SUPREME COURT OF CANADA

Citation: R. v. Nguyen, 2009 SCC 25, [2009] 1 S.C.R. 826

Date: 20090529

Docket: 32359

Between:

Kien Tam Nguyen and Nga Thuy Nguyen

Appellants

and

Her Majesty The Queen

Respondent

‑ and ‑

Attorney General of Ontario

Intervener

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Rothstein JJ.

Reasons for Judgment: (paras. 1 to 15)

Partially Concurring Reasons: (para. 16)

Partially Concurring Reasons: (para. 17)

Abella J. (McLachlin C.J. and Binnie, Deschamps and Rothstein JJ. concurring)

LeBel J.

Fish J.

R. v. Nguyen, 2009 SCC 25, [2009] 1 S.C.R. 826

Kien Tam Nguyen and Nga Thuy Nguyen Appellants

v.

Her Majesty The Queen Respondent

and

Attorney General of Ontario Intervener

Indexed as: R. v. Nguyen

Neutral citation: 2009 SCC 25.

File No.: 32359.

2008: November 13; 2009: May 29.

Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Rothstein JJ.

on appeal from the court of appeal for british columbia

Criminal law — Controlled drugs and substances — Forfeiture orders — Specific proportionality test provided for offence‑related real property forfeiture orders — Relationship of test with general sentencing principles — Marihuana grow operation located in house owned by accused — Accused found guilty of producing and possessing marihuana for purpose of trafficking — Conditional imprisonment sentence imposed and forfeiture of house ordered — Forfeiture order upheld by Court of Appeal — Whether real property forfeiture orders should be considered together with terms of imprisonment as a global punishment — Whether order justified — Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 19.1(3).

The accused were found guilty of producing marihuana as well as possession of the drug for the purpose of trafficking, contrary to ss. 5(2) and 7(1) of the Controlled Drugs and Substances Act. They owned the house where the drug was grown but resided elsewhere with their two young children. Only their 18‑year‑old daughter was living in the house. The trial judge observed that the accused had likely bought the house for the sole purpose of growing marihuana. He imposed an 18‑month conditional sentence and ordered forfeiture of the house. The Court of Appeal upheld the order.

Held: The appeal should be dismissed.

Per McLachlin C.J. and Binnie, Deschamps, Abella and Rothstein JJ.: As indicated in R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762, forfeiture orders for real property made under the Controlled Drugs and Substances Act should be approached independently of the broader sentencing inquiry. Considering the relevant facts of this case, particularly the purpose for which the house was purchased, forfeiture of the property was not disproportionate in accordance with the statute. [2] [14]

Per LeBel J.: Subject to the reasons of LeBel J. in R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762, there is agreement with Abella J. that the forfeiture order was not disproportionate in this case. [16]

Per Fish J.: Subject to the reasons of Fish J. in R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762, there is agreement with Abella J. that the forfeiture order was not disproportionate in this case. [17]

Cases Cited

By Abella J.

Applied: R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762, rev’g 2007 BCCA 234, 240 B.C.A.C. 77; referred to: R. v. Ouellette, 2009 SCC 24, [2009] 1 S.C.R. 818.

By LeBel J.

Referred to: R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762.

By Fish J.

Referred to: R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762.

Statutes and Regulations Cited

Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 5(2), 7(1), 19.1(3).

APPEAL from a judgment of the British Columbia Court of Appeal (Donald, Kirkpatrick and Frankel JJ.A.), 2007 BCCA 474, 246 B.C.A.C. 263, 406 W.A.C. 263, affirming a decision of Josephson J., 2006 BCSC 1846, [2006] B.C.J. No. 3202 (QL). Appeal dismissed.

Jay I. Solomon and Adrienne L. Smith, for the appellants.

François Lacasse, W. Paul Riley and Simon William, for the respondent.

John Corelli and Deborah Calderwood, for the intervener the Attorney General of Ontario.

