBCA 15 CORAM: The Honourable Justice Deschênes The Honourable Justice Richard The Honourable Justice Bell CORAM : l'honorable juge Deschênes l'honorable juge Richard l'honorable juge Bell Appeal from a decision of the Provincial Court: September 27, 2012 (sentence) Appel d'une décision de la Cour provinciale : le 27 septembre 2012 (prononcé de la peine) History of Case: Historique de la cause :

Decision under appeal: Unreported Décision frappée d’appel : inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o. Appeal heard: October 15, 2013 Appel entendu : le 15 octobre 2013 Judgment rendered: March 20, 2014 Jugement rendu : le 20 mars 2014 Reasons for judgment by: The Honourable Justice Richard Concurred in by: The Honourable Justice Deschênes The Honourable Justice Bell Counsel at hearing: For the appellant Her Majesty the Queen: Nicole Angers For the respondent Trevor Howie Dow: Martin A.

Goguen Motifs de jugement : l’honorable juge Richard Souscrivent aux motifs : l’honorable juge Deschênes l’honorable juge Bell Avocats à l'audience : Pour l’appelante Sa Majesté la Reine : Nicole Angers Pour l’intimé Trevor Howie Dow : Martin A. Goguen THE COURT Both applications for leave to appeal sentence are allowed, but both appeals and the cross-appeal are dismissed. The judgment of the Court was delivered by RICHARD, J.A. I. Introduction

[ 1 ] Two applications for leave to appeal, a cross-appeal, and a motion to adduce new evidence were heard together in the matter of a sentence totaling three years and a $53,000 fine in lieu of forfeiture, imposed after Trevor Howie Dow pled guilty to various offences under the Controlled Drugs and Substances Act , S.C. 1996, c. 19 and the Criminal Code , R.S.C. 1985, c. C-46. Both the Attorney General and Mr. Dow submit the sentence passed is unfit: Mr. Dow claiming it is too severe and the Attorney General maintaining it is too lenient. In the event either party were successful, Mr.

Dow asks that we receive evidence on his rehabilitation progress since the date of his incarceration and that we take this information into account in varying the sentence. [ 2 ] For the reasons that follow, I would grant leave to appeal to both the Attorney General and Mr. Dow, but would dismiss both appeals and the cross-appeal. As a result, Mr. Dow’s motion to adduce new evidence would be rendered moot and also dismissed. II. Factual Background [ 3 ] Trevor Howie Dow answered to 10 counts contained in an Information in which he was charged jointly with one Stéphane Gallant. Mr.

Dow pled guilty to eight counts and the other two were withdrawn. The counts to which he pled guilty alleged Mr.

Dow had: 1) Trafficked two ounces of cocaine to a police agent for $3,000 on May 5, 2012; 2) Trafficked two ounces of cocaine to a police agent for $3,000 on May 10, 2012; 3) Trafficked 12 ounces of cocaine to a police agent for $19,200 on June 1, 2012; 4) Trafficked 16 ounces of cocaine to a police agent on June 18, 2012; 5) Possession of property obtained by crime between May 5 and May 10, 2012; 6) Possession of property obtained by crime between May 10 and May 22, 2012; 7) Possession of property obtained by crime between June 1 and June 5, 2012; and, 8) Possession of property obtained by crime on June 18, 2012. [ 4 ] The facts related to the Provincial Court revealed that, in the course of a police operation targeting various individuals suspected of involvement with the Hells Angels in the traffic of illegal substances, Mr.

Dow acted as a go- between in the sale of drugs to an undercover police agent. He facilitated four transactions, corresponding to the four counts of trafficking to which he pled guilty. Mr. Dow did not profit directly from these transactions because he merely facilitated the sales as an agent for Mr. Gallant, with whom Mr. Dow was otherwise involved in the illegal sale of cigarettes. Ostensibly, Mr. Dow was trying to curry favour with Mr. Gallant, undoubtedly to enhance his profile with him and secure his spot in the illegal cigarette market.

