R. v. Dritsas (K.), 2015 MBCA 19

Citation: R. v. Dritsas (K.), 2015 MBCA 19 Date: 20150218 Dockets: AR13-30-08028; AR13-30-08032 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron BETWEEN : HER MAJESTY THE QUEEN ) Z. I. Garber ) for the Appellant/Respondent ) Respondent/Appellant ) R. L. Rankin and ) K. R.

Hawkins ) for the Respondent/Appellant - and - ) ) ) Appeals heard: KOSMAS DRITSAS ) September 15, 2014 ) ) Decision pronounced: (Accused) Appellant/Respondent ) February 18, 2015 MONNIN J.A. [ 1 ] The accused appealed his convictions for two counts of possession of cocaine for the purpose of trafficking, one count of conspiracy for the purpose of trafficking cocaine and one count of possession of proceeds of crime. He also sought leave to appeal and appealed his sentence. The Crown applied for leave to appeal and appealed the sentence.

At the conclusion of the hearing, the panel dismissed the conviction appeal with brief reasons which were issued on September 22, 2014. The panel also denied the Crown’s application for leave to appeal, but reserved on the accused’s sentence appeal.

These are the reasons on his sentence appeal. [ 2 ] After his convictions on the matters set out above, the sentencing judge sentenced the accused as follows: • count 1: possession of cocaine for the purpose of trafficking – nine years’ imprisonment; • count 2: possession of proceeds of crime over $5,000 – two years’ imprisonment to be served concurrently; • count 3: conspiracy to traffic in cocaine – nine years’ imprisonment to be served concurrently; • count 4: possession of cocaine for the purpose of trafficking – nine years’ imprisonment to be served concurrently; • count 5: conspiracy to traffic in cannabis – two years’ imprisonment to be served concurrently; and

• count 6: traffic in marihuana exceeding three kilograms – two years’ imprisonment to be served consecutively. [3] As well, the sentencing judge imposed a fine in lieu of forfeiture of $162,000 to be paid within two years. In the eventof non-payment, a further two years were to be served consecutive to the sentence imposed for the other counts. [4] On the sentence appeal, the accused raises three issues:

a) that the sentence is harsh and excessive, particularly in light of the sentences imposed upon the other individuals arrested as part ofthis operation;

b) that the sentencing judge erred when imposing a fine in lieu of forfeiture in the absence of reliable evidence that the accused receivedany specific amount of money derived from criminal activity and no meaningful effort was made to locate any property of that nature;and

c) on the hearing of the appeal, a further ground was raised; namely, whether the trial judge erred in failing to consider as part of heranalysis of totality, the likelihood the accused would be unable to pay his fine and, therefore, the effective sentence would likely includea further two years of incarceration over the 11 years imposed.

Standard of Review [5] On the first issue, whether an appellate court should interfere with a sentence is, of course, limited to situations wherethe sentencing judge has committed an error in principle or the sentence is demonstrably unfit, otherwise deference is owed to thesentencing judge (see R. v. L.M., 2008 SCC 31 at para. 14, [2008] 2 S.C.R. 163; and R. v. Shropshire, (SCC), [1995] 4S.C.R. 227 at para. 46). [6] As to the second issue; namely, whether the sentencing judge erred in imposing a fine in lieu of forfeiture, anassessment must be made of the

interpretation of the

section in question; that is, whether it was required for her to find certain evidence. This must be reviewed on the basis of the correctness of the

interpretation given to s. 462.37 of the Criminal Code (the Code). However,if the sentencing judge did not err in her

interpretation, whether there was evidence sufficient to meet the requirements of that sectionwould be reviewed on a palpable and overriding error standard (see R. v. Le (T.H.), 2010 SKCA 22 at para. 34, 350 Sask.R. 107). Thedecision to impose a fine in lieu of forfeiture is a discretionary one and, absent misdirection in the fact or the law, is owed significantdeference. [7] The issue of whether the sentencing judge should have considered the potential incarceration to follow the non-payment of the fine in her assessment of totality goes to the

interpretation of the role played by s. 462.37 and should be reviewed on thebasis of correctness. Background Issue 1 – Was the sentence harsh and excessive? [8] To properly understand the accused’s argument on this issue, it is necessary to appreciate the proceedings before thetrial court which led to his conviction and sentence. [9] The charges against the accused arise from a 2010 Winnipeg Police Service investigation known as “Project SportTrack” targeting the trafficking of cocaine in the City of Winnipeg. He was initially charged with other individuals, but proceeded totrial alone.

