Supreme Court Judgments

                                                SUPREME COURT OF CANADA

Between:

Judy Ann Craig

Appellant

and

Her Majesty The Queen

Respondent

‑ and ‑

Attorney General of Ontario and

Criminal Lawyers’ Association (Ontario)

Interveners

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Rothstein JJ.

______________________________

R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762

Judy Ann Craig                                                                                            Appellant

v.

Her Majesty The Queen                                                                        Respondent

and

Attorney General of Ontario and

Criminal Lawyers’ Association (Ontario)                                           Interveners

Indexed as:  R. v. Craig

Neutral citation:  2009 SCC 23.

File No.:  32102.

2008:  November 13; 2009:  May 29.

Present:  McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Rothstein JJ.

on appeal from the court of appeal for british columbia

Criminal law — Controlled drugs and substances — Forfeiture orders — Specific proportionality test provided for offence‑related real property forfeiture orders — Relationship of test with general sentencing principles — Accused guilty of producing marihuana in her home — Accused fined and given conditional imprisonment sentence — Court of Appeal setting aside fine and ordering forfeiture of house — Whether real property forfeiture orders should be considered together with terms of imprisonment as a global punishment — Whether court empowered to order partial forfeiture of real property — Controlled Drugs and Substances Act ,  S.C. 1996, c. 19 ,  s.   19.1(3) .

The accused pleaded guilty to one count of producing marihuana, contrary to s.   7(1)  of the Controlled Drugs and Substances Act  (“CDSA ”).  The charge related to her activities in her North Vancouver home. By the time she was sentenced, the Canada Revenue Agency had assessed her $250,000 for unpaid taxes relating to marihuana earnings reaching back to 1998.  The debt was secured by a lien on her two houses.  The trial judge declined to order forfeiture, concluding that it was more appropriate to order a $100,000 fine, in addition to a 12‑month conditional sentence of imprisonment and a victim surcharge of $15,000. The Court of Appeal upheld the conditional sentence but set aside the fine and the victim surcharge.  It also ordered the forfeiture of the accused’s home.  In its view, the term of imprisonment and the forfeiture order should be considered together as a global punishment.

Held (Fish J. dissenting in part):  The appeal should be allowed and the forfeiture order set aside.

1.  Per McLachlin C.J. and Binnie, Deschamps, Abella and Rothstein JJ.:  The proportionality test set out in s.   19.1  of the CDSA  is different from and independent from sentencing.

2.  Per LeBel and Fish JJ.:  The decision to forfeit under s.   19.1  of the CDSA  should be considered in crafting a sentence in cases where forfeiture is punitive.

3.  Per Binnie, LeBel, Deschamps and Abella JJ.:  Partial forfeiture of real property can be ordered under s.   19.1  of the CDSA .

4.  Per McLachlin C.J. and Fish and Rothstein JJ.:  Partial forfeiture of real property cannot be ordered under s.   19.1  of the CDSA .

_________________

Per Binnie, Deschamps and Abella JJ.:  The forfeiture inquiry under s.   19.1(3)  of the CDSA  is a discrete and distinct one from terms of imprisonment or other aspects of the sentence.  While the rest of an offender’s sentence is governed by the principles of sentencing found in the Criminal Code , the forfeiture of offence‑related real property is determined with reference only to the principles contained in s. 19.1(3), which set out a different and unique template.  [13]

The risk in approaching the forfeiture inquiry as being interdependent with terms of imprisonment is that, based on a “totality” approach, those who have property available for forfeiture will likely be able to trade property for jail time or to avoid jail entirely.  This would result in lengthier custodial terms being imposed on those who have no property available for forfeiture, an untenable result. [2‑3] [12] [34‑35]

The purpose and statutory language underlying the forfeiture scheme reflect Parliament’s intention that forfeiture orders be treated independently.  While the sentencing inquiry focuses on the individualized circumstances of the offender, the main focus of forfeiture orders is on the property itself.  The structure of the CDSA  confirms this interpretation.  Part I, entitled “Offences and Punishment”, governs sentences for offences under the statute and refers to ordinary sentencing principles, including the circumstances of the offender.  Part II, called “Enforcement”, contains a proportionality test in s. 19.1(3) governing the forfeiture of offence‑related real property.  The two tests are distinct and s. 19.1(3) notably excludes the circumstances of the offender.  Furthermore, forfeiture may apply to property owned by a complicit individual who is neither sentenced nor even charged with an offence, and certain types of forfeiture orders operate without the existence of a term of imprisonment imposed on anyone for the relevant offence.  [18] [40‑45]

The fairness of a forfeiture order under the CDSA  is further ensured by the availability of partial forfeiture.  Partial forfeiture is consistent with the plain language of the statute, as well as with a contextual interpretation of s. 19.1(3), and allows a court to tailor the amount of property to be forfeited in a way that takes into account the relative weight of the listed factors.  The proportionality analysis under s. 19.1(3) and partial forfeiture have a common source, in that both recognize that real property is a qualitatively and quantitatively different kind of asset, and that ordering its forfeiture can be a draconian measure.  [50‑56]

Based on the particular circumstances of the case, judges therefore have the discretion to order no forfeiture, partial forfeiture or full forfeiture of offence‑related real property.  Each situation will be subject to the judge’s appreciation of how the s. 19.1(3) factors should be applied in the particular circumstances of the case.  Although in this case neither the trial judge nor the Court of Appeal treated the forfeiture order as a separate inquiry, the application of the relevant factors shows no reason to interfere with the decision not to order forfeiture.  Since the Crown did not ask this Court to reinstate the fine imposed by the sentencing judge, the appropriate disposition is to set aside the Court of Appeal’s forfeiture order. [59] [66‑67]

Per McLachlin C.J. and Rothstein J.: The reasons and conclusion of Abella J. are agreed with, except for her reasons on the issue of partial forfeiture. The phrase “part of the property” in s.   19.1(3)  of the CDSA  does not empower a court to order that only part of the real property be forfeited. This phrase is more convincingly read as a reflection of the language in s. 19(3), whereby forfeiture will apply only to the part of the real property remaining after some of it was returned to innocent third parties at their eventual request. This interpretation is more compatible with the general rule, set out in s. 16(1), that offence‑related property is forfeited in its entirety and with the broader objectives of the statutory scheme.  Forfeiture of offence‑related property under criminal law is generally mandatory and total because the intention of Parliament is to deprive offenders and complicit individuals of the tools of the trade. Importantly, no provision is made in the Act for a fine in lieu of forfeiture. Instead, the sole focus of the Act is on the physical property, rather than its value. If Parliament had intended to grant not only the power to relieve against forfeiture of real property, but also to determine what proportion of the property should be exempted, it would have said so in clearer language. It seems reasonable to assume that Parliament intended the forfeiture procedure to be as simple as justice permits.  Imposing an unpredictable calculation based on a weighing of the factors listed in s. 19.1(3) would add to the complexity of already complex proceedings. [69] [73-74] [78-79] [81-82]

Per LeBel J.:  The conclusion of Fish J. that a sentencing judge may take a punitive order of forfeiture into consideration in crafting a sentence is agreed with.  The conclusion of Abella J. that partial forfeiture may be ordered is agreed with.  The present appeal should be disposed of as Abella J. proposes. [89]

Per Fish J. (dissenting in part): Forfeiture of offence‑related real property may be taken into account by the sentencing judge when it constitutes punishment of the offender for having committed the offence. Forfeiture is punitive where the property was legally and honestly acquired by the offender before engaging in criminal activity, independently of criminal activity, and not in contemplation of future criminal conduct.  Punitive forfeiture is a relevant consideration in determining the appropriate sentence since it is the global punishment that must fit the crime. While taking into account a punitive order of forfeiture may reduce the sentence of imprisonment in certain circumstances, this concern does not justify the disproportionately severe sentences that will inevitably occur, in some cases at least, if sentencing judges are required to entirely disregard punitive orders of forfeiture. The Criminal Code  explicitly provides that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”.  It is consistent with this mandatory principle of sentencing that jail time should be avoided or reduced where another punishment will suffice. [93] [95-96] [107-108] [111]

The joint conclusion of McLachlin C.J. and Rothstein J. is agreed with as to partial forfeiture. Partial forfeiture will frequently, as a practical matter, deprive persons of the use of their property and this is precisely what the proportionality requirement at s.   19.1  of the CDSA  is intended to prevent. Where partial forfeiture leads to the forced sale of a person’s home, that person is deprived of the home, as in full forfeiture, and is left instead with a discretionary percentage of the price realized upon its sale.  In the absence of a forced sale, partial forfeiture would impose an inherently litigious partnership on the Crown and the offender as unwilling co‑owners — a result Parliament can hardly have intended.  [116]

In the absence of a reviewable error by the trial judge, the Court of Appeal should not have intervened and substituted an order of forfeiture for a fine. The accused should not emerge with neither forfeiture nor a fine. Accordingly, the forfeiture order should be set aside and the sentence imposed at trial should be restored. [119-120] [125]

Cases Cited

By Abella J.

Referred to:  R. v. Gisby, 2000 ABCA 261, 148 C.C.C. (3d) 549; R. v. Nguyen, 2007 BCCA 474, 246 B.C.A.C. 263, aff’g 2006 BCSC 1846, [2006] B.C.J. 3202 (QL); R. v. Ouellette, [2004] R.J.Q. 2619, aff’d 2007 QCCA 518, 229 C.C.C. (3d) 563; R. v. Siek, 2007 NSCA 23, 218 C.C.C. (3d) 353; Industrial Acceptance Corp. v. The Queen, [1953] 2 S.C.R. 273; R. v. Green (1983), 148 D.L.R. (3d) 767; R. v. Johnson (1971), 5 C.C.C. (2d) 541; R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530; R. v. Lavigne, 2006 SCC 10, [2006] 1 S.C.R. 392; R. v. Sandover‑Sly, 2002 BCCA 56, 163 B.C.A.C. 312; R. v. Yee, 2008 ABPC 89, [2008] A.J. No. 866 (QL).

