T-370-88
Joseph Emmerson Porter (Plaintiff)
v.
The Queen (Defendant)
INDEXED AS: PORTER v. CANADA (T.D.)
Trial Division, Joyal J.—Halifax, December 13,
1988; Ottawa, March 14, 1989.
Customs and excise — Excise Act — Forfeiture — Truck
seized under s. 163(3), when owner apprehended transporting
illegally manufactured spirits — Historical and current theory
of law of forfeiture — Distinction between regulatory and
punitive forfeitures — Forfeiture not rendered inoperative by
Charter — Caution against upsetting balance between
individual and private rights guaranteed by Charter and Par
liament's obligation to protect public interest — Proper to
balance state interests with individual concerns within rights-
defining clauses themselves.
Constitutional law — Charter of Rights — Criminal process
— Plaintiff's truck forfeited under Excise Act, s. 163(3) when
apprehended transporting illegally manufactured spirits —
Convicted and fined under s. 163(1)(a) — No relief under
Charter s. 11 as applies only to person charged — Forfeiture
proceeding against truck — No double jeopardy as accused
not finally punished until all possible penal consequences for
offence exhausted — Law permitting imposition of variety of
sanctions in conjunction with other forms of punishment —
Cruel and unusual punishment excessive and grossly dispro
portionate — Forfeiture not unusual as lengthy history in
Canada, and not "so excessive as to outrage standards of
decency" — Charter, s. 8 (protection against unreasonable
seizure) designed to protect privacy interests of individuals —
No allegation privacy interest violated — No violation of
presumption of innocence — Forfeiture of vehicle statutorily
based on use in illicit carriage of spirits, not on ultimate
conviction.
Constitutional law — Charter of Rights — Limitation
clause — Forfeiture under Excise Act, s. 163(3) justified as
reasonable measure designed to frustrate further criminal
enterprise, protect public welfare and secure Crown revenue.
This was a determination on a point of law. The plaintiff's
1986 Toyota truck, valued at $14,000, was seized under subsec
tion 163(3) of the Excise Act when he was apprehended for
transporting illegally manufactured spirits. He subsequently
pleaded guilty to the offence and was fined. Subsection 163(3)
provides that all such spirits and all vehicles used to transport
them shall be forfeited to the Crown. The plaintiff argued that
subsection 163(3) was contrary to Charter, sections 8 (protec-
tion against unreasonable search and seizure), 11(d) (presump-
tion of innocence), (h) (protection against double jeopardy) and
12 (protection against cruel and unusual punishment). The
question was whether the forfeiture provision was rendered
inoperative under the Charter provisions.
Held, the action should be dismissed.
The Court examined the Charter provisions as well as the
historical and current theory of the law of forfeiture, including
the American experience, in order to resolve the clash between
the ancient practice of forfeiture and the contemporary eleva
tion of individual rights and freedoms. Historically, forfeiture
has been accepted by the courts as necessary "for the purpose
of working some great public good", including protection of
revenue and public health. American courts have found that
forfeiture was too firmly fixed in the punitive and remedial case
law to be displaced. In Canada, the legitimacy of forfeiture
provisions had never been put in serious doubt prior to the
advent of the Charter.
Section 11 applies only to a person charged with an offence.
When the plaintiffs truck was forfeited, the proceeding was
against the truck itself by reason of its use as a carrier of illicit
spirits. The forfeiture was not double punishment prohibited
under paragraph 1 1(h) of the Charter because in law, an action
in rem is divorced from considerations of ownership.
Forfeitures may serve to (1) regulate illegal activities or (2)
punish those who engage in such activies. It is difficult to
characterize the law here as regulatory since it avoids the
imposition of forfeiture on the innocent. If its primary function
was to regulate the transportation of illicit spirits, forfeiture
would be imposed in all cases. Even if the impugned provision
had a punitive aspect, the plaintiff was unable to invoke
paragraph 11(h) because the punishment did not involve double
jeopardy as an accused is not finally punished until all possible
penal consequences for the offence are exhausted. Section 12
could not be invoked because the forfeiture was not cruel and
unusual. Cruel and unusual punishment is excessive, but also
grossly disproportionate. Forfeiture is not unusual, and in light
of its long history is not so excessive as to outrage standards of
decency. Acts of a legislative body are presumed to be constitu
tional until proven otherwise. The plaintiff did not demonstrate
that the forfeiture provisions are unconstitutional.
It was argued that it was unreasonable to seize such a
valuable piece of property as a consequence of this type of
violation of the Excise Act. Charter, section 8 was, however,
designed primarily to protect the privacy of individuals, and
affords protection to property only where that is required to
uphold the protection of privacy. There was no allegation that
any privacy interest of the plaintiff had been violated.