The other individuals involved in the investigation pled guilty and were sentenced prior to the accused. It was the Crown’sposition at trial, accepted by the sentencing judge, that the accused was a high-level cocaine trafficker involved in kilo-level deals. Assuch, he occupied a position of trust within the organization and would rarely be involved directly with the cocaine movement or dealwith the money involved.

While much of the evidence against him consisted of wiretap and photographic/camera surveillance evidence,as well as expert evidence called to explain the audiovisual evidence and the working of a trafficking operation at that level, numerousinferences had to be drawn. [10] On this aspect of the sentence appeal, the thrust of the accused’s position is that the sentencing judge failed to take intoaccount a relevant consideration; namely, the sentences given to other participants in the cocaine trafficking operation who had positionsas important as the accused, but who nevertheless received significantly lesser sentences. [11] The evidence revealed that the main supplier was an individual by the name of Cirilo Lopez (Lopez) who suppliedkilograms of cocaine to individuals who distributed it in Winnipeg, including the accused.

Lopez’s right-hand man was Jose Biscocho(Biscocho), who would be directed on whom to contact and whom to distribute the cocaine to. Biscocho distributed kilograms of cocaineto the accused who then used Orazio Sinisi (Sinisi) to do the hands-on work with the cocaine, breaking it up into multiple ounces andthen selling it to customers at the ounce level. [12] Lopez, who had a previous record for trafficking cocaine, pled guilty and, on the basis of a joint recommendation,received a ten-year sentence. [13] Biscocho also pled guilty and received a seven-year sentence.

It should be noted that Biscocho was 22 years of age andhad no previous criminal record, factors which were highlighted in the joint recommendation when he pled guilty. [14] Finally, Sinisi, the last individual, also pled guilty. On a joint recommendation, he received a seven-year sentence. [15] In her sentencing decision, the sentencing judge accepted the Crown’s position that the guilty pleas entered by the other

accused saved significant court time and expense and, for that reason, their sentences were likely discounted in the joint recommendation. She noted that was not the case for the accused. [ 16 ] The accused’s position is that it would be inappropriate for the co-accused to receive a significant sentence discount simply for having pled guilty, or, conversely, that it is not proper to punish the accused for having exercised his right to proceed to trial.

He takes issue with the sentencing judge’s comments in her decision on sentence, when she dismissed the concept of parity for the accused with his co-accused, as follows ( 2013 MBQB 186 at para. 123 ): I acknowledge the arguments of defence counsel with respect to sentencing parity with the co-offenders convicted pursuant to Project Sport Track. Certain of those individuals displayed mitigating factors such as was evident with Biscocho who was a youthful offender, had exhibited remorse, and had no criminal record. Also, the co-offenders entered into plea and sentencing agreements with respect to this matter.

The taking of a plea is without question a consideration in the appropriateness of a sentence particularly where, as in this case, the trial extended for a significant period of time and was complex in nature. Analysis [ 17 ] The accused argues that he received an effective sentence of 13 years, which was crushing in nature, without justification and significantly more onerous than the sentences imposed on other offenders within the operation.

In his view, it can only be viewed as punishing him for proceeding to trial. [ 18 ] Dealing firstly with the question of parity, namely, that he should have received a sentence more in keeping with what had been meted out to his co-accused, one must compare apples to apples. It is not the total sentence which is at issue, but that aspect concerning the offences for which the other accused were convicted. They pled guilty to counts involving the trafficking of cocaine.

