Important but confusing Supreme Court decisions on forfeiture

Today's very confusing decision in R. v. Craig, 2009 SCC 23, and two related cases, deals with the forfeiture of property following conviction for drug related offences.

In summary, the Court held that the forfeiture provisions are to be viewed separately from the sentencing of a convict largely because not to do so would mean convicts with property could receive less jail time than convicts without property to seize.

This analysis seems to overlook the customary sentencing practice of allowing a lesser penalty where restitution is made, as is common for, say, fraud cases.

Since the Supreme Court must be taken to consider such issues perhaps it ought to be that restitution is not a proper consideration for sentencing? Or perhaps drug cases and forfeiture are special because they do not restore a "victim" as restitution does? But then one might ask who, other than society, might be the victim in a drug case and how might restitution be made save by forfeiture?

In any event, the Court's decision holds the forfeiture inquiry under s. 19.1(3) of the Controlled Drugs and Substances Act 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. 

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. 
 
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 Controlled Drugs and Substances Act 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. 

The majority writes:

[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.

 
James Morton
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