The plaintiff also argued that as the forfeiture provisions
apply before the owner of the vehicle has been tried and
convicted of the offence, there is a presumption of guilt. The
forfeiture was based, not on the ultimate conviction, but on the
fact that it was used in the carriage of illicit spirits.
The preoccupation with the security of revenue arising from
excise taxes, hallowed by ancient doctrine and historical
legitimacy, is deserving of continued respect, since through the
years, draconian as forfeiture may appear to be, it has been
good and necessary policy to retain it. Judicial interference
with legislative policy is always undertaken at the risk of
upsetting the delicate balance which must be maintained be
tween individual and private rights guaranteed by the Charter
and the obligations on Parliament to secure and protect the
public interest. As section 12 is couched in terms which include
qualifying adjectives, it must be subject to some limits within
itself, including respect for legitimate state interests. What is
cruel and unusual may vary in different circumstances and this
need not always be proven strictly by the Crown in the context
of section 1, but may be considered by the judge in attempting
to define the guaranteed right.
There is nothing improper about balancing state interests
with individual concerns within rights-defining clauses them
selves. In any case, a similar limit to that protected right would
prevail in a section 1 analysis. The legitimacy of forfeiture
could easily be justified as a reasonable measure designed to
frustrate further criminal enterprise, protect the public welfare
and secure the Crown revenues.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Bill of Rights, R.S.C. 1970, Appendix III.
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
/982, 1982, c. 11 (U.K.), ss. 1, 8, 11(d),(h), 12.
Customs Act, S.C. 1986, c. 1.
Excise Act, R.S.C. 1970, c. E-12, ss. 115, 163(1)(a) (as
am. by S.C. 1976-77, c. 28, s. 49), (3).
Lord Campbell's Act, 9 & 10 Vict., c. 62.
Narcotic Control Act, R.S.C. 1970, c. N-1, s. 10(9).
CASES JUDICIALLY CONSIDERED
APPLIED:
Re Regina and Green (1983), 5 C.C.C. (3d) 95; 41 O.R.
(2d) 557 (H.C.); R. v. Smith (Edward Dewey), [1987] 1
S.C.R. 1045.
CONSIDERED:
Regina v. Woodrow (1846), 153 E.R. 907 (Exch.);
United States v. Balint, 258 U.S. 250 (1922); U.S. v. One
1963 Cadillac Coupe de Ville, Two-Door, 250 F. Supp.
183 (W.D. Mo. 1966); Calero-Toledo v. Pearson Yacht
Leasing Co., 416 U.S. 663 (1974); The Palmyra, 12
Wheat. 1 (1827); Goldsmith, Jr.-Grant Co. v. United
States, 254 U.S. 505 (1921); The King v. Krakowec et
al., [1932] S.C.R. 134; In re Gittens, [1983] 1 F.C. 152;
(1982), 137 D.L.R. (3d) 687 (T.D.); R. v. Simon (No. 3)
(1982), 5 W.W.R. 728 (N.W.T.S.C.); R. v. Mitchell
(1987), 39 C.C.C. (3d) 141 (N.S.C.A.); F.K. Clayton
Group Ltd. v. M.N.R., [1988] 2 F.C. 467; (1988), 82
N.R. 313 (F.C.A.); Bertram S. Miller Ltd. v. R., [1986]
3 F.C. 291; 28 C.C.C. (3d) 263 (F.C.A.); R. v. Simmons,
[1988] 2 S.C.R. 495.
REFERRED TO:
Mayberry, Herbert Frederick v. The King, [1950]
Ex.C.R. 402; Koschuk, John v. The King, [1950]
Ex.C.R. 332; Re Vincent and Minister of Employment
and Immigration (1983), 148 D.L.R. (3d) 385 (F.C.A.);
Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145;
(1984), 55 N.R. 241.
AUTHORS CITED
Clark, J. Morris "Civil and Criminal Penalties and For-
feitures: A Framework for Constitutional Analysis"
(1976), 60 Minn. L. Rev. 379.
Finkelstein, Jacob "The Goring Ox: Some Historical
Perspectives on Deodands, Forfeitures, Wrongful
Death and the Western Notion of Sovereignty" (1973),
46 Temple L.Q. 169.
COUNSEL:
Christene H. Hirschfeld for plaintiff.
Michael F. Donovan for defendant.
SOLICITORS:
Cooper & McDonald, Halifax, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
JOYAL J.:
BACKGROUND
The facts in this matter are undisputed and
relatively straightforward. The plaintiff was
apprehended on September 4, 1987, when trans
porting illegally manufactured spirits contrary to
paragraph 163(1)(a) of the Excise Act, R.S.C.
1970, c. E-12 [as am. by S.C. 1976-77, c. 28, s.
49].
On the same date, his truck, a 1986 Toyota
truck with an estimated value of some $14,000,
was seized pursuant to subsection 163(3) of the
statute.
