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SHARING APPEAL ON JAN 26, by Ted Smith
By Hempology | January 9, 2006
At 10 am on Thurs Jan 26, 2006, I will be defending myself in front of the B.C. Court of Appeal to argue that the laws prohibiting the sharing of cannabis are unconstitutional and that my rights were violated by police when I was arrested at the University of Victoria on Nov 8, 2000. After lighting and passing around several joints at a weekly 420 meeting of the University of Victoria UVSS Hempology 101 Club, I was arrested and charged with trafficking.
The trial was held early in 2005 and I was found guilty. The sentence was a $500 fine that was paid for, in part, by having a raffle for a bong last April 20 at 4:20pm at Centennial Square. Even though the constitutional arguments used by lawyer Robert Moore-Stewart were not accepted by the judge last year, I am essentially repeating many of the same themes. We have included some of my arguments here, in case you cannot come to court. -Millions of Canadians share cannabis on a daily basis and SMITH was arrested because he openly challenged the law on their behalf.
No Canadian has ever witnessed so much effort being spent by police following them around to get a roach. To threatened imprisonment to someone for smoking a joint, when no one else seems to face the same pressure, is a gross use of force that is disproportionate to the gravity of the offense. If the crime of smoking cannabis is such a great problem, then SMITH should have been arrested when he passed the first joint. Police operated in a secretive, undercover manner, as opposed to SMITH’S open, public demonstration. The stark contrast in behaviour clearly shows how prohibition causes police to pretend to be normal citizens seemingly participating in a passive demonstration against the government, when they are actually targeting the leadership when the masses are gone. Pot cafes have been openly operating in Vancouver for many years, where patrons smoke with each other in public storefronts with police never charging anyone with trafficking for sharing a joint. The public’s sense of fair play and decency is harmed when authorities single out leaders in political movements and severely punish them for speaking out.
Errors in Judgment
That the learned trial judge erred in law when considering whether the Charter of Rights and freedoms was breached in several ways with the actions of police. She did not recognize that Sections 2. 7, 9 and 15 of the Charter of Rights and Freedoms were grossly violated in the eyes of the accused, students and the public with the senseless acts of police coercion.
Argument -Police testimony confirmed that the arrest occurred primarily because the university administration wanted SMITH removed from campus, temporarily stopping him from speaking on campus. The intention was to remove SMITH from campus in the hope that the meetings would stop without him, and was never to stop the actual crime from occurring on that occasion or any other. The charge of trafficking was the most convenient and severe penalty available to crown to subdue SMITH, infringing upon his rights to express himself and to associate freely in public.
The community’s sense of fair play and decency is undermined when special interest groups, like the university administration, pressure police into situations where individuals rights are trampled upon to maintain a facade of compliance with the law. -Defense witnesses state that others brought cannabis to the meetings to share with others, and while SMITH may have instigated the event, he was certainly not the only person who supplied the circle.
Mrs. Bushby testified that she had brought a joint to share and she saw others who brought their own to smoke in small groups. SMITH testified that he was given a green bag containing several bags of cannabis while he was at the meeting. In fact, the green bag contained more cannabis than SMITH apparently handed out at the meeting. Anyone who would give an activist some cannabis in this way at a public meeting would probably also bring some to smoke.
While police do not recall who gave the bag to SMITH, or when that happened, one officer claims he could tell no one else lit their own joint. Such a statement is obviously invalid as no one can watch over 30 people to see if any of them lit a joint, especially if they are watching one individual in particular. Equality before the law and freedom are not concepts limited to the courtroom, but it is a fundamental principle of justice that should be recognized by police as they carry out their duties.
- The use of this excessive force by the crown is arbitrary and discriminatory given that no one else has been approached at any of the over 220 weekly meetings that have occurred at the same time and place every single Wednesday for almost 6 straight years.
No citizen’s complaints have ever been made directly to Saanich police, yet great effort was spent punishing SMITH. Meetings have continued without apparent concern from police or the university administration, and now SMITH is back speaking on campus, though not smoking any cannabis. The arrest of SMITH is whimsical because the crime he is charged with has been occurring with absolutely no interruption by the police, even the day he was arrested. If this is a serious crime which deserved the full force of the law, then no one should ever be allowed to commit this act in public, not just those who announce their intentions on a…
… microphone. The fact is that while the majority of Canadians do not smoke cannabis, the vast majority choose to ignore it’s use.
-Justice Kay quoted the Supreme Court of Canada in MalmoLevine/Caine. Dec 23, 2003. paragraph #86 where smoking cannabis, golfing, gambling and eating fatty foods are behaviours that are grouped together to imply that if these lifestyle choices, and any similar to them, were legal and protected by the Charter of Rights and Freedoms, then society would become ‘ungovernable’.
First, cannabis is the only activity included in the list of potentially ungovernable activities that is currently illegal, the others are all perfectly legal, accepted and manageable lifestyle choices. This statement implies that the legalization of cannabis, and similar activities, would lead to an ungovernable society. This goes further that the crown has ever gone.
Second, since 1998 there has been legal protection available for medical cannabis users, and between Jan 2002 and Oct 2003 the possession law was being thrown out in thousands of cases across the country, with no resulting uncontrollable behaviour.
Third, contrary to the court’s statement, it is the prohibition of cannabis which makes society more difficult to govern, not the smoking of cannabis. By protecting this lifestyle choice the court would help manage the use of cannabis, regulating the quality of the products, collecting taxes from legitimate businesses while taking away excessive profits from organized criminals.
Fourth, golf, gambling and eating fatty foods all have real and potential harms, though the government allows or even condones these activities and others similar to them that have even greater potential and real risks.
Fifth, individual dignity and independence are expressed by one’s choice of leisure activities like sports, and gambling, by how a person decides to spend their money and by what food, drink and drugs one chooses to enjoy life with.
These basic lifestyle choices reflect and define one’s personality. Even more, because we literally are what we consume, the ability to decide what substances we ingest determines the chemical and biological structures of our physical being. -All cannabis shared was beneficial to those who choose to partake.
While SMITH does not suffer from a serious medical condition, he finds that his physical and emotional problems are relieved with his use of cannabis. SMITH also asserts that using cannabis may help prevent many potential medical problems ranging from Parkinson’s disease to cancer, glaucoma to arthritis.
The profit that Smith sought was simply the improved mental and physical health of the participants in the meeting and the world in general. When laws infringe upon consented, mutually beneficial actions for the sake of some potential, minor harm then the principles of fundamental justice have been violated.
When the state prohibits socially neutral conduct, which seems to benefit participants, it erodes hard-earned credibility and respect. This was an important factor in the Senate’s Report on Cannabis, Sept. 2002, which recommended legalizing the herb. -Health Canada is now giving free heroin in experiments in Vancouver. This program acknowledges people’s need to consume mind-altering substances despite the medical, economic and potential legal costs associated with drug use. Given that heroin has greater real and potential harm than cannabis, it is inconsistent for millions of dollars to be spent providing heroin in one city, while thousands of dollars are spent prosecuting people smoking joints in Victoria.
- Justice Kay denied Dr. Geiwitz the ability to fully discuss his skills and knowledge regarding cannabis and the current body of research. The prohibition of cannabis actually causes more potential harm to identified vulnerable groups, as Dr. Geiwitz was prepared to testify had he been given the chance.
Topics: CD-8th, Winter 2006 | Comments Off
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