R. v. Van Bemmel, 2010 ONCA 276
CITATION: R. v. Van Bemmel, 2010 ONCA 276
DATE: 20100414
DOCKET: C49301
COURT OF APPEAL FOR ONTARIO
Feldman, Sharpe and Gillese JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Albert Van Bemmel
Appellant/Applicant
Jeanine E. LeRoy, for the appellant
Marie Comiskey, for the respondent
Heard: March 23, 2010
On appeal from the forfeiture order imposed by Justice Gregory A. Pockele of the Ontario Court of Justice on August 6, 2008.
Gillese J.A.:
[1] At the time of sentencing, Mr. Van Bemmel was a 63-year old retired factory worker who lived and worked on a 122-acre farm[^1] in Ontario. In addition to his home, there is a drive shed, cow barn and two silos on the farm property.
[2] Mr. Van Bemmel grew marihuana on a very small part of the farm property for approximately a year before being discovered by the police. He pleaded guilty to unlawful production and possession of a controlled substance contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”) and was sentenced to 12 months in prison. In addition, a forfeiture order was made in respect of the farm property.
[3] Mr. Van Bemmel appeals only the forfeiture order.
[4] For the reasons that follow, I would allow the appeal.
BACKGROUND
[5] Mr. Van Bemmel was raised on a farm in Ontario but spent most of his adult life working in factories. After a brief period working in the prairies when he was a young man, he returned to Ontario and began working in a factory. He worked for six years in an auto factory and a further 28 years at another factory. He retired in 2002. The offences in question occurred approximately 4 years after he retired.
[6] Mr. Van Bemmel and his then common law wife purchased the farm property in 1989.[^2] He has lived there continuously ever since. Neither the farm property nor any of the buildings on it were modified for the purpose of growing marihuana.
[7] On September 25, 2006, OPP officers executed a search warrant for the appellant’s farm at 15994 Furnival Road in West Elgin, Ontario. They seized 591 marihuana plants, 465 of which were being grown outdoors and 126 of which were being grown in the outbuildings and residence. They also seized: ten and a half pounds of processed marihuana; some drug paraphernalia such as digital scales, packing material and scissors; a shot gun and shells; and, a cross bow and ammunition. The weapons were the subject of separate charges.
[8] During a later inspection of the appellant’s residence, the police discovered a seedling and cloning area in the basement. Access to the basement was gained by crawling through a cupboard in the kitchen. This access existed when the appellant purchased the property. No additional marihuana or plants were found.
[9] The value of the marihuana that was seized was estimated at a low of approximately $369,000, if the marihuana were sold at the pound level (wholesale price), to a high of over $1 million if it were sold on the street.[^3]
[10] On October 3, 2006, the appellant pleaded guilty to careless storage, unlicensed possession and unregistered possession of a firearm. He was sentenced to seven days in custody and fined $400. The court also imposed a weapons prohibition order, and an order for forfeiture and destruction of the shotgun and crossbow. At the time the appellant pleaded guilty to the weapons offences, he had no criminal record.
[11] The sentencing hearing in respect of the CDSA offences and the forfeiture application took place on June 18, 2008. Both the Crown and the defence called evidence.
[12] The Crown called Detective Constable Knoll, who gave expert evidence on marihuana production, distribution and projected marihuana plant yields. In addition to evidence on the value of the marihuana, set out above, the key aspects of D.C. Kroll’s evidence can be summarized as follows. The property looked like a farm. Less than an acre of the land was being used to grow marihuana. While there was some attempt to hide the outdoor grow operation by planting a small patch of corn in front of the plants, the farm had not been set up to hide the grow operation and there were no booby traps. The plants were being watered and properly fertilized and appeared to have a lot of bud.
[13] The appellant testified that he was remorseful, what he had done was a mistake and he was stupid. He said that he got involved because he was behind in property taxes and owed approximately $5,000 in that regard. His income at the relevant time consisted of a yearly pension of $25,000 and after-tax income from farming of approximately $500 per year.
