COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Pammett, 2015 ONCA 14
DATE: 20150114
DOCKET: C56317/C56318
Laskin, Pepall and Pardu JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Robert Pammett and Emmie Pammett
Appellants
Ravin Pillay, for the appellant Robert Pammett
Marie Comiskey and Yael Pressman, for the respondent
Heard: May 8, 2014
On appeal from the order of Justice Michael F. Brown of the Superior Court of Justice dated October 30, 2012.
Pepall J.A.:
[1] The appellant, Robert Pammett, was a drug dealer. He lived in a house on 2.8 acres of land in Peterborough. He also sold and stored drugs there. A wired undercover officer purchased cocaine from him at the house. This resulted in three convictions for trafficking cocaine and one for possession of cocaine for the purposes of trafficking. On March 26, 2008, in the face of an anticipated forfeiture application by the Crown, management and control of the property was transferred to the Crown by court order pursuant to ss. 14(3) and 14.1 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”).
[2] Subsequently, the application judge granted a full forfeiture order to the Crown. The appellant appeals this order and advances three arguments in support of his position. He submits that in granting a full forfeiture order, the application judge erred: (i) in characterizing the property as a fortified drug property or compound; (ii) in placing limited emphasis on the valuation evidence and in improperly relying on that of the Crown’s expert; and (iii) in failing to consider the impact of the damage caused to the property by the Crown.
[3] For the reasons that follow, I would dismiss the appeal.
[4] Given my view that the application judge did not err in imposing a full forfeiture order, it is unnecessary to address the appellant’s alternative submission that based on the record and R. v. Van Bemmel, 2010 ONCA 276, 253 C.C.C. (3d) 284, a partial forfeiture order was also unavailable.
Facts
(i) The Appellant
[5] The appellant was born on January 15, 1950. Between 1981 and 2002, he was convicted of 14 offences. These included three drug-related offences, two of which were possession of a narcotic for the purpose of trafficking. The appellant, by his own admission on wiretaps, had been a “gangster his whole life”, known “25 years of crime on the streets”, had been in the drug trade for “a long time”, and had been in “organized crime for 20 years”. Indeed, he was an established commercial distributor of cocaine at the top of the drug hierarchy in Peterborough. To quote the application judge:
He has “a stock of two kilos [of cocaine] at all times, so that is basically 70 ounces in stock” [a]lthough recently he has “slowed down to one kilo”. He has long cultivated entrenched connections to criminal groups involved in the drug trade that extend to Toronto.
[6] As admitted by the appellant in his cross-examination at the forfeiture hearing, he was a member of the Toronto chapter of the Bandidos motorcycle club from 2003 until 2006 when the chapter ceased to exist as a result of the execution of its members. At the time of the offences which were the subject matter of his conviction, the appellant was actively making efforts to resurrect the Bandidos in Ontario.
(ii) The Property
[7] The property in issue in this appeal is located in Peterborough. The appellant bought a vacant lot in 1988 for $120,000. A two-storey, 4,160 square foot house was built on the lot in 1989. It consists of eight rooms, four bedrooms, four bathrooms, a basement, an indoor swimming pool, and a four car garage.
[8] In 1990, the appellant, his common-law wife, Bev Dunk, and their three children moved into the house.
[9] In 1993, the appellant decided to put the property in the name of Big Rot, a company he had established to benefit his children. He testified that he did this to place the house beyond the reach of his now estranged wife.
[10] In 1995, the appellant moved to the Niagara region but Ms. Dunk and the three children remained in the house. In 2000, the appellant’s son, Allen, moved out of the house as he was incarcerated.
[11] From 2003 to 2005, the house was vacant. The appellant would return to the property from time to time to perform general maintenance.
[12] In 2005, the appellant moved back into the house with his new common-law wife, Wanda Witkowski, and his children Robbie and Cherie. Two more children were born in 2005 and 2007 respectively.
[13] The appellant gave his mother, Emmie Pammett, a life interest in the property in September 2000. Emmie Pammett conceded that although the registry documents indicated that she purchased the property for $252,000, she did not in fact pay any money for the property. As of 2003, the appellant was registered on title as the owner of the property. A mortgage in favour of Big Rot in the amount of $140,000 was also registered on title.
