R. v. Montague: Are Mandatory Forfeiture Orders Imposed After Conviction “Sentences”, Providing a Right of Appeal?

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Criminal appeals are statutory and there must be a right of appeal for an appellate court to properly have jurisdiction over an appeal. The Ontario Court of Appeal’s June 3, 2014 decision in R. v. Montague considered whether mandatory forfeitures order imposed after firearms convictions amounted to “sentences”, giving an offender a right of appeal. Justice Feldman, on behalf of a unanimous Court of Appeal, concluded that such orders are sentences.

The accused in this case chose to protest firearms laws by breaking them, and then challenging their constitutionality. After he was unsuccessful, he was convicted and, at a forfeiture hearing, where he unsuccessfully challenged the constitutionality of the mandatory forfeiture orders, was ordered to forfeit many firearms. On appeal, the Crown’s first argument was that a forfeiture order is not a “sentence”, leaving an accused without a right of appeal. Feldman J.A. disagreed:

[12]   The Crown argues that there is no provision in the Criminal Code that provides a right of appeal of a forfeiture order under s. 491(1)(b). The Supreme Court of Canada has repeatedly stated that “[a]ppeals are solely creatures of statute” and “there is no inherent appellate court jurisdiction”: see R. v. W. (G.), [1999] 3 S.C.R. 597, at para. 8; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53, at pp. 69-70; R. v. Meltzer, [1989] 1 S.C.R. 1764, at p. 1773. Section 674 of the Code specifically precludes any appeal proceedings in respect of indictable offences except as provided in Part XXI (Appeals – Indictable Offences) or Part XXVI (Extraordinary Remedies).

[13]   The appellant argues that a s. 491(1)(b) forfeiture is appealable as part of the sentence under s. 675(1)(b), which provides:

675. (1) A person who is convicted by a trial court in proceedings by indictment may appeal to the court of appeal

               …

(b) against the sentence passed by the trial court, with leave of the court of appeal or a judge thereof unless that sentence is one fixed by law.

[14]   Therefore, the issue is whether forfeiture under s. 491(1)(b) is a sentence or part of a sentence, within the meaning of s. 675(1)(b).

[15]   The term “sentence” is defined inclusively (“includes”) rather than definitively (“means”) in s. 673, which provides definitions for Part XXI of the Code. It states:

“sentence” includes

(a) a declaration made under subsection 199(3),

(b) an order made under subsection 109(1) or 110(1), section 161, subsection 164.2(1) or 194(1), section 259, 261 or 462.37, subsection 491.1(2), 730(1) or 737(3) or section 738, 739, 742.1, 742.3, 743.6, 745.4 or 745.5,

(c) a disposition made under section 731 or 732 or subsection 732.2(3) or (5), 742.4(3) or 742.6(9), and

(d) an order made under subsection 16(1) of the Controlled Drugs and Substances Act;

[16]   The definition does not list an order or disposition made under s. 491(1)(b) [the forfeiture provisions at issue in this case]. However, in R. v. Chaisson, [1995] 2 S.C.R. 1118, the Supreme Court of Canada explained, at para. 9, that “[a] plain reading of the word ‘includes’ in this context suggests that the list of reviewable orders under s. 673 is not exhaustive.” The effect of this conclusion is that while the definition assists where a provision is listed, where it is not, an appeal will still be available if the provision can otherwise be determined to be a sentence.

[20]   The Supreme Court of Canada has not definitively determined whether a consequence of conviction such as a forfeiture order is part of “punishment” for the purposes of s. 11(h) and (i) of the Charter. However, in R. v. Rodgers, 2006 SCC 15, [2006] 1. S.C.R. 554, in deciding that the imposition of a DNA order does not constitute a punishment for the purpose of s. 11, Charron J. stated in respect of consequences of conviction, such as forfeiture, at para. 63:

As a general rule, it seems to me that the consequence will constitute a punishment when it forms part of the arsenal to which an accused may be liable in respect of a particular offence and the sanction is one imposed in furtherance of the purpose and principles of sentencing…

[21]   A strong argument can be made that a forfeiture provision is part of the punishment or arsenal of consequences that is imposed to further the purpose and principles of sentencing and therefore is a sentence. Nevertheless, the Crown argues that it is not, based on the decision of the Supreme Court of Canada in R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762, where the Court found that the issue of forfeiture was separate from sentencing. In my view, the Craig case does not assist for the purpose of this analysis.

