REASONS FOR RULING

(Re CDSA Forfeiture Application)

MELVYN GREEN, J.:

A. INTRODUCTION

[1] Handguns, ammunition and substantial amounts of cash and drugs were seized during the execution of a search warrant at 15 Tamora Court in Toronto on February 21, 2012. Moez Jamal and Rosemina Jamal are husband and wife. They are the sole owners and, currently, residents of the detached house at 15 Tamora Court. Their adult son, Hanif, lived with them at the time the search was conducted. Their adult daughter Sabrina, who lives in Windsor, was then visiting. All four were charged with various firearms and drug offences.

[2] Pursuant to ss. 14 and 14.1 of the Controlled Drugs and Substances Act (the CDSA), a "Restraint Order" prohibiting disposition or any other dealings with the Tamora Court property was granted on March 13, 2012. On August 26, 2013, Hanif Jamal pled guilty before me to some of the offences with which he was initially charged. In particular, he admitted committing four offences arising from his unlawful possession of firearms. He also pled guilty to possessing marijuana and cocaine for the purpose of trafficking. Pursuant to a joint submission, a global sentence of nine years in prison was imposed for these offences, less 27 months credited to 18 months of pre-trial custody. Forfeiture of seized monies, cellphones and related paraphernalia followed, as did the withdrawal of all the remaining charges for which Hanif Jamal had originally been prosecuted.

[3] Upon Hanif Jamal being sentenced, the Crown withdrew the outstanding charges against his parents and sister. The Crown case respecting these three was never presented, let alone tested, by way of a preliminary inquiry or trial.

[4] The Attorney General of Canada then commenced an application to have the property in which the drugs and guns were found ordered forfeited to the state, pursuant to s. 16 of the CDSA. The Respondents resist this application. They concede that the Tamora Court residence is "offence-related property" (that is, property that was used in connection with an offence of drug trafficking or production) but say they did not participate in or have any knowledge of their son Hanif's criminal conduct. Further, and in the alternative, they plead "forfeiture of the house is disproportionate". Accordingly, they ask that the Attorney General's application be dismissed, the restraint order revoked and their residence restored to them.

[5] Drastically summarized: The Respondents own and have lived in the same house for almost 30 years. It is currently valued at close to $800,000 and carries a mortgage and other charges amounting to at least $300,000. That the Respondents' son used a portion of the house to store and package drugs is not disputed. The estimated commercial re-sale value of the seized drugs, along with the cash hidden in the son's bedroom, totals approximately $200,000. The Attorney General's application is for an order effectively forfeiting the entire value of the Respondent's equity in their home to the state or, more exactly, Her Majesty in right of Canada.

B. EVIDENCE

(a) Introduction

[6] Although discussed more fully in due course, the complex nature of this application and a terrain of unsettled law command an introduction to the statutory regime in which the points at issue arise. The organization of the evidentiary review that follows reflects these considerations. A proper adjudication of the most contentious issues – innocence and proportionality – requires a close appreciation of the evidence.

[7] The documentary record includes the transcript of Hanif Jamal's sentencing proceedings, agreed statements of fact, supplementary admissions, hundreds of photos of the Respondents' home, and extensive banking and accounting records. Three police officers engaged in the arrests and the execution of the search warrant testified, as did a fourth who was qualified as an expert on matters related to drug trafficking. The Respondents, Moez Jamal and Rosemina Jamal, also testified.

(b) The Legal Framework: A Skeletal Outline

[8] To the degree that they pertain to the immediate application, the broad outlines of the CDSA forfeiture regime follow.

[9] Upon conviction for a drug distribution or production offence, a court, on application of the Attorney General of Canada, is required to order the forfeiture of "offence-related property" unless satisfied that certain statutory exemptions obtain: s. 16. First, the court may order the property, in whole or part, returned to a lawful owner who has not been "charged" where the court is "satisfied" that person "appears innocent" of any complicity or collusion in the offence: s. 19(3). Second, the court may decline to make a forfeiture order respecting "real property", in whole or part, where it "is satisfied that the impact of [such order] would be disproportionate to the nature and gravity of the offence", its surrounding circumstances and the criminal record of the "person charged with or convicted of the offence": s. 19.1(3). Third, where the property at issue is a dwelling house, the impact of a forfeiture order on innocent family members who reside in the home forms part of the proportionality calculus: s. 19.1(4). Finally, once forfeiture is ordered, parties claiming an interest in the property may apply for a declaration of their interest upon a court being satisfied of both their innocence and their exercise of reasonable care to ensure the property was not likely to be used in connection with an "unlawful act": s. 20.

(c) The Primary Issues

[10] The application of the Attorney General of Canada (hereafter, the A.G.) for forfeiture of the property situated at 15 Tamora Court is brought under s. 16 of the CDSA. The A.G. and the Respondents are ad idem as to "the main legal issues for the court's consideration in this application". As described in the A.G.'s factum, they are:

i. Whether the respondents, Moez and Rosemina Jamal, are innocent of complicity or collusion and may apply for return of the property pursuant to section 19(3) of the CDSA; and

ii. Whether the forfeiture of the property would be disproportionate as contemplated in section 19.1(3) of the CDSA.

Apart from the words "and may apply for return of the property", I agree with this characterization of the central issues. The Respondents' innocence and the disproportionate impact of a forfeiture order are the primary issues in this inquiry. The construction of the record and the oral and written submissions of both parties consistently frame the central disputes in this manner. My reservation relates to what I see as the insertion of an onus respecting innocence when, in my view, none obtains. I revisit this debate in due course, but it has no effect on the evidentiary canvas that now follows.

(d) Agreed (and Undisputed) Facts

[11] Certain "agreed facts" make up a substantial plank in the evidentiary platform.

(i) Circumstances of the Search and Arrests

[12] With a single material exception, the events surrounding the investigation and arrest of Hanif Jamal and the search of the dwelling-house at 15 Tamora Court are essentially identical to those adopted by Hanif when he entered his plea of guilty in August 2013 and as set out in the Affidavit sworn in support of the Restraint Order issued in March 2012. The exception relates to the conduct of the Respondent Rosemina Jamal when first observed by the police following the arrest of her son Hanif on February 21, 2012. Both sides called viva voce evidence with respect to these events. Although somewhat different than the narrative read in on Hanif Jamal's plea, in the end there was little disagreement between the two accounts.

[13] Members of the Toronto Police Service (TPS) received information in February 2012 about a drug dealer at 15 Tamora Court in Scarborough. They began surveillance on February 21st. Hanif Jamal was seen leaving the address at 6:20pm the same day. He was stopped, arrested and found in possession of an ounce of cocaine, almost 10 ounces of marijuana and $385. The information received by the TPS related exclusively to Hanif Jamal. He was the sole target of the police investigation.

[14] The execution of a CDSA-authorized search warrant at 15 Tamora Court followed. No one was in the residence when the TPS entered at 7:30pm on February 21st. During the police search, three handguns, ammunition, nearly 25 grams of MDMA ("Ecstasy"), 1,029.12 grams (a little more than a kilo) of cocaine, 1,225.65 grams of marijuana, a money counter, a vacuum sealer, a baton and a can of bear spray were found in the living room. Some 2.63 grams of cocaine were located in the dining room. A further 315 grams of cocaine were found in the basement, along with 4.4 kilograms of marijuana. The search of Hanif Jamal's bedroom yielded a loaded semi-automatic handgun, 162 grams of MDMA, 32 cellphones, over $70,000 in currency and magazines and other documents regarding drug smuggling. In total, the police drug seizures amounted to some 1,370.4 grams (three pounds) of cocaine, 6,843 grams (fifteen pounds) of marijuana and 194.71 grams (seven ounces) of MDMA pills.

(ii) 15 Tamora Court

[15] The Respondents purchased the property at 15 Tamora Court in April 1986 for $160,000. A mortgage of $140,000 attached to the property. The property was remortgaged in 2005, the value of the new charge being $285,000. That mortgage was refinanced in 2010. The appraised value of the property in February 2015 was $786,000. The Respondents are the registered owners of the target property at 15 Tamora Court.

(iii) The Arrests

[16] As noted, Hanif Jamal was arrested outside Tamora Court at 6:25pm on February 21, 2012 – before the execution of the search warrant. Hanif was described as co-operative. Although of no direct probative value in these proceedings, he advised the arresting officer that his parents were not involved in his criminal conduct.

[17] The Respondent Rosemina Jamal was detained around 7:45pm that same evening, soon after she returned from work, and arrested at 8:40pm. Sabrina Jamal was arrested when she arrived home around 9pm. And Moez Jamal was arrested while at work in the video store he operated on College Street in central Toronto at 9:25pm.

(iv) The Criminal Antecedents of the Jamal Family

[18] Hanif Jamal was convicted of possessing drugs for the purpose of trafficking some nine years earlier, on June 12, 2003. He received a conditional sentence and 12 months probation. He was in his mid-30s at the time of his arrest in 2012. Neither Respondent has any criminal record.

(e) The Forensic Topography of 15 Tamora Court

[19] A foyer on entering the front door at 15 Tamora Court narrows to a hallway that extends to a kitchen at the back of the house. A wall separates the hallway from two rooms to its right: a living room at the front of the house that opens to a dining room at the rear. A staircase climbs to the second floor along the left side of the main floor hallway. A few feet across from its bottom step, a second set of stairs descends to the basement. A small washroom and a "family" or "TV" room to the left of the kitchen completes the layout of the ground floor. Access to the living is through French doors that open from the foyer. The top half of each of these doors is composed of decorative frosted glass that effectively obscures the view into the living room when the doors are closed. Each Respondent testified that the doors from the foyer to the living room were always kept closed. One officer who participated in the execution of the search warrant, D.C. Mantle, testified (some three years after the events) that, "to the best of his recollection", these doors were open when he entered the residence with Hanif Jamal. He did not notate this observation, nor were any contemporary photographs of the status of the doors when the police first entered the premises filed on this hearing. Further, the condition of the doors upon the unanticipated police entry, some hours before either of the Respondents ordinarily returned home, says very little about whether they were open or closed when Moez and Rosemina Jamal left home for work on the morning of February 21, 2012. In my view, whatever their status upon the police entry the foyer doors were closed when each of the Respondents left 15 Tamora Court for work on the morning of their arrest.

[20] With Hanif's assistance, three handguns were located inside a side-table in the living room, two in heavy plastic gun boxes and the third in a wooden case. One of the guns was fully loaded and a second was a semi-automatic weapon. Each of the unloaded handguns was found with compatible ammunition. A clear sandwich bag containing close to an ounce of cocaine and an expandable baton were located inside the same side-table. A similar bag containing close to an ounce of Ecstasy (MDMA) pills, a cellphone, and a "FoodSaver" vacuum sealer and compatible plastic bags were also found inside the table. A second phone and a money-counting machine were located on a second side table. A Holt Renfrew shopping bag was sitting on top of an electronic keyboard in the living room. A "brick" of cocaine (wrapped in black cellophane and weighing just over one kilogram) was inside the Holt's bag. A bag of marijuana was found under a toy plush dog on the living room sofa and a small bag containing 2.63 grams of cocaine was detected among an array of mundane items on the dining room table.

[21] A loaded and holstered semi-automatic handgun was located in a drawer in the nightstand next to the bed in Hanif Jamal's second floor bedroom. Over $70,000 in bundled cash was seized from inside a stereo speaker in the same room. Powdered Ecstasy (162 grams of MDMA) and 32 cellphones were also found in the room.

[22] The police search of the basement yielded six vacuum-sealed bags of marijuana (containing over two kilos, in total) and two duffel bags (containing, respectively, another 1,435 and 707 grams of marijuana packaged in plastic bags). On a table that appears to have been used for drug packaging, the police found twelve Ziploc bags of marijuana (totaling almost one kilogram), six bags of cocaine (314 grams, in total), several empty bags containing cocaine residue and two digital scales with cocaine residue. The table was in a readily accessible but very messy portion of the basement. The drugs and scales share space with boxes and used linens.

[23] The basement is conspicuously messy. The officer taking photographs agreed it looked like a storage area with "things everywhere". He could not recall whether there was a door at the top of the basement stairs and he took no photographs of the area. The Respondents testified that there was a door, ordinarily kept closed, at the top of the stairs leading to the basement. An historic family photo supports their testimony.

[24] A baseball bat and a sheathed knife were found under the bed in the master bedroom shared by the Respondents. Unlike the three other bedrooms on the second floor, the basement and parts of the living and dining rooms, the police described the master bedroom as "orderly".

(f) The Expert Evidence

[25] Det. John Margetson was qualified as an expert on matters related to the pricing, packaging and distribution of marijuana, cocaine and MDMA. The brick of cocaine found in the living room was likely shipped from a source country, although it may have been reconstituted in Canada to imitate a direct transfer, and thereby presumably purer product. In 2012, a kilo of cocaine (the weight of the brick) could be purchased for as low as $28,000 at source. Its resale value in Canada was then between $40,000 and $60,000, assuming near-purity. Sold by the ounce, Margetson estimated the seized cocaine could yield between $63,000 and $78,000. The marijuana would generate between $30,000 and $42,000.

