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R. v. Manning

2013 SCC 1 [2013] 1 SCR 3 Court SCC Decision date 2013-01-17 Docket 34358 English

PartiesHer Majesty The Queen Appellant·Alphide Manning Respondent·Director of Public Prosecutions of Canada Interveners·Attorney General of Ontario Interveners·Canadian Civil Liberties Association Interveners·British Columbia Civil Liberties Association Interveners

Counsel (6)
Solicitor for the appellant: Poursuites criminelles et pénales du Québec, Baie‑Comeau, Quebec.
Solicitor for the respondent: Patrick Jacques, Beaupré, Quebec.
Solicitor for the intervener the Director of Public Prosecutions of Canada: Public Prosecution Service of Canada, Ottawa.
Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto.
Solicitors for the intervener the Canadian Civil Liberties Association: Blake, Cassels & Graydon, Toronto.
Solicitors for the intervener the British Columbia Civil Liberties Association: Irving Mitchell Kalichman, Montréal.

Judges McLachlin, Beverley; LeBel, Louis; Fish, Morris J.; Abella, Rosalie Silberman; Cromwell, Thomas Albert; Karakatsanis, Andromache; Wagner, Richard

Delivered by Fish J. (McLachlin C.J. and LeBel, Abella, Cromwell, Karakatsanis and Wagner JJ. concurring)

On appeal from Quebec

Subjects Criminal law

Contents

Reasons for Judgment — Fish J. (McLachlin C.J. and LeBel, Abella, Cromwell, Karakatsanis and Wagner JJ. concurring)

Fish J. — Alphide Manning, the respondent on this appeal, pleaded guilty at trial to impaired driving and the Crown, upon his conviction, sought forfeiture of the truck driven by Mr. Manning at the time of his arrest.
The trial judge declined to grant the order of forfeiture requested by the Crown.
Our sole concern here is with s. 490.41(3) of the Criminal Code , R.S.C. 1985, c. C-46 , which, in its relevant part, reads as follows:
. . . if a court is satisfied that the impact of an order of forfeiture made under subsection 490.1(1) or 490.2(2) would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted of the offence, as the case may be, it may decide not to order the forfeiture of the property or part of the property and may revoke any restraint order made in respect of that property or part.
In applying that provision here, the trial judge held that he was bound to consider the objectives and principles of sentencing set out in s. 718 and following of the Criminal Code .
We agree with the Quebec Court of Appeal (2011 QCCA 900 (CanLII)) that the trial judge erred in this regard: see R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762, at para. 13.
Unlike the Court of Appeal, however, and with the greatest of respect, we believe that the trial judge’s error is fatal to his conclusion.
Moreover, on the record as we have it, we are not satisfied that the impact of the order of forfeiture sought by the Crown was “disproportionate”, within the meaning of s. 490.41(3) of the Criminal Code . In concluding otherwise, the trial judge erroneously emphasized Mr. Manning’s personal circumstances and failed to give appropriate weight, as required by s. 490.41(3), to Mr. Manning’s criminal record, including five convictions for alcohol-related driving offences and three for breaches of probation orders or undertakings.
Accordingly, we would allow the appeal and grant the order of forfeiture sought by the Crown.

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