SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 10858

DATE: 2013-07-15

RE: Her Majesty the Queen, Respondent

AND:

Tania T. Nguyen, Applicant

BEFORE: Heeney R.S.J.

COUNSEL: Michael McEachren, Counsel for the Respondent

Ira Book, Counsel for the Applicant

HEARD: June 24, 2013 at London

ENDORSEMENT

[1] The Applicant Tania T. Nguyen (“Tania”) has commenced an application pursuant to s. 20(1)(4) of the Controlled Drugs and Substances Act, S.C. 1996 Ch. 19 as amended (“the Act”), for relief from forfeiture of residential premises held in her name. Within the context of that proceeding, she seeks the direction of this court as to the manner in which the application shall proceed, and in particular asks that the record be purged of any reference to similar proceedings heard in the Ontario Court of Justice by Pockele J. on June 5 and 14, 2006.

[2] The facts are somewhat convoluted, and require a brief review.

[3] The residential property in question is located at 3271 Valmarie Avenue, Missisauga, Ontario. In the trial that was held before Pockele J. in 2006, that property was referred to as a “mother house”, where marijuana was packaged, put into bags and boxes, and smuggled into the United States for the purpose of trafficking.

[4] An individual by the name of Bahn Thi Nguyen (no relation to the Applicant) pleaded guilty to several offences under the Act. Tania was never charged with an offence. Following the conviction of Bahn Thi Nguyen, the Attorney General of Canada sought forfeiture of the property as offence-related property, pursuant to s. 16(1) of the Act.

[5] Since Tania was the registered owner of the property, s. 19 of the Act required that notice of the forfeiture application be given to her. She was duly provided with notice and participated in the application before Pockele J., opposing the relief sought by the Attorney General. She testified on her own behalf.

[6] Pursuant to s. 19(3) of the Act, if the court is satisfied that a person is lawfully entitled to possession of property, and appears innocent of any complicity in a designated substance offence, or of any collusion in relation to such an offence, the court may order that the property be returned to that person.

[7] In his reasons for judgment delivered orally on June 14, 2006, Pockele J. made adverse credibility findings against Tania, and ordered that the property be forfeited to Her Majesty the Queen.

[8] That decision was appealed to the Court of Appeal. However, on Dec. 10, 2007, which was the day the appeal was to be argued, counsel for the Crown and for Tania both came to the realization that there was no statutory right of appeal available to Tania from a forfeiture order made under sections 16 and 19 of the Act. A person who had been charged with a designated substance offence had a right of appeal, but that right did not extend to a person, such as Tania, who had not been charged with an offence.

[9] As a result, counsel agreed that the appeal would be dismissed as abandoned, but that Tania would be entitled to bring a further proceeding under s. 20(4) of the Act for relief from forfeiture. That section entitles “any person who claims an interest in the property” to bring an application for relief from forfeiture, where a property has been ordered to be forfeited to the Crown under s. 16. An application under s. 20(4) is to be brought before a judge of the Superior Court.

[10] This meant that, despite the fact that Tania had already sought relief from forfeiture and been unsuccessful, the Crown agreed that she could seek that same relief once again, from a different court and under a different section of the Act. Significantly, the Crown agreed that it would waive any procedural requirements that would deny Tania the right to a full hearing (such as time limits for filing, etc.), and agreed that, in the circumstances of this case, the Crown would not assert any estoppel or res judicata argument at the s. 20 hearing.

[11] It is not necessary for present purposes to enter into a detailed analysis of the similarities and differences between an application by the Crown for forfeiture under sections 16 and 19 of the Act, and an application by a person claiming an interest in the property who seeks relief from forfeiture under s. 20. An excellent analysis of the interplay between these two proceedings can be found in the reasons of Silverman J. in R. v. Vu, 2011 BCSC 1398 (B.C.S.C.), and in the reasons of Hourigan J. in R. v. Sportun, [2010] O.J. No. 2201 (S.C.J.), with which I am in complete agreement.