By McLachlin C.J. and Rothstein J.

Referred to:  Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; R. v. Gisby, 2000 ABCA 261, 148 C.C.C. (3d) 549; R. v. Lavigne, 2006 SCC 10, [2006] 1 S.C.R. 392.

By Fish J. (dissenting in part)

R. v. Gisby, 2000 ABCA 261, 148 C.C.C. (3d) 549; R. v. M. (C.A.), [1996] 1 S.C.R. 500.

Statutes and Regulations Cited

Act to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other Acts, Bill C-24, 1st Sess., 37th Parl.

Controlled Drugs and Substances Act , Bill C‑7, 1st Sess., 35th Parl., s.   2 .

Controlled Drugs and Substances Act , S.C. 1996, c. 19 ,  ss.   2(1)  “designated substance offence”, “offence‑related property”, Part I, 4(1), (2), 5(1), (2), 6(1), (2), 7(1), 10, Part II, 16, 17, 18, 19, 19.1, 20.

Criminal Code , R.S.C. 1985, c.   C‑46 , Part XII.2, Part XXI, ss. 673, 718.1, 718.2, 734(1)(a), 785.

Narcotic Control Act, R.S.C. 1985, c. N‑1.

Supreme Court Act , R.S.C. 1985, c.   S‑26 ,  s.   45 .

Authors Cited

Canada.  House of Commons.  House of Commons Debates, vol. 133, 1st Sess., 35th Parl., October 30, 1995, p. 15978.

Canada.  House of Commons.  House of Commons Debates, vol. 137, 1st Sess., 37th Parl., April 23, 2001, pp. 2952, 2955, 2956.

Driedger, Elmer A.  Construction of Statutes, 2nd ed.  Toronto: Butterworths, 1983.

Ruby, Clayton C.  Sentencing, 7th ed.  Markham, Ont.:  LexisNexis, 2008.

APPEAL from a judgment of the British Columbia Court of Appeal (Rowles, Ryan and Low JJ.A.), 2007 BCCA 234, 240 B.C.A.C. 77, 398 W.A.C. 77, 218 C.C.C. (3d) 510, [2007] B.C.J. No. 814 (QL), 2007 CarswellBC 838, reversing in part a decision of Gedye Prov. Ct. J., 2005 CarswellBC 3685.  Appeal allowed, Fish J. dissenting in part.

Howard Rubin, Q.C., and David H. Albert, for the appellant.

François Lacasse, W. Paul Riley and Simon William, for the respondent.

John Corelli and Deborah Calderwood, for the intervener the Attorney General of Ontario.

Louis P. Strezos and Brennagh Smith, for the intervener the Criminal Lawyers’ Association (Ontario).

The reasons of Binnie, Deschamps and Abella JJ. were delivered by

[1]     Abella J. — The issue in this appeal is how to apply the forfeiture provisions for offence-related real property under ss. 16(1)  and 19.1(3)  of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 .^*  Two interpretive approaches are possible.  Neither is free from difficulty, but one is, it seems to me, generally fairer than the other.

[2]     The first approach views forfeiture orders as an aspect of an interdependent global punishment.  This approach, which conceptually combines the forfeiture order with terms of imprisonment or other aspects of a sentence, leads almost inevitably to less jail time for those who have property available for forfeiture than for those who have none, on the theory that the accused has been sufficiently punished through the forfeiture order.

[3]     The second approach sees the need for a separate inquiry into whether forfeiture is justified based on a discrete statutory proportionality test.  This approach, supported by the structure and wording of the statute, seems to me to be preferable because it avoids the unpalatable possibility of trading property for jail time, and therefore ensures that the legitimate liberty interests of individuals will be protected in a more consistent way.  In my view, the loss or retention of liberty should not depend on whether an individual has property available as a sacrificial alternative.

Background

[4]     Judy Ann Craig pleaded guilty to one count of producing marihuana, contrary to s. 7(1)  of the Controlled Drugs and Substances Act .  The charge related to activities in the home she owned in North Vancouver.

[5]     She had previously been a real estate agent.  For a long time, she lived abroad.  Some years after her return to Canada, she went through a difficult divorce that left her depressed and unable to work, forcing her to mortgage her property.  She owns a second home, also subject to a mortgage. 

[6]     By the time Ms. Craig was sentenced, the Canada Revenue Agency had assessed $250,000 against her for unpaid taxes relating to marihuana earnings reaching back to 1998.  This amount was secured by a lien on her homes.  This left her with very little equity in them, though she disputed the assessment.  Observing that the tax assessment already amounted to forfeiture, the sentencing judge, Gedye Prov. Ct. J., concluded that what was left of Ms. Craig’s interest in her properties could be dealt with by way of a fine.

[7]     In sentencing Ms. Craig, Gedye Prov. Ct. J. noted that she had no criminal record, but that the operation was sizeable and had been going on for a number of years.  Ms. Craig was given a conditional sentence of 12 months, fined $100,000, and was also ordered to pay a victim surcharge of $15,000 (2005 CarswellBC 3685).

[8]     The Crown had also sought a forfeiture order against Ms. Craig’s house, but  Gedye Prov. Ct. J. refused to impose one on the basis that a fine was sufficient.

[9]     Both Ms. Craig and the Crown appealed.  At the Court of Appeal, Ryan J.A., writing for a unanimous court, upheld the conditional sentence but set aside the fine and the victim surcharge (2007 BCCA 234, 240 B.C.A.C. 77).  She also ordered the forfeiture of Ms. Craig’s home.  In her view, terms of imprisonment and forfeiture orders had to be considered together as aspects of a single, interdependent, global punishment.

[10] The Court of Appeal’s approach in finding an interdependency between forfeiture and terms of imprisonment, and its conclusion that full forfeiture was warranted in the circumstances, are the subject of Ms. Craig’s appeal.  For the reasons that follow, my respectful view is that both this approach and conclusion are contrary to the statutory mandate in the Controlled Drugs and Substances Act .

Analysis

[11] This is the Court’s first opportunity to consider whether there is an interdependent relationship between a forfeiture order for offence-related real property under the Controlled Drugs and Substances Act , and other sentencing consequences.  The issue is complex and not easily resolved.  On balance, however, it seems to me fairer to approach the forfeiture inquiry as a discrete and distinct one.

[12] Interdependency would entail an overall application of the sentencing provisions in ss. 718.1  and 718.2  of the Criminal Code , R.S.C. 1985, c. C-46 , particularly those dealing with proportionality, parity and totality.  This would result in what is to me an unacceptable risk, namely that those who have no property available for forfeiture will likely attract longer jail sentences than those with property.

[13] This appeal, it is worth remembering, is not based on a constitutional challenge to the forfeiture provisions; it is based only on arguments relating to statutory interpretation.  A combination of the words of — and the policy underlying — the Controlled Drugs and Substances Act  leads me to conclude that Parliament intended that the forfeiture of offence‑related property be a discrete inquiry.  This leads to the result that while the rest of an accused’s sentence is governed by the principles of sentencing found in the Criminal Code , the forfeiture of offence‑related real property is governed by the principles contained in s. 19.1(3)  of the Controlled Drugs and Substances Act , which provide a different and unique template.

[14] The Controlled Drugs and Substances Act  is the statutory successor to the Narcotic Control Act, R.S.C. 1985, c. N-1.  It originated in Bill C-7 in 1994 and came into force in 1997.

[15] While the original text of the Bill included a forfeiture scheme, the scheme did not apply to real property.  Bill C-7 was subsequently amended to address the problem of fortified drug houses used by criminal organizations for the production of illegal substances (House of Commons Debates, vol. 133, 1st Sess., 35th Parl., October 30, 1995, at p. 15978).  The definition of “offence-related property” was accordingly changed to include “real property built or significantly modified for the purpose of facilitating the commission of a designated substance offence” (Bill C-7, Controlled Drugs and Substances Act , 1st Sess., 35th Parl., s. 2 ).

[16] This scheme received extensive judicial consideration in R. v. Gisby, 2000 ABCA 261, 148 C.C.C. (3d) 549.  Wittmann J.A. described the purposes of the legislation as follows:

The CDSA  was enacted by Parliament to combat the illicit drug industry. A review of the CDSA and in particular, the provisions related to the forfeiture of property, indicate that the CDSA  does so both through punishment and deterrence. The forfeiture provisions are punitive to the extent that they deprive one of offence-related property, broadcasting the message that Canadian society regards designated substance offences with abhorrence. But they also introduce an element of deterrence in relation to designated substance offences. In this respect, the forfeiture provisions attach a very real cost to the business of drug crime directly equivalent to the monetary value of the offence-related property that is subject to forfeiture, thus raising the stakes associated with the commission of those offences. [para. 19]

[17] He also concluded that forfeiture served a preventative purpose, helping “prevent or at least reduce the likelihood of future offences by removing from the illicit drug industry property which, by virtue of the definition found at s. 2(1), is being used to facilitate the commission of a designated substance offence” (para. 20).  Finally, he noted that “it is often the case that offence-related property is not owned by the offender, but by a culpable third-party with some sort of relationship to him or her, and continues to be used for illicit purposes by other persons” (para. 21).

[18] The Controlled Drugs and Substances Act  was amended by Bill C-24 in 2001.  It contained two important changes of relevance to this appeal: it expanded the definition of offence-related property to include any real property, including property not built or significantly modified for criminal purposes, and it set out a proportionality test in s. 19.1(3).

