IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
R. v. Serban, |
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2017 BCSC 1443 |
Date: 20170816
Docket: X077687
Registry: New Westminster
Regina
v.
Romeo Serban
Before: The Honourable Mr. Justice Verhoeven
Reasons for Sentence
and
Forfeiture Application of the Crown
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Counsel for the Crown: |
H. Doherty |
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Counsel for R. Serban: |
D.G. Milburn |
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Counsel for C. Serban: |
N.J. Preovolos |
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Place and Date of Sentencing Hearing: |
New Westminster, B.C. June 30, 2017 |
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Place and Date of Judgment: |
New Westminster, B.C. August 16, 2017 |
[1] These reasons address the sentencing of Romeo Serban for the offences of production of marihuana and possession of marihuana for the purpose of trafficking, contrary to ss. 7(1) and 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 [CDSA].
[2] These reasons also separately address the Crown’s application for forfeiture of the Maple Ridge residence in which the marihuana grow operation was located (the “residence”). At the time of the offences, the residence was inhabited by Mr. Serban, his spouse, their two children, and his elderly father. Mr. Serban owns the residence in joint tenancy with his spouse, Ms. C. Serban, whom I acquitted of the same offences. The Serbans and their family moved to Kelowna in August 2016 and no longer reside in the residence.
[3] In R. v. Craig, 2009 SCC 23, the Supreme Court of Canada decided that applications for the forfeiture of offence-related property under ss. 16-22 of the CDSA require an inquiry that is separate from the general sentencing decision. The inquiry is based upon a discrete proportionality test set out, in the case of real property, in s. 19.1(3) of the CDSA. The factors set out in s. 19.1(3) constitute a complete code for deciding whether, and to what extent, a forfeiture order should be made in respect of real property: Craig at para. 48. Forfeiture orders are not subject to the general principles of sentencing, and in particular the circumstances of the offender, other than his or her criminal record, are not relevant in the forfeiture inquiry: Craig at paras. 45-48; 56-60. Accordingly, I will address the Crown’s forfeiture application after I have dealt with the sentencing issues.
[4] The offences date from October 15, 2012, which was approximately one month before the Criminal Code was amended to remove the availability of a Conditional Sentences Order (“CSO”) for the offences of which Mr. Serban was convicted. Therefore the relevant sentencing case authorities deal with offences that pre-date the Criminal Code amendments made in 2012.
[5] The Crown seeks an 18 month jail sentence, together with ancillary orders. The Crown also seeks forfeiture of the entire residence, including the interest of Ms. Serban, whom the Crown alleges was complicit in the offences or colluded in relation to them.
[6] Mr. Serban seeks a CSO of two years less a day. He took no position with respect to the ancillary orders sought by the Crown, but seeks partial relief from forfeiture under s. 19.1(3) of the CDSA, to the extent of 50 percent of his interest in the residence.
[7] Ms. Serban seeks the “return” of her interest in the residence pursuant to s. 19(3) of the CDSA, which requires the court to find that she appears innocent of any complicity or collusion in relation to the offences.
[8] On January 4, 2017 I delivered reasons for judgment in which I convicted Mr. Serban and acquitted Ms. Serban of both offences. The reasons for judgment are indexed at 2017 BCSC 16 (the “trial reasons”). It is unnecessary for me to repeat at length here what I have already stated there.
[9] For convenience, I adopt, with a modification which I will shortly explain, paras. 5-15 of the trial reasons.
[10] In brief, on October 15, 2012 the police discovered a large marihuana grow operation at the residence, occupying the entire basement floor. The residence was located in a semi-rural part of Maple Ridge. The Serbans occupied the upper floor, together with their two children and Mr. Serban’s elderly father. The Serbans contested the legality of the search of their residence. I delivered reasons for judgment on June 15, 2015, indexed at 2015 BCSC 1427, denying the Serbans’ challenge to the search. I also denied their subsequent Charter application for a judicial stay of proceedings due to unreasonable delay under s. 11(b) of the Charter, in reasons for judgment delivered on January 4, 2017, and indexed at 2017 BCSC 17.
[11] At trial, Mr. Serban essentially did not contest his liability. The central issues at trial were whether Ms. Serban was liable as a party to the production offence, in having allegedly aided or abetted her husband’s marihuana cultivation, and whether she was in possession of the marihuana. Ms. Serban testified in her own defence. I accepted that her denial of any direct or indirect involvement in the production of the marihuana was plausible at para. 38, as was her testimony that she had no access or control over the marihuana: see para. 61. I also found at para. 62 that her testimony raised a reasonable doubt about whether she had consented to Mr. Serban’s possession of the marihuana. Finally, at para. 63 I stated that even if the Crown had been able to prove possession of marihuana simpliciter, such that it was necessary to make a finding on the question of whether Ms. Serban had possession of the marihuana for the purpose of trafficking, I would have found that the Crown had failed to establish that she did, given the paucity of evidence about her knowledge of the amount of marihuana that was present. I concluded that in relation to Ms. Serban the Crown had not established either offence beyond a reasonable doubt and so Ms. Serban was acquitted of both charges.
[12] As noted in the trial reasons, the grow operation was confined entirely to the basement level of the residence, such that no part of the upper floor was used in the production of marihuana. The upper floor was used only for residential purposes.
[13] In the trial reasons, I described the grow operation as “large” and of “medium to high sophistication.” It was a three-stage grow operation, with plants in the clone/seedling stage, plants in the vegetative stage, and plants in the flowering or budding stage. The 9,738 plants were distributed over 7 rooms and a hallway. Most of the plants (8,639) were clone plants, or in effect seedlings. The trial reasons were inaccurate in stating (at para. 5) that there were 780 vegetative plants and 8,958 clone plants. More precisely, and based upon the Admissions of Fact at trial, there were 780 mature, flowering plants in two rooms, one containing three foot tall plants and one containing four-and-a-half foot tall plants. There were also 319 one-and-a-half foot plants growing in another room. These were not yet mature, flowering plants, but they are (accurately) described in the Admissions of Fact as “plants”, not “clones”. Of the total of 8,639 “clones” or seedlings as so described in the Admissions of Fact, 414 were in individual pots, and 8,225 were in plastic trays. Thus, there were 1,513 marihuana plants in individual pots, of which 414 are described as “clones”. These 414 “clones” were simply very small and immature plants.