The plaintiff later pleaded guilty to the offence
and was fined $650 and costs. Meanwhile, he had
filed notice of his intention to oppose the seizure
pursuant to section 115 of the Act.
Ultimately, the Crown filed an information in
this Court to have the Toyota truck condemned
and forfeited. The plaintiff objected to this on the
grounds that subsection 163(3) of the Act was
contrary to sections 8, 11 and 12 of the Canadian
Charter of Rights and Freedoms [being Part I of
the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)].
In the face of this constitutional challenge, the
parties consented, on the basis of an agreed state
ment of facts, that there be a determination on a
point of law and, pursuant to an order of the
Associate Chief Justice of this Court dated
November 23, 1988, the matter came on to be
heard in Halifax on December 13, 1988.
THE ISSUES
Subsection 163(3) of the Excise Act reads as
follows:
163... .
(3) All spirits referred to in subsection (1) wherever they are
found, and all horses and vehicles, vessels and other appliances
that have been or are being used for the purpose of transporting
the spirits so manufactured, imported, removed, disposed of,
diverted, or in or upon which the spirits are found, shall be
forfeited to the Crown, and may be seized and detained by any
officer and be dealt with accordingly.
To the jaundiced eye of the casual truck owner
or of the Canadian traveller returning from a
motor trip abroad, this "forfeiture" provision in
the Excise Act or in the Customs Act [S.C. 1986,
c. 1] has a certain draconian aspect to it. Although
the practice of forfeiture has been in existence for
centuries, it smacks of a penalty or of a sanction
which in many cases appears to go far beyond the
requirements of punishment and retribution. There
is a seemingly disproportionate relationship be
tween the loss of revenue to the Crown and, as in
the case before me, the value of the forfeited
vehicle in which the illicit goods were being
transported.
This kind of disproportionality becomes a more
vexing problem when viewed in the context of the
rights and freedoms declared in the Charter and
its obvious purpose in guaranteeing some measure
of fairness or common sense in the exercise of
public authority when facing the illegal behaviour
of its citizens.
The question posed by the parties brings into
perspective a variety of complex issues not the
least of which is the clash between the ancient
practice of forfeiture and the more contemporary
elevation of individual rights and freedoms. In
these banner years of the Charter, is there still a
place for such a brutal measure as the forfeiture of
a vehicle when its owner is also subjected to fines,
to imprisonment and to the loss of the goods
seized? On the other hand, to what extent can the
venerable practice of forfeiture be stricken from
the statute books on the grounds of Charter
infringement and thereby deny the public author
ity its most effective enforcement tool?
The constitutionality of the forfeiture clause in
the Excise Act must therefore involve an examina
tion of the Charter, of its terms and meanings, and
to determine the various individual interests which
are meant to be protected. One must also examine
the historical and more current theory of the law
of forfeiture, determine its meaning, its nature and
more importantly, its impact on an individual so as
to decide whether it is inconsistent with the
Charter.
HISTORY OF FORFEITURE
Jacob Finkelstein, a Yale professor of Assyriolo-
gy and Babylonian Literature, wrote what appears
to my untrained eye to be an authoritative article
"The Goring Ox: Some Historical Perspectives on
Deodands, Forfeitures, Wrongful Death and the
Western Notion of Sovereignty" found at
(1973), 46 Temple L.Q. 169.
The author suggests that the idea of forfeiture
goes back to the biblical prescription in Exodus
21:28: "If an ox gore a man or a woman, and they
die, he shall be stoned and his flesh shall not be
eaten." Professor Finkelstein finds the true
application of the law of expiation in the surrender
of the offensive chattel and its ultimate destruc
tion.
The concept went through several subtle
changes over the following centuries. Under Alfred
the Great in the ninth century, it had developed
into the notion of "noxal surrender" by means of
which one kin would surrender the instrument of
accidental death to the aggrieved kin in order to
prevent any action by the latter against the former.
By the time it was incorporated into the laws of
England, the concept had become known as "deo-
dand", from the latin "deo dandum" meaning
"given to God", which proves at least an etymolog
ical relationship to the goring ox of biblical times.
The philosophical relationship, however, was less
clear. No longer was the surrender of the offend
ing chattel given to God or to next of kin, but
rather to the King. As the Crown increasingly
supplanted the Church as the ultimate authority in
the land, deodand adopted an increasingly secular
posture, becoming over the years an important
source or guarantee of revenue, yet at the same
time, maintaining some element of its original
expiatory function.
With respect to its complete ineffectiveness as a
remedy for accidental death, the institution of the
deodand was finally abolished in 1846 by the
adoption of Lord Campbell's Act [9 & 10 Vict., c.
62]. Nevertheless, the tool of forfeiture in the
hands of the Crown was continued, nourished as it
was by other principles of common law as, for
example, where the goods of convicted felons were
forfeited to the Crown.