[19] Various routes to forfeiture are provided in the statute.  The one at issue in this case is set out in ss. 16 and 19.1, the relevant portions of which state:

16. (1) Subject to sections 18 to 19.1, where a person is convicted of a designated substance offence and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that any property is offence‑related property and that the offence was committed in relation to that property, the court shall

(a) in the case of a substance included in Schedule VI, order that the substance be forfeited to Her Majesty in right of Canada and disposed of by the Minister as the Minister thinks fit; and

(b) in the case of any other offence‑related property,

(i) where the prosecution of the offence was commenced at the instance of the government of a province and conducted by or on behalf of that government, order that the property be forfeited to Her Majesty in right of that province and disposed of by the Attorney General or Solicitor General of that province in accordance with the law, and

(ii) in any other case, order that the property be forfeited to Her Majesty in right of Canada and disposed of by such member of the Queen’s Privy Council for Canada as may be designated for the purposes of this subparagraph in accordance with the law.

19.1 . . .

(3) Subject to an order made under subsection 19(3), if a court is satisfied that the impact of an order of forfeiture made under subsection 16(1) . . . in respect of real property 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.

(4) Where all or part of the property that would otherwise be forfeited under subsection 16(1) . . . is a dwelling‑house, when making a decision under subsection (3), the court shall also consider

(a) the impact of an order of forfeiture on any member of the immediate family of the person charged with or convicted of the offence, if the dwelling‑house was the member’s principal residence at the time the charge was laid and continues to be the member’s principal residence; and

(b) whether the member referred to in paragraph (a) appears innocent of any complicity in the offence or of any collusion in relation to the offence.

[20] In introducing the amending legislation, the Honourable Anne McLellan, then Minister of Justice and Attorney General of Canada, stated:

. . . I am pleased today to lead off the debate on an issue of major concern to all Canadians: the problem of organized crime and the legislative tools available to our police, prosecutors and courts to address that problem.

 . . .

Not all provisions of the bill specifically target organized crime groups.  Several elements in the proposed legislation are meant to improve criminal law generally.  These improvements to the law will nonetheless be extremely useful in combatting organized crime.

. . .

The last element that I want to stress deals with offence related property.  The bill contains amendments to make the offence related property forfeiture regime in the code apply to all indictable offences.  As well, the present exemption from forfeiture for most real property would be eliminated. [Emphasis added.]

(House of Commons Debates, vol. 137, 1st Sess., 37th Parl., April 23, 2001, at pp. 2952, 2955 and 2956)

[21] As is apparent from the scheme’s wording, the forfeiture provisions were intended to be of general application.  However, the above statement by the Minister of Justice indicates that organized crime may be a relevant factor in the forfeiture inquiry.  The preoccupation with organized crime becomes particularly relevant, in my view, in applying the proportionality analysis, as discussed later in these reasons.

[22] In addition to providing insight into the purposes intended by Parliament, a number of salient features of the legislative scheme emerge from its history.  First, I think it is reasonable to infer that the s. 19.1(3) proportionality test was adopted to counterbalance the potentially harsh effects of extending the definition of offence-related property, without qualification, to all real property. The test, therefore, should be read in this remedial light.  Second, the legislative history supports Ryan J.A.’s observation (at para. 51) that while the offender’s involvement in organized crime is not the only focus of the forfeiture of offence-related property scheme, it can nevertheless be an important factor in applying the test under s. 19.1(3).  Finally, while a forfeiture order may have a punitive impact on an offender, it is also aimed at taking offence-related property out of circulation and rendering it unavailable for future designated substance offences.

[23] “[O]ffence-related property” is broadly defined in s. 2(1)  of the Controlled Drugs and Substances Act  to include “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”.

[24] A “designated substance offence” is defined in s. 2(1) to mean “(a) an offence under Part I, . . . or (b) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a)”. The offences referred to in this definition are: obtaining a substance (s. 4(2)); trafficking in a substance (s. 5(1)); possession for the purpose of trafficking a substance (s. 5(2)); importing or exporting a substance (s. 6(1)); possession for the purpose of exporting a substance (s. 6(2)) and production of a substance (s. 7(1)).  Mere possession of a substance is not included.

[25] An order for forfeiture under s. 16(1) is subject to s. 19.1.  That means that before a court orders forfeiture, it must consider the factors set out in s. 19.1.  This includes the proportionality factors in s. 19.1(3), the provision dealing with real property.

[26] Under s. 19.1(3), the court must consider whether “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”.  If so, the court “may decide not to order the forfeiture of the property or part of the property”.

[27] If the real property is a dwelling-house, a further inquiry is mandated by s. 19.1(4), which states that a court deciding whether to order forfeiture under s. 19.1(3) must additionally take into consideration the impact of an order of forfeiture on any member of the immediate family of the person charged with or convicted of the offence, if it was, and remains, that family member’s principal residence at the time the charge was laid.  That family member’s apparent innocence of any complicity in the offence or any collusion in relation to the offence is also to be taken into account.

[28] Separate sections deal with protecting the interests of innocent third parties in the property to be forfeited.

[29] This argues for the following process.  When an offender is convicted of a designated substance offence and the Attorney General requests the forfeiture of real property, the court has a discretion under s. 19.1(3) and (4) to refuse to order forfeiture, in whole or in part.  Pursuant to s. 19.1(3), this discretion must be exercised having regard to the applicable statutory factors.  In addition, if the real property is a dwelling-house, s. 19.1(4) applies, obliging the court to consider the interests of the offender’s family members residing in the home and their degree of involvement in the offence.

[30] This brings us to the central question in this appeal: whether a forfeiture order for offence-related real property under the Controlled Drugs and Substances Act  should be considered as a distinct inquiry, or interdependently with terms of imprisonment or other aspects of a sentence. This involves deciding between two approaches: the first resting on an overall application of the principles of sentencing found in the Criminal Code ; the second as an independent inquiry resting on an application of the specific test set out in s. 19.1(3) and (4) to a forfeiture order.

[31] The approach adopted in the prior proceedings in this case and in the companion cases of R. v. Nguyen, 2007 BCCA 474, 246 B.C.A.C. 263, and R. v. Ouellette, [2004] R.J.Q. 2619 (C.Q.), treats terms of imprisonment and forfeiture orders as interdependent and therefore subject to general sentencing principles.  This may be described as the “totality” approach.  The application of these principles leads to the conclusion that because forfeiture may have a punitive impact, one can take it into consideration in deciding whether, in combination with the imposition of a jail sentence, the total punishment would be unduly harsh.  This approach led to conditional sentences in each of the three cases under review.

[32] The other approach, adopted by the Nova Scotia Court of Appeal in R. v. Siek, 2007 NSCA 23, 218 C.C.C. (3d) 353, treats a forfeiture order under the Controlled Drugs and Substances Act  as a distinct and independent consequence tailored to serious drug offences.

[33] Although neither approach is free from difficulty at a policy level, the statutory scheme does not support an approach that results in an exchange of jail time for property.

[34] There is no doubt that forfeiture may be punitive in its impact.  (See Industrial Acceptance Corp. v. The Queen, [1953] 2 S.C.R. 273, at p. 278, R. v. Green (1983), 148 D.L.R. (3d) 767 (Ont. H.C.J.), at p. 768, and Gisby, at para. 19.)  It does not follow, however, that it should be consolidated with sentencing on a totality approach, 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 reduced custodial terms, while those without property would not.

[35] Such a result troubles not only the conscience by inadvertently rewarding offenders with property available for forfeiture and penalizing those without, it offends our bedrock notions of fitness in sentencing since individuals with no property to forfeit are no more blameworthy than those with property.  It would be unjust for them to receive more severe custodial terms simply because they have no property to forfeit.

[36] As McKinnon C.J.N.S. forcefully observed in R. v. Johnson (1971), 5 C.C.C. (2d) 541 (N.S.S.C., App. Div.), in explaining why he refused to impose a jail sentence rather than a fine on an accused who was a “man of means” who could, it was argued, readily afford monetary penalties: “What concerns the Court deeply is the cardinal principle upon which our criminal judicial system, with which we are concerned here, is based, namely, that all persons stand equal before the Court. It matters not what the race, creed, colour, status in society, whether pauper or rich man, an accused must receive equality of treatment before the law” (p. 543).  (See also Clayton C. Ruby, Sentencing (7th ed. 2008), at para. 11.17, and R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530.)

[37] The sentencing principles of the Criminal Code  themselves suggest that the deprivation of an individual’s liberty is qualitatively different from other sanctions.  Section 718.2(d) states that, “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”.  Offenders should not be able to avoid jail time or receive lesser terms of imprisonment simply because they have more property.  Yet considering forfeiture orders and the rest of the sentence interdependently would mandate precisely this kind of troubling calculation.

[38] The conditional sentences imposed in all three of the appeals under consideration demonstrate what may likely result when forfeiture orders and terms of imprisonment are considered interdependently.  There is no doubt that in the circumstances of at least two of the cases, a prison term would otherwise have been ordered.  Ryan J.A. stated in this case: “I agree with the Crown that, viewed in isolation of forfeiture, a conditional sentence as the primary sentence was unfit, and a sentence of conventional incarceration would have been appropriate” (para. 126).  Similarly, in the companion case of R. v. Nguyen, 2006 BCSC 1846, [2006] B.C.J. No. 3202 (QL), the trial judge stated: “The only impediment to the imposition of a conditional sentence in this case is the failure of such a sentence to provide an adequate level of deterrence. With forfeiture of a home with an equity of some $150,000, that impediment is now removed” (para. 19).

[39] The only accused, therefore, who will benefit from a “global” approach to the forfeiture order are those with property available for forfeiture, who will be able to argue that its imposition should result in a more lenient jail term.  A legal system that tolerates differences about who goes to jail based on whether they have property, risks impairing its own integrity and credibility.

[40] In addition to my concern that those without property should not be treated more harshly than those who have it, I see the purpose and statutory language underlying the forfeiture scheme as a reflection of Parliament’s intention that forfeiture orders be treated independently, pursuant to a separate rationale and as a distinct response to distinct circumstances.  The sentencing inquiry focuses on the individualized circumstances of the offender; the main focus of forfeiture orders, on the other hand, is on the property itself and its role in past and future crime.

