SUPREME COURT FAILS GROW-OP FORFEIT TEST

North Vancouver's Judy Ann Craig finally got the answer she was
looking for: She will not have to forfeit her home because she
operated a grow-op out of it.

On the other hand, Yves Ouellette from Laval, Quebec will have to
forfeit half of his grow-op property; and a couple in Surrey named
Nguyen will have to forfeit all of theirs.

In arriving at those conclusions a couple of weeks ago, the Supreme
Court of Canada unfortunately failed to explain why.

They did not suggest, let alone settle, clear criteria for the
forfeiture of real estate that has been related to a drug offence.
That isn't just a matter of nuance. Those penalties amount to fines
in the hundreds of thousands of dollars, on top of any other sentence
the court must impose. Trial and provincial appellate judges were
eagerly awaiting some guidance. They are no better equipped now than
they ever were to decide, on any principled grounds, why one grow
operator should lose his property and another should not.

The Controlled Drugs and Substances Act asks courts to take into
consideration "the nature and gravity of the offence, the
circumstances surrounding the commission of the offence, and the
criminal record of the (offender)" when deciding if forfeiture of the
property would be "disproportionate" (read "unfair").

None of the offenders in the three cases had a relevant criminal record.

In her lead judgement, Madam Justice Abella takes a rather vague stab
at setting out workable criteria for those factors. She says that the
nature and gravity of the offence "could include the character and
quantity of the substance involved, the level of sophistication of
the crime and the extent to which the commercial production or
distribution of drugs was involved." Which, rather than answering
anything, leads to more questions.

If it only "could," what other criteria could be relied upon at the
whim of the trial judge? What "character"? These are all marijuana
grow-ops. And, surprisingly, the number of plants (the size of the
operation) appears to be irrelevant; but, if it weren't, how much
would be enough to tip the scales (pun intended)?

What is meant by "sophistication"? Without exception, any grow-op
worth being busted is designed to efficiently grow marijuana for
distribution. Courts have never labelled an operation bush-league.
They are what they are, end of story. The use of that word in a
Supreme Court of Canada judgement without elaboration is not only
lazy, it validates what judges have been getting away with for years:
imposing sentences based on the casual use of a non-descriptor. And
what amounts to "commercial" production or distribution?

When she turns to the circumstances surrounding the offence, it gets
even more detailed and, therefore, worse. She says they might
include: the offender's role in the commission of the offence; "the
nature of the property and the manner in which it was used"; the
risks to the "security and safety of the community"; whether use of
the property as a grow-op "detrimentally affected its legitimate use
and enjoyment"; and whether it "was fortified or otherwise adapted to
. . . the grow operation."

Once again, if they only "might," what other factors can be brought
into the mix by a whimsical judge? The nature of the property and the
manner in which it was used (or adapted, or "fortified") are the
essentials of the offence: the property owner must be involved in
using the premises he has adapted for a grow-op. It is also empty
rhetoric to speak of efforts made to discourage snooping. To set all
of those as possible aggravating factors is akin to saying that the
bank robber deserves a heavier sentence because he robbed the bank
and tried to get away.

It is a rare case, if indeed there have ever been any, where
community risks ever come up, except in the ritualistic evidence of
police experts who speak in melodramatic generalizations about the
dangers of grow-ops.

Judge Abella then displays an optimistic streak when she says, "Each
situation will be subject to a judge's appreciation of how the . . .
factors should be applied in the particular circumstances, which, as
previously stated, may result in no, partial or full forfeiture."

Let's see how the Supreme Court managed to apply those factors.

Judy Ann Craig's grow-op occupied the basement level and portions of
the main floor of her home. There were three growing rooms and one
drying room, as well as industrial lighting, ventilation and
irrigation systems. The court therefore concludes that her home was
adapted "to some degree" to growing marijuana. Police seized 186
plants, pre-packaged marijuana, cash and "score sheets" (her business ledger).

Without setting those facts against any scale, without elaborating on
what was aggravating or mitigating, the Court rules that, ". . . the
appropriate disposition is simply to set aside the Court of Appeal's
forfeiture order."

Contrast those facts to the Nguyen case. The couple bought a house
and set up a grow-op. Their 18-year-old daughter lived there and the
rest of the family resided elsewhere. The police found what they
called "a moderately-sized but sophisticated grow operation" of 96
plants and the usual assortment of lighting, irrigation and
ventilation in the basement. The order of forfeiture was allowed to
stand. The reasons are seriously obscure.

Without explaining why, the Court deems it important that "the
Nguyens had gone to significant lengths to conceal the nature of the
operation inside the property," an inventive idea for harsher
sentences: the offender actually tried to get away with it. They also
adopt the trial judge's concerns about the "sophistication and
commercial nature" of the operation, as if those words actually mean
something in the context.

Worst of all is the emphasis they place on the fact that Nguyen's
bought the house for the purpose of growing marijuana. Madam Justice
Abella comments, "This means that the property was tainted from the
outset by a criminal purpose."

Why is a house you're living in any less "tainted" by your criminal
grow-op? Yet that ephemeral "taint," like a ghost haunting the
premises, was the clincher -- it cost the Nguyens their house and
allowed Craig to keep hers: she only adapted her house "to some
degree" to accommodate her twice-as-large, and just as
"sophisticated," illegal suburban farm.

Ouelette, for his part, was allowed to keep half of his house because
only his basement was used and the operation was not as
"sophisticated" as others.

All in all, there is nothing that distinguishes the gravity of these
offences and the circumstances under which they were committed --
except maybe the much smaller size of the Nguyen operation -- yet
their punishments vary hugely.

The judgment unfortunately perpetuates the vacuum of principle in
which courts operate when dealing with forfeitures. All grow-ops are,
within narrow variations, "sophisticated," "commercial" and
"concealed"; but it would not do to rule that forfeiture is never
disproportionate, that merely committing the offence is enough. So
they reach for anything they can. Sadly, the Supreme Court of Canada
has done the same.