[14] The Crown contends that the sale of the clones would have produced an income stream of at least $288,000 per year, and the sale of marihuana from the operation would have produced $2,340,000 per year at wholesale prices, assuming four crops per year and a yield of 2 ounces per plant. The defence argues that the potential value of the marihuana could have been as low as $109,000 per year, not including the sale of clones. However, the defence calculations are unrealistic. They assume that there were only 780 plants being grown to maturity. The more accurate number is 1,513, which is the number of plants in individual pots. The defence calculations also assume that these 780 plants would produce only one ounce of product each, whereas the evidence is that the yield would likely be three-and-a-half ounces, or at least two ounces, very conservatively. The defence calculations assume only one or one-and-a-half crops in a year, whereas the evidence is that up to four crops per year were achievable.
[15] I conclude that the Crown’s submissions as to the value of the crop are far more realistic than those of the defence. Absolute precision is not required. I accept that the operation was large and, at least potentially, very lucrative.
[16] The defence argues that the nature of the operation could be described as “on the amateurish side”, relying on a statement made by one of the Crown’s experts, RCMP Constable Sharma, in cross-examination. The “amateurish” reference in the cross-examination of Constable Sharma was to the fact that the budding plants each had only one bud or flower, whereas expert growers would typically achieve multiple flowers on each plant. However this was only one small aspect of the evidence. Constable Sharma agreed with and adopted the expert opinion of RCMP Constable Hawes, who stated that the operation was “of medium to high sophistication” and that the operator “had a thorough knowledge of cultivating marihuana”. Constable Sharma did not resile from these opinions at trial. Indeed, they are amply supported by the evidence. As Constable Sharma noted, the plants were healthy and robust. They were cultivated in a controlled, managed environment (that is, indoors, using artificial lighting, timers, and temperature control) using carefully managed cultivation techniques. The plants were being grown in a soil based medium and required nearly daily watering by hand, and thus required frequent attention. The operation also involved the use of fans, timers, and artificial nutrients. As I stated in the trial reasons, the police found other items consistent with a marihuana grow operation, such as a money counting machine, a scale, ventilation ducting, a gasoline operated electricity generator, and fuel tanks. I have already reiterated my findings from the trial reasons that the operation was large and of “medium to high sophistication”. Mr. Serban rightly concedes that the grow operation was on a commercial scale. This cannot be questioned. I therefore do not agree that the operation could accurately be described as “amateurish”.
[17] The defence also argues that there is no actual evidence of profit from the enterprise. Through his counsel’s submissions, Mr. Serban denied that there were prior marihuana crops in the residence. The Crown disputes this, and says that there is evidence from which I can infer that there were actual sales of marihuana.
[18] Section 726.1 of the Code provides that in determining the sentence, a court shall consider any relevant information placed before it, including any representations or submissions made by or on behalf of the prosecutor or the offender. Section 723(5) provides that hearsay evidence is admissible at sentencing proceedings, but the court may require testimony of a witness if the court considers it to be in the interests of justice to do so. Thus, on sentencing the court may rely on the submissions of counsel.
[19] However where the offender wishes to rely upon a disputed fact relevant to determination of the sentence, he must establish that fact on a balance of probabilities. If disputed, the Crown must establish any aggravating fact beyond a reasonable doubt: s. 724(3).
[20] See also R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Ladue, 2011 BCCA 101, at para. 31.
[21] In this case, the Crown has not established that profits were previously made, as an aggravating circumstance. The Crown has established beyond a reasonable doubt the facts relating to the size and scope of the grow operation, its potential for large profits, and its medium to high level of sophistication. Mr. Serban has not established that there were no prior crops or profits from the grow operation, as a mitigating circumstance.
[22] There is no doubt that Mr. Serban was the principal of the operation. There is no evidence of any links to organized crime, although of course in large commercial marihuana grow operation of this nature, the enterprise requires the involvement of other persons carrying on criminal activities in order to distribute and sell the product. The opinion of Constable Hawes refers to the need for a broker to distribute the product, who would typically be paid in cash. A money counting machine was found by the police. According to Constable Hawes, cash in used in grow operations in order to prevent creation of a paper trail as to earnings and purchases.
[23] The evidence of Ms. Serban at trial was that the grow operation was in place for only about five months prior to its discovery on October 15, 2012. On this evidence, it is possible that no crop had yet been grown to maturity and sold. However, clones could have been sold within that time frame. The Crown argues that the presence of a small amount of dried marihuana (5 grams) and the presence of many empty nutrient containers suggests that there was a prior crop or crops. The evidence does not allow for any firm conclusion one way or another. However, even if there were no actual prior sales of marihuana, as I have stated, the grow operation was a large, three-stage, medium to high sophistication operation. Clearly Mr. Serban’s intention was to produce multiple crops of both clones and marihuana, and to illegally make a continuous stream of large amounts of money. In the circumstances it is unnecessary for me to request that evidence be adduced under s. 724(3)(a) of the Criminal Code as to the existence or non-existence of prior crops or profits as an aggravating or mitigating factor, given the facts that I am able to find.
[24] Mr. Serban was born in Romania in 1969. He married Ms. Serban in Romania in 1994. He immigrated to Canada as a political refugee in 1999. Ms. Serban remained in Romania until late 2002. Their two children were born in Canada in 2004 and 2008.
[25] I was advised that Mr. Serban worked in a variety of occupations since arriving in Canada, including as a restaurant worker, baker, pizza delivery driver, courier, and automotive upholsterer, and that he often held two jobs simultaneously. From 2002 to 2006 he worked as a car salesman. In 2006 he started a residential renovation business, as a sole proprietor, usually doing the renovation work himself. Ms. Serban worked as his part time bookkeeper.
[26] In 2009 he was injured in a car accident, for which he was not at fault. His left arm was broken. He sustained a right shoulder injury, which required surgery in 2011, and a concussion. He believes he attempted to return to work prematurely after the accident. He continues to suffer from shoulder problems and other pain and disability. He indicated he was “basically” off work from 2009 to 2011. During this time he took painkillers, including OxyContin and Demerol, and started to become addicted. For pain relief, he substituted marihuana for the prescription drugs, and began growing his own marihuana plants. What started as a small grow operation for personal use gradually grew larger. He continues to suffer from health problems, including glaucoma, diabetes, sleep apnea, high blood pressure, and shoulder dysfunction in both shoulders. His doctor has recommended further surgery for his shoulder problems but he has so far declined, as he has been unable to afford to take time away from his work.
