This case involves the question of how the expanded regime governing forfeiture of “offence-related property” in the Criminal Code should apply in the context of sentencing. At issue is whether a judge is empowered to consider the “totality of the circumstances”, including the sentence, in determining whether the impact of forfeiture is disproportionate under s. 490.41(3) of the Criminal Code.
The BCCLA was an intervener in this case. The Association argued that courts must be empowered to ensure fairness and proportionality in sentencing in all circumstances, including those in which the forfeiture of property is at issue. As forfeiture of property often serves a punitive function, it is rightly considered at the sentencing stage of the proceedings. The development of a forfeiture regime divorced from the principles of sentencing and absent a weighing of all relevant considerations, including the offender’s personal circumstances and the impact of forfeiture on the offender and his or family, may result in disproportionate, excessive penalties and may unfairly punish innocent third parties.
The Supreme Court of Canada released its judgment in this case on January 17, 2013. The Court allowed the Crown’s appeal and granted the forfeiture order. The Court held that the trial judge erred when he found that he was bound to consider the objectives and principles of sentencing when deciding whether to allow forfeiture under the Criminal Code. The Court was also not satisfied that the impact of forfeiture on Mr. Manning would be disproportionate.
The Supreme Court of Canada’s judgment in this case is available here >>
The BCCLA is represented by Audrey Boctor of Irving Mitchell Kalichman LLP.