La saisie du bien infractionnel - la distinction majeure entre le régime du Code criminel et de LRCDAS

R. v. Paziuk, 2007 SKCA 63 (CanLII)

[10] It is clear the truck is “offence-related property” in that it was used in connection with the commission of a designated substance offence. The sentencing judge failed to consider the definition in the Act. Upon conviction, the first step he ought to have taken was to determine whether the property was “offence-related property” within the meaning of the Act. The sentencing judge was then required, pursuant to s. 16, to order the property be forfeited because the section mandates the same, subject to sections 18 to 19.1, by the use of the words “shall...order that the property be forfeited....”

[11] Before making the order of forfeiture the Court shall require, pursuant to s. 19, notice be given to any person who in the opinion of the Court has a valid interest in the property. In the particular circumstances of this case, nothing turns on the failure to give notice as the parents were fully aware of the proceedings and their interests were dealt with by the sentencing judge, although he was wrong in his decision. This section allows innocent parties who have a valid interest in the property to apply for an order of restoration of the property. However, the innocent party must be either the lawful owner or lawfully entitled to possession of the property which would otherwise be forfeited. The Court may order in its discretion that the property be returned to the innocent person.

[13] There is no reference to proportionality in regard to personal property and it is only in regard to forfeiture of real property that the judge can take into account the impact of an order of forfeiture and whether it is proportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record of the person charged or convicted.

[14] Thus, in relation to a dwelling house, the Court may take into account the impact that an order of forfeiture may have on the immediate family of the person charged or convicted of the offence provided the dwelling house was a member’s principal residence at the time the charge was laid and continues to be the member’s principal residence, and if the member is innocent of any complicity in the offence or of any collusion in relation to the offence (s. 19.1(4)).

[15] Parliament clearly intended that the proportionality test does not apply to personal property under the provisions of the Act. In contrast, the proportionality test in the Criminal Code applies to both real and person property. Section 490.41(3) reads as follows (...)

[16] As stated above, the vehicle was owned by the respondent and the parents are not lawfully entitled to possession of the property. The sentencing judge had no discretion but was required to order forfeiture and erred in failing to do so. He further erred in considering proportionality as a factor to be considered when dealing with the forfeiture of personal property.