[41] For a start, the fact that forfeiture may apply to property owned by a complicit individual who is neither sentenced nor even charged with an offence is, to me, an indication that forfeiture orders and terms of imprisonment or other aspects of a sentence were intended to be treated as separate and distinctive consequences.  The forfeiture scheme is focused in part on taking offence-related property out of circulation and on confronting organized crime, whether or not the property is owned by the offender.  Individuals who have allowed their property to be used for criminal purposes, even if their conduct does not rise to the level of criminal liability with respect to the particular offence, may, as a result, also be subject to forfeiture orders, as reflected in s. 19(3), which provides a recovery mechanism for third-party owners of offence-related property to be forfeited.  Under that section, a court must be satisfied that individuals are innocent of any complicity or collusion in the offence before they can recover their property.  This is consistent with the historic roots of forfeiture as punishment for negligently allowing one’s property to be used for wrongful purposes, a consequence connected to, but not identical to, punishment for the offence. 

[42] Certain types of forfeiture orders under the Controlled Drugs and Substances Act  operate without the existence of a term of imprisonment imposed on anyone for the particular designated substance offence.  Under s. 16(2) , even if certain property is not related to the designated substance offence for which an offender was convicted, forfeiture may nevertheless be ordered if the property can be established to be offence‑related beyond a reasonable doubt.  In addition, under s. 17, the Attorney General may apply for in rem forfeiture where the property is found to be offence-related beyond a reasonable doubt, the accused has died or absconded, and proceedings have been commenced.  In these situations, a relevant custodial sentence will not exist and therefore clearly cannot be related to any forfeiture order.  This further suggests Parliament’s view that there is a separate blameworthy element to using or allowing the use of one’s property for criminal purposes.

[43] The very structure of the Controlled Drugs and Substances Act  confirms the separate character of the two orders.  Part I is called “Offences and Punishment”.  In this part, s. 10(1)  deals with the principles applicable to sentences for offences under the statute and states that “[w]ithout restricting the generality of the Criminal Code , the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.”

[44] These are, in essence, the ordinary sentencing principles, and refer specifically to the circumstances of the offender.  The forfeiture provisions, on the other hand, are in a separate section of the statute, Part II, called “Enforcement”.  This is where we find s. 19.1(3).  The proportionality analysis mandated under s. 19.1(3) sets out different considerations from those mandated by the sentencing principles under the Criminal Code .  What it directs, unlike s. 10(1) found in Part I, is that the court consider whether “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”.  If these factors suggest disproportionality, the court “may decide not to order the forfeiture of the property or part of the property”.

[45] While the considerations under s. 19.1(3) are undoubtedly part of what is normally taken into account in the ordinary sentencing inquiry, the circumstances of the offender, a key aspect of the sentencing process, have significantly been excluded.  The three listed factors, in fact, make no specific reference to whether any other punishment has been imposed for the offence.  The absence of any words to this effect, it seems to me, is a reflection of Parliament’s intention that this should not be a relevant factor in the forfeiture inquiry.  To consider a term of imprisonment under s. 19.1(3), therefore, would be to introduce into the forfeiture analysis broader sentencing considerations that have been specifically excluded.

[46] The Court of Appeal concluded that because s. 19.1(3) states that a court may refuse to order forfeiture if “the impact” of the order would be “disproportionate”, this mandates an inquiry into the accused’s individualized circumstances, including the term of imprisonment or other aspect of a sentence.  Significantly, it acknowledged that without the word “impact”, the term of imprisonment could not be taken into consideration in the s. 19.1(3) analysis.  In my view, with respect, such an interpretation is not justified by the wording of the provision.  A court is entitled to refuse forfeiture only if the impact of the forfeiture order would be disproportionate with respect to the three listed factors.  Furthermore, the French version of the Controlled Drugs and Substances Act  states in the relevant part “s’il est convaincu que la confiscation serait démesurée” (s. 19.1(3)).  There is no reference to “impact” or to an equivalent term.  This too casts doubt on Parliament’s intention that an individual’s personal circumstances be considered.

[47] The absence of any reference to these wider sentencing factors stands in marked contrast to the approach found in s. 10(1) in Part I of the statute.  Had Parliament intended that the Criminal Code  sentencing principles apply to the imposition of forfeiture orders, it would have made them subject to the same considerations as those set out in s. 10(1), which, as previously noted, direct that the traditional approach to sentencing be applied.  The fact that forfeiture orders do not have a similar direction as is found in Part I is, to me, another indication that Parliament intended that forfeiture orders not be subject to general sentencing principles.

[48] In R. v. Lavigne, 2006 SCC 10, [2006] 1 S.C.R. 392, Deschamps J., in considering whether a forfeiture order for the proceeds of crime is part of the sentence, concluded that a court’s discretion in imposing an order is necessarily limited by the purpose of the order to be made and by the statutory factors at issue (paras. 23-24).  The forfeiture factors found in s. 19.1(3), therefore, should similarly be seen to constitute a complete code for deciding whether, and to what extent, a forfeiture order should be made.  This exercise of discretion does not engage the full panoply of principles used to determine whether a sentence is fit when the statute sets out its own guiding factors.  The expansive principle of proportionality used in sentencing, therefore, has been excluded both expressly and by necessary implication, in favour of the more specific factors outlined in s. 19.1(3).  The different scope and purpose of the two inquiries suggests that they ought logically to be considered as separate.

[49] The argument was also made that because s. 16(3)  of the Controlled Drugs and Substances Act  provides that an appeal can be taken from a forfeiture order “as if the appeal were an appeal against the sentence imposed on the person in respect of the offence”, an offender’s term of imprisonment or other aspects of a sentence and a forfeiture order are to be treated as interrelated.  Furthermore, s. 673  of the Criminal Code , found in Part XXI entitled “Appeals” relating to “Indictable Offences”, includes forfeiture orders under the Controlled Drugs and Substances Act  in the definition of “sentence”, as does s. 785 in the context of summary conviction offences.  These provisions, in my view, are plainly procedural, effectively importing Criminal Code  appeal provisions into the Controlled Drugs and Substances Act .  They do not assist in the substantive question of whether forfeiture should be considered as part of a single, global sentence (see R. v. Sandover‑Sly, 2002 BCCA 56, 163 B.C.A.C. 312, at para. 18).

[50] The fairness of a forfeiture order pursuant to this proportionality test is further ensured by the availability of partial forfeiture.  In my view, the underlying rationale of Parliament’s decision to offset an expanded definition of offence-related property with a proportionality analysis under s. 19.1(3) is similar to that of partial forfeiture — namely, a recognition that forfeiture of real property can be a draconian measure.  The courts in the present appeal and in the companion case of Nguyen did not address the possibility of partial forfeiture.  Giroux J.A., on the other hand, in the Ouellette appeal, interpreted s. 19.1(3) as enabling a court to order partial forfeiture (R. v. Ouellette, 2007 QCCA 518, 229 C.C.C. (3d) 563).  In my view, he was correct to do so.  (See also R. v. Yee, 2008 ABPC 89, [2008] A.J. No. 866 (QL), per Tilley Prov. Ct. J.)

[51] Interpreting the legislation to permit partial forfeiture is consistent with the plain language of s. 19.1(3), which states that a court “may decide not to order the forfeiture of the property or part of the property”.  With respect for the contrary view, it is difficult to see how the section by itself can be interpreted other than as providing that, based on the factors in s. 19.1(3), the court may decide that even though a forfeiture order for the entire property is unwarranted, an order for forfeiture of only a part of the property may nonetheless be justified.

[52] The argument was advanced that, because s. 19.1(3) is made subject to “an order made under subsection 19(3)”, the “part” referred to in s. 19.1(3) refers to the “part” remaining available for forfeiture after the court orders property returned to innocent third parties under s. 19(3).  As previously noted, that section provides a recovery mechanism for certain lawful owners of “any property or any part of any property that would otherwise be forfeited”.  However, in my view, since s. 19.1(3) is already made subject to an order under s. 19(3), the court would only be entitled to order the forfeiture of that “part” remaining of the property in any event.  Interpreting the language of the section to allow for partial forfeiture, on the other hand, gives the words “part of the property” fuller effect.

[53] Furthermore, while s. 16(1) is also made subject to s. 19(3), there is no mention of a court ordering the forfeiture of only “part” of that property, even though innocent third parties may just as easily have legitimate claims to personal property, to which s. 19.1(3) does not apply.  If the language of “part of the property” used in s. 19.1(3) was necessary to safeguard an innocent third party’s interest in real property, or to identify the remaining portion of the property available for forfeiture, then it would have been consistent across the provisions and, in particular, with respect to personal property.

[54] It is only in connection with real property that one finds language which, in my view, supports a discretion to order the partial forfeiture of even a blameworthy individual’s property.  Interpreting s. 19.1(3) in this manner is consistent with the recognition in the proportionality analysis that real property is a quantitatively and qualitatively different kind of asset.

[55] The proportionality test under s. 19.1(3) therefore allows a court to tailor the amount of property to be forfeited in a way that takes into account the relative weight of the listed factors.  Partial forfeiture gives the court greater scope for applying the proportionality test so that the only options available to the sentencing judge are not a stark choice between full or no forfeiture.  This establishes a spectrum of potential forfeiture orders that can be adjusted to reflect the relative gravity of the case, pursuant to the purposes of the forfeiture scheme.

[56] What, then, should a judge consider under s. 19.1(3)?  The nature and gravity of the offence could include the character and quantity of the substance involved,  the level of sophistication of the crime and the extent to which the commercial production or distribution of drugs was involved.

[57] The second factor, the circumstances surrounding the commission of the offence, might include consideration of the offender’s role in the commission of the offence, the nature of the property and the manner in which it was used in the offence, risks to the security or safety of the community, whether the property was used in a manner that detrimentally affected its legitimate use and enjoyment, whether the property was fortified or otherwise adapted to accommodate the grow operation, the extent of the offender’s involvement in organized crime and whether the property itself was held by a criminal organization.

