R. v. Neves (J.A.), (2005) 201 Man.R.(2d) 44 (CA)

• Judge: Scott, C.J.M., Huband, Monnin, Steel and Freedman, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: February 25, 2005
• Jurisdiction: Manitoba
• Citations: (2005), 201 Man.R.(2d) 44 (CA);2005 MBCA 112

R. v. Neves (J.A.) (2005), 201 Man.R.(2d) 44 (CA);

    366 W.A.C. 44

MLB headnote and full text

Temp. Cite: [2005] Man.R.(2d) TBEd. OC.027

Her Majesty The Queen (respondent) v. Jose Antonio Neves (accused/appellant)

(AR 00-30-04704; 2005 MBCA 112)

Indexed As: R. v. Neves (J.A.)

Manitoba Court of Appeal

Scott, C.J.M., Huband, Monnin, Steel and Freedman, JJ.A.

October 18, 2005.

Summary:

The Manitoba Court of Queen's Bench, in a decision reported at 149 Man.R.(2d) 1, found the accused guilty of conspiracy to traffic cocaine, conspiracy to possess proceeds of crime and two counts of trafficking in cocaine. The accused was sentenced to eight years' imprisonment. Pursuant to s. 462.37(3) of the Criminal Code, a $32,000 fine was imposed in lieu of forfeiture of proceeds of crime, with 12 months' imprisonment ordered in default of payment. The accused appealed from the convictions and sentence.

The Manitoba Court of Appeal, in a decision reported at 192 Man.R.(2d) 223; 340 W.A.C. 223, dismissed the conviction appeal. At issue on the sentence appeal was whether the sentencing judge erred in failing to take the accused's ability to pay into account when she ordered a $32,000 fine in lieu of forfeiture pursuant to s. 462.37(3) of the Code. The sentence appeal was heard by a panel of five judges since the accused sought reconsideration of the court's previous decision in R. v. Garoufalis (T.).

The Manitoba Court of Appeal, Huband and Monnin, JJ.A., dissenting, allowed the sentence appeal. The court held that a court had a discretion under s. 462.37(3) of the Code as to whether to impose a fine in lieu of forfeiture. The court further held that ability to pay was a factor which could, but need not, be a relevant consideration by the court in deciding whether to impose a fine in lieu of forfeiture. The court overruled its previous decision on Garoufalis.

Courts - Topic 83

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Court of Appeal - The Manitoba Court of Appeal held that ability to pay was a factor which could, but need not, be a relevant consideration by the court in deciding whether to impose a fine in lieu of forfeiture under s. 463.37(3) of the Criminal Code - In so deciding, the court overruled its 1998 decision in R. v. Garoufalis, which held that ability to pay was not a relevant consideration - Five factors supported overruling Garoufalis: (1) the legislative history, which illuminated Parliament's intention, tended to confirm the correctness of those decisions which had departed from Garoufalis; (2) courts were more inclined to overrule a previous wrong decision when the liberty of an individual might be adversely impacted if the prior decision was allowed to stand; (3) there were reasoned decisions of other courts that explained why ability to pay should be taken into account, contrary to the brief conclusion in Garoufalis; (4) Garoufalis was of recent vintage; and (5) it was highly unlikely that departing from stare decisis in this case would adversely impact actions taken in reliance on Garoufalis - See paragraphs 100 to 109.

Courts - Topic 83

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Court of Appeal - The Manitoba Court of Appeal stated that "The court's freedom to depart from a prior, incorrect decision should logically increase in direct proportion to the extent to which that prior decision lacks a fully reasoned, analytically sound foundation. The principles of stare decisis impose restrictions on our ability to overrule a prior decision and reach a correct decision in a subsequent case, but there are fewer restrictions if that prior decision was conclusory than if it was reasoned" - See paragraph 106.

Courts - Topic 83

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Court of Appeal - The Manitoba Court of Appeal stated that there were three instances, generally considered to be rare and exceptional, when decisions of the highest provincial court could be departed from by that court - First, if the decision was rendered per incuriam, it could be overruled - Such a decision was one that was given in ignorance or forgetfulness of a statute or binding authority inconsistent with the decision, and that, had it been considered, would have resulted in a different decision - A second instance was when the earlier decision, although not per incuriam, was based on a manifest slip or error - A third instance was when the court was convinced that, although the previous judgment was neither per incuriam nor based on a manifest slip or error, it was nevertheless wrong and the circumstances warranted or required overruling it - See paragraphs 76 to 83.