[12] Pursuant to the agreement of counsel, the s. 20 application came before Little J. of the Superior Court of Justice on May 16, 2008. However, notwithstanding the joint position of counsel that Tania had a right to bring the application, Little J. ruled that her right to do so had been extinguished by the initial forfeiture order of Pockele J..

[13] That decision was appealed to the Court of Appeal. In a brief endorsement, reported at [2010] O.J. No. 5095 (C.A.), the court allowed the appeal, and said the following:

Given the Crown’s previous agreement that it would not argue estoppel, and its concession that the application judge erred in failing to address the matter on the merits, it is clearly not appropriate to apply the proviso. Furthermore, the Crown fairly concedes that there is no prejudice to the Crown to have this matter returned to be dealt with on the merits.

[14] The application under s. 20 is, therefore, now once again before this court for a hearing on the merits. However, Mr. Book, on behalf of Tania, has brought this preliminary application for directions as to how the application should proceed. Specifically, he seeks an order that this shall be a hearing de novo, that the reasons of Pockele J. dated June 14, 2006 shall not be considered, relied upon or alluded to by any party or witness, or by the judge hearing the application, and that the record be purged of any references to the reasons, conclusions or opinions of Pockele J..

[15] As to the request that this hearing be declared to be a de novo proceeding, it would, in my view, be an inappropriate use of that term to so designate the upcoming application. A de novo proceeding refers to the complete rehearing of a matter that has already been heard and decided by another court. However, we are dealing here with two different proceedings under two different sections of the Act. The proceeding before Pockele J. was an application by the Crown for forfeiture, where the Crown bore the onus of proof. The application under s. 20 is brought by a person who claims an interest in the property, who seeks relief from a forfeiture order that has already been made by a court. In such an application, the applicant bears the onus of proof. Furthermore, while the criteria to be considered by the court under each application bear significant similarities, they are not identical.

[16] The Crown concedes that the s. 20 application is a fresh proceeding, and has already made the concession that, in the circumstances of this case, it will not raise any argument that estoppel or res judicata applies. Clearly, therefore, the judge hearing this application will not be bound by the reasons or conclusions arrived at by Pockele J. in his ruling of June 14, 2006. No further order of this court is necessary to formalize or supplement the concession of the Crown.

[17] The other order sought by Mr. Book is more problematic. He seeks to purge the record of any reference to the reasons of Pockele J.. Mr. McEachren, for the Crown, opposes this request. While he does not intend to rely on the reasons of Pockele J. at the s. 20 hearing, he nevertheless takes the position that they form part of the court record and should not be expunged.

[18] In Sportun (supra), Hourigan J. found himself in a similar position as the one created by the application before this court, in that he was hearing an application for relief from forfeiture brought under s. 20, which followed a successful application for forfeiture that had been brought by the Crown under s. 16. Beginning at para. 24 of his reasons, he considered the question as to the use to be made of the previous order made in the Ontario Court of Justice.

[19] At paras. 27 to 20, he said the following:

I am not persuaded that it necessarily follows that a party who participated unsuccessfully in a section 19 application cannot subsequently bring a section 20 application. The likelihood of success of such an application may not be great given that the onus on the section 20 application shifts away from the Crown and on to the party who is bringing the application. However, if Parliament intended to deny a party who participated in a section 19 hearing its rights under a section 20 hearing then it could have stated so explicitly. It did not do so and I am not prepared to read in such a limitation into the legislation.

In any event, the Crown did not take the position that the Applicants were barred by reason of the decision of Justice Brophy from bringing their section 20 application. The Crown submitted that this application should not be treated as a de novo hearing but was analogous to a bail review. However, the Crown was unable to provide any authority in support of that proposition.

In contrast, the Applicants' counsel submitted that Justice Brophy's ruling has no relevance on this application because it was made on a different evidentiary basis. He conceded that I could have regard to the evidence that was before Justice Brophy.

I advised the parties that in my view I was not bound by the ruling of Justice Brophy. However, I advised that as the ruling and the evidence before Justice Brophy forms part of the record before me, I could properly have regard to both on this application.