[58] The criminal record of the offender is self-explanatory.  It will be of particular relevance if the prior offences were drug related.

[59] Based on the particular circumstances of the case, therefore, judges have the discretion to order no forfeiture, partial forfeiture or full forfeiture of offence-related real property.  The extent of the property forfeited will vary.  Full forfeiture may be anticipated, for example, in the case of a fortified property purchased for criminal purposes and solely dedicated to the commercial production and distribution of illegal substances, perhaps with a connection to organized crime.  On the other hand, one might decline to order forfeiture in the case of an individual with no criminal record and no connection to organized crime who grows very little marihuana in her home.  Each situation will be subject to a judge’s appreciation of how the s. 19.1(3) factors should be applied in the particular circumstances, which, as previously stated, may result in no, partial or full forfeiture.

[60] The forfeiture scheme is not aimed strictly at defeating organized crime, as a plain reading of the provisions shows.  However, even absent the legislative history to this effect, there is no doubt that involvement in organized crime is a relevant factor in applying the proportionality test under s. 19.1(3).  It is significant not only because it is a serious circumstance in itself, but also because it indicates that the property was dedicated to and adapted for criminal purposes.

[61] This brings us to the forfeiture order in this case.

[62] At the suggestion of a friend, in 1998 Ms. Craig began growing marihuana.  She sold it to various clients, including to some of her friends suffering from AIDS and hired employees to help her with the operation.  She testified that she was approached by an individual involved in organized crime for the purpose of setting up a lucrative sales arrangement but refused.  No weapons were found in her home and she did not use an electric by-pass.

[63] Ms. Craig was arrested, together with two other individuals, after police observed them removing plants and paraphernalia from the residence and attempting to conceal them on city property.  The basement level and portions of the main floor of her home were devoted to marihuana cultivation.  Her operation included three growing rooms and one drying room, as well as industrial lighting, ventilation and irrigation systems.  Her home, in which she lived alone, was therefore adapted to some degree for the purpose of growing marihuana.  She continued to live there and these activities occupied only a part of the house.

[64] At the time of her arrest, police seized 186 marihuana plants (including clones), packaging, scales, various other materials, and a container with one pound of marihuana packaged for wholesale distribution.  They also seized cash, additional pre-packaged marihuana, and “score sheets” documenting marihuana sales from her car.  According to a police officer with expertise in marihuana sales, the value of the plants was $87,500 and the value of the marihuana seized from her was $15,000.

[65] Ms. Craig has no criminal record.

[66] Neither the sentencing judge nor the Court of Appeal treated the forfeiture order as a separate inquiry.  Nor did they consider the possibility of partial forfeiture.  In fact, Gedye Prov. Ct. J. appeared to take a global approach in her ruling, which included a conditional sentence, a fine and a refusal to order forfeiture.  The Court of Appeal set aside the fine and ordered full forfeiture.

[67] These cases deal with a novel legal issue under the Controlled Drugs and Substances Act  which this Court has not previously addressed.  Whatever my views on what orders ought to have been made under this new analysis, I see no reason either in this case or in the two companion appeals to attempt at this stage to unravel the sentencing packages ultimately imposed.  Nor do I see significant benefit in sending the matters back for reconsideration.  Ms. Craig has already completed her conditional sentence.  Based too on the circumstances of the offence outlined by Gedye Prov. Ct. J., I would not at this stage interfere either with her decision not to order forfeiture or with the decision of the Court of Appeal to set aside the fine.  The Crown did not ask this Court to reinstate the fine, and I see no reason to do so in the absence of such a request. 

[68] I would therefore allow the appeal from the Court of Appeal’s order for full forfeiture.  As the sentence has been served and since the Crown has not sought reinstatement of the $100,000 fine imposed by the sentencing judge, the appropriate disposition is simply to set aside the Court of Appeal’s forfeiture order.

The following are the reasons delivered by

[69] The Chief Justice and Rothstein J. — We agree with the reasons of Abella J., except on the issue of partial forfeiture. In our view, the language of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 , imposes mandatory forfeiture of offence-related property, with a limited discretion not to order forfeiture in the case of real property.  Partial forfeiture turns this limited discretion into a mandate “to tailor the amount of property to be forfeited in a way that takes into account the relative weight of the listed factors” in s. 19.1(3) (Abella J.’s reasons at para. 55).  We cannot conclude that this was what Parliament intended.

1.      Interpretation of the Statute

[70] The issue is one of statutory interpretation.  Statutory interpretation rests on reading the words of the provision contextually, as part of the overall scheme: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.

[71] In our view, when correctly interpreted, the words “part of the property” in s. 19.1(3) authorize a sentencing judge not to order the forfeiture of the part of the real property remaining after the interests of innocent third parties have been accounted for under s. 19(3) where the impact of forfeiture of the remaining part would be disproportionate having regard to the factors listed in s. 19.1(3).  This is all that Parliament intended when it used the words “part of the property” in s. 19.1(3).

(a)     How the Provisions Work

[72]       In order to understand the words “part of the property” in s. 19.1(3), it is helpful to see how they operate in practice:

(i)                The first and seminal provision is s. 16(1).  Where a person has been convicted of a designated substance offence, all property related to that offence is subject to forfeiture.   The judge is given no discretion in the matter.  Section 16(1) says that the judge “shall” order that the offence-related property be forfeited to the Crown, in right of the province or in right of Canada, as the case may be: s. 16(1)(b)(i).

(ii)               Before the court makes an order of forfeiture, anyone who “appears to have a valid interest in the property” must be given notice and may be provided with an opportunity to be heard: s. 19(1). If the court is satisfied that the person is the lawful owner or is lawfully entitled to possession of “any property or any part of any property that would otherwise be forfeited”, and the person is innocent of any complicity or collusion in the offence, the court may order that the “property or part” be returned to that person: s. 19(3). Section 19 applies equally to all offence-related property subject to an order under s. 16(1). If the offence-related property is not real property, then the court’s inquiry into forfeiture ends here with the forfeiture of any interest in that property which is not an interest held by an innocent third party.

(iii)               Where the property in question is real property, special provisions apply. Section 19.1(3) provides that a judge may relieve against forfeiture in the case of real property if the impact of forfeiture would be disproportionate, having regard 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”.  If satisfied that the impact of forfeiture would be disproportionate, the court “may decide not to order the forfeiture of the property or part of the property”.  The authority of the judge to preserve “part” of the property appears both with respect to all offence-related property (under s. 19(3)) and with respect to real property (under s. 19.1(3)).

(iv)              In the case of a dwelling-house, Parliament has provided special protections for immediate family members living in the house who are not complicit in the offence.  Hence the notice provisions of  s. 19.1(1) and (2) (s. 19.1(1) referring to “all or part of offence-related property”).  Section 19.1(4) supplements s. 19.1(3) by adding that “[w]here all or part of the property that would otherwise be forfeited under subsection 16(1) or 17(2)” is a dwelling-house, the court, in making its decision under subsection (3), “shall also consider” the impact of ordering forfeiture on members of the offender’s immediate family residing in the dwelling-house, as long as the dwelling-house is the member’s principal residence and the member appears innocent of any complicity in the offence or of any collusion.

(v)               Finally, s. 20 provides a procedure for a person who claims an interest in forfeited property to have a judge declare “the nature and the extent or value of the[ir] interest” and to require the Minister to return “the property, or the part of it to which the interest of the applicant [the person holding the interest] relates” or to pay to the applicant (the person holding the interest) “an amount equal to the value of the[ir] interest . . ., as declared in the [judge’s] order”: s. 20(4) and (6).

(b)     Interpretation of “part of the property” in Section 19.1(3)

[73] Against this background, we come to the question of how the reference to “part of the property” in s. 19.1(3) should be interpreted.  The words can be read in  two different ways:

(i)                As a reference to the fact that before forfeiture takes place, the interest of others in real property must be taken into account under s. 19(3) so that forfeiture will apply only to the “part of the [real] property” remaining after those interests have been accounted for.

(ii)               As empowering the court to order that only part of the  real property be forfeited.

Neither of these interpretations is free from doubt.  

[74] Against the first option, it can be argued that the fact that s. 19.1(3) is subject to s. 19(3) means that we are already concerned only with the “part of the property” remaining after the interests of innocent third parties have already been accounted for under s. 19(3).  In this light, it is arguably redundant to add “or part of the property” in s. 19.1(3) if what is meant by these words is the “part” remaining after the operation of s. 19(3). This is the view we understand our colleague Abella J. to adopt.

[75] Against the  second option, it can be argued that if Parliament had intended to confer on the court a broad power to relieve against forfeiture of only a part of the interest remaining in real property after the operation of s. 19(3), it would have said so expressly. This is particularly so since the general rule, set out in s. 16(1), is that offence-related property is forfeited in its entirety, posing the question: What is the distinctive feature of real property, as compared with personal property, that makes it necessary to provide for partial forfeiture of the remaining interest, in addition to the general power to relieve against forfeiture in s. 19.1(3) and (4)? 

[76] Also weighing against partial forfeiture is the complexity added by an inquiry into what portion of the remaining interest in the real property is at issue.  If partial forfeiture were accepted, the forfeiture inquiry, for practical purposes, would involve two steps: (1) determining whether, on the factors indicated, relief against forfeiture should be granted; and (2) determining the percentage of the remaining interest in the real property that should be forfeited.  

[77] At the decision-making stage, the second inquiry is difficult since there are no ready means to translate the s. 19.1(3) factors into percentages of the remaining interest.  Moreover, doing so inevitably risks conflating sentence considerations with forfeiture, contrary to Abella J.’s conclusion (with which we agree) that forfeiture and the primary sentence are separate determinations.

