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.