by BRIAN LOCKHART
The lure of a high priced but illegal cash crop turned sour for a farmer seeking to supplement a meager income from his 122-acre property in southwestern Ontario.
Albert Van Bemmel, who turned less than an acre of his West Elgin farm into a marijuana grow operation, nearly lost everything when an Ontario Court of Justice judge imposed a forfeiture order against his property.
But in March the Ontario Court of Appeal overturned the order.
“In this case they (the judges) felt it was disproportionate to the offence,” says Jeanine LeRoy, a London, Ontario based criminal and appeal lawyer who represented Van Bemmel at the appeal court.
According to the Appeal Court judges’ written decision, Ontario Provincial Police laid charges related to the cultivation and possession of marijuana against Van Bemmel after executing a search warrant at his property in 2006. Police also charged him with several firearms offences.
In 2006, Van Bemmel pleaded guilty to the firearms charges and received seven days in custody and a $400 fine. In 2008, the marijuana cultivation and possession charges netted him a 12-month prison sentence along with the order to give up his farm to authorities.
The decision indicates Van Bemmel decided to grow marijuana because he owed about $5,000 in property taxes. His income included a yearly pension of $25,000 and after-tax income from farming of approximately $500 per year.
He expected to make between $10,000 and $30,000 dollars from the illegal crop, which included 591 plants and about ten and a half pounds of processed marijuana.
At Van Bemmel’s 2008 sentencing hearing a police officer testified that the crop was hidden behind a small patch of corn but there were no booby traps. The officer noted the plants were being watered and properly fertilized and appeared to have a lot of bud.
The Ontario Court of Appeal judges overturned the forfeiture order and in their decision noted the sentencing judge erred by “adopting an overly strict test” of the laws regarding forfeiture of property.
LeRoy says it’s very common now for the Crown to seek an order to seize the property from the case at the outset, then decide it at the end of the case. From a defence perspective, it seems “almost automatic” that the Crown will seek a forfeiture order in this type of case, she adds.
But in this case, the Court of Appeal judges considered several factors when allowing the appeal.
“They took into account that he wasn’t a sophisticated person and was doing this for someone else.” LeRoy explains. “He didn’t have a record, there was no link between him and organized crime.”
Bemmel had already served his court ordered sentence by the time this case went to the appeals court.
Considering the forfeiture order sought the seizure of an entire farm, the successful appeal may “raise the bar at the trial level” for future cases where property is involved during an offence, LeRoy says. Most grow-ops are located in a single house or shed and do not involve large properties.
“I think this case opens up the door for appeals of that nature,” LeRoy says. BF
