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Tom Rees | Criminal Defence Lawyer Winnipeg

Man appeals the forfeiture of his property under the Controlled Drugs and Substances Act

The Ontario Court of Appeal has dismissed a man’s appeal of the forfeiture of his property under the Controlled Drugs and Substances Act. (R. v. Pammett, 2015 ONCA 14)

The Court outlined the case:

[1]         The appellant, Robert Pammett, was a drug dealer.  He lived in a house on 2.8 acres of land in Peterborough.  He also sold and stored drugs there.  A wired undercover officer purchased cocaine from him at the house.  This resulted in three convictions for trafficking cocaine and one for possession of cocaine for the purposes of trafficking.  On March 26, 2008, in the face of an anticipated forfeiture application by the Crown, management and control of the property was transferred to the Crown by court order pursuant to ss. 14(3) and 14.1 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”).

[2]         Subsequently, the application judge granted a full forfeiture order to the Crown.  The appellant appeals this order and advances three arguments in support of his position.  He submits that in granting a full forfeiture order, the application judge erred: (i) in characterizing the property as a fortified drug property or compound; (ii) in placing limited emphasis on the valuation evidence and in improperly relying on that of the Crown’s expert; and (iii) in failing to consider the impact of the damage caused to the property by the Crown.

[3]         For the reasons that follow, I would dismiss the appeal.

The property that was forfeited:

[7]         The property in issue in this appeal is located in Peterborough.  The appellant bought a vacant lot in 1988 for $120,000.  A two-storey, 4,160 square foot house was built on the lot in 1989.  It consists of eight rooms, four bedrooms, four bathrooms, a basement, an indoor swimming pool, and a four car garage.

The offences:

[17]      The appellant pled guilty to three counts of trafficking cocaine and one count of possession of cocaine for the purposes of trafficking contrary to ss. 5(1) and (2) of the CDSA.  The Crown and the defence tendered an agreed statement of facts.  It described three cocaine transactions involving one, four, and ten ounce purchases from the appellant by an undercover officer.  All took place at the house on the property.

The law:

[30]      Part II of the CDSA is entitled “Enforcement” and has three subsections, which together comprise the forfeiture regime under the CDSA.  The first subsection, entitled “Search, Seizure and Detention”, authorizes the issuance of warrants for search and seizure of offence-related property, controlled substances, and other evidence.  The second subsection, entitled “Restraint Orders”, authorizes the issuance of restraint orders to prevent others from dealing with, or disposing of, seized property other than in accordance with the terms of the order.  It also provides for management orders to authorize the Crown to manage seized property.  The Restraint and Management orders stay in place until a final forfeiture order is made or the property is returned.  The third subsection, entitled “Forfeiture of Offence-Related Property”, authorizes a court to order forfeiture of the seized property and sets out the considerations to be taken into account in arriving at such an order.

At paragraph 31, the court quotes from a sentencing book by Clayton C. Ruby, Gerald J. Chan, and Nader R. Hasan, Sentencing, 8th ed. (Markham: LexisNexis, 2012). It outlines the CDSA forfeiture scheme:

Forfeiture of property is mandatory under section 490.1(1) of the Criminal Code or section 16(1) of theCDSA if the Crown discharges its onus of establishing on a balance of probabilities that the property is offence-related property and that the offence was committed in relation to that property.  The general principles and objectives of sentencing set out in part XXIII of the Criminal Code are not applicable in determining whether to make a forfeiture order.  The statutory scheme governing forfeiture orders and relief from them constitutes a “complete code”.

Only two types of offence-related property may be safe from forfeiture from the Crown under the CDSA: dwelling houses (section 19.1(4) of the CDSA) and real property for which the court is satisfied that the impact of forfeiture would be disproportionate (section 19.1(3) of the CDSA). [Footnotes omitted.]

CDSA section 16(1) is mentioned:

[33]      The statutory provisions that are applicable to this appeal are ss. 16(1) and 19.1 of the CDSA.  Subsection 16(1) states:

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.

The Court also reviews the SCC case law:

[38]      In 2009, the Supreme Court of Canada released a trilogy of cases on the forfeiture of offence-related property pursuant to s. 19.1(3) of the CDSA: R. v.Craig, 2009 SCC 23 (CanLII), [2009] 1 S.C.R. 762; R. v. Nguyen,2009 SCC 25 (CanLII), [2009] 1 S.C.R. 826; and R. v. Ouellette, 2009 SCC 24 (CanLII), [2009] 1 S.C.R. 818.

The disposition of the case:

[79]      The appellant has not demonstrated that the application judge erred in his proportionality analysis or in concluding that full forfeiture was appropriate.  I would dismiss the appeal.

This case provides a good analysis of the Controlled Drugs and Substances Act forfeiture regime and is a good warning for the dangers of criminal activity and property forfeiture.