[26] The seized scales, money counter, vacuum packaging machinery, cash, the method by which it was bundled, and the very substantial amounts of seized drugs were all consistent with high-level, commercial, poly-drug trafficking, as were the guns which are often used for protection or enforcement at this echelon of the business.

[27] Margetson agreed that someone unconnected with the trade would not recognize the black-wrapped object in the Holt's bag as a brick of cocaine. Contrary to Margetson's expectations, there was no evidence of debt lists being found in the house. He suggested that some traffickers now store such information on their phones. There was no evidence as to the contents of any of Hanif Jamal's phones, or of the phones belonging to anyone else who resided at 15 Tamora Court.

(g) The Respondents' Evidence

(i) Introduction

[28] Moez and Rosemina Jamal emigrated from Tanzania to Canada in 1976. Three children followed, as did their purchase of the house at 15 Tamora Court around 1985. Their eldest child, Hanif, lived with them. He was in his mid-30s. Sabrina, then in her mid-20s, lived in Windsor. She was staying with her parents during a visit to Toronto at the time the search warrant was executed.

[29] Both Respondents testified that they had never seen or were otherwise aware of any of the drugs or guns or large amounts of cash found in their home at 15 Tamora Court. Both worked most days. They did not socialize. They had effectively retreated to their bedroom and the kitchen (where they ate all their meals) and the adjoining TV room at the rear of the house. They did not occupy or, on their evidence, even enter the other rooms except on rare occasion.

(ii) Moez Jamal

[30] Moez Jamal was 58 at the time of the hearing. He owned a video rental store on College Street in Toronto. He opened the store in 1983 or 1984 and closed it in July 2012 (a few months after his arrest) when competition and the demise of video finally forced him out of business. He kept the shop open from 1pm to 10pm seven days a week. He had no employees. Moez generally left home between 9 and 9:30 each morning, attending on suppliers to restock his store and arranging for the repairs of customers' VCRs. He returned home between 10:30 and 11 each evening. Moez left 15 Tamora Court at 9:30am on February 21, 2012. His wife Rosemina had already left for work. He was arrested at his shop that evening.

[31] As was always the case, the French doors to the living room were closed when Moez left for work on February 21st. He could not recall when he was last in the living room and prior to the police search he had not been in the basement in 2012. To his knowledge, the basement was solely used for storage.

[32] Moez and Rosemina had been the victims of a robbery at 15 Tamora Court the year after they moved there. Moez had then put a baseball bat and sheathed knife under their bed lest there was any recurrence. He had since forgotten they were still there. (Rosemina also recalled the robbery in 1986. She testified that she had later discovered the bat and knife while cleaning under the bed. When she asked Moez about them, he told her to "just leave them there".)

[33] Hanif had not been living at 15 Tamora Court when he was arrested in 2003. He moved back into the family home after Moez bailed him out. Hanif had since remained at the family home, although he never paid any rent. Moez understood, through Hanif, that his son had operated a car rental business for several years, but at some location other than the family home. Hanif had pursued his education, but Moez was unclear as to where, how or with what success. He described Hanif as "always at home". Hanif drove a Mazda Protégé that Moez had bought new in 2000. Hanif paid for the car's gas and maintenance. Children, in Moez and Rosemina's culture, were supported by their parents to the degree they were able and it was necessary. Moez also owned two mid-'90s Lincolns that he had bought used in 2005 and 2006 when his video business was a thriving concern.

[34] Sabrina lived in a condominium in Windsor in February 2012. Moez had purchased the condominium when she first attended university there, in 2005. The cost was $129,000 and it carried a mortgage of $118,000. Moez paid the condo fees, utilities and mortgage. Sabrina's roommate paid approximately $600 a month in rent, money that helped defray the monthly mortgage obligation on the condo. Moez bought Sabrina a used Honda for $1,600 about two years before his arrest. Sabrina paid the gas, insurance and other car-related expenses.

[35] Other than the rental income generated by the Windsor condominium, the video store was Moez's sole source of revenue. In latter years, the salary Rosemina earned through her employment dwarfed his income from the store. In 2010, for example, Moez's declared income (solely derived from the video shop) was $7,163. The family income that year was about $38,000 – much reduced from his and Rosemina's typical joint annual income as a result of Rosemina suffering a serious illness that kept her from working. Moez estimated that his personal income was probably less in 2011 and 2012 than in 2010.

[36] Moez Jamal's personal income, debts and assets were subjects of extensive examination. At the time of his arrest in February 2012, approximately $250,000 was charged to the property at 15 Tamora Court – mortgage principal of $190,000 and a personal line of credit of about $60,000. In addition, Moez then carried credit card obligations on four different accounts, totaling close to $60,000, for which he had been making the minimum monthly payments through 2011 and 2012.

[37] In the first half of 2010, Moez's personal line of credit, secured against the family home, hovered around $160,000. By mid-September it had been reduced to $40,619, only to climb back to almost $58,000 by July of the following year. The substantial pay-down of the mortgage in mid-2010 reflected a mortgage anniversary-date transfer of much of Moez's credit line obligation to the 15 Tamora Court mortgage, which bore a lower rate of interest. His mortgage interest then amounted to about $1,300 a month. In addition, Moez paid property taxes of close to $3,800 a year and regular utility bills that, including gas, totaled about $700 a month. These latter obligations were usually paid out of the joint bank account he shared with his wife. Rosemina also took care of the groceries. Home and automobile insurance cost a further $1,700 a year.

(iii) Rosemina Jamal

[38] Rosemina Jamal is 57. She had worked in the accounting department of a property management firm until around 2008 when she experienced a seizure. She has since suffered from hypertension and anxiety. For some time she could only work on a temporary basis. She returned to fulltime employment, five days a week, in June 2010. Rosemina left home between 8:45 and 9 each work morning and usually, but not always, left work between 7:30 and 8:30 each evening. The public transport commute (bus and subway) took about one and a half hours in each direction, although she sometime got a lift home with her husband. She always left for work before Moez. She could never be sure when her workday would end. Rosemina spent most of her weekends caring for her sister who suffered from MS and whose condition had been deteriorating since 2010.

[39] Rosemina's gross income in February 2012 was $57,500 a year, plus an annual bonus. Her take-home was about $41,000. Her biweekly pay (about $1,500) was either deposited into one of her own bank accounts or the account she shared with her husband Moez. The mortgage payments on 15 Tamora Court were paid directly out of the joint account. Rosemina shared an account with her mother and occasionally borrowed money from her (around $500-600 at a time), as happened "quite often" when she suffered lay-offs. She was laid off in October 2012, re-hired in March 2015, and laid off again on June 30, 2015. Apart from family obligations, Rosemina's personal credit card and line-of-credit debts in February 2012 amounted to more than $34,000. Rosemina explained that the cash deposits to her personal accounts reflected withdrawals she made from other joint bank or her own credit card accounts as she tried to balance creditors' demands and keep herself afloat. None of the deposited cash was from her son Hanif.

[40] The house had last been decorated in the early '90s; nothing had since changed. Other than the master bedroom, Rosemina left others in the house to clean up after themselves. She agreed that she had put a vase of flowers on a table in the living room, but had not tidied or otherwise occupied the room for many years. She had never seen the Holt Renfrew bag or the money counter. She identified the shoes in a photograph of a shoe rack in the living room as all belonging to her son Hanif.

[41] Hanif had taken a three-year business course at Centennial College, but Rosemina did not think he had finished the program. He had been involved in the car rental business at some point, and he had been organizing music events early in 2012. Given her health, she paid little attention to what, other than her own business, was going on in her house. She was had not been concerned about Hanif's affairs, believing he was "doing good". She never suspected, she said, that he had returned to drug dealing. She did not and would not consent to drugs or guns in her home.

[42] The family RRSPs were gone. She and her husband's only savings were the equity in their home. They each had considerable debts. Rosemina had lost her job in June 2015 and, as of July (when she testified), had been unable to find another. Moez continued to operate a variety store he had opened after his video shop failed.

(h) Rosemina Jamal's First Encounter with the Police

[43] Rosemina Jamal's conduct on returning from work on February 21, 2012 was framed as a matter of factual dispute. At Hanif Jamal's sentencing hearing, the Crown contended Rosemina stepped out of her home, detected the police surveillance and sent a text to her son warning him not to come home. Before me, counsel for the A.G. conceded there was no evidence of any text message. She called a police witness to establish the material events. Rosemina's testimony, while generally consistent, affords a benign explanation for her reaction on returning home from work. On both accounts, Rosemina did not exit her home during the police operation; rather, she was not even in the area until well after Hanif was arrested and the search was in progress.

[44] Det. Cst. Jennifer Thompson was parked near Tamora Court during the execution of the search warrant. She observed a woman walk towards and then past Tamora Court. Notified by another officer that the woman was Hanif's mother, she followed the woman in her vehicle and stopped her at 7:43pm. The woman identified herself as Rosemina Jamal. She told Thompson that she felt like going for a walk rather than directly home. Rosemina had a cellphone in her hand. It appeared to Thompson that it was or had just been in use as it was illuminated. Rosemina was placed in the rear of a police vehicle. She advised that she was "not well" and an ambulance was summoned. She was formally arrested at 8:40pm.

[45] Rosemina's account closely parallels Thompson's. She was not feeling well on February 21, 2012. She left work early. She first called home to speak to Hanif but could not reach him. She took the TTC from work and then, when walking from the bus stop, saw a marked police car in close vicinity to her house. (There is no dispute as to the presence of a marked police vehicle.) Rosemina panicked. The police were at her door. Her husband was at his store. Hanif was the only member of the family who could possibly be at home, the only one who had previous trouble with the law, and he had not answered when she had earlier tried to call him. "Oh my God", she thought, "what's wrong now!" Fearing Hanif was "in trouble again", she texted him hoping for some assurance that he was all right. A police officer then removed the cellphone from her hand. Rosemina had indeed told the officer she had gone for a walk rather than going directly home. She was still suffering from the effects of her stroke and was feeling ill when she caught sight of the police car. She panicked, felt she needed some fresh air, and continued walking. Her recall of exactly where Thompson stopped her was less than certain.

C. THE STATUTORY FRAMEWORK

(a) Introduction: Constitutionality and Interpretation

[46] The forfeiture regime set out in the CDSA has been held intra vires Parliament pursuant to the assignment of criminal law power under s. 91 of the Constitution Act, 1867: R. v. Gisby; R. c. Houle; and R. v. Van Kessel Estate. The scheme has also been held Charter compliant in several cases, at least on the basis of the limited arguments advanced: R. c. Houle, supra, and R. v. Fenn. I mention this in passing only. Certain provisions of the CDSA forfeiture legislation attract, at a minimum, constitutional curiosity. However, no Charter or other constitutionally grounded challenges have as yet been directly considered by the Supreme Court nor, to be clear, are any advanced on this application.

[47] Indeed, as the Supreme Court said in introducing the leading forfeiture decision of R. v. Craig, at para. 14, the immediate application "is not based on a constitutional challenge to the forfeiture provisions; it is based only on arguments relating to statutory interpretation" – and, of course, the application of the resolution of these arguments to the facts distilled from the evidence led at this hearing. In R. v. Craig, the central legal issue was whether the CDSA forfeiture regime was properly read as part of an interdependent drug sentencing template or, as the majority ultimately determined, as a discrete inquiry that, in turn, compelled the Court's close reading of the proportionality calculus set out in s. 19.1(3).

[48] Before me, the questions of statutory construction are not based on counsels' arguments; rather, they are latent in the effort to fairly apply the forfeiture scheme in a manner that honours Parliament's intendment and the Supreme Court's instruction that, "Legislation conferring an imprecise discretion must … be interpreted as not allowing the Charter rights to be infringed": Slaight Communications Inc. v. Davidson, at para. 90. (Among many significant restatements of this principle, see, by way of example only: R. v. Williams; Winko v. British Columbia (Forensic Psychiatric Institute); R. v. Wust; and R. v. Nasogaluak.)

[49] The CDSA forfeiture regime gives rise to three interpretive challenges bearing on the instant application. By way of introduction only, the first gives rise to the question of whether the phrase "a person who was charged with a designated substance offence" in s. 19(3) includes individuals who were acquitted or discharged of such offences or who, like the Respondents, were once charged but later had their charges withdrawn. The answer impacts on the procedural avenues available to the Respondents, the relevant evidentiary record and the scope of relief from forfeiture. A second concern turns on the meaning of the phrase "appears innocent of any complicity in [a designated substance] offence … or of any collusion in relation to such an offence" as it appears in ss. 19(3) and 19.1(4), and, if of less direct relevance, s. 20(4) of the CDSA. And the third pertains to the meaning and proper application of the word "satisfied" as statutorily describes the standard a court is to apply in determining the existence of circumstances that permit it to make or decline, in whole or part, the forfeiture order sought by the A.G. under the rubric of either innocence (s. 19(3)) or disproportionality (s. 19.1(3)).

