Province claims man's North Kildonan home after grow-op bust
Case believed to be 1st trial test of breadth of Manitoba property forfeiture orders
A Winnipeg man whose North Kildonan marijuana grow operation was busted and dismantled by police before he could make a dime from it has now seen his home forfeited to the provincial government.
Quang Nguyen, 59, came out on the losing end of what's believed to be the first full-blown trial in Manitoba to challenge the latitude of the province's criminal property forfeiture laws.
In a July 4 decision published this week, Court of Queen's Bench Justice Jeffrey Harris found that the forfeiture of Nguyen's Arbor Grove home to the government was not "clearly contrary to the interests of justice" — the key legal point at issue in the case.
Nguyen, a first-time offender, was sentenced to 15 months in jail in 2018 after pleading guilty to a marijuana production charge in connection with the operation. The province's Criminal Property Forfeiture unit filed to seize his home about a month after his arrest in late 2015.
- Manitoba targets proceeds of crime
The federal criminal law and provincial criminal property forfeiture legislation (enacted in Manitoba in 2008) are separate and the province does not need to prove a crime took place in order to seize what it believes is either proceeds, or an instrument of, unlawful activity.
If a Manitoba court orders property forfeited it has no discretion to modify amounts or place conditions on it.
Nguyen conceded the home was an instrument of crime and that the marijuana police found in the home was for the purposes of trafficking and profit.
But, he argued, his lack of any profit from the enterprise, the jail sentence he received to deter him, as well as the fact he's been a hard-working person who's helped others in his community over the years, made the forfeiture of his home unfair — a kind of double punishment — and detrimental to his rehabilitation.
He stands to lose about $100,000 in equity as a result of the seizure.
Police searched Nguyen's bungalow in October 2015 and found what they said was marijuana with a street value of more than $280,000 in various stages of growth and readiness for sale, according to evidence heard at trial. Police also found the basement had been altered to allow for various stages of the operation along with special lights and packaging paraphernalia.
Hydro consumption at the home had also spiked several times between March 2012 and late September 2015, Harris heard.
A police officer testified she'd been called to the house in January 2011 and found "remnants of a dismantled grow operation." Nguyen faced no charges at that time.
Harris found the fact Nguyen was convicted and jailed for the 2015 bust wasn't a factor he could consider when it came to deciding if the government could take his house away.
"The risk of connecting forfeiture with sentencing is that it could lead to lower sentences for those who have property," the judge wrote in his 27-page decision.
"The outcome is inconsistent with the principle that everyone is equal before the law and those without property for forfeiture should not be at risk of lengthier periods of incarceration because they do not have property."
Nguyen testified on his own behalf, painting a picture of an upstanding person who had worked hard through his life but had fallen into difficult financial times due to poor health.
After witnessing political unrest as a youth in his native Vietnam he arrived in Canada as a refugee at age 20, surviving a two-week-long trip along the way in a boat that ran out of food and water.
He worked to improve his English and schooling, eventually establishing a successful dental lab, according to Harris's recounting of Nguyen's testimony.
"The business was successful until his then-wife, who looked after the accounting, took approximately $1 million from the business over a four-year period. Apparently, she had a gambling problem which, unbeknownst to Mr. Nguyen, she funded with business assets," Harris said.
In early 2015, Nguyen's financial problems built up after he had a heart attack and then a stroke six months later. A few months before his arrest, Nguyen testified, he met a man — named "Tang" or "Mr. Bamboo" — who advised him on setting up the grow-op.
"Tang also had a connection to sell the marihuana, and the plan was that Mr. Nguyen would get 60 per cent of the profits and Tang would get 40 per cent," Harris wrote.
Harris said he disbelieved his story about Tang being the architect of the 2015 enterprise.
"[The government] also pointed to the sophistication of the grow operation discovered by the WPS in 2015 as evidence that Mr. Nguyen knew how to set up a grow operation, suggesting that he had learned how to do so from previous experience. I agree," Harris wrote.
Harris also said Nguyen gave "shifting explanations" on several issues, which raised concerns about his credibility.
Employer, friend called to testify
Several people testified to Nguyen's good character.
They included a long-time friend from his church, Hoa Chau, who told Harris that Nguyen has helped new Vietnamese immigrants in Winnipeg find work.
Nguyen's current employer, Todd Bauer, described him as a "model employee," one whom he was holding a job for after Nguyen leaves jail, Harris said.
Minh Kieu, who owns a dental lab, testified he attributed his own success to Nguyen's mentorship and support, Harris said.
"He confirmed that Mr. Nguyen supported many people by hiring them, often when he did not need the additional employees," Harris wrote.