Court File and Parties

Court File No.: 2811 998 11 13240 00

Date: April 24, 2013

Ontario Court of Justice (Central East Region)

Between:

Her Majesty The Queen

Stephen Dawson, Counsel for the Crown/Respondent

- and -

Kyle Fenn

Brad Pearson, Counsel for the Defendant/Applicant

Heard: April 8, 2013

Ruling on Application

BELLEFONTAINE, J:

Introduction

[1] This is my ruling on the defence application for an order declaring that s.16 of the Controlled Drugs and Substances Act which provides for forfeiture of offence-related property is of no force and effect as it is:

1. Ultra vires the Federal Parliament according to the division of powers outlined in s.91 and s.92 of the Constitution Act.

2. Inconsistent with the Canadian Charter of Rights and Freedoms being a second punishment contrary to s.11(h) of the Charter.

3. Overbroad contrary to s.7 of the Charter.

4. Cruel and unusual punishment contrary to s.12 of the Charter.

Facts

[2] During the course of an investigation into a suspected drug trafficker Mr. Fenn was observed picking up the trafficker in his truck and drove a short distance before the drug trafficker left the vehicle. Police suspected a drug transaction had taken place and arrested Mr. Fenn. A search of his truck yielded 125 grams of marihuana with a street value of $1,250.00 and 7.8 grams of cocaine with a street value of $780.00. Mr. Fenn has plead guilty to possession of the marihuana for the purposes of trafficking and to simple possession of the cocaine. He received a 90 day intermittent sentence. Mr. Fenn's position is that the marihuana was not purchased for resale but was being transported by him to a party where it was going to be shared with a number of friends. Notwithstanding the lack of profit motivation this amounts to trafficking for the purposes of the Controlled Drugs and Substances Act which includes the giving, transferring, transporting, or delivering a substance. There is no issue accordingly that his pickup truck is offence-related property subject to forfeiture being any property "that is used in any manner in connection with the commission of a designated substance offence" which includes possession for the purpose of trafficking. Mr. Fenn was aware at the time of the plea of guilty that the Crown was going to proceed to apply for forfeiture of his pickup truck which they have done. The pickup truck is a 2010 Ford F-150 purchased by Mr. Fenn on September 16, 2010 for $31,088.00. By virtue of his credit agreement, the total payments to be made were $40,572.87. The outstanding balance is currently approximately $13,854.50. The current value of the two and a half year old pickup truck is not in evidence before me.

Division of Powers Analysis

[3] There is a long history of the forfeiture sections of the Controlled Drugs and Substances Act and its predecessors being found to be within the jurisdiction of the Federal Parliament being in pith and substance an incident of the criminal law which is within Federal jurisdiction. The defendant submits that as a result of the Supreme Court of Canada decision in R. v. Craig [2009] S.C.R. 762. The rationale that underpinned the established jurisprudence is no longer valid and accordingly the section can no longer be seen to fall within Federal jurisdiction. In R. v. Craig the Court dealt with a dispute between Provincial Appellate Courts on the approach that was to be taken to the interpretation of s.16 for sentencing purposes from a statutory interpretation analysis perspective.

[4] Justice Abella for the majority on this point stated:

[2] The first approach views forfeiture orders as an aspect of an interdependent global punishment. This approach, which conceptually combines the forfeiture order with terms of imprisonment or other aspects of a sentence, leads almost inevitably to less jail time for those who have property available for forfeiture than for those who have none, on the theory that the accused has been sufficiently punished through the forfeiture order.

[3] The second approach sees the need for a separate inquiry into whether forfeiture is justified based on a discrete statutory proportionality test. This approach, supported by the structure and wording of the statute, seems to me to be preferable because it avoids the unpalatable possibility of trading property for jail time, and therefore

Justice Abella concluded that the forfeiture provisions were independent of the sentencing of an offender, stating at paragraph 40:

[40] In addition to my concern that those without property should not be treated more harshly than those who have it, I see the purpose and statutory language underlying the forfeiture scheme as a reflection of Parliament's intention that forfeiture orders be treated independently, pursuant to a separate rationale and as a distinct response to distinct circumstances. The sentencing inquiry focuses on the individualized circumstances of the offender; the main focus of forfeiture orders, on the other hand, is on the property itself and its role in past and future crime.

