Jim Finnel
Fallen Cannabis Warrior & Ex News Moderator
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.
News Hawk: User: 420 MAGAZINE ® - Medical Marijuana Publication & Social Networking
Source: North Shore News (CN BC)
Copyright: 2009 North Shore News
Contact: editor@nsnews.com
Website: canada.com
Author: Jerry Paradis
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.
News Hawk: User: 420 MAGAZINE ® - Medical Marijuana Publication & Social Networking
Source: North Shore News (CN BC)
Copyright: 2009 North Shore News
Contact: editor@nsnews.com
Website: canada.com
Author: Jerry Paradis
