Pubdate: Sat, 30 May 2009
Source: Edmonton Sun (CN AB)
Copyright: 2009 Canoe Limited Partnership.
Contact:  http://www.edmontonsun.com
Details: http://www.mapinc.org/media/135
Author: Sue Bailey, Canadian Press
Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture)
Bookmark: http://www.mapinc.org/mjcn.htm (Marijuana - Canada)

POT GROWER GETS TO KEEP NORTH VANCOUVER HOUSe

Property Seizure Guidelines Clarified by Justices

OTTAWA -- A top-court judgment allowing a convicted marijuana seller
to keep her house clarifies how judges should handle property seizures
when it comes to home-based grow-ops.

The court ruled 5-2 yesterday that Judy Ann Craig, convicted of
growing more than $100,000 worth of pot in her North Vancouver home,
doesn't have to give up her house as part of her sentence.

It's the first time the high court has tested federal drug laws that
allow governments to seize crime-related property.

In two related cases, the court ruled 4-3 to uphold a partial
forfeiture order against a Quebec man and unanimously upheld an order
that a Surrey, B.C., couple surrender a house they bought solely to
grow pot.

The judgments set out that judges, depending on the specifics of each
case, can issue escalating property penalties.

"Full forfeiture may be anticipated, for example, in the case of a
fortified property purchased for criminal purposes and solely
dedicated to the commercial production and distribution of illegal
substances, perhaps with a connection to organized crime," Justice
Rosalie Abella wrote for the court majority.

"On the other hand, one might decline to order forfeiture in the case
of an individual with no criminal record and no connection to
organized crime who grows very little marijuana in her home."

The judgments direct lower courts to consider the loss of
"offence-related property" separately from jail time or fines at sentencing.

This is in part to ensure "that those without property should not be
treated more harshly than those who have it," Abella wrote.

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

The dissenting three justices disagreed with the notion that partial
forfeiture of crime-related property should be an option at
sentencing. They say that portion of the federal Controlled Drugs and
Substances Act is all-or-nothing.

"Forfeiture of offence-related property ... is generally mandatory and
total," wrote Chief Justice Beverley McLachlin. "The intention of
Parliament was to deprive offenders and other complicit individuals of
the tools of the trade."

Prosecutors say seizure laws are a powerful weapon in the battle
against home-based grow-ops.

Lower courts had issued conflicting rulings on when it's appropriate
to seize such crime-related property.

Craig, 57, was considered a relatively small-time operator with no
ties to gangs who started growing pot in 1998 in part for friends with
AIDS. She had no criminal record before being busted in 2003, and had
remained in her home pending yesterday's ruling.

The judgment overturns a B.C. Court of Appeal order that she hand over
the small house renowned for its gardens -- inside and out. Covered
with flowering clematis vines, the home was once featured in Gardens
West magazine.

The appeal court had thrown out a $115,000 fine in exchange for the
forfeiture of the house valued at about $500,000. Craig won't have to
pay the fine either, thanks to the Supreme Court judgment.

She was originally given a one-year conditional sentence -- which she
served -- along with a fine of $100,000 and a victim surcharge of $15,000.

Craig had to surrender equipment used to grow 186 pot plants seized
from her home. 
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MAP posted-by: Richard Lake