



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tran, 2016 ONCA 534

DATE: 20160706

DOCKET: C58987

Pepall, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Uyen Tu Tran

Appellant

M. Mark Fahmy, for the appellant

Stephen Dawson, for the respondent

Heard: June 15, 2016

On appeal from the order of Justice Casimir N. Herold of the
    Superior Court of Justice, dated May 29, 2014.

ENDORSEMENT

[1]

The appellant appeals the dismissal of her application for
    post-forfeiture relief under s. 20 of the
Controlled Drugs and Substances
    Act,
S.C. 1996, c. 19,

(
CDSA
), for a property she
    jointly owned with her husband in Puslinch, Ontario.

[2]

For the following reasons, the appeal is dismissed.

Background

[3]

After the execution of general warrants at the Tran family home and an
    unoccupied Puslinch property that uncovered about 550 marijuana plants, the
    appellant and her husband were both charged with two counts of production of
    marijuana and possession of marijuana for the purpose of trafficking.

[4]

The Crown and the Trans engaged in resolution discussions. Mr. Tran and
    the appellant had separate counsel, and a standing agent for the Public
    Prosecution Service represented the Crown. It was agreed that Mr. Tran would
    plead guilty and that the Crown would withdraw the charges against the
    appellant in exchange for her agreement to not make submissions at the Crowns
    forfeiture proceeding. At the time, the appellants counsel, who is not the same
    counsel as on appeal, understood that there was a real possibility that she
    would be convicted based on the surveillance evidence and the contents of the
    properties and that she likely would have been facing a custodial sentence had
    she been convicted at trial.

[5]

The resolution went ahead. Mr. Tran pleaded guilty. He was sentenced to
    nine months imprisonment. The Crown brought its forfeiture application. That
    application resulted in 50 percent of the Tran family home, and the entire
    Puslinch property  which was found to have been purchased and used exclusively
    as a marijuana growing operation  being forfeited to the Crown. Of note, when
    considering the gravity of Mr. Trans offences, the forfeiture judge stated
    that Mr. Tran was solely involved in these operations. The appellant made no
    submissions at the Crowns forfeiture proceeding. Afterwards, the Crown
    withdrew all charges against her.

[6]

After the charges against her were withdrawn, the appellant brought an
    application for post-forfeiture relief under s. 20 of the
CDSA
8.5
    months after the forfeiture order. She sought a declaration that her interest
    in the Puslinch property was not affected by the forfeiture order. She did not
    challenge the forfeiture order relating to the Guelph residence. To further her
    submission that the resolution deal constituted a miscarriage of justice, evidence
    from the lawyer who represented her at the resolution discussions was adduced
    on consent. Her application was dismissed.

[7]

She now appeals. She argues that she met her burden for post-forfeiture
    relief. She also renews her submission that the resolution deal caused a
    miscarriage of justice. For the first time, she argues that her s.7 and s.12
    rights under the
Charter
were contravened.

Discussion

[8]

In our view, there is no merit to this appeal.

[9]

First, the application judge was precluded from granting post-forfeiture
    relief based on his finding that the appellant was fully complicit in the
    designated substance offence underlying the forfeiture order. Section 20(4)(a)
    of the
CDSA
provides that a judge may only grant post-forfeiture
    relief if she or he is satisfied that the applicant appears innocent of any
    complicity in any designated substance offence that resulted in the forfeiture
    of the property or of any collusion in relation to such an offence.

[10]

The
    application judges finding of complicity was well-supported by the record
    before him. The appellant was the joint owner of both properties, she and her
    husband were found on one of the properties at the time of the investigation,
    and something other than employment income enabled them to purchase the
    Puslinch property. She chose not to swear an affidavit or to give evidence at
    the hearing although expressly given the opportunity to do so. In addition, on
    consent, her former counsel gave evidence that the appellant was aware of the
    marijuana grow operations at both properties and hoped that the money generated
    would assist both her and her husband.

[11]

The
    application judge was entitled to make that a finding of complicity despite the
    forfeiture judges statement that Mr. Tran was solely involved in these
    operations. Read in context, this comment was referable to the limitations of
    Mr. Trans conduct, not the exclusion of the appellants.

[12]

Second,
    the appellant suffered no prejudice from the resolution deal  she was not
    entitled to relief at the Crowns forfeiture proceeding anyway since she was a
    person charged with that designated substance offence and was complicit. Rather
    than the deal with the devil that the appellant claims it to have been, it
    would seem that the resolution was one-sided in the appellants favour. She
    appears to have obtained a withdrawal of the charges against her, eliminating a
    very real risk of incarceration, in exchange for no consideration on her part. There
    was no miscarriage of justice or cruel and unusual treatment or punishment.

[13]

Lastly,
    s.7 and 12 of the
Charter
were not raised before either the forfeiture
    judge or the application judge. The record does not support any such
    disposition.

Disposition

[14]

Accordingly,
    the appeal is dismissed.

S.E.
    Pepall J.A.


M. Tulloch J.A.

G.
    Pardu J.A.