[14] Mr. Van Bemmel said that he had been contacted by undisclosed people and asked to supply his land to grow and cultivate marihuana. The amount he was to be paid was dependent on the weight of the crop. He expected to make between $10,000 and $30,000 for growing the marihuana. He estimated the size of the property used to grow the marihuana to be between one-third and one-half of an acre. At the time of the offence, he testified that the farm property was approximately 120 acres in size, of which 70 acres was arable land on which he planted crops and the balance was bush and pasture for the cattle he raised. He had been involved in the grow operation for one year. None of the marihuana had been sold. He had been smoking marihuana because of depression. The weapons found on his premises were for protection from raccoons.
[15] The Crown sought a sentence of between nine and 12 months in prison for the CDSA offences. It also brought an application for full forfeiture of the appellant’s real property. The defence asked for a conditional sentence and a fine of $50,000, secured against the property, in lieu of forfeiture of the offence-related property.
THE PROPERTY
[16] This case is largely about the forfeiture of offence-related real property. Accordingly, one would have thought that the legal description to the property and all the salient features regarding ownership of that property would be clear on the record. However, that is not the case. Title to the property in the present case is something of a mystery – so much so that it is unclear whether the property in question consists of one parcel of land or two.
[17] There is a single municipal address for the property that Mr. Van Bemmel owns – 15994 Furnall Road, West Elgin or R.R. #1, Wardsville, Ontario. The transfer deed contained in the record shows that Mr. Van Bemmel and his then common law wife originally purchased property that is legally described as part lots 11 and 12, Concession 1, Municipality of West Elgin, County of Elgin, Township of Aldborough (the “farm property”). They paid $122,500 for the farm property. It consists of approximately 122 acres and is a functioning farm whose primary crop is soya. Mr. Van Bemmel’s home and the other farm buildings are on this parcel of land.
[18] Adjacent to the farm property is the second parcel of land which Mr. Van Bemmel also owns (the “vacant land”). It is legally described as part lot 14, Concession 1, Municipality of West Elgin, County of Elgin, township of Aldborough and is approximately 100 acres in size.[^4] Mr. Van Bemmel grows crops such as corn, soya and wheat on the vacant land. He testified that he paid $70,000 for the vacant land. There are no title documents in the record for the vacant land and, as noted above, the transfer deed showing the original purchase by Mr. Van Bemmel does not include this parcel of land – it is only for the farm property.
[19] The municipal tax rolls treat the two parcels of land as separate properties. In 2007, the farm property was assessed at $313,000 and the vacant property at $232,000.
[20] The foregoing evidence supports the notion that Mr. Van Bemmel owns two properties, each with its own title. However, other evidence suggests that there may be only one property, which consists of two parcels of land.
[21] First, there is but a single municipal address for the two parcels of land. Next, apparently there is a single mortgage in favour of Farm Credit Corporation that covers both parcels of land.[^5] The mortgage was apparently for $123,800 and taken out on March 17, 2006. Further, when Mr. Van Bemmel and his common law wife separated in 1999, he paid her $82,000 for her interest in the property and she executed a single quit claim over both parcels of land. In addition, the original Crown application for forfeiture describes the two parcels as a single property. And, the affidavit of D.C. Bhabha, filed in support of the forfeiture application, states that when he searched the title at the Land Registry office, the legal description of the property was for both parcels of land.[^6]
[22] Accordingly, on the record, I am unable to determine whether there is a single property, consisting of two parcels of land or whether there are two parcels of land, each with its own title. This uncertainty has ramifications for the forfeiture application, as will be seen below.
THE FORFEITURE APPLICATION
[23] The Crown’s application for forfeiture was brought in relation to both parcels of land. It was framed on the basis that there is a single property consisting of two parcels of land. However, before the sentencing judge, the Crown sought “full forfeiture” of the farm property alone, stating that the vacant land was not offence-related property.
