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Holy Smoke Lawyer Argues “Lesser of Two Evils”

By Hempology | December 8, 2006

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

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.

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