SUPREME COURT DECISION GOOD FOR GROWERS

THE DRUG TRADE: Ability for courts to take away property makes it to
Supreme Court; Nelson defence lawyer says ruling was a good one.

The RCMP in the West Kootenay have had a tool removed from their war
chest in the battle against marijuana grow ops in the region after a
recent supreme court decision on the seizure of property.

Last summer, area RCMP announced plans to use criminal forfeiture laws
to seize houses used to grow marijuana as a means of deterring people
from participating in the activity.

But a landmark ruling by the country's top court that allowed a
convicted marijuana grower in North Vancouver to keep her home has put
a bit of a kink in those plans.

Judy Ann Craig was convicted in 2003 of growing pot valued at more
than $100,000 in her home, and federal laws allow for confiscation of
assets related to crime, including vehicles and houses.

Along with a 12-month conditional sentence, a $100,000 fine and an
order to pay $250,000 in taxes for her marijuana-related income, Crown
prosecutors also sought the forfeiture of Craig's North Vancouver home
- - worth $460,000.

She fought the charges through various levels of court until the
Supreme Court of Canada brought down judgment in late May that she
could keep her home and dropped the $100,000 fine.

The court said the law could not be imposed globally because courts
must take into consideration the different circumstances of each person.

"They gave some guidance as to when and if you can seize a house,"
said local lawyer Don Skogstad, who deals in many marijuana-related
cases. "It's clearly no longer automatic and it's not going to happen
in every case."

Skogstad said courts dealing with criminal forfeiture cases such as
Craig's must now take into (account) several factors before seizing an
individual's property.

"It's between people who are of less means than others," he said. "It
can be very unfair. A wealthy person can just say, 'take my house'
and maybe have a lower criminal penalty like less jail or no jail.

"The poor person won't have a house at all, so he has to do the time.
They were concerned about that."

Skogstad also said courts must consider the individual's level of
involvement in the marijuana business as a factor in decisions.

"You're going to get the penalty you deserve no matter what," he
explained. "It depends mostly on complicity, history; how involved you
are and if you have a record."

Criminal forfeiture laws have been around for decades, but RCMP in the
region have only been using it as a tool for less than a year now.

Skogstad says the recent decision makes that tool much less
effective.

"This case sets them back," he said. "For us, as defense, this is a
victory. It wasn't clear the court was going to exercise that kind of
discretion."

Skogstad noted it is still possible for the court to seize a person's
house under the law, but it's just more difficult.

He added that the Crown can also seize property in civil courts under
provincial law.

"If you're brought into the civil procedure, it's unaffected by the
recent decision," Skogstad said. "Between the civil and the still
possibility for criminal forfeiture it's still possible."