Court declines to require farmer to forfeit tractor over driving convictions

The Crown brought an application seeking forfeiture of a leased New Holland Tractor and Loader after the lessee was convicted of two counts of driving while disqualified under the Criminal Code.  One of the offences occurred when the lessee was observed by the OPP operating the tractor in question on a roadway.  The lessee was stopped for suspicion of alcohol consumption and because the OPP officer was aware that the lessee's driver's licence was subject to a prohibition order.  The lessee failed a breathylzer test, but before he could be arrested, he ran into a nearby bush.  He was ultimately caught.

 

At Court, all parties conceded that the tractor was "offence related property" and could be subject to forfeiture to the Crown as part of the penalty against the offender.  The father of the lessee participated in the hearing on the basis that he held an interest in the tractor, having been a partner of the lessee in a farming operation and a contributor to the down payment on the lease.  The leasing company also participated, but did not take a position on the assurance that its interest in the tractor would be protected by the Crown in the event of a forfeiture.

 

On review of the evidence, the Court determined that the forfeiture of the tractor would be disproportionate in relationship to the "offence related property".  The Court said: "The item in question is an essential component of the operation of this family farm and is relied upon by [the offender's father] and his family in addition to the offender to perform all essential farming operations.  Since the seizure of this equipment, this farming operation ... has sustained a serious economic detriment.  A forfeiture of essential farming equipment will detrimentally affect, not just the offender, but the viability of this farm.  I cannot agree that a punitive impact of forfeiture on a legitimate enterprise such as farming was the intention of Parliament as being necessary in the public interest."

 

The Court also found that the farm tractor and its operation in the offence has no logical connection to the offence of driving while disqualified. 

 

The Application for Forfeiture was dismissed.

Read the decision at: R. v. Pendleton.

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.