[5] The position of the applicant is that as Regina v. Craig did not deal with the constitutional aspects of s.16 and has severed forfeiture from the sentencing function which is the basis for it having been determined to be validly within Federal jurisdiction it is now in pith and substance a property and civil matter which is in the exclusive jurisdiction of the Provincial Legislature. This argument has been dealt with thoroughly in two decisions. The first being by Justice McKinnon in the British Columbia Supreme Court in R. v. Van Kessel 2010 BCSC 257, [2010] B.C.J. No. 350 and by Justice West in R. v. Fercan, an unreported decision of the Ontario Court of Justice at Newmarket, file No. 11-04549 and 11-04550 dated the 27th of September, 2012. In both decisions the argument advanced by the applicant before me was rejected. I need not rehash the lengthy analysis undertaking by these jurists. Having read the decisions, I adopt their reasons and conclusions.

[6] Justice McKinnon outlined the issue at paragraph 10 and 11:

[10] Counsel for the applicant submits that sections 16 and 19.1 of the CDSA are ultra vires the federal Parliament of Canada in that they are in pith and substance laws concerning property and civil rights, which are a provincial head of power under the Constitution Act, 1867. This argument is based largely on the interpretation of the forfeiture provisions made by the Supreme Court of Canada in Craig.

[11] The applicant submits that Craig effectively severed the connection between sentencing and forfeiture necessary for the forfeiture provisions to be validly enacted under the criminal law power of the federal Parliament.

He went on to extensively analyze our R. v. Craig and the legislation from a division of powers perspective. After considering its pith and substance, its purpose, and the effect of the legislation in the context of the heads of power as distributed respectively between the Federal government and the provinces, he concluded:

[48] I am unable to accept the applicant's proposition that Craig stands for a complete separation between sentencing and forfeiture so as to conclude that the pith and substance of the CDSA legislation respecting forfeiture is properly placed under the head of property and civil rights.

[49] In my view, all Craig does is oblige judges to consider and sentence an offender regardless of real property interests. Once that sentence has been imposed then the Court considers the forfeiture provisions, having regard to the factors described in section 19.1 of the CDSA, including "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".

[50] This conclusion is strengthened by the wording in section 19.1(3), which continues to tie the analysis of forfeiture to the offender. That the gravity of the offence, the circumstances surrounding the offence, and the criminal record of the accused must be considered when determining whether forfeiture is appropriate clearly demonstrate that the forfeiture provisions are still adequately tied to the sentencing process, in the manner described by the Supreme Court of Canada in the previous forfeiture cases.

[51] I reiterate the comments of Abella J. at para. 40 in Craig where she stated:

The sentencing inquiry focuses on the individualized circumstances of the offender; the main focus of forfeiture orders, on the other hand, is on the property itself and its role in past and future crime.

[52] It seems clear from references to parliamentary intention and case law that the focus or purpose of forfeiture of offence related property is to deter future crime and to ensure property is not again utilized for a criminal purpose. Separating the forfeiture enquiry from sentencing, does not, in my respectful view, convert the process to one of property and civil rights. In the result, I find that the impugned provisions are properly placed under the federal criminal power and are intra vires the federal Parliament.

[7] Justice West dealt with the same argument in R. v. Fercan. The issue was set out at paragraphs 14 to 17:

[14] Counsel for the applicant submits that sections 16 and 19(3) of the C.D.S.A. are ultra vires the federal parliament in that they are in pith and substance laws concerning property and civil rights which are a provincial head of power under section 92(13) of the Constitution Act, 1867. It is the submission of Mr. Greenspan and Mr. Friedman that the Supreme Court of Canada in R. v. Craig 2009 SCC 23, [2009] 1 S.C.R. 762 effectively severed the connection between sentencing and forfeiture necessary for the forfeiture provisions to be validly enacted under the criminal law power of the federal Parliament.

[15] The applicant submits that forfeiture is completely separate and distinct from sentencing and therefore is not a proper exercise of the federal parliament's criminal law power. They point to and rely on Abella J.'s finding in paragraph 40 as to the purpose of the forfeiture scheme in the C.D.S.A.:

…I see the purpose and statutory language underlying the forfeiture scheme as a reflection of parliament's intention that forfeiture orders be treated independently pursuant to a separate rationale and as a distinct response to distinct circumstances. The sentencing inquiry focuses on the individualized circumstances of the offender; the main focus of forfeiture orders, on the other hand, is on the property itself and its role in past and future crime.

