SEEING BOTH SIDES THROUGH THE SMOKE

Are the police officers in this city liars? Do they fabricate or move
evidence and twist the facts to get warrants? Do they misrepresent the facts
in court to get convictions?

Those are all things that could be inferred from reading the ruling handed
down by Justice Mark Takahashi in the Holy Smoke drug possession case.
Takahashi says point blank that he can't determine if one of the arresting
officers, Det. Howie Grant, is a reliable witness. He says that Grant and
Maluta demonstrated a "cavalier attitude towards the laws of arrest and
search." Finally the hammer: "The police cannot claim the benefit of good
faith."

Reading this ruling would, one could easily conclude that the Nelson City
Police are some kind of modern Gestapo, whose conduct in enforcing the law
is worse than those committing the crime. If this were the big city, there
would be a cry for some badges.

But these aren't nameless, faceless cops. These are two long standing
members of this community who are raising their families here. They aren't
liars. They are nice guys, with the best of intentions. What then went
wrong here that has led a judge to impugn the character of these men, of
this police force, so strongly?

When judging the conduct of the Nelson City Police in this circumstance, it
is vitally important to remember that in one aspect they were bang on: there
were illegal drugs in the store the day they raided it. That is not in
dispute. The only questions surround police porocedure and the respect of
the rights of individuals.

There will be many in this community who feel the actions of the police
against the proprietors of Holy Smoke were justified. To some, the place is
a menace. To see that, one has to look no further than the city's attempt
to run them out of business by jacking up their business license fees. The
police have said repeatedly that they received complaints from community
members about the activities in the shop. Of particular concern are
allegations that the store services an under 18 clientele - something the
owners vehemently deny.

What they do not deny however, is that they believe in the decriminalization
of marijuana and smoke it on a regular basis. More than that, they are
advocates who promote the use of marijuana for a variety of purposes,
including religious, medicinal and, one would suspect recreational. Their
presence and their high public profile (thanks in no small part to local
media) is a source of frustration for Nelson City Police. Officers have
undoubtedly had to deal with members of this community saying point blank:
"Why don't you guys do something about this?"

Looked at in that light, the attempt to shut down Holy Smoke is, at its
root, a noble cause. Regardless of your opinion on the decriminalization of
marijuana, the job of the police is to enforce the law - it is not for them
to question the validity of that law. There is an important difference
between lawmakers and law enforcers.

On the other hand, the laws that protect the proprietors of Holy Smoke also
protect the rest of us. The ruling, in fact the whole situation, raises a
larger question of the rights of individuals vs. the right of police
officers to take the necessary steps to combat what they believe are
criminal activities.

What is clear in this situation is that police treated the Holy Smoke owners
as if they were already criminals. The shop was specifically targeted by
the Nelson police as a place they wanted to shut down, and the officers
acknowledged they were upset and angry on the day of the raid because of
what they thought were illegal activities going on in the store. In their
anger and haste - and things must have happened pretty fast that day - they
disregarded the rights the Holy Smoke owners enjoy as Canadian citizens.
Those rights must remain intact, for everyone at all times. It is slippery
slope once the violations begin - marijuana smokers today...

Depending on what side of the marijuana debate you're on, it's easy to
choose sides. The cops are evil and the Holy Smoke guys victims. Or the
Holy Smoke guys are trouble and the cops are doing the best they can. But in
our small community, it isn't that black white. Our police force is a good
one, made up of good people. The holy Smoke owners are small business
owners fighting for what they believe in, convinced they are a positive
element in this community.

As police, what Maluta and Grant did in this case was wrong: their anger and
zealousness got the better of them and the result was violations of rights
that must remain paramount at all times, for everyone. To catch someone
breaking the law, they broke the law themselves - hardly a good trade-off.
The judge saw that, and called them on it. But as people, it would wrong to
judge their conduct too hastily, to place too much stock in this ruling.
They are still good men, who may have made mistakes doing what they believed
was right.