2019 QCCQ 2839, 2019 QCCQ 2839

R. c. Poucachiche 2019 QCCQ 2839 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI LOCALITY OF VAL-D’OR “Criminal Division” Nos.: 615-01-026971-187 615-01-027791-188 DATE: May 3, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE RICHARD LAFLAMME, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v. MATJOWAN POUCACHICHE Accused ______________________________________________________________________ DECISION ON AN APPLICATION FOR THE FORFEITURE OF OFFENCE-RELATED PROPERTY (Sections 490.1 et seq. Cr.

C. ) ______________________________________________________________________ [ 1 ] Mr. Poucachiche pleaded guilty to driving while prohibited between October 25 and 27, 2017. He also pleaded guilty to charges under the Criminal Code of operating a motor vehicle while impaired by alcohol and driving while prohibited on September 7, 2018. At the time of his last arrest, police officers seized the 2011 Toyota Tacoma he was driving. [ 2 ] The criminal and penal prosecutor seeks the forfeiture of Mr.

Poucachiche’s vehicle as offence-related property because of his admission of guilt and his numerous prior convictions related to driving. [ 3 ] The accused contests the request because he finds it disproportionate.

He suggests that ownership of the vehicle be transferred to his daughter, with whom he lives, or in the alternative, that the Court order him to sell the vehicle to a third party within a specified time limit. [ 4 ] The issue is whether the forfeiture of the accused’s motor vehicle is disproportionate compared to the nature and the gravity of the offences, the circumstances surrounding their commission and his criminal record. I. BACKGROUND [ 5 ] On January 6, 2014, Mr. Poucachiche was convicted of impaired driving.

In addition to a prison sentence of six months, the judge ordered a four-year driving prohibition. [ 6 ] The accused pleaded guilty to driving while prohibited in October 2017 and on September 7, 2018. The facts are more fully described in the written decision on sentencing that was filed today. He was in an advanced state of intoxication at the time of the last offence and admitted to operating his vehicle in that state. [ 7 ] Today he received an overall sentence equivalent to 30 months’ imprisonment for those offences. [ 8 ] Mr. Poucachiche’s income is approximately $18,000 a year.

His income comes from benefits received from the Société de l’assurance automobile du Québec. The value of his vehicle is estimated to be between $15,000 and $20,000. [ 9 ] It was submitted that the vehicle was purchased with the $207,000 compensation he received from the Government of Canada in 2010 for mistreatment suffered in a residential school. Counsel for the accused argues that it would be unfair for Mr. Poucachiche to be deprived, in a way, of “part” of his compensation.

It would be especially incongruous that part of his compensation be returned to the government that compensated him for the abuse he endured. [ 10 ] The accused suggests that he transfer his vehicle to his daughter, with whom he will live when he is released from prison. Since his daughter lives in Val-D’Or and must also travel to participate in therapy, he would thereby ensure that she is able to attend therapy, in addition to being able to use the vehicle if necessary. Alternatively, he suggests that the Court order that the vehicle be sold within a

specified time limit. II. ANALYSIS [ 11 ] In accordance with the teachings of the Supreme Court in R. v. Craig , [1] it is useful to bear in mind that the sentence is not a relevant factor in determining whether forfeiture would be disproportionate. Moreover, it is clearly a collateral or secondary consequence of a conviction and of sentencing. [2] [ 12 ] The parties agree that the vehicle operated by Mr. Poucachiche when the offences were committed is offence-related property.

Therefore, if the Crown presents an application for the forfeiture of such property, the Court must so order unless it “is satisfied that the impact of an order of forfeiture ... 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.” [3] The accused has the burden of proving, on a balance of probabilities, that disproportionality. [ 13 ] In R. c.

Neault , the Court of Appeal stated the following on the concept of disproportionality: [4] [ 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. [ 14 ] Let us now analyze Mr. Poucachiche’s situation in light of these principles.

a) Nature and gravity of the charges [ 15 ] The offences related to impaired driving and driving while prohibited are each punishable by five years’ imprisonment under the Criminal Code . The objective gravity of those offences reflects the importance accorded by Parliament to the scourge of impaired driving.

b) Circumstances surrounding the offences [ 16 ] Between October 25 and 27, 2017, the accused drove his truck while hunting. He committed sexual assault in his vehicle during the trip, which was prosecuted by a

summary proceeding. He had been under a driving prohibition since January 6, 2014. [ 17 ] On September 7, 2018, police officers noticed a vehicle swerving from its lane and moving very slowly while they were patrolling Highway 117. The vehicle veered into half the oncoming traffic lane, then zigzagged back onto half of the gravel shoulder. [ 18 ] When the police officers saw the vehicle veer onto the oncoming lane, they lit their flashing lights and turned on the siren several times so that the driver would pull over. It was only after several warnings that the vehicle finally stopped.