[50] Although untouched directly by the Supreme Court, these questions have attracted the attention, if only obliquely, of some trial and appellate courts. For the most part, however, they remain either under-addressed or subject to conflicting interpretations. An appreciation of the implications of alternative readings depends on an appreciation of both the CDSA forfeiture scheme at large and its social policy goals. As to the latter, the majority opinion in the Supreme Court in R. v. Craig, supra, at paras. 16 and 17, favourably repeated the following passages from the Alberta Court of Appeal's judgment in R. v. Gisby:

The CDSA was enacted by Parliament to combat the illicit drug industry. A review of the CDSA and in particular, the provisions related to the forfeiture of property, indicates that the CDSA does so both through punishment and deterrence. The forfeiture provisions are punitive to the extent that they deprive one of offence-related property, broadcasting the message that Canadian society regards designated substance offences with abhorrence. But they also introduce an element of deterrence in relation to designated substance offences. In this respect, the forfeiture provisions attach a very real cost to the business of drug crime directly equivalent to the monetary value of the offence-related property that is subject to forfeiture, thus raising the stakes associated with the commission of those offences. [Para. 19]

[Forfeiture also helps] "prevent or at least reduce the likelihood of future offences by removing from the illicit drug industry property which … is being used to facilitate the commission of a designated substance offence. [Para. 20]

In short, the CDSA forfeiture regime has punitive, deterrent and preventative objectives, all of which must be borne in mind in exercising judicial discretion, particularly that afforded by s. 19.1(3).

[51] Before setting out Parliament's exact language, I note that forfeiture schemes are not exclusive to the CDSA or even the federal exercise of criminal law powers. In Ontario, for example, property implicated in unlawful activity is subject to forfeiture under the Civil Remedies Act. The CRA regime is materially different than that controlling the disposition of the instant application. However, the recent case of A.G. Ontario v. Kittiwake Sailboat, determined under the CRA, speaks to normative and equitable considerations that help inform an appreciation of forfeiture proceedings. As explained by Corbett J., at para. 30:

Forfeiture under the CRA is a confiscation of private property by the state, without compensation. Where proceeds of crime are confiscated, there is no countervailing interest to balance: criminals can rightly be deprived of the fruits of their criminal activity. Where property is used for the purpose of committing criminal acts, there may be conflicting values at play. Where the property is not owned lawfully in the first place, there is a strong argument for confiscation without compensation. Where the property is owned and used legitimately by its owner, but also happens to be used in connection with a crime, the case for confiscation without compensation becomes more problematic. [Emphasis added.]

These comments arise in the context of a distinct forfeiture regime. Nonetheless, they speak to the "problematic" nature of the instant application and the need for a careful reading of the relevant provisions and the interplay among them.

(b) The Statutory Framework: As Written

[52] The statutory provisions that govern this application are set out under the heading "Forfeiture of Offence-Related Property" in Part II (titled "Enforcement") of the CDSA. Excepting a "controlled substance" (that is, a drug listed in a Schedule to the CDSA), "offence-related property", as defined in s. 2 of the Act, means, "any property"

(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.

A "designated substance offence" is, in turn, any drug offence (or related counseling, conspiracy or after-the-fact accessoryship) other than that of simple possession.

[53] A recitation of lengthy portions of the controlling legislation cannot be avoided. The text and context of the more controversial facets of the scheme both matter. To the degree they pertain, however indirectly, to the instant proceedings, the pertinent provisions of the CDSA forfeiture regime are set out below. Those commanding particularly special attention are ss. 19(3) and 19.1(3).

16. (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.

17. (1) Where an information has been laid in respect of a designated substance offence, the Attorney General may make an application to a judge for an order of forfeiture under subsection (2).

(2) Subject to sections 18 to 19.1, where an application is made to a judge under subsection (1) and the judge is satisfied

(a) beyond a reasonable doubt that any property is offence-related property,

(b) that proceedings in respect of a designated substance offence in relation to the property referred to in paragraph (a) were commenced, and

(c) that the accused charged with the designated substance offence has died or absconded,

the judge shall order that the property be forfeited and disposed of in accordance with subsection (4).

(3) For the purposes of subsection (2), an accused shall be deemed to have absconded in connection with a designated substance offence if

(a) an information has been laid alleging the commission of the offence by the accused,

(b) a warrant for the arrest of the accused has been issued in relation to that information, and

(c) reasonable attempts to arrest the accused pursuant to the warrant have been unsuccessful during a period of six months beginning on the day on which the warrant was issued,

and the accused shall be deemed to have so absconded on the last day of that six month period.

(4) For the purposes of subsection (2),

(a) in the case of a substance included in Schedule VI, the judge shall 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 proceedings referred to in paragraph (2)(b) were commenced at the instance of the government of a province, the judge shall 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, the judge shall 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.

19. (1) Before making an order under subsection 16(1) or 17(2), in relation to any property, a court shall require notice in accordance with subsection (2) to be given to, and may hear, any person who, in the opinion of the court, appears to have a valid interest in the property.

(2) A notice given under subsection (1) shall

(a) be given or served in such manner as the court directs or as may be specified in the rules of the court;

(b) be of such duration as the court considers reasonable or as may be specified in the rules of the court; and

(c) set out the designated substance offence charged and a description of the property.

(3) Where a court is satisfied that any person, other than

(a) a person who was charged with a designated substance offence,

is the lawful owner or is lawfully entitled to possession of any property or any part of any property that would otherwise be forfeited pursuant to an order made under subsection 16(1) or 17(2) and that the person appears innocent of any complicity in an offence referred to in paragraph (a) or of any collusion in relation to such an offence, the court may order that the property or part be returned to that person.

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.

Omitted from this recital are those provisions that address the treatment of property situated outside Canada (ss. 16(3) and 17(5)), rights of appeal (ss. 16(3), 20(5), 21 and 22), and voidable transfers (ss. 18 and 19(3)(b)), as they have no direct bearing on the disposition of this application. The text of s. 20 is also omitted. Its importance to the analysis that follows primarily rests on its assertion that once property has been ordered forfeited on an application by the A.G. under ss. 16(1) or 17(2), it then falls to anyone claiming an interest in the property to apply for a remedy. (The statutory remedy is limited to a declaration of interest ultimately honoured by a return of the claimant's recognized property interest or compensation for its value.) The A.G. has at no time suggested that the appropriate route for any property claim advanced by the Respondents is through a summary forfeiture order under s. 16(1) followed by the Respondents' timely application for a declaration of their interest pursuant to s. 20.

(c) The Statutory Framework: Deconstructed

[54] The relevant CDSA regime is both intricate and dense. Employing uncharacteristically "plain terms", the Supreme Court, in McLean v. British Columbia (Securities Commission), at para. 32, noted that, "legislatures do not always speak clearly". The forfeiture scheme set out in the CDSA is but one illustration of this general proposition. While not as cryptic or opaque as some statutory language, it would be helpful if, like many Ikea products, these provisions carried a caution that some assembly is required.

[55] Sections 14 through 22 of the CDSA set out the forfeiture scheme respecting "offence-related property" where the offence at issue is a "designated substance offence" – in essence, any offence under the CDSA other than that of simple possession. The provisions of direct concern to the instant application are ss. 16, 17, 19 and 19.1 – those dealing with the content and procedure of a forfeiture application. The primarily bookend provisions address matters that are of no immediate moment: restraint and management orders; the treatment of voidable transfers; the remedial mechanisms available to "any person who claims an interest in the property" after the making of an order of forfeiture; and appellate rights in regard to forfeiture orders.

[56] There are two statutory bases by which the A.G. may apply for forfeiture of offence-related property under the CDSA. The first, pursuant to s. 16(1), applies, as here, in cases where a person – any person – is "convicted" of a designated substance offence that was "committed in relation" to "offence-related property". The second, grounded in s. 17, is an in rem proceeding that obtains where a person charged with the "offence" end of "offence-related property" absconds or dies before his or her trial. By way of predicate conditions to an order of forfeiture, a court, in the first instance, must be "satisfied on a balance of probabilities" both that the target property is offence-related and that the offence was committed "in relation to that property". In the latter case, that of an absconding or dead accused, the court must be "satisfied beyond reasonable doubt" that the property at issue is "offence-related property". Section 17 proceedings have no direct application to the immediate application. However, the language and compass of the provision has some bearing on the appropriate construction of s. 19(3), a matter of importance to the resolution of this application.

[57] The making of a forfeiture order premised on either of these two platforms is "subject to sections 18 to 19.1" of the CDSA. Complimentary language appears by way of introduction to the two provisions, ss. 19 and 19.1, which compel judicial consideration of the claims of owners and other interested parties before forfeiture may be ordered. Section 19, which contemplates an assessment of a property owner's innocence, begins with the words, "Before making an order under subsection 16(1) or 17(2)…". And ss. 19.1(3) (involving disproportionality considerations) and (4) (incorporating into this calculus the predicament of an immediate family member for whom the target property serves as a principal residence) both require judicial consideration of the effect of the order sought under ss. 16(1) or 17(2) before forfeiture may be ordered.

[58] Sections 19(3) and 19.1(3) are the two statutory routes by which an owner or other interested or affected party may secure the restoration of seized or restrained property prior to the making of a forfeiture order. The interests protected in each (respectively, innocence and the impact of disproportionality), and Parliament's command that judges consider these interests before granting an Attorney General's application, reflect a concern to address the palpable risk of overreach associated with a forfeiture power.

[59] To repeat, the purposes of the forfeiture scheme are punitive, deterrent and preventative. This potentially "draconian" power, as described by the Supreme Court in Craig, supra, at para. 50, explains a number of statutory safeguards intended to limit the potential abuse of forfeiture. For example, a court must ensure that notice is given to the potentially interested or affected parties, as directed by ss. 19(1) and 19.1(1). As said by the Court of Appeal in R. v. Trac, at para. 99, with respect to a parallel forfeiture regime in the Criminal Code:

The judge hearing the forfeiture application will also have to ensure that all appropriate notices are given so that those with a legitimate interest in any of the property sought forfeited have an opportunity to take part in the forfeiture proceeding. [Emphasis added.]

[60] Two safeguards against the potentially harsh effects of forfeiture have direct relevance to the immediate application. Together, they reflect the differential treatment afforded property owners on the basis of their moral blameworthiness. First: lawful (and unconvicted and uncharged) owners of property who "appear innocent" of complicity or collusion in a predicate CDSA offence are, to the degree of their proprietal interest, effectively exempted from forfeiture: s. 19(3). Second: irrespective of the nature or extent of their blameworthiness, any owner of real property (including convicted offenders) may be relieved, in part or whole, from a forfeiture order if, and to the degree, the impact of the order is disproportionate: s. 19.1(3). As put in R. v. Trac, supra, at para. 96, in regard to s. 19.1(3), no matter how culpable the offender,

Parliament recognized that there would inevitably be cases where the forfeiture of "offence-related property" would be unjust in the circumstances. … Parliament chose … to protect against the injustice of excessive forfeiture by giving trial judges the discretion to relieve from forfeiture: see Craig, paras. 22-23 and 50-51.

[61] In short, s. 19(3) reprieves from forfeiture on the basis of innocence while s. 19.1(3) permits tailored relief against the disproportionate impact of forfeiture on the truly blameworthy. Indeed, the vast majority of reported cases determined under the CDSA forfeiture regime (including all three of those composing the "Craig trilogy") involve an assessment of disproportionality with respect to persons whose real property is subject to forfeiture by virtue of they having been convicted of a designated substance offence.

[62] As noted, the first of the two remedial provisions, s. 19(3), comprehends the claims of any person who is a lawful owner of the property on the basis of the owner's apparent innocence. A "person who was charged with a designated substance offence" is expressly excluded from the compass of the words "any person", and thus facially ineligible to advance their claim under this provision. Unlike aspects of ss. 16 and 17, the word "satisfied" is not hinged to any conventional standard of proof such as "balance of probabilities", as in s. 16(1), or "beyond a reasonable doubt", as in ss. 16(2) and 17(2).

[63] Further, while the meaning of the phrase introduced by the words "appear innocent" are judicially underdeveloped, it is indisputable that persons convicted of such an offence have no claim to relief from forfeiture under this provision: as common sense dictates, persons convicted of a designated substance offence cannot also be or appear "innocent" of the same offence. In short, convicted offenders cannot seek or obtain relief from forfeiture under s. 19(3). The difficulty, at least for the Respondents, is that the same provision prohibits persons merely "charged", but not convicted, from having their property returned to them on grounds of innocence. As set out in clause 19(3)(a), even if a "lawful owner" of the property at issue, "a person who was charged with a designated substance offence" is not eligible for relief from forfeiture on the basis of his or her innocence. This latter phrase, on its face, appears to encompass not only an "accused person charged with the designated substance offence" who, in the language of s. 17(2), "died or absconded" before his or her trial but, as well, those charged and acquitted of such offences, those whose charges were stayed and, as in the case of the Respondents, those whose charges were withdrawn by the Crown.

[64] Unlike claims founded on disproportionate impact (s. 19.1(3)), the word "property" is unqualified in s. 19(3) and has been universally construed as inclusive of both real and personal property. It "is only in connection with real property" in s. 19.1(3), the majority in Craig explained, at para. 54, "that one finds language which … supports a discretion to order the partial forfeiture of even a blameworthy individual's property". This, the Court went on, "is consistent with the recognition in the proportionality analysis that real property is a quantitatively and qualitatively different kind of asset".