[27] Although Mr. Serban did not testify about this, and there is no medical report in evidence, the Crown did not contest the facts submitted about the car accident, injuries, and consequences. Thus I accept those facts as stated. However there is no rational link between the personal use of marihuana for pain relief and the development of a large and sophisticated grow operation, which was obviously designed to produce great profits. Therefore, I do not accept that Mr. Serban’s injuries and his medical need for pain relief legitimizes or materially mitigates the gravity of his offences. His use of marihuana for medicinal purposes was minor and incidental when set against the scale of the operation he ran.
[28] Mr. Serban continues to work as a renovator. He is transitioning his business from the Lower Mainland to Kelowna. Ms. Serban continues to assist him in the business on a part time basis with bookkeeping and also some renovation work. She has no other employment. Thus Mr. Serban is the breadwinner for the family. In addition to supporting his wife and children, he supports his father who resides with them. His father is 86 years of age and legally blind. He needs help with the activities of daily living and with obtaining medical care and treatment. Mr. Serban is doing well in the renovation business, earning on average about $5,000 to $6,000 per month, before taxes.
[29] The Serbans’ daughter will be in Grade 8 and their son will be in Grade 3 in September 2017. The family moved to Kelowna for a “fresh start” for the children after the Ministry of Children and Family Development interviewed them and rumours circulated about drug trafficking. The children were apparently being harassed.
[30] Mr. Serban has no criminal record. There is no evidence of any breach of bail, or any illegal conduct since his arrest on these charges. It appears that since October 15, 2012, Mr. Serban has been a law abiding citizen, who is supporting himself and his family through legitimate means.
[31] In his statement in court at the sentencing hearing, Mr. Serban expressed remorse for his conduct and for the stress he has caused to his family. He states that he accepts whatever judgment the court imposes.
[32] The grow operation used special lighting (fluorescent lights for the clones being grown in plastic trays, and high intensity lighting for the plants in pots, which were controlled by electric timers), requiring a large amount of electrical power. There was no theft of electricity and no electrical by-pass; the grow operation used a gasoline powered electrical generator. There was a pickup truck on the property fitted with a large external gasoline tank, with a pump and a nozzle for filling the portable gasoline cans found in the bed of the truck, suitable for filling the generator’s fuel tank. There are of course hazards associated with transport and storage of gasoline. It can be safely inferred that the necessary electrical work and other grow operation work was not professionally done (despite Mr. Serban’s experience as a renovator), nor inspected.
[33] Constable Hawes refers to the serious threats to public safety caused by electrical hazards associated with grow operations, arising from faulty electrical wiring and grounding. Constable Hawes also referred to the toxic effects of mould caused by the high humidity associated with indoor grow operations. Constable Hawes also discusses the use of chemicals that can cause environmental damage when disposed of into community drainage systems, and refers to the danger of home invasions (“grow-rips”) associated with grow operations. None of these opinions were challenged and I accept them. Mr. Serban exposed his family and the community to all of these risks.
[34] The Court of Appeal has repeatedly stressed that offences involving the commercial production and distribution of marihuana are serious matters, having serious social consequences including the dangers referenced above: see for example R. v. Bui, 2010 BCCA 279 at para. 54; R. v. Su, 2000 BCCA 480 at para. 10; and R. v. Van Santvoord, 2007 BCCA 23 at para. 42.
[35] In my view the seriousness of the crimes is not diminished by recent and pending legislative changes regarding legalization of marihuana use. Mr. Serban made a deliberate, calculated, and sustained decision to operate outside the laws of this country, for his own personal profit, without regard to the harm caused.
[36] The purposes and principles of sentencing in the Criminal Code are applicable in this case are as follows:
Purpose and Principles of Sentencing
Purpose
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Other sentencing principles
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
…
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,
…
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
[37] Section 742.1 of the Criminal Code provides for the imposition of a CSO in certain cases. In the wording of the section, a CSO is a sentence served in the community, subject to conditions for supervising the offender’s behaviour in the community. Given the timing of the offence and the Crown’s suggested range of sentence and its submissions as to sentence, a CSO is available as a sentencing option in this case. The court must be satisfied that service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718-718.2 of the Criminal Code. There is no issue or concern that the imposition of a CSO would endanger the safety of the community in this case. Therefore, as the authorities clearly demonstrate, a CSO must be given serious consideration.
[38] As I mentioned, the Crown seeks a sentence of 18 months in custody, as well as ancillary orders and forfeiture of certain seized property. Mr. Serban seeks a conditional sentence order of two years less a day, and took no position with respect to the ancillary orders sought by the Crown.
[39] Reference to the relevant case authorities is required.
[40] The Crown submits that the range of sentence for these types of offences in similar circumstances to the case at bar is between nine months and two years. The Crown argues that a CSO is inappropriate, in that it would be inconsistent with the fundamental purpose and principles of sentencing in the Criminal Code, and would therefore fail to meet this pre-requisite for the imposition of a CSO under s. 742.1.
[41] The Crown relied upon R. v. Koenders, 2007 BCCA 378; R. v. Vo, 2009 BCCA 471 ; R. v. Budd, 2010 BCCA 214; R. v. Kwiatkowski, 2010 BCCA 238; and R. v. Laird, 2013 BCSC 59.
[42] In Koenders, the Court of Appeal sought to organize and explain various appellate decisions involving sentencing for marihuana grow operation offences.
[43] The Court affirmed the sentencing judge’s decision to impose concurrent custodial sentences of two years less a day for production and possession of marihuana for the purpose of trafficking, with probation to follow for a period of two years, and a ten year firearms prohibition. The offender was 40 years of age and had a long criminal record with five prior convictions for possession of marihuana. Although he said that he supplied the marihuana to a local compassion club and used it himself for medicinal purposes as a substitute for prescription medications, the sentencing judge noted that the scale of the operation meant that the production went well beyond this limited circle, and was clearly carried on for a commercial purpose. The offender was the principal of the grow operation. The police discovered over 2,000 plants, located in the basement of the residence and in other locations around the residence.
