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Powers of search and seizure - Seizure - Forfeiture of items seized

Thursday, September 08, 2016 @ 8:00 PM  

Appeal by Tran from the dismissal of her application for post-forfeiture relief in relation to a property she jointly owned with her husband. Tran and her husband were charged following the discovery of 550 marijuana plants at their home and the subject property, which was unoccupied. Tran’s husband agreed to plead guilty in exchange for the withdrawal of the charges against Tran, subject to Tran’s agreement not to make submissions at the Crown’s forfeiture proceeding. The proceeding resulted in 50 per cent of the home, and the entire subject property found to have been purchased and used exclusively as a marijuana grow operation, being forfeited to the Crown. When considering the gravity of Tran’s offences, the sentencing judge noted he was solely involved in the grow operations. After the charges against her were withdrawn, Tran applied for post-forfeiture relief, seeking a declaration that her interest in the subject property was not affected by the forfeiture order. The application judge found she was complicit in the offence underlying the forfeiture, and therefore not entitled to post-forfeiture relief.

HELD: Appeal dismissed. Tran’s appeal was devoid of merit. The application judge was precluded from granting her post-forfeiture relief where the evidence established she was fully complicit in the offence underlying the forfeiture order. Tran was joint owner of both forfeited properties, and she and her husband were found in one of them when the marijuana growing operation was discovered. It was clear that something other than employment income allowed Tran and her husband to purchase the subject property. The application judge was entitled to find Tran complicit, despite the sentencing judge’s statement that her husband was solely involved, as this statement referred to the limitations of the husband’s conduct, not the exclusion of Tran’s. Tran suffered no prejudice from the resolution deal. There was no miscarriage of justice or cruel and unusual treatment or punishment in denying Tran post-forfeiture relief where the deal eliminated for Tran the very real risk of incarceration. Tran was not entitled to raise for the first time on appeal allegations that her rights had been violated.R. v. Tran<br/>[2016] O.J. No. 3731,<br/>Ontario Court of Appeal,<br/>S.E. Pepall, M.H. Tulloch and G.I. Pardu JJ.A.,<br/>July 6, 2016.<br/>Digest No. 3617-008