In R. v. Abdelrazzaq, 2023 ONCA 112, February 22, 2023, the accused pleaded guilty to the offences of possession of cocaine for the purposes of trafficking and possession of the proceeds of crime ($74,560 that was paid to the accused by a police agent for the cocaine).
At the sentence hearing, it was agreed that the proceeds from the sale of the cocaine was subject to forfeiture pursuant to section 462.37(1) of the Criminal Code. However, the funds were not available for forfeiture. As a result, the Crown sought an order pursuant to section 462.37(3) imposing a fine in the amount of the value of the cocaine in lieu of a forfeiture order. The Crown also sought a term of imprisonment in default of payment of that fine as provided for in section. 462.37(4)(iv).
The accused challenged the constitutionality of sections 462.37(3) and (4), arguing that they contravened section 12 of the Charter. The sentencing judge agreed, holding that the provision violated section 12 of the Charter. Accordingly, he declined to impose a fine in lieu of forfeiture. The Crown appealed.
The Ontario Court of Appeal indicated that the appeal raised two questions (at paragraph 6):
• Did the trial judge err in holding that he was not bound by the decision in R. v. Chung, 2021 ONCA 188, 402 C.C.C. (3d) 145, leave to appeal refused, [2021] S.C.C.A. No. 320, that the fine in lieu of forfeiture provisions in the Criminal Code did not offend s. 12 of the Charter?
• Assuming the trial judge was not bound by Chung, did he err in holding that the fine in lieu of forfeiture provisions would impose cruel and unusual treatment in some reasonably foreseeable circumstances, and were therefore unconstitutional?
The appeal was allowed. The Court of Appeal held that the sentencing judge “was bound by the decision of this court in Chung. Although the hypotheticals put before the trial judge were very different from the hypotheticals advanced by counsel in Chung, the argument ultimately accepted by the trial judge to support his finding that the fine in lieu of forfeiture provisions were unconstitutional as applied to certain offenders was put before this court in Chung. The court considered and rejected that argument. The trial judge was obliged to follow Chung”. The Court of Appeal also concluded that “apart from the binding authority in Chung, the fine in lieu of forfeiture provisions do not impose cruel and unusual treatment and do not violate s. 12 of the Charter” (at paragraphs 7 and 8).
Was R. v. Chung Binding on the Sentencing Judge?
The Ontario Court of Appeal noted that the “value of precedent would be greatly diminished if a new s. 12 argument could be advanced every time counsel imagined a different reasonable hypothetical”. The Court indicated that though “the reasonable hypotheticals used by the trial judge were very different from the reasonable hypotheticals advanced at trial in Chung”, the “determination as to whether the trial judge was ultimately bound by Chung cannot turn simply on a comparison of the reasonable hypotheticals that were before the respective courts. The real question is, did Chung decide the constitutionality of the fine in lieu of forfeiture provisions as they applied to offenders like those described in the hypotheticals used by the trial judge? If the answer is yes, the trial judge was bound by Chung regardless of the reasonable hypotheticals considered in Chung. That question can only be answered by reference to the arguments made in Chung and the reasons given by this court for dismissing the constitutional challenge in Chung” (at paragraphs 65 and 66).
The Court of Appeal concluded that “Chung decided that the fine in lieu of forfeiture provisions were materially different from the victim surcharge provisions and did not violate s. 12 of the Charter when applied to either offenders like the hypotheticals described in Chung, or offenders like those described in Boudreault and by the trial judge in this case. In short, Chung considered and rejected the substance of the s. 12 arguments accepted by the trial judge. The trial judge was obliged to follow Chung” (at paragraph 77).
If Chung is not Dispositive, do the Fine in lieu of Forfeiture Provisions Infringe Section 12 of the Charter?
The Court of Appeal concluded that they do not (at paragraphs 119 to 120):
A fine in lieu of forfeiture inevitably has a negative effect on the offender against whom it is imposed. That negative effect is integral to the achievement of the deterrence purpose behind the forfeiture provisions. For some offenders, it will be apparent at the time of sentencing that there is little realistic possibility of any significant recovery of funds to stand in the place of the property that should have been forfeited. The fine in lieu of forfeiture order will remain in place indefinitely, putting psychological and economic pressure on the offender.
However, for the reasons set out above, I am satisfied that the significant negative effects of the fine in lieu of forfeiture provisions on some offenders do not result in grossly disproportionate treatment. The negative impact on some offenders can be mitigated by the reasonable exercise of the various powers available to sentencing judges. Considering the fine in lieu of forfeiture provisions in the context of the entire statutory scheme engaged when a fine in lieu of forfeiture order is made, I cannot describe the treatment of the offenders in the reasonable hypotheticals presented by the trial judge as “abhorrent or intolerable”.
I would allow the appeal. The fine in lieu of forfeiture provisions are not contrary to s. 12 of the Charter.