[16] In my view, this submission ignores the underlying reason why Abella J. separated forfeiture from the sentencing of the offender. In a number of the lower court decisions the trial judges dealt with sentencing and forfeiture as an "interdependent global punishment" which combined the forfeiture order with terms of imprisonment or other aspects of a sentence thereby reducing jail time for those who had property available for forfeiture. It was the view of Abella J. and McLachlin C.J. that an offender should not be permitted to "trade property for jail time' and therefore viewed "forfeiture of offence-related property" as a "discrete inquiry." (Emphasis added.)

[17] Further, at paragraph 22 Abella J. states that "while a forfeiture order may have a punitive impact on an offender, it is also aimed at taking offence-related property out of circulation and rendering it unavailable for future designated substance offences." In paragraph 30 Abella J. describes the approach she eventually adopts as "an independent inquiry resting on an application of the specific test set out in s.19.1(3) and (4) to a forfeiture order." (Emphasis added.) Further, in paragraph 32 she states that this approach "treats a forfeiture order under the Controlled Drugs and Substances Act as a distinct and independent consequence tailored to serious drug offences." (Emphasis added.)

[8] After a detailed and lengthy analysis he concluded at paragraph 49 and 50:

[49] In my opinion, the federal Parliament's imposition of a scheme of forfeiture in the Controlled Drugs and Substances Act that is only available where a person has been convicted of a designated substance offence in respect of offence-related property is well within the scope of its power to legislate in relation to criminal law provisions designed for the prevention of crime. As I have indicated above, it is my view that the forfeiture provisions of the CDSA, although separate from the "primary" sentencing of the offender, are nonetheless part of the sentencing process or sentencing phase of the criminal proceedings.

[50] Consequently, I find that sections 16 and19 of the CDSA have been validly enacted pursuant to Parliament's power over criminal law in section 91(27) of the Constitution Act 1867.

[9] The applicant seeks to distinguish R. v. Van Kessel and R. v. Fercan on the basis that they dealt with real property and Mr. Fenn's case deals with personal property being his pickup truck. The basis for the argument is an interpretation of the interrelationship between s.16(1) and s.19.1(3). They read 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 … (order the property to be forfeited).

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.

[10] R. v. Van Kessel upon which Justice West relied in R. v. Fercan, gained support for the conclusion that forfeiture was related to sentencing based on the special sentencing-related powers in s.19.1(3) which allow for partial forfeiture only in relation to real property. The defendant submits that the absence of such factors in relation to personal property should lead to a different result. Neither the wording of the legislation or the ratio of the cases support such a distinction.

[11] The inclusion of a proportionality test for forfeiture of real property is only one of the many factors relied upon in R. v. Van Kessel for the determination that forfeiture has a criminal law purpose. Justice McKinnon notes at paragraph 50 that his conclusion on constitutionality is "strengthened" by the section 19.1(3) factors, not that it is dependent on them. Justice Abella notes at paragraph 45 that the exclusion of "the circumstances of the offender" in s.19.1(3) as a reflection of Parliament's intention (that individual sentencing parameters) are not a factor in the forfeiture inquiry. This completely undermines the defence argument that it is the section 19.1(3) sentencing principles which support real property forfeiture being valid Federal sentencing authority but that section 16 with respect to personal property is not. I would emphasize that part of paragraph 40 that states "the main focus of forfeiture orders,….is on the property itself and its role in past and future crime." The Supreme Court does not at all distinguish between real and personal property in this comment.

[12] It is significant as well that the expansion of forfeiture to a broader range of real property which was accompanied by the ability to forfeit only part of the property based on the proportionality factors included in s.19.1(3) was an add-on to the personal property forfeiture rules which were of long-standing and historically considered to be sentencing-related. It does not make sense that the addition of a new class of items that could be subject to forfeiture with some restrictions should change the very nature of the pre-existing forfeiture provisions.

[13] Considering all of the arguments with respect to the divisions of power, I find that s.16 is validly within federal jurisdiction with respect to personal property as well as real property.

Section 11(h) - Double Punishment

[14] The applicant has asked that s.16 be found to be invalid as being in violation of s.11(h) of the Canadian Charter of Rights & Freedoms which states: "any person has the right…if finally found guilty and punished for the offence, not to be tried and punished for it again." This argument is also predicated on the decision in R. v. Craig which held that there is "no doubt forfeiture has a punitive impact" and that it should be considered independently of the sentence to be imposed based on the application of the specific tests set out in s.16 and s.19.1 of the C.D.S.A. The position of the applicant is simply that if it is punishment and it is independent of the sentence imposed, it must be a prohibited double punishment.

