Thursday, 23 November 2006

(Unpublished letter to the editor of the Kootenay Western Star)

Dear Editor,

Re: Chief Constable Dan Maluta in Nelson

Chief Maluta claims that the police do not get their directions from the government. I'm not sure how far a federal prosecution would go if large resources in money, time, and staff are required and the Minister of Justice was not supportive of it.

We could see the cozy relationship police have with government when the so-called Drugged Driving bill was introduced by the Conservatives. The announcement was delivered by the Minister of Justice, Vic Toews, with the police standing at his side. Toews also wants the police to sit on boards that select judges. This definitely diminishes the appearance of separation between the government and police.

It would even appear that the police are not just enforcing the law of the
land, they're also helping to make those laws. I don't think it's right for
tax-funded, armed police to be lobbying or pressuring politicians in any way. Police have an obvious vested interest in turning our country into a police state.

I'll give kudos to Maluta for agreeing “they're right about the hypocrisy of alcohol being a legal drug” but Maluta then asks "...why would you want to promote smoking of cannabis as a tolerable thing when it hurts health the same way (as tobacco)?"

Cannabis does not harm health the same way. The evidence shows that smoked cannabis has nowhere near the same harmful effects as tobacco and more than a few medicinal effects such as: appetite stimulation, neural protection, mood elevation, pain relief, and more. If a person is worried about smoke cannabis can be eaten, taken in a tincture, or vapourized. Besides, is it really the police's place in society to lock adults up to protect their health? Also, where cannabis possession has been liberalized the "substitution effect" has been noted due to harm from hard drugs and alcohol dropping off.

If Chief Maluta wants to lobby to change the drug laws I would suggest that he consider joining the organization Law Enforcement Against Prohibition (LEAP).

Paul DeFelice, Partner
Holy Smoke Culture Shop

Contact: newsroom@kootenaywesternstar.com
Website: http://www.kootenaywesternstar.com/
Address: 1-425 Columbia Ave., Castlegar, B.C. V1N 1G8
Fax: (250) 365-6390

FYI -

Pubdate: December 7, 2006
Source: Nelson Daily News (CN BC)
Contact: news@nelsondailynews.com
Address: 266 Baker Street, Nelson, British Columbia V1L 4H3
Fax: (250) 352-2418
Copyright: 2006 Nelson Daily News

Holy Smoke lawyer argues 'lesser of two evils'

Marijuana: Case against local culture shop owners takes a turn as lawyer takes similar course argued by abortion activist Henry Morgentaler

By Sara Newham
Daily News Staff

The lawyer for Holy smoke co-owners Paul DeFelice and Alan Middlemiss, and associates Akka Annis and Kelsey Stratas, will use a defense employed by abortion activist Henry Morgentaler to acquit his clients of their drug trafficking and possession charges.

While not acknowledging that his clients are guilty of trafficking or possession of a variety of marijuana, hashish, and psilocybin, Nelson lawyer Donald Skogstad said he plans to argue that their alleged trafficking of those substances was the "lesser of two evils".

"...You could argue it's a harm reduction issue,"said Skogstad. "If marijuana is available at a fair price in a very clean product in a safe environment not dealing in the back alley where you might get your wallet taken. [People are] not buying crystal meth."

Skogstad, who has asked for a week long trial, said he would refer to a case brought against Dr. Henry Morgentaler in 1970 who was charged with the intent to procure an abortion at his Montreal abortion clinic. In 1988 the Supreme Court of Canada struck down its abortion laws on account that it was against the Charter of Rights and Freedoms. One of Morgentaler's arguments used is that the alternative to him conducting abortions was women putting themselves into unsafe situations.

"There's worse alternatives. That's how you argue the defense of necessity and that's why it will take a week to bring out these issues and bring out some experts to explain the differences and the harm that crystal meth or ecstasy can cause to your body compared to marijuana," said Skogstad.

Skogstad explained that police have previously acknowledged that hard drugs are less of a problem in Nelson than in other communities around the West and East Kootenay. In a Daily News story published in November, Nelson City Police Sgt. Steve Bank explained that marijuana was the popular drug and that police see a "significant amount" of cocaine, but it was not to the marked degree as in other communities. Skogstad suggested that one reason Nelson does not have a problem with harder drugs is that marijuana is more readily available.

