Pubdate: Tue, 01 Feb 2011
Source: Now, The (Surrey, CN BC)
Copyright: 2011 Canwest Publishing Inc.
Contact:  http://www.thenownewspaper.com/
Details: http://www.mapinc.org/media/1462
Author: Tom Zytaruk
Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture)
Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada)

JUDGE CUTS SURREY POT GROWER A BREAK

SURREY - A Supreme Court judge has cut a Surrey pot grower a break by 
ordering that he forfeit only a third of his interest in his house to 
the government, rather than the entire property.

Trung Van Nguyen pleaded guilty to growing marijuana inside the crawl 
space of his Surrey house and was sentenced to nine months in jail on 
June 4, 2010, but was released on parole after serving six.

The Crown also applied to have Nguyen's house forfeited to the 
government, under provisions of the Controlled Drugs and Substances Act.

Justice Christopher Grauer, the judge who sentenced the Surrey 
resident, dealt with the forfeiture hearing in B.C. Supreme Court in 
New Westminster in January.

Nguyen's lawyer, Dave Albert, argued the forfeiture of his client's 
house would be "disproportionate" to the gravity of the offence.

The judge was asked to consider the affect outright forfeiture would 
have on Nguyen's wife, Thi Men Tran, and their daughter Linda, who 
also lived in the house.

"I am satisfied that total forfeiture of the entirety of this asset 
built up by the family since their arrival in this country as 
refugees would represent a serious blow to Miss Nguyen as well as to 
her parents," the judge decided.

Considering the evidence, he said, only a "relatively minor" portion 
of the value of the house could be attributed to the proceeds of crime.

The Crown prosecutor argued that there had to be ongoing criminal 
activity for the couple to cover their mortgage payments and other 
expenses, given the couple's declared income. But judge found there 
was sufficient equity built up in their previous house that wasn't 
used up in the down payment for this one that could assist in 
covering those expenses.

"The equity was built up over many years, and there is no evidence 
whatsoever to suggest that it was built up with the assistance of 
criminal activity," he said.

Grauer agreed with defence counsel that total forfeiture of the house 
would be disproportionate to the crime, and ordered instead that 
Nguygen must forfeit one-third of his interest in the house to the 
state. Of $315,000 he has in equity, Nguyen must forfeit $105,000.

"In my view if the offender and his family are able to obtain 
financing to pay for that forfeiture amount, they should be able to 
remain in the house," Grauer said.

Grauer found that although Nguyen's crime was "serious" and that his 
grow operation was a "sophisticated commercial operation," the 
marijuana grower wasn't a drug trafficker himself, but rather tended 
the pot and took his orders from someone else.

The judge noted that Nguyen's grow op presented a fire risk to 
neighbours, as well as put them at risk of violence from potential 
"grow-rip" robberies. "Of course it presented a specific risk to Mr. 
Nguyen's family," Grauer added.

Still, he found that the part of the house not occupied by the 
illegal operation was indeed a home.

"On the evidence before me all of the living space in the house was 
in fact used as living space, the only exception being the garage 
where equipment was put in to by-pass the B.C. Hydro power."

The judge noted Nguyen had no prior criminal record or ties to 
organized crime, "and there is no risk of further use of the house 
for the same purpose as far as I can determine on the evidence."

He said he's "unable to accept" Nguyen's wife didn't know about the 
pot, but believes she had nothing to do with it. That said, he added 
that collusion "does not mean failing to blow the whistle on someone."

"She is in fact an immigrant with little English and no real control 
over what was going on. There was in fact little she could reasonably 
have been expected to do about it."

But complicit behavior, he noted, "is a little different."

The Crown argued that mere knowledge and failure to act was 
sufficient for the purposes of outright forfeiture, but Grauer found 
she was complicit only by fact of her marriage.

"The dictionary definition indicates that complicity means 
involvement with others in an unlawful activity. What we have here 
was in my view no more than passive acquiescence."

As for the couple's daughter, Grauer said he is not persuaded she is 
"somehow doomed" if her family moves. She could still stay at her 
school and maintain her friendships," he noted. He added that the 
girl "appears innocent of any complicity or collusion" in respect to 
her dad's grow-op.
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MAP posted-by: Jay Bergstrom