[15] The argument is however inconsistent with the existing authorities. In R. v. Green [1983] O.J. No. 3014 the Crown applied for review of an order of the provincial court dismissing an application of forfeiture of a truck used to transport marihuana pursuant to the C.D.S.A. on the basis that such forfeiture was a second punishment prohibited by s.11(h). Justice Linden overturned the Provincial Court Judge's decision:

Although I agree with the conclusion of His Honour Judge Ross that forfeiture is a form of punishment, I cannot agree that s. 10(9) of the Narcotic Control Act contravenes s. 11(h) of the Charter. The imposition of multiple penal consequences in respect of the same offence has never fallen within the scope of the double jeopardy rule: see M. L. Friedland, Double Jeopardy (1969), pp. 200-1. The laws of Canada permit a variety of sanctions to be imposed in conjunction with other forms of punishment. For example, s. 646(2) of the Criminal Code, R.S.C. 1970, c. C-34, permits a fine to be imposed in addition to a term of incarceration. The Highway Traffic Act, R.S.O. 1980, c. 198, s. 26, mandates the suspension of an accused's driver's licence following conviction of certain Code offences, regardless of the fact that the accused may also be sentenced to a fine or imprisonment. Compensation or restitution can be ordered in addition to other punishments: Code ss. 653 and 655. I do not think that s. 11(h) of the Charter changes the state of the law in Canada in this respect.

Like the sanctions noted above, forfeiture of a conveyance is a penal consequence flowing directly from a conviction. The fact that forfeiture is not automatic, and can be sought after a term of incarceration has been imposed does not mean that an accused is being punished again for the same offence. An accused is not finally punished until all possible penal consequences for the offence have been exhausted. Judge Ross' refusal to deal with the merits of the application for forfeiture thus constitutes an error of jurisdiction, and this application is allowed in its entirety. The matter is remitted back to His Honour Judge Ross to be dealt with on the merits.

[16] R. v. Green was applied and followed by the Federal Court in Porter v. Regina (1989), 48 C.C.C. (3d) 252.

[17] Further, although Justice Abella specifically confines the analysis in R. v. Craig to the statutory interpretation of s.16, it is clear she was aware that the Charter may impact the section. It would seem incongruous given that knowledge that the Court would choose an interpretation of the section that makes it invalid as being in breach of the Charter. In a situation where the Court was choosing between two alternative interpretations, it would break key rules of statutory interpretation to select the interpretation which was not Charter compliant.

[18] Justice McKinnon's conclusion in R. v. Van Kessel is also instructive. He holds at paragraph 48:

[48] I am unable to accept the applicant's proposition that Craig stands for a complete separation between sentencing and forfeiture so as to conclude that the pith and substance of the CDSA legislation respecting forfeiture is properly placed under the head of property and civil rights.

[19] Considering the weight of the authorities in this matter, I am satisfied that forfeiture is sufficiently related to the sentencing of the offender that it cannot be said he has been finally punished for the offence until a related forfeiture application has been dealt with. This conclusion was articulated by Justice West in Fercan at paragraph 25:

[15] It is my opinion therefore in light of the preceding paragraphs that the criminal forfeiture provisions contained in the CDSA are separate from the determination of an appropriate sentence to be imposed for a person convicted of a designated substance offence but are nonetheless part of the sentencing process or sentencing phase of the criminal proceeding. I adopt the conclusion of McKinnon J. in Van Kessel, supra, at paragraph 49:

In my view all Craig does is oblige judges to consider and sentence an offender regardless of real property interests. Once that sentence has been imposed then the Court considers the forfeiture provisions.

[20] Accordingly I dismiss the defendant's application so far as it is based on s.11(h).

Section 7 - Overbreadth Argument

[21] Section 7 of the Canadian Charter of Rights and Freedoms provides that "everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

[22] The Supreme Court of Canada has held that a law which is overly broad in its scope can contravene section 7. In R. v. Heywood, [1994] S.C.J. No. 101 the Court stated at paragraph 49:

Overbreadth analysis looks at the means chosen by the state in relation to its purpose. In considering whether a legislative provision is overbroad, a court must ask the question: are those means necessary to achieve the State objective? If the State, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual's rights will have been limited for no reason. The effect of over breadth is that in some applications the law is arbitrary or disproportionate.