The accused was convicted on two different aspects of trafficking, one for cocaine and one for marihuana, which the trial judge was entitled to view as meriting consecutive, not concurrent, sentences. [ 19 ] For the cocaine trafficking, the accused received a sentence of nine years. It is that which should be compared to the sentences given to his co-traffickers in cocaine. Given the accused’s role in the hierarchy of the operation, a nine-year sentence is not unreasonable.

That he did not receive the benefit for pleading guilty at an early stage, which his co-accused received, is not an indication that he was being punished for proceeding to trial.

The benefit to an accused of entering an early guilty plea is a long-established factor in the sentencing process. [ 20 ] The combined 11 years for trafficking in cocaine and marihuana is justified by the nature of the offences and the aggravating factors which the sentencing judge found to be operating in this case; namely, that: • the accused was at a high level in the operation involved in the distribution of cocaine and marihuana; • he did so over an extended period; • he was involved in cocaine trafficking, a serious and destructive drug; and • he had a criminal record for a similar offence. [ 21 ] The sentencing judge indicated in her reasons that she did consider the issue of parity with the co-accused and found that a sentence of nine years for trafficking in cocaine was roughly equivalent to the ten-year sentence imposed on Lopez who, in her view, deserved a more onerous sentence. [ 22 ] It should be noted that the Crown was seeking to have the sentence imposed for possessing proceeds of crime over $5,000 consecutively.

The sentencing judge imposed a two-year sentence as suggested by the Crown, but did so concurrently with the trafficking charge. [ 23 ] For reasons that I will discuss later, the additional two years to be imposed in the event of the non-payment of the fine in lieu of forfeiture, do not factor into the equation on the sentence for this issue. [ 24 ] I, therefore, see no merit in this aspect of the sentence appeal.

Issue 2 – Did the sentencing judge err in imposing a fine in lieu of forfeiture? [ 25 ] The accused was convicted of possession of proceeds of crime over $5,000 and received a sentence of two years’ imprisonment to be served concurrently to the nine-year sentence imposed for possession of cocaine for the purpose of trafficking and to the other sentences imposed on the other counts. As well, the court imposed a fine in lieu of forfeiture in the amount of $162,000 to be paid within two years.

In the event of non-payment, a further two years would be served consecutively. [ 26 ] The Crown’s position was that the accused had received the benefit of significant proceeds of crime from his drug trafficking business: $15,000 was seized from his residence; he owned a motor vehicle valued at $60,000 with a loan of $30,000 applied against it; and a cabin in rural Manitoba was seized under the Province’s Criminal Property Forfeiture Unit.

The cabin was sold for $53,000 and, with the funds seized, led to a net recovery of $68,000. [ 27 ] The Crown’s position before the sentencing judge was that the accused had received, at a minimum, $35,000 for each kilogram of cocaine that he processed. The evidence established that at least six kilograms had been processed, thereby indicating that he had had in his possession, at some point in time over the course of the investigation, some $210,000. As well, ten pounds of

marihuana had been proven to have been trafficked, at an estimated worth of $2,000 per pound, for a total of $20,000. The Crown, therefore, sought a $230,000 fine in lieu of forfeiture on the basis that he had made significant profits during the course of his involvement with the drug trade. That amount was reduced by $68,000, leaving the net amount received of $162,000. [ 28 ] The accused argued that it was unclear what dollar amounts had ever changed hands, if any, and that there was no evidence that the accused had ever been paid a specific amount of money for anything.

He argued that this relief had not been sought with respect to the co-offenders in Project Sport Track, and parity dictated that it should not be sought against him. [ 29 ] The accused also argued that the

section was not intended to apply to this type of fact scenario, but rather to instances where the amounts of money provided to “offenders” were clearly delineated and easily traced. The accused noted that, while he had purchased the vehicle and was in the process of cabin construction, he also had access to an active line of credit which would have allowed him to finance such expenditures. He lived modestly in a rented apartment and had received cash from a friend over a ten-month period as an investment in the cabin construction. There was no direct evidence that he had received the funds alleged by the Crown.

