Pubdate: Fri, 12 Dec 2014
Source: Calgary Herald (CN AB)
Copyright: 2014 Postmedia Network
Contact:  http://www.calgaryherald.com/
Details: http://www.mapinc.org/media/66
Author: Jason van Rassel
Page: A10

WOMAN TO KEEP HER SEIZED HOUSE

Top court denies appeal of verdict in grow-op case

The Supreme Court of Canada has refused to hear an appeal of a lower
court decision that returned a home used as a marijuana grow op to its
owner after it was seized by the Crown.

The nation's top court announced the decision to deny leave of appeal
to Alberta Justice and Solicitor General on its website Thursday and
awarded legal costs to Heng Kiet Kouch, whose home was seized under
the province's civil forfeiture legislation.

The Alberta Court of Appeal overturned the order forfeiting Kouch's
home to the Crown earlier this year, ruling prosecutors used
inadmissible evidence to make their case.

"Clearly, this is something (the Supreme Court) thought was properly
resolved by the court of appeal," said Kouch's lawyer, Karen Molle.

Kouch, who is in her late 60s, pleaded guilty to production of
marijuana and received a oneyear conditional sentence in connection
with a marijuana grow op found by police during a raid of her
Applewood home in June 2010.

Alberta's Victim Restitution and Compensation Payment Act gives
prosecutors the authority to ask the court to permanently seize
property that has been bought with proceeds of crime or used in the
commission of crime.

Kouch's guilty plea confirmed the home as an instrument of crime
eligible for forfeiture, but the judge still had discretion to grant
relief.

Previous case law established that a judge can exercise discretion if
the value of the asset being considered for forfeiture was "vastly
greater" than that of the drugs.

In Kouch's case, Justice Carolyn Phillips heard that the street value
of the 128 marijuana plants found in Kouch's home fell between
$100,000 and $160,000.

The estimate came close to Kouch's equity in the home - but Phillips
opted for forfeiture after accepting the prosecution's claim the
marijuana "carried a potentially sizable profit" that greatly
increased its value compared to that of the house. However, the
Alberta Court of Appeal ruled that Phillips erred in admitting that
evidence, because authorities had failed to follow the procedure to
have it admitted as a professional opinion.

The three-judge appeal panel said the "professional opinion" relied
upon by Phillips was a brief, unsworn and unsigned document and it
violated the rules of evidence because it didn't include any statement
of credentials verifying the author as an expert.

When an asset as valuable as someone's home is on the line, details
matter, the three-judge appellate panel wrote in its decision.

"Forfeiture to the state of a citizen's rights in her property,
particularly when it is a dwelling place, calls for scrupulous
adherence to all the applicable procedural and legal requirements,"
the appeal judges wrote.

The costs awarded to the defence are still to be determined, but Molle
questioned the expense and justification for pursuing the forfeiture
the way to the Supreme Court, considering Kouch was already sanctioned
in criminal court. Losing her home, which she shares with her elderly
mother, her daughter and two young grandchildren, would have been
disproportionate to the crime.

The provincial government has seized and restrained more than $25
million in property since the civil forfeiture legislation came into
force in 2008.

Alberta Justice and Solicitor General spokeswoman Michelle Davio said
Thursday that the Supreme Court judgment applies only to the
particulars of the Kouch case and doesn't have any legal implications
for the civil forfeiture program or its operation.
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