[24] On appeal, the Crown’s position is baffling. In its factum, it asserts that the sentencing judge ordered full forfeiture of the farm property. For an order of full forfeiture to have been made, title to the farm property must be separate from that of the vacant land. In oral argument, however, the Crown appeared to take the position that the order below was for partial forfeiture. This position is based on the notion that there is a single property and, as the forfeiture order covered only the farm property parcel, the forfeiture order must be partial in nature.
[25] In any event, the Crown could not tell the court how a forfeiture order in relation to the farm property might be implemented. The Crown suggested that it might be by way of placing a charge against the property. It also suggested that if the forfeiture order stands, it might bring an application to force the sale of the land so that the Crown could realize on whatever it was entitled to. If the Crown were to force sale of the land, its position was that Mr. Van Bemmel could live in a trailer on the vacant land. While Mr. Van Bemmel acknowledged such a possibility in cross examination at the sentencing hearing, there was no indication of whether services – such as electricity and sewers – run to the vacant land.
[26] Furthermore, the Crown was unable to assist the court with the impact that sale would have on the mortgage, which it will be recalled, is a single mortgage against both parcels of land. Would the mortgage be discharged from the sale proceeds, apportioned as against the two properties or remain against only the vacant land? In this regard, the appellant testified that the balance owing on the mortgage is between $70,000 and $80,000.
THE RELEVANT LEGISLATIVE PROVISIONS
[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:
- (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.]
THE ISSUE
[29] The primary question raised in this appeal is whether the sentencing judge erred in principle in making the forfeiture order. The appellant submits he erred by:
(1) treating forfeiture as a part of the sentencing inquiry, rather than as a discrete inquiry; and
(2) adopting an overly strict test for partial forfeiture.
THE SUPREME COURT OF CANADA TRILOGY ON FORFEITURE
[30] Since sentence was imposed in this case, the Supreme Court of Canada has clarified the operation of the forfeiture provisions in ss. 16(1) and 19.1(3) of the CDSA in a trilogy of cases: R. v. Craig, [2009] 1 S.C.R. 767, R. v. Nguyen, 2009 SCC 25, [2009] 1 S.C.R. 826, and R. v. Ouellette, 2009 SCC 24, [2009] 1 S.C.R. 818. These cases provide the framework within which to decide this appeal.
R. v. Craig
[31] In Craig, based on a sizeable marihuana grow operation in her Vancouver home that had been going on for years, the accused pleaded guilty to one count of producing marihuana. The basement level and parts of the main floor of the house were devoted to marihuana cultivation. There were three growing rooms and one drying room in the house along with industrial lighting, ventilation and irrigation systems.
[32] On arrest, the police seized 186 marihuana plants, a container with one pound of marihuana packaged for wholesale distribution, additional pre-packaged marihuana, score sheets documenting marihuana sales from her car, and assorted drug paraphernalia. She had no criminal record.
[33] By the time Ms. Craig was sentenced, the Canada Revenue Agency had assessed her $250,000 for unpaid taxes relating to marihuana earnings. The debt was secured by a lien on two houses she owned, one of which was the house in which the “grow op” was situated.
[34] The trial judge observed that the tax assessment amounted to forfeiture because it left Ms. Craig with little equity in her home. She sentenced Ms. Craig to a $100,000 fine, a 12-month conditional sentence and a victim surcharge of $15,000. The British Columbia Court of Appeal upheld the conditional sentence but set aside the fine and victim surcharge and, instead, made a forfeiture order of the accused’s home.[^7]
[35] A majority of the Supreme Court of Canada allowed the appeal and set aside the forfeiture order. Two general propositions can be taken from Craig.
[36] First, a majority of the court (Abella J., Binnie and Deschamps JJ. concurring; McLachlin C.J. and Rothstein J. concurring in separate reasons on this point) held that the forfeiture inquiry mandated by s. 19.1 of the CDSA is a discrete one, to be conducted independently from sentencing.[^8] Forfeiture of offence-related real property must be determined with reference to the principles in s. 19.1(3) of the CDSA.[^9] While the sentencing inquiry focuses on the circumstances of the offender, the main focus of forfeiture orders is on the property itself.[^10]
[37] Second, a majority of the court (Abella J., Binnie and Deschamps JJ. concurring; LeBel J. concurring in separate reasons on this point) held that partial forfeiture of real property is permissible under s. 19.1.[^11] Whether the court orders full, partial or no forfeiture of offence-related property depends on the application of the factors contained in s. 19.1(3).[^12] Before a court orders forfeiture, it must consider the factors set out in s. 19.1, including the proportionality factors in s. 19.1(3).[^13] Under s. 19.1(3), the court must consider whether the impact of a forfeiture order 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.