[20] Mr. Book seeks to distinguish Sportun on the basis that the Crown had not, in that case, made the concession that it made here just prior to the scheduled hearing before the Court of Appeal that the Crown would not rely on estoppel or res judicata when the s. 20 application came on for hearing. However, it seems to me that the concession by the Crown parallels the ruling made by Hourigan J. as to the use to be made of the earlier ruling. In holding that he was not bound by that earlier ruling, Hourigan J. was, in effect, ruling that estoppel and res judicata did not apply. That did not mean, however, that the earlier ruling had to be purged from the record.

[21] I agree with the approach taken by Hourigan J.. The earlier ruling forms part of the court record. It does not bind the judge hearing the s. 20 application, but there is no basis in law for it to be expunged from the record. The judge hearing the s. 20 application may have regard to it, or not, as he or she may see fit, provided that it is clear that the earlier ruling is not in any way binding.

[22] Mr. Book has provided no authority that supports the purging of the court record, where matters similar to an earlier proceeding are subsequently heard by another court. Even where a decision is overturned on appeal and a new trial is ordered, there is no order made by the appeal court that the earlier order and reasons are to be expunged from the record. In the absence of such authority, I am disinclined to grant the relief sought.

[23] Mr. Book has advanced an alternative argument in support of the request that the reasons of Pockele J. be purged from the record, based upon an allegation of a reasonable apprehension of bias. This argument is based upon comments made by the Ontario Court of Appeal in a completely unrelated case, R. v. Nhu Van Nguyen, 2013 ONCA 51. That case was an appeal from a sentence imposed by Pockele J. following the conviction of that accused (who is no relation to Tania) for offences arising out of a marijuana grow operation. The relevant passage in the reasons of the Court of Appeal is found at para. 5:

On the second point, we agree that, against the backdrop of no evidence in the record, the trial judge should not have said that “[to] a certain extent, there is an ethnic element in that certain groups of new Canadians, or Canadian citizens sharing cultural and ethnic heritage, appear before the court in unusual numbers charged with marijuana production.” There is no place in the Canadian criminal justice system for this type of negative and stereotypical comment.

[24] Mr. Book’s argument is that this reflects a possible tendency on the part of Pockele J. to engage in ethnic profiling of people of Vietnamese origin, in relation to marijuana grow operations. He suggests that the reasons of Pockele J. of June 14, 2006, support an inference of a reasonable apprehension of bias.

[25] I disagree. I have read the reasons of Pockele J. carefully, and there is nothing in those reasons to support a reasonable apprehension of bias. He rejected the evidence of Tania primarily based upon the common sense conclusion that her testimony defied belief. For example, she had asserted that, by the age of 19 or 20, she had accumulated the down payment of $44,000 needed to purchase this property from her own savings, birthday money and gifts, and had somehow amassed a net worth of $236,000 by that tender age. Pockele J. did not believe that evidence, and concluded that Tania was, in reality, holding title as a nominee for her father.

[26] I have been directed to nothing in the reasons of Pockele J. that supports a reasonable apprehension of bias, as that phrase has been defined in R. v. R.D.S., [1997] S.C.R. 484. The fact that he made comments in an entirely different case decided in 2011, which were criticized by the Ontario Court of Appeal in 2013, has no relevance as to whether a reasonable apprehension of bias arises in a decision made in 2006. Those reasons stand on their own, and support no such reasonable apprehension.

[27] It is noteworthy that the allegation of a reasonable apprehension of bias was not raised by Tania until 2013, following the decision of the Ontario Court of Appeal in that unrelated case. Had the reasons of Pockele J. of June 14, 2006 raised such an inference, one would have expected this issue to have surfaced years earlier.

[28] Accordingly, the application of Tania to purge the record is dismissed.

[29] The matter is adjourned for the hearing of the s. 20 application, on a date to be arranged by counsel with the Trial Coordinator.

“Heeney R.S.J.”

Regional Senior Justice T. A. Heeney

Date: July 15, 2013