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COOKIE GIVEAWAY APPEAL by Ted Smith
By Hempology | April 9, 2006
Last fall I was convicted of possession for the purpose of trafficking THE after being arrested on Nov 15, 2000 on International Medical Marijuana Day before the annual cookie giveaway. My appeal should be this fall.
Here are the details. —The defendant’s rights were violated under Section 11(d) of the Canadian Charter of Rights and Freedoms by the unnecessary refusal to be allowed to witness proceedings held in private judges chambers where issues involving the constitutional challenge were discussed in the very early stages. There is no record at all of the hearing in judge’s chambers on Jan 24, 2001.
Even the transcript of Feb 20, 2001, is incomplete, starting some time after the proceedings had started and obviously only after repeated suggestions by the defendant’s lawyer that he should be present. There was no reason given for these hearings to be held in private chambers without the accused or general public allowed access. Not being a witness to critical discussions regarding the constitutional challenge denied the defendant the ability to instruct his lawyer and other legal consultants with a complete understanding of the judicial process through which the case was involved.
— The defendant’s rights were violated under Section 11(d) of the Canadian Charter of Rights and Freedoms by the unnecessary refusal to be allowed to witness all proceedings regarding this trial. Judge Wilson acknowledged that private chamber meetings are now- rare in Supreme Court because of the lack of transparency, the possibility of judicial prejudice occurring behind closed doors, and other concerns. There is no extra burden upon the court to have all proceedings in public where the defendant, media and general public can witness justice.
Public hearings should absolve judges of accusations of judicial prejudice, ensure fair and consistent legal process and allow the defendant every opportunity to understand how the crown is proceeding with the prosecution. The public has every right to witness these types of proceeding, particularly if they are of political nature.
In transcript from his private chambers, Judge Smith states several times that he believes the defendant has political intentions. The law is created by politicians who are elected to realize the wishes of the public. The public debates the issues pertaining to law through the media, which report upon important cases so that an understanding of the judicial process can be made accessible and transparent. So if judges do not consider changing the law to be their job, then they should not stop the media from informing the voters so they can do their job. The decision made by Judge Smith to move the hearings into his private chambers had everything to do with his personal political opposition to the defendant’s position and had no legal justification.
— The defendant’s rights were violated under Section 11(d) of the Canadian Charter of Rights and Freedoms by the unnecessary refusal to be allowed to witness all proceedings regarding this trial. Provincial court judges should not have the arbitrary and discretionary power to move complex, public trials to their private chambers at preliminary stages of a trial for no reason other than to undermine and confuse the defendant.
In fact, very early in the transcripts from the private chambers hearing of Feb 20, 2001, Judge Smith states that the defendant will read the transcript as he prepares his appeal against conviction, implying that the trial was predetermined. Judge Smith also stated that the defendant’s lawyer was acting in his peril by requesting that the constitutional questions occur at the conclusion of the trial. No reason was ever given for combining the constitutional questions from this trial and another the defendant was facing, to be held far in advance of the actual trials.
Instead of ensuring that the trail proceeded in a fair and expeditious manner, these private chambers hearings forced the defendant to act without a full understanding of the process. The extra time delay that occurred because of this confusion in the process made it impossible for the defendant to remain in contact with any of the student witnesses to the event because any student going to school in Nov, 2000 would have graduated in April 2004, almost 1 year before the trial started. Originally 7 students were prepared to be witnesses in court.
The defendant’s rights were violated under Section 7 of the Canadian Charter of Rights and Freedoms by the inclusion of THE in the CDSA without any allowance for small traces of the drug, which are legal and healthy when consumed orally. The Industrial Hemp Regulations allow for 0.3% THE in the plant and 10 micrograms of THE in hemp products. It is clear that the CDSA and Industrial Hemp Regulations are not consistent, and while the CDSA may supersede the Industrial Hemp Regulations, that does not mean that the law should not be written with a blanket criminal prohibition of THC. The test used by the analyst proved that THC was present, but it could have been a very small amount. Further, evidence from Dr. Pate suggests that other cannabinoid such as CBD have very similar molecular weights and may be mistaken for THC. Nor can the test done by the analyst tell the difference between THC from hemp or marijuana. —The defendant’s rights were violated under Section 7 of the Canadian Charter of Rights and Freedoms by the inclusion of THE in the CDSA.
The absolute prohibition of THC conflicts with the public’s sense of fair play and decency, especially when considering that the sharing of small amounts of THC in edible products has a maximum penalty of life imprisonment. Considering that the charge and potential punishment is so serious, the state should have to properly test the substance in question to determine the quantity of THC. The penalties associated with sharing even small amounts of this beneficial drug are even greater than those for trafficking cannabis and cannabis resin, and therefore the law appears to be grossly disproportionate in the eyes of the community. According to the CDSA, every time a hemp product is sold, the crime of trafficking THC has occurred.
— Before giving his instructions to the jury, Judge Wilson realized that the jury will be confused when considering the testimony of the analyst and Dr. Pate because it was clear from their evidence that there were legal sources of THC. However, simply referring to the principle of de minimus and R. v. Keiser’ (1990) 98 N.S.R. (2nd) 266 does not mean that this problem is irrelevant. In his instructions he essentially repeated the absolute prohibition of THC, forcing the jury to disregard the possibility that the THC came from a legal source.
Topics: CD-9th, Spring 2006 | Comments Off
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