[38] The nature and gravity of the offence could include the character and quantity of the substance involved, the level of sophistication of the crime, and the extent to which the commercial production or distribution of drugs was involved.[^14]
[39] The circumstances surrounding the commission of the offence might include consideration of the offender’s role in the commission of the offence, the nature of the property and the manner in which it was used in the offence, risks to the security or safety of the community, whether the property was used in a manner that detrimentally affected its legitimate use and enjoyment, whether the property was fortified or otherwise adapted to accommodate the grow operation, the extent of the offender’s involvement in organized crime, and whether the property itself was held by a criminal organization.[^15]
[40] The criminal record of the offender will be of particular relevance if the prior offences were drug-related.[^16]
[41] If the real property is a dwelling-house, a further inquiry is mandated by s. 19.1(4), namely, the impact the forfeiture order may have on any member of the immediate family of the person charged with or convicted of the offence, if the property is and remains the family member’s principal residence.[^17]
R. v. Nguyen
[42] In Nguyen, the police discovered a moderately-sized grow operation and seized 96 marihuana plants. At the time of the search, it was apparent that there had been a recent harvest due to the presence of empty pots. A new crop of marihuana had been prepared.
[43] The Nguyens had gone to significant lengths to conceal the grow operation. The exterior front door to the residence had a metal bracket and barricade. The windows to the basement rooms containing the marihuana plants were boarded up. Lighting, irrigation and ventilation systems had been installed in the basement and air fresheners were installed on the main floor.
[44] Mr. and Mrs. Nguyen were found guilty of producing marihuana and possession of the drug for the purpose of trafficking. Mr. Nguyen owned the house where the drug was grown but lived elsewhere with his wife and their two young children. Only their 18-year-old daughter was living in the house.
[45] The trial judge imposed an 18-month conditional sentence and ordered forfeiture of the house. The British Columbia Court of Appeal upheld the order.[^18] A further appeal to the Supreme Court was dismissed.
[46] In upholding the order for full forfeiture, the Supreme Court identified, as being of particular relevance, the fact that the house had been purchased for the sole purpose of growing marihuana.[^19] The court also considered it significant that the accused lived elsewhere, which suggested that the property’s main function was as the site of a grow operation.[^20]
R. v. Ouellette
[47] The police seized 129 marihuana plants and 14 kilograms of marihuana leaves from Mr. Ouellette’s home, where he ran a grow operation. He lived in the home. After the offences in question were committed, his son lived with him in the home. The grow operation was in the basement of the home, which had specialized lighting and ventilation systems. Miscellaneous related items were found in various parts of the house, including a rifle. The building was protected by a surveillance camera.
[48] Mr. Ouellette was convicted of the production and possession of marihuana for the purpose of trafficking. The sentencing judge imposed a 10-month conditional sentence and ordered the full forfeiture of the home. The order was based on Mr. Ouellette’s profit motive, the gun and the fact he had adapted the house to be a marihuana grow operation.
[49] The Quebec Court of Appeal disagreed with the trial judge’s finding that the home was used primarily for marihuana production. It held that the house had been primarily used for living purposes. It allowed Mr. Ouellette’s appeal in part and ordered forfeiture of only half of the property. Full forfeiture was found to be disproportionate because only the basement of the home had been used for marihuana production, the circumstances were less serious than those found by the sentencing judge, the operation was not sophisticated, there were no connections to organized crime and there was no theft of electricity. Mr. Ouellette’s prior conviction for impaired driving was unrelated to the offences in question.
[50] A majority of the Supreme Court dismissed the appeal.
