A convicted marijuana grower won’t have to hand over her house to the government as crime-related property, the Supreme Court of Canada has ruled.
The court ruled 5-2 on Friday that Judy Ann Craig, convicted of growing pot worth more than $100,000 in her Vancouver home, doesn’t have to give up her house as part of her penalty.
It’s the first time the high court has tested federal drug laws that allow confiscation of assets related to crime.
In two related cases, the court ruled 4-3 to uphold a partial forfeiture order against a Quebec man, and it unanimously upheld an order that a Surrey, B.C., couple surrender the house they bought solely to grow pot.
The judgments clarify that judges, depending on the specifics of each case, can mete out escalating property penalties to home-based pot growers.
“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.”
Craig, 57, was considered a relatively small-time operator with no ties to gangs who began growing pot in 1998 for friends with AIDS. She had no previous criminal record and had remained in her North Vancouver home pending Friday’s ruling.
It overturns a B.C. Court of Appeal order that she hand over the small house, covered with flowering clematis vines 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 at the time. Craig won’t have to pay the fine either, thanks to the Supreme Court judgment.
In the case of Yves Ouellette, the high court ruled 4-3 to uphold an order that he forfeit half the value of his Laval, Que., home where he ran a larger grow-op. Ouellette lives in the home with his teenaged son. He had significantly modified the house with a security system, lighting and other changes to nurture his basement pot crop.
And in the case of Kien Tam Nguyen, the court ruled 7-0 to uphold the outright forfeiture of a house in Surrey, B.C., that was bought specifically to grow marijuana.
Court heard the family was not tied to organized crime. But Nguyen and his wife had bought the house and equipped it with sophisticated ventilation and irrigation systems.
Prosecutors say the laws are a powerful deterrent against home-based grow-ops.
Lower courts had issued conflicting rulings on when it’s appropriate to order the seizure of grow-op houses as offence-related property.
Craig, a renowned gardener in North Vancouver, was originally given a one-year conditional sentence along with a fine of $100,000 and a victim surcharge of $15,000.
She had to surrender equipment used to grow 186 pot plants seized from her home. But the sentencing judge refused the prosecutor’s request that Craig’s house be turned over – in part because Craig had also been hit with a $250,000 tab for unpaid taxes related to her pot profits.
Craig’s lawyer, Howard Rubin, argued the penalty is too harsh for a woman approaching retirement age with no previous record. He said the forfeiture law should be used to crack down on organized traffickers.
Rubin also said the law treats offenders differently depending on whether they own the structure that housed their plants.
He said his client should not be more harshly penalized with the loss of her home as compared to similar offenders who happened to grow plants in a rented space.
– Article from The Canadian Press.