The quantity of cocaine trafficked was approximately one kilogram for a total price of $53,000. In the course of his dealings with the police agent, Mr. Dow took steps to avoid police detection, taking counter-surveillance measures in an attempt to detect whether he was under surveillance. [ 5 ] Mr. Dow stood before the Court as a 25-year-old man with an already significant criminal record.

He was first incarcerated as a youth when he was only 13 years old, and although no Criminal Code offences featured on his record since 2006, he had, in 2010, been sentenced to pay huge fines under other federal statutes for the illegal distribution of tobacco. [ 6 ] At the sentencing hearing, the prosecution argued Mr. Dow played a significant role in the transactions, while defence counsel submitted Mr. Dow was merely a reluctant conduit between Mr. Gallant and the police agent.

The prosecution argued for a sentence of imprisonment ranging between five and five and a half years, together with a fine in lieu of forfeiture of the $53,000 that was paid for the cocaine, together with various corollary orders that are not the subject of either appeal. For his part, defence counsel submitted that since Mr. Gallant had been sentenced to imprisonment for five years, the sentence imposed on Mr. Dow should be significantly less. He advocated for a sentence of two years, less time served in remand. In reply, the prosecution countered with the argument that Mr.

Gallant had been sentenced following a joint recommendation resulting from certain factors that were not relevant to Mr. Dow’s situation.

[ 7 ] Before passing sentence, the Provincial Court judge reviewed the purpose and principles of sentencing and pointed to jurisprudence standing for the proposition that “deterrence must be the key factor in sentencing for cocaine, given that trafficking in cocaine is a crime so corrosive to the social fabric.” He noted that the roles of Mr. Dow and Mr. Gallant were “somewhat dissimilar” and that “Mr. Gallant seems to have had more of a role than Mr. Dow.” Nevertheless, the judge did not consider Mr.

Dow to have been a “minimal player in the drug trade.” In the end, the judge sought “to impose a sentence which is proportionate to the gravity of the offence by Mr. Dow under the circumstances with respect to his role in the trafficking.” He sentenced Mr. Dow to concurrent terms of imprisonment of three years on each count and to a fine of $53,000 imposed pursuant to s. 462.37(3) of the Criminal Code . In default of payment, the judge ordered Mr. Dow would have to serve a further term of 18 months. Initially, the judge did not address time for Mr.

Dow to pay the fine, but this was corrected at a subsequent appearance. The judge also made corollary orders dealing with samples for DNA testing and possession of firearms. III. Issues [ 8 ] Invoking the following grounds, the Attorney General applies for leave to appeal the sentence: (

a) That the sentence imposed is demonstrably unfit in all of the circumstances of the case; (

b) That the learned trial judge erred in principle in giving inadequate weight to the proper principles of sentencing for such offences, particularly the principles of denunciation, deterrence and the need to protect the public by separating an offender from society as outlined in

section 718 of the Criminal Code ; (

c) That the learned trial judge erred in failing to impose a sentence which was proportionate to the gravity of the offence and the degree of responsibility of the offender as required pursuant to

section 718.1 of the Criminal Code ; (

d) That the learned trial judge erred in principle in giving inadequate weight to the aggravating circumstance that the offences were committed for the benefit of, or at the direction of or in association with a criminal organization as outlined in

section 718.2 ( a )(iv) of the Criminal Code ; (

e) That the learned trial judge erred in principle by failing to appropriately consider, as required pursuant to

section 718.2 (

b) of the Criminal Code , that the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

f) That the learned trial judge further erred in principle by failing to adequately consider the record of previous convictions of the offender as required pursuant to section 10(2) (

b) of the Controlled Drugs and Substances Act . [ 9 ] Mr. Dow also seeks leave to appeal the sentence. In his written submission, Mr. Dow’s counsel rephrased Mr. Dow’s grounds, which I now paraphrase as follows: (

a) The sentencing judge erred in law and principle when imposing a period of incarceration of 3 years for trafficking cocaine and for possession of property obtained by crime because this sentence is inordinately long and therefore unreasonable; (

b) The sentencing judge erred in law when imposing a fine of $53,000, which should not have been imposed in the circumstances. [ 10 ] In the matter of Mr. Dow’s application for leave to appeal, the Attorney General has filed a notice of cross-appeal raising the same grounds raised in the Attorney General’s own application for leave to appeal.

