Pot charges dropped, but province keeps cash - Lawyer says money seizure law could fail constitutional challenge
By: Shannon Kari, National Post (Canada), 07-18-05


The Ontario Ministry of the Attorney-General is refusing to return $435 seized from a 49-year-old woman during a marijuana grow-op raid, even though the charges against her were eventually dropped.

The province says it can keep the money under its Remedies for Organized Crime and Other Unlawful Activities Act. The law, which was enacted in December, 2001, by the former Conservative government, has been criticized by some legal experts who have said it may be unconstitutional.

Phuong Thi Nguyen, who has no criminal record and is a Canadian citizen, was charged in June, 2004, with a marijuana-production offence after police seized nearly 300 plants at a home north of Toronto.

None of the tenants was present and Ms. Nguyen, who had keys to the residence, was the only person charged. Her lawyer, Peter Zaduk, said federal prosecutors withdrew the charge this past spring after they accepted his client's explanation that she was at the home to collect rent on behalf of the landlady.

The provincial Attorney-General's Civil Remedies for Illicit Activities branch maintains it has grounds for a forfeiture order of the money.

"The fact that your client was not convicted as charged is not conclusive with respect to the application for forfeiture," said government lawyer Anne Kendall, in a letter to Mr. Zaduk.

There is a lower standard of proof under the provincial law, and Ms. Kendall noted it was suspicious Ms. Nguyen was in possession of $435 even though she told police she was unemployed.

Ms. Kendall, who did not return calls seeking comment, offered to draft the required legal documents if Ms. Nguyen agreed to forfeit the money, "to save your client from incurring further legal expenses."

Mr. Zaduk said it is not "economically viable" for his client to go to court to try to recover her money, but he stressed there was no evidence it was connected to illegal activity. The province will ultimately "have to go back to court at taxpayers' expense," to obtain a forfeiture order, which Mr. Zaduk suggested was not a good use of public resources.

The Toronto lawyer said there is a "real question" whether the provincial legislation would withstand a constitutional challenge.

"What is alarming is it is basically irrelevant if you have been acquitted," Mr. Zaduk said.

A legal text published last year by four federal Justice Department prosecutors also argued the Ontario legislation is "potentially invalid" and outside the constitutional powers of the province.

© 2005 H.U.M.A.N.: Hemp Users Medical Access Network - Toronto Medical Marijuana