[44] At para. 12, after referring at length to R. v. Proulx, [2000] 1 S.C.R. 61, Ryan J.A. observed that the Court’s comments in that case “clearly show that there is no presumption in favour of or against a conditional sentence, including offences related to the production of marihuana.” At para. 13 she noted that the approach developed by the Court of Appeal turns most crucially on the commercial nature of the offence and the personal circumstances of the offender. At para. 23 Ryan J.A. noted that the culpability of the offender must be considered as well as the gravity of the offence. Ryan J.A. continued:
23 …A number of factors affect culpability including: the age of the offender; whether the offender is a principal operator or merely an employee; whether it is a first offence; and the choices the offender faced before becoming involved in the crime. The court will also consider whether the offender pleaded guilty and if there has been a joint submission. This list is not closed.
24 Aggravating and mitigating circumstances are self-evident and will arise in the circumstances of each case…
[45] In Vo, the offender was the operating mind behind a grow operation located in his family’s basement in the Lower Mainland, and pleaded guilty to production of marihuana. Mr. Vo resided in the residence with his spouse, who was convicted of possession of marihuana for the purpose of trafficking, and their three children, aged 11, 9 and 2. There were 576 plants. Mr. Vo had an “unrelated” criminal record, which evidently was not a factor in sentencing. He was 47 years of age. He came to Canada as a refugee from Vietnam, and then sponsored his wife’s immigration to Canada. The grow operation was sophisticated. A hydro-electric bypass was used. The couple had moved to Ontario after their convictions, but before sentencing, and were employed there. The court affirmed the sentence of one year imprisonment for Mr. Vo, as well as the sentencing judge’s decision to reject a CSO.
[46] In Kwiatkowski the court affirmed a one year jail sentence and the rejection of a CSO for convictions of production and possession of marihuana for the purpose of trafficking in a case involving a large grow operation, consisting of approximately 3,000 plants in five greenhouses with an estimated wholesale value of over $500,000, located in a rural area near Courtenay. The offender was residing on the property at the time of his arrest but was not the owner, and had a full-time residence in North Vancouver. He may not have been the principal operator (operating mind) behind grow op but was “heavily involved” in it. He had no criminal record and was the sole source of financial support for his family. The Court of Appeal noted at para. 13 that “general deterrence and denunciation are key factors in sentencing offenders involved in large commercial grow operations, particularly in small communities where the impact of such sentences are likely to become known and, therefore, have a greater deterrent effect”. The Court concluded at para. 14 that while it was open to the sentencing judge to impose a lesser sentence, the sentence imposed was not unfit.
[47] In Budd, the offender was 26 years of age at the time of the offences (production and possession of marihuana for the purpose of trafficking, and trafficking in marihuana), and had no criminal record. There were no breaches while he was on bail for two-and-a-half years. The offender controlled a grow operation located in the garage of a residence in Nanaimo. The operation was described by the trial judge as a “medium-sized” and “reasonably sophisticated” grow operation that appeared to have been in operation for some time: para. 3. The police found 1,139 grams of drying marihuana bud on the premises. At the sentencing hearing, Mr. Budd’s counsel submitted that the downturn in the fishing industry had motivated the offender to turn to growing marihuana, and that a CSO would allow him to maintain his employment. The Court of Appeal reiterated its earlier comment in Koenders that “[t]he person who becomes involved in the commercial production of marijuana, solely for profit, makes a deliberate decision to operate outside the laws of this country”: para. 17. The court noted the sentencing judge’s emphasis upon the need for general deterrence in rejecting the CSO, and concluded that there had been no error in imposing a one year jail sentence in part on that basis: para. 18.
[48] Finally, in Laird, Watchuk J. followed Koenders in imposing a sentence of nine months in jail followed by six months’ probation after the offender pleaded guilty to production of marihuana. The case involved a “relatively sophisticated” grow operation located on a rural property outside Quesnel where the offender lived with his parents, brothers, wife, and son. 502 plants were located in two outbuildings. This was the second crop. Much of the first crop was poorly packaged and had to be discarded. The court accepted that some of the marihuana was grown for medicinal purposes for three family members, and that the desire to make money was secondary. Nevertheless, the intention was to continue to produce marihuana for profit as well as for use by the offender’s family members. After taking this into account, Watchuk J. considered that the size of the commercial operation was between 381 and 461 plants. The offender had no relevant criminal record. He pleaded guilty and was remorseful. He was otherwise a law abiding and productive member of society. Watchuk J. held that a CSO was not consistent with the purposes and principles of sentencing, including denunciation and general deterrence, having particular regard for the serious effects of grow operations in the Cariboo region: para. 62.
[49] The defence cited many cases involving marihuana grow operations in which a CSO had been imposed. These cases are R. v. Munro, 2001 BCCA 299; R. v. Trinh, 2001 BCCA 677; R. v. Whyte, 2002 BCCA 293; R. v. Shah, 2003 BCCA 294; R. v. Shaw, 2005 BCCA 380; R. v. Huynh, 2006 BCPC 582; R. v. Gan, 2007 BCCA 59; R. v. Giang, 2010 BCSC 1016; R. v. Howitt, 2010 BCSC 1475; R. v. Buckle, 2012 BCSC 2073; R. v. Ta, 2014 BCSC 116; and R. v. Rohana, 2014 BCSC 2381.
[50] Many of these cases are distinguishable. Several involved offenders who were not the principal of the grow operation: Howitt, Huynh, Rohana, Gan, and Trinh. Buckle, Giang, and Ta involved sizable but smaller operations than the case at bar. In some cases there were guilty pleas or early admissions of guilt: Buckle, Rohana, Trinh, and Whyte. Some decisions are lacking in facts and therefore provide less guidance: Whyte, Gan, and Munro. In Koenders the Court of Appeal noted that some of the prior appellate authorities did not fit exactly into the analysis set out in that case, and specifically mentioned Munro, Shah, Whyte, and Shaw as examples of such cases.
[51] It is not possible to fully reconcile every authority and it is not necessary that I do so. It is axiomatic that every sentencing is an individualized process and therefore every decision is at least to some extent unique.