Therefore, it would be inappropriate in the circumstances to impose a fine in lieu of forfeiture. [ 30 ] In deciding to exercise her discretion to impose a fine, the sentencing judge indicated that she considered the following factors (at para. 97): I have reviewed the issue of a fine in lieu of forfeiture carefully as regards [the accused]. This is particularly so as regards the possible drawing of an inference that his net worth has increased through his active participation in the drug trade.

There is no question that s. 462.37(3) well sets out that proceeds of crime that cannot specifically be traced should be addressed by a forfeiture order equal to the value of that property. I do not accept that a “fine” is restricted only to the undercover agent scenario that existed in Grant [2007 MBQB 135 , 216 Man.R. (2d) 219 ] (Q.B.) and Dew [2012 MBQB 28 , 274 Man.R. (2d) 219 ] as argued by the defence. In this case, I am mindful that some forfeiture has already occurred through the operation of The Criminal Property Forfeiture Act [C.C.S.M., c. C306].

In exercising my discretion as to whether to impose a further fine, I have considered the following areas distinctive to [the accused]: • He lived in a rented apartment which was modestly furnished. • He made a $5,000 down payment on the Yukon motor vehicle and financed the remainder of the purchase price.

It is unknown whether the $5,000 down payment came by way of cash or a vehicle trade-in. • He had one or more available lines of credit with financial institutions. • He may have had inheritances or other methods of receiving income. • He was receiving $2,000 per month from Lomonaco as an investment in the cabin construction venture during the 10 months preceding his arrest. • He may have been required to have cash on hand in order to pay certain of the trades working on the construction of the cabin. • There was approximately $16,000 in his bank account. • There was no evidence that he lived an extravagant lifestyle. [ 31 ] As well, she noted (at para. 98): Bill Buchanan of the Royal Canadian Mounted Police, being the person who tracks funds in these types of situations, did not testify at trial. [ 32 ] She then went on to state (at paras. 99-100):

I am satisfied that [the accused] has benefited from the proceeds of crime, albeit even with the exercise of due diligence it does not appear that these proceeds are traceable. In Lavigne [2006 SCC 10 , [2006] 1 S.C.R. 392 ], the court determined that once the pre- conditions of s. 462.37(3) have been satisfied, a judge has essentially no discretion to refuse an order of forfeiture (at para. 29). The fine provisions were enacted to effectively replace the proceeds of crime that would otherwise have been forfeited if traceable (at para. 25).

The amount of the fine must be equal to the value of the property that would have been ordered forfeited, which in this case was $162,000. I have concluded that the pre-conditions of s. 462.37(3) have been satisfied in this case. Accordingly, I impose a fine in the amount of $162,000. [The accused] was a high-level drug dealer with access to significant amounts of cocaine and marijuana, the sale proceeds of which were in all likelihood commingled with other property or transferred to others.

In the event of a default in payment within two years, I impose a period of two years’ incarceration to be served consecutively (s. 462.37(4)(b)). [ 33 ] The accused argues that the Code sections by which the sentencing judge imposed an order are intended to apply to offence-related property that can be identified with some exactitude as opposed to a situation such as the facts in this case where, at best, the Crown put forward quick calculations based on obscure estimates and then asks the court to exercise its discretion. [ 34 ] In his factum, the accused points out that none of the situations set out in subss. 462.37(3)(

a) to (

e) were applicable in this case. According to his argument, the situation set out in cls. (

a) to (

e) amount to prerequisites to ordering a fine in lieu of forfeiture. The Legislation [ 35 ] A prerequisite to imposing a fine in lieu of forfeiture is that an order of forfeiture under s. 462.37(1) should be made. That

section reads: Order of forfeiture of property on conviction 462.37(1) Subject to this

section and sections 462.39 to 462.41, where an offender is convicted, or discharged under

section 730, of a designated offence and the court imposing sentence on the offender, on application of the Attorney General, is satisfied, on a balance of probabilities, that any property is proceeds of crime and that the designated offence was committed in relation to that property, the court shall order that the property be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law. [ 36 ] The initial order of forfeiture, therefore, is dependent on the court being satisfied, on a balance of probabilities, that “any property” is “proceeds of crime.” Property and proceeds of crime are defined as follows:

Definitions 2. In this Act, …. “property” includes (

a) real and personal property of every description and deeds and instruments relating to or evidencing the title or right to property, or giving a right to recover or receive money or goods, (

b) property originally in the possession or under the control of any person, and any property into or for which it has been converted or exchanged and anything acquired at any time by the conversion or exchange; and ....

