Quebec police seized cash, cannabis plants, property while investigating alleged cannabis plantations
In a case where cannabis-related charges against multiple individuals were stayed, certain provisions of the Criminal Code and the Controlled Drugs and Substances Act did not give the Court of Quebec the authority to order the individuals to forfeit property that police had seized during an investigation, the Supreme Court of Canada ruled in a unanimous decision on Friday.
However, the high court clarified that other provisions of the two statutes that “operate independently of trial and sentencing” confer jurisdiction on the Court of Quebec to order forfeiture, even in cases involving individuals who have not been criminally convicted or sentenced.
“Parliament has provided for a number of circumstances in which forfeiture can be ordered even where no accused has been tried,” Justice Nicholas Kasirer wrote for the court.
“Now that the criminal liability proceedings to which the property is related are at a definitive end, the judicial supervision of property that was seized or restrained during the associated investigation must also end,” Kasirer added. “The property is presently in limbo – it is neither forfeited to the Crown nor returned to the respondents – and this plainly cannot be what Parliament intended in circumstances like these.”
The events in R. v. Nguyen date back to 2013, when Montreal police investigated a network of family members allegedly running cannabis plantations out of several properties in the city. During their investigation, the police seized hundreds of cannabis plants and tens of thousands of dollars in cash.
Quebec prosecutors obtained restraint orders freezing the residences where the cannabis plants were seized as suspected offence-related property. The family members who owned those residences later sold them, but the restraint orders continue to apply to the sale proceeds, which exceed $200,000.
The police arrested 10 members of the family. One of those individuals pleaded guilty to producing cannabis and was sentenced to 12 months in prison. However, the proceedings against most of the other accused were stayed, after the Court of Quebec found that delays in the case violated their right to trial within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms.
Three of the accused – Thi Huyen Nguyen, Thi Hong Cun, and Alexander Nguyen – asked the Court of Quebec to order the return of their seized property, arguing that the court no longer had the power to order forfeiture of their property because the criminal proceedings against them had been stayed. The Crown, meanwhile, asked that some of the same property be forfeited under ss. 462.37(2), 490(9), and 491.1 of the Criminal Code and s. 16(2) of the CDSA.
The Court of Quebec allowed the Crown’s forfeiture application to move ahead. The three individuals then filed an application to the Superior Court of Quebec to stop the Crown’s forfeiture application from proceeding before the Court of Quebec. However, the Superior Court dismissed their application.
The individuals appealed to the Quebec Court of Appeal, which ruled in their favour. According to the appellate court, the Court of Quebec no longer had authority to make a forfeiture order with respect to the individuals’ property because their criminal cases had ended. However, the appellate court ultimately declined to return the property to the individuals.
The Crown appealed to the SCC, arguing that the Court of Appeal does have jurisdiction to determine the forfeiture issue.
The SCC allowed the Crown’s appeal in part. According to Kasirer, forfeiture proceedings differ from other criminal proceedings because they do not aim to punish or determine the criminal responsibility of accused individuals. Instead, their purpose is to avoid returning criminally tainted property to “unclean hands” or rewarding criminal behaviour.
The Criminal Code and the CDSA each have provisions for handling the forfeiture of criminally tainted property in different settings. While some of these provisions are tied to proceedings that determine an individual’s criminal liability, others operate independently of such proceedings.
The latter provisions reflect “the reality that property is placed before the courts… even when no trial of an accused ever takes place,” Kasirer wrote. “In other words, in this category of statutory forfeiture proceedings, the property may be ‘tainted’ even where there are no trial and sentencing proceedings against an accused.”
The justice said it is true that when a court stays criminal proceedings, it leaves the accused “in a position of presumptive innocence.” However, he said the Quebec Court of Appeal erred in determining that the Court of Quebec lacked criminal forfeiture jurisdiction because it stayed criminal proceedings against Cun and the Nguyens.
“This stay of proceedings does not necessarily limit forfeiture jurisdiction, nor does it necessarily prevent the Crown from leading evidence of criminality underlying the stayed charges in the context of an application for forfeiture,” Kasirer wrote.
While the Court of Quebec has no forfeiture jurisdiction under ss. 462.37 and 491.1 of the Criminal Code and s. 16 CDSA – three of the four provisions that the Crown cited in its forfeiture application – forfeiture is still available under other provisions, like s. 490 of the Criminal Code.
The high court ordered the case back to the Court of Quebec to determine whether the individuals’ property should be returned or forfeited.
A spokesperson for the Directeur des poursuites criminelles et pénales declined to immediately provide a comment on Friday.
Counsel for the individuals did not respond to a request for comment.
