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Statutory Interpretation - Ex Turpi Causa. 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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