Definitions 462.3(1) In this Part,

…. “proceeds of crime” means any property, benefit or advantage, within or outside Canada, obtained or derived directly or indirectly as a result of (

a) the commission in Canada of a designated offence, or (

b) an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence. …. [ 37 ] If the above

definitions are met, and the property of an offender cannot be made subject to an order, a fine in lieu of forfeiture may be ordered.

Section 462.37(3) reads: Fine instead of forfeiture 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. [ 38 ] As well, s. 462.39 provides: Inference 462.39 For the purpose of subsection 462.37(1) or 462.38(2), the court may infer that property was obtained or derived as a result of the commission of a designated offence where evidence establishes that the value, after the commission of that offence, of all the property of the person alleged to have committed the offence exceeds the value of all the property of that person before the commission of that offence and the court is satisfied that the income of that person from sources unrelated to designated offences committed by that person cannot reasonably account for such an increase in value.

Jurisprudence [ 39 ] The leading case on fines in lieu of forfeiture is the Supreme Court of Canada decision in R. v. Lavigne , 2006 SCC 10 , [2006] 1 S.C.R. 392. In that case, the trial judge found that the respondent had received an amount of $150,000 and that this money was proceeds of crime. The issue before the Supreme Court of Canada was whether an offender’s ability to pay was a factor that a court could consider in deciding to impose a fine in lieu of forfeiture. [ 40 ] Deschamps J., for the court, reviewed in detail the purpose and scope of the Proceeds of Crime

section (Part XII.2) of

the Code, which includes the sections under consideration in this case. She wrote (at paras. 9, 16): Great importance is thus attached to the proceeds of crime, and one of the stated goals is to neutralize criminal organizations bydepriving them of the profits of their activities. .... Parliament’s intention in enacting the forfeiture provisions was to give teeth to the general sentencing provisions.

While the purpose ofthe latter provisions is to punish an offender for committing a particular offence, the objective of forfeiture is rather to deprive theoffender and the criminal organization of the proceeds of their crime and to deter them from committing crimes in the future. Theseverity and broad scope of the provisions suggest that Parliament is seeking to avert crime by showing that the proceeds of crimethemselves, or the equivalent thereof, may be forfeited. [41] Deschamps J. also commented on cls. (

a) to (

e) of s. 462.37(3). She noted that they were not a restrictive list and stated(at para. 24): The list of circumstances in which the court may, inter alia, impose a fine instead of forfeiture also illustrates the limits of the discretion. For instance, the discretion may be exercised (

a) where the property cannot, on the exercise of due diligence, be located or (

b) where theproperty has been transferred to a third party. The list does not appear to be restrictive, given the use of the expression “in particular”,which suggests that there are other circumstances that do not appear on the list. However, those circumstances must be similar in natureto the ones that are expressly mentioned. .... [42] The accused’s argument raises two specific issues. The first is whether there was sufficient evidence to allow thesentencing judge to conclude that the accused had received specific amounts of “proceeds of crime” and thereby impose an order offorfeiture at all.

Secondly, the accused questions whether or not such an order could have been made in the absence of one of the criteriaset out in cls. (

a) to (

e) of s. 462.37(3) of the Code. [43] Dealing with the first issue, in a number of cases, the amount of the fine is an uncontroversial matter as the amount ofproceeds is clearly identified and quantified (see Lavigne). In R. v. Sam (C.) et al. (1998), (SK CA), 163 Sask.R.314 (C.A.), a pre-Lavigne decision, the trial judge did not order a fine in lieu of forfeiture, considering the seven-year sentence adequatepunishment to reflect the totality of their conduct. The Crown appealed and the Saskatchewan Court of Appeal concluded that a fineshould have been ordered.

