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Criminal - Property Forfeiture (3). R. v. Nguyen
In R. v. Nguyen (SCC, 2026) the Supreme Court of Canada considered issues of "the forfeiture of criminally tainted property to the Crown".
Here the court considers the effect of a criminal stay [here for Charter s.11(b) trial delay] on the operation of the criminal property forfeiture provisions:B. A Stay of Proceedings Does Not Exclude Criminal Forfeiture Jurisdiction
[66] Having set out some general principles relevant to the statutory schemes advanced on appeal, I turn to consider the first issue raised by the parties, concerning the effect of the stay on the availability of criminal forfeiture.
[67] It is true that a judicial stay brings criminal liability proceedings to a conclusive end and leaves the accused in a position of presumptive innocence (see R. v. Bouvette, 2025 SCC 18, at para. 64, citing R. v. R.V., 2021 SCC 10, [2021] 1 S.C.R. 131, at para. 76, and Jewitt, at p. 148). In my respectful view, however, the Court of Appeal erred in relying on this fact to suggest that the stay of the proceedings aimed at determining the respondents’ criminal liability precluded all criminal forfeiture jurisdiction (C.A. reasons, at paras. 16 and 19-20). On this point, I prefer the conclusion of Perreault J. in the Court of Québec, who decided that a stay for unreasonable delay was not a bar to forfeiture proceedings here because, as he wrote, [translation] “[t]he main purpose of the forfeiture of offence-related property is to take that property out of circulation, not to punish the person who committed the offence” (para. 139). This stay of proceedings does not necessarily limit forfeiture jurisdiction, nor does it necessarily prevent the Crown from leading evidence of criminality underlying the stayed charges in the context of an application for forfeiture.
[68] First, to the extent the Court of Appeal suggested that forfeiture would only be available if criminality had already been proven against the respondents beyond a reasonable doubt in a criminal trial (paras. 19-20), I respectfully disagree. Many provisions permit criminal forfeiture without a finding of guilt against the possessor of the property (see, e.g., ss. 462.38(2), 490(9), 490.2(2) and 491.1 Cr. C.; s. 17(2) CDSA). Recall, for example, that s. 491.1 Cr. C. provides, following a trial, for the forfeiture of property obtained by the commission of an offence “whether or not the accused has been convicted”. Of these provisions, some even permit criminal forfeiture without evidence having been heard in a criminal trial at all (see, e.g., ss. 83.14(5) and 117.05(4) Cr. C.). Recall the provision addressing obscene publications, which can be seized and made subject to forfeiture without a trial under s. 164(4) Cr. C. Therefore, the fact that a stay of proceedings means that the respondents’ criminal liability has not been, and cannot be, established at trial for the relevant offences does not necessarily preclude criminal forfeiture. I agree with Poulin J. that a [translation] “stay of the criminal proceedings for unreasonable delay did not ipso facto lead to a stay of the proceedings relating to the property” (Sup. Ct. reasons, at para. 29).
[69] Second, the Court of Appeal was mistaken to suggest that the stay forecloses any possibility that criminality could be proven against the respondents in forfeiture proceedings (para. 20). Unlike criminal liability proceedings, forfeiture proceedings do not involve charges brought against accused persons and do not place their liberty in jeopardy. Therefore, they do not engage double jeopardy protections (see generally Vellone, at para. 41; Breton, at para. 45). The respondents are neither “accused” within the meaning of the Criminal Code nor persons “charged with an offence” for the purposes of s. 11 of the Charter. The Court of Appeal’s reliance on Jewitt was accordingly misplaced (para. 16). Jewitt equates a stay to an acquittal for the purposes of the plea of autrefois acquit and the exercise of appeal rights, both engaging a person’s risk of criminal liability (at pp. 145-48) and, ultimately, their liberty interests. It says nothing, however, about the effect of a stay or acquittal on subsequent forfeiture proceedings.
