In our last issue, we reported on some of the ongoing raids and harassment directed at hemp store owners across Canada. Since then, there have been even more police raids, including more seizures of literature like Cannabis Canada Magazine.
However, cracks are appearing in the wall of prohibition, as many store owners and activists tenaciously fight back.
THE PLANT UPROOTED
The first bust since our last issue took place in Edmonton, in a store called “The Plant”. The Plant had been in business over a year, has developed a loyal customer base, and proudly featured the city’s “largest selection of exotic pipes.”
However, owner Dave Simpson had a rude awakening when police unexpectedly swarmed his shop on December 4, and made off with more than $20,000 in inventory. Along with various smoking devices, they seized books and magazines including Cannabis Canada.
Simpson was charged under 462.2 for selling “drug literature and paraphernalia”, as were three employees, including his 20-year old niece who had provided police with their excuse to act. Undercover officers were browsing the store, and according to Simpson “they totally entrapped her, saying ‘I need a place to hide my dope.'” Against store policy, she showed them “the perfect stash can” and suddenly police were everywhere.
Because of the “blatant police harassment,” Simpson has renamed the store to Sideshow Dave’s, and has posted large disclaimers to avoid further problems. He’s completely restocked, but insists “every device we sell is for tobacco use. I think it’s stupid and ridiculous, but that’s all we can do.”
A local lawyer is planning his defence, but he hasn’t confirmed a strategy yet. Simpson made a preliminary court appearance on February 11.
HEMP BC AND THE CANNABIS CAFE
Next in the sequence of raids was Hemp BC and the Cannabis Caf?. Hemp BC was first raided in January of 1996, exactly one month after owner Marc Emery appeared in the Wall Street Journal. Marc has yet to go to trial on the charges of “trafficking in seeds” from that bust.
Punishment for publicity
The most recent raid on December 16, 1997, was also apparently punishment for receiving too much publicity, as it took place about one month after CNN’s Impact program portrayed Marc Emery as “Canada’s Prince of Pot”.
It may also have been in reprisal for Hemp BC taking out full-page ads in both local dailies at the start of the Vancouver APEC conference, welcoming world leaders to the “marijuana breadbasket of North America”, and asking them to call off their war on cannabis culture.
Arrests and police violence
On December 16, about three dozen police officers raided Hemp BC and the Cannabis Caf?, seizing about a quarter million dollars in inventory. Vancouver police spokesperson Anne Drennan was on the scene, as was the city business license inspector.
A crowd of pot enthusiasts gathered around as police sheepishly guarded the doors.
One-time employee and current freelance pot-seller and rabble-rouser David Malmo-Levine was rallying the crowd to shout such slogans as “Don’t waste our time, go fight real crime!” and “Help, Police, they’re stealing our store!”
The police grabbed Malmo-Levine to arrest him, twisting his arm and pulling his head back by the hair. They beat him, then scraped him along the road to the paddy wagon. A Hemp BC employee, Ian Roberts, held on to Malmo-Levine and had the boots of three police officers put to his neck.
Police then sprayed Malmo-Levine and Roberts with mace, and threw them both in the van.
Marc Emery was directly beside the violence. “My only option was to protest this violence against David and Ian. I spat on an assaulting police officer, knowing they would focus on me and address me. They did, and threw me into the paddy wagon. I stood up for my employees in the least violent way I could think of while still making a firm point.”
Police tackled Emery, one officer grabbing him by the throat. They threw him against the paddy wagon before placing him inside.
Seizure and re-opening
Even after the arrests of Emery and Malmo-Levine, the crowd continued to collect around the store, chanting and berating the police.
At around 1 am, moving vans hired by the police shuffled into the back alley, and police began to throw breakable stock into the back of the two trucks. They reverberated down the alley with the sounds of shattering glass and twisted metal.
Hemp BC employees estimated that $200,000 in seeds, $120,000 in grow equipment and $100,000 in paraphernalia were taken by police.
The next day, December 17, the store was open and ready for business, the shelves restocked with bongs, pipes, and other hemp products. The Cannabis Caf? and Little Grow Shop were also open for business, as usual.
Although Emery has been charged with assault for spitting on a cop, no charges have been laid in relation to the police raid and seizure. Police originally justified Emery’s arrest because of an outstanding warrant for a minor municipal by-law infraction earlier in the year.