Criminal Law - Topic 1987

Offences against property - Possession or laundering of proceeds of crime - Forfeiture order (incl. fine in lieu of) - Section 462.37 of the Criminal Code dealt with forfeiture of the proceeds of crime - Pursuant to s. 462.37(3), the court could impose a fine in lieu of forfeiture when the property could not be made subject to a forfeiture order - The Manitoba Court of Appeal held that a court had a discretion under s. 462.37(3) as to whether to impose a fine in lieu of forfeiture - The court further held that ability to pay was a factor which could, but need not, be a relevant consideration by the court in deciding whether to impose a fine in lieu of forfeiture - In reaching those conclusions, the court considered the plain meaning of s. 462.37(3) and the use of the word "may", the legislative intent in drafting the legislation, and the jurisprudence interpreting the section - The court's decision was not affected by s. 734(2) of the Code, which did not apply to proceeds of crime legislation - See paragraphs 11 to 57.

Criminal Law - Topic 1987

Offences against property - Possession or laundering of proceeds of crime - Forfeiture order (incl. fine in lieu of) - Section 462.37 of the Criminal Code dealt with forfeiture of the proceeds of crime - Pursuant to s. 462.37(3), the court could impose a fine in lieu of forfeiture when the property could not be made subject to a forfeiture order - The Manitoba Court of Appeal held that ability to pay was a factor which could, but need not, be a relevant consideration by the court in deciding whether to impose a fine in lieu of forfeiture under s. 463.37(3) - The court noted that a court need not always assume that a present inability to pay would persist in the future - The court stated that "In determining an offender's ability to pay, a court may consider not only the present and future financial resources of the offender, but also any financial benefit received by the offender as a result of his commission of the offence, as well as the impact of giving the offender time to pay" - See paragraph 48.

Criminal Law - Topic 1987

Offences against property - Possession or laundering of proceeds of crime - Forfeiture order (incl. fine in lieu of) - Section 462.37 of the Criminal Code dealt with forfeiture of the proceeds of crime - Pursuant to s. 462.37(3), the court could impose a fine in lieu of forfeiture when the property could not be made subject to a forfeiture order - The Manitoba Court of Appeal held that ability to pay was a factor which could, but need not, be a relevant consideration by the court in deciding whether to impose a fine in lieu of forfeiture under s. 463.37(3) - The court stated, inter alia, "It is not an error of law for the court under s. 462.37(3) not to initiate a means inquiry, but it may be an error, depending on the circumstances of the particular case, for the court to fail to consider a relevant factor" - See paragraph 55.

Criminal Law - Topic 1987

Offences against property - Possession or laundering of proceeds of crime - Forfeiture order (incl. fine in lieu of) - Section 462.37 of the Criminal Code dealt with forfeiture of the proceeds of crime - Pursuant to s. 462.37(3), the court could impose a fine in lieu of forfeiture when the property could not be made subject to a forfeiture order - The final words of s. 463.37(3) stated that a fine may be imposed "in an amount equal to the value of that property" - The Manitoba Court of Appeal held that there was no ambiguity and the amount of the fine imposed was to be equal to the value of the property - See paragraphs 110 to 118.

Criminal Law - Topic 5621.1

Punishments (sentence) - Forfeiture orders - Fine instead of forfeiture - [See all Criminal Law - Topic 1987 ].

Criminal Law - Topic 5629

Punishments (sentence) - Fines, penalties and compensation orders - Considerations on imposing fine (incl. ability to pay) - [See first, second and third Criminal Law - Topic 1987 ].

Criminal Law - Topic 5633

Punishments (sentence) - Fines, penalties and compensation orders - Fine - Where forfeiture not available - [See all Criminal Law - Topic 1987 ].

Cases Noticed:

R. v. Garoufalis (T.) (1998), 131 Man.R.(2d) 231; 187 W.A.C. 231 (C.A.), overruled [para. 5].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 12].

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. 12].

Provincial Municipal Assessor (Man.) v. Seagram Co. (2003), 180 Man.R.(2d) 69; 310 W.A.C. 69; 2003 MBCA 128, refd to. [para. 12].

Munday (E.C.) Ltd. v. Canada Safeway Ltd. (2004), 187 Man.R.(2d) 281; 330 W.A.C. 281; 2004 MBCA 143, refd to. [para. 12].

Marcotte v. Canada (Deputy Attorney General), [1976] 1 S.C.R. 108; 3 N.R. 613, refd to. [para. 13].

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81, refd to. [para. 13].