[23] The applicant maintains because the purpose of s.16 was to combat organized crime, the legislation is overly broad in capturing a not-for-profit, drug trafficker such as Mr. Fenn who has no connection with organized crime. To determine the State's objective for the legislation, the defense relies upon the statement of the Minister of Justice and Attorney General of Canada, the Honorable Ann McLellan when the amendments were made to the forfeiture provisions expanding the right to seize real property. She stated: "I am pleased today to lead off the debate of an issue of major concern to all Canadians: the problem of organized crime…"

[24] I consider the argument to be misconceived. The forfeiture provisions of the Controlled Drugs and Substances Act and its predecessor has a long history of addressing individuals, who have committed the designated offences, for which offence-related property can be seized. Having the provision expanded to additional real property cannot reasonably be seen to eliminate the existing scope of the seizure of personal property provided by s.16, which includes individuals as well as organized crime. Additionally the proportionality provisions relating to the expanded real property forfeiture provision provide for an escape hatch to ensure that partial seizure can be allowed where the circumstances warrant. Accordingly to the extent that the expansion of forfeiture to more real property might be seen to taint the whole section, Parliament has provided a statutory protection to ensure that individuals who are not involved in organized crime and not deserving of having their real property seized are protected. This discretion prevents the section from being overly broad for any purpose that might be read into s.16, which would be required to find it unconstitutional. In the event the forfeiture provision was to be limited to people involved in organized crime there would also be no need for s. 19.1(3). It would never be disproportionate to seize all of organized crimes ill gotten property.

[25] Accordingly, I dismissed the defendant's application so far as it relates to the section 7 over breadth argument.

Section 12 - Cruel and Unusual Punishment

[26] The final argument raised by the applicant is that forfeiture of personal property can amount to cruel and unusual punishment by being grossly disproportionate to the gravity of potential offences. The test to be applied in considering whether a statutory provision amounts to cruel and unusual punishment was recently discussed by Justice Code in Regina v. Nur [2011] O.N.S.C. 4874. He stated at paragraph 84 and 85:

[84] The test that emerges from this line of authority was stated succinctly in Ferguson, supra at para. 14, in a unanimous decision of the Court delivered by McLachlin C.J.C.:

The test for whether a particular sentence constitutes cruel and unusual punishment is whether the sentence is grossly disproportionate: R. v. Smith, [1987] 1 S.C.R. 1045, 34 C.C.C. (3d) 97, 40 D.L.R. (4th) 435. As this Court has repeatedly held, to be considered grossly disproportionate, the sentence must be more than merely excessive. The sentence must be "so excessive as to outrage standards of decency" and disproportionate to the extent that Canadians "would find the punishment abhorrent or intolerable": R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895, 203 C.C.C. (3d) 161, 260 D.L.R. (4th) 459, at para. 4, citing Smith, at p. 1072 and Morrissey, at para. 26.

In Steele v. Mountain Institution, [1990] 2 S.C.R. 1385 at para. 80, a unanimous judgment of the Court delivered by Cory J., it was stated that the test for a s. 12 violation is "stringent and demanding".

[85] The methodology for determining "gross disproportionality" in the s. 12 case law is also well established. The analysis proceeds in two stages: first, the Court must determine whether the mandatory minimum sentence results in "gross disproportionality" for the particular offence and offender being sentenced; second, the Court must consider whether "reasonable hypothetical" cases exist in which the mandatory minimum sentence would result in "gross disproportionality".

[27] The matter has not been argued on the basis that the forfeiture of Mr. Fenn's truck would be grossly disproportionate at a level that it would outrage standards of decency or would be found to be abhorrent or intolerable. Clearly the loss of his used vehicle at a point in time when he still has significant payments to make on it, would be considered harsh relative to his low level drug trafficking by being the person chosen to bring the drugs to the party with no profit motive for himself. Given the five year less one day sentence that his crime is eligible for, however, the financial loss which could likely be made up by a number of months worth of employment income would not reach the level of being so excessive as to outrage standards of decency. The case has been argued on the basis of a reasonable hypothetical referred to as Jane Doe who drove to a friend's residence in her fancy new $200,000.00 Porsche Pan Amera Turbo S with a small amount of marihuana to share with that friend, thereby committing a designated offence, for which the Porsche being offence related property, would be automatically forfeited with no discretion in the judge to relieve against it. The applicant submits that the criminal sentence is a valid alternative to any forfeiture such that the forfeiture is unnecessary and has no valid penal purpose. The position of the Crown is that the hypothetical proposed is unrealistic, that the police and Crown would never pursue such a case providing protection to the community from such a punishment and finally, that the case law does not support these types of financial penalties amounting to cruel and unusual punishment.

