R. v. Ouellette, 2009 SCC 24, [2009] 1 SCR 818

                                                 SUPREME COURT OF CANADA

Between:

Her Majesty The Queen

Appellant

and

Yves Ouellette

Respondent

‑ and ‑

Attorney General of Ontario

Intervener

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Rothstein JJ.

______________________________

R. v. Ouellette, 2009 SCC 24, [2009] 1 S.C.R. 818

Her Majesty The Queen                                                                                                    Appellant

v.

Yves Ouellette                                                                                                                 Respondent

and

Attorney General of Ontario                                                                                            Intervener

Indexed as:  R. v. Ouellette

Neutral citation:  2009 SCC 24.

File No.:  32057.

2008:  November 13; 2009:  May 29.

Present:  McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Rothstein JJ.

on appeal from the court of appeal for quebec

Criminal law — Controlled drugs and substances — Forfeiture orders — Specific proportionality test provided for offence‑related real property forfeiture orders — Relationship of test with general sentencing principles — Accused guilty of producing marihuana in his home — Forfeiture of house ordered by trial judge — Court of Appeal rather ordering partial forfeiture of house — Whether real property forfeiture orders should be considered together with terms of imprisonment as a global punishment — Whether court empowered to order partial forfeiture of real property — Whether partial forfeiture order justified — Controlled Drugs and Substances Act ,  S.C. 1996, c. 19 , s. 19.1(3) .

The accused was convicted of the production and possession of marihuana for the purpose of trafficking, contrary to ss. 5(2)  and 7(1)  of the Controlled Drugs and Substances Act  (“CDSA ”). The marihuana grow operation was located in the accused’s home.  The trial judge imposed a 10‑month conditional sentence and ordered the full forfeiture of the home. The Court of Appeal disagreed with the trial judge as to the extent to which the residence had been converted to a marihuana grow operation. It also considered that the trial judge had failed to examine whether the building could be partially forfeited. It therefore ordered that only half of the house be forfeited.

Held (McLachlin C.J. and Fish and Rothstein JJ. dissenting):  The appeal should be dismissed.

Per Binnie, Deschamps and Abella JJ.:  For the reasons given by Abella J. in R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762, real property forfeiture orders made under s. 19.1  of the CDSA  should be approached independently of the broader sentencing inquiry. The Court of Appeal properly took into consideration the possibility of partial forfeiture. Although it appeared to implicitly consider forfeiture orders and terms of imprisonment to be two interdependent orders, this did not result in a demonstrably unfit forfeiture order.  [2] [13‑14]

Per LeBel J.:  Subject to the reasons of LeBel J. in R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762, the conclusion of Abella J. is agreed with. [16]

Per McLachlin C.J. and Rothstein J. (dissenting):  For the reasons given by McLachlin C.J. and Rothstein J. in R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762, a real property forfeiture order made under s. 19.1  of the CDSA  is an all‑or‑nothing affair. The accused has not discharged the burden of showing that forfeiture would be disproportionate. [23]

Per Fish J. (dissenting):  Subject to the reasons of Fish J. in R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762, the conclusion of McLachlin C.J. and Rothstein J. is agreed with. [24]

Cases Cited

Cited by Abella J.

Applied:  R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762; referred to:  R. v. Nguyen, 2009 SCC 25, [2009] 1 S.C.R. 826.

Cited by LeBel J.

Referred to:  R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762.

Cited by McLachlin C.J. and Rothstein J. (dissenting)

R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762; R. v. Nguyen, 2009 SCC 25, [2009] 1 S.C.R. 826.

Cited by Fish J. (dissenting)

R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762.

Statutes and Regulations Cited

Controlled Drugs and Substances Act , S.C. 1996, c. 19 , ss. 5(2) , 7(1) , 19.1(3) .

APPEAL from a judgment of the Quebec Court of Appeal (Beauregard, Otis and Giroux JJ.A.), 2007 QCCA 518, [2007] R.J.Q. 787, 49 C.R. (6th) 286, 229 C.C.C. (3d) 563, [2007] Q.J. No. 2812 (QL), 2007 CarswellQue 13169, reversing in part a decision of Dufour J.C.Q., [2004] R.J.Q. 2619, [2004] J.Q. n^o 6258 (QL), 2004 CarswellQue 1269.  Appeal dismissed, McLachlin C.J. and Fish and Rothstein JJ. dissenting.