[14] Emmie Pammett died on August 23, 2013.
[15] The property was roughly pie-shaped. The Otonabee River formed a natural barrier on the north and west sides of the property. A six-foot high chain-link fence secured the south and east sides of the property. The entrance to the property had a large steel double gate with a video camera. A second surveillance camera sat camouflaged, perched in a bird’s nest near the house. Three large Mastiff dogs were on the property.
[16] The front door of the house was boarded up with an interior steel bar assuring no entry. The side door was steel and sat in a steel frame with a dead-bolt. Steel bars crossed the basement windows. The ground floor windows were boarded or barred. Surveillance cameras lined the interior of the house. The video feed for the surveillance cameras ran to monitors on a shelf in the appellant’s master bedroom on the second floor of the house. There was also a sensor alert to advise the appellant if anyone approached the door at night.
(iii) The Offences
[17] The appellant pled guilty to three counts of trafficking cocaine and one count of possession of cocaine for the purposes of trafficking contrary to ss. 5(1) and (2) of the CDSA. The Crown and the defence tendered an agreed statement of facts. It described three cocaine transactions involving one, four, and ten ounce purchases from the appellant by an undercover officer. All took place at the house on the property. The first transaction occurred in early October 2007.
[18] On October 10, 2007, the undercover officer attended at the property. The appellant’s wife, Ms. Witkowski, met the officer at the end of the gated driveway and granted him access to the property. He was invited into the house and had a conversation with the appellant, Ms. Witkowski, and the nanny. The appellant and the officer discussed future cocaine transactions and price. The appellant told the nanny not to let anyone into the house.
[19] On October 17, 2007, the appellant and the officer met at a Tim Horton’s restaurant in Peterborough and the officer ordered two ounces of cocaine. The appellant told the officer to come to his residence in two hours. The officer attended at the property. The appellant’s daughter, Cherie, met him in the driveway, escorted him into the house, and brought him into the living room where the appellant was seated on a couch with weighing scales and powdered cocaine on a table in front of him. The officer indicated that he felt nervous about transporting the cocaine. The appellant offered his daughter Cherie as a means of transporting the cocaine and his daughter expressed her willingness to assist. The appellant then sold one ounce of cocaine to the officer for $1,400.
[20] On October 25, 2007, the officer called the appellant and subsequently attended at the property. Ms. Witkowski again met the officer at the end of the gated driveway. She unlocked the gate and escorted him into the house where he discussed how to place an order of cocaine with the appellant using a code.
[21] On October 26, 2007, the two men met at the officer’s apartment. However, the appellant did not bring the four ounces of cocaine that the officer requested. The appellant told the officer to attend at the residence to pick up the cocaine. The officer did so and was brought into the living room area. Ms. Witkowski was present. The appellant had a white plastic bag in hand and advised the officer that it was a newly opened “key” referring to a kilogram of cocaine. The officer bought four ounces of cocaine from the appellant for $5,200. Ms. Witkowski assisted by obtaining extra baggies and scales and by counting the money.
[22] On October 29, 2007, the officer called the appellant at his residence and the next day they met at the officer’s apartment. The officer indicated that he needed to purchase more cocaine and the appellant advised that he normally had a stack of cocaine on hand.
[23] The third transaction took place on November 9, 2007. On this occasion, both Ms. Witkowski and Cherie were present. The appellant sat behind the coffee table in the living room. Using a digital scale, he weighed ten baggies of cocaine. Ms. Witkowski counted the $13,000 paid by the officer for ten ounces of cocaine and Cherie stared out the window and relayed descriptions of vehicles driving by the residence.
[24] On March 26, 2008, the appellant was arrested along with Ms. Witkowski, Cherie, his son Robert, and the nanny. The police found cash in the master bedroom under the mattress and in a safe in the hallway. In total, it amounted to $2,265 and US$260.
