R. v. Craig and the Equitable Underpinnings of Forfeiture

Recently issuing judgment in R. v. Craig, 2009 SCC 23 and companion cases R. v. Ouellette, 2009 SCC 24 and R. v. Nguyen, 2009 SCC 25, the Supreme Court of Canada has circumscribed the applicability of the forfeiture provisions for real property related to a designated substance offence under sections 16(1) and 19.1(3) of the Controlled Drugs and Substances Act. That result stems from contrarious rulings by various appellate courts about whether these provisions, which enable the Attorney General to request forfeiture of “offence-related” property upon securing a conviction, operate independently or interdependently from other aspects of sentencing, as well as whether partial forfeiture is permissable or impermissable by statute.

But to regress for a moment, the facts of R. v. Craig are as follows. In 1998, the accused began cultivating marihuana out of the basement of her home, which she had converted for that purpose with three growing rooms and one drying room, as well as industrial lighting, ventilation, and irrigation systems. The rest of the house remained undisturbed by plants or paraphernalia. Upon her eventual arrest, the accused pleaded guilty to one count of producing marihuana, contrary to s. 7(1) of the CDSA. The trial judge ordered that the accused serve a conditional sentence and pay both a fine and victim surcharge, while denying the Crown’s request that a forfeiture order be issued against her home. On appeal, the fine and surcharge were set aside, to be replaced with a full forfeiture that ought to have been considered together with imprisonment as aspects of a single, interdependent punishment. Craig’s full trial history is chronicled here, by Rebecca Ross for TheCourt.ca.

Forfeiture Orders as Independent from Sentencing

Writing for the majority, Abella J. finds that forfeiture orders cannot be subject to the general sentencing principles of the Criminal Code, which would necessitate that courts consider the effects of forfeiture in deciding to also impose a term of imprisonment for a designated substance offence. In other words, because forfeiture may have a punitive impact, subjecting it to the Code‘s general principles would almost always result in more lenient jail sentences because otherwise the total punishment (forfeiture plus imprisonment) would be unduly harsh. Abella J. finds this regime to be palpably ineqitable, as it would endorse an inadvertent classism in criminal sentencing:

In my view, the loss or retention of liberty should not depend on whether an individual has property available as a sacrificial alternative. […] It offends our bedrock notions of fitness in sentencing since individuals with no property to forfeit are no more blameworthy than those with property.

These persuasive policy reasons aside, Abella J. primarily regards this issue as one of statutory interpretation. She notes that the CDSA allows forfeiture to apply to property owned by a complicit individual who is neither sentenced nor charged with an offence, indicating that forfeiture itself was intended to be treated as a separate consequence from imprisonment. Further, s. 19.1(3), which permits courts to revoke a forfeiture order where its impact would be disproportionate to the nature and gravity of the substance offence, conspicuously excludes “the circumstances of the offender” – an important general sentencing principle – from its list of factors relevant to a proportionality determination, suggesting that forfeiture was meant to be a distinct inquiry.

Fish J. in partially dissenting reasons challenges these findings with unusual force. He argues that nothing mandates sentencing judges to dissociate forfeiture orders from terms of imprisonment, and that to do so would “blindly disregard” the impact of one element of the global punishment in considering the other, resulting in sentences that are qualitatively excessive or otherwise unfit. It seems to me that this charge, while grave, places very little faith in sentencing judges’ discretion to assign suitable penalties.

Fish J. later cites s. 718.2(d) of the Criminal Code, providing that “an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances,” as a counterpoint to Abella J.’s ruling that the existing regime was inequitable. He argues that an onerous economic penalty like forfeiture is a “less restrictive sanction” that may be sufficiently punitive to justifiably exempt an offender from some other aspect of sentencing  within an interdependent scheme. In my view, despite his position, the fact remains that such an economic penalty will necessarily affect more affluent and less affluent persons differently, with the former enjoying shorter custodial terms in an effectual “trade” of property for jail time. Our rule of law precludes such an imbalanced circumstance, and requires that all offenders experience equally burdensome penalties upon commission of the same crime.

Permitting Partial Forfeiture

Abella J. reads s. 19.1(3), enabling a court to “decide not to order the forfeiture of property or part of the property” [emphasis in original], as plainly meaning that where a forfeiture order for an entire property is unwarranted, an order for part of that property may yet be permissable. In circumstances like those of the accused, where a discernable section of her real property – the basement – was implicated in furtherance of an offence but other sections of that property served innocuous purposes, forfeiture need not be an “all-or-nothing” affair. For Abella J., such an interpretation is congruent with the underlying rationale of s. 19.1(3)’s proportionality test that limits the issuance of forfeiture orders in recognition that they can be a “draconian” measure. I would agree with this assessment, as any permanent assumption of real property by the state, especially where that property was honestly and legally acquired by an offender before engaging in criminal activity, independently of criminal activity, not in contemplation of criminal activity, and which is or may become the offender’s dwelling-house, is a harsh and irrevocable punishment.

I reserve some concern, however, that the additional calculations trial judges are now required to complete in assessing partial forfeiture orders may add unpredictability and additional complexity to already complex proceedings, as McLachlin C.J.C. and Rothstein J. argue in joint concurring reasons. It seems logical that in drafting s. 19.1(3), Parliament would intend the forfeiture procedure to be as simple as justice permits.

Further, McLachlin C.J.C. and Rothstein J. argue that “part of the property” referred to in s. 19.1(3) refers to the “part” remaining after a court orders property returned to innocent third parties residing on impugned premises under s. 19(3), a recovery mechanism for lawful owners of property that would otherwise be forfeited. In their view, this interpretation is consistent with the general rule set out in s. 16(1) that offence-related property is to be forfeited in its entirety. Personally, I cannot but find this argument unconvincing. Nowhere does s. 16(1) suggest that “entire” properties must be forfeited as a general rule – McLachlin C.J.C. and Rothstein J. would seem to impute that qualification onto expressly unmodified terms.

I find Fish J.’s dissenting reasons more compelling on this point. He opines that where partial forfeiture does not necessitate sale of an offender’s home, it would impose an “inherently litigious partnership on the Crown and offender as unwilling co-owners.” Such an arrangement may compromise each owner’s exercise of their legitimate property interests, a result that Parliament may not have intended.


In R. v. Craig and companion cases, Abella J.’s majority gives life to the equitable underpinnings of the CDSA‘s forfeiture provisions by defining their application in a manner commensurate with fundamental notions of fairness, while McLachlin C.J.C. and Rothstein J.’s diverging concurrence and Fish J.’s partial dissent do well to identify this application’s potentially deleterious consequences. In the end, however, these do not very materially detract from the majority’s otherwise positive result.

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