DATE: 20010328

DOCKET: C28258/C28259/C28605

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Applicant/Appellant) – and – DENTON THOMAS, LYNDON DYER and EVERTON SINCLAIR (Respondents) – and – CRAIG JAMES PENNEY and LEGAL AID ONTARIO (Interveners)

BEFORE: DOHERTY, GOUDGE and SIMMONS JJ.A.

COUNSEL: D.D. Graham Reynolds, Q.C. for the appellant

Tushar K. Pain for the intervener, Craig J. Penney

Lee David and Marcus Pratt for the intervener, Legal Aid Ontario

HEARD: March 2, 2001

On appeal from the sentences imposed by Justice J. David McCombs dated September 8, 1997.

E N D O R S E M E N T

[1] In the course of oral argument, Crown counsel advised the court that he would not be seeking a fine in lieu of any forfeiture order that may have been made. He challenged only the trial judge’s decision to order some of the seized money paid to the Ontario Legal Aid Plan and to Mr. Penney, counsel for the accused, Thomas.

[2] Thomas and two co-accused were convicted of conspiracy to traffic in a narcotic after a lengthy trial. All received lengthy jail sentences. At the time of sentencing, the Crown moved for a forfeiture order in respect of $100,000 in cash seized from Thomas at the time of his arrest. The money was to be used to purchase cocaine.

[3] The trial judge was satisfied beyond a reasonable doubt that the $100,000 was the proceeds of crime. He was entitled, but not required, to make a forfeiture order with respect to all or some of that money: s. 462.37(2).

[4] It is implicit in the trial judge’s order that he was also satisfied, based on assignments made by Mr. Thomas, that the Ontario Legal Aid Plan and Mr. Penney were lawfully entitled to some part of the seized money. The trial judge was authorized, but not obliged, by s. 462.41(3) to order that some or all of the seized funds be paid to the Legal Aid Plan and or Mr. Penney.

[5] The trial judge ordered that some $40,000 should be paid to Legal Aid, some $12,000 should be paid to Mr. Penney, and the remainder (about $48,000) should be ordered forfeited.

[6] The forfeiture proceedings were somewhat informal. It is fair to say that the trial judge appears to have determined the order he would make before he was fully apprised of the relevant facts, particularly as they related to the financial dealings between the Legal Aid Plan and the accused. He should have made the Legal Aid Plan a party to the proceedings from the outset and determined the exact nature of the financial relationship between the Plan and the three accused before making any order.

[7] While a more structured and detailed inquiry would have been preferable, by the end of the forfeiture proceedings, which occurred on various dates over a several month time period, the trial judge knew all of the relevant facts.

[8] In seeking to overturn the trial judge’s exercise of his discretion, the Crown argued that the order made by the trial judge effectively bestowed a significant financial benefit on Thomas and his co-accused in that it reduced their potential indebtedness to the Legal Aid Plan by some $52,000.

[9] The accused are still indebted to the Legal Aid Plan in the amount of some $40,000 to $50,000. The arrangements they made for repayment with the Plan provided security in an amount considerably less than $40,000. The Legal Aid Plan is at liberty to pursue that security. The trial judge’s order did not improve the accused’s financial position in any meaningful way.

[10] The trial judge did not misapprehend relevant facts or proceed on any erroneous principle. His decision cannot be said to be unreasonable. Consequently, there is no basis upon which we can interfere with that order.

[11] The appeal is dismissed.

“Doherty J.A.”

“S.T. Goudge J.A.”

“J. Simmons J.A.”