François Lacasse, W. Paul Riley and Simon William, for the appellant.

Marc Nerenberg, for the respondent.

John Corelli and Deborah Calderwood, for the intervener the Attorney General of Ontario.

The reasons of Binnie, Deschamps and Abella JJ. were delivered by

[1]     Abella J. — This appeal, like the companion appeals in R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762, and R. v. Nguyen, 2009 SCC 25, [2009] 1 S.C.R. 826, concerns the relationship between a forfeiture order for offence-related real property under the Controlled Drugs and Substances Act , S.C. 1996, c. 19 , and an offender’s term of imprisonment or other aspects of a sentence.

[2]     As indicated in the companion appeal in Craig, in my view, forfeiture orders should be approached independently of the broader sentencing inquiry.

[3]     The respondent, Yves Ouellette, was charged with and convicted of the production and possession of marihuana for the purpose of trafficking, contrary to ss. 5(2)  and 7(1)  of the Controlled Drugs and Substances Act .  Police seized 129 marihuana plants growing in his Laval home, as well as scales and 14 kilos of marihuana leaves from his freezer.

[4]     Mr. Ouellette had no criminal record relating to similar offences.  His only conviction was for impaired driving, an offence unrelated to those at issue in this set of appeals and to any other offences under the statute.  There was no evidence to establish a link between him and organized crime.

[5]     He lived in the house and, as of 2004, after the offences at issue, his 17‑year‑old son came to live with him.  They still live there.

[6]     The grow operation occupied the basement of his home.  The area had specialized lighting and ventilation systems.  Miscellaneous related items were found in other parts of his home.  In particular, a gun was found on the top floor.  The building was protected by a makeshift surveillance system.  On the basis of these observations, at the Court of Québec, Dufour J.C.Q. concluded that very little of the residence was used for purposes unrelated to the marihuana grow operation.

[7]     However, at the Quebec Court of Appeal, Giroux J.A. disagreed with Dufour J.C.Q.’s finding that the home had been effectively turned into a “bunker”.  Instead, he held that it was primarily used for living purposes (2007 QCCA 518, 229 C.C.C. (3d) 563, at para. 39).  This difference of opinion on the extent to which the residence had been converted to a marihuana grow operation need not be resolved for the purposes of this appeal.

[8]     At the sentencing stage, Dufour J.C.Q. ordered the full forfeiture of Mr. Ouellette’s home as offence-related property ([2004] R.J.Q. 2619).  She found that the property was used primarily for marihuana production, as it contained numerous instruments related to prior harvests.  After scrutinizing the legislative history of the forfeiture scheme and concluding that greater discretion to refuse forfeiture was now permitted, she considered the term of imprisonment and the forfeiture order together as forming part of one global punishment.

[9]     She considered as aggravating factors Mr. Ouellette’s profit motive, the gun in his possession and the fact that he had adapted his home to be a marihuana grow operation.  As mitigating factors, he had only one prior conviction for impaired driving, he had been working for nine years, and had no ties to organized crime.

[10] She therefore ordered a 10-month conditional sentence, taking into account the forfeiture order in crafting a fit sentence.  The sentence included a one-year probation period.  He was also ordered to pay a $2,000 donation, divided between various charities.

[11] Giroux J.A. for a unanimous court allowed Mr. Ouellette’s appeal in part and ordered forfeiture of only half of the building.  He found that Dufour J.C.Q. had failed to examine whether the building could be forfeited partially, despite her having stated that this was an element of the sentencing judge’s discretion.

[12] He concluded that the full forfeiture ordered by Dufour J.C.Q. was disproportionate because only the basement of the home was used for marihuana production.  In his view, the facts of the case generally pointed to less serious circumstances than those found by the sentencing judge.  He further noted that the operation was not sophisticated, no organized crime connections existed and there was no theft of electricity.

[13] With respect for the contrary view, on the basis of the analysis in the companion case Craig, I am of the opinion that Giroux J.A. properly took into consideration the possibility of partial forfeiture, and I find no basis for interfering with his conclusions or with the forfeiture order he has crafted.

