A Modern Day Thoreau

[Canadian Lawyer, September 1996]
Every year, the federal government shells out $2.75 million of taxpayers’ money to the Court Challenges Program. I can’t recall ever hearing about a single case funded by the program that achieved what I considered to be a worthwhile result. My perception (and I think it’s widely shared) is that this is just another way in which public money is spent for the benefit of a few special interest groups.

Meanwhile, the name of Marc Emery keeps popping up in newspapers and law reports. This extraordinary man has a penchant for provoking test cases with a twist: the costs are covered out of private resources–almost entirely his own, but with the occasional private cash donation and some donated legal services. The risk of punishment is borne by Emery himself, sometimes at considerable personal sacrifice. However, the cases involve issues of personal freedom which should concern every Canadian.

Emery’s test cases have varied widely in subject matter. Back when Sunday shopping was forbidden in Ontario, his London bookstore unabashedly served customers 7 days a week. He refused to pay his $500 fine, electing instead to go to jail for this heinous crime. Like Henry David Thoreau, who went to jail instead of paying a poll tax, Emery was freed after some well-wishers paid the fine for him.

His next crusade challenged Canada’s obscenity laws. His store carried cassette tapes entitled “As Nasty As They Wanna Be” by the group 2 Live Crew. He was convicted of selling obscene material. The court rejected his Charter defense of freedom of expression, but recognized that he had acted for the purpose of testing the law and gave him a conditional discharge.

Emery admits he doesn’t like the music of 2 Live Crew himself. But, he says, “I’ve told the police that any time they attempt to ban anything in this country, I’m going to sell it and get charged. And it doesn’t matter if I go to jail. I think any honourable citizen should be proud to go to jail in the defence of liberty.”

His freedom of expression campaign intensified. Section 462.2 of the Criminal Code, enacted in 1988, made it illegal to sell literature describing and encouraging illegal drug production or use. A marijuana user himself, Emery was incensed that the law would deny Canadians access to true, factual information. He began openly advertising and selling literature such as High Times magazine and the Marijuana Grower’s Guide, hoping to provoke a charge which would give him another opportunity for a Charter challenge.

Ontario police finally took the bait in 1994, seizing his newsletter on marijuana and hemp. Emery wasn’t charged but other distributors of the newsletter were. A few months later, an Ontario court ruled in an unrelated case that the literature prohibitions of Section 462.2 violated the Charter. Thank goodness for that sensible judge–otherwise, I’d have been afraid even to publish this column.

In early 1994, Emery opened his HempBC store in Vancouver, selling marijuana seeds, smoking devices, hemp textiles and related literature. In January, 1996 police raided the store, seized his stock and arrested him. His preliminary hearing on drug trafficking charges is scheduled for November. Emery is the first Canadian to be charged for selling seeds. His defence is that there are no prohibited substances in the seeds. Marijuana plants must be grown before the drug develops.

What should we make of this rebel, this iconoclast, who shows such irreverence for the law? Is it all a big publicity stunt-free advertising that allows him to strut in the spotlight and rake in greater profits? No, he says, “Activism really doesn’t pay. It causes nothing but grief. I’m in a constant state of anxiety and probably close to a heart attack.” If convicted, he could face life imprisonment. His unrepentant spirit won’t help at sentencing time.

Nor has his civil disobedience paid off financially. He lost $100,000 worth of merchandise to police in their raid. Although he re-opened the next day, business has dropped off. He lacked merchandise to sell, and many customers mistakenly believed he’d been shut down permanently. As well, he estimates that his legal fees will be $50,000 to $60,000.

In the first two years of his HempBC business, Emery remitted over $500,000 in GST, PST, property tax and income tax to various levels of government, while earning only one-tenth that amount himself. He operates openly, like any honest businessman, with employees and suppliers paid by cheque through an ordinary bank account. His web site (http://www.hempbc.com) looks like that of any other legitimate business trying to market its wares. It also contains useful information about marijuana, hemp and the law. He is not part of the underground economy or involved with organized crime. He is a harbinger of the future. This is the simple, peaceful, honest way marijuana will be sold one day, when it is legalized, as I believe it inevitably must be.

Persons of principle are rare, public benefactors rarer, and heroes rarest of all. Marc Emery is all three. I hope the twelve jurors who decide his fate will be inspired to live up to his example.