The Supreme Court of Canada made it harder Friday 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 Craig's lawyer, Howard Rubin, who predicted that routine confiscation of "virtually ever house" containing grow-ops will come to an end.
The ruling was one of a trilogy of decisions Friday 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.
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 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."
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 Craig ran "a successful commercial operation that grossed over $100,000 a year."
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 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 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 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 Friday, 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.
The evidence in both cases showed the two owners, unlike Craig, bought their houses for the purpose of starting grow-ops, said Rubin.
Craig, who has continued to live in her home pending the court decision, was "in a state of shock" over the favourable decision, which also abandoned the $115,000 fine imposed at trial, he said.
She declined comment.
News Hawk- Ganjarden 420 MAGAZINE ® - Medical Marijuana Publication & Social Networking
Source: The Gazette
Author: Janice Tibbetts
Contact: The Gazette
Copyright: 2009 Canwest Publishing Inc.
Website: Top Court Overturns Seizure of Grow-Op House
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 Craig's lawyer, Howard Rubin, who predicted that routine confiscation of "virtually ever house" containing grow-ops will come to an end.
The ruling was one of a trilogy of decisions Friday 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.
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 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."
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 Craig ran "a successful commercial operation that grossed over $100,000 a year."
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 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 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 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 Friday, 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.
The evidence in both cases showed the two owners, unlike Craig, bought their houses for the purpose of starting grow-ops, said Rubin.
Craig, who has continued to live in her home pending the court decision, was "in a state of shock" over the favourable decision, which also abandoned the $115,000 fine imposed at trial, he said.
She declined comment.
News Hawk- Ganjarden 420 MAGAZINE ® - Medical Marijuana Publication & Social Networking
Source: The Gazette
Author: Janice Tibbetts
Contact: The Gazette
Copyright: 2009 Canwest Publishing Inc.
Website: Top Court Overturns Seizure of Grow-Op House
