EVIDENCE AGAINST HOLY SMOKE OWNERS THROWN OUT

Crown's case in jeopardy after judge writes scathing review of Nelson City
Police conduct

The possession of marijuana case against Dustin "Sunflower" Cantwell, Alan
Middlemiss and Paul DeFelice, the proprietors of the Holy Smoke Culture
Shop, was dealt a severe blow yesterday when crucial evidence was thrown out
because of an illegal police search.

The written ruling on the voir dire - a hearing to determine the
admissibility of evidence - comes after five days of testimony, spread out
over several months.

The defence, led by lawyers Don Skogstad and Kenyon McGee, argued that the
search of the Holy Smoke Culture Shop on October 15, 1997 violated Section 8
of the Canadian Charter of Rights which protects citizens from unreasonable
search and seizure.

The defence questioned the information police used to obtain the warrant and
the status of a key piece of evidence - a bag of marijuana police say they
found "in plain view" on a counter in the store. Defense witnesses,
including Cantwell who was in the store when police arrived, said the bag
wasn't on the counter.

In his ruling, Justice Mark Takahashi was harshly critical of the actions of
the Nelson City Police, including the arresting officers, Det. Howie Grant
and Sgt. Dan Maluta.

"Grant discovered the drugs," Takahashi wrote. "The determination that
Grant is a reliable witness is a precondition to finding that the drugs were
found in "plain view." I cannot make that determination. In all
circumstances I find the evidence of the defence more compelling. I find
that the discovery of the drugs came from an illegal search."

Takahashi was also critical of the arrests of Cantwell, Middlemiss and the
customers in the store at the time of the search, saying police showed "a
cavilier attitude towards the laws of arrest and search."

Takahashi finds fault with almost every aspect of police conduct at issue in
the voir dire. He writes: "The police cannot claim the benefit of good
faith. This was lost by the staging of the drugs, the misrepresentations in
the information [to obtain a search warrant], the misrepresentations at
trial and the disregard for the Charter.

"The administration of justice in this case cannot endorse the behaviour of
police without a loss of reputation. I rule that evidence adduced on the
voir dire be excluded," Takahashi concludes.

Reaction from the Holy Smoke owners was one of cautious elation.

"I'm trying to wait until all the eggs are in the basket before counting
them, but I'm excited for sure," said Cantwell.

"It shows that we do have a right to speak out on changing laws. They used
the facts that we were [marijuana decriminilization] advocates to come after
us. That's the kind of thing that puts a chill on people. It just goes to
show that we do have some rights to free speech," said DeFelice.

Tht Nelson City Police, Crown attorney Rob Brown and Mayor Gary Exner all
refused to comment on the decision yesterday. Representatives from the NCP
said they planned to "review and discusss" the ruling before making any
public comment was possible.

The case is back in court Tuesday morning and the Crown could appeal
Takahashi's ruling - but defence lawyer Skogstad says that's unlikely.

"There are findings of credibility in the ruling that are positive for
defence witnesses and negative for Crown witnesses and those aren't usually
possible to appeal," he said.

Skogstad said the ruling is important because it questions the actions and
credibility of police.

"It's very significant in that it refers to police activities that just
aren't up to snuff," he said. "The investigations have to be done with
greater professionalism. There have to be some improvements down at the
police station before they are going to be more effective."

As to whether the damage to police credibility was permanent, Skogstad was
uncertain.

"It's definitely a blow, but I think they can come back and do things right
in a future case and be alright. But I think they better read this judgment
and pay attention to it."

Skogstad said he thinks investigations like this one, which cost the
taxpayers tens of thousands of dollars for less than three ounces of
marijuana, are a waste of time and money for police.

"This investigation of a very small amount of what appears to be personal
use or medical use marijuana is a misuse of public resources. There are
better ways to spend the law enforcement money than to waste their time with
little operations like this," he said.

Cantwell agrees.

"The best thing that can be learned from this case is make sure your
priorities are straight. Make sure that cannabis is on the bottom of that
list because there are infinitely more important things that need police
officers' time.