Ruling shines different light on Emery's case
Ruling shines different light on Emery's case
Appeal Court judgment suggests Prince of Pot should get months, not
years, in Canadian, not U.S., prison
Ian Mulgrew, Vancouver Sun
Published: Monday, March 10, 2008
Finally, a court ruling that puts in perspective the five to 10 years'
imprisonment that B.C. cannabis crusader Marc Emery faces in U.S.
prison for selling pot seeds.
In a judgment released Friday, B.C. Court of Appeal Justice Richard
Low (backed by Justices Mary Newbury and Anne Rowles) said a one-month
jail sentence plus probation was appropriate punishment for such an
offence.
If anyone needed evidence, this decision exposes the fundamental
unfairness of what is happening to Emery.
The appeal grew out of a case heard in Courtenay last fall in which
the Crown thought too lenient concurrent, 30-day sentences imposed on
Daniel Anthony Kostantin for selling marijuana seeds.
The 36-year-old Kostantin pleaded guilty Sept. 26 to possession a year
earlier of cannabis for the purpose of trafficking and export.
The prosecutors thought nine to 15 months' incarceration more fitting.
Kostantin was caught with a dozen zip-lock baggies of bud having a
total weight of only 400 grams (less than a pound).
By contrast, he also had 1,426 grams (about three pounds) of seeds --
and he admitted he ran a seed-selling business.
He compared his operation to a wine boutique offering different
strains for marijuana connoisseurs.
Kostantin had incorporated a company, obtained a business loan to pay
for advertising and placed regular ads in High Times, a bible among
some in the marijuana subculture.
The judge noted police could have obtained a search warrant simply by
reading the magazine.
Kostantin also had attended conventions and been photographed
receiving an award from B.C. Bud Online for having developed the best
strain of God Bud.
The dried, packaged marijuana police found at his home were sales samples.
Emery, by comparison, for more than a decade has published his own
magazine advertising and celebrating the quality of his seeds.
He runs an Internet site devoted to marijuana, too. If there is a
difference in their operations, it is only one of scale.
I think what is most important is that neither Emery nor Kostantin are
exceptional.
There are at least a score of seed-sellers based in B.C. -- some, like
Emery, have retail stores in downtown Vancouver, mostly in the pot
precinct around West Hastings and Cambie.
There are many more such retail outlets across Canada.
They have flourished -- as did the Prince of Pot -- primarily because
police have been reluctant to lay charges because of the difficulty of
winning a conviction.
Seed prosecutions can be counted on one hand. This decision may be a
signal that is about to change.
In this case, the Crown argued that there should be no distinction
drawn between marijuana-growing operations and seed-sellers.
"I am inclined to agree with the Crown's contention," Justice Low said.
That's a strong statement about how the law should be interpreted and
if I were a seed-seller, I now would beware.
Still, in the realm of crime and punishment, the trial judge on the
Island determined that a "short, sharp sentence" of 30 days was
appropriate and would satisfy the need for denunciation and deterrence.
Justice Low agreed, with only a slight modification -- he imposed a
year's probation as well to provide some supervision after release.
Kostantin had no prior criminal record and had been a longtime, heavy
user of marijuana (smoking as much a 10 grams a day to relieve social
anxiety and depression) before being busted.
He has served his time, received addiction counselling, got medical
help for his anxiety, found a roofing job and cares for his
78-year-old mother who suffers from osteoarthritis and recently had a
hip replacement operation.
"In these circumstances it would be counterproductive to return the
respondent to jail to serve additional time," the justice concluded.
With that decision, in my opinion, Justice Low set a benchmark.
Leaving aside the money-laundering charges the Americans have added in
because Emery received money from his seed sales, the Kostantin case
is identical.
But instead of a month in jail, Emery faces five years behind bars --
and that's if his tentative deal goes through!
He is still trying to complete a plea bargain to save from jail his
two co-accused -- Michelle Rainey and Greg Williams. If not, the trio
could be looking at 10- to 20-year stretches.
Other than murderers and their ilk, no one goes to jail for that long
in Canada.
With this judgment, the province's highest bench found no reason to
conclude seed-selling deserved extraordinary jail time.
That's why Emery's extradition should be blocked.
Charge him and prosecute him here if need be, but given his alleged
crimes, he should not be handed over to a foreign state for such
severe punishment.
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