ANALYSIS
[51] The appellant argues that the sentencing judge erred by treating forfeiture as an aspect of the sentencing process, rather than as a discrete inquiry. I do not accept this submission.
[52] In Craig, it will be recalled, the Supreme Court determined that forfeiture should be approached independently of the broader sentencing inquiry. However, I do not think that means that the two matters must be decided in separate hearings – they must simply be decided independently of one another.
[53] In the present case, the sentencing judge first considered the forfeiture application. After reaching a conclusion on forfeiture, he turned to the matter of sentence. While the decisions on both matters are contained in the same set of reasons, the sentencing judge does not appear to have considered the forfeiture order when he decided sentence or vice versa. For example, he makes no reference to the forfeiture order when deciding whether a custodial sentence was required and, if so, its length. In the circumstances, I cannot conclude that the sentencing judge erred by failing to treat forfeiture as a discrete inquiry.
[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.
[56] Having found that the sentencing judge erred in principle in making the forfeiture order, the order cannot stand. It falls to this court to determine whether to make such an order. However, the deficiencies in the application record prevent this court from making such a determination.
[57] Section 16(1) of the CDSA provides that forfeiture of property shall be ordered where the court is satisfied that the property is offence-related. It is self-evident that the court must know what property is under consideration in order to make this first determination. In the present case, because the state of the title is unclear, it cannot be known what property is under consideration. Is the court considering a single property that consists of two parcels or, if there are separate titles for both parcels of land, is the court considering only the farm property?
[58] Further, s. 19.1(3) requires the court to consider whether the impact of an order of forfeiture would be disproportionate to the three factors set out in that provision. In order for the court to decide this matter, it must first understand the impact such an order would have. In this case, it is not possible to know what will happen if the forfeiture order is made, so it is not possible to know its impact. Even if there is a separate title for the farm property, Craig dictates that the court must consider whether the order should be for full, partial or non-forfeiture. If an order of partial forfeiture is made against the farm property, how much would it be for and how would the order be implemented? As a charge against the property? Would Mr. Van Bemmel be able to continue to live on the farm property? Would the Crown seek to have the farm property sold so it could realize on the order? If either a full or partial forfeiture order is made, what would happen to the mortgage that extends across both properties? If the impact of the order is that Mr. Van Bemmel can no longer live on the farm property, is the vacant land serviced and in a condition such that Mr. Van Bemmel could live in a trailer on it? If there is but a single property, then all of the foregoing questions and more arise, beginning with a determination of what part of the property is “offence-related”.
[59] Other practical difficulties involved in partial forfeiture orders were identified in the dissenting judgments in Craig. These include determining what percentage of the remaining interest in the real property should be forfeited,[^21] the difficulty of translating the s. 19.1(3) factors into percentages of the remaining interest,[^22] and the possibility that such an order will lead to the forced sale of the property.[^23] It seems to me that any application in which forfeiture is sought must grapple with these complexities and, if the application is to succeed, the record must offer evidence on which such matters can be fairly resolved.
[60] The Crown suggested that these types of questions and factual uncertainties should not preclude the court from ordering forfeiture and points to this court’s decision in R. v. Baldasaro, 2009 ONCA 676. I do not see that case to be of assistance to the Crown. In Baldasaro, the court ordered forfeiture of 50 per cent of the equity that the appellants had in the house in which they lived, a house which the trial judge described as “a marihuana
convenience store operated for profit”. In Baldasaro, the record made it clear why an order of 50 per cent forfeiture would be appropriate – one half of the house could be properly characterized as offence-related property. Further, the record showed how a partial forfeiture order could be realized. The mortgagee had possession of the property and had determined the value of the appellant’s equity in it. As has been pointed out, the record in the present case does not provide information sufficient to make critical factual determinations.
[61] I see no benefit in sending this matter back for reconsideration based on an enhanced Crown application record that addresses these questions and concerns. Mr. Van Bemmel has already served his custodial sentence. In Craig, at para. 67, the fact that Ms. Craig had served her sentence was noted as a reason for refusing to send the matter back for reconsideration.
