R. v. Ford (D.M.), 2010 BCCA 105

• Judge: Newbury, Saunders and Bennett, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 26, 2010
• Jurisdiction: British Columbia
• Citations: 2010 BCCA 105;(2010), 286 B.C.A.C. 261 (CA)

R. v. Ford (D.M.) (2010), 286 B.C.A.C. 261 (CA);

    484 W.A.C. 261

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. MY.018

Regina (respondent) v. David Michael Ford (appellant)

(CA034396; 2010 BCCA 105)

Indexed As: R. v. Ford (D.M.)

British Columbia Court of Appeal

Newbury, Saunders and Bennett, JJ.A.

May 10, 2010.

Summary:

Ford was charged with marijuana production, possession of marijuana for the purpose of trafficking and unsafe storage of a firearm in connection with a grow operation on a rural property, which was owned by Ford and another as joint tenants.

The British Columbia Supreme Court, in a decision reported at [2006] B.C.T.C. Uned. D64, convicted Ford. The Crown sought a forfeiture order regarding the property under s. 16 of the Controlled Drugs and Substances Act (CDSA).

The British Columbia Supreme Court, in a decision reported at [2006] B.C.T.C. Uned. E10, sentenced Ford to eight months' imprisonment, concurrent, on each count. His undivided half interest in the property was ordered to be forfeited under s. 16 of the CDSA. Ford appealed from the sentence.

The British Columbia Court of Appeal dismissed the appeal.

Editor's Note: for a decision dismissing this accused's appeal from conviction, see (2008), 252 B.C.A.C. 108; 422 W.A.C. 108. For a decision related to this appeal, see (2009), 276 B.C.A.C. 235; 468 W.A.C. 235.

Criminal Law - Topic 5622.2

Punishments (sentence) - Forfeiture orders - Offence-related property - At issue was whether an order for forfeiture of offence-related real property under the Controlled Drugs and Substances Act could be made against property held in joint tenancy and, if so, what was the effect of such an order on the joint tenancy - The British Columbia Court of Appeal held that a forfeiture order could lawfully be made against property held in joint tenancy - The plain meaning of s. 19(3) of the Act conveyed an intention to permit a judge to order part of a property forfeited - A lawful owner could hold the property either as a joint tenant or a tenant in common - Nothing in the Act suggested that only property held by tenants in common could be ordered to be forfeited - Such an interpretation would not only be illogical, but would not give effect to the Act's intent - The joint tenancy would be severed by the forfeiture order at the latest of either the time of registration of the forfeiture order by the Registrar of Land Titles (if the Registrar accepted the order as a "transmission" in the sense of a change in ownership by operation of a court order under s. 260 of the Land Title Act or, if the Registrar did not accept the forfeiture order, the time of the registration of a vesting order under s. 37 of the Law and Equity Act (if the Crown obtained one)) - Once the Crown had registered its interest, if it could not come to an agreement with the tenant in common, the Crown could apply under the Partition of Property Act to have the property sold - See paragraphs 15 to 44.

Criminal Law - Topic 5622.2

Punishments (sentence) - Forfeiture orders - Offence-related property - Ford was convicted of marijuana production, possession of marijuana for the purpose of trafficking and unsafe storage of a firearm in connection with a grow operation on a rural property, which was owned by Ford and another as joint tenants - Ford was sentenced to eight months' imprisonment, concurrent, on each count - His undivided half interest in the property was ordered to be forfeited under s. 16 of the Controlled Drugs and Substances Act - At issue on Ford's appeal from his sentence was whether the sentencing judge was correct in ordering forfeiture of Ford's entire interest in the property - The British Columbia Court of Appeal dismissed the appeal - The court rejected Ford's assertion that, given his lack of a criminal record, any forfeiture was presumptively disproportionate - Lack of a criminal record was a factor to be weighed with all of the others - Nothing in the Act or the case law created a presumption of disproportionality - See paragraph 49.

