R v Nguyen: Overreaching the Limits of Reading In?

Leave to appeal has recently been granted by the Supreme Court of Canada (“SCC”) in R v KT Nguyen; R v NT Nguyen, 2007 BCCA 474 [“Nguyen“]. In this case, the SCC has been asked whether the Court of Appeal for British Columbia erred in failing to find fault in the sentencing judge’s order of forfeiture after the discovery of a residential marijuana grow op. The SCC will also consider whether the appeal court was mistaken in its consideration of the “nature and gravity of the offence” and the “circumstances surrounding the commission of the offence” as laid out in s. 19.1(3) of the Controlled Drugs and Substances Act, SC 1996, c 19 [“CDSA“].

Kien Tam Nguyen and Nga Thuy Nguyen are husband and wife. In 2003, they resided with their two younger children in a rental accommodation while they operated a marijuana grow operation in the basement of another residence in Surrey, B.C. Their eldest daughter resided in that home. Police seized the grow op in November of 2003, where they discovered ninety-six plants in the early flowering stage of growth, as well as one hundred and fifty dirty pots and an empty grow room, indicating that a harvest had recently taken place. Entry doors to the residence were barricaded and the windows were barred, towels were placed under the door leading to the basement, and air fresheners were found around the house. These factors added weight to the grow op allegations.

Unsurprisingly, at trial in 2005, the Nguyens were convicted on charges of marijuana production and possession for the purpose of trafficking, contrary to s. 7(1) and s. 5(2) of the CDSA, respectively. They were then sentenced to an 18-month period of incarceration to be served in the community, as well as forfeiture of the property in which the marijuana was produced and the equipment related to the grow operation.

The trial judge reached his decision by considering the applicable provisions of the CDSA. While defence counsel conceded that the conviction was for a designated substance under s. 2 of the CDSA, and that the offence was committed in relation to that property under s. 16(1), counsel also noted that the forfeiture of this property was not always mandatory. An exception to the forfeiture rule could apply if, pursuant to s. 19.1, the court was satisfied that the impact of such an order would be disproportionate to the nature and gravity of the offence, the circumstances surrounding its commission, and any criminal record.

Addressing the parameters of this possibility, the trial judge first assessed who might be impacted by forfeiture of the property. Though the Nguyens’ eldest daughter did reside in the impugned home at the time of the trial, she did not continue to reside there between the time of the offence and the time of the trial. The trial judge understood this to mean that she did not fall within the scope of s. 19.1(4) of the CDSA, which applies where “the dwelling house was the member’s principle residence at the time the charge was laid and continues to be the member’s principle residence.” Even if the trial judge’s assessment in this regard was questioned, he noted that the eldest daughter also possessed no equity in the house. She had no financial interest at stake with respect to forfeiture, other than the possibility that she would be required to move.

The trial judge went on to consider the nature and gravity of the offence, as well as the circumstances surrounding its commission, as per s. 19.1 of the CDSA. The motive of the operation was clearly to gain profit; the fact that the Nguyens lived elsewhere further solidified the conclusion that they purchased the home for the purposes of the grow op alone. According to the trial judge, aggravating circumstances included the fact that the Nguyens exposed their eldest daughter to the risk of home invasion, and that this type of offence is expanding beyond the capacity of police resources to control it. Mitigating these circumstances were the facts that the Nguyens had no prior criminal records, they were not associated with organized crime, they had young children living with them and they possessed no weapons associated with the maintenance of the grow op. Weighing all these factors, the trial judge decided that forfeiture of the property was necessary to provide an adequate level of deterrence for this type of crime.

Mr. and Mrs. Nguyen argued at the Court of Appeal for British Columbia [“BCCA”] that the judge erred in failing to address whether the impact of this forfeiture would be disproportionate; instead, the judge improperly focussed on whether it was necessary to provide adequate deterrence. The BCCA disagreed with this assertion, holding that the judge properly considered all of the statutory criteria in the context of his sentencing decision, though this consideration was at times implied. The BCCA cited their decision in R v Craig, 2007 BCCA 234 [“Craig“], where the court stated that ss. 19.1(3) and (4) do not require that the forfeiture itself be considered objectively disproportionate to the nature and gravity of the offence. Rather, s. 19.1(3) reads, “if a court is satisfied that the impact of an order of forfeiture would be disproportionate;” the BCCA understood Parliament’s choice of the word ‘impact’ to mean that a subjective element is included in the analysis of a forfeiture order. Contemplating this subjective element allowed the Nguyen trial judge to craft a sentence in which he considered deterrence to be a key objective, and according to the BCCA, this element is statutorily permissible. Deterrence, contrary to the Nguyens’ argument, was a valid focus for the trial judge.

The BCCA concluded by conceding that it would have been preferable had the trial judge articulated his findings with respect to proportionality. Yet by reading his reasons as a whole, the trial judge impliedly concluded that complete forfeiture would not be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence, the criminal record of the appellants, and the impact of the order on the appellants or their family. Though the trial judge could have been clearer, the BCCA held that he did consider all of the criteria set out in ss. 19.1(3) and (4).

It remains to be seen whether the SCC will read a similar implication into the trial judge’s reasoning for the forfeiture of property. When Nguyen is decided, along with Craig and R, in the coming months, we will discover the extent to which implication may be read into a judge’s reasoning in this context. This may have a significant impact upon the way in which appellate review is conducted.

[Editor’s note: the SCC has since ruled on this case in R v Nguyen [2009] 1 SCR 826.]