'HOLY SMOKE FOUR' CONVICTED OF MARIJUANA TRAFFICKING

Legalization Fight: Judge shoots down defence arguments in case
involving downtown Nelson business; prosecutor says no remorse from
four men should lead to a harsh sentence

A guilty verdict came down Friday in Nelson Provincial Court for the
four men charged with marijuana trafficking out of the Holy Smoke
Culture Shop on Baker Street in Nelson.

After the guilty verdict, three of the four men could be looking at
spending nine months to a year in jail when they head back to court
for sentencing in two weeks time.

Holy Smoke co-owners, Alan Middlemiss and Paul DeFelice and sales
associates Kelsey Stratas and Akka Annis were each charged with two
counts of trafficking cannabis after the Nelson Police Department
raided the store on July 15, 2006 and said they found a pound and a
half of marijuana and between $8,000 and $9,000 in cash.

When the four men went to court in late-April 2008 to face their
charges, they did not deny the charges, but instead admitted to
selling marijuana from the shop as a way to provide a safe, quality
product to adults, and to provide easy access to those who use
marijuana for medical purposes.

In an effort to show just cause for the marijuana sale, Don Skogstad,
attorney for the four men, brought in witnesses such as recovering
drug addicts who stated that marijuana helped them get off hard drugs,
people with chronic illnesses who bought pot from the shop to help
them deal with their diseases, and expert witness, Dr. Robert Melamede
of the University of Colorado, who testified about the effects of
marijuana on the human body.

They also argued that they initially started selling marijuana out of
the store in an effort to stop the drug dealing activities taking
place in the community park next to the business, and to ensure that
people were getting safe, quality marijuana - instead of getting pot
laced with hard drugs like crystal meth.

But today the four men learned that their efforts to convince the
court of the legitimacy of their actions had failed, as Judge Don
Sperry found them guilty as charged.

In the summation of his verdict, Sperry said the evidence presented by
the defense failed to justify the claims that they were providing, a
community service and helping those with illnesses.

No one can objectively say the accused had to sell marijuana to people
in eminent peril, Sperry said. And the innovative approach by Holy
Smoke cannot be clearly seen as serving the public interest.

"The defense of necessity has not been raised through the evidence
placed before me," Sperry said. "Each of the accused must face the
charges against them."

Sperry also said that the decriminalization or legalization of
marijuana - which was a theme throughout the trial - is not a matter
to be settled in a provincial court.

"I don't want to second guess the legislature," he said. "Parliament
is the best place to discuss federal criminal regulations."

After Sperry brought down his decision, the two attorneys made their
arguments in regards to the sentences that should be handed down to
the men.

Crown prosecutor, Rob Brown said the proper sentencing in this case is
difficult to determine because there have been no trials similar to
this one held in the country to set a precedent.

But pointing to the facts that three of the four men, all but Annis,
had criminal records relating to possession and trafficking of
marijuana, and none showed any remorse for their actions in the trial,
Brown asked they be handed down a harsh penalty.

"This is a unique situation of a group of people who really don't come
before the court with any degree or remorse, or regard or respect for
the rule of law we all have to live by," Brown said.

"I lawfully submit that the setup of this is an aggravating feature.
I find it offensive that they can wrap themselves up in people who are
ill and need help. They never asked anything of anyone buying this
product. They just quoted a price.

"It's an attitude that conveys to you that they will continue to do
it."

Because Annis lacked a criminal record, Brown suggested a lesser
sentence for him, but he advocated for nine to 12 months for DeFelice,
Stratas and Middlemiss.

"If you only impose a sentence of one month...I don't feel that will
come close to scratching the surface of this group," Brown stated.

"A balanced sentence for the three with records has to be at least
nine to 12 months."

Starting out in defense of his clients, Skogstad said they were being
prosecuted more harshly because they chose to exercise their right to
free speech and because they are advocates of marijuana use.

Skogstad also assured the court that the building currently housing
Holy Smoke is up for sale and thus the store will be closing down in
the near future with no plans by the owners to relocate.

After reiterating the key points of his defense, and stating that his
four clients were respectable, contributing members of the community,
Skogstad asked that the judge consider a much lesser sentence for the
four men.

"Nine to 12 months? A dealer dealing in an alley with previous
convictions wouldn't be looking at nine months," Skogstad said outside
the court while awaiting sentencing.

"I don't think they should get prosecuted for doing it in an organized
fashion."

Skogstad said most his clients should be given is a discharge with
community service work required.

At that time Skogstad said he expected the sentencing to be postponed
for about two weeks due to a request he made to Judge Sperry for time
to collect character references for his clients.

"We know there are prominent people in this town who are going to give
them some support," Skogstad said. "When you're looking at a year in
jail, you want to get a lot of ammunition."

When court reconvened, Sperry stated his desire, and a desire by the
community at large to see an end to the trial, but granted the request.

The sentencing is scheduled for Nelson Provincial Court on Tuesday,
Oct 14 at 9 a.m.