[25] The agreed statement of facts also described the discovery of 30 clear sandwich baggies each containing between 21.4 grams and 29.4 grams of cocaine (consistent with individual quantities amounting to approximately one ounce). In total, the baggies weighed 832.8 grams. The baggies were hidden in the main floor front foyer wall. They had packaging that was virtually identical to that used for the ten ounce sale that comprised the third transaction. The cocaine was found in a hollowed-out cache that was covered with wallpaper and situated 15 to 20 feet above the ground.
[26] On March 26, 2008, Justice O’Marra of the Superior Court of Justice granted a Restraint and Management Order transferring management and control of the property to the Crown pursuant to the CDSA.
[27] On March 12, 2010, the appellant pled guilty to three counts of trafficking cocaine and one count of possession of cocaine for the purpose of trafficking. Nine other charges were withdrawn by the Crown. The appellant and the Crown made a joint submission and tendered the agreed statement of facts. On March 26, 2010, the appellant was sentenced to a global custodial sentence of four years’ with credit being given on a two for one basis for his two years of pre-trial custody.
(iv) The Forfeiture Application
[28] The Crown brought an application to forfeit the appellant’s property pursuant to the provisions of the CDSA. The application was heard over the course of six days. Although family members who had formerly resided at the property and Big Rot received notice of the proceedings, only the appellant and his mother participated or expressed any interest in the forfeiture application.
Applicable Law
[29] To place this appeal in context, it is helpful to consider both the CDSA itself and Supreme Court jurisprudence on the subject of forfeiture.
(i) Statutory Provisions
[30] Part II of the CDSA is entitled “Enforcement” and has three subsections, which together comprise the forfeiture regime under the CDSA. The first subsection, entitled “Search, Seizure and Detention”, authorizes the issuance of warrants for search and seizure of offence-related property, controlled substances, and other evidence. The second subsection, entitled “Restraint Orders”, authorizes the issuance of restraint orders to prevent others from dealing with, or disposing of, seized property other than in accordance with the terms of the order. It also provides for management orders to authorize the Crown to manage seized property. The Restraint and Management orders stay in place until a final forfeiture order is made or the property is returned. The third subsection, entitled “Forfeiture of Offence-Related Property”, authorizes a court to order forfeiture of the seized property and sets out the considerations to be taken into account in arriving at such an order.
[31] A summary of the forfeiture scheme is described in Clayton C. Ruby, Gerald J. Chan, and Nader R. Hasan, Sentencing, 8th ed. (Markham: LexisNexis, 2012), at pp. 710-711:
Forfeiture of property is mandatory under section 490.1(1) of the Criminal Code or section 16(1) of the CDSA if the Crown discharges its onus of establishing on a balance of probabilities that the property is offence-related property and that the offence was committed in relation to that property. The general principles and objectives of sentencing set out in part XXIII of the Criminal Code are not applicable in determining whether to make a forfeiture order. The statutory scheme governing forfeiture orders and relief from them constitutes a “complete code”.
Only two types of offence-related property may be safe from forfeiture from the Crown under the CDSA: dwelling houses (section 19.1(4) of the CDSA) and real property for which the court is satisfied that the impact of forfeiture would be disproportionate (section 19.1(3) of the CDSA). [Footnotes omitted.]
[32] Subsection 19(3) permits the court to return property to an innocent third party who is the lawful owner or lawfully entitled to possession of all or part of the property. Section 20 also offers relief to innocent third parties, such as mortgagees, who claim an interest in the property. Section 20 is the only forfeiture provision that expressly refers to value under the “Enforcement” section of the CDSA.
[33] The statutory provisions that are applicable to this appeal are ss. 16(1) and 19.1 of the CDSA. Subsection 16(1) states:
- (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.
[34] In this case, the two criteria in s. 16(1) are clearly met: the property was offence-related and the offences were committed in relation to that property.
[35] The issues on this appeal turn on s. 19.1, and in particular, s. 19.1(3) of the CDSA. Section 19.1 states:
19.1 (1) Where all or part of offence-related property that would otherwise be forfeited under subsection 16(1) or 17(2) is a dwelling-house, before making an order of forfeiture, a court shall require notice in accordance with subsection (2) to be given to, and may hear, any person who resides in the dwelling-house and is a member of the immediate family of the person charged with or convicted of the indictable offence under this Act in relation to which the property would be forfeited.