[70] Indeed, even when an accused is acquitted following a trial, the Crown may lead evidence in subsequent criminal proceedings on some issues raised in the context of that trial. Issue estoppel applies only to preclude the relitigation of issues that were resolved in the accused’s favour at trial (see R. v. Mahalingan, 2008 SCC 63, [2008] 3 S.C.R. 316, at paras. 31 and 33). To engage issue estoppel, the person invoking it “must show that the question was or must necessarily have been resolved on the merits in the accused’s favour in the earlier proceeding” (para. 52; see also R. v. Punko, 2012 SCC 39, [2012] 2 S.C.R. 396, at paras. 7-8). Showing that an issue was raised and an acquittal was entered is not enough: there “must be a necessary inference from the trial judge’s findings or from the fact of the acquittal that the issue was in fact resolved in the accused’s favour” (Mahalingan, at para. 52).
[71] Accordingly, where the issues required to establish whether property is criminally tainted were not decided in the accused’s favour at trial, appellate courts have concluded that it is open to the Crown to lead evidence on those issues to support forfeiture even after the accused is acquitted (see Breton, at para. 41; Vellone, at para. 42). For example, in Breton, after critical evidence was excluded under s. 24(2) of the Charter, the accused was acquitted (para. 42). Writing for a unanimous court, Fairburn A.C.J.O. concluded that the Crown was not estopped from proving that property related to the charges was unlawfully possessed and having it forfeited under s. 490(9) Cr. C. following the acquittal (para. 41). Since the property was excluded as evidence at trial and determining its provenance was not necessary to the acquittal, issue estoppel did not apply (paras. 46-53).
[72] Here, the respondents’ criminal liability proceedings were stayed before the trial began. As in Breton, the relevant issues were not necessarily decided in their favour as part of those criminal liability proceedings; indeed, nothing about the criminal allegations against the respondents was decided at the time the stay was entered. The stay flowed from the unreasonable delay in their trial, not reasonable doubt as to whether the charged offences were committed. In the circumstances, issue estoppel cannot prevent the Crown from leading evidence on that point in these distinct forfeiture proceedings. This accords with the Quebec Court of Appeal’s decision in Guimont, where the Crown was successful in establishing grounds for forfeiture after criminal liability proceedings had been stayed, as here, due to unreasonable delay. . R. v. Nguyen
In R. v. Nguyen (SCC, 2026) the Supreme Court of Canada considered issues of "the forfeiture of criminally tainted property to the Crown".
Here the court considers the nature, history and operation of Canada's criminal property forfeiture provisions:(1) Nature and Purpose of Criminal Forfeiture Generally
[51] Forfeiture proceedings are distinct from other criminal proceedings. They are not aimed at determining the criminal responsibility of accused persons, nor at punishing them (see Quebec (Attorney General) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708, at para. 25; R. v. Craig, 2009 SCC 23, [2009] 1 S.C.R. 762, at paras. 34‑37 and 40; R. v. Vallières, 2022 SCC 10, [2022] 1 S.C.R. 144, at para. 24; Vellone, at para. 41; Denis v. R., 2018 QCCA 1033, at para. 160; R. v. Angelis, 2016 ONCA 675, 133 O.R. (3d) 575, at para. 39; Vauclair, Desjardins and Lachance, at para. 15.19, who helpfully remark that such measures only punish [translation] “incidentally, through their effects”). Rather, the general purpose of criminal forfeiture is to avoid returning criminally tainted property to unclean hands, as this would offend the public interest, place the administration of justice into disrepute and undermine the goal of ensuring that crime does not pay (see generally Lavigne, at paras. 10 and 16; Craig, at para. 41; R. v. Wilson (1991), 1991 CanLII 11755 (ON SC), 68 C.C.C. (3d) 569 (Ont. Gen. Div.), at p. 574). At the same time, criminal forfeiture schemes typically consider not just society’s interest in ensuring that crime does not pay but also fairness to the individual, including the property and privacy interests of innocent third parties (see K. E. Davis, “The Effects of Forfeiture on Third Parties” (2003), 48 McGill L.J. 183, at p. 185). This Court has made it clear, in other contexts, that the state’s exercise of power to deprive owners of their property is strictly regulated given the importance the law places on private property rights (see, e.g., Lorraine (Ville) v. 2646‑8926 Québec inc., 2018 SCC 35, [2018] 2 S.C.R. 577, at para. 1).