[62] Furthermore, a consideration of the factors in s. 19.1(3) indicates that a forfeiture order – whether partial or full – would have a disproportionate impact in the circumstances of this case.
The First Factor – the Nature and Gravity of the Offence
[63] Abella J. indicates in Craig[^24] that under this factor, the court should consider the character and quantity of the substance involved, the level of sophistication of the crime, and the extent to which commercial production or distribution of drugs was involved.
[64] In the present case, the offences involved marihuana, a drug which is considered less serious than others. Mr. Van Bemmel’s “grow op” was not sophisticated in that no alterations were made to the property, such as the installation of industrial heating and lighting systems or security cameras. Further, as the sentencing judge noted, Mr. Van Bemmel had not organized his affairs so as to avoid detection, such as by using rented property. On the other hand, the quantities of marihuana involved are significant.
The Second Factor – the Circumstances Surrounding the Commission of the Offence
[65] A consideration of the relevant circumstances surrounding the commission of the offence, as identified by Abella J. in Craig[^25], weighs against forfeiture. Mr. Van Bemmel’s role was to grow the marihuana – he was not the mastermind of the scheme nor was he the person responsible for distribution of the drug. He purchased the farm property decades before committing the offences as a home for himself and his family, not for the purpose of growing marihuana. He lived on the property. Unlike all of the cases in the trilogy, he made no alterations to the land or the buildings in furtherance of the offences. While Mr. Van Bemmel had been recruited by an unknown person or persons, there was no evidence of any link between Mr. Van Bemmel and organized crime. The vast majority of the residence and farm property was used for purposes unrelated to the marihuana grow operation. There was no use of the property in a manner that detrimentally affected its legitimate use and the property posed no risk to the safety or security of the community.
The Third Factor – the Offender’s Criminal Record
[66] In my view, the sentencing judge correctly considered the appellant to be without a criminal record, since his convictions for firearms offences arose out of the same set of circumstances.
DISPOSITION
[67] Accordingly, I would allow the appeal and set aside the forfeiture order.
RELEASED:
“APR 14 2010” “E.E. Gillese J.A.”
“KF” “I agree K. Feldman J.A.”
“I agree Robert J. Sharpe J.A.”
[^1]: As discussed below, there is some confusion over the size of the farm property. [^2]: Apparently Mr. Van Bemmel and his then wife bought the farm property in 1989 but the transfer deed in the record is dated 1991. [^3]: There was no suggestion that the appellant intended to sell the marihuana on the street. [^4]: The municipal tax records show the vacant property to be 96.68 acres. The Crown suggests it is 150 acres in size, based on the affidavit evidence of D.C. Bhaba. The appellant estimated it to be 90 acres in size. [^5]: The mortgage is not contained in the record. [^6]: However, the transfer attached to the affidavit is only for the farm property. [^7]: (2007), 2007 BCCA 234, 218 C.C.C. (3d) 510. [^8]: Craig, at paras. 3 and 40, Abella J. (Binnie and Deschamps JJ. concurring), and paras. 69 and 77, McLachlin C.J. and Rothstein J. [^9]: Ibid., at paras. 25-26. [^10]: Ibid., at para. 40. [^11]: Ibid., at paras. 50-51, Abella J. (Binnie and Deschamps J.J. concurring), and para. 89, LeBel J. [^12]: Ibid., at para. 55. [^13]: Ibid., at para. 25. [^14]: Ibid., at para. 56. [^15]: Ibid., at para. 57. [^16]: Ibid., at para. 58. [^17]: Ibid., at para. 27. [^18]: (2007), 2007 BCCA 474, 246 B.C.A.C. 263. [^19]: Nguyen, at para. 12. [^20]: Ibid., at para. 13. [^21]: Craig, at para. 76 (per McLachlin C.J. and Rothstien J.). [^22]: Ibid. at para. 77. [^23]: Craig, at para. 116 (per Fish J.). [^24]: At para. 56. [^25]: At para. 57,