2011 QCCA 900, 2011 QCCA 900

Unofficial English Translation R. c. Manning 2011 QCCA 900 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC NO: 200-10-002559-107 (655-01-004409-107) DATE: May 16, 2011 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. FRANÇOIS PELLETIER, J.A. JACQUES DUFRESNE, J.A. HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v.

ALPHIDE MANNING RESPONDENT- Accused JUDGMENT [ 1 ] THE COURT ; - On appeal from a judgment of the Court of Quebec, District of Baie- Comeau (the Honourable Judge François Boisjoli), rendered on August 27, 2010, that refused to order the forfeiture of offence-related property; [ 2 ] Having examined the file, heard the parties, and on the whole deliberated; [ 3 ] For the reasons of Dufresne, J.A., with which Thibault and Pelletier, JJ.A. agree; [ 4 ] DISMISSES the appeal. FRANCE THIBAULT, J.A. FRANÇOIS PELLETIER, J.A. JACQUES DUFRESNE, J.A.

Mtre Vicky Smith Criminal and penal prosecutor For the appellant Mtre Jean-Rock Genest For the respondent Date of hearing: January 13, 2011

REASONS OF DUFRESNE, J.A. [ 5 ] On June 3, 2010, the respondent, Alphide Manning, pleaded guilty to the charge of driving a motor vehicle while impaired by alcohol or drugs. [ 6 ] At the time the offence was committed on April 1, 2010, the respondent had a case pending for an offence of the same nature committed on July 29, 2009. On June 3, 2010, the respondent also pleaded guilty to this earlier offence. [ 7 ] The respondent already had a criminal record for similar offences dating back to 1989, 1982, and 1975. [ 8 ] The trial judge sentenced him to twelve months’ imprisonment for the April 1, 2010 offence.

Given the pre-sentence custody of two months and two days, the prison sentence was nine months and twenty-eight days beginning June 3, 2010. In addition, the judge prohibited him from driving for a period of five years after serving the prison term. This sentence was based on the parties’ joint representation.

As for the July 29, 2009, offence, the judge sentenced the respondent to five months’ imprisonment, to be served concurrently. [ 9 ] Furthermore, in addition to the sentence and the prohibition on driving, the appellant asked for the forfeiture of the vehicle driven by the respondent during the April 1, 2010 offence because it was offence-related property within the meaning of the Criminal Code . [ 10 ] The trial judge refused to order the forfeiture of the vehicle under subsection 490.41(3) of the Criminal Code ; hence the appeal. [ 11 ] The appellant argued that the trial judge’s discretion was limited to the factors determined by Parliament under subsection 490.41(3) Cr.

C. with regard to property in general and those in subsection 490.41(4) Cr. C. with regard to dwelling houses. According to the appellant, the Court cannot add to the criteria determined by Parliament, unless a dwelling house was involved. It compared the two Criminal Code sections and identified a significant difference in how they were drafted. Subsection 490.41(4) Cr. C. contains a non- exhaustive list of factors in the case of a dwelling house, whereas the list of factors under subsection 490.41(3) Cr.

C. is exhaustive. [ 12 ] It also argued that the judge erred in law by taking the sentence imposed into consideration when deciding on the application for forfeiture. This ground has merit. The sentence is not relevant when judging whether the forfeiture is disproportionate, as the Supreme Court decided in Craig . [1] This error in principle is not necessarily fatal. The question is whether the judge correctly interpreted the applicable legislative provision ( subsection 490.41(3) Cr. C. ) and whether he exercised his judicial discretion appropriately. [ 13 ] The appellant’s

interpretation of subsection 490.41(3) Cr. C. is too restrictive. Indeed, this Court recently addressed this issue in R. v. Neault . [2] [ 14 ] Subsection 490.41(3) Cr.

C. reads as follows: Subject to an order made under subsection 490.4(3), if a court is satisfied that the impact of an order of forfeiture made under subsection 490.1(1) or 490.2(2) would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted of the offence, as the case may be, it may decide not to order the forfeiture of the property or part of the property and may revoke any restraint order made in respect of that property or part. [ 15 ] The wording of subsection 490.41(3) Cr.

C. grants the judge broad discretion. [3] Applying this provision necessarily requires the judge to weigh the facts and assess whether the property’s forfeiture is, in the circumstances, “disproportionate” to the nature and gravity of the offence, the circumstances surrounding its commission and, if any, the criminal record of the person charged with or convicted of the offence. [ 16 ] This necessarily infers that the impact of the forfeiture must be taken into account when determining if it is “disproportionate” to order the forfeiture of offence-related property, as pointed out by Vézina, J.A., writing for the Court, in the above-cited Neault : [ translation ] [24] The words “disproportionate to” imply a comparison, a weighing of two realities to see whether there is a balance or an imbalance between them.

On the one hand, there will be the facts relating to the offence, assessed according to the purpose of the order and the three factors provided by the law, and on the other, the more or less drastic consequences of the forfeiture (the impact of the forfeiture). The relative weight of the facts and consequences will tip the scales either in favour of or against forfeiture. [25] While the law specifies the factors for assessing the offence, it is silent on the consequences that should be considered and how to assess them.

In my opinion, relevant factors to consider include whether the property is superfluous, useful or necessary based on its customary usage; whether the property is of little or great value intrinsically and in the case at bar; whether the property is used for basic needs, to obtain provisions, or for personal care; whether the property is used for recreation or for work; and whether the property helps perform family or social obligations. [26] Indeed, it is the true consequences of forfeiture of the offender’s property that the judge must weigh, just as, pursuant to the following subsection (490.41(4)), it is “the impact of the order of forfeiture on any member of the immediate family” that must also be considered.

[ 17 ] The trial judge correctly applied the law when he stated that the accused had the burden of establishing, on a balance of probabilities, that it would be disproportionate to order the forfeiture of his vehicle given the factors in subsection 490.41 [3] Cr. C.

He identified the accused’s car, valued at $1,000, as offence-related property then concluded that the accused had satisfied his burden of demonstrating that the forfeiture of his vehicle would be disproportionate in this case. [ 18 ] The trial judge based his refusal on the impact of the forfeiture: [ translation ] … He [the accused] is living on social assistance benefits, he is unemployed, and the seized vehicle is the only property he owns.

Although the value of the seized vehicle may, in certain circumstances, constitute a factor in favour of forfeiture, I believe that this is not the case here because the accused has no income and it would be very difficult, if not impossible, for him to procure a vehicle once the prohibition is lifted. The accused and his spouse also need to use a vehicle in order to obtain food and clothing, or to get to the hospital. [ 19 ] The judge’s weighing of the impact of the decision is based on the evidence. The respondent explained in his testimony that he lived with his spouse in a motel room in Chute-Aux-Outardes.

Sixty-two years old and of very modest means, he stated that he and his spouse had health problems and occasionally had to go to the hospital in Baie-Comeau. He specified that he did not have the financial resources to take a taxi, and his only means of transportation was to ask a friend to drive his truck to Baie-Comeau. [ 20 ] This context undoubtedly led the judge to realize that the proposed forfeiture concerned the accused’s sole asset. [ 21 ] I believe that the trial judge did not err in law by referring to this evidence and especially by taking the impact of the forfeiture into account.

The Court is not justified in intervening in his decision to refuse the forfeiture in the absence of an overriding error. [ 22 ] For these reasons, I would dismiss the appeal. JACQUES DUFRESNE, J.A.