IV. Analysis [11] The standard of review for sentencing appeals has been repeatedly stated and applied in modernjurisprudence, to the point of now being trite law. In R. v. Steeves, 2010 NBCA 57, 360 N.B.R (2d) 88, at paras. 19-29, DrapeauC.J.N.B. again reviewed the elements of the standard of review in sentencing matters. As he had 12 years earlier in R. v. R.K.J. (1998), (NB CA), 207 NB.R. (2d) 24, [1998] N.B.J. No. 483 (C.A.) (QL), and again five years after that in R. v.

LeBlanc(G.A.), 2003 NBCA 75, 264 N.B.R. (2d) 341, he explained that the duty of the appellate court is to consider the fitness of an impugnedsentence but that, in doing so, the appellate court must bear in mind the privileged position the trial judge occupies in the process. This iswhy, he explains, a deferential approach to appellate review of sentences is required when an appellate court reviews determinations thathave a subjective element, such as the weighing of relevant factors and the judgment-call on the ultimate quantum.

However, as he hadstated in R.K.J., “deference has its limits” (para. 12), and, as he reiterated in LeBlanc, intervention on appeal against sentence may beappropriate if one of the following questions can be answered affirmatively: “

(1) Is the sentence the result of an error of law?;

(2) Didthe sentencing judge err in principle in the exercise of his or her discretion?;

(3) Is the sentence clearly unreasonable having regard to thefundamental purpose and objectives of sentencing (s. 718), as well as the principles enunciated in sections 718.1 and 718.2 of theCriminal Code?” (para. 17). [12] But for Mr. Dow’s second ground of appeal, none of the other grounds invoked by either sidecan seriously be said to allege an error of law. As stated in R.K.J., such an error “most commonly occurs as a result of a misapprehensionof the evidence or a misapplication of judicial precedents” (para. 13). Leaving aside for the moment Mr.

Dow’s second ground of appeal,there is simply no basis to answer affirmatively the first question posed in LeBlanc. [13] As for errors in principle, R.K.J. broadly breaks these types of errors into three categories: (1)those where a wrong sentencing principle is applied; (2) those where relevant factors are not considered or irrelevant factors are takeninto account; and, (3) those where the failure to give proper weight to each relevant circumstance can be said to amount to an error inprinciple. [14] Grounds (

b) and (

d) to (

f) in the Attorney General’s appeal all allege errors falling into the thirdcategory. The Attorney General does not say that the judge failed to consider the principles of denunciation, deterrence and the need toprotect the public or that he did not give any weight to the aggravating circumstance or that the judge did not consider at all the principlethat the sentence imposed should be similar to sentences imposed on similar offenders for similar offences committed in similarcircumstances, or again that he did not consider the record of previous convictions of the offender.

What the Attorney General alleges isthat the judge gave inadequate weight to these factors. [15] As Drapeau C.J.N.B. pointed out in R.K.J., “[o]ur court will necessarily be slow to find anerror” (para. 13) of the type alleging failure to give proper weight to each relevant circumstance, lest “professions of deference […] ringhollow” (para. 13). That warning is most appropriate in this case. The sentencing judge considered and applied the principles ofdenunciation and deterrence, he considered the principle of parity and he considered Mr. Dow’s criminal record.

The judge attached tothese considerations the weight he deemed appropriate in the circumstances in coming to what he felt was a just sentence. In my view,the sentence of three years cannot be said to be the result of improper weighing of these factors so as to amount to an error in principle.Grounds of appeal (

b) and (

d) to (

f) are therefore without merit. [16] As for ground of appeal (

c) in the Attorney General’s appeal, I read it as simply amplifyingground (a), which was the Attorney General’s main focus at the hearing of the appeal: that the sentence is demonstrably unfit. It cannotbe said the judge did not consider the gravity of the offence or Mr. Dow’s degree of responsibility. Had the judge failed to do so, hewould have clearly committed an error in principle.

However, the judge acknowledged the seriousness of the offence, describing it as“very large amounts of cocaine in a commercial enterprise” and recognized his obligation to “impose a sentence which is proportionate tothe gravity of the offence by Mr. Dow under the circumstances with respect to his role in the trafficking”, which the judge had earlierdescribed as more than “a minimal player in the drug trade” but that was nonetheless markedly lesser than that of Mr.

Gallant. [17] Reduced to its core, this matter is about whether a sentence of three years imprisonment is unfitbecause it is either too lenient or too severe in the circumstances. In the first ground of the Attorney General’s appeal, the sentence issaid to be demonstrably unfit because it is not severe enough, while in the first of Mr. Dow’s grounds, he claims the sentence is toosevere thus making it unreasonable.

This raises the third question as stated in LeBlanc: “Is the sentence clearly unreasonable havingregard to the fundamental purpose and objectives of sentencing (s. 718), as well as the principles enunciated in sections 718.1 and 718.2of the Criminal Code?” The following principle from R.K.J. informs the approach to answer that question: “a sentence will be clearlyunreasonable where it is either inordinately long or inordinately short.

It will reach this level only if it is a substantial and markeddeparture from the sentence customarily imposed for similarly situated offenders committing similar crimes” (para. 13).

[18] Both parties have argued their appeal on the basis of the total sentence imposed and not on thefact that the same sentence was imposed for each count and ordered served concurrently. I will dispose of the appeal in the same manner,by focusing on the ultimate penalty and not on how it was calculated. In my respectful view, it cannot be said that the sentence imposedconstitutes a substantial and marked departure from the sentence customarily imposed for similarly situated offenders committing similarcrimes. Both the Attorney General and Mr.

Dow have submitted cases they claim support their respective positions. The very fact theyhave been able to do so illustrates that the sentence falls within the range of sentences imposed for trafficking in cocaine. [19] The Attorney General points to a number of early decisions of this Court and claims these areless relevant because they pre-date the need to address the growing problem of cocaine use in our society. Thus, the Attorney Generalbegins with R. v. McIntyre (1991), (NB CA), 114 N.B.R. (2d) 266, [1991] N.B.J.

No. 136 (C.A.) (QL), in which theCourt emphasized that “convicted traffickers in hard drugs will receive substantial sentences” and added that “[g]eneral deterrence is animportant component of such sentences in an attempt to discourage persons from pursuing this highly profitable activity.” McIntyre was acase where an accused found in possession of 2020 hits of LSD was sentenced to 18 months imprisonment. [20] The principles set out in McIntyre apply to this day. They have been repeated in a number ofcases, many of which are referred to in R. v.

Frost, 2012 NBCA 94, 396 N.B.R. (2d) 305, in which Quigg J.A. explained in no uncertainterms that “[t]his Court has consistently emphasized denunciation and deterrence in cases of drug trafficking by imposing jail sentenceson offenders” (para. 17). These principles were recently applied in R. v. Lennon, 2013 NBCA 19, 403 N.B.R. (2d) 207, where a sentenceof imprisonment of 30 months was upheld in the case of a 22-year-old with a lengthy previous record who pled guilty to trafficking incocaine, and again in R. v.

Martin, 2012 NBCA 95, 396 N.B.R. (2d) 343, where a conditional sentence was varied to a sentence ofincarceration of 15 months in the case of a man who had in his possession small quantities of drugs, including 5.75 grams of cocaine,intending to distribute these to people who would be attending his brother’s birthday party the following week. The 15 months wasimposed specifically for the charge of possession of cocaine for the purpose of trafficking. [21] For his part, Mr. Dow points to a number of cases where sentences less than three years wereimposed on drug traffickers. In particular, he points to R. v.

Vary, 2008 NBCA 19, 327 N.B.R. (2d) 186, where a 40-year-old man withno prior criminal record was sentenced to two years for possession of one kilogram of cocaine for the purpose of trafficking. He had beentransporting the cocaine for someone else in order to pay off drug debts. With respect, this Court’s decision in Vary cannot be used as aprecedent to support a sentence of two years.