[78] This increased complexity is again apparent at the procedural stage.  In some cases, the real property that is subject to forfeiture will already have been severed from other interests in that property: see s. 19(3).  However, imposing a second and unpredictable calculation based on a weighing of the factors listed in s. 19.1(3), while arguably feasible, would add to the complexity of already complex proceedings.  It seems reasonable to assume that Parliament intended the forfeiture procedure to be as simple as justice permits. One would thus expect clear words, had it been Parliament’s intent to encumber the process by conferring a broad discretion on a judge, to consider what proportion of the remaining interest in the real property would be disproportionate to order forfeiture under s. 19.1(3).

[79]  In our view, if Parliament had intended to grant not only the power to relieve against forfeiture of real property, but to determine what proportion of the property should be exempted, it would have said so in clearer language.  The phrase “or part of the property” is more convincingly read as a reflection of the language in s. 19(3), to which the determination under s. 19.1(3) is “[s]ubject”.  That is, “any property or any part of any property that would otherwise be forfeited” may already have been restored to non-complicit third parties under s. 19(3), with the result that only the “part” of the property still remaining is subject to the disproportionality analysis under s. 19.1(3).

[80] This reading is further strengthened by reference to s. 20, which provides a procedure for a person who claims an interest in forfeited property to have a judge declare “the nature and the extent or value of the[ir] interest”. The Minister can then be required to return “the property, or the part of it to which the interest of the applicant [the person holding the interest] relates” or to pay to the applicant (the person holding the interest) “an amount equal to the value of the[ir] interest . . ., as declared in the [judge’s] order”: s. 20(4) and (6).  Both ss. 19(3) and 20(6) use the words “part of the property” or their equivalent to distinguish between the offender’s interest or the interests of complicit third parties in property and that of innocent third parties. Likewise, s. 19.1(3) should also be read to refer to the “part” of the property in which innocent third parties whose interests have been accounted for under s. 19(3) do not have an interest.

[81] Reading s. 19.1(3) to allow for partial forfeiture would be inconsistent with the broader objectives of the statutory scheme. In E. A. Driedger’s oft-quoted formulation, the words of a provision must be read “harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Bell ExpressVu, at para. 26, citing Construction of Statutes (2nd ed. 1983), at p. 87. Forfeiture of offence-related property under the Act (as under the Criminal Code , R.S.C. 1985, c. C-46 ) is generally mandatory and total. The intention of Parliament was to deprive offenders and other complicit individuals of the tools of the trade: see R. v. Gisby, 2000 ABCA 261, 148 C.C.C. (3d) 549, at paras. 20-21. This is distinct from the forfeiture of proceeds of crime, the purpose of which is to deprive an offender of ill‑gotten gains: R. v. Lavigne, 2006 SCC 10, [2006] 1 S.C.R. 392, at paras. 9‑10. Where forfeiture of the proceeds of crime is at issue, the focus is on the assets accumulated as a result of criminal activity. In the case of offence‑related property, the focus is on the physical property itself and the criminal opportunity that continued possession of the property furnishes to the offender or to other complicit persons. Section 19.1(4), which supplements s. 19.1(3), similarly focuses on the use, rather than the commercial value of the offence‑related real property.

[82] Importantly, no provision is made in the Act for a fine in lieu of forfeiture. This type of fining power was at issue in Lavigne, which involved the forfeiture of proceeds of crime under Part XII.2 of the Criminal Code . Instead, the sole focus of the Act is on the physical property, rather than its value. To accept that partial forfeiture is authorized by s. 19.1(3) would, in our view, effectively transform forfeiture of offence‑related real property into a discretionary fine, with the value of the property set as its maximum.

[83] We therefore conclude that s. 19.1(3) provides a discretion to relieve  against forfeiture of the interest in real property remaining after the interests of innocent third parties have been accounted for under s. 19(3) if the impact of forfeiture would be disproportionate having regard to the factors listed. It does not confer a further mandate to carve up real property in proportion to the relative weighing of the listed factors.

2.      Application

[84] Pursuant to s. 19.1(3), the question is whether forfeiture of the property 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 offender. The relevant facts are discussed by our colleague Abella J.

[85] First, with respect to the nature and gravity of the offence, this was a moderately sized grow operation which produced substantial profits for Ms. Craig over several years. Though production of marihuana is considered less serious than production of some other drugs, an offence of this nature often attracts a custodial sentence. Accordingly, the nature and gravity of the offence does not militate substantially against forfeiture.

[86] However, the circumstances surrounding the commission of the offence do weigh against forfeiture in this case. The property was not purchased for the purpose of establishing a grow operation. Ms. Craig had no links to organized crime.  While this was a sustained criminal enterprise for which Ms. Craig must stand accountable, on balance, the circumstances surrounding the commission of the offence weigh against forfeiture.

[87] Finally, Ms. Craig had no criminal record.

[88] While this is a close case, we are satisfied that forfeiture would be disproportionate having regard to the factors in s. 19.1(3). In the result, like Abella J., we would allow the appeal and set aside the Court of Appeal’s forfeiture order.

The following are the reasons delivered by

[89] LeBel J. — I have read the reasons of my colleagues. I agree with Justice Fish that a sentencing judge may take a punitive order of forfeiture into consideration in crafting a fit and proportionate sentence. But I agree with Justice Abella that partial forfeiture may be ordered. In my opinion, such an order may sometimes be an appropriate component of a fit sentence. For these reasons, I would dispose of this appeal as Justice Abella proposes.

The following are the reasons delivered by

Fish J. (dissenting in part) —

I

[90] This appeal raises three questions concerning the forfeiture provisions of the Controlled Drugs and Substances Act , S.C. 1996, c. 19  (“CDSA ”), as they apply to real property.

[91] First, may courts order forfeiture in part only of real property entirely subject to forfeiture?  Like the Chief Justice and Justice Rothstein, I would answer that question in the negative.

[92] Second, what factors must trial judges consider in exercising their statutory discretion to decline to order the forfeiture of real property?  Parliament has answered this question in s. 19.1(3)  of the CDSA , which provides that forfeiture must be ordered unless 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”.  On this branch of the matter, I agree with Justice Abella.

[93] The third question is whether the decision to order forfeiture can be considered by the sentencing judge in crafting a fit sentence. Justice Abella says no; with respect, I say yes.  More precisely, my colleague says never and I say sometimes.  In my view, forfeiture may be taken into account by the sentencing judge where the order of forfeiture constitutes punishment of the offender for having committed the offence.  Conceptually, forfeiture may well have other purposes.  But it is unmistakably punitive in effect where the property forfeited was acquired by the offender legally and honestly — for example, by gift, inheritance or with funds lawfully earned or obtained.  In these circumstances, forfeiture is a relevant consideration in determining the appropriate sentence, since it is the global punishment that must fit the crime.

[94] Proportionality has long been universally regarded as a moral principle of punishment. It has now been enshrined by Parliament, in s. 718.1  of the Criminal Code , R.S.C. 1985, c. C-46 , as the fundamental principle of sentencing.  A sentence that is disproportionately severe only in light of the forfeiture order by which it is accompanied as a penal consequence of the same conviction is nonetheless disproportionately severe.  Parliament cannot have intended the forfeiture provisions of the CDSA  to be construed and applied in a manner that will inevitably, in some cases at least, produce that result.

II

[95] I recognize, of course, that forfeiture under the CDSA  will not in all cases amount to punishment of the offender.  But it bears that hallmark where, upon convicting an offender, the court orders forfeiture of property that belongs to the offender and was legally and honestly obtained.  Indeed, the purpose of the order of forfeiture has been held in such cases to be justified by three principal purposes of sentencing: to deter future crime, to denounce the offence and the offender, and to prevent further criminality.  See, for example, R. v. Gisby, 2000 ABCA 261, 148 C.C.C. (3d) 549, at paras. 19-20, where the statutory antecedent of the forfeiture scheme that concerns us here was characterized by the court as punitive, serving the ends of denunciation, deterrence, and prevention.

[96] Our concern here is with the forfeiture of property that an offender honestly and legally acquired before engaging in criminal activity, independently of criminal activity, and not in contemplation of future criminal conduct.  It is only in relation to this kind of property — property whose acquisition is untainted by crime — that forfeiture is properly characterized as punishment.

[97] As Justice Abella properly notes, forfeiture may be ordered under the CDSA  on various grounds which do not amount to punishment of the convicted offender.  For example, in cases where the property does not belong to the convicted person, its forfeiture cannot properly be regarded as a punishment of the offender for having committed the offence for which he or she is to be sentenced.

[98] My reasons relate throughout only to forfeiture that constitutes punishment of the person being sentenced, as it does here.

III

[99] Sentences must not only be proportionate to the seriousness of the offence and the culpability of the offender, but must respect as well the other principles and purposes of sentencing set out in the Criminal Code .  Appropriate weight must also be given to particular purposes established by Parliament in the governing statute — notably, in this case, the purposes set out  in s. 10  of the CDSA .

[100]      Nothing in this mandatory framework requires sentencing judges to disregard a punitive order of forfeiture in fashioning fit and individually tailored sentences.  As I have already mentioned, a sentence that appears disproportionately severe only in the light of the accompanying order of forfeiture is nonetheless disproportionately severe.  In sentencing, as in any other context, light is meant to illuminate — and not to obscure — the true nature of the matter subject to examination.  And the matter that concerns us here is the punishment to which an offender is subjected upon conviction of a criminal offence.  A punitive order of forfeiture is no less a criminal sanction than the accompanying sentence for the same offence.  Together, they form a single composite punishment for having committed a single crime, or series of crimes.

[101]      In determining whether forfeiture should be ordered under the CDSA , courts enjoy a more limited discretion than in crafting an appropriate sentence.  This hardly means that a punitive order of forfeiture should be disregarded in imposing sentence.  The contrary seems to me to be true.  The impact of an unavoidable forfeiture order is a circumstance relevant to sentence precisely because it is a criminal sanction that the sentencing court felt itself bound to impose.  The absence of broader discretion in this regard is surely no reason to exercise discretion more narrowly in respect of sentence.