The judgment of McLachlin C.J. and Binnie, Deschamps, Abella and Rothstein JJ. was delivered by

[1] Abella J. — This appeal, like the companion appeals in R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762, and R. v. Ouellette, 2009 SCC 24, [2009] 1 S.C.R. 818, concerns the relationship between a forfeiture order for offence-related real property under the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and an offender’s term of imprisonment or other aspects of a sentence.

[2] As indicated in the companion appeal in Craig, in my view forfeiture orders should be approached independently of the broader sentencing inquiry.

[3] The appellants, Kien Tam and Nga Thuy Nguyen, a married couple, were charged with producing marihuana, as well as with possession of the drug for the purpose of trafficking, contrary to ss. 5(2) and 7(1) of the Controlled Drugs and Substances Act. These charges related to a marihuana grow operation located in a three-level residence in Surrey, British Columbia.

[4] The residence was registered in Mr. Nguyen’s name.

[5] At the time of the offence, Mr. and Mrs. Nguyen resided with their two younger children in a rental accommodation elsewhere. Their eldest daughter, then 18 years old, resided in the Surrey building. After they were charged, the rest of the family moved into the property.

[6] The police seized a “moderately‑sized but sophisticated grow operation” containing 96 marihuana plants. At the time of the search, it was apparent that there had been a recent harvest due to the presence of empty pots. A new crop of marihuana had been prepared.

[7] Marihuana clones were found in the main floor kitchen refrigerator. Two of the three bedrooms on the upper floor were only used on a transitory basis. The exterior front door to the residence had a metal bracket and a barricade. The windows to the basement rooms containing marihuana plants were boarded up. Lighting, irrigation and ventilation systems had been installed in the basement. Air fresheners were installed on the main floor. More generally, the Nguyens had gone to significant lengths to conceal the nature of the operation inside the property.

[8] Mr. and Mrs. Nguyen were found guilty of both charges. At the Supreme Court of British Columbia, Josephson J. imposed an 18-month conditional sentence, as well as ordering full forfeiture of the residence in which the marihuana was produced.

[9] Neither of the Nguyens had a criminal record, nor did they have any involvement in organized crime. However, the trial judge found as aggravating factors the sophistication and commercial nature of the operation, as well as the likelihood that the house had been purchased for the sole purpose of growing marihuana.

[10] Writing for a unanimous court, Kirkpatrick J.A. applied Ryan J.A.’s approach outlined in R. v. Craig, 2007 BCCA 234, 240 B.C.A.C. 77, described in greater detail in the companion case Craig, and dismissed the appeal from sentence. She upheld the forfeiture order against the Nguyens’ property: 2007 BCCA 474, 246 B.C.A.C. 263.

[11] In my view, the conclusion of the trial judge and of the Court of Appeal with respect to full forfeiture should not be disturbed on these facts. While the Nguyens’ grow operation was roughly comparable in size and sophistication to Ms. Craig’s, at least two important factors distinguish this case and suggest that forfeiture would not be disproportionate within the meaning of s. 19.1(3).

[12] Of particular relevance, in my view, is Josephson J.’s observation that the Nguyens bought the house for the sole purpose of growing marihuana. This means that the property was tainted from the outset by a criminal purpose. (See R. v. Nguyen, 2006 BCSC 1846, [2006] B.C.J. No. 3202 (QL), at para. 14.)

[13] In addition, it is significant that the Nguyens resided elsewhere with their two younger children, while their 18‑year‑old daughter lived in the house. As the trial judge observed, this fact suggests that the property’s main function was as the site of a grow operation. This too is relevant in weighing the factors in s. 19.1(3).

[14] I am therefore of the view that full forfeiture of the property was not disproportionate in accordance with the statute.

[15] I would dismiss the appeal.

The following are the reasons delivered by

[16] LeBel J. — Subject to my reasons in R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762, I would dispose of the appeal as Justice Abella suggests.

The following are the reasons delivered by

[17] Fish J. — Subject to my reasons in R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762, I agree with Justice Abella and would dispose of the appeal as she suggests.

Appeal dismissed.

Solicitors for the appellants: Jay I. Solomon Law Corporation, Vancouver.

Solicitor for the respondent: Public Prosecution Service of Canada, Vancouver.

Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto.