Ontario Court of Justice

Between:

HER MAJESTY THE QUEEN Applicant

— AND —

THOMAS GRANT PENDLETON and THOMAS URIAH PENDLETON Respondents

Before: Justice D.B. Maund

Heard on: May 17, 2013

Counsel:

• Ms. M. Balogh — counsel for the Crown/Applicant
• Mr. L. Haskell — counsel for Respondents, Thomas Grant Pendleton and Thomas Uriah Pendleton

Reasons for Decision: Forfeiture Application by the Crown

Maund, J.:

Introduction

[1] The Crown has brought an Application seeking forfeiture of equipment described as a New Holland T6050 Tractor and F250 Loader attached bearing VIN ZB8D00785 pursuant to Section 490.1 of the Criminal Code of Canada.

[2] The Respondent, Thomas Grant Pendleton is the convicted party who was the original subject of proceedings under the Criminal Code in relation to the tractor. Thomas Uriah Pendleton is the father of the first named Respondent (hereinafter referred to as "the offender"), and participated in this hearing as a party with a potential ownership interest in this equipment. While not formally served or participating in this hearing as a party, it is agreed that the tractor is subject to a conditional sales contract with National Leasing Group Inc. Counsel on behalf of the lien holder indicated to the Crown they would not participate in the hearing on the understanding that the interest of their client be protected by the Crown in the event of a forfeiture Order which proceeds to sale.

[3] Documents on behalf of the lien holder were filed which indicated that at February 28th, 2013, their interest in the tractor and loader stood at $42,191.37. The lien registration and contract documents are found at Tab 6 of the Crown's brief (Exhibit '1') and indicate that the registration and original lease contract show the lessee as Thomas G. Pendleton. The father of the offender testified that he was aware that the contract was in the name of his son. Nevertheless, as I understood his evidence, he claims an ownership interest in the equipment as a partner in the farm operation and as the contributor of a substantial down payment.

Facts

[4] The facts are as stated in an Agreed Statement of facts and also pursuant to the findings with this Court on February 28th, 2013 and the evidence heard on May 17th, 2013. The facts are as follows:

1. Thomas Grant Pendleton pleaded guilty and was found guilty on two counts of operation of a motor vehicle while disqualified from doing so by reason of an Order pursuant to Section 259(1) of the Criminal Code and contrary to Section 259(4)(a). One of these offences was on December 19th, 2012 when Mr. Pendleton was observed by an OPP officer operating the farm tractor in question on a Mulmur roadway. As the result of suspicion of alcohol consumption and also the fact that the officer was aware that Mr. Pendleton's driver's licence was subject to a prohibition order, Mr. Pendleton was apprehended. He ultimately blew a 'fail' result on an approved screening device test. However before the offender could be placed under arrest, he ran into the nearby bush. That action effectively ended the investigation and any further testing procedure. Mr. Pendleton was sentenced by this Court to four months plus fifteen days in custody in addition to the forty days in custody previously served. He was also the subject of a further driving prohibition order for three (3) years. The second drive disqualified count and charge of obstruct were concurrent to this sentence.

2. The New Holland farm tractor and attached loader have a current value of between eighty-five thousand ($85,000.00) dollars and ninety thousand ($90,000.00) dollars. The amount of the lien was said to be approximately forty five thousand ($45,000.00) dollars at the date of the hearing.

3. Thomas Grant Pendleton operates a family farm with his father, Thomas Uriah Pendleton in Mulmur Township. The equipment in question was acquired and extensively used in connection with the farming operation. Mr. Thomas Uriah Pendleton is 72 years of age. He testified that he views the farm operation as a fifty/fifty partnership with his son. His evidence was that this large tractor was purchased by both he and his son and is essential to operate the important farm equipment in their operation. Since the tractor was seized by the police and impounded, Mr. Pendleton, Sr. has been obliged to hire contractors at considerable expense to perform the functions that were previously done with their own tractor. He also testified that he personally contributed the sum of sixty-two thousand ($62,000.00) dollars toward the purchase of this New Holland farm tractor. While the offender was the primary user of the tractor before he went into custody, the father also used it as he was able. And finally, while Mr. Pendleton, Sr. had earlier described the farm operation as a fifty-fifty partnership, he qualified this later in his evidence when he indicated that profits from the farm were split in his own favour on a sixty/forty basis.

4. This equipment was seized by the police after the offence and has since incurred storage charges in excess of eighty dollars ($80.00) per day plus HST. The tractor remains impounded at a rate of two hundred dollars ($200.00) per month since February 1, 2013.

5. The criminal and Highway Traffic Act record of the Accused was attached to the agreed statement of facts. Since 1982 Thomas Grant Pendleton has incurred eight (8) impaired or over 80 convictions, one drive disqualified conviction and a conviction for dangerous driving in 2009.

Analysis

[5] Counsel are agreed that the forfeiture sections of the Criminal Code require the consideration of three (3) steps in determining whether an order of forfeiture may be made which are as follows:

(1) It was conceded by counsel on behalf of the Respondents that in the circumstances and on a balance of probabilities, this equipment is "offence related property" within the meaning of this section of the Criminal Code;

(2) It was also conceded by the Respondents that all of the necessary parties who have an apparent interest in the tractor have been properly notified and given an opportunity to participate in this forfeiture hearing.