Lane J.A. wrote as follows (at para. 16): The purpose of the enterprise crime sentence provisions is to deprive the accused of the fruits of their criminal activity. The trial judgefound, with evidence to support such a finding, there was $200,000 worth of drugs. Subtracting from that amount the estimated value ofthe drugs and cash seized of approximately $30,000, there was of approximately $170,000. Both Chhan and Sam were the organizersand leaders of the conspiracy.

Although the Crown supplied no information pursuant to s. 462.37(3) (as it ought to have) to show anorder of forfeiture cannot be made, the evidence of bank records indicated the monies received, i.e., the property, was not able to belocated (s. 462.37(3)(a)). [emphasis added] [44] In the more recent Saskatchewan decision, Le, the same court had to consider its previous decision in Sam. In Le, theCrown unsuccessfully sought a fine in lieu of forfeiture of $11,700 on the grounds that a minimum amount of marihuana had beensupplied by the accused to his brother, which had a certain street value.

The trial judge did not order the fine because he concluded thatthe amount of the proceeds in which the accused might have an interest was “uncertain and not clearly identifiable in the evidence” (atpara. 9). The court distinguished Sam because of the trial judge’s specific finding that he was not persuaded as to the amount of moneyreceived by Mr.

Le as compared to Sam where the trial judge had made a specific finding about the amount of cash received from thesale of the drugs. [45] As in Le, in this case there is evidence of the market value of the drugs, but no firm forensic evidence of the amount ofcash actually going in or out. [46] The sentencing judge in our case assigned a figure as to the value of the cocaine and marihuana based upon the expertevidence before her, but there was no specific finding about the amount of cash received from the sale of drugs. [47] However, I conclude that there is no error in the manner in which the trial judge approached the issue.

Given theevidence before her as to the number of kilos that the accused had processed through his operation and the expert evidence as to theminimum value of these drugs, it was a reasonable inference for the sentencing judge to make that the accused received amountsequivalent to the lower end street value of the product.

[ 48 ] In a similar vein, in R. v. Dow (T.H.) , 2014 NBCA 15 , 418 N.B.R. (2d) 222, the Court of Appeal of New Brunswick had to deal with a benefit which was “impossible to quantify” (at para. 35). The accused pled guilty to four counts of trafficking cocaine and four counts of possession of proceeds of crime. A fine in lieu of forfeiture of $53,000 was ordered. The accused appealed. The facts were that the accused in that case facilitated the transactions. While he did not profit directly from the transactions, the proceeds of $53,000 flowed through him.

Richard J.A. had no difficulty concluding that, in “the spirit of the proceeds of crime provisions” (at para. 37), a fine was justified. He explained (at paras. 35, 37): 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. 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. [ 49 ] It is reasonable to infer that proceeds of sale, or an amount equivalent thereto, were received by the accused or that he had control over that money at some point in the period of time when the drugs were being purchased and sold. [ 50 ] The second aspect of the accused’s position is that the police made no attempts to locate funds or investigate whether such funds were actually received and in the accused’s control and possession. He argues that, unless one of the circumstances set out in cls. (

a) to (

e) of s. 462.37(3) are met, then a fine in lieu of forfeiture is not available. [ 51 ] That the circumstances outlined in cls. (

a) to (

e) are not exhaustive, was commented upon by Deschamps J. in Lavigne . She recognized that the wording of the

section indicates that those clauses are examples of circumstances in which a fine in lieu of forfeiture could be ordered. While they are not exhaustive, there is a suggestion that similar circumstances would be required (see Lavigne at para. 24 ). [ 52 ] In this case, there was evidence that was accepted by the sentencing judge that the accused had been involved in the trafficking of at least six kilograms of cocaine with an estimated street value.

It was accepted as a common sense inference that amounts equivalent to the value of those drugs would have been received by him, or he would have control over these amounts during the period in question. The wiretap transactions reflect the fact that he discussed the use of those proceeds for the purposes of purchasing drugs and paying debts. Absent some evidence that he did not receive the funds, there is no duty on the Crown to take additional steps to try to obtain further proof that he actually received the money generated by these transactions. [ 53 ] As commented by the Ontario Court of Appeal in R. v.

