COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tran, 2016 ONCA 534

DATE: 20160706

DOCKET: C58987

Pepall, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Uyen Tu Tran

Appellant

M. Mark Fahmy, for the appellant

Stephen Dawson, for the respondent

Heard: June 15, 2016

On appeal from the order of Justice Casimir N. Herold of the Superior Court of Justice, dated May 29, 2014.

ENDORSEMENT

[1] The appellant appeals the dismissal of her application for post-forfeiture relief under s. 20 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19,(“CDSA”), for a property she jointly owned with her husband in Puslinch, Ontario.

[2] For the following reasons, the appeal is dismissed.

Background

[3] After the execution of general warrants at the Tran family home and an unoccupied Puslinch property that uncovered about 550 marijuana plants, the appellant and her husband were both charged with two counts of production of marijuana and possession of marijuana for the purpose of trafficking.

[4] The Crown and the Trans engaged in resolution discussions. Mr. Tran and the appellant had separate counsel, and a standing agent for the Public Prosecution Service represented the Crown. It was agreed that Mr. Tran would plead guilty and that the Crown would withdraw the charges against the appellant in exchange for her agreement to not make submissions at the Crown’s forfeiture proceeding. At the time, the appellant’s counsel, who is not the same counsel as on appeal, understood that there was a real possibility that she would be convicted based on the surveillance evidence and the contents of the properties and that she likely would have been facing a custodial sentence had she been convicted at trial.

[5] The resolution went ahead. Mr. Tran pleaded guilty. He was sentenced to nine months’ imprisonment. The Crown brought its forfeiture application. That application resulted in 50 percent of the Tran family home, and the entire Puslinch property – which was found to have been purchased and used exclusively as a marijuana growing operation – being forfeited to the Crown. Of note, when considering the gravity of Mr. Tran’s offences, the forfeiture judge stated that “Mr. Tran was solely involved in these operations.” The appellant made no submissions at the Crown’s forfeiture proceeding. Afterwards, the Crown withdrew all charges against her.

[6] After the charges against her were withdrawn, the appellant brought an application for post-forfeiture relief under s. 20 of the CDSA 8.5 months after the forfeiture order. She sought a declaration that her interest in the Puslinch property was not affected by the forfeiture order. She did not challenge the forfeiture order relating to the Guelph residence. To further her submission that the resolution deal constituted a miscarriage of justice, evidence from the lawyer who represented her at the resolution discussions was adduced on consent. Her application was dismissed.

[7] She now appeals. She argues that she met her burden for post-forfeiture relief. She also renews her submission that the resolution deal caused a miscarriage of justice. For the first time, she argues that her s.7 and s.12 rights under the Charter were contravened.

Discussion

[8] In our view, there is no merit to this appeal.

[9] First, the application judge was precluded from granting post-forfeiture relief based on his finding that the appellant was fully complicit in the designated substance offence underlying the forfeiture order. Section 20(4)(a) of the CDSA provides that a judge may only grant post-forfeiture relief if she or he is satisfied that the applicant “appears innocent of any complicity in any designated substance offence that resulted in the forfeiture of the property or of any collusion in relation to such an offence.”

[10] The application judge’s finding of complicity was well-supported by the record before him. The appellant was the joint owner of both properties, she and her husband were found on one of the properties at the time of the investigation, and something other than employment income enabled them to purchase the Puslinch property. She chose not to swear an affidavit or to give evidence at the hearing although expressly given the opportunity to do so. In addition, on consent, her former counsel gave evidence that the appellant was aware of the marijuana grow operations at both properties and hoped that the money generated would assist both her and her husband.

[11] The application judge was entitled to make that a finding of complicity despite the forfeiture judge’s statement that “Mr. Tran was solely involved in these operations.” Read in context, this comment was referable to the limitations of Mr. Tran’s conduct, not the exclusion of the appellant’s.

[12] Second, the appellant suffered no prejudice from the resolution deal – she was not entitled to relief at the Crown’s forfeiture proceeding anyway since she was a person charged with that designated substance offence and was complicit. Rather than the “deal with the devil” that the appellant claims it to have been, it would seem that the resolution was one-sided in the appellant’s favour. She appears to have obtained a withdrawal of the charges against her, eliminating a very real risk of incarceration, in exchange for no consideration on her part. There was no miscarriage of justice or cruel and unusual treatment or punishment.

[13] Lastly, s.7 and 12 of the Charter were not raised before either the forfeiture judge or the application judge. The record does not support any such disposition.

Disposition

[14] Accordingly, the appeal is dismissed.

“S.E. Pepall J.A.”

“M. Tulloch J.A.”

“G. Pardu J.A.”