UP IN SMOKE

A Century Of Legal Subjugation Of The Kootenay's Famously Illicit Lifestyle

"I am determined to break up these dens as it is known that a number
of white men and women have been in the habit of frequenting them."
-Rossland Chief of Police, Thomas Long, 1901

"I think probably if I were to give a message to the community it
would be, if you are going to the Holy Smoke to buy a controlled
substance or if you are at the Holy Smoke to sell a controlled
substance you be very careful because you are liable to be arrested."
-Nelson City Police Sgt. Steve Bank, 2006

In 1901, Josie Perkins arrived in the Kootenays, leaving behind a
life turned tragic on Vancouver Island following the death of her infant child.

One month later, she lay dead in a local Chinese opium den. That
evening, Rossland police dutifully arrested the small contingent of
Chinese merchants who sold opium, primarily to other Chinese. Chief
Long's comments indicated the mixing races under a cloud of illicit
smoke was not a lifestyle that would be tolerated in the Kootenays.

A century later, Alan Middlemiss, co-owner of Nelson's Holy Smoke
Culture Shop, stood naked in the Nelson City Police detachment,
having voluntarily disrobed during his arrest for trafficking marijuana.

His business partner, Paul DeFelice, was arrested a month earlier
during a police search of the store. Unlike the region's first drug
busts, the second raid of Holy Smoke in less than 10 years was not
motivated by the immorality of mixed race drug indulgence. Instead,
Sergeant Steve Bank maintained the matter was a law enforcement issue.

Holy Smoke's supporters saw it as a random and unwarranted legal
suppression of a lifestyle they perceive to be relatively harmless,
spiritual, or as the store will argue in court, necessary.

The rise of marijuana culture in the Kootenays is largely associated
with the hippie lifestyle that flourished in the late 1960s -one
bolstered by the influx of Americans avoiding the Vietnam draft.

A recent study by the Fraser Institute suggested that more marijuana
is produced in the Kootenays per capita than anywhere else in the province.

In late 2005, a story in Rolling Stone Magazine about a multi-million
dollar Idaho marijuana smuggling operation observed, "Nelson's
remoteness makes it ideal terrain for pot growers... Overlooking the
main street is the Holy Smoke Culture Shop... in Nelson, it functions
more like a second city hall. Hikers, snowboarders and potheads come
to Nelson from all over the continent to openly smoke weed and to buy
one of the various strains of BC Bud..."

Nelson's stellar recreation lifestyle and the perceived link between
drug tourism was hardly the sort of publicity city officials sought
to attract. The undercover investigation that resulted in the Holy
Smoke raid started shortly after the appearance of the magazine article.

The link between the 19th century Rossland opium dealers and the Holy
Smoke proprietors is lifestyle: an engrained culture of smoking,
sharing and selling a narcotic and the consequent attention from police.

Our society's ideal of law is that it's created and enforced in a
universal manner. Historically, however, the creation and enforcement
of drug laws have been shaped largely by society's perceptions of the
drug lifestyle rather than by any objective justification.

Chinese workers came to British Columbia in the late 19th century to
work in the mines and on the transcontinental railway.

Soon, their cultural traditions of gambling and opium use attracted
public concern and police attention almost immediately. The notion of
Chinese drug users corrupting the morals of innocent Caucasians was
the motivation for the raid on Rossland opium dens following Josie
Perkins' fatal overdose.

The fact that Perkins was a prostitute who had sought out opium at
her own volition was less problematic than the symbolism of a white
woman dead in a Chinese opium den.

Such social perceptions were instrumental in the parliamentary debate
that outlawed the sale of opium in 1908 for non-medical purposes.

Canada's first law criminalizing recreational drug use was sponsored
by future Prime Minister Mackenzie King after he discovered a
flourishing Chinese opium industry the previous year in Vancouver,
patronized by white women whom King characterized as morally degraded.

Further condemnation of Chinese opium use was popularized by the
writings of Edmonton police magistrate and judge Emily Murphy, who
was shocked to learn of the illicit traffic in narcotics, of which
the Canadian public was unaware. Her anti-drug treatise, The Black
Candle, first serialized in Maclean's Magazine under the pen name
"Janey Canuck", was widely acclaimed and influential. Murphy
characterized drug use as an epidemic propagated upon unwitting white
Canadians by foreign fiends, and she found support with lawmakers.
Over the next 15 years, a series of changes to the 1908 law resulted
in drastically stricter penalties for possession and trafficking in opium.

Under the revamped law, the Chinese faced a disproportionate level of
legal scrutiny, compromising over 60 per cent of the convictions. In
1923, Chew Yung, a 25-year resident of Cranbrook, had the dubious
distinction of being the first from the Kootenays to be imprisoned
and deported under the new law. Shortly thereafter, the Nelson Daily
News editorialized that the flogging of drug dealers was a sentence
supported by public opinion.

However, by 1930, the deportation provisions and international events
effectively diminished the Chinese-run opium trade in Canada.

During this period of crackdowns, a seemingly minor amendment was
passed in 1923 without public comment or political debate.

Added to the schedule of illegal narcotics was a drug specified as
"Cannabis Indica (Indian Hemp) or Hasheesh." An early account of the
effects of marijuana appeared in Murphy's writings, in which an
American police chief described users as "raving maniacs, liable to
engage in violence using the most savage methods of cruelty."
Similarly, the 1936 film Reefer Madness, financed by a small church
group, depicted the marijuana lifestyle as leading one from wild jazz
dancing to vehicular homicide, suicide and insanity.

Despite such outrageous assertions, the number of marijuana
possession convictions did not exceed 100 on a nation-wide basis
until 1966. In time, a negative depiction of the marijuana lifestyle
resulted in increased efforts at eradicating a perceived social problem.

As police began to turn their attention to the non-conformist hippie
lifestyle, marijuana convictions reached nearly 1,500 by the end of
the 1960s. Through the 70s and 80s, possession convictions increased
exponentially each year to its present level of approximately 30,000
per year (Canada arrests approximately 70,000 per year for
marijuana-related offences, i.e. possession, cultivation, and
trafficking), as drug policymakers adopted the enduring metaphor of a
war required to protect the public.

Holy Smoke's owners seek the reform of Canada's drug laws. They
intend to fight pending charges using the legal defence of necessity
(their trial is expected to take place during the latter part of this
year or early next year). The origins of the defence lie in a 19th
century British murder case in which two shipwrecked sailors
unsuccessfully argued that it was necessary for their survival to
kill and eat the cabin boy. A difficult defence to assert, Canadian
law recognizes there may be certain emergency situations where
self-preservation or altruism impel disobedience of a law. Holy Smoke
is expected to argue that provision of marijuana in a safe
environment at a fair price is necessary to eliminate the social harm
caused by street trafficking, more harmful drugs or marijuana laced
with impurities.

Historically, drug use was criminalized in an era when no distinction
was made between the physical harm associated with the drug itself
and the lifestyle accompanying those that used or supplied it. A
particular lifestyle exhibits a set of external symbols that convey
how a person or place is perceived.

For those that govern and police Nelson, the popular perception
publicized by continental media of a lawless drug mecca is unwelcome.

For those that celebrate the Kootenays as a place synonymous with the
marijuana lifestyle, the recent arrests of the owners of the Holy
Smoke Culture Shop is an important reminder that the negative
connotations associated with the drug lifestyle have resulted in more
than 100 years of legal crackdowns.