[52] In my decision in R. v. Chen, 2014 BCSC 2574, the offender was convicted of production and possession of marihuana for the purpose of trafficking. He was a 52 year old immigrant from China. It was not clear whether he was the principal of the grow operation, but he was more than a mere gardener or caretaker. He had a limited education and usually worked as a restaurant cook. He had no criminal record. There were no subsequent offences. He was remorseful. The grow operation was located in a house on a suburban street in Delta. There were 730 plants and the police also found approximately 120 grams of packaged marihuana. The residence was used for a single purpose, namely that of a sophisticated large-scale commercial grow operation that occupied substantial areas of the residence. Virtually all of the downstairs floor and a significant part of the upper floor were used for these purposes. After referring (at paras. 41-64) to the relevant purposes and principles of sentencing as reflected in the Criminal Code, and numerous authorities, I held that a CSO would not be consistent with the fundamental purpose and principles of sentencing, given the large scale of the enterprise, the nature of the enterprise, and Mr. Chen’s involvement in it, bearing in mind the authorities I referred to and the very strong requirement in cases of that nature for denunciation and deterrence. I sentenced Mr. Chen to one year in custody on each count, to be served concurrently.
[53] I accept the varying but not inconsistent summaries of the authorities set out in two decisions of this court, Howitt and R. v. Nguyen, 2011 BCSC 1596.
[54] In Howitt, D.C. Harris J. stated, at para. 39:
I draw the following principles from my review of the case law:
1. There is no presumption for or against a conditional sentence.
2. Where a sentence of less than two years is appropriate, consideration must be given to whether a conditional sentence order should be made.
3. Conditional sentences may, in appropriate circumstances, achieve general deterrence and denunciation.
4. In considering general deterrence and denunciation, judicial notice may be taken both of the significant and profitable marihuana industry in this province and of the impact of that industry on the communities in which it occurs.
5. Generally, the goals of denunciation and general deterrence will require incarceration of the principals of a large-scale commercial grow operation, namely, one that is in excess of 500 plants, even if it is a first-time offence, unless there are significant mitigating circumstances.
6. A conditional sentence may not, in particular circumstances, be sufficient to promote general deterrence and denunciation for a first-time offence, even if the offender is simply a caretaker or gardener.
[55] In Nguyen, Joyce J. stated, at para. 28:
I derive the following principles from the authorities:
1. Denunciation and deterrence are important sentencing principles with regard to the offence of production of marihuana.
2. Notwithstanding the significance of denunciation and deterrence, a conditional sentence is not precluded if the other statutory conditions for a conditional sentence are satisfied. The Court must give serious consideration as to whether a conditional sentence may satisfy those principles taking into account other principles of sentencing including:
(a) rehabilitation and restorative objectives including reparation for harm done and an acknowledgement of responsibility;
(b) a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender; and
(c) incarceration is a last resort for all offenders.
3. A conditional sentence that has strict conditions can achieve the principles of denunciation and deterrence.
4. Sentencing is an individualized process in which both the nature of the offence, the degree of responsibility of the offender, and the other circumstances of the offender must be considered when fashioning an appropriate sentence.
5. If the offender is the primary operator of the operation or is involved in a substantial way in its establishment and operation, then a conditional sentence will likely not be appropriate unless there are compelling circumstances regarding the offender's situation.
6. If the offender has played only a subordinate role in the operation, is a first time offender, and has good prospects for rehabilitation, then a conditional sentence may be appropriate.
[56] The mitigating circumstances applicable here are that Mr. Serban has no criminal record, and that he is otherwise a law abiding and productive member of society. His prospects for rehabilitation are good. He is remorseful. He is the sole breadwinner for his family and a custodial sentence will be a hardship for them as well as him.
[57] There is no guilty plea or early admission of guilt available as potential mitigating circumstances, nor is Mr. Serban youthful.
[58] The aggravating circumstances are the large size and scale of the grow operation, its medium to high level of sophistication, Mr. Serban’s central role in the operation, and the fact that it was carried on in a residence in which children resided, and against the wishes of Ms. Serban. In carrying out these criminal activities within the family home, Mr. Serban exposed his family to criminality and to the risks associated with residential grow operations, such as violent home invasions and fire hazards, as noted by Constable Hawes.
[59] The primary sentencing objectives applicable in this case are denunciation and general deterrence.
[60] For the reason mentioned previously, I place very little weight on the fact that Mr. Serban used marihuana himself for pain relief, and that he initially began growing marihuana for this purpose. At some point he clearly made a deliberate decision to embark upon the large scale commercial production of marihuana in the expectation of financial gain through illegal means. He was motivated by money.
[61] I place little weight on the lack of evidence of prior crops and profits. This can be put down to bad luck. Clearly Mr. Serban had carried on with activities for at least several months, and there is every indication that he would have continued to do so indefinitely.
[62] Arguments about financial need were not strongly pressed, and I place no weight on such considerations in any case. It is a common theme in grow operation cases and in many other criminal cases that the offender was driven by difficult economic circumstance or economic need. As observed in Budd at para. 16, many people cope with unfortunate economic realities without resorting to illegal activities. Especially given the size and scale of the operation, Mr. Serban’s deliberate decision to resort to such activities requires denunciation in very strong terms. The evidence about Mr. Serban’s health problems is also not compelling. The evidence is somewhat contradictory in that he now manages to earn a reasonable income doing renovation work.
[63] In any case, there is no specific or detailed evidence about economic circumstances here. It appears that the Serbans were able to maintain a reasonably comfortable existence, even without Ms. Serban working outside the home, at all. Mr. Serban had other employment options.
[64] In my view a CSO would be inconsistent with the fundamental purpose and principles of sentencing and having regard to the case authorities that I referred to. Both Nguyen and Howitt indicate that the principals of large-scale, commercial grow operations will be likely to receive custodial sentences unless there are significant and compelling mitigating circumstances. While there are mitigating circumstances present in this case, I am not persuaded that they are such that a CSO would achieve the objectives of denunciation and general deterrence, particularly considering the aggravating circumstances I have mentioned.
