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Holy Smoke Back in Court

By Hempology | January 11, 2007

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].”

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