[65] Accordingly, where "real property" is at issue and "innocence" is not, a court hearing the application may, pursuant to s. 19.1(3), decline to order forfeiture, in whole or part, where "satisfied" that the impact of the order would be "disproportionate", as assessed by consideration of three factors: the nature and gravity of the offence, its surrounding circumstances, and the criminal record of the person "charged with or convicted of the offence". Subsection 19.1(4) extends judicial discretion respecting proportionality to circumstances where the property at issue is a "dwelling-house" that continues to serve as the principal residence of a member of the immediate family of a person charged with or convicted of a designated substance offence and where the family member "appears innocent" of any complicity or collusion.

[66] This selective review of the CDSA forfeiture regime is clearly intended to identify several interpretive issues of relevance to what I see as the proper disposition of the A.G.'s application. I return to each of them – the meanings of "satisfied" and, in the context of s. 19(3), "appears innocent" and "charged" – in due course. I turn first to a far more settled area of discourse, that pertaining to the doctrine of proportionality in s. 19.1.

D. ASSESSING DISPROPORTIONALITY

[67] While there remains a level of ambiguity or uncertainty respecting several portions of the CDSA forfeiture regime, the doctrine of disproportionality, as prescribed in s. 19.1(3), has been authoritatively dissected. The test for the exercise of judicial discretion on this basis was developed by the Supreme Court in a trilogy of cases: R. v. Craig, supra; R. v. Ouellette; and R. v. Nguyen. The Court of Appeal, in R. v. Pammett, at paras. 39-44, recently summarized the Supreme Court's guidance in this regard:

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.

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 … may result in no, partial or full forfeiture.

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.

In Ouellette, the Supreme Court … majority upheld 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.

[68] Missing from the Court of Appeal's reasons in R. v. Pammett are the results in R. v. Craig, the workhorse companion case to R. v. Nguyen and R. v. Ouellette. The trial judge had declined to order any forfeiture on sentencing Ms. Craig in 2005. The British Columbia Court of Appeal ordered full forfeiture on appeal. Based on several considerations, including "the circumstances of the offence", the Supreme Court, at paras. 67-68, reversed the forfeiture order imposed by the Court of Appeal in Craig and affirmed both the trial court's "decision not to order forfeiture" and the appeal court's decision to set aside the substantial fine imposed at trial. As described at paras. 4-9 and 63-65, the offender was a middle-aged woman without criminal antecedents who was convicted of producing marihuana. Approximately half of the property at issue, the offender's home, was dedicated to marihuana cultivation, production and storage and had been for at least several years. The house was extensively adapted to the offender's unlawful trade. She had been lucratively engaged in the illicit business for at least a half-decade as she owed back taxes for "marihuana earnings reaching back to 1998". Further, she distributed as well as grew her product, delivering it in her car. The value of the seized plants and harvested material amounted (as with the seized drugs in the matter before me) to over $100,000. The case of R. v. Nguyen, supra, where full forfeiture was affirmed, was distinguished on the basis, first, that the house in that case was bought as a commercial grow-op, so that, as put at para. 2, it "was tainted from the outset by a criminal purpose", and, second, that its "main function was as the site of a grow operation" rather than a residence.

[69] Significantly, and unlike the immediate Respondents, the subjects of the forfeiture order inquiry in Craig, Nguyen and Ouellette had each been "convicted of a designated substance offence" that "was committed in relation to" offence-related property. Accordingly, it is not surprising that the Supreme Court did not directly address the meaning of "innocent of any complicity … or of any collusion" in a designated substance offence, which consideration only arises with respect to claims from persons who, unlike the three appellants then before the Court, have "a valid interest in the property" and who were neither convicted of or, pursuant to clause 19(3)(a), "charged" with a property-related designated substance offence.

[70] However, the Court did develop a theory of liability for disqualifying unconvicted claimants from relief from forfeiture and, thereby, poured meaning into the concept of "innocence" as it is used in s. 19(3). As explained in Craig, supra, at paras. 41 and 42:

Individuals who have allowed their property to be used for criminal purposes, even if their conduct does not rise to the level of criminal liability with respect to the particular offence, may, as a result, also be subject to forfeiture orders, as reflected in s. 19(3), which provides a recovery mechanism for third-party owners of offence-related property to be forfeited. Under that section, a court must be satisfied that individuals are innocent of any complicity or collusion in the offence before they can recover their property. This is consistent with the historic roots of forfeiture as punishment for negligently allowing one's property to be used for wrongful purposes, a consequence connected to, but not identical to, punishment for the offence.

[T]here is a separate blameworthy element to using or allowing the use of one's property for criminal purposes.

[71] Drawing on the legislative history of s. 19.1(3), several supplementary propositions ("salient features", in the language of the Court) are set out in Craig, supra, at para. 22 (emphasis in original) that are germane to these proceedings:

• "First, … the s. 19.1(3) proportionality test was adopted to counterbalance the potentially harsh effects of extending the definition of offence-related property, without qualification, to all real property. The test, therefore, should be read in this remedial light."

• "Second, … while the offender's involvement in organized crime is not the only focus of the forfeiture of offence-related property scheme, it can nevertheless be an important factor in applying the test under s. 19.1(3)."

• "Finally, while a forfeiture order may have a punitive impact on an offender, it is also aimed at taking offence-related property out of circulation and rendering it unavailable for future designated substance offences."

In R. v. Van Bemmell, the Court of Appeal, relying on "the trilogy", made clear that, as regards the disproportionality calculus, "[r]elief against forfeiture is not restricted to cases in which the offences are minor or technical in nature" but, rather, depends on application of all three factors set out in s. 19.1(3).

E. THE INTERPRETIVE QUANDARIES

(a) Introduction

[72] Craig and its companion cases put to rest a number of vexing questions arising from the application of the "proportionality test" in s. 19.1(3) of the CDSA. As earlier suggested, there are at least three further areas of interpretive controversy that impact on the immediate application of the regime. One challenge arises from the meaning to be attributed to the word "satisfied" that appears throughout the forfeiture regime. Two others (the complexities of which have already been introduced) are of particular importance in giving proper effect to s. 19(3): first, the meaning of "a person who was charged with a designated substance offence" and, second, the meaning of "appears innocent of any complicity … or any collusion …". Clearly, if the Respondents are among those captured by the term "charged" in s. 19(3), then they are not lawfully entitled, no matter how "innocent", to have their home returned to them under that provision. If, however, they are eligible under s. 19(3), their claim then turns on the meaning of the phrase "appears innocent" in this statutory context.

(b) The Meaning of "Satisfied"

[73] A successful forfeiture application under s. 16 of the CDSA depends on a court being "satisfied" of several statutory preconditions. These include a court being satisfied that the lawful owners of the property at issue (here, the Respondents) do not "appear innocent", as put in s. 19(3), of any complicity or collusion and, second (and as typically arises in forfeiture applications) that the "impact" of such order is not "disproportionate" as calibrated by the factors itemized in s. 19.1(3). These, as already noted, are the two contentious issues on this application.

[74] While Craig and its sister cases offer considerable guidance on the assessment of disproportionality, the meaning and application of the term "satisfied" in ss. 16 through 20 of the CDSA have not yet been addressed by the Supreme Court. There is, however, no dearth of judicial opinions on the subject, most framed in terms of the allocation of legal or evidentiary burdens. One braid of authority, on which the A.G. relies, holds that the CDSA scheme effectively creates a presumption of forfeiture once the predicate conditions are met and, accordingly, it is the person against whom an application is brought who bears the onus, on the civil standard, to displace the presumption by satisfying the court of his or her innocence or of the disproportionate impact of a forfeiture order. A contrary (and, frankly, minority) view is that the A.G., as the moving party, bears the burden throughout the application, and so must persuade a judge that the property owner is not innocent or that the effect of the forfeiture sought would not be disproportionate. A third position holds that there are no presumptions and, as a result, no burden on either party to clear an orthodox standard of proof; rather, the determination of any disproportionality (the specific concern of this line of cases) simply falls to the presiding justice as guided by the factors set out in s. 19.1(3). In my view, this latter approach best captures the nature of the appropriate inquiry with respect to both disproportionality (s. 19.1(3)) and innocence (s. 19(3)). Further, it is consistent with the approach taken to the term "satisfied" in other statutory contexts, particularly other sentencing-related regimes where it has been read as defining a level of factual persuasion rather than the assignment of a legal or evidentiary onus.

[75] As earlier cited, in Craig, supra, at para. 41, the Supreme Court observed that under s. 19(3) a judge "must be satisfied that individuals are innocent of any complicity or collusion in the offence before they can recover their property". With all due respect, this passage does not fairly support the A.G,'s reliance on it for the proposition that the "burden is on the respondents to show that they are innocent of complicity or collusion"; the Supreme Court's words merely repeat, rather than construe, the language of the statutory provision. The Court is conspicuously silent on the question of onus. It is not central to the Court's disposition of Craig or its companion cases, and there was clearly no pressing reason to determine the issue. The Court's single subsequent opportunity to address the issue proved no more illuminating. Pursuant to a closely parallel regime in the Criminal Code (s. 490.41(3), in particular), the Court ordered forfeiture of a truck in R. v. Manning, commenting, at para. 7, only that, "on the record as we have it, we are not satisfied that the impact of the order of forfeiture sought by the A.G. was 'disproportionate'".

[76] Other courts, as noted, have been less reticent or, more fairly put, less able to evade or avoid the controversy. For example, in Villeneuve v. Canada, at 574, the Quebec Court of Appeal held that the onus is on the interested party "to convince the judge that he appears innocent of any complicity or collusion", and that the standard of proof is "on a balance of probabilities, which is the civil onus of proof". The A.G. also relies on the authority of Villeneuve with respect to the nature and carriage of the onus. Further support for this approach is often sourced to R. c. Houle and R. v. 1431633 Ontario Inc..

[77] Significantly, these cases all deal with the onus that obtains where a person claims an interest in property that has already been ordered forfeited and seeks by way of his or her own application to have that order set aside, pursuant to s. 20 of the CDSA or equivalent forfeiture provisions in the Criminal Code, rather than, as here, the allocation of onus, if any, in the course of an application brought by the A.G. to secure an order of forfeiture. As West J. noted in R. v. Fercan Developments, at para. 22:

It is generally accepted that a party, which brings an application, bears the onus of establishing their position on a balance of probabilities. … [Post-forfeiture] cases dealing with section 20(4) of the CDSA … or sections 462.42(4) or 490.5(4) of the Criminal Code … are not particularly helpful in determining which party bears the onus under section 19(3) of the CDSA.

Other than these post-forfeiture cases and, in my view, misplaced reliance on the Supreme Court's reasons in Craig, counsel for the A.G. cites but a single decision in support of its claim that the "burden is on the respondents to show that they are innocent" under s. 19(1): R. v. Cam. There is, however, more formidable authority for the same proposition. One example is afforded by R. v. Old Navy Property, at para. 58, appeal dismissed on jurisdictional grounds, 2014 ONCA 471; leave to appeal denied. And Antillas Communication Inc. v. The Queen and R. v. Sankar are to identical effect, although each addresses a closely analogous forfeiture regime under the Code rather than the CDSA.

[78] With respect to the parallel issue under s. 19.1(3), the relevant jurisprudence has almost uniformly held, as pled by the A.G., that "the burden of establishing disproportionality" rests, on the civil standard, on an offender seeking restoration of some or all of the offence-related real property. The A.G. here relies, inter alia, on R. v. Old Navy Property Corp., supra, at para. 64: "The burden of proof is also on the Respondent under s. 19.1(3) to show entitlement to relief from forfeiture based on disproportionality". (See also: R. v. Oullette; R. v. To; R. v. Huynh and Ta; R. v. Siek; R. v. La; Canada (A.G.) v. Nguyen; and R. v. Sodhi.)

[79] Clearly, this approach to "proof" of disproportionality is well endorsed. Nonetheless, I am again of the view that it is inconsistent with the fundamental proposition that the moving party – here, the A.G. – carries the burden of persuasion. Further, it fails to acknowledge the statutory distinction between an application brought by an A.G. for forfeiture (pursuant to s. 16 or 17 of the CDSA) with an application initiated, under s. 20, by an individual for return of or compensation for his or her interest in property that has already been ordered forfeited to the state.

[80] Finally, this line of authority imposes a legal burden and fixes the degree of that burden where Parliament is not only conspicuously silent but where it has elsewhere in the very same statutory regime seen fit to stipulate the precise standard of proof that is to apply. (As already noted, the standard of "satisfied" is amplified by the phrases "on a balance of probabilities" and "beyond reasonable doubt" in s. 16(1) and ss. 16(2) and 17(2), respectively.) As said by Hourigan, J. (as he then was), in R. v. Sportun, at para. 27, with respect to the migration of the legal burden within the CDS A forfeiture provisions, it is only with respect to s. 20 applications (dealing with property claimants efforts to secure relief after forfeiture has already been ordered) that, "the onus … shifts away from the Crown and on to the party who is bringing the application". (See also, R. v. Nguyen, at para. 67.)

[81] For similar if converse reasons, and in particular those related to Parliament's careful choice of statutory language, I have difficulty subscribing to a reading that imposes a civil standard of proof on the A.G. with respect to issues of complicity and collusion (as does Fercan Developments, supra) or disproportionality. In the language of Fercan Developments (one of many forfeiture cases in which the office of "Crown" is used interchangeably with that of the "Attorney General"), at para. 61:

[T]he Crown bears the onus, on a balance of probabilities, to satisfy the court that the lawful owner or person lawfully entitled to possession is complicit in the designated substance offence or in collusion relation to such an offence and therefore is not entitled the return of the property. The Crown bears the onus establishing that the property is forfeitable throughout its application under section 16.