R. v. G.B. et al. (No. 1), [1990] 2 S.C.R. 3; 111 N.R. 1; 86 Sask.R. 81, refd to. [para. 14].

R. v. Clark (D.M.), [2005] 1 S.C.R. 6; 329 N.R. 10; 208 B.C.A.C. 6; 344 W.A.C. 6; 2005 SCC 2, refd to. [para. 14].

R. v. Fontaine (D.) (2002), 166 Man.R.(2d) 214; 278 W.A.C. 214; 2002 MBCA 107, refd to. [para. 16].

Francis v. Baker, [1999] 3 S.C.R. 250; 246 N.R. 45; 125 O.A.C. 201, refd to. [paras. 30, 186].

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 248; 322 N.R. 205; 199 B.C.A.C. 45; 326 W.A.C. 45; 2004 SCC 42, refd to. [paras. 31, 146].

L.M.M. v. W.G.B. (2003), 170 Man.R.(2d) 182; 285 W.A.C. 182; 2003 MBCA 17, refd to. [paras. 31, 147].

R. v. Rosenblum (N.M.) (1998), 116 B.C.A.C. 98; 190 W.A.C. 98; 130 C.C.C.(3d) 481 (C.A.), refd to. [paras. 34, 158].

Wilson and Nakatsuru & Doucette v. R. (1993), 66 O.A.C. 219; 86 C.C.C.(3d) 464 (C.A.), refd to. [paras. 35, 159].

R. v. Savard (1998), 126 C.C.C.(3d) 562 (Que. C.A.), consd. [paras. 36, 133].

R. v. Wust (L.W.), [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236; 2000 SCC 18, refd to. [para. 38].

R. v. Lavigne (R.) (2004), 23 C.R.(6th) 313 (Que. C.A.), leave to appeal granted (2005), 334 N.R. 194 (S.C.C.), consd. [paras. 39, 172].

R. v. Lawrence (R.E.) et al., [1994] B.C.J. No. 355 (S.C.), affd. (1996), 82 B.C.A.C. 255; 133 W.A.C. 255 (C.A.), refd to. [para. 46].

R. v. MacLean (D.R.) (1996), 184 N.B.R.(2d) 26; 469 A.P.R. 26 (C.A.), refd to. [para. 46].

R. v. Wu (Y.), [2003] 3 S.C.R. 530; 313 N.R. 201; 182 O.A.C. 6; 2003 SCC 73, refd to. [para. 48].

R. v. Noseworthy (J.A.) and Janes (C.P.) (2000), 192 Nfld. & P.E.I.R. 120; 580 A.P.R. 120; 147 C.C.C.(3d) 97; 2000 NFCA 45, refd to. [para. 51].

R. v. Geschwandtner (M.G.) (2004), 241 Sask.R. 248; 313 W.A.C. 248; 2004 SKCA 15, refd to. [paras. 56, 170].

Mellway v. Mellway (2004), 187 Man.R.(2d) 247; 330 W.A.C. 247; 2004 MBCA 119, refd to. [para. 60].

R. v. Pawlyk (1991), 72 Man.R.(2d) 1 (C.A.), refd to. [para. 69].

Polowin (David) Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 199 O.A.C. 266 (C.A.), consd. [paras. 75, 196].

Huddersfield Police Authority v. Watson, [1947] 2 All E.R. 193 (D.C.), refd to. [para. 77].

Young v. Bristol Aeroplane Co., [1944] K.B. 718 (C.A.), refd to. [para. 77].

Deere (John) Ltd. v. Firdale Farms Ltd. (Receivership) (1987), 50 Man.R.(2d) 45 (C.A.), refd to. [paras. 77, 193].

Al's Steak House and Tavern Inc. et al. v. Deloitte & Touche et al. (1997), 102 O.A.C. 144 (C.A.), refd to. [para. 77].

Morelle Ltd. v. Wakeling, [1955] 1 All E.R. 708 (C.A.), refd to. [para. 78].

Farrell v. Alexander, [1976] 1 All E.R. 129 (C.A.), refd to. [para. 78].

Secretary of State for Trade and Industry v. Desai, [1991] E.W.J. No. 176 (C.A.), refd to. [para. 81].

Fredant Investments Ltd. v. Winnipeg City Assessor (1998), 131 Man.R.(2d) 29; 187 W.A.C. 29 (C.A.), refd to. [para. 84].

Thomson v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2003), 212 N.S.R.(2d) 81; 665 A.P.R. 81; 223 D.L.R.(4th) 193; 2003 NSCA 14, refd to. [para. 84].

