Court of Appeal for Ontario

Date: 2019-04-12 Docket: C64922

Judges: Benotto, Brown and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

2095540 Inc. and Dan Carley Appellant

Counsel

Dan Carley, in person Philip B. Norton, duty counsel James D.M. Clark, for the Crown

Heard: April 9, 2019

On Appeal

On appeal from the sentence imposed on August 3, 2016 by Justice Joseph R. Henderson of the Superior Court of Justice.

Appeal Book Endorsement

[1] The application judge said at para. 94 that he "declined to consider the issue of proportionality". The Crown submits that – nonetheless – the factual findings make it clear that forfeiture was the only available result.

[2] We do not agree.

[3] The application judge was required to consider proportionality in accordance with s. 19.1(3). In the event that the judge erred, the Crown urged this court to conduct our own proportionality analysis. The factors to be considered, as required by R. v. Craig, 2009 SCC 23, are several and we are not in a position to do so.

[4] The appeal is allowed and a new hearing on forfeiture is ordered.