Today's decision in R. v. Van Bemmel, 2010 ONCA 276
made this clear:
[27] 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]
[28] 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. [Emphasis added.]
...
[54] However, in my view, the sentencing judge – who did not have the benefit of the trilogy – did err in principle by adopting an overly strict test for determining when the impact of a forfeiture order would be disproportionate within the meaning of s. 19.1(3) of the CDSA. At p. 14 of his reasons, the sentencing judge stated:
Your Parliament has permitted sentencing judges to exercise discretion where a forfeiture would be disproportionate having regard to the circumstances of the offence. I read this to mean that the nature of some offences that would result in a prosecution under the sections of the C.D.S.A. might be so exceptional, so unusual, so minor or so technical in nature that the use of forfeiture provisions would simply be unfair. [Emphasis added; emphasis in original omitted.]
[55] In other words, the sentencing judge was of the view that forfeiture orders for offence-related real property must be made in all but the most exceptional cases, such as those where the offences are minor or technical in nature. It is clear from the trilogy that s. 19.1(3) is not so limited. When considering s. 19.1(3), the courts are to determine whether the impact of the forfeiture order would be disproportionate having regard to the three factors set out in the provision. Relief against forfeiture is not restricted to cases in which the offences are minor or technical in nature.
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