[14] While he did appear to implicitly consider forfeiture orders and terms of imprisonment  as two interdependent orders, this did not result in a demonstrably unfit forfeiture order.

[15] I would therefore dismiss the appeal.

The following are the reasons delivered by

[16] LeBel J. — Subject to my reasons in R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762, I agree with Justice Abella that partial forfeiture is possible, as Giroux J.A. of the Quebec Court of Appeal held in his reasons (2007 QCCA 518, 229 C.C.C. (3d) 563), and I would dispose of the appeal as she proposes.

The following are the reasons delivered by

[17] The Chief Justice and Rothstein J. (dissenting) — Because we take the view that partial forfeiture is unavailable under the Controlled Drugs and Substances Act , S.C. 1996, c. 19 , we respectfully differ with Abella J. on the appropriate result in this appeal. In our opinion, Mr. Ouellette has not shown that forfeiture of the dwelling-house would be disproportionate and so full forfeiture of Mr. Ouellette’s real property should be ordered.

[18] The nature and gravity of the offence is similar to the two companion cases, R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762, and R. v. Nguyen, 2009 SCC 25, [2009] 1 S.C.R. 826.  All three were medium-sized commercial marihuana grow operations.

[19] As for the circumstances surrounding the commission of the offence, certain aggravating factors were found by the trial judge that were questioned on appeal. Though Mr. Ouellette had installed a surveillance camera and had a rifle on the premises, Giroux J.A. held that the trial judge had overstated the case by deeming the house to be a kind of “bunker” (2007 QCCA 518, 229 C.C.C. (3d) 563, at para. 39). We agree with Giroux J.A. that this turn of phrase exaggerated the degree to which Mr. Ouellette’s property was dedicated to his marihuana grow operation. The record indicates that only the basement was dedicated to the grow operation, with the house continuing to function as Mr. Ouellette’s primary residence. The presence of a rifle and a single surveillance camera are insufficient to transform Mr. Ouellette’s personal residence into an armed bunker.

[20] However, under s. 19.1(3), the burden lies with the offender to persuade the court that forfeiture would be disproportionate with regard to the relevant criteria. Even if the rifle and surveillance camera do not demonstrate that Mr. Ouellette’s residence was a kind of “bunker”, these circumstances surrounding the commission of the offence suggest that forfeiture was proportionate in this case.

[21] As for Mr. Ouellette’s prior conviction for impaired driving, we agree with Abella J. and the Court of Appeal that it is entirely unrelated to the offence in question and should play no role in the disproportionality analysis mandated by s. 19.1(3).

[22] In the result, our colleague Abella J. agrees with the Court of Appeal that forfeiture of one-half of Mr. Ouellette’s property is proportionate in light of the factors listed in s. 19.1(3). However, nothing in the reasons of Giroux J.A. or Abella J. explains why one-half forfeiture, as opposed to some other proportion, is appropriate in the case at bar. Is one-half forfeiture to become the new default result for offenders who fall just short of the disproportionality threshold, or is further tailoring to be encouraged? Should nine-tenths forfeiture be available to an offender who can show the slightest mitigating factor? In our respectful view, this very uncertainty has the potential to undermine the policy objectives that Parliament sought to advance through these provisions.

[23] In our view, the forfeiture of the offender’s interest in the offence-related property mandated by s. 19.1(3) is an all-or-nothing affair. Because Mr. Ouellette has not discharged the burden of showing that forfeiture would be disproportionate within the meaning of s. 19.1(3), we would allow the appeal.

The following are the reasons delivered by

[24] Fish J. (dissenting) — Subject to my reasons in R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762, I agree with the Chief Justice and Justice Rothstein and would dispose of the appeal as they suggest.

Appeal dismissed, McLachlin C.J. and Fish and Rothstein JJ. dissenting.

Solicitor for the appellant:  Public Prosecution Service of Canada, Ottawa.

Solicitor for the respondent:  Marc Nerenberg, Montréal.

Solicitor for the intervener the Attorney General of Ontario:  Attorney General of Ontario, Toronto.