[102]      To blindly disregard the impact of one element of the global punishment provided by law, forfeiture, in considering the other, sentence, will otherwise often result in a global punishment that is qualitatively excessive, poorly calibrated to serve the purposes of sentencing, or otherwise unfit.

[103]      In my view, we should reject an interpretation of the CDSA  that invites an undesirable result of this sort.  Nothing in the CDSA  requires the courts to depart from the fundamental principle of proportionality in imposing sentences under the Act.  Nothing in the CDSA  suggests that this was Parliament’s intention.  Parliament could easily have provided that forfeiture must always be imposed in addition to the sentence that would have been appropriate in its absence.  And Parliament has chosen not to do so.

[104]      In concluding that forfeiture is not subject to the proportionality analysis at sentencing, Justice Abella notes (at para. 44) that the forfeiture provisions in issue are found in Part II of the CDSA, titled “Enforcement”, rather than Part I, titled “Offences and Punishment”.  In my view, the location of the forfeiture provisions in the CDSA  does not support my colleague’s conclusion.  A punitive order of forfeiture remains punitive, however the statute is arranged.  Moreover, as already explained, forfeiture can properly be characterized as a punishment upon conviction only in a limited subset of circumstances.  It would thus seem incongruous to include the entire forfeiture regime under the rubric “Offences and Punishment”.  “Enforcement” seems the more appropriate home for a mechanism of enforcement like forfeiture, which can be punitive or not, depending on the circumstances.  The structure of the Act is therefore fully consistent with the notion that some forfeitures are punitive, and therefore merit consideration as a relevant factor at the sentencing stage of the proceedings, while others do not.

[105]      In reaching an opposite conclusion, Justice Abella relies as well on the restricted scope of the proportionality assessment that governs the discretion to refuse forfeiture of real property under s. 19.1(3).  Her reasons note, correctly, that the proportionality test under s. 19.1(3) does not permit consideration of the personal circumstances of the offender, which must of course be considered by the sentencing judge.  Again here, the exclusion at the forfeiture stage of an important consideration is an argument in favor of taking forfeiture into account in imposing a sentence that is fit and appropriate in the circumstances — including circumstances that could not be considered in deciding whether or not to order forfeiture.

[106]      In summary, then, I believe that an appropriate sentence is a fit sentence that takes into account all of the relevant circumstances.  A punitive order of forfeiture is surely a relevant circumstance where it is imposed on the offender as a consequence of the offender’s conviction.  Disregarding forfeiture in crafting an appropriate sentence, moreover, will in at least some cases result in a disproportionately harsh punishment.

[107]      It hardly follows that taking into account a punitive order of forfeiture will necessarily, or even generally, reduce the sentence of imprisonment that would otherwise be appropriate.  This may well occur where the circumstances considered as a whole, including forfeiture, militate in favour of a reduced period of incarceration. 

IV

[108]      For  Justice Abella, considering forfeiture at sentencing may enable some offenders “to avoid jail time or receive lesser terms of imprisonment simply because they have more property” (para. 37).  In my respectful view, this concern does not justify the disproportionately severe sentences that will inevitably occur, in some cases at least, if sentencing judges are required to entirely disregard punitive orders of forfeiture.

[109]      First, as I have already mentioned, taking forfeiture into account need not lead to a “credit” to be applied to the custodial term that would otherwise be required.  Forfeiture is simply a relevant circumstance that sentencing judges must take into consideration.  Moreover, where a particularly punitive order of forfeiture mandates a reduced period of imprisonment, the offender can hardly be said “to avoid jail time . . .  because [the offender has] more property”.  Rather, the custodial element of the sentence is attenuated because, as a penal consequence of the same conviction, the state has elected to deprive the offender of property legally and honestly acquired in a manner unrelated to the offence.

[110]      Forfeiture under the CDSA  is, in these circumstances, a punitive sanction imposed by the court at the request of the Crown — and not an offering by the offender to “purchase” leniency.  Nor would I describe it as “trading property for jail time” (reasons of Abella J., at para. 3).

[111]      Second, Justice Abella’s approach rests in large measure on a principle that has little support in our law — the notion that it is inequitable to reduce jail sentences where other penal sanctions, such as punitive forfeiture, have been or can be imposed instead.  The Criminal Code  explicitly provides, at s. 718.2(d), that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”.  It is consistent with and not contrary to this mandatory principle of sentencing that jail time should be avoided or reduced where another punishment — including an onerous economic penalty such as forfeiture — will suffice and already has, or inevitably will be, imposed as a result of the same conviction.

[112]      Third, I agree with my colleague that “the deprivation of an individual’s liberty is qualitatively different from other sanctions” (para. 37).  But this hardly precludes a reduced deprivation of liberty in cases where the offender is subjected to an onerous and effective economic punishment.  On the contrary, where an equally onerous and effective punishment will amply satisfy the deterrent and denunciatory purposes of a sentence, a reduced sentence of imprisonment in combination with forfeiture is clearly preferable from the perspective of society’s preoccupation with liberty.

[113]      Fourth, I cannot agree that considering forfeiture in imposing sentence “offends our bedrock notions of fitness in sentencing” (para. 35).  On the contrary, giving due consideration to forfeiture protects the principle of fitness in sentencing by ensuring that, globally considered, the punishment visited upon offenders adequately reflects the gravity of their crimes, the degree of their responsibility in the commission of those crimes and other relevant principles of sentencing.  An alternative approach that in every case mechanically adds the punitive effect of forfeiture to an otherwise fit sentence may well occasion unduly harsh global punishment — which, in my respectful view, is far more troublesome.

[114]      A final word, in this context, concerning partial forfeiture.

[115]      The principal attraction of partial forfeiture is that it adds a punishment option of which trial judges should not be lightly deprived.  The question is whether Parliament has made that option available as part of the statutory scheme governing forfeiture under the CSDA.  On a contextual and purposive interpretation of the Act, I would answer that question in the negative.

[116]      Where a judge concludes that forfeiture is disproportionate, partial forfeiture will not serve Parliament’s purpose in creating an exception for real property.  I say that because partial forfeiture will frequently, as a practical matter, deprive persons against whom the order is made of the use and enjoyment of that property.  This is precisely what the proportionality requirement is intended to prevent.  Where partial forfeiture leads to the forced sale of a person’s home — even if honestly and legally acquired — that person is deprived of the home, as in full forfeiture, and is left instead with a discretionary percentage of the price realized upon its sale.  In the absence of a forced sale, partial forfeiture would impose an inherently litigious partnership on the Crown and the offender as unwilling co-owners — a result Parliament can hardly have intended.

[117]      Moreover, an order of partial forfeiture supposes that full forfeiture would be disproportionate according to the criteria established for that purpose by Parliament.  Where forfeiture is shown to be disproportionate, I think it more consistent with Parliament’s intention to decline to order forfeiture altogether than to order partial forfeiture as a “lesser punishment”.  The judicial discretion inherent in the sentencing process is a more appropriate mechanism to ensure a fit global punishment.

V

[118]      The appellant urges us to quash the Court of Appeal’s order of forfeiture and to order “some form of fine” in its place.

[119]      In the circumstances of this case, the trial judge did not err in declining to order forfeiture under s. 19.1(3).  She was entitled to impose a fine of $100,000, as she did.  In the absence of a reviewable error by the trial judge, the Court of Appeal should not have intervened and substituted an order of forfeiture.  That order of forfeiture should therefore be set aside.

[120]      Justice Abella would quash the order of forfeiture imposed by the Court of Appeal without restoring the fine imposed by the trial judge — or replacing it with any fine at all.  The appellant would thus emerge with neither forfeiture nor a fine, an outcome that gives her more than even she has asked.

[121]      The fine imposed by the trial judge was approximately equal in amount to the equity remaining in Ms. Craig’s home after satisfaction of a lien in favour of the Canada Revenue Agency.  The lien was security for taxes, interest, and penalties arising from Ms. Craig’s failure to report her illegal marihuana income over several years.

[122]      At trial, the Crown sought forfeiture subject to the tax lien, effectively conceding that much of the equity in the home would not in fact be forfeited, but would instead be used to cover Ms. Craig’s tax obligations.  These tax debts were the direct result of Ms. Craig’s failure to declare the income she had derived from her criminal activities.  Subjecting forfeiture to the lien of the revenue authorities would have allowed her to discharge the tax indebtedness arising from her criminal activities out of her interest in a property subject to forfeiture as a result of those very same crimes.  As a matter of principle, Ms. Craig should not be permitted to do so.

[123]      In virtue of s. 734(1) (a) of the Criminal Code , which applies to sentences under the CDSA , judges are authorized to impose a fine “in addition to or in lieu of any other sanction that the court is authorized to impose”.  At the forfeiture stage of the proceedings, the judge was bound to impose forfeiture unless she was satisfied that its impact would be disproportionate within the meaning of s. 19.1(3)  of the CDSA .  She was not entitled, however, to impose a fine where the law required her to order forfeiture instead.  As mentioned earlier, however, I agree with Justice Abella that the judge committed no error in declining to order forfeiture.

[124]      Finally, though the judge’s reasons are not entirely clear in this regard, I understand her to have concluded, at the sentencing stage of the proceedings, that a fine and conditional sentence would best serve the ends of justice in this case.  The appellant has failed to satisfy me that the trial judge, in imposing a fine of $100,000, committed any reviewable error within the meaning of R. v. M. (C.A.), [1996] 1 S.C.R. 500.

[125]      I would therefore allow the appeal, set aside the order of forfeiture made by the Court of Appeal and, pursuant to s. 45  of the Supreme Court Act , R.S.C. 1985, c. S-26 , affirm the sentence imposed at trial.