It found further application in the so-called
"public welfare" cases, as in Regina v. Woodrow
(1846), 153 E.R. 907 (Exch.), where a quantity of
adulterated tobacco was forfeited to the Crown
even though its owner was morally innocent of the
matter. Chief Baron Pollock noted in that case [at
page 911] the stringent nature of the law but
found it necessary "for the purpose of working
some great public good". I infer from that judg-
ment that the protection of revenue as well as the
protection of public health were of equal value in
terms of public good.
Professor Finkelstein at page 204 of his article
sees in this a "clear solicitude for the protection of
the Crown revenue" and an acceptance even on the
part of those who had hailed the abolition of the
deodand of "the right of the sovereign to impose
and exact forfeitures and fines, with or without the
proof of mens rea against the defendant ...."
THE UNITED STATES' EXPERIENCE
The treatment given in the United States to the
law of forfeiture might be particularly relevant
because it comes in the face of strong constitution
al guarantees of due process and enjoyment of
property. Professor Finkelstein cites the case of
United States v. Balint, 258 U.S. 250 (1922), as
an American counterpart to the Woodrow decision
(supra) because it requires vigilance in the protec
tion of revenue equal to that in keeping diseased
food or poison out of the public's hands.
In U.S. v. One 1963 Cadillac Coupe de Ville,
Two-Door, 250 F. Supp. 183 (W.D. Mo. 1966),
the Court required that the proceeding to enforce
forfeiture accord with due process, but it did not
interfere with forfeiture on substantive due process
grounds.
The strict and absolute recognition of forfeiture
provisions was made manifest by the U.S.
Supreme Court decision in Calero-Toledo v.
Pearson Yacht Leasing Co., 416 U.S. 663 (1974).
In that case, the owners of a yacht which had been
seized when its lessees were found in possession of
an illicit drug challenged the constitutionality of
forfeiture which operated in complete disregard
for their claim of innocence.
Mr. Justice Brennan, in noting that from the
earliest days of the republic forfeiture of convey-
ances used to frustrate the customs laws had been
commonplace, said at page 683:
[T]he enactment of forfeiture statutes has not abated; contem
porary federal and state forfeiture statutes reach virtually any
type of property that might be used in the conduct of a criminal
enterprise.
Mr. Justice Brennan went on to note that in
English practice, forfeiture was not tied down to
felony convictions where the forfeiture naturally
relied on the conviction. At page 684, he quoted
from the judgment of Mr. Justice Story in The
Palmyra, 12 Wheat. 1 (1827) as follows:
But this doctrine never was applied to seizures and forfeitures,
created by statute, in rem, cognizable on the revenue side of the
Exchequer. The thing is here primarily considered as the
offender, or rather the offence is attached primarily to the
thing; and this, whether the offence be malum prohibitum or
malum in se... .
In an earlier case, Goldsmith, Jr.-Grant Co. v.
United States, 254 U.S. 505 (1921), and quoted
with approval in the Calero- Toledo case (supra),
the U.S. Supreme Court conceded that there
might be a certain amount of legal fiction in
ascribing complicity to a vehicle in an ad rem
proceeding, but the Court found that forfeiture
was too firmly fixed in the punitive and remedial
jurisprudence of the country to now be displaced.
THE CANADIAN EXPERIENCE
Before the advent of the Canadian Charter of
Rights and Freedoms, the legitimacy of forfeiture
provisions was never put in serious doubt. The
English practice of using forfeiture as an effective
method of protecting the sovereign's revenues
found ready application here.
It was in the case of The King v. Krakowec et
al., [1932] S.C.R. 134, that the Supreme Court of
Canada enforced the forfeiture of a truck, the
property of an innocent owner, when the vehicle
had been used to transport illicit liquor. The
Supreme Court held that the forfeiture applied
regardless of the guilt or innocence of the owner in
so far as the proceedings are in rem against the
offending article itself.
It is admitted that since the Krakowec case, the
statute has been amended to provide for remission
to an innocent owner but this has no bearing on
the issues before me.
It is also admitted that in other cases, the courts
have acknowledged a lack of discretionary author
ity to grant relief to either innocent owners or to
persons whose conviction for transporting illicit
liquor was ultimately quashed. The statute
demanded then and continues to demand today
that any conveyance used in the transportation of
illegal spirits be forfeited to the Crown. See May-
berry, Herbert Frederick v. The King, [1950]
Ex.C.R. 402; and Koschuk, John v. The King,
[1950] Ex.C.R. 332.
In consequence, the only question left remaining
is whether or not this forfeiture provision is ren
dered inoperative under the provisions of the
Canadian Charter of Rights and Freedoms.
