SUPREME COURT TO RULE ON PROPERTY SEIZURES

Grow-Op Cases; Judges To Decide If Forfeiture Of Home Is Proportional To Crime

Pressed to explain why he would start a marijuana grow-op in his
family's modest home in the north end of Toronto, 60-year-old Tam
Ngoc Tran finally broke down in court.

The Vietnamese immigrant tried not to cry as he called it a "blind
moment of desperation" in an attempt to provide for his family,
including his three children.

Tran was trained as an electrical engineer and worked as a labourer
since arriving in Canada nearly 20 years ago, eventually becoming a citizen.

Unable to work regularly because of a stroke, he tried to grow
marijuana in his own home.

Tran paid his own hydro bills, was not experienced at growing
marijuana and was losing money on the operation by the time he was
arrested by Toronto police. At a court hearing last month, federal
prosecutor Dave Rowcliffe suggested to Tran that he should have
sought welfare instead of turning to crime.

"What is more shameful: Getting social assistance or growing an
illegal substance that may be sold to children?" asked Mr. Rowcliffe.

The federal prosecutor is seeking the forfeiture of the family's
home, valued at about $300,000, in addition to a short jail sentence,
to "send a message to the Supreme Court," Mr. Rowcliffe said.

The sentencing hearing has been adjourned until January, but next
week the Supreme Court of Canada will hear arguments in four cases
that will not only affect Tran and other defendants, but will also
define the extent of forfeiture powers for federal and provincial governments.

The court must decide whether forfeiture of a residence for people
convicted of marijuana grow-op offences is proportional if there is
no link to organized crime.

In perhaps the most closely watched case, the court will rule on
Ontario legislation that permits the province to seize property even
if no criminal charges are filed. The federal and provincial powers
were designed to combat organized crime, but critics say they are too
often used to crush low-level offenders.

"We do not cut off the hands of shoplifters," said Peter Zaduk, the
lawyer for Tran.

One of the appeals next week is from a B. C. decision that ordered
the forfeiture of the North Vancouver home of Judy Ann Craig.

The 58-year-old woman ran a profitable marijuana operation out of her
1,000-square-foot home and said she sold to people with AIDS, to
professionals and others without any link to criminal groups.

She is also facing a $250,000 tax assessment by the federal
government, based on her marijuana earnings. Her lawyer, Howard
Rubin, noted that the seizure of property for anyone convicted of a
criminal offence was a practice that ended in Britain in the late 1800s.

"There should be some taint, some connection to organized crime," for
a residence to be forfeited, Mr. Rubin said.

In its written arguments filed with the Supreme Court, the federal
Crown stated: "Ms. Craig had a middle class upbringing, was
relatively well off and chose to grow and sell marijuana out of sheer greed."

It is asking for a 12-month jail term in addition to the forfeiture
of her home. To seek a forfeiture order, the federal government must
first obtain a criminal conviction against an individual.

The Ontario Civil Remedies Act, which is facing a constitutional
challenge, requires that a judge determine on the balance of
probabilities that the property was used for unlawful activity. The
unlawful activity can be an alleged violation of any provincial
offence or federal statute. It does not have to be in the Criminal Code.

James F. Diamond, a Toronto lawyer who is part of the constitutional
challenge, said landlords could potentially lose their homes if
tenants are engaging in any kind of unlawful action.

"Everything is fair game for the province to seek forfeiture without
a criminal charge," Mr. Diamond said.

While Ontario was the first to enact forfeiture legislation in 2002,
six other provinces have passed similar laws. The challenge to the
Civil Remedies Act goes back to the division of powers outlined in
the Constitution Act 1867.

The Supreme Court must decide if the legislation infringes on federal
criminal law jurisdiction or if it falls under the provincial
property and civil rights powers. While the federal government has
stated that forfeiture of a residence is punishment, Ontario and its
provincial counterparts are arguing that the Civil Remedies Act is
not punishment. Instead, it is a tool to compensate victims of crime.

Critics of these provincial powers are missing a key point, suggested
Rob Kroeker, director of the civil forfeiture office in B. C. "You
never had the right to title," if property was obtained through the
proceeds of crime, Mr. Kroeker said. "If you rob a bank, you can't
say you have the right to possess the money," he added.

CASES TO WATCH

Four property-related cases being heard before the Supreme Court of
Canada this week: - Robin Chatterjee v. Attorney-General of Ontario

Mr. Chatterjee's vehicle was stopped by police in March, 2003,
because it was missing a licence plate. The police searched the
vehicle and discovered $29,020 in cash and various items which are
commonly used in indoor marijuana grow operations. Mr. Chatterjee was
not charged with any drug-related offence because the police did not
have sufficient grounds to do so. The money was seized under the
Ontario Civil Remedies Act, which was upheld as constitutional by the
Ontario Court of Appeal. The Supreme Court must decide whether the
act is within the powers of the provinces or an attempt to legislate
in the area of criminal law. - Judy Ann Craig v. Her Majesty the Queen

Craig produced marijuana in a 1,000 square-foot residential home she
owned in North Vancouver. Police seized 186 marijuana plants and
$22,275. Following her arrest, the Canada Revenue Agency assessed the
applicant $250,000 for unpaid taxes relating to her marijuana
earnings. Craig was 52 years old at the time of the offence and had
no previous criminal record. The B. C. Court of Appeal ordered the
home to be forfeited and ruled that a 12-month sentence of house
arrest was appropriate. The federal Crown is seeking a 12-month jail
term. Craig is arguing that ordering forfeiture of the home is
disproportionate to her crime. - Her Majesty the Queen v. Yves Ouellette

Ouellette was convicted of producing cannabis. The Crown applied to
the Court of Quebec to have his house forfeited as "offence-related
property." The Court of Quebec ordered that it be forfeited. The
Court of Appeal allowed Ouellette's appeal in part and ordered that
half the house be forfeited. The Supreme Court must decide if partial
forfeiture is permitted under the Criminal Code after a marijuana
production conviction. - Kien Tam Nguyen et al. v. Her Majesty the Queen

Nguyen and others were found guilty of production of marijuana after
96 plants were seized from a residence in Surrey, B. C. The B. C.
Court of Appeal upheld an 18-month conditional sentence and
forfeiture of the residence. The Supreme Court must decide if the
sentence was disproportionate to the offence and whether partial
forfeiture (from the proceeds of selling the residence) would be appropriate.