A MATTER OF HOUSEKEEPING

If you can spare a moment away from the reading of the entrails, the
analyses and the punditry after yesterday's momentous political event,
this is about courts and sentencing -- again.

I know, I know, but this is a bit different.

Next week the Supreme Court of Canada will consider three cases that
deal with the forfeiture of homes that have been used in the
commission of a drug offence, to wit (that's the way lawyers talk), a
grow-op. Two of those cases are from British Columbia.

The many issues before the court are complex. It is being asked to
clean up legislation that was inserted into the Controlled Drugs and
Substances Act (CDSA) in 2001 and which is about as messy as a law can
be. A small example of that can be found in the section that allows
for forfeiture of "the substance" when the context clearly shows that
the reference should be to "the property". Typos are not a good idea
in criminal legislation.

But more interesting is the proliferation of forfeiture applications
over the past three years and the way the courts have chosen to deal
with them. The real problem there is one of fairness and
proportionality in punishment.

Over the past 150 years Anglo-American law has established a scheme of
punishment on a sliding scale of seriousness. A shoplifter doesn't
face the same range of sentences as a bank robber; assault, assault
causing bodily harm and aggravated assault all involve application of
force to another person, but they call for significantly different
sentences based on the force applied and the damage done. And in every
case, the overarching aim is to "denounce unlawful conduct." To state
the obvious, not all crimes call for the same degree of
denunciation.

Since denunciation is the primary consideration (probably the only,
since no one is going to be deterred from participating in one of the
province's most lucrative markets) when sentencing someone for
producing marijuana, it is important to ask how a grow-op rates on the
heinousness scale. The benign nature of cannabis, particularly
compared to alcohol and tobacco, the growing mainstream acceptance of
it as drug of choice and, most important, the absence of any victims,
(remember that this legislation was passed by the same majority
Liberal government that was ready to present a bill decriminalizing
possession of marijuana), have courts tying themselves up in knots
trying to find a rationale for a fit sentence and, in particular, for
forfeiture of property. The result has been the absence of any
consistency, either among grow-operators or with reference to other
crimes.

These cases do not involve what is loosely called "organized crime."
They are confined to ordinary individuals who decided that growing
cannabis was a way to make huge bucks, and fast. That they were wrong
to do so goes without saying: they committed a crime and must face a
penalty. What that should be and how to justify it has become as
cloudy as the air in an Amsterdam cafe.

The CDSA says that the court must order -- it has no choice in the
matter -- the forfeiture of real property if a drug offence was
committed "in relation to" that residence, but only if the "impact" of
the forfeiture would not be "disproportionate to the nature and
gravity of the offence, the circumstances surrounding the commission
of the offence and the criminal record of the person charged. . . ."

The three cases of interest here show how the Court of Appeal has
chosen to apply that provision and it isn't a pretty picture.

Of the two that are before the Supreme Court of Canada, Judy Ann
Craig's 12-month conditional sentence of imprisonment imposed at trial
was left undisturbed. But she was ordered to forfeit her house, used
for the grow-op, in which her equity was $341,000. In addition, she
lost $25,552 in cash seized at the time of her arrest. Yes, the cash
was from the sale of her crop; and yes her substantial interest in the
house was attained by paying down her mortgage over the years with
money earned from the grow-op. So maybe in her case, a $341,000 fine
was appropriate. But where does it fit in relation to other
grow-operations or, for that matter, other crimes?

Well, Kien Tam Nguyen and his wife Nga Thuy Nguyen were ordered at
trial to forfeit their $150,000 equity in the house used for the
grow-op, on top of an 18-month conditional sentence of imprisonment.
That was upheld by the Court of Appeal.

And in another B.C. case (not before the SCC), Khai Thoi Huynh and his
wife, Muoi Suu Ta were sentenced at trial to a four-month conditional
sentence of imprisonment and the house, in which they had an equity of
$100,000, was ordered forfeited. That was upheld.

All were involved in what were described accurately as commercial
operations, marginally different in size, scope and "sophistication."
Huynh and Ta had the largest and stood to earn the most return out of
the three. Craig and the Nguyens operated on a more modest, but still
substantial, level (Craig had 186 plants, the Nguyens 96 -- a newish
operation with a lot of potential -- and Huiynh and Ta had 678). None
had any criminal record.

The judgments offer no attempt to rationalize the wide variation in
those financial penalties. It could be argued that the greater size of
Huynh and Ta's operation warranted more emphasis, yet they were
ordered to suffer the least loss. Indeed, the number of plants is
always mentioned, but never as a factor in forfeiture. The nature and
gravity of the offence was essentially the same for all three, as were
the circumstances surrounding the commission of the offence. None of
the parties had a criminal record. Why such disparate results?

A recent local case suggests the answer: What is being ordered
forfeited is what is available, period. Any serious consideration of
whether it might be "disproportionate" is non-existent. More on that
case next time.