(See also, R. v. Pelly, at para. 15: "the Crown bears the onus throughout the forfeiture application".) While I agree that the application judge must be convinced that the threshold conditions precedent to granting a forfeiture application are made out before making such order, I cannot accept a construction that reads the word "satisfied", where otherwise unqualified, as imposing a civil burden on the A.G. with respect to an exempting feature of the statutory protocol. Nor can I accept, as does Fercan Developments, that the determination of innocence in s. 19(3), and disproportionality in s. 19.1(3), attract differing burdens or standards despite Parliament's use of the identical and unadorned word "satisfied" to define the appropriate measure of conviction in both provisions.

[82] In my view, the question is ultimately not one of onus but more that of determining the standard upon which a court can say with sufficient confidence that it is "satisfied" of the requisite state of affairs. The British Columbia Court of Appeal advanced a similar position in R. v. Sundstrom. As said by Donald J.A. for the Court, at paras. 15-16:

In my opinion, the forfeiture scheme in the CDSA does not create any presumptions one way or the other. The respondent [Crown] suggests that where a person is convicted of a predicate offence, once the Crown establishes that the property was offence-related there is a presumption of full forfeiture which requires the offender to satisfy the court that full forfeiture would be disproportionate. The respondent argues that the court may only exercise its discretion to decline full forfeiture when satisfied it would be disproportionate, having regard to the listed factors in s. 19.1(3) of the CDSA.

In my view, the respondent places undue significance on the phraseology of s. 19.1(3), particularly the use of the word "disproportionate" in the phrase "if a court is satisfied that the impact of an order of forfeiture ... would be disproportionate [to the listed factors] ... it may decide not to order the forfeiture ..." As I read the provision, the issue of proportionality is at large rather than, as suggested by the respondent, there being an onus on the interest holder to displace a presumption of proportionality. I regard the matter to be wholly within the discretion of a sentencing court, guided of course by the factors listed in the CDSA and the relevant case authority.

[83] The reasoning in R. v. Sundstrom is consistent with that bearing on the construction of the same standard – "satisfied" – in at least two other areas of criminal law. The first pertains to conditional sentences. As is well known, section 742.1 affords a court a discretion to order an offender to serve a reformatory-length sentence of imprisonment in the community "if" certain conditions are fulfilled. But for the first condition, all of the statutory criteria that follow are static considerations that are met, or not, upon mechanical review. The first, however, involves a potentially challenging judicial assessment. In the language of the provision, a court may order a conditional sentence if it "is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental principles of sentencing" (emphasis added).

[84] R. v. Proulx remains the seminal authority on the application of the conditional sentencing regime. The position of the Ontario Attorney General on the hearing of the Proulx appeal, as summarized by the Supreme Court, was that "the offender has the burden of proving that a conditional sentence should be imposed pursuant to s. 742.1" and, in particular, with respect to public safety and fundamental sentencing principles. The Court unanimously rejected this submission. As said by Chief Justice Lamer, at para. 120,

The wording used in s. 742.1 does not attribute to either party the onus of establishing that the offender should or should not receive a conditional sentence.

Rather, the determination is left to the presiding justice upon "tak[ing] into consideration all the evidence".

[85] These passages do more than express deference to a trial judge's exercise of his sentencing discretion. The provision at issue is the only eligibility criterion for a conditional sentence that requires a factual weighing and assessment. A judge must be "satisfied" that the condition is met before an offender can qualify for a conditional sentence. Similarly, restoration of offence-related property under ss. 19(3) or 19.1(3) depends on a judge being "satisfied" of, respectively, a lawful owner's innocence of complicity or collusion or the disproportionate impact of a forfeiture order. I see no good reason to read "satisfied" as imposing a legal burden in the case of determining whether restrained property should be restored under the CDSA forfeiture regime when Parliament's use of the same word has been held to impose no such burden with respect to the statutory pre-conditions for qualification for a conditional sentence.

[86] The Court of Appeal's approach to the language of "satisfied" in the "long-term offender" provisions in the Code is to similar (if admittedly more attenuated) effect. Subsection 753.1(1)(c) provides, inter alia, that a court may "find an offender to be a long-term offender if is satisfied that … there is a reasonable possibility of eventual control of the risk in the community" (emphasis added). In R. v. (D.) F.E., the Court of Appeal concluded, at para. 50, that the provision did not impose an onus on either party. Although expressed in negative terms, the Court alluded to the standard that does obtain:

If the sentencing judge is uncertain whether that requirement is satisfied, … the sentencing judge should refuse to exercise the discretion not to declare the offender dangerous based on the long-term offender provisions.

(See also the Court of Appeal decisions in R. v. Simon, R. v. S. (C.W.), as well, R. v. Wormell and R. v. Gibson, at para. 56.)

[87] I appreciate that these latter approaches to the meaning and application of the word "satisfied" relate more directly to the law of sentencing than do the forfeiture provisions in the CDSA. Nonetheless, given the textual similarities, the fact that consideration of ss. 19(1) and 19.1(1) arises only on applications brought by the A.G., and the absence of any surrounding language indicative of an onus (let alone, as sometimes described, one that "shifts" from the A.G. to an interested party), I am persuaded that the correct approach is that set out by the British Columbia Court of Appeal in R. v. Sundstrom, supra. In short, neither side carries a burden with respect to the key issues of proportionality (as was focus in Sundstrom) or innocence. Rather, each of these issues remains "at large" and "wholly within the discretion of a sentencing court, guided of course by the factors listed in the CDSA and the relevant case authority".

[88] That said, and assuming all the other statutory criteria are met, one must remain mindful that dismissal of a forfeiture application commenced by the A.G. under s. 19(3) depends on judicial satisfaction that a lawful owner "appears innocent" (not "guilty") and, under s. 19.1(3), that the impact of the sought forfeiture order "would be disproportionate" (not "proportionate"). Put otherwise, the statutory phrasing of the requisite factual inquiries prescribes the direction of judicial scrutiny. Anything less than a high degree of judicial confidence will not avail an interested party or other relief claimant. That said, the content of the inquiry – and, in particular, the meaning of "appears innocent" – remains to be determined.

(c) The Meaning of "a Person who was Charged with a Designated Substance Offence" in Section 19(1)

[89] The parties have joined issue with respect to two viable disputes: the Respondents' innocence pursuant to s. 19(3) and the disproportionate impact, if any, of a forfeiture order under s. 19.1(3). The Respondents' eligibility to have the disproportionate impact of any forfeiture order judicially considered is inconvertible. Their qualification for relief on the basis that they "appear innocent" is less settled. The parties – including, to be clear, the A.G. – do not question this court's competence to conduct an innocence inquiry under s. 19(3) and, if warranted, grant the restoration sought. Counsel for the A.G. flags no impediment to the Respondents' pursuit of relief from forfeiture under this provision; indeed, almost all of the evidence called at this hearing and the bulk of the parties' facta and oral argument were devoted to creating and reviewing a record of circumstantial evidence supporting and detracting from the Respondents' protestation of innocence. Nonetheless, the parties' reason and civility cannot cloak me with a jurisdiction I do not otherwise enjoy. In short, I cannot consider the Respondents' assertion of innocence under s. 19 if they are embraced by the language of "charged with a designated substance offence" in clause 19(3)(a).

[90] Sub-section 19(3) grants a judge hearing a CDSA forfeiture application a discretion to order offence-related property returned to "any person" who is a lawful owner of the property on the basis of the owner's apparent innocence. A "person who was charged with a designated substance offence" is expressly excluded from the compass of the words "any person", and thus facially ineligible to advance their claim under this provision. This is the position taken by Matheson J. in R. v. Brooks. Brooks, the registered owner of a car, was seated in its passenger seat when 28 pounds of marihuana were found inside the vehicle. She and the driver were both charged but, following a trial, only the driver was found guilty. At a subsequent forfeiture hearing, Brooks "acknowledged" (mistakenly, in my view) that, as put at para. 10, she was "not entitled to relief from forfeiture pursuant to s. 19(3), being 'a person who was charged with a designated substance offence'". In light of this concession, Brooks' qualification for an innocence inquiry under s. 19(3) was not contested, nor was any attention devoted to whether a different interpretation of Brooks' eligibility for relief might follow upon a considered application of, most directly, R. v. Grdic.

[91] Other than R. v. Brooks, the CDSA forfeiture jurisprudence is silent on the meaning of "was charged" in this provision. With all due respect to Matheson J., I ultimately concur with the silent agreement of the parties before me that the "innocence" of the Respondents under s. 19(3) is a legitimate matter for judicial inquiry in the circumstances that inform this application. That said, the proper construction of the phrase "a person who was charged with a designated substance offence" in s. 19(3) – and, in particular, the words "was charged" – is not free of difficulty.

[92] Part of this difficulty arises upon consideration of the consequences of adopting a Brooks-like construction. Lawful property owners charged with a designated substance offence in relation to their property and who were later acquitted or had their charge stayed or withdrawn and who, it transpires, were truly factually innocent of the offence with which they were charged would be forever barred from having any of their personal property returned to them and from retaining ownership of their real property, including their own homes, other than by way of a proportionality assessment or their own application under s. 20. I appreciate that, as already noted, the majority opinion in Craig, at para, 54, observed that, "real property is a quantitatively and qualitatively different kind of asset" from personal property, but the distinction there drawn relates exclusively to a s. 19.1(3) disproportionality analysis and is not addressed to a property owner's innocence, apparent or real.

[93] It is also worth noting (if only to introduce a real-world element to the discussion) that the risk of innocent persons being charged in the course of a drug enforcement exercise is far from a far-fetched prospect. Criminal law practitioners understand that, to avoid the risk of "wrongful acquittals", the police routinely charge every adult in a premise in which drugs are found – visitors (such as, by way of stark example, an owner-landlord collecting the rent) as well as residents. As the investigation proceeds, it is not at all uncommon, upon Crown review, for the charges against at least some of the occupants to be withdrawn, if (at least on occasion) in exchange for an exculpatory statutory declaration so to protect the integrity of the prosecution. Put otherwise: truly innocent persons are, and not infrequently, charged with drug-related offences.

[94] If the Brooks reading were to prevail, factually innocent owners (including those who exercised assiduous diligence) of personal property such as cars, transport trucks, boat, ships and other valuable holdings would have no recourse but to suffer forfeiture of their possessions merely because they were once charged with a predicate offence. Their path to a remedy, if any, would be through s. 20, requiring them to absorb the burden, legal and financial, of bringing their own application for a declaration of their interest after forfeiture had already been ordered and after, at least potentially, the property at issue had already been subject to disposal. This scenario legally obtains even if the A.G. conceded a lawful property owner's innocence immediately upon withdrawal of his or her charges. Further, the claimant's post-forfeiture application could not succeed unless a judge was satisfied not only of the claimant's innocence but that he or she exercised "all reasonable care" to prevent those to whom the lawful owner had granted possession from criminally exploiting the property – a far more daunting hurdle than applies under s. 19(3) and one that, under s. 20, is clearly borne by the applicant owner.

[95] So long, of course, that the property at issue is real (not personal) property, innocent but once charged owners of that property could theoretically secure the return of their property under s. 19.1(3) so long as "a court is satisfied" that the impact of a forfeiture order is "disproportionate". However, as Abella J., writing for the majority of the Supreme Court in R. v. Craig, made clear, at para. 48, the three "forfeiture factors found in s. 19.1(3) … [are] a complete code for deciding whether, and to what extent, a forfeiture order should be made" under what she styles the "proportionality test". Critically, none of these three comprehensive factors include, either expressly or in the Court's elaboration of their meaning, any consideration of a property owner's innocence. This, in my opinion, is quite simply because the Court appreciated that s. 19.1(3) was intended to provide a mechanism for determining whether offenders, or those whose liability remained unresolved, warranted a measure of equitable relief, in part or whole, from, as put at para. 22, "the potentially harsh effects" of a full forfeiture order. The fate of property owners who claimed to be innocent, whether or not they had once been charged, was to be resolved under s. 19(3) not s. 19.1(3).

[96] What, in other words, was not contemplated by the Supreme Court, or by Parliament, is that a truly innocent property owner – whether or not once subject to a designated substance offence prosecution – would be remedially restricted to the "proportionality test" or, for that matter, that the scope of his or her relief would be limited to a claim to real property. Indeed, in the few brief paragraphs Abella J. devotes to the factors that exhaustively constitute the calculus for assessing disproportionality, she three times refers to "the offender" (that is, a person convicted of the requisite offence) and not once to anyone occupying any other status in the prosecutorial process. While "the offender's role in the commission of the offence" is recognized as a material consideration in assessing the second statutory factor ("the circumstances surrounding the commission of the offence"), the Court's approach to "role", as demonstrated in the Craig trilogy, is, like that taken on sentencing, predicated solely on shades of culpability, not innocence.