[52] Forfeiture has a long history. Early English forfeiture was organized around discrete common law doctrines like deodand and attainder (see German, at § 5:1; J. Gurulé, “Introduction: The Ancient Roots of Modern Forfeiture Law” (1995), 21 J. Legis. 155, at pp. 156-57; A. Freiberg and R. Fox, “Fighting Crime with Forfeiture: Lessons from History” (2000), 6 Aust. J. Leg. Hist. 1, at pp. 16-28 and 33-38), which have since been abolished by statute (see The Criminal Code, 1892, S.C. 1892, c. 29, ss. 962 to 965; Anderson v. The Queen, 1970 CanLII 17 (SCC), [1970] S.C.R. 843, at p. 849; see also Forfeiture Act 1870 (U.K.), 33 & 34 Vict., c. 23, s. 1, now repealed). The Criminal Code, 1892 abolished criminal forfeiture except as provided by statute, stating that “no . . . conviction or judgment of or for any treason or indictable offence or felo de se shall cause any attainder or corruption of blood, or any forfeiture or escheat”, while preserving “any forfeiture in relation to which special provision is made by any Act of the Parliament of Canada” (s. 965). The latter part of the 20th century saw a significant expansion in the availability of such statutory forfeiture powers, through legislation aimed at disrupting the material substrate of criminal enterprises (see German, at §§ 1:1 and 6:1; Lavigne, at paras. 8-9; see also Davis, at p. 185).
[53] As noted, forfeiture provisions found in contemporary criminal legislation in Canada reflect a long-standing general principle of law and give statutory expression to the Latin maxim ex turpi causa non oritur actio (see Fleming, at pp. 445-47, citing a leading English private law application, Hardy v. Motor Insurers’ Bureau, [1964] 2 All E.R. 742 (C.A.), at pp. 750‑51; see also Hall v. Hebert, 1993 CanLII 141 (SCC), [1993] 2 S.C.R. 159, at pp. 170-71, citing D. Gibson, “Comment: Illegality of Plaintiff’s Conduct as a Defence” (1969), 47 Can. Bar Rev. 89, at p. 89; and, relying on a related maxim in a Quebec case, Lapointe v. Messier (1914), 1914 CanLII 569 (SCC), 49 S.C.R. 271, at p. 297). Importantly, for our purposes, the courts and the judicial process must not be used to further abusive or illegal purposes (see, in connection with criminal forfeiture, House of Commons Debates, vol. VII, 2nd Sess., 33rd Parl., September 14, 1987, at p. 8890 (Hon. R. Hnatyshyn, Minister of Justice); Further Detention of Things Seized (Re), 2024 BCSC 2132, at paras. 51-52). Since courts must not be understood to be facilitating illegality by returning criminally tainted property to unclean hands, they “will not lend their aid” to a person who founds their claim, in this case a claim to have property returned to them, on illegality (Holman v. Johnson (1775), 1 Cowp. 341, 98 E.R. 1120, at p. 1121; see also Fleming, at pp. 446-47; R. v. Ayotte, 2026 QCCQ 454, at para. 73). When made aware that property is criminally tainted, a court must therefore carefully consider the available powers of forfeiture to determine whether, according to the applicable statutory regime, confiscation under criminal legislation is justified.