Criminal Law - Topic 5622.2

Punishments (sentence) - Forfeiture orders - Offence-related property - Ford was convicted of marijuana production, possession of marijuana for the purpose of trafficking and unsafe storage of a firearm in connection with a grow operation on a rural property, which was owned by Ford and another as joint tenants - Ford was sentenced to eight months' imprisonment, concurrent, on each count - His undivided half interest in the property was ordered to be forfeited under s. 16 of the Controlled Drugs and Substances Act - At issue on Ford's appeal from his sentence was whether the sentencing judge was correct in ordering forfeiture of Ford's entire interest in the property - The British Columbia Court of Appeal dismissed the appeal - According to R. v. Craig (J.A.) (2009 S.C.C.), a partial forfeiture order was available under s. 19.1(3) of the Act - As Craig was not available to the sentencing judge, the court considered the appropriateness of partial forfeiture - The purpose of s. 19.1(3) was to ameliorate the harshness or draconian effect of a forfeiture order in relation to real property - The forfeiture order was proportionate when the factors in s. 19.1(3) were weighed - Ford contributed $5,000 to the initial purchase of the property and made payments until the search warrant was executed - His interest in the property at sentencing was approximately $30,000 - The value of the marijuana seized was $34,000 - Ford could have harvested this yield three or four times a year - There were firearms in the house - The facts that Ford had no criminal record and no ties to organized crime were significant, but the use of the property was extensive and the operation was sophisticated and commercial - The investment by Ford in the property was minimal and the equity he held was primarily as a result of a rising market - The court agreed with the sentencing judge's conclusion that Ford's entire interest should be forfeited - See paragraphs 50 to 57.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - Ford was convicted of marijuana production, possession of marijuana for the purpose of trafficking and unsafe storage of a firearm in connection with a grow operation on a rural property, which was owned by Ford and another as joint tenants - Ford was sentenced to eight months' imprisonment, concurrent, on each count - His undivided half interest in the property was ordered to be forfeited under s. 16 of the Controlled Drugs and Substances Act - Ford appealed from the sentence, asserting, inter alia, that given the time that he had successfully spent on bail while his appeals were being heard, a conditional sentence order was now an appropriate sentence - The British Columbia Court of Appeal dismissed the appeal - An eight month jail sentence was within the range of sentences imposed for a commercial marijuana grow operation, despite Ford's lack of criminal record - The sentence was neither clearly unfit nor was there an error in principle - The fact that the appeal was delayed (primarily at the request of Ford) was no basis to interfere with what was otherwise a fit sentence - See paragraphs 64 to 67.

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotic offences - Ford was convicted of marijuana production, possession of marijuana for the purpose of trafficking and unsafe storage of a firearm in connection with a grow operation on a rural property, which was owned by Ford and another as joint tenants - Ford was sentenced to eight months' imprisonment, concurrent, on each count - His undivided half interest in the property was ordered to be forfeited under s. 16 of the Controlled Drugs and Substances Act - Ford appealed from the sentence, asserting, inter alia, that the sentencing judge had erred in considering the time and attention spent investigating a number of grow operations in the area as an aggravating factor - The British Columbia Court of Appeal dismissed the appeal - The sentencing judge was from the local area - The fact that there were a number of grow operations in the area was relevant to general deterrence and denunciation - The sentencing judge committed no error in taking into account the plethora of grow operations in the area - The cost of the time and attention required for an investigation of the number of grow operations was an appropriate factor to consider in sentencing - The sentencing judge did not lay all of this at the feet of Ford, as he made it clear that he understood that the multitude of grow operations were all independently operated - See paragraphs 58 to 63.

Criminal Law - Topic 5831.2

Sentencing - Considerations on imposing sentence - Delay - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5848.8

Sentencing - Considerations on imposing sentence - First offence - [See second Criminal Law - Topic 5622.2 ].

Criminal Law - Topic 5853

Sentence - Trafficking in hashish or marijuana (incl. possession for purposes of trafficking) - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5877.1

Sentence - Improper or careless storage of firearm - [See Criminal Law - Topic 5720.4 ].

Criminal Law - Topic 5878

Sentence - Possession, cultivation or production of a narcotic or a controlled drug or substance - [See Criminal Law - Topic 5720.4 ].

Narcotic Control - Topic 1104

Penalties - Forfeiture of seized goods - When available (incl. offence-related property) - [See all Criminal Law - Topic 5622.2 ].

Real Property - Topic 3882

Joint estates - Severance of joint tenancies - Jurisdiction - [See first Criminal Law - Topic 5622.2 ].

Statutes - Topic 502

Interpretation - General principles - Intention of legislature - [See first Criminal Law - Topic 5622.2 ].

