Ontario Court Of Appeal: The Farm Had Originally Been Forfeited To The Crown

POT-GROWING ELGIN FARMER ALLOWED TO KEEP PROPERTY

An Elgin County farmer who served a 12-month sentence for growing
marijuana has his farm back after Ontario's highest court overturned
an order the land be given to the Crown.

The Ontario Court of Appeal said Albert Van Bemmel, 64, was a low
level participant in a scheme in which he grew pot on a small plot of
his West Elgin farm.

"There was no use of the property in a manner that detrimentally
affected the legitimate use and the property posed no risk to the
safety and security of the community," the court said in a decision
released yesterday.

Van Bemmel pleaded guilty two years ago to unlawful production and
possession of marijuana and to three gun offences.

Justice Gregory Pockeles sentenced him to 12 months in jail and
ordered the farm property be forfeited to the Crown.

The retired factory worker has a 50-hectare farm in West Elgin he
bought in 1989 and an adjacent vacant farm. He pastured cattle and
planted crops.

Four years after he retired from 32 years of factory work, he was
convinced to grow pot to pay off his property taxes.

On Sept. 26, 2006, OPP searched the Furnival Rd. farm and seized 591
marijuana plants - 465 grown outdoors and 126 grown in the
outbuildings and the home. Less than a half-hectare of land was used
for the grow operation and a small patch of corn was planted in front
of the plants to hide them from view.

Police also seized nearly five kilograms of processed marijuana,
scales, packing material, a shotgun and shells and a cross bow and ammunition.

Van Bemmel admitted to smoking marijuana to help his depression. He
said he used the guns to scare off raccoons. Police also found a
seedling and cloning area in the basement of the home reached by
crawling through a cupboard in the kitchen.

Value of the marijuana was put at $369,000 - a street value of more
than $1 million.

Van Bemmel had no criminal record. He pleaded guilty to the gun
charges of careless storage, unlicensed possession and unregistered
possession of a firearm. Along with a $400 fine, he was sentenced to
seven days in jail. The weapons were forfeited.

Van Bemmel told the court he made a mistake and was "stupid." He was
behind in his property taxes by about $5,000 and was convinced by
unnamed people to grow marijuana for them, he said. He said he would
be paid based on weight of the crop and thought he could make between
$10,000 and $30,000.

The appeal court said it was not clear from evidence if Van Bemmel
owned one large piece of property consisting of two farms bought at
separate times and measuring 89 hectares, or two separate parcels of land.

And it wasn't clear from the Crown's forfeiture order if Van Bemmel
was to give up all his property or only the farm that included the house.

The appeals court said Pockele erred when he declared that forfeiture
orders "must be made in all but the most exceptional cases, such as
those where the offences are minor or technical in nature."

The court referred to a recent Supreme Court of Canada decision that
determined a forfeiture order should be based on the nature of the
crime, circumstances surrounding it and if the accused has a criminal record.

It must be determined if the order "would be disproportionate," the
appeal court said, and in the Van Bemmel case, it was.