



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. 2095540 Inc., 2019 ONCA 296

DATE: 20190412

DOCKET: C64922

Benotto, Brown and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

2095540 Inc. and Dan Carley

Appellant

Philip B. Norton, duty counsel

James D.M. Clark, for the Crown

Heard: April 9, 2019

On appeal from the sentence imposed on August 3, 2016 by
    Justice Joseph R. Henderson of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The application judge said at para. 94 that he declined to
    consider the issue of proportionality. The Crown submits that  nonetheless 
    the factual findings make it clear that forfeiture was the only available
    result.

[2]

We do not agree.

[3]

The application judge was required to consider proportionality in
    accordance with s. 19.1(3). In the event that the judge erred, the Crown urged
    this court to conduct our own proportionality analysis. The factors to be
    considered, as required by
R. v. Craig
, 2009 SCJ 23 are several and we
    are not in a position to do so.

[4]

The appeal is allowed and a new hearing on forfeiture is ordered.


