New & Notable: Forfeiture not Cruel and Unusual

Richard Montague was charged with numerous firearm offences (including offences under sections 86(2), 91(1), 95(1)(a), 102(1) and 108(1)(b)). Montague was a firearms dealer and manufacturer. Unfortunately for Montague, he allowed his firearm’s licence to expire and subsequently his firearms acquisition certificate.

Subsequent to the expiration of the licence and certificate the police executed search warrants and seized more than 200 firearms and related devices along with 20,000 rounds of ammunition. The amount of weapons and ammunition were “sufficient for a small-scale insurrection”.

Montague was convicted after trial. He was sentenced – but the trial judge expressly held off addressing any forfeiture order until after appeals against conviction and sentence by Montague. Those appeals were heard and dismissed. Noting that the forfeiture orders should have been addressed previously, the Court of Appeal sent the matter back to the trial judge to consider the forfeiture orders. Back before the trial judge the Crown sought mandatory forfeiture orders under section 491(1)(b); Montague sought to have that provision declared unconstitutional as a violation of section 7. The trial judge dismissed that motion and ordered forfeiture of the firearms but declined to order forfeiture of the ammunition; the refusal to grant the order for the ammunition was “on the basis that, in [the trial judge’s] view, the applicants had been convicted under the wrong section and that the forfeiture provision did not apply to the ammunition that was not loaded in any firearm” [para 10]. Montague appealed that ruling: 2014 ONCA 439.

On appeal the Crown argued that there was no right to appeal the order; if the appeal did proceed the Crown sought to have it varied to include the ammunition.

With respect to whether or not Montague could appeal the forfeiture order, the court recognized that the issue was whether or not the order formed part of “a sentence” within the meaning of 675(1)(b). The definition of sentence in section 673 does not include an order under 491(1)(b).; nonetheless, the court held that forfeiture orders under 491(1)(b) are part of sentence within the meaning of 673 [paras 12-27].

Having decided that the order could be appealed, the court considered Montague’s argument that the provision violated section 12. In response to one of the key arguments advanced by Montague – that the forfeiture was grossly disproportionate to the offence – the court offered the following:

In this case, it is most unfortunate for the appellants that they chose to challenge the firearms licensing laws by putting all their firearms at risk. However, in my view, the fact that it was their deliberate action that put so much property at risk is not the full reason why its forfeiture does not constitute cruel and unusual punishment. It is because the forfeiture consequences cannot be viewed as grossly disproportionate or even disproportionate at all. The forfeiture of any one firearm is not going to be an overly serious consequence in comparison to the gravity of any one offence. What the appellants deliberately did in this case was put a large number of firearms constituting a significant amount of their property at risk. That choice does not affect the constitutionality of the forfeiture consequence [para 51].

After applying the section 12 analysis to the facts and circumstances of the forfeiture orders, the court held that the provision does not violate section 12 [paras 59-62].