(2) A notice shall
(a) be given or served in the manner that the court directs or that may be specified in the rules of the court;
(b) be of any duration that the court considers reasonable or that may be specified in the rules of the court; and
(c) set out the offence charged and a description of the property.
(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.
(4) Where all or part of the property that would otherwise be forfeited under subsection 16(1) or 17(2) is a dwelling-house, when making a decision under subsection (3), the court shall also consider
(a) the impact of an order of forfeiture on any member of the immediate family of the person charged with or convicted of the offence, if the dwelling-house was the member’s principal residence at the time the charge was laid and continues to be the member’s principal residence; and
(b) whether the member referred to in paragraph (a) appears innocent of any complicity in the offence or of any collusion in relation to the offence.
[36] Offence-related property is broadly defined in s. 2(1) of the CDSA to include:
any property, within or outside Canada,
(a) by means of or in respect of which a designated substance offence is committed,
(b) that is used in any manner in connection with the commission of a designated substance offence, or
(c) that is intended for use for the purpose of committing a designated substance offence;
[37] Commission of a designated substance offence includes trafficking in cocaine and possession of cocaine for the purpose of trafficking.
(ii) Supreme Court of Canada Jurisprudence
[38] In 2009, the Supreme Court of Canada released a trilogy of cases on the forfeiture of offence-related property pursuant to s. 19.1(3) of the CDSA: R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762; 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.
[39] In Craig, the majority opinion was written by Abella J. She held, at para. 48, that the “forfeiture factors found in s. 19.1(3) … should … be seen to constitute a complete code for deciding whether, and to what extent, a forfeiture order should be made”. These factors, which she collectively called the “proportionality test”, allow a court to tailor the amount of property to be forfeited in a way that takes into account the relative weight of the listed factors. In addition, forfeiture is to be treated as an inquiry distinct from sentencing. At paras. 56-60, Abella J. provided principles to guide lower courts on the application of the three-part proportionality test:
What, then, should a judge consider under s. 19.1(3)? 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.
The second factor, 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.
The criminal record of the offender is self-explanatory. It will be of particular relevance if the prior offences were drug related.
[40] Abella J. determined that a judge has discretion to order no forfeiture, partial forfeiture, or full forfeiture of offence-related real property. She provided examples at para. 59:
Full forfeiture may be anticipated, for example, in the case of a fortified property purchased for criminal purposes and solely dedicated to the commercial production and distribution of illegal substances, perhaps with a connection to organized crime. On the other hand, one might decline to order forfeiture in the case of an individual with no criminal record and no connection to organized crime who grows very little marihuana in her home. Each situation will be subject to a judge’s appreciation of how the s. 19.1(3) factors should be applied in the particular circumstances, which, as previously stated, may result in no, partial or full forfeiture.
[41] She noted that while the forfeiture scheme is not aimed strictly at defeating organized crime, involvement in organized crime is a relevant factor in applying the proportionality test under s. 19.1(3).
[42] McLachlin C.J. and Rothstein J., concurring in part, were of the view that partial forfeiture was unavailable under the CDSA’s forfeiture regime. Justices Fish, dissenting in part, and Lebel, concurring in part, stated that forfeiture should not be treated as an inquiry distinct from sentencing.
[43] In Nguyen, the Supreme Court was unanimous that full forfeiture was justified. The marijuana grow operation was moderately sized but sophisticated; there was some evidence of fortification; the house was likely bought for the sole purpose of growing marijuana; and, while an 18 year old daughter resided in the house, the rest of the family lived elsewhere. The two offenders, a couple, did not have criminal records nor any ties to organized crime.
[44] In Ouellette, the Supreme Court again split, with the majority upholding the Quebec Court of Appeal’s 50 per cent forfeiture order. In that case, the offender lived on the property which was used for a marijuana grow operation. His criminal record was limited to an impaired driving conviction, which was irrelevant to the proportionality analysis. A gun and a makeshift surveillance system were found on the property. The dissent would have reinstated the trial judge’s order of full forfeiture based on its holding in Craig that partial forfeiture was unavailable as a matter of law.