[97] "Innocence" is simply not part of the s. 19.1(3) disproportionality equation as any lawful property owner maintaining his or her innocence has, in the grand scheme, already had such claim determined under s. 19(3). Of course, where a court is not "satisfied" that a lawful owner "appears innocent" under s. 19(3), or where only "part" of any real property is ordered returned under that subsection, an aggrieved lawful owner may still have the disproportionate impact of a forfeiture order considered under s. 19.1(3) as that provision begins with the words, "Subject to an order made under subsection 19(3), …"

[98] I appreciate that forfeiture is distinct from sentencing, but R. v. Craig, supra, several times emphasizes that such orders have a punitive dimension. Applying common sense, fairness and the rule in Slaight Communications, supra, I see no reason other than inequity to read the relevant provisions so as to deny lawful owners of property whose charges have been stayed or withdrawn, such as the immediate Respondents, the opportunity to have a court determine whether it is satisfied that they are innocent of any complicity or collusion in the designated substance offence that bottoms a forfeiture application brought by the A.G.. Failure to appropriately construe the language of clause 19(3)(a) inevitably means that some innocent persons will be deprived of their cars or boats or other valuable personal property without compensation and that, in the end, persons will end up being punished for something for which they are not legally or factually responsible.

[99] In my view, the words "was charged" are to be read as including the notion of any predicate charge remaining unresolved at the time of the forfeiture application. If, of course, a charge is resolved by way of a finding of guilt, the offender has no realistic standing under s. 19(3). If still outstanding, the application is premature and the claimant should await the disposition of the charge at a criminal trial under adjectival rules that far better protect a claim of "innocence". (Most forfeiture applications are brought at the conclusion of a claimant's trial and before the judge who presided over his or her trial rather than, as here, by way of third party claimants in a collateral proceeding.) If, however, the charge is resolved by way of acquittal, withdrawal or a stay of prosecution, there seems no reason in law or policy to construe the contentious phrase in a manner that bars an innocence hearing under s. 19(3).

[100] There is reputable authority for this approach. R. v. Connolly affords one example. The Attorney General of Canada sought to divest Mrs. Connolly of her half-interest in a matrimonial home pursuant to a proceeds of crime forfeiture regime under the Code that is near-identical to the CDSA provisions that here govern. Mrs. Connolly's husband had been convicted of the predicate offences at a criminal trial; Mrs. Connolly was found not guilty at the same trial. The relevant portions of the Court's reasoning read, at paras. 26 to 33:

By statute Mrs. Connolly has a 50 percent ownership interest in the property pursuant to s. 8 of the Family Law Act:

The Federal Crown could not divest Mrs. Connolly of that interest without first of all establishing that her interest in the property resulted from the proceeds of crime.

What then does a bone fide third party applicant have to show to be successful under s. 462.41?

[As the statute provides, t]he applicant has to be a person other than a person charged or convicted of an enterprise crime.

The section does not speak to a situation where a person charged is later acquitted. Mrs. Connolly was clearly a person charged, but she was not convicted, in fact, she was charged and acquitted by the trial judge. I read the section as not excluding a person charged and later acquitted. If the section was read to exclude a person charged and then later acquitted, it would clearly be a violation of the Charter of Rights and Freedoms, R.S.C. 1985.

… My interpretation of the section would hold that the Applicant is not exempt from applying [for relief from forfeiture] as she is a third party with an interest created by provincial statute. [Emphasis added.]

The Attorney General's appeal from an order returning Mrs. Connolly's share in the property was dismissed: Connolly v. Canada (Attorney General), at para. 15, where Welsh, J.A., writing for Court of Appeal, commented that, "While the issue was not argued, I am not convinced that Ms. Connolly would have been precluded from making an application under this section even though she was, at the time [the forfeiture application was commenced], charged with a designated offence" (emphasis added).

[101] The Connolly reasoning for determining that a person "charged", but not convicted, of a designated substance offence" maintained an entitlement to return of property under s. 19(1) was recently followed in Re Dew, esp. at para. 29, where McKelvey J. concluded:

The presumption of innocence as guaranteed by section 11(d) of the Canadian Charter of Rights and Freedoms would preclude the A.G.'s interpretation of denying relief from forfeiture based only upon the charging of an offence and not a conviction.

See, also, R. v. ERJO Investments Ltd., at para. 42, where in aid of the proposition that the "legislature does not wish to take away the property of an owner who appears innocent", the court hearing a CDSA forfeiture application reached back to Lord Coke's dictum that, "Acts of parliament are to be so construed as no man that is innocent or free from injury or wrong, be by a literal construction punished or endamaged": In the Company of Proprietors of the Margate Pier v. Hannam et al..

[102] In the result, I find the Respondents are entitled to have their claim of innocence determined under s. 19(3) of the CDSA.

(d) The Meaning of "Appears Innocent"

[103] The precise language of s. 19(3) here bears repetition:

Where a court is satisfied that any person, other than

(a) a person who was charged with a designated substance offence, …

is the lawful owner or is lawfully entitled to possession of any property or any part of any property that would otherwise be forfeited pursuant to an order made under subsection 16(1) or 17(2) and that the person appears innocent of any complicity in an offence referred to in paragraph (a) or of any collusion in relation to such an offence, the court may order that the property or part be returned to that person.

[104] Assuming the Respondents, as persons once but no longer "charged" with a designated substance offence, are (as I construe the legislation) otherwise eligible to have the impugned property "returned" to them under s. 19(3), the question remains as to whether each or either of them "appears innocent of any complicity in [the offence] or of any collusion in relation to such an offence". The language of "any complicity" and "any collusion" is of broad sweep. And while the words "complicity" and "collusion" are legally familiar, the phrase "appears innocent" is of far less common usage and suggests a more relaxed standard of judicial satisfaction in a claimant's innocence than may be signified by the words "is innocent".

[105] There are few forfeiture-related precedents respecting the meaning of "complicity" and "collusion". The primary definitional authority is the Quebec Court of Appeal decision in Villeneuve v. Canada, supra. Although focused on the Code rather than CDSA forfeiture provisions, the words at issue are identical in both statutes – that is, whether the person claiming entitlement to return of the impugned property "appears innocent of any complicity in any … designated substance offence … or of any collusion in relation to any such offence". "Complicity", said the Court at p. 574, is "a well-known concept which is well defined in criminal law". Less so, however, the concept of "collusion". As explained by Robert J.C.A. on behalf of the Court, at pp. 574-575, "collusion" is a "civil law concept" that warranted careful attention:

Grard Cornu, in his Vocabulaire juridique [Presse Universitaire de France, 1987, p. 149] defines it as follows [translation]

A clandestine agreement between two or more persons with a view to misleading one or more persons.

The Dictionary of Canadian Law [Dukelow and Nose, Carswell, 1990, p. 174] gives the following definition:

Coming together to commit fraud or to deceive.

Hubert Reid [Dictionnaire de droit québcois et canadien, Wilson and Lafleur, 1994, p. 99] proposes the following definition [translation]

A clandestine agreement between two or more persons with a view to causing prejudice to one or more persons or attaining an objective which is prohibited by law.

With the assistance of these definitions, I believe we can conclude that collusion includes two components: firstly an agreement and secondly an aim, which is that of misleading one or more persons.

[106] The Quebec Court of Appeal's approach to the meaning of "collusion" was expressly adopted by Hill, J. in Canada (Works and Government Services) v. Vito. Speaking to the meaning of both "complicity" and "collusion", the Court of Appeal (Vito v. Canada (Public Works and Government Services)), at para. 18, said approvingly of Hill J.'s approach:

The application judge set out both common sense and authoritative definitions of the terms "complicity" and "collusion". At para. 36, he held that "[c]omplicity generally connotes acting as a party or accomplice with knowledge of the unlawful objective and an intention to participate in furtherance of attaining the objective". He quoted a passage from Villeneuve v. Canada, supra, defining collusion as an agreement with an aim to mislead one or more persons.

Black's Law Dictionary (8th Ed., Thomson/West, St. Paul, MN. 2004) is to the same effect, defining "complicity" as "association or participation in a criminal act" and "collusion" as an "agreement to defraud another or to do or obtain something forbidden by law". Conventional dictionaries do not substantively differ. The Canadian Oxford Dictionary (2nd. Ed., Oxford, Don Mills, 2004), for example, defines "complicity" as "partnership in crime or wrongdoing" and "collusion" as a "secret agreement, esp. for a fraudulent purpose".

[107] As said in R. v. ERJO Investments Ltd., supra, at para 34, both "[c]omplicity and collusion logically require that the owner of the property have knowledge of the activity of the offender". And "complicity" clearly casts a far broader net than "collusion". How broad, however, remains a critical question; in particular, whether the scope of liability comprehended by "complicity" within the forfeiture regime is the same or wider than that ordinarily connoted by the same concept in the criminal law. The definition endorsed by the Court of Appeal in Vito, supra, suggests a consistent approach to the boundaries and content of "complicity" in both contexts. That, however, was before the Supreme Court's reasoning in Craig.

[108] "Complicity" and "accomplice" share etymological roots. The latter word, "accomplice", is most commonly employed in the law of evidence to identify a class of prosecutorial witnesses whose testimonial trustworthiness is sufficiently suspect by virtue of being parties or accessories as to command a cautionary instruction: Vetrovec v. R.. Apart from counseling (Code, s. 22), the general liability of accomplices, like that of principals, is described under the rubric of "parties to offence" (characterized, in particular, as aiding and abetting) in s. 21 of the Code. As long settled, something more than mere presence or passive acquiescence is required to ground criminal responsibility as an accessory rather than principal perpetrator: The Queen v. Coney; Dunlop and Sylvester v. The Queen. Absent a legal, as opposed to merely moral, duty to act, mere omissions or negligence do not generally render one a culpable party. (See, for example, R. v. Cosgrove.) The definition of "complicity" for purposes of forfeiture applications, as adopted by the Court of Appeal in Vito, supra, reflects this approach: "acting as a party or accomplice with knowledge of the unlawful objective and an intention to participate in furtherance of attaining the objective" (emphasis added).

[109] The supplementary intentionality identified in Vito appears no longer an essential threshold consideration in assessing liability in the context of forfeiture. In Craig, rendered a year after Vito, the Supreme Court clearly distinguished between the standard required to establish criminal responsibility for "complicity" and the lower hurdle that obtains in the case of forfeiture. To repeat the salient portions of the Court's reasoning, at paras. 41 and 42:

Individuals who have allowed their property to be used for criminal purposes, even if their conduct does not rise to the level of criminal liability with respect to the particular offence, may, as a result, also be subject to forfeiture orders, as reflected in s. 19(3), which provides a recovery mechanism for third-party owners of offence-related property to be forfeited. … This is consistent with the historic roots of forfeiture as punishment for negligently allowing one's property to be used for wrongful purposes, a consequence connected to, but not identical to, punishment for the offence.

[T]here is a separate blameworthy element to using or allowing the use of one's property for criminal purposes.

Accordingly, the property of a third-party (that is, non-offender) owner is liable to forfeiture under the CDSA where the owner knowingly or, it appears, even negligently permits his or her property to be used for or in connection with the commission of a designated substance offence.

[110] The meaning of the phrase "appears innocent" has thus far escaped detailed or authoritative inquiry. As I have earlier suggested, the peculiar locution connotes something both meaningfully different and less demanding than would be conveyed by the phrase "is innocent" – much as "appears guilty" would result in the conviction of far more defendants than does the standard of "is guilty". Factoring in the Craig-defined minimal blameworthiness requirement, and momentarily leaving aside the concept of "collusion", I conclude that declining forfeiture under s. 19(3) requires that the application judge be satisfied a non-offender lawful owner "appears" – not "is" – "innocent" in the sense that he or she did not knowingly or negligently allow their property to be used in relation to a designated substance offence.

F. APPLYING THE LAW

(a) Introduction

[111] The A.G. seeks an order of forfeiture with respect to Respondents' home at 15 Tamora Court in Toronto. The Respondents resist this application. The request an order returning this property to them, pursuant to s. 19(3) of the CDSA on the basis of "innocence" or, on grounds of disproportionate impact under s. 19.1(3), or that the court decline to order forfeiture and revoke the restraining order made in respect of this same property. For the reasons I set out below, I am of the view that the Respondents are entitled to have their home at 15 Tamora Court restored to them by either or both of these statutory routes.

[112] Put otherwise: I am satisfied that they appear innocent (indeed, are innocent) of complicity or collusion, and see no reason in all the circumstances to exercise any residual discretion under s. 19(3) to do other than "order that the property be returned to" the Respondents. Independently, and in the alternative (if I am wrong as to the Respondents' eligibility for relief under s. 19(3)), I am equally satisfied, upon due consideration all the relevant statutory factors, that "the impact of an order of forfeiture … would be disproportionate" and, consistent with my consequent discretion under s. 19.1, "decide not to order the forfeiture" sought by the A.G. and, further, to revoke the restraint order currently prohibiting disposition of the 15 Tamora Court property.

(b) Section 19(3): "Appears Innocent"

(i) Introduction

[113] Nothing directly implicates either Respondent in their son Hanif's drug dealing. The case both for and against the Respondents' claim of innocence depends entirely on an interactive assessment of the weight and probative direction of various threads of circumstantial evidence and, of course, the Respondents' credibility. Those circumstances, says the A.G., cumulatively amount to an irresistible inference that the Respondents were aware of and, at minimum, tolerated Hanif's criminality. In short: surely each of them knew, or must have known, what their son was up to and their testimonial denials are simply not worthy of credit.