[65] I accept the following comments from Koenders, as reiterated in Budd at para. 17:
As this Court stated in Koenders, at para. 21, "[t]he person who becomes involved in the commercial production of marijuana, solely for profit, makes a deliberate decision to operate outside the laws of this country." Generally, the principals of large scale, commercial operations, with few if any mitigating factors in the personal circumstances of the offender, will result in the imposition of a period of at least one year of conventional incarceration (Koenders, at para. 42). …
[66] However, in my view it is appropriate in this case to depart somewhat from the one year period of incarceration referred to in Budd and Koenders, given the mitigating circumstances in this case. A sentence of nine months in custody would adequately address the need for denunciation and deterrence, while at the same time allowing Mr. Serban to return to his work and continue to support his family sooner, thus reducing the hardship to his family that a prison sentence necessarily entails, and facilitating Mr. Serban’s continued rehabilitation. A shorter sentence may do less long term damage to his business.
[67] For these reasons, I impose a sentence of nine months, in custody, on each of the two counts. These sentences will be served concurrently. In addition, there will be a period of probation of one year following the period of imprisonment.
[68] The conditions of probation will be the compulsory conditions set out in s. 732.1(2)(a), (b), and (c) of the Code. In addition, Mr. Serban is ordered to report to a probation officer at the Kelowna probation office at 1355 Water Street within 72 hours of his release from custody and to report thereafter as and when required to do so by the probation officer.
[69] I also impose the ancillary orders sought by the Crown, which are set out at the end of these reasons.
[70] The Crown applies for forfeiture of the residence under s. 16 of the CDSA. The Serbans concede that the residence is offence-related property within meaning of s. 16 and that Mr. Serban has been convicted of a “designated substance offence”. Thus, the Serbans admit that the residence is subject to forfeiture under s. 16(1) of the CDSA.
[71] Ms. Serban seeks relief from forfeiture of her interest under s. 19(3) of the CDSA.
[72] Section 19(3) provides as follows:
(3) Where a court is satisfied that any person, other than
(a) a person who was charged with a designated substance offence, or
(b) a person who acquired title to or a right of possession of the property from a person referred to in paragraph (a) under circumstances that give rise to a reasonable inference that the title or right was transferred for the purpose of avoiding the forfeiture of the property,
is the lawful owner or is lawfully entitled to possession of any property or any part of any property that would otherwise be forfeited pursuant to an order made under subsection 16(1) or 17(2) and that the person appears innocent of any complicity in an offence referred to in paragraph (a) or of any collusion in relation to such an offence, the court may order that the property or part be returned to that person.
[73] The Crown concedes that Ms. Serban was not “charged” within the meaning of s. 19(3)(a), and is therefore eligible to apply for the return of part of her property under this section.
[74] Thus, the issue is whether Ms. Serban appears innocent of any complicity or collusion in relation to the offences committed by Mr. Serban.
[75] In Villeneuve v. The Queen, [1999] J.Q. No. 4294 (C.A.), the Quebec Court of Appeal stated, in summary:
1. The onus of proof is on the applicant to convince the judge that he or she appears innocent of any complicity or collusion.
2. This is to be established on the civil standard of proof, that is on the balance of probabilities.
3. Complicity is a well-known concept which is well-defined in the criminal law.
4. Collusion is a civil law concept that includes two components:
i. An agreement, and
ii. An aim, which is that of misleading one or more persons.
5. The agreement for collusion may be established by direct proof or may be inferred by the behaviour of the parties.
6. The judicial discretion should be exercised in a judicial manner respecting the intent of the legislature, which is to prevent a delinquent from enjoying the fruits of his or her crimes.
[76] The Crown argues that Ms. Serban knew of the existence of the grow operation, that she had control over who had access to the property, and that she kept the existence of the grow operation secret. However, her control over access to the residence was only in the sense that as a resident of the house she could decide to exclude persons from the entrance to her home. There is no evidence that she exercised control over access to the grow operation in the basement apart from this. She kept the grow operation secret in the sense that she did not call the police, as I said in rejecting a similar argument by the Crown at para. 45 of the trial reasons. In summary, there is no evidence of any active steps taken by Ms. Serban to control access to the grow operation or to conceal it.
[77] The grow operation was carried out in the locked basement of the residence, which was physically quite separate from the upstairs living space, and Ms. Serban had no need to go to the lower floor for any domestic purpose, as I indicated at para. 38 of the trial reasons. There is no evidence connecting Ms. Serban to the basement, as I found at para. 39 of the trial reasons.
[78] Mr. Serban set up and operated the grow operation without any involvement Ms. Serban. In the trial reasons, I found as a fact that Mr. Serban had the ability and did in fact carry on the grow operation without her permission, and against her wishes, as she testified: see paras. 12, 13 and 42. Indeed, the Crown submitted during the sentencing hearing that Mr. Serban’s installation of the grow operation against Ms. Serban’s wishes was an aggravating circumstance. I have accepted that submission.
[79] In R. v. Nguyen, 2011 BCSC 100, Grauer J. held that “complicity” required more than mere passive acquiescence, or “failure to blow the whistle,” on the part of the wife of the offender: paras. 13-15. The grow operation in that case was confined to the crawl space of the family home. Grauer J. accepted that the offender’s wife could not have been completely unaware of it, but that she nevertheless had nothing to do with it. These are similar to the conclusions I have made in this case: Ms. Serban was aware of the grow operation (as she admitted), but she effectively had nothing to do with it. I accept as well that in practical terms there was nothing Ms. Serban could do about it, other than calling the police. In my view, at least in the circumstances of this case, that is not sufficient to establish complicity.
[80] In R. v. Raven, 2014 BCPC 67 at para. 17, the court adopted the definitions of complicity and collusion found in HMTQ v. ERJO Investment Ltd., 2005 SKPC 14, which states that complicity is “a partnership in wrongdoing” and collusion is “a fraudulent secret undertaking or the act of secretly acting with another to achieve a fraudulent or illegal purpose”. The evidence of Ms. Serban in this case established that she was in no sense a partner in Mr. Serban’s wrongdoing, nor did she make a fraudulent secret undertaking or secretly act with Mr. Serban to achieve a fraudulent or illegal purpose.