POST-CHARTER FORFEITURE
The plaintiff alleges that the provisions of sub
section 163(3) of the Excise Act relating to forfeit
ure are contrary to a number of Charter rights and
freedoms.
Specifically, the plaintiff relies on section 8
which gives everyone the right to be secure against
unreasonable search and seizure. The plaintiff also
relies on paragraph 11(d) which gives the right to
any person charged with an offence to be pre
sumed innocent until proven guilty according to
law in a fair and public hearing by an independent
and impartial tribunal. There is also reliance on
paragraph 11(h) giving any person a right not to
be tried or punished again for an offence for which
he has been finally acquitted or for which he has
been found guilty and punished. Finally, the plain
tiff finds support in section 12 which gives every
one the right not to be subjected to cruel and
unusual treatment or punishment.
Paragraph 11(h) of the Charter
If one is to analyze the foregoing rights and
freedoms, it is first necessary to look at the words
used in the Charter to establish the substance as
well as the degree of protection or guarantee which
is covered by the enactment.
It is clear that section 11 only applies to a
person charged with an offence. It is a condition
sine qua non to the presumption of innocence, to
the protection against double jeopardy as well as
to the application or relevancy of the other rights
set out in that section.
In the case of the seizure or forfeiture of the
plaintiff's truck, however, the proceeding, at least
in accordance with traditional doctrine, is against
the truck itself, as a thing which is liable to
forfeiture to the Crown by reason of its use as a
carrier of illicit spirits. As we know from decided
cases, the ownership of the vehicle is not material
to the exercise of the right of forfeiture. The owner
might very well be innocent of any wrongdoing,
yet his vehicle is no less liable to forfeiture.
The quick thought which comes to mind in this
respect is that it would be paradoxical indeed to
have forfeiture upheld against an innocent owner
and at the same time, provide relief against forfeit
ure to the actual perpetrator on the grounds that
his rights under section 11 have been infringed or
denied.
Quick thoughts, however, do not settle all issues.
The thrust of able counsel's argument is that the
forfeiture, added to the conviction entered against
the plaintiff is the kind of double punishment
prohibited under paragraph 11(h) of the Charter.
The facts before me certainly give the appearance
of a double punishment. Not only is a fine imposed
on the plaintiff but also his valuable truck is seized
and forfeited.
Any reasonable man would endorse this proposi
tion. He would say that no eclectic rationalization
in construing an action in rem to punish the
wrong-doing vehicle, as if it were the contempo
rary equivalent of the goring ox, could possibly
change the reality. He would look at the value of
the truck and the amount of the fine imposed and
find little difference in the nature of these two
consequences resulting from the same offence. He
would conclude that the financial penalties suf
fered by the plaintiff are cumulative and any
argument to the contrary is pure fiction.
That it is pure fiction is the reasonable man's
perception. From the perception of the law, how
ever, an action in rem is very much a reality
completely divorced from considerations of owner-
sliip or interest and, in a sense, creates a personal
ity out of the res. That personality is such that the
blameworthy or unblemished behaviour of its
owner is of no concern to the law. It is to say that
the "lien de droit" between the thing and its owner
does not apply or is removed from legal scrutiny. It
is to say that nowhere in section 11 can either the
thing or its owner find some kind of shelter or
protection.
Yet, on the subject of double jeopardy, section
11 does speak of punishment. It says in paragraph
11(h) that any person found guilty and punished
for an offence has the right not to be tried or
punished for it again. If one again takes on the
mantle of the reasonable man, the forfeiture of a
valuable asset cannot be regarded as anything else
but a punishment, at least of the economic kind,
over and above the punishment meted out to the
plaintiff by way of a fine. In that event, the
problem becomes hydra-headed: the forfeiture can
be considered a double punishment for the same
offence, contrary to paragraph 11(h) of the Chart
er and, assuming that the loss of revenues to the
Crown from the illicit spirits is relatively modest,
it can also constitute the kind of cruel and unusual
treatment or punishment set out in section 12 of
the Charter.
Paragraph 11(h) and section 12 of the Charter
Again, the Court must seek guidance outside of
Canadian jurisprudence. J. Morris Clark in his
article "Civil and Criminal Penalties and Forfeit-
ures: A Framework for Constitutional Analysis"
(1976), 60 Minn. L. Rev. 379, suggests that in the
United States, forfeiture provisions may have a
double character serving both to regulate illegal
activities and to punish those who engage in such
activities. In some cases, forfeiture serves simply to
regulate and is not conceptually a punishment at
all. Such could be the case in the seizure of illicit
spirits or drugs or counterfeit money or unregis
tered sawed-off shotguns. There is no deprivation
of property as such goods are never legally owned.