R. v. Thompson (1930), 39 Man.R. 277 (C.A.), refd to. [para. 86].

General Brake & Clutch Service Ltd. v. Scott (W.A.) & Sons Ltd. (1975), 59 D.L.R.(3d) 741 (Man. C.A.), refd to. [para. 87].

Chartier v. Chartier (1997), 118 Man.R.(2d) 152; 149 W.A.C. 152 (C.A.), refd to. [para. 88].

McNaughton Automotive Ltd. v. Co-operators General Insurance Co. (2001), 151 O.A.C. 252; 54 O.R.(3d) 704 (C.A.), refd to. [para. 91].

Thomson v. Canada (Minister of Agriculture), [1992] 1 S.C.R. 385; 133 N.R. 345, refd to. [para. 103].

R. v. Thornton, [1971] 1 O.R. 691 (C.A.), refd to. [para. 104].

R. v. Taylor, [1950] 2 All E.R. 170 (C.C.A.), refd to. [para. 104].

R. v. McInnis (1973), 13 C.C.C.(2d) 471 (Ont. C.A.), refd to. [para. 104].

R. v. Santeramo (1976), 36 C.R.N.S. 1 (Ont. C.A.), refd to. [para. 104].

R. v. Hoyles (D.K.) (1997), 158 Nfld. & P.E.I.R. 28; 490 A.P.R. 28 (Nfld. C.A.), refd to. [para. 115].

R. v. Martin (R.) (1998), 164 Nfld. & P.E.I.R. 179; 507 A.P.R. 179 (Nfld. C.A.), refd to. [paras. 115, 169].

Johnson's Tyne Foundry Pty. Ltd. v. Shire of Maffra, [1949] A.L.R. 89, refd to. [para. 141].

Peterborough Corp. v. Holdich, [1956] 1 Q.B. 124 (D.C.), consd. [para. 143].

R. v. Beaulieu Estate et al. (2001), 243 N.B.R.(2d) 338; 631 A.P.R. 338; 214 D.L.R.(4th) 663; 2001 NBCA 107, refd to. [para. 163].

R. v. Sam (C.) et al. (1998), 163 Sask.R. 314; 165 W.A.C. 314 (C.A.), consd. [para. 167].

R. v. Latimer (R.W.), [2001] 1 S.C.R. 3; 264 N.R. 99; 203 Sask.R. 1; 240 W.A.C. 1; 2001 SCC 1, refd to. [para. 189].

R. v. Chaulk and Morrissette, [1990] 3 S.C.R. 1303; 119 N.R. 161; 69 Man.R.(2d) 161, refd to. [para. 201].

R. v. Salituro, [1991] 3 S.C.R. 654; 131 N.R. 161; 50 O.A.C. 125, refd to. [para. 201].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 462.37 [para. 6]; sect. 734 [para. 43].

Authors and Works Noticed:

Band, Patrice, Stare Decisis: Are Appellate Courts Bound By Their Previous Decisions? (1998), 20 Adv. Q. 344, generally [para. 74]; pp. 353, 354 [para. 89].

Ehrcke, William F., Stare Decisis (1995), 53 The Advocate 847, generally [para. 74].

Guth, DeLloyd J., Brian Dickson at the Supreme Court of Canada, 1973-1990 (1998), p. 193 [para. 74].

Pound, Roscoe, Interpretations of Legal History (1923), generally [para. 83].

Saunders, John B., Words and Phrases Legally Defined (3rd Ed. 1989), vol. 3, p. 116 [para. 141].

Sharpe, Robert J., The Doctrine of Stare Decisis, in Guth, DeLloyd J., Brian Dickson at the Supreme Court of Canada, 1973-1990 (1998), p. 193 [para. 74].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), generally [para. 146]; pp. 2 [para. 11]; 387 [para. 14]; 469 [para. 32]; 500 [para. 29].

Counsel:

M.R. Kantor, for the appellant;

R.P. Maertens, for the respondent.

This appeal was heard on February 25, 2005, before Scott, C.J.M., Huband, Monnin, Steel and Freedman, JJ.A., of the Manitoba Court of Appeal. The judgment of the Court of Appeal was delivered on October 18, 2005, when the following opinions were filed:

Steel and Freedman, JJ.A. (Scott, C.J.M., concurring) - see paragraphs 1 to 125;

Huband, J.A., dissenting (Monnin, J.A., concurring) - see paragraphs 126 to 206.