DeFelice and Middlemiss were charged during the summer.

DeFelice is charged with two counts of trafficking in marijuana, one count of possession of marijuana and one count of possession of hashish. A search of Holy Smoke Culture Shop was made following his arrest near the premises.

Middlemiss turned himself in about a month later and is charged with one count of trafficking in marijuana and one count of trafficking in psilocybin.

Annis has two charges against him, both for trafficking in marijuana and turned himself in November 21 while Stratas who is charged with one count of trafficking in marijuana and one count of trafficking in hashish, turned himself in a few days later.

Skogstad said there are a variety of options to try the men. All but one of the charges against all of the men must be brought in front of a provincial court judge while one of Middlemiss' charges allows him to be tried by judge or judge and jury.

The lawyer for the accused explained that he has asked for a case conference scheduled to take place January 9 at 9:30 a.m. to discuss all matters and all charges and find a way to expedite the process and avoid doubling the amount of work and time involved in trying the case.

"We're going to have four long trials or one. That was brought up and I told the judge that it would be best if we tried to rationalize this process in some more efficient ways so we're going to try to do that in January," said Skogstad.

He added that some of the witnesses will need to be brought in from afar and he would prefer not having to bring them out for four trials. Another way of proceeding may be that one trial proceeds before the rest with the agreement that it act as a precedent for the other trials at least on defense of necessity. Skogstad explained that he spoke to the prosecutor about dropping one of the charges - at least until later - and have one large trial with all four defendants as one way of dealing with the situation.

"Dropping this charge or dealing with it later that would allow a different election and then we'd have one trial and one week would go by and it would all be dealt with in a week instead of two years to do them all over four different weeks," Skogstad said. "But we'll see what happens."

When asked if this line of defense means that he is saying his clients have indeed done what they were charged with, Skogstad indicated otherwise.

"If they [people] wanted to get marijuana and they were determined to do so in Nelson, they could be in the back alley where they could get ripped off which has happened, where they could get an inferior product which has happened or they could turn to some other drug if marijuana wasn't available which has definitely happened," he said. "If you think of it that way. What's the lesser of two evils?"

Skogstad believes this is the firsts time this defense has been directly argued in this way in this type of case in Canada.

"It's a common law defense rarely argued but this is the place and these are the people and this is the time," he said.

I thought people might be interested in the part (then Sgt.) Maluta played in the Holy Smoke bust of 1997.

"The police cannot claim the benefit of good faith. This was lost by the staging of the Drugs, the misrepresentations in the Information, the misrepresentations at trial and the disregard of the Charter."

http://holysmoke.ca/index.php?option=com_content&task=view&id=36&Itemid=2

I notice this ruling didn't seem to hurt Maluta's chance to become Chief of Police.

note: Grammar mistakes or typos are not mine. I typed it as it appeared in hard copy.

*******************************************

FYI -

Pubdate: December 13, 2006
Source: Nelson Daily News (CN BC)
Contact: news@nelsondailynews.com
Address: 266 Baker Street, Nelson, British Columbia V1L 4H3
Fax: (250) 352-2418
Copyright: 2006 Nelson Daily News

Tired of stories on Holy Smoke

To the Editor:

As I read the letters and articles in the paper on the pot issue, I really have a hard time not to become frustrated. It is a known fact that dope is grown and smoked all over the Kootenays. No matter where you go or walk it is out there. That said I now express where my frustration is. I don't give a crap about the Holy Smoke issue. As far as I'm concerned they are the least concern in this town or any other area.

The concerns that are more important are.

1. Street people who have no where to go. Some sleep in places that a lot of people would not think of sleeping.
2. People who are not able to afford food clothing and shelter.
3. Parents who can't afford to keep their kids off the street.
4. Women who are constantly trying to keep a home and food on the table, with little income.

