New & Notable: Forfeiture clarified

Alphide Manning was driving while impaired on April 1, 2010. At the time, Manning had three convictions for impaired driving offences. He also had an outstanding charge for impaired driving from July 2009. Manning eventually pleaded guilty to both of those matters - as a result he had five impaired driving related offeces on his record.

The Crown sought, in addition to some jail time and a driving prohibition, an order of forfeiture under s 490.1. The trial judge declined to make that order relying on 490.41(3). That request was initially denied; the SCC has just rectified that misstep: 2013 SCC 1.

Section 490.41(3) provides, in part:

...if a court is satisfied that the impact of an order of forfeiture made under subsection 490.1(1) or 490.2(2) would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted of the offence, as the case may be, it may decide not to order the forfeiture of the property or part of the property and may revoke any restraint order made in respect of that property or part.

The Crown appealed. 

The Supreme Court unanimously allowed the appeal. 

Fish J, for the Court, noted that the sentencing judge held he was "bound to consider the objectives and principles of sentencing set out in s. 718..." [para 4]. This, Fish J held, was an error. It was also fatal to the judge's conclusion [para 6]. 

Fish J held that "on the record" the impact of the order was not "disproportionate" and should have been granted. The judge, Fish J, held, "erroneously emphasized...personal circumstances and failed to give appropriate weight, as required by s. 490.41(3), to Mr. Manning's criminal record, including five convictions for alcohol-related offences..." [emphasis in ordingal] [para 7].

To the extent there had been confusion on this issue - and clearly there was - Manning is a concise and definitive ruling that will assist sentencing judges in the future with the proper application of the forfeiture provisions of the Code.