[54] Property can be “tainted by criminality”, and thereby engage criminal forfeiture under the legislation, in various ways (R. v. Mac (1995), 1995 CanLII 2071 (ON CA), 80 O.A.C. 26, at para. 15). “Tainted” is not used to suggest “spoiled” property as both “tainted” and the French “vicié” might suggest in ordinary parlance, but rather property that is “corrupted” through its criminal connections. Strictly speaking, the corruption comes not from the inanimate thing itself but from the conduct with which it is linked. Thus, even where property is “tainted” by its very nature — like unlicensed narcotics or unregistered firearms — the corruption comes from its potential for illicit use or possession by any person. Thus, some property is, by its nature, unlawful to possess and thus “tainted” and subject to forfeiture (contraband, e.g., ss. 115, 164 and 462 Cr. C.). For example, possession of child sexual abuse and exploitation material is an offence (s. 163.1(4) Cr. C.), and when the court is satisfied on a balance of probabilities that such material has been seized, it can order its forfeiture (s. 164(4) Cr. C.). Where property is not corrupt by its nature, it may instead become tainted because it was acquired illegally and can be forfeited on that basis (property obtained by crime, e.g. s. 491.1, or proceeds of crime, e.g. s. 462.37; see generally Lavigne, at paras. 8-9; Wilson, at pp. 573-74; Angelis, at paras. 32 and 39). Further, property may have become tainted because it was used to commit or facilitate a criminal offence, and may be exposed to forfeiture as such (offence-related property, e.g. s. 490.1 Cr. C. and s. 16 CDSA; see generally R. v. Lu, 2021 ONCJ 563, at para. 4; Trecartin v. R., 2019 NBCA 84, at para. 28).
[55] If a court returns criminally tainted property, it risks facilitating the commission of a criminal offence, as it is generally a crime to possess inherently tainted property, as well as to knowingly possess proceeds of crime (see, e.g., ss. 91(1) and 354(1)(a) Cr. C.; s. 4 CDSA; R. v. Breton, 2025 ONCA 781, at paras. 47-48; Desjardins v. R., 2010 QCCA 1947, at para. 28). Returning property used to commit an offence, such as property designed or modified for drug trafficking, also risks facilitating further criminal offences (see Craig, at para. 17, citing R. v. Gisby, 2000 ABCA 261, 148 C.C.C. (3d) 549, at para. 20; Vellone, at para. 64). This emphasizes the overarching policy orientation of the statutory forfeiture scheme, reflecting the ex turpi causa maxim and the notion that crime does not pay.
[56] The Criminal Code and the CDSA contain provisions aimed at these various forms of criminally tainted property in different settings. Each statutory forfeiture provision must be interpreted in accordance with its specific text, context and purpose (see generally R. v. Di Paola, 2025 SCC 31, at para. 33; La Presse inc. v. Quebec, 2023 SCC 22, at para. 22; R. v. Basque, 2023 SCC 18, at para. 63; Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21). But one can observe certain recurring patterns in the language and structure of the provisions that are relevant to their interpretation. Notably, some forfeiture provisions are tied to trial or sentencing proceedings that determine an individual’s criminal liability, while others are independent of such proceedings. Both categories work together to ensure that regardless of the outcome of a specific criminal charge, forfeiture of criminally tainted property may still be considered where appropriate. I turn to consider each of these two categories in more detail.
(2) Forfeiture Tied to Trial or Sentencing Proceedings
[57] Some forfeiture provisions are engaged only after trial or during the sentencing process. This makes sense because a court that has overseen a trial may have heard evidence first-hand alerting it to the fact that certain property is tainted by criminality. It is in a privileged position to efficiently and fairly determine forfeiture issues, informed by what it has learned through an accused’s criminal trial.
[58] Often, such provisions are engaged only once there has been a finding of guilt (see, e.g., ss. 462.37 and 490.1 Cr. C.; s. 16 CDSA). A forfeiture order, while distinct from the sentence, helps advance the objectives of deterrence and crime prevention by ensuring crime does not pay and removing property used to facilitate crime from circulation (see Lavigne, at paras. 16-17). It would bring the administration of justice into disrepute to place property tainted by those findings of guilt back into unclean hands.