(iii) The Applicable Test
[45] Based on this jurisprudence, the test under s. 19.1(3) of the CDSA may be described as follows:
- Would the impact of a full forfeiture order be disproportionate, having regard to the three statutory factors: i) the nature and gravity of the offence; ii) the circumstances surrounding the commission of the offence; and iii) the criminal record of the offender?
- If all or part of the property is a dwelling house, consideration must be given to the provisions of s. 19.1(4)(a) and (b).
- If the impact of a full forfeiture order would be disproportionate, should either no or partial forfeiture be ordered?
The Application Judge’s Decision
(i) [Section 16(1)](https://www.canlii.org/en/ca/laws/stat/sc-1996-c-19/latest/sc-1996-c-19.html) of the [CDSA](https://www.canlii.org/en/ca/laws/stat/sc-1996-c-19/latest/sc-1996-c-19.html)
[46] In his reasons, the application judge concluded that there was no real issue that the property was offence-related property and that the offences were committed in relation to that property, as contemplated by s. 16(1) of the CDSA. The entirety of the property was fortified and the entirety of the property facilitated the commission of drug offences.
(ii) Proportionality Analysis
[47] The application judge then turned to the proportionality analysis contemplated by s. 19.1(3) of the CDSA. He acknowledged that a judge could order full, partial or no forfeiture and that he had to 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 appellant’s criminal record.
[48] The application judge noted that the appellant’s statements on the wiretaps differed substantially from the evidence he gave on the forfeiture application. He rejected the evidence of the appellant that he was not involved in the sale of drugs or in organized crime and concluded that the wiretaps represented a more accurate description of the appellant’s activities on the property and his lifestyle in organized crime. He found that the appellant’s description of the security modifications on the wiretaps accurately described the real motivation for the enhanced security measures. He found that they were to avoid detection by the police and the appellant’s unfriendly rivals in the drug trade.
[49] Of the enumerated factors in s. 19.1(3), he first considered the nature and gravity of the offences and noted that:
- the appellant trafficked multiple ounces of Grade A cocaine straight from the key, that is, from the kilogram or brick of cocaine;
- he always had a stock of cocaine on hand;
- the police found 30 pre-packaged bags of cocaine ready for sale hidden in the wall of the appellant’s house;
- the appellant directed the officer to attend at the property each time the appellant sold cocaine to him;
- the property was fortified and barricaded;
- the appellant was at the top of the Peterborough drug hierarchy and connected to organized crime; and
- much harm was done to the community as a result of trafficking in cocaine.
[50] The application judge then addressed the next s. 19.1(3) factor, the circumstances surrounding the commission of the offences. He found that the appellant was the head and directing mind of the family criminal organization operating out of the property. He stated that the appellant had his wife assist by fetching extra baggies and scales and by counting the officer’s money. The appellant also had his daughter stand watch on one occasion and also volunteered her to the officer as a means of transporting the cocaine on another. The application judge found that the appellant maintained a stock of cocaine and was an established commercial distributor of cocaine at the top of the drug hierarchy in Peterborough. He also found that the property was a fortified drug property. At the time of the offences the appellant was actively making efforts to resurrect the Bandidos in Ontario. A loaded restricted firearm was found on the property after the appellant’s arrest.
[51] The application judge also described more fully the harm and human suffering caused by the appellant’s drug trade and criminal activities conducted from the property. This included the threat of violence and crime, and the direct harm caused to a cocaine user and the community at large.
[52] The application judge then considered the third s. 19.1(3) factor, the appellant’s criminal record. Apart from the four recent convictions, it consisted of 14 convictions. They included crimes of violence, forcible entry, extortion, assault with a weapon, crimes of dishonesty, obstruct justice, fraud, perjury, and three drug related offences. The appellant had twice been convicted of possession of a narcotic for the purpose of trafficking. He received a three year penitentiary sentence for one of those offences.
[53] Next, the application judge addressed s. 19.1(4) of the CDSA, that is, the impact that a forfeiture order would have on family members of the appellant who resided at the house at the time of the offences and who continued to reside there. He noted that the subsection mandated consideration of whether the family members appeared to be innocent of complicity or collusion.