Khatchatourov (A.) et al. , 2014 ONCA 464 , 323 O.A.C. 389 (at para. 52 ): “Even in the increasingly complicated world of Canadian criminal law, some things are obvious.” [ 54 ] For these reasons, I would not accept the position put forward by the accused that a fine in lieu of forfeiture was not open to the sentencing judge on the evidence before her.

Issue 3 – Did the sentencing judge err in failing to consider the additional time for failure to pay when assessing totality? [ 55 ] The accused’s position is that imposing a fine in lieu of forfeiture, and an additional two-year sentence in the event of default, makes the sentence one of, essentially, 13 years and, therefore, “crushing” upon him.

The accused argues that the imposition of the fine with an additional sentence in default was inconsistent with the principle of totality. [ 56 ] The difficulty with the accused’s argument is that it treats the imposition of the fine in lieu of forfeiture as part of the global sentence. It is not. As noted previously in Lavigne , Deschamps J. commented on Parliament’s intention in enacting the forfeiture provisions. For the court, she indicated her view that the objective of forfeiture was to deprive the offender in a criminal organization of the proceeds of their crime, and to assist in fostering deterrence.

The distinction between the fine and the sentence was made clear when she said (at para. 25):

The amicus curiae argues that the effect of imposing a fine without regard to the general principles of sentencing is to punish theoffender twice. What that argument fails to consider is that those principles are not all disregarded and that a fine instead of forfeiture isseen as a separate component of the sentence. While such an order is technically part of the sentence, it is nevertheless distinguished bythe fact that its purpose is to replace the proceeds of crime. It is not regarded as punishment specifically for the designated offence. [57] As noted by MacPherson J.A. in Khatchatourov (at paras. 55-56): ….

The answer lies in the reason for the imprisonment in default. It is not an addition to the sentence. The objective of forfeiture is notpunishment, but to deprive the offender of the proceeds of crime and to deter him or her from committing crimes in the future. If the offender does not pay the fine in lieu of forfeiture without reasonable excuse, the offender serves a mandated period ofimprisonment. This is a substitute for the fine: R. v. Lavigne, 2006 SCC 10 , [2006] 1 S.C.R. 392, at paras. 16 and 26.

As thiscourt noted some years ago, “a subsequent imprisonment imposed for a default in payment of a fine imposed under s. 734.7 [a warrant ofcommittal for non-payment of a fine] is not a punishment; rather it is an enforcement mechanism designed ‘to give seriousencouragement to offenders with the means to pay a fine to make payment’”: R. v. Bourque (2005), (ON CA), 193C.C.C. (3d) 485 (Ont. C.A.), at para. 20. [58] Therefore, the imposition of an additional potential of two years of incarceration is not a punishment but, rather, anenforcement mechanism. It does not factor into the issue of totality.

See as well, R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762, whereAbella J., for the majority, stated as follows (at para. 34): There is no doubt that forfeiture may be punitive in its impact. (See Industrial Acceptance Corp. v. The Queen, (SCC),[1953] 2 S.C.R. 273, at p. 278, R. v. Green (1983), (ON SC), 148 D.L.R. (3d) 767 (Ont.

H.C.J.), at p. 768, and Gisby,[2000 ABCA 261, 271 A.R. 303] at para. 19.) It does not follow, however, that it should be consolidated with sentencing on a totalityapproach, especially since it almost inevitably leads to lower terms of imprisonment for offenders with property if one treats the “total”punishment (jail plus forfeiture) as unduly harsh. In other words, people with property might be able to avoid jail or receive reducedcustodial terms, while those without property would not. [59] I would, therefore, not accept this aspect of the accused’s appeal.

Conclusion [60] For the reasons stated above, the sentence is not unfit. As well, the sentencing judge was in a position to impose a finein lieu of forfeiture with an additional period of incarceration of two years in default. I would grant leave to appeal and dismiss thesentence appeal. J.A. I agree: C.J.M. I agree: J.A.