[59] The degree to which the property must be tied to the finding of guilt varies depending on the applicable statutory provision. In some cases, the property subject to forfeiture may need to be directly related to the specific findings of guilt, such as proceeds of the offence or property used to commit it (see, e.g., ss. 192, 462.37(1) and 490.1(1) Cr. C.; s. 16(1) CDSA). In other cases, property subject to forfeiture need only be tainted as proceeds of, or property related to, a different offence (ss. 462.37(2) and 490.1(2) Cr. C.; s. 16(2) CDSA; see also R. v. Lore (1997), 1997 CanLII 10604 (QC CA), 116 C.C.C. (3d) 255 (Que. C.A.), at p. 276). For example, as I shall endeavour to explain below, s. 462.37(2) bears on the forfeiture of proceeds of crime in respect of offences other than the designated offence on which the offender is convicted or discharged. Even in that instance, however, forfeiture remains tied to that offender’s criminal liability proceedings. This ensures that an offender involved in a broader criminal enterprise is not able to protect criminally tainted property by claiming that it is connected to a crime other than that of which they were found guilty (see German, at § 15:14; House of Commons Debates, September 14, 1987, at p. 8889).
[60] Further, forfeiture tied to the trial of an accused can occur even if the court does not find any accused guilty. If the court, following a trial, nonetheless concludes that an offence has been committed, property obtained through that offence is still susceptible to forfeiture in some circumstances (s. 491.1 Cr. C.). This ensures that, irrespective of the criminal responsibility of an accused, where the court is aware that this property was obtained illegally and there is no known lawful possessor, it will generally have the power to withdraw the property from circulation.
(3) Forfeiture Independent of Trial and Sentencing Proceedings
[61] Other criminal forfeiture provisions empower a court in circumstances that are not directly connected to proceedings seeking to determine the criminal liability of an accused. This reflects the reality that property is placed before the courts, engaging the ex turpi causa concern considered above, even when no trial of an accused ever takes place. In other words, in this category of statutory forfeiture proceedings, the property may be “tainted” even where there are no trial and sentencing proceedings against an accused.
[62] First, some provisions authorize the court to order forfeiture soon after property is seized by authorities, on proof that the property is a specific type of criminally tainted property, such as obscene publications (s. 164(4) Cr. C.), terrorism-related property (s. 83.14(5) Cr. C.) or terrorist propaganda (s. 83.222(4) Cr. C.). These powers apply independently of any proceeding to determine a specific person’s criminal responsibility related to that property.
[63] Second, forfeiture can also occur when an accused is charged but never tried because they have died or absconded. In those circumstances the criminal law still empowers courts to consider the forfeiture of proceeds of crime or offence-related property (see, e.g., ss. 462.38 and 490.2 Cr. C.; s. 17 CDSA). This ensures that barriers to trying and sentencing an absent accused do not prevent the court from being able to withdraw tainted property from circulation (see German, at §§ 16:2 and 32:5).
[64] Third, forfeiture can be engaged by the court’s detention and eventual disposition of seized or restrained property (see, e.g., ss. 490(9) and 462.43 Cr. C.). Property that is seized or restrained is generally subject to continuing supervision by the courts, to ensure the appropriate balance “between the societal interest in the investigation of crime on the one hand, and the property and privacy interests of individuals from whom the things were seized on the other” (R. v. Hollaman, 2025 BCCA 315, [2025] 11 W.W.R. 595, at para. 97, citing Further Detention of Things Seized (Re), 2024 BCSC 297, at para. 54, per Donegan J., and Further Detention of Things Seized (Re), 2024 BCSC 93, at para. 17, per Riley J.; see also Uniform Law Conference of Canada, Working Group on Section 490 of the Criminal Code: Final Report, July 2024 (online), at paras. 12‑13).
