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Canada: Supreme Court Rules on Property Forfeiture in Drug Cases

(June 9, 2009) In recent years, both the United States and Canadian governments have expressed concerns that Canada's laws prohibiting trafficking in marijuana are not being very determinedly prosecuted by Crown attorneys or very vigorously enforced by Canada's judges. (Memorandum for the Secretary of State: Presidential Determination on Major Drug Transit or Major Illicit Producing Countries for Fiscal Year 2008, PUBLIC PAPERS OF THE PRESIDENTS, No. 2007-33 (Sept. 14, 2007), LEXIS/NEXIS online subscription database, News & Business Library, All News File.) Unlike Mexico, Canada has not been labeled a major drug-producing country by the United States, but the Deputy Prime Minister in the former Liberal Government stated four years ago that judges needed to act more forcefully in handling drug trafficking cases. (Sue Bailey & Sandra Cordon, Judges Must Hand Down Firm Sentences for Grow Ops, Says McLellan, CANADIAN PRESS NEWSWIRE, Mar 4, 2005, LEXIS/NEXIS online subscription database, News & Business Library, All News File).

The current government has introduced a bill to increase existing penalties and create mandatory sentences in aggravated cases (Bill C-15, 40th Parl. 2d Sess.), but Canada's Controlled Drugs and Substances Act already provides that persons who traffic in more than three kilograms of marijuana are liable to a maximum sentence of imprisonment for life and that persons who produce marijuana are liable to a maximum sentence of seven years' imprisonment. (1996 S.C. c. 19, ss. 5-7, as amended, available at
.) Nevertheless, a recent trilogy of cases arising in British Columbia, Quebec, and Ontario that were considered by the Supreme Court of Canada suggests that persons who operate “grow ops” (short for grow operations, i.e., illegal drug cultivation operations) typically are not imprisoned for any length of time, at least for first offenses.

In R.v. Craig, R. v. Nguyen, and R. v. Oulette, the Supreme Court considered the provisions of the Controlled Drugs and Substances Act that allow the courts to order property used for drug trafficking or production to be forfeited. In all of these cases, evidence indicated that the convicted persons had operated “grow ops.” Yet, in all three cases, the accused had been allowed to plead guilty to lesser charges and had been given conditional sentences of 12 or 18 months, allowing them to avoid imprisonment during good behavior. (2009 SCC 23, available at; 2009 SCC 25, available at; and 2009 SCC 24, available at, respectively.)

Bill C-15 cited above is intended to send a clear signal to Crown attorneys and judges that the government wants to see persons trafficking in marijuana more vigorously prosecuted. It would even create mandatory minimum sentences in certain types of aggravated cases. Nevertheless, the bill does not directly address the problem of Crown attorneys and judges allowing accused persons who have operated “grow ops” to plead guilty to lesser charges as a result of a plea bargain, as was done in some cases recently considered by the Supreme Court.