HOUSE FORFEITURES A LOTTERY IN ABSENCE OF CLEAR GUIDELINES

The B.C. Court of Appeal, in three notable cases, two of which were
argued before the Supreme Court of Canada last week, has ordered or
upheld forfeitures of property worth $100,000, $150,000 and $341,000,
all of which were used in grow-ops.

Nothing mentioned by the court distinguished the "nature and gravity
of the offence" or "the circumstances of the offender" in any of the
cases, those criteria being what our drug law requires be taken into
account when considering whether forfeiture would be
"disproportionate."

The fallout of that failure to provide guidance to trial courts was
starkly illustrated in R. v. Sundstrom, a decision of provincial court
Judge Carol Baird Ellan in Sechelt last July. It shows how a good
judge, one who is known to be intelligent and knowledgeable, can be
forced to rely on rhetorical gymnastics in the absence of sound
guiding principles.

Sundstrom's grow-op was confined to two underground bunkers on his
property. The number of plants found is irrelevant: as with the three
other cases, the actual number was not a factor in the discussion of
forfeiture.

The property was valued at $600,000, he owned it outright and there
was nothing to suggest that it had been paid for through proceeds from
the grow-op (he'd owned it since the mid-'70s). Baird Ellan ordered it
to be forfeited. Why is never clear.

She says that this "facility . . . was much more elaborate than the
garden variety cultivation" (the pun may or may not have been intended).

It turns out that the elaborateness was in its "careful" concealment
in bunkers. She said that the crown had established, "as an aggravated
fact, that both . . . the bunkers were designed . . . mainly for the
purpose of growing marijuana."

Later she found "as aggravated facts that the defendant operated the
cultivation mainly for profit, and derived a substantial income" from
it.

In other words, the aggravating features of the offence were that (a)
it was committed and, (b) it was committed in secret.

She found the whole operation to be "highly elaborate, covert,
extensive and sophisticated."

Compared to what? In the three cases discussed last time (A Matter of
Housekeeping, North Shore News Nov. 5), Judy Craig turned almost her
entire house over to cultivation; the other accused gave over large
basement areas to growing their crops. "Highly" elaborate is as
unhelpful as "carefully" concealed. All commercial grow-ops are
elaborate, covert and, if judges continue to insist on using that
non-descriptor, "sophisticated." How much more or less "extensive"
Sundstrom's was is never explained.

Baird Ellan says that she ". . . (places) this offence in the moderate
to serious range in terms of its nature" without ever elaborating. She
later emphasizes that the operation was "more covert and elaborate . .
. than most cultivations." She never says why. There are apparently
some grow-ops that have been more covert and elaborate, but Baird
Ellan makes no attempt to discuss them and the extent of the
forfeitures there, if any.

After observing that forfeiture of this property would have a great
"emotional impact" on Sundstrom, she says, "however, that would appear
to be the inevitable result" of Sundstrom's decision to get involved
in growing marijuana.

"Inevitable" is interesting usage, and probably the most telling
single word in the judgment. It demonstrates the fundamental principle
- -- a word not at all apt in the context -- never articulated but
underlying the Court of Appeal decisions: in all of these cases, the
accused can kiss his equity in the property goodbye, full stop.
However much that is, however little (or no) different his case may be
from others who have suffered a much lighter penalty, that's the
"inevitable" result.

And in the most striking section of the judgment, Baird Ellan first
concedes that a plain reading of the law allows for forfeiture of only
part of the property. But she then says that, since the B.C. Court of
Appeal didn't mention partial forfeiture at all in their judgments;
and, since another provincial court judge has said partial forfeiture
isn't available; and, since the only appellate court decision on the
point (which approved of partial forfeiture) is from Quebec and is
therefore not binding on her she is, therefore, "bound, based on the
B.C. authorities, not to consider a partial forfeiture."

No judge can be bound by an appellate court's silence on an issue;
and, of course, another provincial court judgment is not binding
either. She was clearly not "bound" by anything to order Sundstrom to
cough up $600,000.

Inexplicably, after that torturous analysis she adds, "Had there been
authority to do so, I would have considered [partial forfeiture] in
this case . . . the value of the equity in this property would appear
to be higher than that in any other reported case."

It wouldn't just appear to be, it manifestly is. When dealing with
matters as up in the air as these forfeitures (and such a huge amount
is at stake) a judge has enormous leeway, within the law, to craft a
judgment that suits her view of what would or would not be
"disproportionate."

The lack of direction from the Court of Appeal contributed to Baird
Ellan's judgment. But she can't avoid leaving the impression that she
personally considered this enormous penalty (on top of a 15-month
conditional sentence) to be justified.

Maybe it is. But the accused deserves to be told very specifically why
he's paying almost twice the amount forfeited by Judy Ann Craig and up
to six times the equity in other cases.

The growing of marijuana will continue as long as demand for pot
persists. And, as it has adapted throughout the past 30 years to
changing circumstances in the market and in the courts, you can bet
all of the equity in your home that the lesson of these forfeitures
will be absorbed -- and fast. Look for grow operators to mortgage
their properties to the hilt and keep their equity as non-existent as
possible.

Meanwhile, the Supreme Court of Canada has a big job ahead providing
the guidance that neither the legislators nor the courts have thus far
come up with.