[65] As discussed below, when the court’s continuing supervision of such property is no longer required, the court must generally make an order returning the property to a lawful owner or possessor and, if no such owner or possessor is known, Parliament has provided for the forfeiture of the property to the Crown (s. 490(9) Cr. C.). Forfeiture is available under s. 490(9) [translation] “even where the prosecutor decides not to lay charges against a suspect or the court has ordered a stay of proceedings” (A. Bergevin and E. Darbouze, “La confiscation des produits de la criminalité et des biens infractionnels incluant l’amende compensatoire”, in Service de la qualité de la profession du Barreau du Québec, vol. 516, Développements récents en droit criminel (2022), 49, at p. 76). This avoids the court having to make an impossible choice between perpetually detaining property under court supervision or facilitating its unlawful possession. . R. v. Nguyen
In R. v. Nguyen (SCC, 2026) the Supreme Court of Canada considered issues of "the forfeiture of criminally tainted property to the Crown".
Here the court summarizes this criminal-forfeiture case, which centers on the 'ex turpi causa non oritur actio' interpretive principle:[1] Parliament’s justification for its various rules authorizing the forfeiture of criminally tainted property to the Crown is easy enough to identify: the state can and indeed should confiscate that property to ensure that crime does not pay.
[2] Interpreting a statutory forfeiture rule in Fleming (Gombosh Estate) v. The Queen, 1986 CanLII 63 (SCC), [1986] 1 S.C.R. 415, at p. 432, Wilson J. gave expression to this deeply held sense that a person should not profit from criminal activity by referring to the Latin maxim ex turpi causa non oritur actio ([translation] “from a shameful (immoral) cause an action does not arise”: see A. Mayrand, Dictionnaire de maximes et locutions latines utilisées en droit (4th ed. 2007), at p. 173). That general principle of law animates, to different degrees, the various statutory regimes for criminal forfeiture to which the maxim properly applies: from the base or illegitimate “cause” of criminal activity, an “action” by those involved for the return of their ill-gotten gains and other property tainted by criminal activity “does not arise”. This same idea that crime does not pay has been widely recognized by Canadian scholars as the moral foundation for statutory forfeiture schemes like those at issue in this appeal (see, e.g., M. Vauclair, T. Desjardins and P. Lachance, Traité général de preuve et de procédure pénales 2025 (32nd ed. 2025), at paras. 15.19 and 15.46; P. M. German, Proceeds of Crime and Money Laundering (loose-leaf), at § 5:1; M. Gallant, “Civil Processes and Tainted Assets: Exploring Canadian Models of Forfeiture”, in C. King and C. Walker, eds., Dirty Assets: Emerging Issues in the Regulation of Criminal and Terrorist Assets (2016), 165, at p. 165).
[3] This justification reflects, as well, a deterrent effect on crime, by reducing the incentive for offending and by depriving individuals and criminal organizations of property that sustains illegal activity. Moreover, returning criminally tainted property to unclean hands runs the risk that the administration of justice be brought into disrepute should that taint be somehow transferred to the court itself (see generally J. Boucht, The Limits of Asset Confiscation: On the Legitimacy of Extended Appropriation of Criminal Proceeds (2017), at p. 98).
[4] The circumstances of this appeal challenge the proper contours of the ex turpi causa principle as it is carried forward in forfeiture regimes in the Criminal Code, R.S.C. 1985, c. C-46 (“Cr. C.”), and the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). The unusual feature of this case is that the persons who claim ownership of the property that the Crown seeks to confiscate obtained a stay of proceedings before they went to trial on related criminal charges. Their situation recalls that the ex turpi causa principle cannot stand easily as an unbending rule (see P. Alldridge, Money Laundering Law: Forfeiture, Confiscation, Civil Recovery, Criminal Laundering and Taxation of the Proceeds of Crime (2003), at pp. 54-55). At the very least, where those seeking the return of property seized have themselves not been convicted of a crime, one might expect the statutory rules on forfeiture, which are predicated on the notion that “crime does not pay”, to take this into account and perhaps even give way to the return of the property.