He had been at the Vancouver West-End Community Centre handing out pamphlets about the government’s attempt to ban many medicinal herbs. Police arrested him after the Community Centre Manager called them to complain that he might educate children who frequented the area. Police charged Emery with “failing to appear” in court for the minor infraction, even though the charges had apparently been dropped.
David Malmo-Levine’s arrest was also based on similarily dubious grounds, as he was apparently arrested not for rallying the crowd, but rather for having “illegal” amplification at a rally about five months earlier!
Marc Emery sells Hemp BC
The Hemp BC business license was up for renewal soon after the raid, and City Hall refused to renew it. They have also consistently denied the Cannabis Cafe a business license since it opened.
The city claimed that Hemp BC was in violation of city bylaws which stipulate that there should be no paraphernalia in store windows. Without a business license, Hemp BC was very vulnerable to further police action. Another raid would have resulted in layoffs and possible shut-down of the entire business.
To avoid further raids and destruction of the Hemp BC “family”, Marc Emery decided to remove himself from ownership of his “Hempire”.
He has sold Hemp BC to manager Sister Ice, the Cannabis Cafe to managers Jana Razga and Adam Patterson, and the Hemp BC Legal Assistance Centre to legal whiz Andrea Turton, around whom it was built. The Little Grow Store has been shut down entirely.
Emery continues to sell marijuana seeds, but through mail-order only. He also carries on in his role as publisher of Cannabis Canada.
Both Hemp BC and the Cannabis Cafe will continue to sell everything they used to, and will still support the “cannabis movement” through retail activism.
The intent is to allow these businesses to obtain their business licenses and continue on without fear of being raided. Since the controversial seed sales will no longer be taking place on the premises, and the new managers are not on record as encouraging “law-breaking”, they should be able to receive their business license and be somewhat safer from further police action.
THREE HITS IN KENSINGTON
On January 7, three hemp-store proprietors in Kingston, Ontario watched in disbelief as police looted their establishments. In a single day, the six-officer joint forces drug unit raided Erehwon, Western Rock and Off the Wall; a fourth store, Kingston Hemp, was surprisingly spared.
Police told the Kingston Whig-Standard that the raids came after parents complained that at least one store was selling paraphernalia to children. “They shouldn’t be running around selling this stuff to kids. It forms an impression on them.”
They didn’t explain the omission of Kingston Hemp, but owner Dylan Maxwell thinks he beat them to it. Upon news of the crackdown, “we pulled everything from the store including our shirts and pants. It’s quite ridiculous, having to pull out possibly the only environmental clothes available in the town because of the police.”
Bill Stevenson, owner of Erehwon, said his store only lost about $1000 in merchandise since most of his inventory is music-related. However, he’s ready for a court battle and feels police went way too far by seizing books, magazines, posters and even hemp products like wallets, black lights, key chains, and anything with a pot leaf or the words “marijuana” or “hemp” on it.
A 1994 Ontario Court of Appeal decision effectively legalized “drug literature” and expressive material within the province. However, the drug unit seemingly didn’t care. Stevenson said he “read them the issue of Cannabis Canada with the ruling at least four times” until an officer finally grabbed the magazine from his hands.
OPP Det. Glenn Holland admitted that police are aware of the decision, but simply said that when seized “along with the other items, the literature is supportive of the charges.”
Off the Wall may use local counsel, but the owners of Erehwon, Kingston Hemp and Western Rock have joined forces to fight back. The cavalry arrived in the form of Alan Young, who quickly reached a “loose agreement” with the three stores and the team is launching a constitutional challenge.
Young explained that the police “have clearly violated [the stores’]constitutional rights,” and he has already sent a letter to police threatening a lawsuit unless certain merchandise is promptly returned. The accused are to appear in court on February 24, but a trial isn’t expected until at least the summer.
ONGOING LEGAL BATTLES
As we reported in the last issue, there are already a number of hemp stores and activists that are involved in legal battles across the country. Some will conclude by spring, and a few have already wrapped up.
Shaping the Law
The Chris Clay constitutional challenge is also under appeal, and will probably reach the Ontario Court of Appeal this summer before moving to the Supreme Court of Canada. Unfortunately, the schedule can’t be confirmed until the London court reporter completes the painstaking task of transcribing all the testimony from last year’s trial.
The challenge dates back to 1995, when Clay was arrested after selling small cannabis plants in his London, Ontario store. Toronto law professor Alan Young and co-counsel Paul Burstein felt it was an ideal test case, and with generous public support they were able to bring over a dozen expert witnesses from across Canada and the US. In August he was convicted, but Justice John McCart’s verdict makes a strong case for decriminalization.
