Court of Appeal

CASE NO.                                                   VOL. NO.                                                           PAGE

IN THE MATTER OF:                                                                                                                    

AN APPLICATION BY THE ATTORNEY

GENERAL OF CANADA FOR FORFEITURE

OF PROPERTY OF RICHARD JOSEPH MARRIOTT,

DECEASED and GAIL STONE, DECEASED,

PURSUANT TO SECTION 462.38 OF THE

CRIMINAL CODE

CAC 166209                                               Halifax, N.S.                                         BATEMAN, J.A.

                                            [Cite as:  R. v. Marriott, 2001 NSCA 84]

APPEAL HEARD:                                         March 20, 2001

JUDGMENT DELIVERED:                        May 17, 2001

SUBJECT:                 Forfeiture of proceeds of crime.

SUMMARY:              Marriott and Stone, common law spouses, were charged with possession and/or laundering proceeds of crime (drug trafficking), contrary to ss. 8(1) and 9(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.  They were fatally shot before their trial on the charges.  Pursuant to s. 462.38 of the Criminal Code the Crown sought forfeiture of certain of their property which was alleged to be proceeds of crime.  The judge ordered forfeiture of most of the property but declined to order forfeiture of a full interest in the parties' residence, limiting forfeiture to a part interest only.

ISSUES:                     The Crown appealed the judge's finding that neither the down payment on the residence, nor the pay-out of the mortgage through insurance as a result of their deaths were proceeds of crime.  The discharge of the mortgage occurred after the end of the charge period.

RESULT:                   Pursuant to s. 462.44 of the Code, a Crown appeal from a forfeiture order is like an appeal from a verdict of acquittal and, therefore, pursuant to s.676(1)(a), limited to a question of law alone.

The judge did not err at law in concluding that the down payment on the residence (which was purchased during the charge period) derived from legitimate funds and was not proceeds of crime.

In determining that the equity created through the discharge of the mortgage was not proceeds of crime the judge misinterpreted the requirements of s. 462.38(2)(b) and therefore erred at law.  Appeal Court satisfied beyond a reasonable doubt that the equity created by the discharge of the mortgage was proceeds of crime.  Appeal allowed to the extent of including that amount in the forfeiture order.