HOLY SMOKE LAWYER ARGUES 'LESSER OF TWO EVILS'

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.