CN - Top court quashes forfeiture order

Top court quashes forfeiture order on ex-pot grower's home

By Janice Tibbetts, Canwest News ServiceMay 29, 2009 8:24 AM


OTTAWA â?? The Supreme Court of Canada spared a North Vancouver woman from losing her home Friday in a ruling that found the B.C. Court of Appeal was wrong to order that the two-storey dwelling be seized because it was used as a marijuana grow operation.

"The appeal should be allowed and the forfeiture order set aside," wrote Justice Rosalie Abella.

The ruling was one of three decisions Friday involving three Canadians â?? two from B.C. and one from Quebec â?? who challenged the seizure of homes in which they grew pot, a penalty that is increasingly levied following changes seven years ago to federal drug laws to mandate confiscation of "offence-related property."

Judy Ann Craig, a seasoned gardener who began growing marijuana to help pull her out of an emotional slump after her divorce, successfully convinced the court that being forced to forfeit her North Vancouver home is extreme punishment for her crime.

Craig, who is in her late 50s, argued running a small-scale grow-op, mainly in her basement, should not warrant the same harsh penalties imposed for large, sophisticated businesses controlled by organized crime.

Craig pleaded guilty in 2003 after police seized 186 marijuana plants.

She received a conditional sentence and a $115,000 fine, but since she had no other assets and owed $250,000 in unpaid taxes from her ill-gotten earnings, the court ordered the forfeiture of her small two-storey home. It was valued at $460,000 at the time of her 2005 sentencing.

The B.C. Court of Appeal, in ruling against Craig, said she was the operator of "a successful commercial operation that grossed over $100,000 a year."

Craig testified in court she started growing marijuana in 1998 because she was depressed from her divorce several years earlier and "I needed a challenge to kick-start me out of this state."

She said she used her earnings to beautify her clematis-enveloped garden that was featured in a 2002 edition of Gardens West magazine.

The Crown had asked the Supreme Court to reject Craig's assertion that forfeiture of her house is too harsh.

The Crown noted that Craig ran a commercial operation in which she employed "hired hands" and sold marijuana in ounce, half-pound and one-pound quantities, generating hundreds of thousands of dollars in illegal revenue over five years, said the brief.

She also substantially altered her property for her illicit business, modifying the electrical system and installing a hidden entrance.

The Crown said Parliament amended the Controlled Drugs and Substances Act in 2002 to mandate seizure to reflect society's "abhorrence" for the social problems associated with the drug trade. The law allows discretion for a judge if he or she believes the punishment does not fit the crime.

In two other decisions Friday, the court dismissed appeals involving Kien Tam Nguyen, who was forced to forfeit his Surrey, B.C., house after he was found guilty of running a marijuana grow-op, and Yves Ouellette, whom the Quebec Court of Appeal ordered to partially surrender his Laval, Que., home.
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