Armed with McCart’s decision, Young and Burstein are looking forward to the upcoming appeal. “The main purpose of trial courts is to find fact, and that’s what this court did,” said Burstein. “The main purpose of appeal courts is to shape the law.” Burstein also said the appeal will likely be combined with Terry Parker’s, since the fundamental legal principles involved are very similar.
Challenge versus Possession
In 1993, BC’s Randy Caine was caught with half a gram of marijuana and police charged him with possession. John Conroy, a prominent lawyer and founding member of NORML Canada, teamed up with Caine to demonstrate the law is unconstitutional.
Although “very disappointed” with the lack of outside financial assistance, Conroy eventually received a $5,000 grant from New York’s Drug Policy Foundation that allowed him to call a handful of expert witnesses.
Conroy originally stalled the challenge to await Canada’s new drug legislation, and more time passed when the judge was transferred from Surrey to Vancouver, bringing the case with her. To top it all off the senior Crown Attorney was appointed as a judge days before the expected completion date. The new Crown presented his closing arguments on February 10, and a decision should finally come by this summer, five years after Caine’s original arrest. Both Conroy and Caine are enthusiastic about their chances for a victory.
Safer Than Coffee
As the Caine case wraps up, another challenge will begin in the same courthouse. Vancouver activist David Malmo-Levine is representing himself against charges stemming from December 1996, when police raided his Harm Reduction Club. The club was openly selling pot out of a downtown storefront for several months.
Malmo-Levine had hoped to launch a constitutional challenge, focussing on the “relative harmlessness” of marijuana by comparing it to caffeine. He also wanted to portray the demonization of cannabis users as a “witch hunt” by drawing parallels from the Holocaust. A number of expert witnesses from the Vancouver area were expected to take part in the trial.
However, the judge completely refused to hear Malmo-Levine’s constitutional arguments, and so he now faces a criminal trial. He will have the opportunity to try to get a constitutional hearing upon his appeal.
Hard Times at Hi-Times
It’s been over a year since police in London, Ontario plundered Hi-Times, and Mike Jain has made a number of court appearances.
The RCMP Proceeds from Crime unit returned the valuables taken from his home (gold bars, jewelry etc.) but there’s still no sign of the $80,000 in inventory that was also seized. His legal bills have already topped $10,000.
Fighting Holy Smoke
The three partners in Holy Smoke are determined to fight their charges following October’s unwelcome visit by police in Nelson, BC.
Alan Middlemiss, Dustin Cantwell and Paul DeFelice lost both inventory and an ounce of herb in a warrantless search. They are planning to enlist outside help before devising a strategy, but a constitutional challenge is likely.
Hemp Ware Challenge
Nycki Temple owns Hemp Ware in Newfoundland, and has been to court many times since her bust last May. Even though she lost a relatively small amount of inventory, Temple is demanding justice and has accumulated over $10,000 in legal bills by mounting a constitutional challenge. She reports it’s “going really well” and expects the case to be finished sometime in March.
Vinyl Exchange Resistance
Professor Young will be making a trip to Saskatchewan in May to represent Mike Spindloe in his constitutional challenge. Last spring police swooped down on Spindloe’s store, the Vinyl Exchange, and appropriated smoking accessories and literature; the bust marked the first time Cannabis Canada was seized. The three-day trial begins May 11, and a decision should follow soon after.
It took Ken Venema nearly two years to fight his constitutional challenge, which he finally lost on December 3. In 1995, his Thunder Bay store, Kaiyun, was sacked by authorities and he enlisted a local lawyer to help with the case.
Thunder Bay’s small-town courtroom was an unlikely scene for a constitutional challenge, and Venema said “They all know each other ? the judge, the crown, my lawyer, they’re all friends.” He had high hopes, but wasn’t too surprised when the conservative judge upheld the paraphernalia law by ruling it “wasn’t sufficiently vague” to violate the Charter.
After the verdict, Venema faced a criminal trial and his lawyer advised him to plea bargain unless he had a “good wad of money.” He reluctantly struck a deal with the Crown: by forfeiting his inventory and pleading guilty, he received a suspended sentence and probation.
On a more positive note, Peterborough, Ontario’s Tony Rizzo is out of jail and literally swimming in bongs. After a court recently found their search warrant was illegal, police were forced to return the plethora of pipes, and even had to pay for the broken ones.
