2017 Harvest

2017 Harvest

Friday, April 23, 2010

Ontario Court of Appeal sets aside forfeiture of farm to Crown following marijuana conviction

A West Elgin farmer was convicted of various charges related to the cultivation and possession of marijuana and sentenced to 12 months' imprisonment.  The sentencing judge also made an order for forfeiture of the farmer's property to the Crown under the Controlled Drugs and Substances Act (CDSA).  Section 16(1) of the CDSA provides that, subject to certain exceptions, forfeiture of property shall be ordered upon conviction for a designated substance offence where the court is satisfied, on a balance of probabilities, that the property is offence-related. The relevant part of s. 16(1) reads as follows:

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. [emphasis added]

Section 19.1(3) of the CDSA is a relieving provision in respect of real property. It reads as follows:

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) 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.
For reasons related to uncertainty about the ownership of the land in question and to the proportionality of the order to the offence, etc., the Court of Appeal overturned the forfeiture.  While the legal issues may not be of much interest to readers, the fact situation is worth a read.  On 70 workable acres, the accused had earned after-tax income from farming of about $500 per annum.  He expected to make between $10,000 and $30,000 from the marijuana.

Read the Court of Appeal decision at: R. v. Van Bemmel.