HOLY SMOKE TRIO AVOID PRISON

The Holy Smoke saga has come to a close, as British Columbia's
highest court has said Alan Middlemiss, Paul Defelice and Kelsey
Stratas should not serve time in jail for selling marijuana out of
the Holy Smoke Culture Shop in downtown Nelson.

The three were sentenced to serve time in a federal prison after they
were found guilty of marijuana trafficking in a highly-publicized
2008 BC Supreme Court trial - that resulted from an undercover
investigation and subsequent raid on the Holy Smoke Culture Shop by
the Nelson Police Department in 2006.

In January of 2009 Middlemiss and Defelice, who were co-owners of the
now-defunct shop, were handed a year in jail each and Stratas, an
employee of the store was given eight months. All three had a record
of previous marijuana-related offences.

Akka Annis, another employee of the store was given 40 days in jail
to be served at the local jail due to his lack of criminal record.

The former three brought their lengthy sentences to the BC Court of
Appeals and after more than a year of waiting learned yesterday that
they would be punished with only conditional sentences and house
arrest, to be served at home here in Nelson.

"The court of appeal found that the sentence was excessive and it
should be reduced to a nine-month conditional sentence for Paul and
Allen, and a six-month conditional sentence for Kelsey," said Dustin
Cantwell, assistant to Don Skogstad, the lawyer for the three and
also a co-owner of The Holy Smoke.

In his judgment on the appeal handed down yesterday, The Honourable
Justice Chaisson stated that "expressing disagreement with existing
law and advocating change is lawful. Indeed it's a fundamental right
in a free and democratic society.

"Undertaking illegal activity as part of expressing disagreement and
advocating is not lawful. On the contrary, it strikes at the core of
a free and democratic society: the rule of law."

At the trial the foursome had stated that they would continue their
long-time advocacy against marijuana laws, but said they would not do
so by continuing to participate in illegal activities like selling marijuana.

Justice Chaisson said the sentencing judge combined the two
intentions into one, which led to a sentencing error.

"In my view, that conflation (combination) coupled with a failure to
consider the deterrent effect of a properly crafted conditional
sentence led to an error," Chaisson stated.

He added that prior convictions of marijuana cultivation and
trafficking by Middlemiss and Defelice were not sufficient cause to
rule out a conditional sentence.

"In the circumstances of this case, the one year sentence was at the
top or beyond the range," Justice Chaisson wrote.

Middlemiss and Defelice had asked in their appeal for conditional
sentences of six months, but Justice Chaisson denied that request and
said a nine-month sentence would better suit their crime.

"These trafficking offences had a public dimension that must be
recognized and condemned," Justice Chaisson stated. "Public, open
violation of the law must be met with measured, recognizable condemnation."

The conditional sentences handed to the men prohibit them from
partaking in alcohol or drugs, leaving the province without
permission and require them to stay under house arrest.

"(They) have to abide by the conditions set out by the court for that
period of time," explained Cantwell. "Once they've fulfilled their
conditions for that time then their sentence is done.

"It's the equivalent of jail. If they breach those conditions they go
straight to jail. So it's onerous."

Neither of the three men were available for comment as of press time,
but Cantwell said the ruling is a huge landmark for those who
advocate against marijuana prohibition.

"It kind of spells out that advocacy for the repeal of drug laws is
legal and shouldn't be held against you when you're being sentenced,"
he said. "The activity is illegal. Speaking out against the laws is not."

Nelson Police Department Chief, Dan Maluta declined comment on the
appeal outcome