                                                           APPENDIX

Controlled Drugs and Substances Act , S.C. 1996, c. 19 

2. (1) In this Act,

                                                                   . . .

“designated substance offence” means

(a)  an offence under Part I, except subsection 4(1), or

(b)  a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a);

                                                                   . . .

“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;

                                                                   . . .

4. (1) Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II or III.

(2)     No person shall seek or obtain

(a)     a substance included in Schedule I, II, III or IV, or

(b)     an authorization to obtain a substance included in Schedule I, II, III or IV

from a practitioner, unless the person discloses to the practitioner particulars relating to the acquisition by the person of every substance in those Schedules, and of every authorization to obtain such substances, from any other practitioner within the preceding thirty days.

                                                                   . . .

5. (1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.

(2)     No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV.

                                                                   . . .

6. (1) Except as authorized under the regulations, no person shall import into Canada or export from Canada a substance included in Schedule I, II, III, IV, V or VI.

(2)     Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II, III, IV, V or VI for the purpose of exporting it from Canada.

                                                                   . . .

7. (1) Except as authorized under the regulations, no person shall produce a substance included in Schedule I, II, III or IV.

                                                                   . . .

10. (1) Without restricting the generality of the Criminal Code , the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

(2)     If a person is convicted of a designated substance offence, the court imposing sentence on the person shall consider any relevant aggravating factors including that the person

(a)     in relation to the commission of the offence,

(i)      carried, used or threatened to use a weapon,

(ii)     used or threatened to use violence,

(iii)    trafficked in a substance included in Schedule I, II, III or IV or possessed such a substance for the purpose of trafficking, in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of eighteen years, or

(iv)    trafficked in a substance included in Schedule I, II, III or IV, or possessed such a substance for the purpose of trafficking, to a person under the age of eighteen years;

(b)     was previously convicted of a designated substance offence; or

(c)      used the services of a person under the age of eighteen years to commit, or involved such a person in the commission of, a designated substance offence.

(3)     If, under subsection (1), the court is satisfied of the existence of one or more of the aggravating factors enumerated in paragraphs (2)(a) to (c), but decides not to sentence the person to imprisonment, the court shall give reasons for that decision.

16. (1) Subject to sections 18 to 19.1, where a person is convicted of a designated substance offence and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that any property is offence‑related property and that the offence was committed in relation to that property, the court shall

(a)     in the case of a substance included in Schedule VI, order that the substance be forfeited to Her Majesty in right of Canada and disposed of by the Minister as the Minister thinks fit; and

(b)     in the case of any other offence‑related property,

(i)      where the prosecution of the offence was commenced at the instance of the government of a province and conducted by or on behalf of that government, order that the property be forfeited to Her Majesty in right of that province and disposed of by the Attorney General or Solicitor General of that province in accordance with the law, and

(ii)     in any other case, order that the property be forfeited to Her Majesty in right of Canada and disposed of by such member of the Queen’s Privy Council for Canada as may be designated for the purposes of this subparagraph in accordance with the law.

(2)     Subject to sections 18 to 19.1, where the evidence does not establish to the satisfaction of the court that the designated substance offence of which a person has been convicted was committed in relation to property in respect of which an order of forfeiture would otherwise be made under subsection (1) but the court is satisfied, beyond a reasonable doubt, that that property is offence‑related property, the court may make an order of forfeiture under subsection (1) in relation to that property.

(2.1)  An order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.

(3)     A person who has been convicted of a designated substance offence or the Attorney General may appeal to the court of appeal from an order or a failure to make an order under subsection (1) as if the appeal were an appeal against the sentence imposed on the person in respect of the offence.

17. (1) Where an information has been laid in respect of a designated substance offence, the Attorney General may make an application to a judge for an order of forfeiture under subsection (2).

(2)     Subject to sections 18 to 19.1, where an application is made to a judge under subsection (1) and the judge is satisfied

(a)     beyond a reasonable doubt that any property is offence‑related property,

(b)     that proceedings in respect of a designated substance offence in relation to the property referred to in paragraph (a) were commenced, and

(c)      that the accused charged with the designated substance offence has died or absconded,

the judge shall order that the property be forfeited and disposed of in accordance with subsection (4).

(3)     For the purposes of subsection (2), an accused shall be deemed to have absconded in connection with a designated substance offence if

(a)     an information has been laid alleging the commission of the offence by the accused,

(b)     a warrant for the arrest of the accused has been issued in relation to that information, and

(c)      reasonable attempts to arrest the accused pursuant to the warrant have been unsuccessful during a period of six months beginning on the day on which the warrant was issued,

and the accused shall be deemed to have so absconded on the last day of that six month period.

(4)     For the purposes of subsection (2),

(a)     in the case of a substance included in Schedule VI, the judge shall order that the substance be forfeited to Her Majesty in right of Canada and disposed of by the Minister as the Minister thinks fit; and

(b)     in the case of any other offence‑related property,

(i)      where the proceedings referred to in paragraph (2)(b) were commenced at the instance of the government of a province, the judge shall order that the property be forfeited to Her Majesty in right of that province and disposed of by the Attorney General or Solicitor General of that province in accordance with the law, and

(ii)     in any other case, the judge shall order that the property be forfeited to Her Majesty in right of Canada and disposed of by such member of the Queen’s Privy Council for Canada as may be designated for the purposes of this subparagraph in accordance with the law.

(5)     An order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.

18.     A court may, before ordering that offence‑related property be forfeited under subsection 16(1) or 17(2), set aside any conveyance or transfer of the property that occurred after the seizure of the property, or the making of a restraint order in respect of the property, unless the conveyance or transfer was for valuable consideration to a person acting in good faith.

19. (1) Before making an order under subsection 16(1) or 17(2) in relation to any property, a court shall require notice in accordance with subsection (2) to be given to, and may hear, any person who, in the opinion of the court, appears to have a valid interest in the property.

(2)     A notice given under subsection (1) shall

(a)     be given or served in such manner as the court directs or as may be specified in the rules of the court;

(b)     be of such duration as the court considers reasonable or as may be specified in the rules of the court; and

(c)      set out the designated substance offence charged and a description of the property.

(3)     Where a court is satisfied that any person, other than

(a)     a person who was charged with a designated substance offence, or

(b)     a person who acquired title to or a right of possession of the property from a person referred to in paragraph (a) under circumstances that give rise to a reasonable inference that the title or right was transferred for the purpose of avoiding the forfeiture of the property,

is the lawful owner or is lawfully entitled to possession of any property or any part of any property that would otherwise be forfeited pursuant to an order made under subsection 16(1) or 17(2) and that the person appears innocent of any complicity in an offence referred to in paragraph (a) or of any collusion in relation to such an offence, the court may order that the property or part be returned to that person.

19.1 (1) Where all or part of offence-related property that would otherwise be forfeited under subsection 16(1) or 17(2) is a dwelling‑house, before making an order of forfeiture, a court shall require notice in accordance with subsection (2) to be given to, and may hear, any person who resides in the dwelling‑house and is a member of the immediate family of the person charged with or convicted of the indictable offence under this Act in relation to which the property would be forfeited.

(2)     A notice shall

(a)     be given or served in the manner that the court directs or that may be specified in the rules of the court;

(b)     be of any duration that the court considers reasonable or that may be specified in the rules of the court; and

(c)      set out the offence charged and a description of the property.

(3)     Subject to an order made under subsection 19(3), if a court is satisfied that the impact of an order of forfeiture made under subsection 16(1) or 17(2) in respect of real property 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.

(4)     Where all or part of the property that would otherwise be forfeited under subsection 16(1) or 17(2) is a dwelling-house, when making a decision under subsection (3), the court shall also consider

(a)     the impact of an order of forfeiture on any member of the immediate family of the person charged with or convicted of the offence, if the dwelling‑house was the member’s principal residence at the time the charge was laid and continues to be the member’s principal residence; and

(b)     whether the member referred to in paragraph (a) appears innocent of any complicity in the offence or of any collusion in relation to the offence.

Criminal Code , R.S.C. 1985, c. C‑46 

673.   In this Part,

                                                                   . . .

“sentence” includes

(a)     a declaration made under subsection 199(3),

(b)     an order made under subsection 109(1) or 110(1), section 161, subsection 164.2(1) or 194(1), section 259, 261 or 462.37, subsection 491.1(2), 730(1) or 737(3) or (5) or section 738, 739, 742.1, 742.3, 743.6, 745.4 or 745.5,

(c)      a disposition made under section 731 or 732 or subsection 732.2(3) or (5), 742.4(3) or 742.6(9), and

(d)     an order made under subsection 16(1)  of the Controlled Drugs and Substances Act ;

                                                                   . . .

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a)     a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i)   evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

(ii)  evidence that the offender, in committing the offence, abused the offender’s spouse or common‑law partner,

(ii.1)  evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

(v)  evidence that the offence was a terrorism offence

shall be deemed to be aggravating circumstances;

(b)     a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c)      where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d)     an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e)      all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

785.   In this Part,

                                                                   . . .

“sentence” includes

(a)     a declaration made under subsection 199(3),

(b)     an order made under subsection 109(1) or 110(1), section 259 or 261, subsection 730(1) or 737(3) or (5) or section 738, 739, 742.1 or 742.3,

(c)      a disposition made under section 731 or 732 or subsection 732.2(3) or (5), 742.4(3) or 742.6(9), and

(d)     an order made under subsection 16(1)  of the Controlled Drugs and Substances Act ;

                                                                   . . .

Appeal allowed, Fish J. dissenting in part.

Solicitor for the appellant:  Howard Rubin, Vancouver.

Solicitor for the respondent:  Public Prosecution Service of Canada, Vancouver.

Solicitor for the intervener the Attorney General of Ontario:  Attorney General of Ontario, Toronto.

Solicitors for the intervener the Criminal Lawyers’ Association (Ontario):  Stockwoods, Toronto.