[81] The Crown relies on R. v. Martin, 2015 BCSC 2243. The case is clearly distinguishable. There, Beames J. held that the purchaser of the rental workshop property in question knew or at least had a strong suspicion that the property was being used for illegal activities when he purchased it, less than three weeks before the police found the very large and sophisticated marihuana grow operation onsite. The conclusions are based upon the particular facts of the case, which are set out in considerable detail in the reasons for judgment. Beames J. held that the owner made a deliberate choice to purchase the property despite his actual or imputed knowledge that his rent payments would be derived from illegal activities, and therefore she was not persuaded that he was entitled to return of the property under s. 19(3).
[82] The Crown also relied on R. v. Vu, 2013 BCCA 210. Again, this decision is distinguishable. The provincial court judge held it was more likely than not that the appellant Ms. Vu “was aware of and complicit with Mr. Vu in the set-up of the marihuana grow operation,” and this finding was determined to be reasonable: at para. 26.
[83] On the evidence, I am satisfied that Ms. Serban is innocent of any complicity or collusion in relation to the offences of which Mr. Serban has been convicted.
[84] I am therefore satisfied that the property should be returned to Ms. Serban pursuant to s. 19(3). As the property in question remains in joint tenancy the interest to be returned is her notional 50 percent interest as an equal joint tenant. The forfeiture order or at least the registration of it effects severance of the joint tenancy: R. v. Ford, 2010 BCCA 105 at para. 43.
[85] Mr. Serban seeks partial relief from forfeiture of his interest in the property under s. 19.1(3) of the CDSA. He contends that forfeiture of his interest in the property should be partial only, limited to 50 percent of his interest.
[86] Section 19.1(3) provides as follows:
(3) Subject to an order made under subsection 19(3), if a court is satisfied that the impact of an order of forfeiture made under subsection 16(1) or 17(2) in respect of real property 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.
[87] In Craig the Supreme Court of Canada held at paras. 48 and 56-58 that a court is entitled to refuse forfeiture only if the impact of the forfeiture order would be disproportionate with respect to the three factors listed in s. 19.1(3): (1) to the nature and gravity of the offence; (2) the circumstances surrounding the commission of the offence; and (3) the criminal record, if any, of the person charged with or convicted of the offence. The Court noted at para. 50 that “the fairness of a forfeiture order pursuant to this proportionality test is further ensured by the availability of partial forfeiture”. Thus, forfeiture orders can be adjusted to reflect the relative gravity of the case, pursuant to the purposes of the forfeiture scheme: para. 55. Judges have discretion to order no forfeiture, partial forfeiture, or full forfeiture of offence-related real property: para. 59.
[88] The Court provided these helpful comments to assist in exercising the court’s discretion:
56 What, then, should a judge consider under s. 19.1(3)? The nature and gravity of the offence could include the character and quantity of the substance involved, the level of sophistication of the crime and the extent to which the commercial production or distribution of drugs was involved.
57 The second factor, the circumstances surrounding the commission of the offence, might include consideration of the offender's role in the commission of the offence, the nature of the property and the manner in which it was used in the offence, risks to the security or safety of the community, whether the property was used in a manner that detrimentally affected its legitimate use and enjoyment, whether the property was fortified or otherwise adapted to accommodate the grow operation, the extent of the offender's involvement in organized crime and whether the property itself was held by a criminal organization.
58 The criminal record of the offender is self-explanatory. It will be of particular relevance if the prior offences were drug related.
59 …Full forfeiture may be anticipated, for example, in the case of a fortified property purchased for criminal purposes and solely dedicated to the commercial production and distribution of illegal substances, perhaps with a connection to organized crime. On the other hand, one might decline to order forfeiture in the case of an individual with no criminal record and no connection to organized crime who grows very little marihuana in her home. Each situation will be subject to a judge's appreciation of how the s. 19.1(3) factors should be applied in the particular circumstances, which, as previously stated, may result in no, partial or full forfeiture.
[89] In this case, considerations based upon the nature and gravity of the offence militate in favour of forfeiture. The grow operation was large, clearly commercial in nature, and of medium to high sophistication. Inherent in such an operation, Mr. Serban would have had to deal with other persons engaged in illegal activities in order to distribute and sell the product. As noted by Constable Hawes, once the marihuana bud has been packaged, it would typically be sold in large quantities to a broker to be distributed. Whether Mr. Serban had already actually dealt with others for this purpose or was merely planning to do so is unclear on the evidence, and does not make a great deal of difference in my view.
[90] In relation to the circumstances surrounding the commission of the offence:
1. Mr. Serban was the principal of the operation and the only person directly involved in it;
2. The grow operation was located inside the family’s residence. Only a part of the residence, the basement, was directly used and devoted to marihuana production. However, the basement formed a substantial proportion of the structure. The main floor area is 2,812 square feet, while the basement is 2,531 square feet in area. The remainder of the structure and the lands were also necessary and were utilized directly and indirectly. The basement was of course part of the larger structure. The existence of the residence and its occupation by the Serbans provided vital security and privacy for the operation. The residence provided access to services such as water and other utilities, and convenient accommodation for Mr. Serban as the operating mind and sole caretaker of the grow operation. The ordinary use of the property as a residence provided a façade of normalcy, thereby providing secrecy and privacy for the grow operation and, as is well known, provides a degree of legal protection against detection.
3. There is no evidence connecting Mr. Serban to a criminal organization, as such. The Crown did not adduce evidence at the trial of the presence of any weapons on the property.
4. There was no hydro bypass, however as I noted earlier in these reasons much special lighting, electrical work and specialized equipment was used. As stated earlier, grow operations are subject to risks of criminal violence. The opinion of Constable Hawes refers to the risks of “grow-rips”. The property was not fortified to any substantial degree. The basement was kept locked. The property is large and offers the residence a high degree of seclusion, so there was little need for special measures for this purpose. The basement was essentially invisible from the street due to the rearward slope of the property and the design of the house. The appraisal report in evidence indicates that the property size is 2.72 acres. It is zoned rural residential. It has a gated driveway, and backs onto a creek and greenbelt.
5. The Serbans purchased the residence on July 2, 2009, approximately three years prior to the establishment of the grow operation in 2012, and continued to use it as their residence from 2012 to August 2016. The Serbans purchased the property for $745,000. There is no evidence that they did not use legitimate funds. There is no evidence that it was purchased for use specifically as a grow operation. On November 27, 2012 they placed a first mortgage on the property in the principal amount of $680,000. I am left to infer that this was a refinance. The amount owing on the mortgage as of June 23, 2017 was $600,128. Therefore, the Serbans paid down the mortgage by $80,000 between the offence date in 2012 and the present. I must infer that legitimate funds were used to pay down the mortgage and pay for the other property expenses such as taxes and maintenance as there is no contrary evidence.
