Pubdate: Wed, 17 Jun 2009
Source: North Shore News (CN BC)
Copyright: 2009 North Shore News
Contact:  http://www.nsnews.com/
Details: http://www.mapinc.org/media/311
Author: Jerry Paradis
Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture)
Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada)

SUPREME COURT FAILS GROW-OP FORFEIT TEST

North Vancouver's Judy Ann Craig finally got the answer she was 
looking for: She will not have to forfeit her home because she 
operated a grow-op out of it.

On the other hand, Yves Ouellette from Laval, Quebec will have to 
forfeit half of his grow-op property; and a couple in Surrey named 
Nguyen will have to forfeit all of theirs.

In arriving at those conclusions a couple of weeks ago, the Supreme 
Court of Canada unfortunately failed to explain why.

They did not suggest, let alone settle, clear criteria for the 
forfeiture of real estate that has been related to a drug offence. 
That isn't just a matter of nuance. Those penalties amount to fines 
in the hundreds of thousands of dollars, on top of any other sentence 
the court must impose. Trial and provincial appellate judges were 
eagerly awaiting some guidance. They are no better equipped now than 
they ever were to decide, on any principled grounds, why one grow 
operator should lose his property and another should not.

The Controlled Drugs and Substances Act asks courts to take into 
consideration "the nature and gravity of the offence, the 
circumstances surrounding the commission of the offence, and the 
criminal record of the (offender)" when deciding if forfeiture of the 
property would be "disproportionate" (read "unfair").

None of the offenders in the three cases had a relevant criminal record.

In her lead judgement, Madam Justice Abella takes a rather vague stab 
at setting out workable criteria for those factors. She says that the 
nature and gravity of the offence "could include the character and 
quantity of the substance involved, the level of sophistication of 
the crime and the extent to which the commercial production or 
distribution of drugs was involved." Which, rather than answering 
anything, leads to more questions.

If it only "could," what other criteria could be relied upon at the 
whim of the trial judge? What "character"? These are all marijuana 
grow-ops. And, surprisingly, the number of plants (the size of the 
operation) appears to be irrelevant; but, if it weren't, how much 
would be enough to tip the scales (pun intended)?

What is meant by "sophistication"? Without exception, any grow-op 
worth being busted is designed to efficiently grow marijuana for 
distribution. Courts have never labelled an operation bush-league. 
They are what they are, end of story. The use of that word in a 
Supreme Court of Canada judgement without elaboration is not only 
lazy, it validates what judges have been getting away with for years: 
imposing sentences based on the casual use of a non-descriptor. And 
what amounts to "commercial" production or distribution?

When she turns to the circumstances surrounding the offence, it gets 
even more detailed and, therefore, worse. She says they might 
include: the offender's role in the commission of the offence; "the 
nature of the property and the manner in which it was used"; the 
risks to the "security and safety of the community"; whether use of 
the property as a grow-op "detrimentally affected its legitimate use 
and enjoyment"; and whether it "was fortified or otherwise adapted to 
. . . the grow operation."

Once again, if they only "might," what other factors can be brought 
into the mix by a whimsical judge? The nature of the property and the 
manner in which it was used (or adapted, or "fortified") are the 
essentials of the offence: the property owner must be involved in 
using the premises he has adapted for a grow-op. It is also empty 
rhetoric to speak of efforts made to discourage snooping. To set all 
of those as possible aggravating factors is akin to saying that the 
bank robber deserves a heavier sentence because he robbed the bank 
and tried to get away.

It is a rare case, if indeed there have ever been any, where 
community risks ever come up, except in the ritualistic evidence of 
police experts who speak in melodramatic generalizations about the 
dangers of grow-ops.

Judge Abella then displays an optimistic streak when she says, "Each 
situation will be subject to a judge's appreciation of how the . . . 
factors should be applied in the particular circumstances, which, as 
previously stated, may result in no, partial or full forfeiture."

Let's see how the Supreme Court managed to apply those factors.

Judy Ann Craig's grow-op occupied the basement level and portions of 
the main floor of her home. There were three growing rooms and one 
drying room, as well as industrial lighting, ventilation and 
irrigation systems. The court therefore concludes that her home was 
adapted "to some degree" to growing marijuana. Police seized 186 
plants, pre-packaged marijuana, cash and "score sheets" (her business ledger).

Without setting those facts against any scale, without elaborating on 
what was aggravating or mitigating, the Court rules that, ". . . the 
appropriate disposition is simply to set aside the Court of Appeal's 
forfeiture order."

Contrast those facts to the Nguyen case. The couple bought a house 
and set up a grow-op. Their 18-year-old daughter lived there and the 
rest of the family resided elsewhere. The police found what they 
called "a moderately-sized but sophisticated grow operation" of 96 
plants and the usual assortment of lighting, irrigation and 
ventilation in the basement. The order of forfeiture was allowed to 
stand. The reasons are seriously obscure.

Without explaining why, the Court deems it important that "the 
Nguyens had gone to significant lengths to conceal the nature of the 
operation inside the property," an inventive idea for harsher 
sentences: the offender actually tried to get away with it. They also 
adopt the trial judge's concerns about the "sophistication and 
commercial nature" of the operation, as if those words actually mean 
something in the context.

Worst of all is the emphasis they place on the fact that Nguyen's 
bought the house for the purpose of growing marijuana. Madam Justice 
Abella comments, "This means that the property was tainted from the 
outset by a criminal purpose."

Why is a house you're living in any less "tainted" by your criminal 
grow-op? Yet that ephemeral "taint," like a ghost haunting the 
premises, was the clincher -- it cost the Nguyens their house and 
allowed Craig to keep hers: she only adapted her house "to some 
degree" to accommodate her twice-as-large, and just as 
"sophisticated," illegal suburban farm.

Ouelette, for his part, was allowed to keep half of his house because 
only his basement was used and the operation was not as 
"sophisticated" as others.

All in all, there is nothing that distinguishes the gravity of these 
offences and the circumstances under which they were committed -- 
except maybe the much smaller size of the Nguyen operation -- yet 
their punishments vary hugely.

The judgment unfortunately perpetuates the vacuum of principle in 
which courts operate when dealing with forfeitures. All grow-ops are, 
within narrow variations, "sophisticated," "commercial" and 
"concealed"; but it would not do to rule that forfeiture is never 
disproportionate, that merely committing the offence is enough. So 
they reach for anything they can. Sadly, the Supreme Court of Canada 
has done the same.
- ---
MAP posted-by: Jay Bergstrom