The author goes on to say, at page 479:
Forfeiture of such items does not depend on their use to commit
an illegal act, so that the sanction of forfeiture does not apply
uniquely to lawbreakers. The state's interest in keeping danger
ous items out of the hands of the public is properly fulfilled by
forbidding their use by all persons whether or not those persons
have committed offenses, and whether or not the forbidden
items have been used to commit offenses.
Mr. Clark, at page 478, must nevertheless admit
to the great difficulty in keeping a clear distinction
between a regulatory forfeiture and a punitive
forfeiture. He refers to many cases in U.S. law
where forfeited property was not contraband, or
illicit, or peculiarly suited for criminal activities,
"yet where forfeitures have been held not to affect
personal interests or not to punish the owner".
The observations bring us right back to square
one. If the forfeiture of the plaintiff's truck which
has been used in the transportation of illicit spirits
is primarily designed to punish the offender, that is
one thing. If it is primarily designed to regulate
the flow of such illegal spirits, that is another.
It is not an easy judgment call to make. If I
were faced with a law similar to the one in dispute
before the United States Supreme Court in
Calero, I would have little difficulty in character
izing it as primarily regulatory in nature despite
the fact that one of its consequences might be to
impose a so-called economic penalty. However, the
statute here is not so clearly regulatory. If the
law's primary function was to regulate the trans
portation of illicit spirits, such a goal would best be
served by ensuring forfeiture in all cases irrespec-
tive of the guilt or innocence of the owner or
operator of the vehicle. While it is true (as noted
above) that forfeiture does not rely on a finding of
guilt, it is clear that the law permits a completely
innocent owner or lien-holder to be spared from
the consequences which might otherwise prevail.
Put another way, the law avoids the imposition of
forfeiture on the morally blameless. While this
fact alone does not deny the regulatory purpose
behind the law, it does deviate the difficulty in
determining that there is not an equally strong
punitive intent underlying the statute.
Having said that, however, I must nevertheless
find that the plaintiff is unable to invoke either
paragraph 11(h) or section 12 of the Charter in
aid of his cause. Even admitting that the impugned
provision has a punitive aspect (without determin
ing whether that aspect is of equal or lesser impor
tance than the law's regulatory aspect), I do not
find that the punishment involved constitutes
double jeopardy, nor do I find it to be cruel and
unusual. I might sum up my reasoning as follows:
There is a presumption in law whereby Acts of a
legislative body are presumed to be constitutional
until proven otherwise. I need only say that on the
plaintiff rests the burden of demonstrating that the
forfeiture provisions of the Excise Act are
unconstitutional.
The doctrine of forfeiture in the laws of Canada
has remained unchallenged for many generations.
It has become enshrined in our consciousness as a
measure of both compliance and regulation, ref
lecting age-old principles of the action in rem with
the resulting forfeiture or destruction of the res
used in an illegal activity.
In Re Regina and Green (1983), 5 C.C.C. (3d)
95; 41 O.R. (2d) 557, and as analyzed in the
Canadian Charter of Rights and Freedoms
Annotated, page 16.7-4, the High Court of
Ontario ruled that the forfeiture of a conveyance
used in the commission of an offence contrary to
the Narcotic Control Act [R.S.C. 1970, c. N-1], as
authorized by subsection 10(9) of that Act, does
not contravene paragraph 11(h) of the Charter.
The Court found that the fact that forfeiture is not
automatic and can be sought after a term of
incarceration has already been imposed does not
mean that the accused is being punished again for
the same offence. Moreover, an accused is not
finally punished until all possible penal conse
quences for the offence are exhausted. The law of
Canada permits a variety of sanctions to be
imposed in conjunction with other forms of punish
ment. On the strength of that case, one may
conclude that if forfeiture of the plaintiffs truck
constitutes a punishment, it is not a double punish
ment for the same offence as is prohibited by
paragraph 11 (h).
Furthermore, if it should be attractive to catego
rize forfeiture as a punishment, I should not be
able to conclude that such punishment is cruel and
unusual within the terms of section 12. There is an
accumulation of case law on this issue which clear
ly indicates the narrow interpretation which must
be given to that provision.
In In re Gittens, [1983] 1 F.C. 152; (1982), 137
D.L.R. (3d) 687, the Trial Division of the Federal
Court of Canada held that the execution of a
deportation order did not constitute cruel and
unjust treatment or punishment. The same princi
ple was followed by the Federal Court of Appeal in
Re Vincent and Minister of Employment and
Immigration (1983), 148 D.L.R. (3d) 385.
In R. v. Simon (No. 3) (1982), 5 W.W.R. 728
(N.W.T.S.C.), it was held that an indeterminate
period of incarceration for a dangerous offender
did not contravene the same provision found in the
Canadian Bill of Rights [R.S.C. 1970, Appendix
III]. Mandatory minimum sentence of life impris
onment without parole over a prescribed period
was found in R. v. Mitchell (1987), 39 C.C.C.
