His Majesty the King – v. –, 2023 NBKB 172

R. v. Comeau - 2023 NBKB 172 C-CR-9-2022 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF CAMPBELLTON BETWEEN: His Majesty the King – and – Ghislain Comeau Subject Matter: Forfeiture of Offence-related Property BEFORE: The Honourable Mr. Justice Larry Landry AT: Campbellton, New Brunswick DATE OF HEARING: September 25, 2023 DATE OF DECISION (orally): September 25, 2023 APPEARANCES: Gilles Daigle, esq., for His Majesty the King Mikaël Bernard, esq., for Ghislain Comeau DECISION

[TRANSLATION] Landry, J. (orally): [ 1 ] The matter at issue is the determination of the Attorney General’s request regarding the forfeiture of what he considers to be offence-related property related to the crime committed by Ghislain Comeau, namely possession of cocaine for the purpose of trafficking. The property in question is the Toyota RAV4 vehicle that he was driving and the sum of $6,000 that was found in the vehicle in question. A kilogram of cocaine was seized from the vehicle. [ 2 ] An order of forfeiture, if granted, is not part of the sentence that will be imposed on Mr. Comeau.

The sentence and the forfeiture inquiry should have no impact on each other, as the Court of Appeal of Nova Scotia explained in R. v. Siek [1] and the Supreme Court of Canada in R. v. Craig . [2] These are stand-alone issues and they do not even have to be decided at the same time. [ 3 ] Subsection 16(1) of the Controlled Drugs and Substances Act [3] is the provision that deals with forfeiture. It provides as follows: 16

(1) Sous réserve des articles 18 à 19.1 et sur demande du procureur général, le tribunal qui condamne une personne pour une infraction désignée ou l’en absout en vertu de l’

article 730 du Code criminel et qui est convaincu, selon la prépondérance des probabilités, que des biens infractionnels non-chimiques sont liés à la perpétration de cette infraction ordonne qu’ils soient confisqués au profit :

b) soit de Sa Majesté du chef du Canada pour que le membre du Conseil privé de la Reine pour le Canada chargé par le gouverneur en conseil de l’application du présent alinéa en dispose conformément au droit applicable, dans tout autre cas. 16

(1) Subject to sections 18 to 19.1, if a person is convicted, or discharged under

section 730 of the Criminal Code , of a designated substance offence and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that non-chemical offence- related property is related to the commission of the offence, the court shall (

b) in any other case, order that the property be forfeited to Her Majesty in right of Canada to be disposed of or otherwise dealt with in accordance with the law by the member of the Queen’s Privy Council for Canada that is designated by the Governor in Council for the purposes of this paragraph. [ 4 ] Possession of cocaine for the purpose of trafficking is a designated offence, as defined in

section 2 of that same act.

Section 2 also defines what constitutes offence-related property: bien infractionnel Bien situé au Canada ou à l’extérieur du Canada, à l’exception des substances désignées, qui sert ou donne lieu à la perpétration d’une infraction désignée ou qui est utilisé de quelque manière dans la perpétration d’une telle infraction, ou encore qui est destiné à servir à une telle fin. (offence-related property) offence-related property means, with the exception of a controlled substance, any property, within or outside Canada, (

a) by means of or in respect of which a designated substance offence is committed, (

b) that is used in any manner in connection with the commission of a designated substance offence, or (

c) that is intended for use for the purpose of committing a designated substance offence; ( bien infractionnel )

[ 5 ] If I determine that the vehicle and the money are offence-related property, I must automatically order their forfeiture to His Majesty. The court then has no discretion. [ 6 ] The important issue is therefore the following: Do the seized Toyota RAV4 and money constitute offence- related property? [ 7 ] To obtain the order of forfeiture, the Crown must convince this Court, on the balance of probabilities, that they are offence-related property. The burden is therefore much lower than at trial, where the Crown had to convince me beyond a reasonable doubt that the accused was guilty.

We must review the evidence produced at trial as well as the evidence that was filed for today’s hearing, namely the affidavits of Ms. Heather Mather and that of Constable Chantale Bellavance. It is clear, of course, that the cocaine was found in the vehicle driven by Ghislain Comeau, as was the money that was seized. [ 8 ] With respect to Mr. Comeau’s vehicle, the Crown draws our attention to the following facts that were proven at trial: the vehicle belongs to him and was used to transport the cocaine.

She adds that, to be trafficked, the cocaine seized had to be transported from Quebec to New Brunswick and then redistributed in our province. Also according to the Crown, the RAV4 vehicle is directly connected to the transport of cocaine and therefore to trafficking. [ 9 ] The defence objects to the forfeiture and submits that the link between the money that was seized and the vehicle has not been proven and that the Crown has not met its burden. [ 10 ] In my opinion, the case law is contradictory on what constitutes offence-related property. For example, in R. v.