Rizzo’s home is now full of paraphernalia, but he hopes to reopen Radical Riz’s Hemp Supply in the near future.
Despite the victory, he is still outraged over the six months “dead time” he spent in jail, as well as the closure of his store. Rizzo is now planning a lawsuit, seeking compensation for his lost time and income.
Alan Young assisted Rizzo’s lawyers, and he is deeply disturbed by such police indiscretions. “Ultimately Tony Rizzo spent a fair amount of time in jail for an offence that couldn’t be proved,” he said. “They violated his rights to obtain the evidence.”
Vagueness, Overbreadth and Overseizure
According to Professor Young, police often overstep their bounds when laying charges under section 462.2, the section of the criminal code that prohibits drug literature and paraphernalia.
“In all the hemp store cases that I have seen so far, and I’ve seen a lot of them, there’s enormous overseizure,” said Young. Since “they do not restrict themselves to the items that are specified in the warrant,” the police are inadvertently giving ammunition to defense lawyers.
In the 462.2 challenges he’s working on, Young is also focusing on two constitutional principles that he feels are being violated. The first is vagueness: “The law doesn’t provide sufficient guidance to guide conduct.” The second is overbreadth: “The law extends far beyond the reach that is necessary.”
With so many cases before the court, the persistent law professor is confident a positive ruling is in the offing.
OPEN POT SALES
While legal battles rage on all fronts across the country and Parliament faces renewed calls for reform, a Vancouver social club has decided not to wait. They’re not interested in constitutional wars, government bureaucrats or spineless politicians.
With little fanfare, Arthrology opened last year and has been openly selling pot to anyone willing to follow their few simple rules: No stolen property on the premises, no customers under 18, and no pot sales (it must be purchased from the club.)
Occasionally Vancouver police ransack the place, and once they leave sales continue. On January 23 they returned for the fifth time, seizing cash and trashing verything, but no charges were laid. After they left, the club reopened.
According to Norm, the club’s founder, Arthrology is simply “kind people selling kind herb to kind people. To say what we’re doing is criminal is absolutely wrong.”
The Future is Freedom
As similar acts of defiance become more common in Canada, there will undoubtedly be more reports of backlash from law enforcement agencies. So what does the future hold?
All signs point to freedom: these raids are the final spasms and death-throes of prohibition.
Perhaps public pressure will finally spur our politicians into action, but if not the courts will eventually force them to.
In the meantime, the full-scale assault must continue. Whenever possible, Canadians must:
* Continue to lobby the government
* Continue to go to court to keep the issues alive
* Continue to perform acts of civil disobedience.
One day, someday very soon, the government will look at the issues involved and admit, “We’re wasting money, and we’re creating criminals out of law abiding citizens.”
“We should never feign impotence even before a massive problem. We can each make a difference. This is a moral universe. Right and wrong do matter. Our choice in favour of truth and goodness, our individual acts of courage and honesty, standing up for the truth, do not evaporate into the ether. They impregnate the atmosphere and then in the fullness of light everything comes to a head.”
? Archbishop Desmond Tutu.
All of the following people need your moral and financial support:
? John Conroy: (604) 852-5110
? Randy Caine: (604) 534-9971
? David Malmo-Levine: (604) 215-9379
? Ian Hunter of Sacred Herb: (250) 384-0659
? Chris Clay of Hemp Nation: [email protected]
? Professor Alan Young of Osgoode Hall Law School: (416) 736-5595
? Paul Burstein: (416) 204-1825:
? Marc Emery of Hemp BC: (604) 681-4690
? Dave Simpson of Sideshow Dave’s: (403) 413-4036
? Bill Stevenson of Erehwon: (613) 542-0803
? Dylan Maxwell of Kingston Hemp: (514) 282-6579
? Dave Austin of Off the Wall: (613) 544-9472
? Western Rock: (613) 544-1479
? Mike Jain of Hi-Times: (519) 858-1533
? Alan Middlemiss, Dustin Cantwell and Paul DeFelice of Holy Smoke: (250) 352-9477
? Nycki Temple of Hemp Ware: (709) 738-4367
? Mike Spindloe of Vinyl Exchange: (306) 244-7090
? Ken Venema of Kaiyun: (807) 345-1149
? Tony Rizzo of Radical Riz: (705) 749-0496
? Arthrology: (604) 831-6619
? Video footage of the Hemp BC raid can be obtained through Cannabis Canada.