The police officers noted several signs of inebriation. They saw a bottle of beer in the driver’s cup holder and a restricted weapon in the vehicle. [ 19 ] The accused was subject to a driving prohibition. The police officers observed the accused driving in the oncoming lane of the TransCanada Highway, which illustrates the danger the accused poses on the road.

c) Criminal record [ 20 ] Mr. Poucachiche has a lengthy criminal record. It includes several convictions for assault and failure to comply with undertakings, probation orders and orders to attend Court. His criminality is largely related to driving a motor vehicle. With today’s sentence, his criminal record includes 11 offences of impaired driving with a blood alcohol level above 80 mg or refusal to supply a breath sample, and 8 offences of driving while prohibited.

The resurgence of his criminality over the past three or four years should be noted: since November 2015, he has accumulated convictions for four charges of driving while prohibited, one for refusal to provide a breath sample and one for impaired driving.

d) The impact of forfeiture [ 21 ] The accused argues that the vehicle will be used to meet his adult daughter’s needs and that she can drive him places. It should be noted that when he is released, he intends to live with his daughter in Val-d’Or in an urban area where services are easier to access even without a vehicle. [ 22 ] The Court rejects the argument that forfeiture is tantamount to returning part of his compensation to the government. The restitution he received was no doubt justified because of the abuse he endured.

He chose to buy lawful property – the truck – using part of that substantial cash payment. However, he deliberately used that property for criminal purposes. By using it in that way, he ran the risk of having his vehicle seized and forfeited. The situation is no different from that of a person who receives government benefits and uses them to buy material, or even a residence, to illegally produce cannabis or any other drug. It would make no sense if the state could not seize and forfeit property from that production because it was purchased by the accused using lawful benefits and/or compensation.

That argument amounts to creating immunity or exemption from seizure for offence-related property based on the source of the money used to purchase it. Parliament does not make such a distinction. As soon as property is offence-related, the prosecution’s application sets in motion the forfeiture scheme under s. 490.41. [ 23 ] The accused’s suggestion that he transfer the vehicle to his daughter or be ordered to sell his vehicle should also be rejected. The Court does not have such authority.

Its power is limited to ordering the property forfeited or returned to its owner if it believes that the forfeiture is 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. Property can only be returned to a third party in accordance with s. 490.4(3) Cr. C., that is, it can only be returned to the lawful owner or to a person lawfully entitled to possession of that property. [ 24 ] Since he will live in an urban area when he is released from prison, the use of a vehicle would certainly be useful to him but it is clearly not necessary. He is unemployed due to the impairment sustained in an automobile accident. Therefore, he does not need to travel on a daily basis to earn an income.

The forfeiture of his vehicle will have no impact on his income since it comes from S.A.A.Q. benefits. He has not established, on a balance of probabilities, any inconvenience or significant impact he may suffer on his lifestyle or his ability to travel. [ 25 ] The vehicle’s value is significant. Its forfeiture will decrease his patrimony. It will not, however, cause him any additional financial burden because the vehicle appears to have been fully paid, or at least, there is no right or interest registered in the Register of Personal and Movable Real Rights.

e) The relative weight of the facts and consequences of forfeiture [ 26 ] The relative weight of the facts tips the scales in favour of forfeiture. [ 27 ] The Court finds that the accused has not established, on a balance of probabilities, that the forfeiture is disproportionate. Not only has the accused failed to discharge his burden of proof, his lengthy criminal record of conveyance-related offences and the repeated commission of offences over the past few years convince the Court that the measure is just.

FOR THESE REASONS, THE COURT: FORFEITS the black 2011 Toyota Tacoma bearing serial number 5TFMU4FNXBX001053 with licence plate number [...], to the Attorney General of Quebec to be disposed of in accordance with the law. __________________________________ RICHARD LAFLAMME, J.C.Q. Mtre Léonie Caron Criminal and penal prosecutor Mtre Érika Marier Mtre Samuel Bérubé Mtre Jean-Francis Bonnette Counsel for the accused Date of hearing: March 29, 2019