GROW-OP GARDENER WON'T HAVE TO FORFEIT HOME

Size matters in crime, judges say in ruling minor offender can keep
home and upholding two other property seizures

A Vancouver woman who applied her green thumb to a $100,000 marijuana
grow operation should not have to forfeit her home as punishment, the
Supreme Court of Canada ruled yesterday.

In its first run at interpreting a federal forfeiture law, the court
said that the size of a grow-operation means everything. It said that
Judy Ann Craig was a minor offender who needed no greater punishment
than a fine and conditional prison sentence.

A 5-2 court majority specified that forfeiture provisions in the
Criminal Code of Canada should be seen as a sentencing regime that
stands separate from jail time and fines.

They expressed confidence that this will prevent offenders who have
no homes to forfeit from receiving inappropriately long prison terms.

Madam Justice Rosalie Abella, writing on behalf of two of the
majority judges - Mr. Justice Ian Binnie and Madam Justice Marie
Deschamps - said that it would be wrong for well-heeled offenders
effectively to trade off property in return for shorter jail terms.

"In my view, the loss or retention of liberty should not depend on
whether an individual has property available as a sacrificial
alternative," she said.

Ms. Craig, 57 - a renowned gardener whose gardens were once featured
in a glossy magazine - said that her clients included AIDS patients,
tradespeople and professionals.

Her small, cedar-shingled house with a backyard looks over Burrard
Inlet to downtown. Tucked behind rhododendrons and lilacs, the home
has the look of a cottage, with a gravel path that runs to the street
and a vine-laced wooden trellis in the front yard.

A onetime real estate agent, Ms. Craig returned to Canada several
years ago after living abroad and became so depressed that she could not work.

Ms. Craig pleaded guilty to keeping 186 marijuana plants in her
Vancouver home. By the time she was sentenced, the Canada Revenue
Agency had assessed her $250,000 for unpaid taxes relating to
marijuana earnings stretching back to 1998.

Her trial judge decided against ordering the forfeiture of her
$500,000 home because it did not constitute proceeds of crime. He
instead imposed a $100,000 fine and a 12-month conditional prison sentence.

The B.C. Court of Appeal upheld the conditional sentence and dropped
the fine, but ordered the forfeiture of Ms. Craig's home.

In partly dissenting reasons, Mr. Justice Morris Fish and Mr. Justice
Louis LeBel said that "punitive forfeiture is a relevant
consideration in determining the appropriate sentence, since it is
the global punishment that must fit the crime."

Ms. Craig's lawyer, Howard Rubin, said the court's consideration of
the size of the operation in its decision was an important distinction.

"Not every grow operation is going to play a significant role in the
distribution of drugs," Mr. Rubin said. "This is a woman who had
refused to get involved with the Hells Angels and chose to sell to
friends and people who had AIDS."

Ms. Craig had no criminal record and "is not someone who is a cog in
a criminal system," he added.

In a companion case yesterday, the court upheld a forfeiture order
against Kien Tam Nguyen and Nga Thuy Nguyen Nguyen in connection with
a grow operation at a three-level residence in Surrey, B.C., of which
the couple's 18-year-old daughter was the sole occupant.

Police described it as a "moderately sized, but sophisticated, grow
operation" with 96 plants. The front door of the home had a metal
bracket and a barricade, and lighting, irrigation and ventilation
systems had been installed in the basement.

Judge Abella conceded that the operation was similar in some ways to
that of Ms. Craig. However, she said that the degree of concealment
in the Nguyen operation and the fact that the couple lived elsewhere
"suggests that the property's main function was as the site of a grow
operation."

In a third case - R v Yves Ouellette - the court upheld the
forfeiture of a Laval, Que., man's home that had been converted to a
grow operation containing 129 marijuana plants.

"The grow operation occupied the basement of his home," Judge Abella
said. "The area had specialized lighting and ventilation systems.
Miscellaneous related items were found in other parts of his home. In
particular, a gun was found on the top floor. The building was
protected by a makeshift surveillance system."

The Quebec Court of Appeal reduced the forfeiture order to the value
of half the home. Judge Abella upheld the adjustment yesterday,
saying that the appeal judges had properly weighed the evidence in
arriving at this conclusion.