Civil disobedience no excuse for breaking laws, judge rules

By Ian Mulgrew, Vancouver Sun

 

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 marijuana prohibition, 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 Oct. 2008 and Jan. 2009, Paul Stephen De Felice, and Alan Steward Middlemiss were given one year in jail while 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 anti-marijuana-law supporters, a petition filed on the men's behalf contained nearly 400 signatures and the trial judge received numerous letters of support.

 

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 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 re-offend while continuing to work for cannabis law reform — and that conditional sentences would suffice.

 

He ordered Felice and Middlemiss, who were owners of the store, to serve nine months under house arrest and Stratas, an employee, six months under the same conditions.

 

imulgrew@vancouversun.com