These and other issues are the main concerns that should be addressed. Pot will eventually be legalized and taxed. Then there will be a uproar. Sucks to be a pot user then. Your paper is interesting and I like reading it, but let's have the reality stories of people lives instead of pot user. Thank you

Maxine Mawson
Nelson B.C.

fyi -

Pubdate: January 10, 2007
Source: Nelson Daily News (CN BC)
Contact: news@nelsondailynews.com
Address: 266 Baker Street, Nelson, British Columbia V1L 4H3
Fax: (250) 352-2418
Copyright: 2007 Nelson Daily News
Author: Sara Newham

Holy Smoke back in court

MARIJUANA: Accused one step closer to having case heard and hope it will be precedent setting

Owners and associates of the Holy Smoke Culture Shop will likely be tried together on various charges of possession and trafficking of marijuana, psilocybin, and hashish.

Donald Skogstad, the lawyer for the four men involved - Holy Smoke co-owners Paul De Felice and Alan Middlemiss and associates Kelsey Stratas and Akka Annis - plans to argue the defense of necessity in what could be a precedent setting case for drug laws in Canada.

"My clients want to have their trial together. They want a single trial, not four separate trials. The crown seems receptive to that idea and it's technically possible," said Skogstad outside the courtroom Tuesday following a case conference.

De Felice, Middlemiss, Stratas, and Annis were charged in the latter half of 2006 following a Nelson City Police drug investigation "Operation Vista" that looked into the sale of illicit drugs in licensed premises, private residences, street operations, and retail stores within city limits.

De Felice was arrested outside Holy Smoke July 15 and charged with possession of marijuana and hashish. Police then raided the store and allegedly recovered one pound of marijuana, a small amount of hashish, financial records, and $8,000 cash. In addition to the possession charges, De Felice is also charged with two counts of trafficking in marijuana. Middlemiss turned himself in August 16. He is charged with one count of trafficking in marijuana and one count of trafficking in psilocybin. Unlike his co-defendants, one of Middlemiss' charges entitles him to a trial by jury. Charges were brought against Stratas and Annis along with six other individuals in November as part of the drug probe.

Skogstad told the Daily News December 6, the defense would argue that the alleged trafficking was "the lesser of two evils." It essentially argues that while the defendants may have committed the act, the alternative would have been much worse.

"We're going to save the court a whole pile of money by not having the four to six police officers for four separate trials or even flown in at all," said Middlemiss. "This argument of necessity, what it does is it is a deal that we've made so that we don't dispute constitutional arguments, we don't dispute the warrant."

He said that Holy Smoke was actually keeping people "coming to Nelson and wanting to smoke some of the local herb" safe from "unscrupulous dealers."

When told of the defense's intentions, Judge Ron Fabbro asked: "Do I understand that they'd be putting all their eggs in none basket?"

Asked by Fabbro what he meant by necessity, Skogstad explained, among other things, that the alleged trafficking was a "public health and organized crime" issue. Middlemiss indicated that people complained to Holy Smoke that they had been ripped off by street dealers or that products bought on the street were mixed with petrochemicals and/or fertilizer.

"So the only way that we could have any control over that situation from these people coming to us was to be involved in the industry and so we're basically going to not lie in any way and not hide behind anything and it's actually very liberating to be able to just come out for the truth...," said Middlemiss. "We're completely willing to take any punishment that's meted out to us and we'll continue to do our work even if it is behind prison bars as far as that goes. I believe that the case could have wide impact on the Canadian cannabis law reform movement."

The Daily News contacted prosecutor Rob Brown for a comment but was told that he was not available and that he does not give comments to the media.

Though at different stages, the cases involving the four men are slated to resume March 7.

Skogstad believes the case will take a week to argue in court.

"The court is very careful abut the use of court time so they want to know exactly what we're going to do for that week. We're not able to answer those questions today," he said, adding that he would have the information required by March, at which point the length of the trial will be known.

The trial date would be set a few weeks later but Skogstad expects it to take place in the second half of the year. He added that one trial would save his clients and taxpayers money.

"My clients as well, they're fundraising to raise enough to have one one-week trial. They could never afford four [trials]."

I still am unable to see why the police waste their time enforcing laws that don't make any sense. Next election we all need to step up and vote NDP. No more of this "I want to but it only counts if you vote for the liberals or conservatives" shit. It doesn't work!

An interesting defense. Good luck! You guys may be the case that ends prohibition!

Best of luck!!! Keep on swingin'!!

Very brilliant defense, sure hope it works. It is true though. We all need a clean source. I for one would never score from some street dealer anymore than I would go to a coat-hanger abortionist. I do not know what grow chemicals they used, or what may have been added later. I am 48 years old for god's sake and do not want to score from some kid street dealer anyway. Good luck guys.

