Attorney General of Ontario v. 714 Railton Avenue, 2013, ONSC 1291 – Forfeiture After Conviction Has Punitive Component

The Attorney General applied for forfeiture of a house in London, Ontario on the grounds that it had been used to facilitate a 342-plant marijuana grow operation. The homeowner, Russell Dowdle, claimed that the marijuana in his home was for personal use, but Justice Rady of the Ontario Superior Court of Justice disbelieved his testimony on this point, concluding at paragraph 53 of the decision:

The only reasonable inference to be drawn is that Mr. Dowdle was engaged in a commercial enterprise to generate income.

Mr. Dowdle had already pleaded guilty to possession of marijuana for the purpose of trafficking and received a fine of $10,000. He claimed that his understanding at the time of the plea was that no further forfeiture actions would be pursued against his property.

Although there was no question that the property in question was an instrument of crime, the court was required to engage in an analysis of whether forfeiture in the circumstances was “clearly not in the interests of justice”:

[61] In this case, the conduct of the breaching party is of central importance. Mr. Dowdle was involved in a marijuana grow scheme designed to generate profit, the very conduct that the CRA seeks to curtail.

[64] These factors tend to support an order for forfeiture.
[65] However, there can be no doubt that “taking a person’s property away from that person has a punitive component” and such orders “must be reasonably perceived by the community as being deserved by those against whom they are made”. This is perhaps the most troubling aspect of the case.

In light of all the circumstances, and upon reading the transcript of proceedings at Mr. Dowdle’s criminal plea, Justice Rady concluded that forfeiture was “clearly not in the interests of justice”:

[68] However, there is evidence that Mr. Dowdle was misled or at the least, lulled into a false state of security that his home would not be the subject of forfeiture.
[69] One must wonder whether he would have pleaded guilty had he been aware of the possibility that his house might be in jeopardy in future. It is undoubtedly a good practice to seek an undertaking from both the federal and provincial Crowns that forfeiture proceedings will not be taken. That was not done in this case. Of course, Mr. Dowdle is presumed to know the law (and therefore the provisions of the CRA) but I am not certain that an average member of the public would appreciate the distinction between the federal and provincial Crowns and that the undertaking of one might not bind the other.

The forfeiture order was therefore refused in its entirety with each party to bear their own costs.

This decision is an important demonstration of the fact that civil forfeiture includes a punitive component, and that courts should not condone those civil forfeiture actions which take the form of a second criminal sentencing.

Decided by the Ontario Superior Court of Justice on April 16, 2013.
Click here for the full text of the decision.

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