[54] The application judge determined that s. 19.1(4) had little relevance to the proportionality analysis in this case. There was no displacement of the family as a result of the Restraint and Management Order. The appellant’s two young children resided in Niagara with Ms. Witkowski, who had custody of them. The appellant’s adult children were convicted offenders and neither they nor Ms. Witkowski had expressed any interest in the property. None participated in the forfeiture proceedings.
[55] The application judge noted the draconian effect of a forfeiture order in relation to real property but was satisfied on a balance of probabilities that a full forfeiture order would not have a disproportionate impact.
[56] The application judge determined that the value of the property subject to forfeiture should not be over-emphasized, determinative, or decisive. He observed that the main focus of the forfeiture inquiry is on the property itself and its role in past and future crime. That said, if a value were to be placed on the property, he preferred the evidence of value of Ms. Salt, a real estate appraiser called by the Crown, to that of Mr. McCullough, a licensed real estate agent who was called by the defence.
[57] Ms. Salt had testified that the property was on a flood plain and was 80 to 90 per cent water logged. She stated that the property was under the jurisdiction of the Otonabee Region Conservation Authority (“ORCA”) and therefore required a permit for construction or repairs. Based on her conversations with ORCA and the City of Peterborough, she concluded that they would not approve the requisite permits to rebuild the house. Even if she had not had such discussions, her opinion was that, given its flood plain location, the house did not add value. She appraised the property as having a value of $170,000 as of April 2008 and $229,500 as of October 2011.
[58] The application judge stated that he had real concerns about the evidence of Mr. McCullough. Using a comparative market approach, but with no comparable sales, he valued the land at $500,000, and the house at $250,000 for a total value of $750,000. Mr. McCullough was unaware of the City’s order prohibiting occupancy and of an unsafe building order. These orders had resulted from improper building techniques, non-compliant construction conducted after required inspections, and use and lack of maintenance. While Mr. McCullough agreed that the fact of the orders would affect his opinion of value, he was unable to assign a revised value without further study.
[59] As for any damage to the property, in March 2008, the Seized Property Management Directorate (“SPMD”) was appointed to manage and control the property pursuant to a court order. Any damage that may have been occasioned to the property by the police or SPMD was both judicially authorized and reasonable in the circumstances. As of March 2012, SPMD had spent in excess of $150,000 to maintain and secure the property since March 2008. The application judge stated that: “[A]ny remaining damages complained of such as holes in the wall and other broken items are relatively minor and cosmetic especially in the context of a residence constructed using structurally unsafe building practices in the midst of a flood plain.”
[60] Furthermore, the appellant had never sought to vary or challenge the order; the property was clearly offence-related and forfeiture was mandated unless the proportionality assessment was satisfied. The application judge observed that the circumstances of the offender are excluded from that analysis and any prejudice occasioned by the Restraint and Management Order should not be considered to be part of the proportionality assessment.
(iii) Emmie Pammett’s Interest in the Property
[61] Lastly, the application judge found that Emmie Pammett was firmly in the control of her son, the appellant, and she admitted that the Big Rot mortgage was a fiction. She was complicit in the drug dealing that occurred on the property in that she was wilfully blind to the appellant’s unlawful activities and facilitated those activities. Alternatively, she was his agent. The application judge declined to exercise his discretion to exempt her from the forfeiture order.
Grounds of Appeal
(a) Emmie Pammett
[62] Originally, the appellant and Emmie Pammett took the position that the application judge had erred in awarding full forfeiture to the Crown given Emmie Pammett’s interest in the property.
[63] Emmie Pammett had a life interest in the property. She died in August 2013 and the issue relating to this interest is therefore moot. In any event, her appeal was abandoned.
(b) Full Forfeiture Order
[64] As mentioned, the appellant submits that the application judge erred in imposing a full forfeiture order and relies on three arguments in support of his position.
Analysis
(i) Characterization of Property
[65] The appellant submits that the application judge mischaracterized the property as a fortified drug property or compound for the purposes of making a full forfeiture order. He argues that there was nothing nefarious about the characteristics of the property: it was purchased for use as a residence and had been used for that purpose since 1989. Furthermore, there was limited evidence linking the property to the distribution of illegal substances.