The Attorney General’s application for leave to appeal in Vary was dismissed not becausethe Court endorsed the sentence but because the Attorney General was repudiating the position on sentence that his agent had taken atthe sentencing hearing. In fact, this Court expressly stated that, but for the principle that an appellate court will not allow the AttorneyGeneral to repudiate his or her original position unless the gravity of the offence and the gross insufficiency of the sentence outweighother considerations, the Court “might have granted leave and varied the sentence” (para. 7). [22] Mr.

Dow acknowledges other New Brunswick cases where sentences of 33 months (R. v.Ouellette (1990), (NB CA), 105 N.B.R. (2d) 222, [1990] N.B.J. No. 23 (C.A.) (QL)), 15 months (Martin) and 30months (Lennon) were imposed. He claims there are distinguishing features and that, considering Mr.

Dow’s age, early guilty plea, noprior drug-related conviction, level of involvement and pre-trial custody, a sentence of incarceration ranging between 24 and 30 monthsshould have been imposed, without any fine in lieu of forfeiture. [23] Both parties also made reference to sentencing cases from other provinces in support of theirrespective positions. [24] With respect, neither party has convinced me that incarceration for a period of three years is asubstantial and marked departure from the sentence customarily imposed for similarly situated offenders committing similar crimes.While it may be that Mr.

Dow was not profiting monetarily from his crime, by his own admission, he was involved in other illegalactivity with Mr. Gallant and evidently had his own motives for assisting Mr. Gallant with the sale of drugs. This was not an isolatedincident, as in Vary. On four separate occasions, Mr. Dow played a pivotal role in supplying the undercover agent with cocaine and, inthe process, handled significant sums of money. Mr. Dow is not a stranger to the criminal world.

He was, as the sentencing judge noted,more than a “minimal player” in this “commercial enterprise” and involved in a crime that is “so corrosive” to our social fabric. In thesecircumstances, including those factors Mr. Dow says should play a mitigating role, a sentence of three years, in my view, falls within therange of appropriate sentences. But for his young age, his early guilty plea, his having no prior drug-related conviction and his level ofinvolvement compared to others, the sentence might in fact have been much harsher. [25] In reaching this conclusion, I place little relevance on the sentence Mr.

Gallant received for thesame crimes. This, because that sentence was the result of a joint recommendation. Without knowing the reasons that motivated theAttorney General to agree to a joint recommendation, one must be cautious in making use of such a sentence in determining theappropriate sentence for another offender. It may be that in some cases, where there is a gross discrepancy, some consideration has to begiven to the sentence that is the product of the joint recommendation, but that is not the case here.

Considering each individual’s level ofinvolvement, there is nothing grossly disproportionate between a sentence of five years for Mr. Gallant and three years for Mr. Dow.

[ 26 ] I turn then to Mr. Dow’s second ground of appeal. Mr. Dow says the judge erred in law in imposing a fine of $53,000 in lieu of forfeiture. I disagree. [ 27 ] The facts conveyed to the sentencing judge undisputedly disclosed that Mr. Dow had not directly made any financial profit from the drug transactions that were the subject of the charges to which he pled guilty. The entire sum of $53,000 the police agent paid to him flowed directly to Mr. Gallant. The facts did reveal, however, that Mr.

Dow undertook to be the conduit for these transactions in order to gain some other benefit from illegal activities undertaken in concert with Mr. Gallant, that is, the sale of illegal tobacco. The judge was not informed whether a forfeiture order was issued against Mr. Gallant or whether a fine in lieu of forfeiture was ever sought against him. Nor did he inquire. Furthermore, the judge gave no reasons for issuing a fine in lieu of forfeiture. He simply adhered to the prosecution’s request that it be issued. The judge did not set a time limit for Mr. Dow to pay the fine and ordered that in default of payment Mr.