[22]   The forfeiture provision in that case was in ss. 16(1) and 19.1 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Section 16(1) provides for the forfeiture of “offence-related” property upon conviction, but s. 19.1(3) allows the court to not order forfeiture of offence-related real property by applying a proportionality analysis comparing the impact of forfeiture with the gravity and circumstances of the offence and the offender. It was on the basis of the separate proportionality analysis for the forfeiture mandated by s. 19.1(3) that the Court concluded that forfeiture was separate from sentencing in the context of those provisions. Notably, despite the legal conclusion in Craig, for the purpose of the right to appeal the real property forfeiture order, the order is a sentence under s. 675 of the Code, as s. 16(1) is one of the provisions listed in the s. 673 definition of “sentence”.

[23]   The Crown also referred the court in oral argument to three cases from the Saskatchewan Court of Appeal where the court held that there is no right of appeal from a forfeiture order made under s. 117.03(3) of the Code … These cases are also, in my view, distinguishable. The forfeiture of seized property under s. 117.03(3) is found in Part III of the Code, “Firearms and Other Weapons”, and applies where a firearm is seized after a person in possession of a firearm fails to produce the required license or registration, and fails to claim the item within 14 days and provide the appropriate documentation. Such an order can be made without a conviction. It is therefore clearly not a sentence, and there is no provision for an appeal in the Code.

[24]   Finally, for the purpose of discerning Parliament’s intention, it is important to examine the wording of s. 675, which provides an appeal against sentence with leave, unless “that sentence is one fixed by law.” Assuming that the mandatory nature of the forfeiture provided in s. 491(1)(b) makes it, therefore, “fixed by law”, one could argue that Parliament could not have intended it to be a sentence and therefore appealable with leave, if it immediately becomes unappealable because it is “fixed by law.”

[25]   In my view, that argument is answered by two cases from this court that have held that where a sentence provision is challenged as unconstitutional, one cannot know if the sentence is “fixed by law” until its constitutionality is first determined. Therefore, although if the provision is constitutional, the sentence is not appealable because it is “fixed by law”, it is appealable for the purpose of determining its constitutionality: see R. v. Logan (1986), 14 O.A.C. 382 (C.A.); R. v. Olah (1997), 115 C.C.C. (3d) 389 (Ont. C.A.). These cases may suggest, by analogy, that in determining whether forfeiture under s. 491(1)(b) is a sentence for the purpose of s. 675, the fact that the putative sentence may be “fixed by law” should not be taken as indicating Parliament’s intention that the forfeiture provision is not a sentence and therefore not appealable.

[26]   I will discuss whether the mandatory forfeiture provision does come within the meaning of “fixed by law” later in these reasons in connection with the Crown’s request, if leave is granted, to vary the trial judge’s decision not to order forfeiture of the seized ammunition.

[27]   I conclude that the mandatory forfeiture of firearms and ammunition involved in an offence committed by the accused is one of the consequences that forms part of the punishment for the offence, and therefore is a sentence for the purpose of s. 675, and is appealable with leave of this court.

Justice Feldman dismissed the appellant’s appeal, and in considering the Crown’s cross-appeal again needed to consider issues of jurisdiction given that the forfeiture is “fixed by law” according to the statute:

[69]   This structure can be usefully compared with a minimum sentence of incarceration. There, upon conviction, the accused is liable to the minimum stated term of imprisonment. There are no findings to be made by the trial judge on the sentencing phase of the proceeding before the minimum sentence is imposed. The mandatory sentence is “fixed by law”.

[70]   Under s. 491, the consequence of forfeiture is mandatory and therefore that consequence is “fixed by law”. But because the process involves a number of important factual findings by the trial judge, in my view, it was not the intention of Parliament that the entire fact-finding process leading up to the forfeiture order would be unappealable. Therefore, having granted leave to appeal to the appellants in order to consider the constitutional challenge, I will proceed to address the issue raised by the Crown.

Feldman J.A. ultimately allowed the Crown’s cross-appeal and ordered that the accused also forfeit the ammunition.

Published In: Constitutional Law Updates, Criminal Law Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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