[114] As my earlier comments make patent, I take a very different view of the force and direction of the evidence. Weighed against alternative explanations and tested by their compatibility with the physical evidence, I ultimately accept the Respondents' disavowals of any material knowledge, or even suspicions. In my assessment, the surrounding circumstances, viewed globally, confirm rather than detract from their denials of any complicity in the designated substance offences. The Respondents may have been naïve, locked in their own bubble or simply oblivious to Hanif's mischief, but I find they did not know, suspect or were willfully blind to his criminal enterprise. Hanif was in his mid-30s. As far as the Respondents were aware, he had attended college, worked in the car rental business and, more recently, on music promotion projects. And they continued to support him, at least by way of rent-free accommodation in the family home. Their failure to make inquiries or closely supervise their son's daily activities, some ten years after his single prior conflict with the law, does not amount to negligence or any liability comprehended by the CDSA forfeiture regime. I recognize that the doctrine of willful blindness may well have no application where, as under the forfeiture scheme, negligence may ground liability. However, the absence of any reasonable basis to suspect that their son was involved in the illegal drug business and was exploiting their home to pursue that trade render this point, at least for the instant application, of academic interest only. (See R. v. Farmer, esp. at para. 26.)

[115] I accept as well the Respondent's claims of ignorance respecting the handguns found in their home. It is worth recalling, however, that these firearms have no direct bearing on the s. 19(3) analysis as any associated criminality does not fall within the definition of "designated substance offence" – a condition precedent to a forfeiture application under the CDSA. Of course, the hidden firearms would be of substantial evidentiary value respecting the core question were I to conclude, which I do not, that the Respondents were aware of their presence at 15 Tamora Court.

[116] By way of final preliminary comment respecting the critical assessment under s. 19(3), the issue of "innocence", or not, here devolves to the question of whether the Respondents were complicit, not whether they colluded, with their son. The efforts of the A.G. to perforate the Respondents' claim of innocence have not been framed as collusion, nor does the A.G. point to any evidence that speaks to collusion as distinct from complicity. Given the broad scope for forfeiture liability under the rubric of complicity, it would be a rare forfeiture case that turned on evidence of collusion or, in any event, exclusively so.

(ii) The Circumstantial Evidence

[117] There are several categories of circumstantial evidence that warrant close attention. The first includes the physical evidence of drugs and drug packaging in the home at 15 Tamora Court such that, as put in the Crown's factum, the Respondents "must have known the extent of the son's drug activities". A second concern advanced, if less strenuously, by counsel for the A.G. relates to the knife and bat found under the Respondents' bed. A third arises from the Respondents' financial circumstances and, in particular, the extent of their financial obligations, Moez Jamal's expenditures and rather substantial bank transfers related to the mortgage and personal lines of credit secured by the Tamora Court residence. Finally, there are the police observations of Rosemina Jamal when she returned to 15 Tamora Court on February 21, 2012 and her initial interaction with the officer who then arrested her, all of which, says counsel for the A.G., gives rise to an incriminatory inference of prior knowledge of her son's unlawful activity.

[118] The Respondents were extensively examined with respect to these matters. My assessment of their testimony (which evidence counsel for the A.G. characterizes as inconsistent and "not reasonably capable of belief") is integrated with this review of the physical and financial circumstances and Rosemina Jamal's first encounter with the police. In the absence, as here, of any "smoking guns", the case for the Respondents pivots chiefly on whether I accept their denials of any knowledge of Hanif's criminality. That assessment rests largely on the strength of what the A.G. alleges is the cumulative effect of a skein of incriminatory circumstances.

[119] Before examining the evidence relevant to these circumstances, I note the following considerations that factor into the totality of the relevant circumstantial evidence. First, no fingerprint or similar forensic evidence links either Respondent to any of the drugs, drug paraphernalia or weapons found at their home. Further, there is no evidence of drugs or drug dealing located in the Respondents' bedroom, their daughter Sabrina's bedroom, any of the rooms routinely occupied by the Respondents, or at Moez Jamal's store. Next, there is no evidence that Hanif trafficked to customers at 15 Tamora Court or for how long he had been engaged in this enterprise from that address. And finally, neither of the Respondents was home when the drugs were first observed by the police, nor, consistent with both their testimony and the evidence of the police conducting surveillance, were the Respondents there for most of that day.

1. The Physical Evidence

[120] Substantial amounts of drugs and related paraphernalia were located in the living room and basement at 15 Tamora Court. Quite rightly, counsel for the A.G. does not rely on the drugs, guns and money secreted in Hanif Jamal's own bedroom to attribute knowledge to the Respondents. However, she says, the drugs and related paraphernalia found in shared or at least more public areas, the living room and basement, were in "plain view", the Respondents "could have accessed these rooms" at any time, and, by way of conclusory assertion, the "overwhelming logical inference to be drawn from this evidence is that the respondents [knowingly] acquiesced to Hanif Jamal keeping these drugs in their home". If the physical circumstances were restricted to this selective summary of the relevant evidence and if the Respondents had not testified, the A.G's position might well be as robust as its rhetoric. However, the evidence as to the location of the seized drugs and related items is far less immediately persuasive of the Respondents' ineluctable knowledge than the A.G.'s synopsis suggests. As a result, the challenges faced by the Respondents in rebutting the inferences the A.G. invites are not nearly as daunting as the Applicant would have it.

[121] The basement was the only location where drugs can rightly be said to have been found in "plain view". Other than the basement and apart from hidden recesses in Hanif's bedroom and a relatively small quantity of cocaine in the dining room, all of the seized drugs were found in the living room. Substantial amounts of cocaine and MDMA were located, along with several guns, ammunition and a vacuum sealer, inside a wooden side table in that room. While certainly "discoverable", none of these items were in plain view. Nor was the black-wrapped "brick" of cocaine found inside a Holt Renfrew bag and which, as the A.G.'s expert testified, was unrecognizable as a drug to those unfamiliar with the trade, even upon examination of the bag's contents. A small bag of marijuana on the sofa was at least partially concealed by a plush toy and, as I decipher the police photographs, not identifiable as a controlled substance absent close inspection. Likewise, the very small bag of cocaine among the extensive litter on the table in the adjoining dining room was far from immediately apparent. A money-counting machine was the single drug-related item that was patently visible in the living room, but without additional evidence of drug trafficking or other contextual clues, the money counting device itself, even if recognized as such, conveyed no aura of inherent criminality.

[122] For those raised in middle class homes in late-20th and early-21st century Canada, it is not uncommon for a living room to assume the trappings of a museum: composed, undisturbed, uninhabited; more to be displayed than occupied. My sense of the Respondents' living room is that it was all that and more. Other than a vase of wilting flowers that Rosemina Jamal readily acknowledged sometime placing in the room, there is no sign of family life or any personally current connection to either of the Respondents. There is clutter and residue. There is nothing that speaks of the room being used for social or familial amenities, of any contemporaneous use by the Respondents. It is as though the room had been long abandoned.

[123] The basement at 15 Tamora Court is even more forlorn. It appears, in the many tendered photographs, and as the police testified, to be used for storage, with "things everywhere": boxes, piles of old clothes and linens, discarded furniture and accumulated rubbish. The only sign of activity is in an area that was likely utilized for weighing and packaging drugs, and where substantial amounts of marijuana and cocaine were located. There is no evidence, whether testimonial or photographic, that the unfinished basement was used for those domestic activities that are typically associated with such basements: no powder room; no washing or drying machine; no laundry; no brooms or mops; no cleaning products. The basement, even more so than the living room, shows no signs of recent social habitation or use other than for those activities exclusively attributed to Hanif.

[124] Undoubtedly the Respondents, as put by the A.G. with respect to both the living room and basement, "could have accessed these rooms". The immediate question, however, is not whether they could have but whether they did. The basement contains not a trace of the Respondents' current or recent attendance, nor do its contents illustrate any motive to descend its stairs. Its appearance, in short, is entirely consistent with Moez Jamal's testimony that he had not been in the basement in months and had no reason to go there. Rosemina Jamal's evidence is to the same effect. I find the Respondents' assertions that they, but for the most rare of occasions, never entered the living and dining room areas equally convincing. They made no use of these areas of their home. They did not entertain. Their denials of accessing the rooms where the drugs and drug paraphernalia were located cohere with the physical evidence and are not otherwise contradicted.

[125] The Respondents' evidence is that they rarely even entered the living room. The only means of entry, though the French foyer doors, was routinely closed and, as I find, the view inside was obscured by frosted glass. Nor is there any evidence as for how long the living room items that now attract suspicion – the Holts bag, the marijuana under the plush toy, the money-counting machine – were exposed to view. Police surveillance of the house only began at some undisclosed time on the very day the members of the Jamal family were arrested. On the Respondents' uncontradicted account, which I accept, they left their home early that day, as they did virtually every day. As Hanif would well have understood, they were not expected to return, as was their routine, until well into the evening. He had, in the vernacular, the "run of the house" for most of each day. Rosemina Jamal testified that she had never seen the Holt Renfrew bag in the living room. I have no way of knowing when the bag was placed in that room and do not doubt her denial of ever having seen it, or any of the other now-suspicious items in the living room, before leaving home for work on the morning of February 21, 2012.

[126] The Respondents' evidence that they did not observe drugs and related items in their home is, I find, consistent with a contextual appreciation of the physical evidence tendered on this application.

2. The Knife and the Bat

[127] A baseball bat and sheathed knife were found under the bed in the Respondent's bedroom. I am frankly uncertain of any probative value attaching to this evidence and address the matter only because it forms part of the A.G.'s submissions.

[128] Moez Jamal testified he placed the items under his bed as a security measure after his home was robbed around 1986. He had since forgotten about them. Rosemina Jamal says she discovered the bat and knife when cleaning under the bed many years ago, asked her husband about them, was advised to leave them there and did so. In cross-examination, she testified that she had not cleaned under the bed for a long time. Counsel for the A.G. submits that, having regard to a photo of the floor beneath the bed, the "area appears to be clean".

[129] In my view, there is nothing before me that contradicts, directly or by inference, the Respondents' account respecting the rationale for the bat and knife being placed under the bed. Nor can I find any basis to reasonably infer the Respondents' knowledge of their son's criminality from the presence of the bat and knife. If the A.G's point, rather, is that there are here such inconsistencies between the two Respondents' accounts of the knife and bat as to generally impair their credibility, I fear I must disagree. The inconsistencies, if such they are, are minor. They deal with a collateral matter. They arise in regard to now-trivial historical events that any memory is unlikely to fully retain. In my view, the Respondents' imperfectly harmonized, but still mutually supportive, recall only enhances rather than detracts from their individual credibility. And, in any event, I am not prepared to conclude that the floor under the bed is in fact "clean" on the basis of the tendered photo alone.

3. The Respondents' Financial Circumstances

[130] The A.G., pointing to their home and cars, paints a picture of a family that "maintained a comfortable lifestyle". That is not at all the picture that I see on February 21, 2012. The Respondents' home is heavily mortgaged. Moez Jamal's business is rapidly failing. Rosemina Jamal's has suffered health crises and layoffs that have slashed her income. But for one modest automobile bought new some twelve years earlier, the family cars were aged machines that were purchased second-hand. The contents of their home are tired. There is no conspicuous consumption. Despite the Applicant's access to the Respondent's financial records, no evidence was tendered of any recent purchases of substance: no appliances; no televisions or stereos; no renovations; no vehicles; no vacations; no clothes; no dining out. There is nothing about the Respondents' "lifestyle" in 2012 that presents even as "comfortable", let alone commensurate with a lucrative drug-related income.

[131] Many years earlier, when the video business was a going concern and Rosemina Jamal maintained steady employment, it appears that the Respondents enjoyed some discretionary income. That is when the cars, chiefly used, were acquired. That is when the still heavily mortgaged small condominium in Windsor was purchased as both a home for their daughter (then attending university in Windsor) and as an investment. Those good times were long gone. The Respondents' financial situation had deteriorated and payment of routine bills and maintenance of their credit cards now depended on accessing the equity in their home. The records, which I have earlier reviewed, reflect these financial manipulations, with debt retirement coinciding with remortgaging of their property at 15 Tamora Court.

[132] There is, it is true, often a causal relationship between financial need and criminal conduct. While affording a motive, it is a mistake to presume the occurrence of the latter from the existence of the former. I do not see that playing out in the presenting circumstances. Put otherwise, I find no basis, either directly or by inference, to conclude that any of the monies used to pay down the Respondents' debts were provided by their son Hanif or were otherwise a product of his drug business. The Respondents' financial situation was clearly perilous. They each toiled very long hours to service their obligations and make ends meet. They lived a frugal life. If Hanif was, as it appears, generating a considerable income through drug dealing, he appears to have been careful to disguise his prosperity. He continued to reside at his parents' home and drive his father's 12-year-old car. Other than his collection of firearms, there is no evidence of ostentatious expenditures. And he did not, I find, share his wealth with the Respondents.