(3d) 141 (N.S.C.A.), not to violate the guarantee
against cruel and unusual punishment.
The thrust of challenges to the constitutionality
of statutory provisions regarded as imposing cruel
and unjust punishment has been substantially
directed to the physical and emotional constraints
of the person. The test, as stated by the Supreme
Court of Canada in R. v. Smith (Edward Dewey),
[1987] 1 S.C.R. 1045, is that to bring into play
section 12 of the Charter, the punishment must not
be merely excessive but also grossly disproportion
ate. In that case, however, the Supreme Court was
dealing with the minimum sentence of seven years
under the Narcotic Control Act. It found this
provision contrary to section 12 by reason of its
immutability in dealing with the various consider
ations to which a court should apply its mind in
determining a just and proper sentence.
In the case at bar, the forfeiture of the truck
causes financial loss to the plaintiff but it cannot
be said that such loss is so cruel and unusual as to
give it the protection of the Charter. Forfeiture,
under either the Customs Act or the Excise Act, is
certainly not unusual and, in terms of our long and
historical experience with it, cannot be said, to
quote the words of Lamer J. in the Smith case [at
page 1072] (supra) to be "so excessive as to
outrage standards of decency". To adopt a con
trary position would be to conclude that Canadian
standards of decency were radically altered on the
coming into force of the Charter.
I must therefore conclude that even if subsection
163(3) of the Excise Act contains a punitive
aspect, its harsh quality does not make it cruel and
unusual.
Section 8 of the Charter
The plaintiff raises another Charter issue under
section 8 which guarantees everyone the right to
be secure against unreasonable search and seizure.
In the present dispute, there is no allegation that
the search which preceded the seizure was invalid,
rather only that it is unreasonable to seize as
forfeit such a valuable piece of property as a
consequence of this type of violation of the Excise
Act. By raising such an argument, the plaintiff
seeks to locate a substantive property right as
implicit in our Constitution.
Heavy emphasis is placed upon the Federal
Court of Appeal ruling in F.K. Clayton Group
Ltd. v. M.N.R., [1988] 2 F.C. 467; (1988), 82
N.R. 313, a case dealing with a search for and
subsequent seizure of documents presumed to be
evidence of an offence under the Income Tax Act.
Mr. Justice Hugessen noted (in conformity with
the Supreme Court of Canada decision in Hunter
et al. v. Southam Inc., [1984] 2 S.C.R. 145;
(1984), 55 N.R. 241) that the search, being war-
rantless, was prima facie unreasonable and was
further invalidated by the vague directions which
the statute gave as to when a search was justified.
The Court ordered the documents returned, not
however because their retention and use violated
any substantive property right, but only because
the procedure involved in attaining them was
unreasonable, i.e. it was an invasion of privacy not
cognizable in the face of the Charter. The return
of the property is a necessary concomitant to the
protection of privacy.
This property/privacy dichotomy is more evident
upon a reading of the earlier Federal Court of
Appeal decision in Bertram S. Miller Ltd. v. R.,
[1986] 3 F.C. 291; 28 C.C.C. (3d) 263. In that
case, the owner of a plant nursery consented to an
inspection of his imported trees, whereupon they
were found to be infested and ordered to be
destroyed. The owner alleged a violation of section
8. The Federal Court of Appeal overturned the
Trial Judge's award of damages. Mr. Justice
Hugessen noted [at pages 341 F.C.; 302 C.C.C.]
that because the search was consensual, and the
destruction of the trees grounded upon reasonable
belief of necessity, the issue could be characterized
as one of "infringement of property rights wholly
divorced from any question of privacy" for which
rights he found no protection in section 8 of the
Charter.
These cases lead one to the conclusion that
section 8 is designed primarily to protect the priva
cy interests of individuals and affords protection to
property only where that is required to uphold the
protection of privacy. (In that sense, it might be
said to be a "dependent" property right.) In the
case before me, there is no allegation that any
privacy interest of the plaintiff has been violated.
The search which resulted in the discovery of the
illicit spirits is presumed to be valid. Therefore, the
subsequent seizure as forfeit (based on actual dis
covery of the spirits, not simply on a reasonable
belief of their presence) cannot be gainsaid on the
basis of the minimal "dependent" property rights
which section 8 may be said to afford.
Paragraph 11(d) of the Charter
The plaintiff also relies on paragraph 11(d) of
the Charter which gives any person the right "to
be presumed innocent until proven guilty accord
ing to law in a fair and public hearing by an
independent and impartial tribunal". If I should
properly interpret counsel's argument in this
respect, I am asked to conclude that the forfeiture
provisions of the statute apply before the owner of
the vehicle, or the person in possession of it, has
been tried with the offence and convicted of it. I
am asked to conclude that forfeiture is, in fact and
in law, a presumption of guilt against the accused.