(3) The Court must determine whether, pursuant to Section 490.41(3), an Order of forfeiture would be disproportionate within the meaning of the section which is as follows:

Subject to an order made under subsection 490.4(3), if a court is satisfied that the impact of an order of forfeiture made under subsection 490.1(1) or 490.2(2) 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.

[6] The Crown submits that once it has been established that the property in question is offence related property, the caselaw indicates that the persuasive onus shifts to the Respondent to establish, on a balance of probabilities that an order of forfeiture would be disproportionate within the meaning of section 490.41(3). No issue is taken by the Respondents with this interpretation and I believe that that onus of proof is consistent with the authorities cited.

[7] In relation to the nature and gravity of the offence upon which Mr. Pendleton was convicted, the Crown submits that the fact that he was driving a large farm vehicle while prohibited on a public roadway is serious. In addition, facts in aggravation were that the offender had been drinking alcohol and failed a screening test. And further that the actions of Mr. Pendleton in fleeing the scene thwarted further police investigation and the provision of admissible breath samples. The Crown therefore submits that this was a serious risk to the public in the circumstances. The Crown also cites a prior breach of recognizance conviction on February 23, 2010, when Mr. Pendleton was found to have breached a term in his recognizance by driving another tractor on a public roadway to buy beer in Mansfield, Ontario. In addition, the Crown argues that the extensive criminal record of the offender establishes a significant pattern of disrespect for the law and a disregard for the safety of the public on his part.

[8] The Respondents argue that the facts before the Court in relation to driving do not indicate an apparent safety issue on the roadway on that day. That is to say, there was no bad driving, albeit the vehicle in question was a large and very slow farm vehicle travelling on a side road. Counsel also notes that the charges were drive while disqualified as well as a related count of obstruction of a peace officer. The Respondents submit that while the offences on which Mr. Pendleton was convicted may have involved this tractor, this conduct cannot be equated with the circumstances such as those in the caselaw under the Control Drug and Substances Act (hereinafter the CDSA) where, for example, a motor vehicle was involved in the transportation of illicit drugs. Counsel argues that any punitive intent of the forfeiture sections has no application to these facts involving a farm tractor.

[9] As for the criminal record of Mr. Pendleton, counsel argues that, while it is unenviable, it is old and has significant gaps in recent years. And further that there is only one previous similar offence of operate disqualified back in 1999.

[10] Most significantly, the Respondents' position is that this tractor is an essential component in the farm operation of the Pendleton family. It is not a private vehicle used solely by Thomas Grant Pendleton for his own use. Counsel submits that forfeiture of this equipment, which is also subject to a substantial common law interest on the part of Thomas Uriah Pendleton, has been and would be an extreme blow to the financial viability of this family farm operation.

[11] Counsel have referred me to authorities where the sections of both the Criminal Code and the CDSA in relation to forfeiture have been considered. Namely, R v. Manning 2011 QCCA 900, [2011] Q.J. No. 5287 (Quebec Court of Appeal) and R v. Craig 2009 SCC 23, [2009] 1 S.C.R. 762 (SCC). Section 19.1(3) of the CDSA and Section 490.41(3) of the Criminal Code are identical.

[12] In paragraphs 16 and 17 of Craig, Justice Abella of the Supreme of Canada discusses generally the intent of Parliament in implementing the forfeiture regime under the CDSA. The Court notes that part of the purpose of the regime is a preventative one in relation to the illicit drug industry to remove from an offender property used to facilitate a drug offence. The Court goes on to note later in the decision that the regime also has a more general application.

[13] The Manning decision of the Quebec Court of Appeal is a more useful authority in relation to Section 490.41(3) of the Criminal Code. That Court notes at paragraphs 15 and 16 respectively that this section grants the hearing Judge a broad discretion to apply the tests as stated in the section. And the Court further states in paragraph 16 that a necessary inference is "that the impact of the forfeiture must be taken into account when determining if it is disproportionate in relation to "offence-related property."

[14] This application of the forfeiture sections in the Criminal Code is a distinct enquiry from the sentencing considerations that were before this Court on February 28, 2013. The standard for the exercise of discretion of the Court is as set out in the section. I must review all of the evidence before me to determine if an order for a forfeiture would be disproportionate. I have concluded that the Respondents have met their persuasive burden and that the order for forfeiture of this farm equipment would be disproportionate within the meaning of Section 490.41(3).

[15] The item in question is an essential component of the operation of this family farm and is relied upon by Mr. Pendleton, Sr. and his family in addition to the offender to perform all essential farming operations. Since the seizure of this equipment, this farming operation of the Pendleton family has sustained a serious economic detriment. A forfeiture order of essential farming equipment will detrimentally affect, not just the offender, but the viability of this farm. I cannot agree that a punitive impact of forfeiture on a legitimate enterprise such as farming was the intention of Parliament as being necessary in the public interest.

[16] Further, while "offence related property", this farm tractor and its' operation in the offence had no logical connection to the offence of operation while disqualified. The essence of the offence was in violation of Mr. Pendleton's driving prohibition contrary to the public interest generally and the administration of justice.

[17] In the result, and for these Reasons, the Application for Forfeiture by the Crown is dismissed.

Released: June 11, 2013

Justice Douglas B. Maund