[133] The Respondents' testimonial accounts of their financial circumstances do not align perfectly. They are not, however, materially contradictory. They shared some accounts. They each took care, as best they could, of their personal obligations. And they appear to have depended on each other to service their major creditors and re-organize and extend the payment of their debts. I do not draw an inference adverse to their general credibility from the relatively minor, as I see them, inconsistencies in their evidence regarding their financial history and management over the previous decade.

4. Rosemina Jamal's Return to 15 Tamora Court

[134] There are elements of Rosemina Jamal's early return from work on February 21, 2012 and her explanation of her initial encounter with the police that are facially suspect. However, what is particularly curious, and in some way redeeming, is that she volunteered what is arguably the most incriminating aspect of the encounter – her effort to contact Hanif – after the A.G. had conceded there was, until her testimony, no evidence to support this allegation.

[135] On Rosemina Jamal's account, she left work early because she was not feeling well. She had had a history of poor health and required the attendance of paramedics soon after first being questioned by the police. As I comprehend the evidence, she walked home from the nearest bus stop, saw a marked police car parked near the entrance to the short cul de sac that runs to her front door and police near her house. Rather than turning into Tamora Court, she continued walking. The police soon caught up with her. She was on the phone and, as noted, testified that she was trying to text her son. The sight of the police car, she explained, caused her to panic. Hanif had not answered her earlier call from work. He was the only family member likely to be home and the only one with a criminal history. She feared that he might be in trouble. "Who else could it be?", she reasoned.

[136] The events of these few minutes are open to several reasonable interpretations, one of which, consistent with consciousness of guilt, is that Rosemina Jamal was aware of or at least suspected her son's involvement in drug dealing and was endeavouring to either warn him of the police presence or find out if it was safe for her to return to her home. Viewing this exchange in the totality of the evidence and reflecting on Rosemina Jamal's chronic anxiety and her candour in describing both her efforts to reach her son and her motives for doing so, I am satisfied that she reacted as a mother overwhelmed by an amorphous angst about her son rather than as an accomplice or protectively knowing parent.

(iii) The Respondents' Credibility

[137] There is nothing in either of the Respondent's testimony, internally or when compared with each other's, that impairs the trustworthiness of their disavowals of any liability for forfeiture. Nor does their evidence contradict that of the police on any material points. As earlier noted, the Respondents' testimonial denials of any knowledge or suspicions of Hanif's criminal endeavours, let alone complicity with him, are best tested by the circumstantial evidence that, on the A.G.'s submissions, invites a more incriminatory conclusion. Having conducted this exercise, I am satisfied as to the honesty of the Respondents' denial of material knowledge or suspicion or of any conduct on the part of Hanif that would cause reasonable persons in their position to diligently investigate their son's behaviour. Given their natural anxiety as witnesses, the issues at stake, and the lengthy passage of time since the events of February 2012 and those of years earlier about which they were extensively examined, I was also impressed by their demeanour and what I take to be sincere efforts to convey the truth to the best of their recall.

(iv) Conclusion as to "Innocence"

[138] Standing alone, the Respondents' position is consistent only with innocence. They did not know, they say, of their son Hanif's drug dealing. They were unaware of the physical evidence of such dealing that was found in their home. They had, they say, no reason to suspect any unlawful conduct. They were so engaged in their own struggle to stay afloat that they paid scant heed to their adult son's behaviour. In any event, nothing occurred that gave rise any suspicions. Including the necessary commutes, each of the Respondents was consumed by their work from early morning until mid- or late-evening. On weekends, Rosemina devoted herself to the care of her ailing sister while her husband, Moez, pressed on at his failing video shop. They did not entertain. No guests entered their home. Their domestic footprint was limited to their own bedroom, the kitchen at the back of the house where they shared their dinner, and the next-door TV room where they occasionally spent a few hours of downtime. The other rooms, indeed most of their home, was effectively abandoned, left to their son during their lengthy daily absences.

[139] There is nothing preposterous or, sadly, even out-of-the-ordinary, about the Respondents' parallel accounts of the few years that preceded their arrest. They lived, as Victorian writers might have said, in reduced circumstances. Their financial stability depended more on their nimble use of credit cards and lines of credit than it did on their combined incomes. By dint of good fortune, they owned a home. They drew, when they could, on its rising market value and the contingent value of their equity in the property to meet their obligations. Refinancing, credit card advances and small maternal mercies explain what financial contribution they could make to the retirement of their debts or the forestalling of creditors. There is, of course, no direct evidence of any gifts or loans from Hanif and no basis, other than speculation, to infer the occurrence of such transfers or that the Respondents efforts to remain solvent were in any way assisted by filial obligation, generosity or, most critically, some corrupt arrangement or understanding with their son.

[140] The A.G.'s position, in essence, is, as oft repeated in its pleadings, that the Respondents "must have known" of their son Hanif's unlawful dealings. There is bootstrap or at least presumptive aspect to the A.G.'s argument in advancing this position. As construed by the Applicant, facially neutral, indeed even benign, circumstances become grist for an inculpatory mill. There is nothing improper with such advocacy, but my task is clearly different. Consistent with what I take to Parliament's directive, I proceed without anchor or presumption, and without assigning a legal onus. Rather, I ask whether, on the totality of the evidence, including any explanations proffered through the Respondents, I am "satisfied" that the Respondents "appear innocent" of any complicity in an index designated substance offence that has resulted in a conviction and that bears a nexus to their property. Applying this test, and measuring the Respondents' denials against the circumstantial evidence marshaled by the A.G., I remain so satisfied. Indeed, if the statutory standard was that of "is innocent" I would be equally "satisfied" of the Respondents' innocence. In the result, and seeing no reason to exercise any residual discretion in this regard, I "order that the property" – the Respondents' home at 15 Tamora Court – "be returned" to them, as contemplated by s. 19(3) of the CDSA.

(c) Section 19.1(3): The "Proportionality Test"

(i) Introduction

[141] Consideration of the "proportionality test" set out in s. 19.1 of the CDSA is redundant given my decision ordering the return of the Respondents' home under s. 19(3). If, however, I have erred in concluding that they are not disqualified for such order pursuant to s. 19(3), then, in the alternative, I consider the fate of their home under s. 19.1.

[142] There is, to begin, something artificial about the s. 19.1 exercise in the circumstances of the instant application. In my view, as earlier developed, the division between claims for restoration grounded in s. 19(3) and those founded in s. 19.1(3) is simply the division between title-holders who are neither guilty of an index offence or subject to such jeopardy and those who are offenders but for whom the impact of a forfeiture order would be disproportionate. This distinction is clearly recognized in Craig, supra, at para. 28, where Abella J., after describing the application and compass of the proportionality assessment in s. 19.1, wrote: "Separate sections [of the forfeiture regime] deal with protecting the interests of innocent third parties in the property to be forfeited". Those "separate sections", of course, are s. 19 and, following a forfeiture order, s. 20.

[143] The very language of the statutory elements that inform the proportionality calculus – the nature and gravity of the offence, its surrounding circumstances and the criminal record of the convicted or charged claimant – invokes the image of a guilty party in the context of the offences for which he or she is held accountable. "Innocence" only factors into the proportionality analysis under s. 19.1(4) where, as here, the real property at issue is a "dwelling-house" and a forfeiture order impacts on, inter alia, "any member of the immediate family of the person … convicted of the offence" if, as in the application before me, the property was the family "members principal residence at the time the charge was laid and continues" to be so. The Respondents, of course, are members of the "immediate family" of their convicted son Hanif and 15 Tamora Court was their principal residence both at the time of his charge and today. Accordingly, the question of whether the Respondents "appear innocent of any complicity … or collusion" must be considered. As my prior determination of this matter privileges the Respondents' claim of innocence, I turn directly to the three factors that, as said in R. v. Craig, supra, at para. 48, "constitute a complete code" respecting the application of the "proportionality test" under s. 19.1.

(ii) Nature and Gravity of the Offence

[144] The drug offences of which Hanif Jamal was convicted involved very substantial amounts of drugs. The pernicious quality of cocaine has long been recognized by our courts. The value of the seized drugs, when combined with the cash found in Hanif's bedroom, amounts to approximately $200,000. By any measure, Hanif's offences are grave. They are not, however, offences for which the Respondents are culpable.

(iii) Circumstances Surrounding the Commission of the Offences

[145] This second factor is concerned, as said in Craig, with the "offender's role in the commission of the offence", the use of the property, and the threats or menace posed to surrounding neighbourhood through such use. The focus here is clearly on the involvement of organized crime, the exploitation of the property as an instrument of criminality, and the "risks to the security or safety of the community". Of particular concern, then, are drug-related properties – such as grow ops, meth labs and crack houses – that have been converted into factories of drug manufacture or consumption, those that risk community safety through the release of chemicals, accidental fires or the attraction of criminal elements, and those properties that are fortified or otherwise insulated from law enforcement. The property at 15 Tamora Court exhibits none of these attributes. There is no evidence of structural or other physical alteration of the house, let alone any fortification. No manufacturing or processing (except, perhaps, for the manual addition of cutting agents) was detected. The property is situated in a residential area, but the record is completely silent as to the attendance of any customers or other traffickers at the Respondents' home.

[146] It is difficult to confidently identify Hanif Jamal's role, particularly as his phone records were never collected or, at least, analyzed, and he was arrested before any significant surveillance could be conducted. He may have been a mid ranking trafficker, operating at the ounce-of-cocaine and multi-ounce-of-marijuana level of distribution consistent with the amounts found on him when he was arrested in February 2012. Or he may simply have operated a safe house or storage facility for a trafficker for whom he was transferring or delivering a consignment when arrested. The failure to locate any debt lists lends some support to the latter reading of his role. What is certain, and all too common where large amounts of cocaine are involved, is that Hanif's activities were accompanied by potentially lethal accouterments, whether for personal protection or debt collection. Here, loaded handguns and compatible ammunition were found in close proximity to the seized drugs. What is also certain, on my assessment, is that none of the drugs, money or guns belonged to or was in the possession of either of the Respondents.

(iv) The Offender's Criminal Record

[147] The offender, Hanif Jamal, had an almost ten-year-old, single conviction for a related offence at the time of his arrest. Neither of his parents, the Respondents, have a criminal record.

(v) Principal Residence: S. 19.1(4)

[148] The Respondents have lived at 15 Tamora Court for three decades. They continue to reside there. As such, s. 19.1(4) obliges me, as said in Craig, supra, at para. 29, "to consider [their] interests … and their degree of involvement in the offence" in the proportionality calculus.

[149] The Respondents have no other home. I am unclear if they still retain title to a small condominium in Windsor that they originally bought to house their daughter when she attended university. If so, it is a small equity interest in a heavily mortgaged property. They are financially pressed for reasons that have nothing to do with the extinguishment of any income their son's drug business may have generated. And, as I have earlier found, they are innocent of any complicity or collusion in the designated substance offences their son committed in their home.

(vi) Assessing Disproportionality

[150] As quoted, in part, from the reasons in Craig, supra, at para. 59:

Based on the particular circumstances of the case, therefore, judges have the discretion to order no forfeiture, partial forfeiture or full forfeiture of offence-related real property. … 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 … may result in no, partial or full forfeiture.

None of the particularly aggravating factors identified by Abella J. are present on this application. The property is not fortified. It was not purchased with criminal intention, nor structurally repurposed to that end. It was not solely dedicated to the commercial production or distribution of illegal substances. There is no evidence of any connection to organized crime. Further, the duration of the operation and the offender's precise role or station are unknown. Finally, the offender has but a single prior, and dated, conviction, and the Respondents have no history of criminality. On the other hand, at least of some of the seized drugs, and their volumes, approach the more serious end of the scale, and loaded firearms were found among the offender's possessions.

[151] Returning to Craig, the Supreme Court's resolution of the forfeiture application in that case affords a helpful template. In the end, the Court completely set aside the full forfeiture order imposed by the British Columbia Court of Appeal. Equitable considerations, as an appropriate facet of a forfeiture court's discretion under s. 19.1(3), undoubtedly played some role in this disposition, but so did, as the Court expressly notes at para. 67, "the circumstances of the offence" – circumstances that included a home substantially, but not entirely, converted to a lucrative grow op for a period of at least several years, although not originally purchased for this unlawful purpose.

(vii) Conclusion with Respect to S. 19.1

[152] Application of the proportionality test under s. 19.1 to the matter before me must integrate, in addition to the Craig considerations, acknowledgement that the target property, 15 Tamora Court, was and remains the Respondents' dwelling house and that they "appear innocent" of complicity or collusion in their son's offences. In the totality of these circumstances, and upon weighing the factors in sub-ss. 19.1(3) and (4), I have, in the language of the provision, decided "not to order the forfeiture of the property" at 15 Tamora Court and to "revoke [the] restraint order made in respect of that property".

G. CONCLUSION

[153] Consistent with these Reasons, the forfeiture application of the Attorney General of Canada is dismissed. Pursuant to s. 19(3) of the Controlled Drugs and Substances Act, the property situated at 15 Tamora Court in Toronto is ordered returned to the Respondents, Moez Jamal and Rosemina Jamal. In the alternative, and further to s. 19.1(3) of the Act, the restraint order made on March 12, 2012 with respect to this same property is ordered fully revoked.

Ruling released on October 23, 2015

Reasons released on November 30, 2015

Justice Melvyn Green