That approach is not without originality, never
theless, I should dispose of it very quickly. The
forfeiture of the plaintiff's vehicle is statutorily
based not on the ultimate conviction of the plain
tiff but on the simple fact that it was used in the
carriage of illicit spirits. If it should have turned
out in subsequent proceedings that the spirits were
not illicit, then of course the forfeiture provisions
would not apply and there would be no issue
before the Court. The fact is, however, that the
spirits found in the vehicle were illicit and, accord
ing to the statute, that is the end of the matter.
CONCLUSION
As I have expressed earlier, the Charter issues
raised by the plaintiff are neither trivial nor vexa
tious. The forfeiture of the plaintiff's vehicle does
indeed take on the colour or countenance of a
malevolent and stern legislative measure to ensure
compliance with the revenue laws. It smacks of a
historical period where the King's revenue rested
on few sources and beware the man, including his
property, who should attempt to evade lawful
payment.
Nevertheless, I have failed to find any grounds
upon which the plaintiff may prove a violation of
his rights as guaranteed by the Charter. The
preoccupation with the security of revenue arising
from customs duties or excise taxes, hallowed by
ancient doctrine and historical legitimacy, is, in
my view, deserving of continued if grudging
respect. It is the kind of respect which a court owes
to Parliament which has found through the years
that, draconian as forfeiture might appear to be
from time to time, it has been good and necessary
policy to retain it.
However, there may be those who feel that this
sort of respect runs contrary to the purposive
manner in which the Charter is to be interpreted. I
do not wish to be taken as saying that judicial
restraint should always preclude a court from
rushing in where angels might otherwise fear to
tread. Rather, judicial interference with legislative
policy is always undertaken at the risk of upsetting
the delicate balance which must be maintained
between individual and private rights guaranteed
by the Charter and the obligations on Parliament
to secure and protect the public interest. The
necessity of the balancing may be made evident by
a brief reconsideration of the alleged violation of
section 12.
To begin with, it must be understood that I am
not unaware of the fact that some may feel such
balancing properly belongs within the context of
section 1 of the Charter where Parliament's obli
gation to protect the public interest would have to
be proven according to a strict formula which
balances that obligation against the equally impor
tant obligation not to deny individual rights.
However, it seems inescapable to me that a right
which is, like section 12, couched in terms which
include qualifying adjectives, must be subject to
some limits within itself and that respect for legiti
mate state interests is one such limit that may be
considered in determining the scope of the protect
ed interest. In other words, in interpreting terms
such as "cruel and unusual" it is neither desirable
nor necessary to establish a once-and-for-all set of
indicia by which a determination of "cruelty"
must be made. What is "cruel and unusual" may
vary in different circumstances and this need not
always be proven strictly by the Crown in the
context of section 1, but may be considered by the
judge in attempting to define the guaranteed right.
I take support for this view from the judgment
of Chief Justice Dickson in R. v. Simmons, [1988]
2 S.C.R. 495, a case involving a challenge to a
strip search at airport customs on the ground that
it violated the guarantee in section 8 that everyone
be free from unreasonable search and seizure. In
reasons concurred in by three other members of
the seven-member panel, the Chief Justice refused
to apply the criteria established in Hunter et al. v.
Southam Inc., [1984] 2 S.C.R. 145 for determin
ing the "reasonableness" of a search. Instead, he
said [at page 537] that "a determination of rea
sonableness must depend to some degree on the
circumstances in which a search is performed",
although he stressed that "it would be incorrect to
place overwhelming emphasis" on such circum
stances. In any event, it was in the context of
section 8 and not section 1 that he abridged the
requirements of Hunter because Simmons was a
customs case and special consideration had to be
accorded the state's interest in protecting its bor
ders and frustrating the flow of illegal narcotics.
If this be the case, there is nothing improper
about balancing state interests with individual con
cerns within rights-defining clauses themselves and
in that context, I reiterate my reluctance to disturb
the balance which Parliament has struck, notwith
standing that the measures appear harsh and
excessive.
However, even if I were mistaken in reading
such a limit into section 12, I feel certain that a
similar limit to that protected right would prevail,
with even greater force, in a section 1 analysis.
Under that rubric the legitimacy of forfeiture
could easily be justified as a reasonable measure
designed to frustrate further criminal enterprise,
protect the public welfare and secure the Crown
revenue. While a less harsh penalty could easily be
imagined, and the degree of penalty in this respect
might cover a very wide spectrum, Parliament may
justifiably be given some latitude in determining
the appropriate remedy to ensure compliance in
matters relating to revenue (including customs,
excise and income tax) where voluntary disclosure
is the rule and inspection and enforcement by the
state the exception.
I must therefore dismiss the plaintiffs action. In
the circumstances of the case, however, I should
make no order as to costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.