[5] In this case, the respondents — Thi Huyen Nguyen, Thi Hong Cun and Alexander Nguyen — and several others were accused of various offences relating to an alleged conspiracy to produce cannabis. In connection with the investigation and planned criminal proceedings, some of their property in Quebec and British Columbia was seized by the police. One of their number — Manh Hung Nguyen, who is not a party to this appeal — pleaded guilty in the Court of Québec and was sentenced accordingly.
[6] Some time later, in the same court, the three respondents obtained a stay of proceedings on the charges brought against them by reason of a violation of their constitutional right to a trial within a reasonable time. The Crown nevertheless sought forfeiture of items of the respondents’ property — including cash and homes the respondents said they owned or lawfully possessed — that had been seized or restrained during the police investigation relating to the illegal production of cannabis.
[7] Seeking the return of their property, the respondents brought an application for prohibition with certiorari in aid, in which they argued that the Court of Québec had no jurisdiction to consider the forfeiture of their property. They argued that the stay of proceedings was tantamount to an acquittal. It may be that crime does not pay but, they said, we have been convicted of no crime. On appeal, the Quebec Court of Appeal agreed, granted the application for extraordinary remedies, and declared that the Court of Québec did not have jurisdiction to hear the Crown’s forfeiture application.
[8] The Crown appeals to this Court, arguing that the Court of Appeal misinterpreted the statutory provisions in question and that, properly applied, they do serve to prevent [translation] “anyone from profiting from crime”, even the respondents who, the Crown acknowledges, have neither been convicted nor sentenced for the offences initially alleged against them (A.F., at para. 1). The Crown insists that even if the respondents have not themselves been convicted, the property is tainted by crime and, accordingly, the Court of Québec has jurisdiction to order forfeiture under statute.
[9] For the reasons that follow, I would allow the appeal in part and remand the matter to the Court of Québec, which, in my respectful view, does have jurisdiction to proceed with the criminal forfeiture hearing in this case.
[10] First, the stay of the trial proceedings is not, for the purposes of the forfeiture matter, tantamount to an acquittal. The stay may be equated to an acquittal for the purposes of the plea of autrefois acquit and the exercise of appeal rights because they engage a person’s risk of criminal liability and liberty interests. But the stay has no decisive effect on the forfeiture proceedings. The matters required to establish that the property is criminally tainted were not decided in the respondents’ favour in a prior criminal proceeding, such that it is open to the Crown to lead evidence on those issues to support its forfeiture application. There is no necessary issue estoppel between matters decided on the stay — whether the delay was unreasonable — and matters at issue in subsequent forfeiture proceedings — whether the property is tainted by crime. The stay does not oust statutory jurisdiction in respect of forfeiture.
[11] Second, I agree with the Court of Appeal that, as a matter of statutory interpretation, the Court of Québec does not have the power in the instant case to order forfeiture under the principal provisions invoked by the Crown in the Criminal Code and the CDSA, which tie that authority to trial and sentencing proceedings. But with due regard for other views, jurisdiction to conduct criminal forfeiture proceedings survives under statutory rules that operate independently of trial and sentencing. Parliament has provided for a number of circumstances in which forfeiture can be ordered even where no accused has been tried.
[12] Now that the criminal liability proceedings to which the property is related are at a definitive end, the judicial supervision of property that was seized or restrained during the associated investigation must also end. The property is presently in limbo — it is neither forfeited to the Crown nor returned to the respondents — and this plainly cannot be what Parliament intended in circumstances like these. In accordance with legislative provisions governing the residual disposition of such property, which reflect the ex turpi causa principle, the provincial court can now consider forfeiture or the proper return of the property. In these proceedings, the Crown will bear the burden of showing beyond a reasonable doubt that the respondents’ possession of the property is not lawful and that there is no known lawful possessor to whom the property can be returned.
[13] I would therefore remand the matter to the Court of Québec to dispose of the competing applications by the Crown, for forfeiture, and by the respondents, for the return of the property.
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