Court of Appeal Says No to Civil Disobedience in Holy Smoke Case

Civil disobedience took it on the chin in a B.C. Court of Appeal judgment Wednesday that said such behaviour undermines the rule of law.

In a unanimous ruling that took aim at those advocating an end to the current criminal prohibition on marijuana, the court said disagreeing with the law does not permit you to break it.

Nevertheless, the three-justice panel gave a break to the owners and an employee of the now-defunct-but-once-renowned Holy Smoke Culture Shop in Nelson, reducing the length of their sentences for trafficking pot and sparing them jail time.

At sentencing hearings in October 2008 and January 2009, owners Paul Stephen De Felice and Alan Stewart Middlemiss were given one year in jail while employee Kelsey Windrawn Stratas received eight months. The men, advocates of marijuana use and the repeal of Canada’s drug laws, appealed and said they should not be incarcerated given the political nature of their “crime.”

The head shop for years was a celebrated southeastern B.C. outlet for pot, hash, psilocybin mushrooms and paraphernalia although it also sold coffee and other retail items. During the trial, the courtroom was full of marijuana-law opponents. A petition filed on the men’s behalf contained nearly 400 signatures and the trial judge received numerous letters of support for the accused.

While many contained polemics extolling the virtues of marijuana or decrying the draconian justice of pot sentences, the letters described the men as kind, considerate and compassionate individuals, and the judge accepted that as fact. Still, the appeal panel wasn’t impressed with the civil-disobedience argument or the claim that this was “a test case.”

“Expressing disagreement with existing law and advocating change is lawful,” Justice Ed Chiasson wrote with the support of Chief Justice Lance Finch and colleague Ian Donald. “Indeed, it is a fundamental right in a free and democratic society. Undertaking illegal activity as part of expressing disagreement and advocating is not lawful. On the contrary, it strikes at the core of a free and democratic society: the rule of law.”

The justice went on to say that the appeal panel felt more and more of these kind of cases were coming before the bench and judges needed to be consistent in meting out punishment. “Sentencing offenders who have used unlawful means to express disagreement and advocate change is a complex task,” Justice Chiasson said. “The unlawful conduct must be condemned and others dissuaded from repeating it. … These trafficking offences had a public dimension that must be recognized and condemned. Public, open violation of the law must be met with measured, recognizable condemnation.” Still, he did not believe incarceration was warranted under these circumstances — the shop has closed and the men say they will not reoffend while continuing to work for cannabis law reform — and that conditional sentences would suffice. He ordered Felice and Middlemiss to serve nine months under house arrest and Stratas six months under the same conditions.

– Article from The Vancouver Sun.

Pot traffickers’ jail terms overturned

The jail sentences for two former owners and an employee of a Nelson store who were convicted of trafficking marijuana have been reduced to conditional sentences on appeal.

Following their convictions, Paul Stephen De Felice and Alan Stewart Middlemiss, owners of the Holy Smoke Culture Shop, were dealt one-year jail terms. Employee Kelsey Windrawn Stratas was handed eight months in jail.

The three appealed their sentences to the B.C. Court of Appeal, which found that the trial judge had erred in finding that they were at risk of re-offending.

A three-member panel of the court found that a properly crafted conditional sentence could express condemnation of illegal conduct and still be a significant deterrent.

De Felice and Middlemiss received nine-month conditional sentences, and Stratas a six-month conditional sentence. The panel ordered that house arrest be required for the duration of the sentence, as well as a ban on the use of drugs and alcohol.

In December, the Appeal Court dismissed their conviction appeals.

The three men, who have been out on bail, surrendered themselves Wednesday but were expected to be released after the ruling.

At the time of their arrests, the store had been operating for a number of years and sold pot, cannabis resin and magic mushrooms in addition to cannabis paraphernalia, food items, coffee and tobacco.

At sentencing, their lawyer argued that the business provided harm reduction similar to Vancouver’s Insite project, where addicts shoot up under medical supervision.

A prosecutor argued they were motivated by greed.

Akka Annis, a second employee, received a sentence of 40 days to be served intermittently, but he abandoned his appeal.

– Article from The Province.



  1. Spanner McNeil on

    I place the Prohibitionist in the same category as a white supremacist or an anti-Semite. I’m sure they don’t. It’s just that their views are without defense and their actions deadly and dangerous.

  2. Interested Observer on

    Spot on. Best get used to saying “Seig Heil!”. It’s springtime for little Hitler’s in Canada. The PM, Stephen Hitler…um, Harper, is leading you down the path to National Socialist salvation. Canada’s system of government is uniquely suited to Nazi take-over because the PM can stack the Senate with all the right-wing goons he likes. Once they’re in, the goose-steppers can really get to work bringing about the Fourth Reich. Unless Amerika beats them to it. Oh wait, they already have.