Paziuk , [4] the Court of Appeal of Saskatchewan seems to imply that, as soon as the drug is in the vehicle, the vehicle becomes offence- related property: 10. It is clear the truck is ‘offence-related property’ in that it was used in connection with the commission of a designated substance offence. [ 11 ] In Paziuk , the accused was driving his truck when he was arrested and 241 ecstasy tablets and some marijuana were found in his possession.

The Court of Appeal ordered the forfeiture of the truck, without really lingering over the reasoning that led to its finding that the property was offence-related, except to confirm that the drugs were in the truck. [ 12 ] On the other hand, in R. v.

Durette , [5] the Court of Appeal of Ontario required a slightly closer link between the property to be seized and the possession for the purpose of trafficking offence: 10. (…) there must be some evidentiary basis linking the property to be seized to the designated substance offence. [ 13 ] The Court of Appeal noted that there was no evidence that the transport was undertaken for the purpose of distributing the drugs to others. The Crown was requesting forfeiture of a van, some money, and a cell phone. It should be noted that the cocaine that was seized was on the person of the accused.

The Court also added that there was no evidence linking the property that was seized to a drug deal and that the accused was arrested while on his way home. [ 14 ] As for the money and cell phone in the Durette case, the highest court of Ontario also found that there was no evidence, such as text messages or emails on the phone, linking such property to the offence or showing that the money was in any way linked to the offence.

[ 15 ] The Court stated that the factual nexus between the vehicle and the offence could have been established, for example, by demonstrating that the vehicle had been used to acquire the drugs or that drugs were hidden in the van itself. In the Durette case, the forfeiture of the vehicle and money to the Crown was denied. [ 16 ] The Court of Appeal of Quebec considered the issue in R. v. Gagnon . [6] In that case, cocaine, marijuana, and hashish were hidden in various locations in the Ford F-150 truck. The Court of Appeal ordered the forfeiture, while giving the following explanations: [TRANSLATION] 8.

When an individual is driving around with drugs hidden throughout his vehicle and admits, by pleading guilty, to having intended to traffic them, it seems obvious that the vehicle is being used or will be used for the purposes of trafficking. [ 17 ] I believe the facts in the Durette case heard in the Court of Appeal of Ontario more closely resemble those of the case before me. Although, in Durette , the drugs were found on the person of the accused and not in the vehicle, it was clear that they were still in the vehicle prior to the arrest, as the accused was also in the vehicle. In Mr.

Comeau’s case, the drugs were not hidden in compartments of his vehicle either, but were instead in his travel bag. [ 18 ] There is no evidence showing that Mr. Comeau was about to make drug deals or that he was going to deliver the drugs elsewhere. He was returning from his weeklong vacation at his spouse’s place and was, as in the Durette case, on his way home. He was, of course, in possession of cocaine, and I concluded after trial that he intended to traffic it, given the quantity in question.

However, I cannot conclude that his intention was to traffic the drugs with his Toyota RAV4. [ 19 ] As for the money that was seized in his vehicle, once again, nothing in the evidence could link it to a drug deal.

Ghislain Comeau also explained that he had recently sold a jet ski and a side-by-side vehicle and that he had kept some cash to pay his credit card, with which he had paid for part of his Toyota RAV4. [ 20 ] In addition, Maxime Lavoie, the expert witness called by the Crown, testified that only in rare cases are drugs and large amounts of money travelling at the same time. [ 21 ] For these reasons, I deny the forfeiture of the money that was seized during Ghislain Comeau’s arrest. As for the vehicle, it is harder to determine.

I am about as convinced that it constitutes offence-related property as I am of the opposite. But, based on the reasoning of the Court of Appeal of Ontario in the Durette case, I find that the Crown has not met its burden of convincing this Court on a balance of probabilities that the Toyota RAV4 constitutes offence-related property. [ 22 ] In Denis v. R. , [7] the Court of Appeal of Quebec confirmed the forfeiture of a Dodge Ram truck that had been used specifically to attend meetings relating to the conspiracy to traffic in drugs.

The police had used tailing and surveillance and the evidence derived therefrom clearly showed that the accused had used the truck to go meet his accomplices, therefore it had been used in the case of a conspiracy. In this case, I did not see any evidence of that kind directly linking the Toyota RAV4 to the offence, except for the fact that the drugs were in the vehicle. I have found that that was not sufficient and, for all these reasons, the Crown’s application is dismissed. [ 23 ] Therefore, I refuse to order the forfeiture of the vehicle as well.

The vehicle, like the money, must be returned to Ghislain Comeau. (Note: In unreported oral decisions, the accused was convicted of the offence charged at trial and, on the same day, was sentenced to a 40-month term of imprisonment, in addition to the usual mandatory ancillary orders.)