Dow serve a term of imprisonment of 18 months. At the hearing of the appeal, we were informed that, at a subsequent but unrelated appearance, the judge clarified that Mr. Dow would have two years to pay the fine. We were also informed that neither forfeiture nor a fine in lieu of was sought in Mr. Gallant’s sentencing proceeding. [ 28 ]

Part XII.2 of the Criminal Code , which came into effect in 1989, governs forfeiture of proceeds of crime. The purpose of enacting that Part of the Criminal Code was to go beyond the offender himself or herself and target the proceeds of crime with the goal “to neutralize criminal organizations by depriving them of the profits of their activities”: R. v. Lavigne , 2006 SCC 10 , [2006] 1 S.C.R. 392, at para. 9 .

In other words, Parliament’s purpose in enacting that Part of the Criminal Code was “to ensure that crime does not pay” (para. 10). [ 29 ] Under the forfeiture provisions contained in s. 462.37, where an offender is convicted or discharged under s. 730 of a designated offence, on application of the Attorney General, a judge must order that property, shown on a balance of probabilities to be proceeds of crime, be forfeited if it is also shown that the designated offence was committed in relation to that property. The terms “proceeds of crime” and “designated offence” are defined in s. 462.3.

The term “property” is defined in s. 2. All are defined in very broad terms. [ 30 ] In the present case, there was an application for forfeiture, albeit rather informally presented but nonetheless meeting the requirement of the statute: R. v. Ford , 2013 NBCA 63 , [2013] N.B.J. No. 331 (QL), per Bell J.A. In addition, the monies the undercover agent paid to obtain the drugs, in the hands of Mr. Dow and of Mr. Gallant, were clearly all proceeds of crime, and the designated offences were committed in relation to that property.

Thus, the statutory requirements to trigger s. 462.37 were all met. [ 31 ] When one is found guilty of a crime, the purpose of the general sentencing provisions is as set out in s. 718 of the Criminal Code . On the other hand, the purpose of s. 462.37 is to ensure that the offender and the criminal organization will be deprived of the proceeds of their crime and to deter them from committing crimes in the future: Lavigne , at para. 16 .

However, there are instances where this objective cannot be met by forfeiture of the proceeds of crime, such as when the property cannot be found, has been squandered, has been transferred to others, etc. In these cases, the objectives of s. 462.37 can still be met, not by forfeiture of the property in question, but by the imposition of a fine against the offender in lieu of forfeiture. Parliament has provided for this in s. 462.37 (3) , which reads as follows:

462.37

(3) If a court is satisfied that an order of forfeiture under subsection (1) or (2.01) should be made in respect of any property of an offender but that the property or any part of or interest in the property cannot be made subject to an order, the court may, instead of ordering the property or any part of or interest in the property to be forfeited, order the offender to pay a fine in an amount equal to the value of the property or the part of or interest in the property. In particular, a court may order the offender to pay a fine if the property or any part of or interest in the property (

a) cannot, on the exercise of due diligence, be located; (

b) has been transferred to a third party; (

c) is located outside Canada; (

d) has been substantially diminished in value or rendered worthless; or (

e) has been commingled with other property that cannot be divided without difficulty. 462.37

(3) Le tribunal qui est convaincu qu’une ordonnance de confiscation devrait être rendue à l’égard d’un bien — d’une

partie d’un bien ou d’un droit sur celui-ci — d’un contrevenant peut, en remplacement de l’ordonnance, infliger au contrevenant une amende égale à la valeur du bien s’il est convaincu que le bien ne peut pas faire l’objet d’une telle ordonnance et notamment dans les cas suivants :

a) impossibilité, malgré des efforts en ce sens, de retrouver le bien;

b) remise à un tiers;

c) situation du bien à l’extérieur du Canada;

d) diminution importante de valeur;

e) fusion avec un autre bien qu’il est par ailleurs difficile de diviser. [ 32 ] In Lavigne , the Supreme Court had occasion to interpret the purpose of s. 462.37 and in particular determine whether the use of the word “may” gave the sentencing judge a discretion not to impose a fine where it was shown that the offender would not have the ability to pay. For the Court, Deschamps J. held that “the discretion granted under that provision is limited and that ability to pay may not be taken into consideration either in the decision to impose the fine or in the determination of the amount of the fine” (para. 1).