  3. Anonymous on

    I just submitted the above comment, but felt the need to explain a little bit what I meant by it. My big issue with this ruling comes down to the difference between rule OF law and rule BY law. The judges claim that civil disobedience strikes at the heart of the rule of law. This assertion is completely false. The rule of law assumes that human society needs a certain level of rules and regulations to operate smoothly. However, these rules are only needed to ensure we do not bring harm to others; they are not a method of population control. The legitimacy of these laws lies in the fact that they protect human dignity without violating our natural rights to self determination. This view of society assumes a basic set of natural human rights – as acknowledged in the American Bill of Rights – and the only real purpose of law is to safeguard these rights. To ensure that laws do not become more onerous than this, citizens have not only a right but a duty to decide if a law conforms to our natural rights, and to then disregard those that do not. Obviously, violators of the law will be prosecuted by their society, but in a society that truly lives under rule of law, you have the chance to defend your actions and explain why they are not worthy of punishment. In a society that truly believes in rule of law rather than rule by law, such a defense could hold water.

    On the flip side is rule BY law, which is what the judges in this case are actually advocating. These laws are arbitrarily created by a potentate far removed from reality and are only legitimate because the person who created them holds power. In other words, these laws are legitimate because if you disobey them, you can be killed. These laws are not based on the premise that natural rights exist, and they are not intended to protect these rights. In a society that lives under rule by law, you have no rights but those rights which the government allows you to exercise (sounds downright American, doesn’t it?), and those rights can be altered or revoked at any time with no notice. Under rule by law, citizens truly do have a duty to obey any and every law, including those they consider wrong or immoral. This is because the law is arbitrary; there is no higher philosophy to appeal to as there is in a society run under rule of law. The law exists because somebody wrote it, and is legitimate because it is enforced. Rather circular reasoning. This is the system that dictatorships and totalitarian states operate under, and is the direction we are heading in very rapidly. From this ruling, sounds like the judges will be good little goose-steppers.

  4. Anonymous on

    It always bugs me when I hear opinions like the judges’ that even if you believe a law is completely immoral, unethical, and plain wrong in every way, it is still your duty to obey that law. That is the mindset that condones genocide and is the attitude governments have always counted on to allow them to commit atrocities. For example, during the Jim Crow era, people were legally commanded to discriminate (sound familiar?). According to these judges’ judgment of right and wrong, even if you realized such laws were completely un-American (I know, this ruling comes from Canada, but I’m American so American analogies and examples come easier to me) and wrong, you were still duty-bound to obey those laws and discriminate against blacks. You could also use the same logic to exonerate the scum who hanged at Nuremberg. After all, as they tried to explain to those thick-headed, human rights loving, pansy ass judges (sarcasm) they were only following the law as it was handed down to them. Apparently, the burden to decide if a law you are commanded to follow is actually ethical and right does not apply to those enforcing the law. Funny, I thought that was exactly who it was supposed to apply to. I am not saying people who commit acts of civil disobedience shouldn’t go to jail – in fact, going to jail has always been an integral part of civil disobedience. A big part of the theory behind civil disobedience is that if the general public sees that you believe so strongly that a law is wrong that you are willing to go to jail to oppose it, this will have a much larger impact than simply standing on a street corner handing out pamphlets explaining why a law is wrong. The judges were right not to hand down any more jail time – the arrest and hassle of trial is more than enough – but I can’t stress enough how much I disagree with their assertion that we have some kind of duty to obey any law no matter how blatantly unethical and wrong it is.

  5. ray christl THC Ministry on

    Canada unlike my ex-country USA has such reasonable authority,yet BUSH-DEA still in power and their partnership with the JESUS agenda of the Harper administration may come shoot your pets.Canada will never get as evil as US, but your fear-garden-$$$closet is back on front burner.The CIA-MAFIA with church rule the world.WarBAMA and 50,000 SWAT no-knock warrarts are coming your way ,unless CC Family coalasce to VOTE THEM OUT.Please stop the POT SMOKE and think HEMP HEALING for your enemies to participate in legalization and natural healing.Think of different avenues to teach confidence in GOD’s natural gift. The magnesium in the nuts-achene Marc sold can be used to PREVENT CANCER, and RICK SIMPSON CURE of THC in *HERO* Hemp Extract Resin Oil that is EATEN or rubbed on the dermal cure disease.Smoking is the least effective modus.Stop blowing smoke and start feeding hemp seeds like THOMAS JAMES and HEMP He spins the truth to say hemp isn’t Cannabis-m-word. That vile,racist m-word.VOTE and love and heal to gain policy support.Please listen how he teaches and sells canadian hemp protein foods.Google Thomas James and learn non-threatening ways to move the mountain.

  6. Anonymous on

    Ban on the use of drugs & alcohol’?! That is completely hilarious to me!

    A: Alcohol is a drug and there is no good reason to draw a semantic distinction between it and other hard-drugs.

    B: Caffeine is a drug. Will the court keep the convicted people from tea, coffee or cola? If so, wow, really wtf, how totally unethical of the court.

    I support drug legalisation in conjunction with ‘considerable’ (by modern standards) drug education and warning labels, for the record, and feel the need to point out how completely daft it is for caffeine, alcohol & tobacco to be off the drugs-list in common-language. This phrase ‘drugs and alcohol’ should cease for the same reason ‘humans and animals’ should.