[28] The issue has been recently dealt with by the Manitoba Court of Appeal in Turner v. Manitoba [2001] M.B.C.A. 2007. The Court dealt there with the seizure of a $45,000.00 truck that had been used for hunting. A spotlight had been shone from a passenger window with the intention of attracting animals resulting in a $600.00 fine. Mr. Turner alleged that the additional forfeiture of his $45,000.00 pickup truck was cruel and unusual punishment given the nature of the offence and that no animals had been killed in the attempt. The Court of Appeal rejected the argument that forfeiture of the truck amounted to cruel and unusual punishment and noted:

"In this case, the only goods that will be subject to forfeiture will be those used in the commission of the offence or those which provide evidence of the offence. While this may, on occasion, amount to a significant monetary penalty, as it did for the owner of the truck in this case, that penalty will always be an amount that the accused chose to put at risk when he or she chose to commit the offence. Consequently, this penalty meets the goals of specific and general deterrence without being so excessive as to amount to cruel and unusual punishment."

The Manitoba Court of Appeal referred in the course of their decision to the Newfoundland Court of Appeal decision in Lambe and Moulton [2000] N.F.C.A. 23. Lande and Moulton drove their all terrain vehicles on an area that was not approved for the use of such vehicles and were fined $200.00. Their all terrain vehicles valued at $3,000.00 and $4,000.00 were forfeited and they appealed on the basis that the forfeiture amounted to cruel and unusual punishment. The Court of Appeal held that the financial penalty for these individuals or any reasonable hypothetical proposed case would not be cruel and unusual punishment relative to the potential damage that could be caused to fragile wetlands by virtue of the offence. The Court of Appeal reviewed other decisions where the amount of the forfeiture was substantial relative to the nature of the crime and section 12 arguments had been rejected and queries whether any financial penalty could amount to cruel and unusual punishment at a level that was so excessive as to outrage standards of decency. The Crown notes the decision of Regina v. Spence a decision of the Supreme Court of Newfoundland [2004] N.L.S.C.T.D. 113 where it was submitted that the forfeiture of a $125,000.00 seaplane amounted to a grossly disproportionate penalty relative to the illegal game offences that the accused committed or was a party to. The decision on appeal was that such forfeiture did not amount to cruel and unusual punishment as the penalty imposed by way of forfeiture will always be an amount that the accused chose to put at risk when he or she chose to commit the offence. A factually similar case to Mr. Fenn's, was dealt with recently by the Saskatchewan Court of Appeal in R. v. Paziuk, 2007 SKCA 63. Mr. Paziuk was in possession of $2,000 to $3,000 worth of marijuana for the purpose of trafficking and received a nine month jail sentence. The sentencing Judge refused to forfeit his $20,000 pick up truck and noted to do so "would be disproportionate at the end of the day" given the minimal role the truck played in the trafficking. The Court of Appeal held that Parliament clearly intended that the proportionality test was not to apply to personal property and the sentencing Judge had no discretion, but was required to order forfeiture and erred in failing to do so.

[29] I accept as well the prosecution argument that the proposed hypothetical is not reasonable and falls into the category of far-fetched or only marginally imaginable as a live possibility. While reported cases can be relied upon, to the extent scenarios are constructed "the proper approach is to develop imaginable circumstances that could commonly arise with a degree of generality appropriate to the particular offence". See R. v. Morrissey 2000 SCC 39, 2000 2 S.C.R. 90 at para. 50 to 54 and R. v. Nur at para. 98 to 103. A reasonable hypothetical would have individuals driving a vehicle worth tens of thousands of dollars as opposed to hundreds of thousands of dollars. Even ignoring the instant depreciation that befalls personal property, losses in this range relative to the nature of the offence and lengthy jail sentences available could at worst be seen to be harsh and excessive but would not meet the "abhorrent and intolerable" test required to strike down legislation passed by Parliament. Considering this matter in the context of the carefully considered appellate authorities from other provinces, I am not prepared to find that either Mr. Fenn's personal situation or a reasonable hypothetical situation would amount to cruel and unusual punishment pursuant to s.12.

Conclusion

Accordingly the application is dismissed and the vehicle will be forfeited as requested and the order will go in the form that has been agreed upon by counsel.

P.L. Bellefontaine J.