Thanks for all the support everyone! Here's a message from our lawyer along with info on how to donate to our legal defence fund.

pd


Her Majesty The Queen v. Annis, DeFelice, Middlemiss and Stratas

by Don Skogstad

This case has been brought by the Federal Crown against four individuals in the Provincial Court of British Columbia. They are not entitled to a jury trial because of the way the charges have been proceeded with.

They are each charged with providing a small quantity of marijuana, to undercover officers.

The matter will go to trial in the middle of 2007.

An agreement has been reached to try all four accused together and to advance only the defence of necessity.

While charges such as this can be defended on other grounds, my clients have made a decision to use only the defence of necessity.

It will be necessary to call expert evidence from witnesses who will be quite a distance from Nelson, at a considerable expense to establish this defence. The theory of the defence is as follows:

1. By providing pure often organic marijuana to adults in a safe environment at a fair price, you eliminate the following problems:

a) use of other drugs including alcohol (our clients have been able to show that people have kicked a hard drug or alcohol habit by substituting marijuana)

b) Dealing in impure marijuana. The Solicitor General of BC has estimated that 80% of marijuana dealt with by certain organized groups is laced with crystal meth. Indeed it is certainly the case where marijuana has been tainted by other drugs in the past or contains other impurities including pesticides.

c) To prevent the street and backyard trafficking. Essentially, the alternative is for people who will inevitably wish to continue to get marijuana and buy an unknown substance from an untrusted source at an unfair price and under dangerous circumstances. There certainly have been rip offs where both money has been taken and drugs withheld.

All of the above points attract a completely undesirable element to the city and the streets of Nelson and creates profit opportunities for organized crime that wouldn't otherwise exist. This defence has not been argued before in Canada with respect to these circumstances. It has been advanced in cases such as Morgentaler, where Morgentaler’s position was that although he did not follow the provisions of the Criminal Code and was therefore acting contrary to the Criminal Code, it was better that he did abortions in a safe and therapeutic environment, rather than leave women to resort to backyard, knitting needle abortions with all the consequences thereof.

Stated in the Nelson Daily News, these are the clients and this is the time and Nelson is definitely the place to advance this type of argument. There is no question that this area produces some of the finest and purest marijuana in significant quantities. While marijuana is not completely harm free, it has no physically addictive or overdose capabilities, and an essential question is this, people are bound to alter their mind with substances, what would be the better choice among many alternatives? Would you send your children to a party into a room full of drunks or a room full of marijuana smokers? With a splurge of crystal meth on the horizon even in Nelson, it has been reported by the Nelson City Police that the hard drug use has lessened by the availability of marijuana. In fact in my 30 years of practice, most of which have been in Nelson, I have noticed a considerable difference in use of hard drugs in Nelson. Whereas surrounding cities and most cities of Nelson size in BC see a prevalence of cocaine, crack cocaine, crystal meth and other drugs, in Nelson the drug of choice has always been marijuana, to the considerable exclusion of the other drugs. While the other drugs are not unknown, the use per capita I would estimate is much less in Nelson than cities in similar circumstances. I believe this to be because of the availability of marijuana and the prevalence of marijuana culture in Nelson.

You can support the endeavor of my four clients financially. As mentioned earlier, there will be considerable expense in gathering the evidence necessary for this defence and establishing this issue in Canadian law. The defence of necessity is not a Charter argument; it is a common law defence historically available as a defence in these matters. It essentially excuses the behaviour because the behaviour prevents worse consequences such as in Morgentaler the knitting needle abortions. We have established a trust account under the name of the Holy Smoke Culture Shop in our office for the purposes of assisting in the defence of these individuals.

You can help by forwarding a contribution to Royal Bank Account # 106 574 7, Transit #3200 at the Nelson Royal Bank Branch or any other Royal Bank Branch in Canada or by mailing your contribution to Skogstad Law Office for Holy Smoke Culture Shop, PO Box 140 Nelson, BC V1L 5P7 or by phoning our office at (250) 352-7228 and leaving your credit card information and faxing your written authorization to use your credit card for contribution purposes to (250) 352-5299. Your assistance is greatly appreciated.