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].


New & Notable: The Pull of Bail

Jeffery Norman was on the hook for a lot of money. He pledged $30,000 to secure his release on bail. Norman also had very generous parents who pledged significant amounts totalling $30,000 as sureties on their son’s release. All Norman had to do was abide by his release conditions. He did not and the Crown sought forfeiture of the pledged amounts: 2014 ONSC 2005.

Norman’s actions leading ultimately to this forfeiture hearing were violent and heinous. Norman had been convicted of manslaughter and sentenced to 8 years imprisonment, in addition to the 4 years of pre-sentence custody: [2005] OJ No 1073 (SCJ). While on parole Norman committed a serious, random and vicious act of violence on a complete stranger. The woman was jumped from behind, taken to the ground and repeatedly punched.  

As Trotter J pointed out “surprisingly, Mr. Norman was ordered released on bail (…) The learned justice of the peace ordered that Mr. Norman enter into a recognizance in the amount of $30,000.  He named two sureties under s. 515(2.1) of the Criminal Code and the amounts for which they would be liable:  Tonie Norman - $20,000 and Brian Norman - $10,000” [@para 5].

The conditions of release included a condition of house arrest which required Norman to be in his residence “at all times seven days a week except to go directly to and from and while at employment, counselling (including residential treatment), reporting to a parole office, medical emergencies, or in the direct company of either surety” [@para 6].

Norman denied the breach and testified at his trial that in fact he had been working during the day, was on his way to an AA meeting and had taken a circuitous route to get there to beat the 8:30pm traffic. In fact, although there was a meeting at the location Norman indicated, it was to take place entirely in Portuguese - a language neither spoken nor understood by Norman. In finding Norman guilty, Clements J aptly pointed out that Norman’s explanation simply “made no sense” [@para 10].

Norman declined to participate in the estreatment hearing; both sureties, Norman’s parents, opposed forfeiture and were represented by counsel.

Before turning to the specifics of Norman’s case, Trotter J, referred to a recent case from the Superior Court (Romania v Iusein, 2014 ONSC 623) and helpfully set out some of the governing principles. They are as follows:

  1. The onus is on the surety to show why forfeiture is not appropriate.
  2. The preeminent concern for the court is the preservation of the moral pressure or the pull of bail. “The real pull of bail, the real effective force that it exerts, is that it may cause the offender to attend his trial rather than subject his nearest and dearest who has gone surety for him to undue pain and discomfort.”
  3. Overemphasizing the surety’s lack of fault can undermine the pull opf bail and adversely impact the criminal justice system. The diligence of the surety, however is a relevant consideration.
  4. The estreatment judge has a wide discretion. There is no rule requiring total forfeiture. However, the vast majority of cases which involve a relatively small sum, nothing less than total forfeiture will usually suffice. [@para 20]

Turning to the facts before the court Trotter J noted that one of the sureties had effectively delegated her responsibilities to the second surety when she left the country on holidays. Prior to leaving on holidays Mrs Norman made arrangements wither her ex-husband. Before doing so however she consulted with counsel and received legal advice which she followed. Trotter J held that:

even though Mrs. Norman received advice that the proposed plan was legal, I have a difficult time seeing how anyone could have thought that it was wise. It was fraught with obvious risk. [i]n circumstances such as these, when a surety is unable to act (either permanently or temporarily), it is necessary that the bail situation be formally addressed.  This may achieved by making an application for variation on a bail review under s. 520 of Criminal Code.  Other options include making an application to substitute a surety (under s. 767.1), or by rendering the accused into custody (ss. 766 or 767): see R. v. Smith, 2013 ONSC 1341, per Dambrot J.  At the very least, the officer-in-charge or the prosecutor should be apprised of the situation. [@para 32]

In recognizing that Norman was apprehended before any real consequences flowed from the breach of the house arrest condition and that he received a criminal conviction for the same conduct, the Court ordered forfeiture of $10,000 of Norman’s $30,000 bond.

Notwithstanding the fact that Mrs Norman received legal advice prior to departing on her holiday, Trotter J found that: “she undermined the bail order by compromising her own ability to monitor her son’s behaviour” [@para 38]. As a result of the needless risks the public was exposed to the Court ordered $7,500 of the $20,000 bond to be forfeited [@para 38].

Trotter J had no sympathy for Mr. Norman Sr finding that:

he knew his son has a violent past and was facing a very serious offence of violence (while intoxicated). Jeremy Norman required intensive supervision. These types of conditions must be taken seriously by sureties. Mr. Norman (sr.) offered no real excuse for his lack of vigilance. He decided to put leisure activities ahead of his obligations as a surety. The only way to emphasize the importance of compliance in these circumstances is to order forfeiture in a substantial amount. Accordingly, I order Mr. Norman also to forfeit $7,500 for exposing the community to the risk of re-offending by his unsupervised son. [@para 39]


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.

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New & Notable: How much is a 1998 Chevy Blazer worth?

David Mihalyko had a 1998 Chevrolet Blazer. He also had an injured foot. He was presribed Oxycontin for his foot. On September 19, 2010 he needed some gas for his Blazer but he did not have any money; he did have his Oxys. He decided to sell some Oxys for gas money. He approached a woman, he thought was a prostitute, to see if she knew anyone who wanted Oxys. She was an undercover officer. Ultimately he sold $60 worth of Oxys to an undercover officer. He was charged and convicted. Forfeiture of the Blazer was sought under the Seizure of Criminal Property Act. The Queen's Bench refused to order forfeiture. That order was appealed. The Saskatchewan Court of Appeal allowed the appeal: 2012 SKCA 44.
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