She explained that where Parliament opted to make forfeiture mandatory where the Attorney General was able to show that certain property constitutes proceeds of crime and that the designated offence was committed in relation to that property, it would defeat the objectives of

Part XII.2 to give judges a broad discretion not to impose a fine in lieu of forfeiture where forfeiture of the property itself may not be possible. Deschamps J. also rejected an

interpretation pursuant to which the word “may” should be considered equivalent to “shall”, recognizing that “a court may face circumstances in which the objectives of the provisions do not call for a fine to be imposed” (para. 28). She gave as an example the situation where an “offender did not profit from the crime” and where the offence “was an isolated crime committed by an offender acting alone” (para. 28).

She explained that, in such a case, “none of the objectives would be furthered or frustrated by a decision not to impose a fine instead of forfeiture.” Recall that the objectives are to deprive the offender of the proceeds of his or her crime and deter potential offenders and accomplices. [ 33 ] In R. v. Robichaud , 2011 NBCA 112 , 381 N.B.R. (2d) 315, reconsideration allowed 2011 NBCA 112, 388 N.B.R. (2d) 394, leave to appeal to S.C.C. refused, [2012] S.C.C.A. No. 53. Deschênes J.A. for this Court summarized the principles that can be derived from Lavigne . He listed them as follows: (

a) The property that is liable to forfeiture under s. 462.37(1) is property that is "proceeds of crime" (s. 462.3(1) and s. 2 of the Code ). There is thus a wide range of "property" that could be proceeds of crime; it may be real or personal, corporeal or incorporeal. Moreover, forfeiture may apply to the original property, or property acquired in exchange for or by conversion of the original property and it is enough that the designated offence be committed "in relation to" the property. The link need not be direct (para. 13).

(

b) A court imposing sentence on a person convicted of an offence involving the proceeds of crime shall , on application of the Attorney General, order the forfeiture of the property where the offence was committed in relation to that property. There is simply no discretion at this stage (paras. 14-15). In short, provided the prosecution is able to establish the above-mentioned conditions precedent on a balance of probabilities, the forfeiture order is mandatory. (

c) There may be instances where forfeiture of the proceeds of crime is not practicable because the property may have been used, transferred or transformed or may simply be impossible to find.

Section 462.37(3) provides that the court may impose a fine instead of forfeiture of the proceeds of crime (para. 18) [Emphasis in original.] (

d) Although s. 462.37(3) provides that imposing a fine instead of forfeiture is a discretionary power , an analysis of the context and of the wording of the

section itself indicates that the discretion is nevertheless very limited. The discretion applies to the decision on whether or not to impose a fine and to the determination of the value of the property. As far as the decision to impose a fine is concerned, it should always be consistent with the spirit of the provisions on proceeds of crime as a whole (para. 28) . In any event, the court must not take into account the accused's ability to pay when it must decide whether or not to impose a fine instead of forfeiture. The amount of the fine must be equal to the value of the proceeds of crime (paras. 34-35-37).

Once the decision is made that a fine instead of forfeiture is warranted and the value of the proceeds of crime is established, there is no discretion other than the terms of imprisonment in relation to the amount of the fine and the time allowed to pay the fine (para. 52). (

e) The sentence imposed for an offence under

Part XII.2 consists of two elements: the penalty for committing a designated offence (s. 462.3(1)), and forfeiture of the proceeds of crime (s. 462.37(1)). A fine instead of forfeiture is seen as a separate component of the sentence and is not regarded as punishment specifically for the designated offence.

The fine or imprisonment imposed as the primary sentence punishes the commission of the designated offence, while forfeiture or a fine instead of forfeiture deprives the offender of the proceeds of his or her crime and deters potential offenders and accomplices (para. 10). [para. 16] [Emphasis added.] [ 34 ] In my view, this is not a case where the judge could have justifiably exercised his discretion not to impose a fine.