[66] I disagree.
[67] It was open to the application judge to find that the property was a “fortified drug property”[^1] given the evidence that included: six-foot high fencing, a steel gate, video cameras and monitors, boarded and barred windows and doors, steel bars, and Mastiff dogs. Additionally, the appellant’s admissions, his and his family members’ conduct in the cocaine transactions, and the subsequent discovery of an unregistered gun on the property all supported the application judge’s finding. These facts were unlike those in R. v. Baldasaro, 2009 ONCA 676, 265 O.A.C. 75, which involved marijuana sales confined to one floor of a property that included a personal residence and where there was no evidence of any connection to organized crime.
[68] In addition, all of the trafficking transactions took place at the property and 30 pre-packaged baggies of cocaine were found hidden in the upper wall of the front hall foyer of the house.
[69] In citing R. v. Sundstrom, 2013 BCCA 244, 338 B.C.A.C. 202, the appellant suggests that a property purchased and used as a family home cannot be subject to full forfeiture. This is incorrect. Parliament expressly recognized that all or part of property that would otherwise be forfeited could be a dwelling-house and provided for this possibility in s. 19.1(4). Thus, the fact that a property was purchased or used as a home does not preclude an order of full forfeiture.
[70] Based on the totality of the evidence, it was open to the application judge to make the finding he did.
[71] Moreover, the proportionality analysis is highly contextual and other factors weighed in favour of a full forfeiture order. These included the appellant’s role in organized crime, his criminal record, his trafficking of cocaine, and the ensuing endangerment to the safety and security of the Peterborough community.
[72] As held in R. v. Tremblay, 2014 QCCA 690, at para. 384, absent an error in principle, the application judge is entitled to deference in conducting the proportionality analysis.
[73] I would not give effect to this ground of appeal.
(ii) Valuation Evidence
[74] The appellant submits that the application judge erred in placing limited emphasis on the valuation evidence and in relying on the evidence of Ms. Salt.
[75] The Crown submits that on an application for full forfeiture, value is an irrelevant factor. Subsections 19.1(3) and (4) of the CDSA do not list value as a consideration to determine whether full forfeiture is proportionate. Neither does the Supreme Court of Canada’s jurisprudence, including Craig, which describes s. 19.1(3) as constituting a complete code to decide whether and to what extent a forfeiture order should be made. In the alternative, the Crown submits that in any event, the application judge did not err in his treatment of the evidence and in preferring Ms. Salt’s evidence over Mr. McCullough’s.
[76] For the purposes of this appeal, the relevance of value need not be decided.
[77] The application judge determined that value was neither determinative nor decisive but that if a value was to be placed on the property, it was closer to Ms. Salt’s value than Mr. McCullough’s. Ms. Salt’s evaluation was based on land value alone and she disregarded the residence. The foundation for her opinion of value was the residence’s location on the flood plain. The residence was built on water logged property and, as found by the application judge, was not habitable. The application judge also had concerns with Mr. McCullough’s evidence. Even though his opinion was based on a comparative market analysis, Mr. McCullough had failed to find any comparable sales. He also was unaware of the unsafe building order and the City’s order prohibiting occupancy. The application judge considered Ms. Salt’s evidence to be more persuasive. On the record, it was open to him to reach that conclusion. I see no error in either his analysis or his findings in this regard.
(iii) Damage Caused to the Property
[78] Given that Ms. Salt’s opinion of value was based on land value alone, no prejudice was caused to the appellant from any damage caused to the property. It will await another case to determine whether the Minister should be held responsible for any decrease in value of property under his or her care pursuant to a Restraint and Management Order under the Seized Property Management Act, S.C. 1993, c. 37.
Disposition
[79] The appellant has not demonstrated that the application judge erred in his proportionality analysis or in concluding that full forfeiture was appropriate. I would dismiss the appeal.
Released:
“JAN 14 2015” “S.E. Pepall J.A.”
“JL” “I agree John Laskin J.A.”
“I agree G. Pardu J.A.”
[^1]: The application judge did not refer to the property as a “fortified drug compound” as stated by the appellant.