[91] Mr. Serban has no criminal record, which militates against forfeiture.
[92] As the Crown states in its submissions, forfeiture cases are highly fact-dependant.
[93] In R. v. Ouellette, 2009 SCC 24, a companion case to Craig, the Court declined to interfere with the decision of the Quebec Court of Appel ordering 50 percent forfeiture of a residence. The sentencing judge had ordered 100 percent forfeiture. The police seized 129 marihuana plants and 14 kilograms of marihuana leaves from the home. The grow operation occupied the basement. The area had specialized lighting and ventilation. The building had a makeshift surveillance system. While the sentencing judge found the home had been effectively turned into a “bunker” the Court of Appeal disagreed, holding that the home was primarily used for legitimate residential purposes. The Court of Appeal considered that the grow operation was not sophisticated. There was no theft of electricity. The offender had no proven links to organized crime and no relevant criminal record. He was in possession of a gun. There were prior harvests.
[94] In the other companion case to Craig, R. v. Nguyen, 2009 SCC 25, the Court affirmed the decision of the sentencing judge in this court (Josephson, J.), which had been upheld by the B.C. Court of Appeal, to impose 100 percent forfeiture. The owners, Mr. and Mrs. Nguyen, were both convicted of production and possession of marihuana for the purpose of trafficking. The sentencing judge had held that the home had likely been purchased for the sole purpose of growing marihuana.
[95] The grow operation had 96 plants, but was considered “moderately sized” and sophisticated. There was evidence of a recent harvest. The offenders had gone to significant lengths to conceal the operation. The Court emphasized the fact that the property had been purchased for the sole purpose of growing marihuana, which meant that the property was “tainted from the outset by a criminal purpose”. Also, as the owners lived elsewhere, the property’s main function was to house the grow operation.
[96] In R. v. Bui, 2010 BCCA 279, a large scale grow operation was found in a specially designed and constructed enlarged crawl space. The grow operation generated considerable revenue over several years. The trial judge concluded that the offenders Mr. Bui and Ms. Tran, who were husband and wife, were supporting themselves and their family through drug related activity. The Court of Appeal applied the comment of Abella J. in Nguyen that that the property was “tainted from the outset by a criminal purpose” as it had been “specifically built to house a sophisticated, large-scale illicit drug-production facility that generated considerable revenue over several years”: para. 55.
[97] In R. v. Giang, 2010 BCSC 1947, Pearlman J. ordered 100 percent forfeiture of the residence, which was paid for with undeclared income and utilized for grow operation purposes soon after its purchase. The property was acquired, at least in part, for use as a grow operation. There was an electrical bypass. Mr. Giang operated a mid-size, “moderately sophisticated” three-stage grow operation designed to produce four crops per year. The police found 402 plants in various stages of growth. Mr. Giang had no criminal record. The court relied on Nguyen and Bui for the proposition that acquisition or construction of a house for the purpose of conducting a grow operation is a significant factor, weighing in favour of full forfeiture. It is clear that these factors weighed heavily in the decision.
[98] In R. v. Sundstrom, 2013 BCCA 244 Donald J. made this helpful comment at para. 17:
In looking at the forfeiture trilogy of cases decided by the Supreme Court, of which Craig is one, three features stand out: whether the property was purchased for the sole purpose of growing marihuana, whether the property was dedicated wholly to the grow operation or served also as the offender's home, and the value of the property relative to the offender's net worth and to the gains that might have been anticipated from the illicit operations: Craig, supra; R. v. Oullette, 2007 QCCA 518, 229 C.C.C. (3d) 563, aff'd 2009 SCC 24, [2009] 1 S.C.R. 818; and R. v. Nguyen, 2009 SCC 25, [2009] 1 S.C.R. 826. See also R. v. Baldasaro, 2009 ONCA 676, 265 O.A.C. 75; and R. v. Van Bemmel, 2010 ONCA 276, 253 C.C.C. (3d) 284.
[99] The other cases to which I was referred all turn on their own facts and do not require a detailed review here. These were: R. v. Ly, (19 October 2009), New Westminster X070655 (B.C.S.C.); R v. Ford, 2010 BCCA 105; R. v. Wu, 2010 BCCA 366; and R v. Trieu, 2011 BCCA 303.
[100] After balancing all of the relevant considerations, in my view the circumstances require a substantial degree of forfeiture. However, full forfeiture would be disproportionate. In particular, the residence was not purchased for use as a grow operation, and was not dedicated wholly to that purpose. It does not appear that the property was paid for through illegal activities. Mr. Serban has no criminal record, and there is no evidence of any links to organized crime. The grow operation was operational for a relatively short period of time. In my view forfeiture of 50 percent of Mr. Serban’s interest in the property is appropriate in this case. In the result, 25 percent of the property is forfeited in total.
[101] The defence notes that the assessed value of the residence was $1,182,000 as of 2017 and, as noted, there remains a mortgage registered against the title having a principal amount due of $600,128. The mortgage is in favour of First National Financial LLP. However, the forfeiture order is in relation to Mr. Serban’s interest in the property, as a joint tenant. The effect of the forfeiture on the mortgagee’s interests are dealt with under s. 20 of the CDSA. This and other registration and realization issues, if any, are not before me: R. v. Nguyen 2011 BCCA 471 at para. 21.
[102] In summary, I make the following orders:
1. Nine months’ imprisonment concurrent on each count, followed by one year probation;
2. A prohibition against possession of firearms and weapons under s. 109(2) of the Code for a period of 10 years;
3. A DNA order pursuant to s. 487.051(3)(b);
4. Forfeiture and Return Order pursuant to s. 16 of the CDSA and s. 490(9) of the Criminal Code in relation to the items seized by the Ridge Meadows RCMP on October 15 and 16, 2012; and
5. Forfeiture Order pursuant to s. 16 of the CDSA in relation to 25 percent of the real property at 26661 Ferguson Avenue in Maple Ridge, British Columbia.
“Verhoeven J.”