Pubdate: Sat, 30 May 2009
Source: National Post (Canada)
Copyright: 2009 Canwest Publishing Inc.
Contact:  http://www.nationalpost.com/
Details: http://www.mapinc.org/media/286
Author: Janice Tibbetts, Canwest News Service
Referenced: R. v. Craig 
http://csc.lexum.umontreal.ca/en/2009/2009scc23/2009scc23.html
Referenced: R. v. Nguyen 
http://scc.lexum.umontreal.ca/en/2009/2009scc25/2009scc25.html
Referenced: R v Yves Ouellette 
http://scc.lexum.umontreal.ca/en/2009/2009scc24/2009scc24.html
Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture)
Bookmark: http://www.mapinc.org/mjcn.htm (Marijuana - Canada)

WOMAN CAN KEEP GROW-OP HOME

Supreme Court Ruling

The Supreme Court of Canada made it harder yesterday for the Crown to
routinely seize the houses of marijuana growers in a ruling that saved
a North Vancouver woman from losing her home as punishment for running
a grow-op in her basement.

The 7-0 ruling unanimously concluded that a federal law permitting
confiscation was not meant for small-timers like Judy Ann Craig, a
seasoned gardener who began her business to help pull her out of an
emotional slump after her divorce.

"It's going to be harder to seize a house, but only when the person is
at the bottom of the food chain," said Ms. Craig's lawyer, Howard
Rubin, who predicted that routine confiscation of "virtually every
house" containing grow-ops will come to an end.

The ruling was one of a trilogy of decisions yesterday involving three
Canadians who had lost homes in which they grew pot, a penalty that
has been increasingly levied as a result of 2002 changes to the
federal Controlled Drugs and Substances Act to mandate forfeiture of
"offence-related property."

It was the Supreme Court's first interpretation of the forfeiture
regime.

The court upheld the total and partial seizures of the other two
homes, one in Surrey, B. C., and the other in Laval, Que.

Ms. Craig, a 57-year-old travelling saleswoman, testified in earlier
court proceedings that she started growing marijuana -- initially to
sell to AIDS sufferers for medical purposes -- because she was
depressed from her divorce several years earlier and "I needed a
challenge to kick-start me out of this state."

She used part of her earnings to beautify her clematis-enveloped
garden that was featured in a 2002 edition of Gardens West magazine.

The Supreme Court took into account that Ms. Craig had no previous
criminal record, that she bought the house more than 10 years before
she began using it for a grow-op, and that she said she shunned offers
to team up with organized crime.

"At the suggestion of a friend, in 1998,Ms. Craig began growing
marijuana," wrote Justice Rosalie Abella. "She sold it to various
clients, including to some of her friends suffering from AIDS and
hired employees to help her with the operation."

Ms. Craig pleaded guilty in 2003 after police seized 186 marijuana
plants. She received a conditional sentence and a $115,000 fine. Since
she had no other assets and owed $250,000 in unpaid taxes from her
ill-gotten earnings, the B. C. Court of Appeal ordered the forfeiture
of her small, two-storey home. It was valued at $460,000 at the time
of her 2005 sentencing.

The Supreme Court decision overturns the appeal court, which had
emphasized that Ms. Craig ran "a successful commercial operation that
grossed over $100,000 a year."

Justice Abella said it would be up to judges to assess, on a
case-by-case basis, whether house forfeiture is disproportionate to
the crime --leeway that is permitted in the federal law.

"The extent of the property forfeited will vary," wrote Justice
Abella. "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 marijuana in her home."

The Crown failed in its quest to uphold the seizure of Ms. Craig's
home on grounds that Parliament passed its 2002 law to reflect
society's "abhorrence" for the social problems associated with the
drug trade.

The Crown, in a legal brief, noted that Ms. Craig ran a commercial
operation in which she employed "hired hands" and sold marijuana in
ounce, half-pound and one-pound quantities, generating hundreds of
thousands of dollars in illegal revenue over five years.

In the two other decisions yesterday, the court dismissed appeals
involving Kien Tam Nguyen, who was ordered to forfeit his Surrey home
after he was found guilty of running a marijuana grow-op, and Yves
Ouellette, whom the Quebec Court of Appeal ordered to partially
forfeit his home outside Montreal. 
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