As Deschênes J.A. points out in Robichaud , Lavigne stands for the proposition that such a discretion is very limited and to exercise it “should always be consistent with the spirit of the provisions on proceeds of crime as a whole” (para. 16). Recall once again that, as applied to this case, the objectives of these provisions are to deprive Mr. Dow of the proceeds of his crime and to deter Mr.

Dow and the criminal organization from committing crimes in the future. [ 35 ] While the Supreme Court in Lavigne allowed that there might be circumstances in which a fine will not need to be imposed to meet the objectives of

Part XII.2, this is not such a case. The example given in Lavigne is that of an offender who did not profit from the crime in a situation where it was an isolated crime committed by an offender acting alone. That is not the case in the present matter. Mr. Dow did profit from his crime, or at least intended to profit. He was acting in concert with Mr. Gallant and evidently others who supplied the drugs. Mr. Dow’s benefit was the enhancement of his relationship with Mr. Gallant, with whom he was involved in profitable illegal tobacco sales.

This benefit may be one that is impossible to quantify, but it is nevertheless a profit that cannot be said to be minimal. Moreover, Mr. Dow’s involvement was not an isolated crime and was not committed by him acting alone. While his role may have been less than that of Mr. Gallant, he was nonetheless a critical component in the process that led to the four criminal transactions with the police agent. [ 36 ] A situation somewhat similar to Mr. Dow’s occurred in R. v. A.S. , 2010 ONCA 441 , [2010] O.J.

No. 2532 (QL), where a drug trafficker argued that the sentencing judge had a discretion not to order a fine in lieu of forfeiture where he no longer had the buy money that was given to him by the undercover officer. He submitted to the Court of Appeal that “the court should conclude that the money went to the supplier who was higher up in the chain and to feed his drug habit”, and argued “he cannot be said to have benefitted from the major portion of the funds given to him” (para. 9).

Relying on Lavigne and the need to limit the discretion not to impose a fine to those situations where the spirit of the whole of the proceeds of crime provisions would not be offended, the Court rejected that argument. The Court ruled as follows: Having regard to Lavigne , we are satisfied that the sentencing judge erred in not imposing a fine in lieu of forfeiture. The respondent received $37,100 in drug buy money. He did not act alone and his actions extended over a considerable period of time. Receiving the money was a "benefit" in keeping with the purpose of the provisions.

What the respondent then chose to do with the money ( i.e. pay his supplier, purchase drugs, etc.) need not be the subject of inquiry by the sentencing judge as the Supreme Court's decision in Lavigne illustrates. [para. 14]

[ 37 ] I opine in the same direction. Mr. Dow received $53,000 in drug buy money. He did not act alone, and his actions extended over more than six weeks. He received a direct benefit from the transactions, in that he was given money in exchange for drugs, and although he might not have kept the money himself, that is of no moment, particularly where he also derived an intangible benefit, being the enhancement of his relationship with Mr. Gallant in the illegal sale of tobacco.

In these circumstances, it cannot be said that the spirit of the proceeds of crime provisions would not be offended by the refusal to impose a fine in lieu of forfeiture. One of the objectives is that Mr. Dow be deprived of the proceeds of his crime. While the actual direct benefit to him might be intangible, the imposition of a fine equivalent to the amount of the proceeds obtained and then conveyed to Mr. Gallant is nevertheless appropriate. The other objective is that Mr. Dow and others in the criminal organization be deterred from committing crimes in the future.

Couriers and conduits, although perhaps on the lower end of the illegal drug trade, nevertheless play a critical role in the illegal activity. They too, must be deterred. Moreover, criminal organizations must be made aware that no one, not even those on the lower end of the chain, will be allowed to profit from their crime. In the end, it must be shown that crime does not pay. V. Disposition [ 38 ] For these reasons, I would grant both applications for leave to appeal, but I would dismiss both appeals and the Attorney General’s cross-appeal. ______________________________ J.C. MARC RICHARD, J.A.

WE CONCUR: ________________________________ ALEXANDRE DESCHÊNES, J.A. ________________________________ B. RICHARD BELL, J.A.