Statutes - Topic 503

Interpretation - General principles - Avoidance of unreasonable results - [See first Criminal Law - Topic 5622.2 ].

Cases Noticed:

R. v. Craig (J.A.), [2009] 1 S.C.R. 762; 388 N.R. 254; 271 B.C.A.C. 1; 458 W.A.C. 1; 2009 SCC 23, refd to. [para. 25].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 26].

Stonehouse v. British Columbia (Attorney General), [1962] S.C.R. 103; 37 W.W.R.(N.S.) 62; 31 D.L.R.(2d) 118, refd to. [para. 28].

Novak v. Gatien et al. (1975), 25 R.F.L. 397 (Man. Q.B.), refd to. [para. 30].

Royal Bank of Canada v. Babiy and Oliver, [1992] 1 W.W.R. 320; 93 Sask.R. 161; 4 W.A.C. 161; 85 D.L.R.(4th) 122 (C.A.), refd to. [para. 30].

White, Re, [1928] 1 D.L.R. 846; 8 C.B.R. 544 (Ont. S.C.), refd to. [para. 30].

Canadian Imperial Bank of Commerce v. Muntain, [1985] 4 W.W.R. 90 (B.C.S.C.), refd to. [para. 31].

Young, Re (1968), 70 D.L.R.(2d) 594; 66 W.W.R.(N.S.) 193 (B.C.C.A.), refd to. [para. 31].

Schobelt v. Barber, [1967] 1 O.R. 349; 60 D.L.R.(2d) 519 (H.C.), refd to. [para. 32].

Papkowski, Re (1956), 6 D.L.R.(2d) 427 (B.C.S.C.), refd to. [para. 32].

Proctor Estate v. Proctor (1989), 59 Man.R.(2d) 199; 33 E.T.R. 175 (Q.B.), refd to. [para. 32].

R. v. Ouellette (Y.), [2007] R.J.Q. 787; 229 C.C.C.(3d) 563; 2007 QCCA 518, refd to. [para. 49].

R. v. Baldasaro (M.J.) et al. (2009), 265 O.A.C. 75; 2009 ONCA 676, leave to appeal refused (2010), 407 N.R. 389 (S.C.C.), refd to. [para. 50].

R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361; 68 C.C.C.(2d) 477, refd to. [para. 59].

R. v. Hodwitz and Hodwitz, [1985] B.C.J. No. 1676 (C.A.), refd to. [para. 59].

R. v. Anderson (R.J.) (1992), 16 B.C.A.C. 14; 28 W.A.C. 14; 74 C.C.C.(3d) 523 (C.A.), refd to. [para. 59].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 105 C.C.C.(3d) 327, refd to. [para. 60].

R. v. Su (P.H.) (2000), 142 B.C.A.C. 306; 233 W.A.C. 306; 2000 BCCA 480, refd to. [para. 65].

R. v. Anderson (L.K.), [2007] B.C.A.C. Uned. 180; 2007 BCCA 581, refd to. [para. 65].

R. v. Vo (V.T.), [2009] B.C.A.C. Uned. 94; 2009 BCCA 471, refd to. [para. 65].

R. v. Tran (H.T.) (2005), 216 B.C.A.C. 102; 356 W.A.C. 102; 2005 BCCA 430, refd to. [para. 66].

Statutes Noticed:

Controlled Drugs and Substances Act, S.C. 1996, c. 19, sect. 19.1(3) [para. 15].

Authors and Works Noticed:

British Columbia, Law Reform Commission, Report on Co-Ownership of Land Vancouver: The Commission (1988), p. 7 [para. 30].

Burn, E.H., and Cartwright, J., Cheshire and Burn's Modern Law of Real Property (17th Ed. 2006), p. 208 [para. 27].

Harpum, Charles, Bridge, Stuart, and Dixon, Martin, Megarry & Wade: The Law of Real Property (7th Ed. 2008), p. 511 [para. 30].

Counsel:

B.B. Olthuis and M.B. Rankin, for the appellant;

W.P. Riley, for the Crown.

This appeal was heard at Vancouver, British Columbia, on January 26, 2010, by Newbury, Saunders and Bennett, JJ.A., of the British Columbia Court of Appeal. On May 10, 2010, Bennett, J.A., delivered the following reasons for judgment for the court.