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Written by Honourable Judge Sperry   
Thursday, 09 October 2008
File No:  18879-3-C
Registry: Nelson

In the Provincial Court of British Columbia




Crown Counsel: R. Brown

Defence Counsel: D. Skogstad

Place of Hearing: Nelson, B.C.

Date of Judgment: September 26, 2008

R. v. De Felice and others   
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[1] THE COURT:  The matter was adjourned to today’s date for me to deliver reasons for judgment after having received written submissions from both counsel on behalf of the Director of Public Prosecutions for the Attorney General of Canada and counsel for the four accused at bar. 

[2] The accused, Paul De Felice, Akka Annis, Kelsey Stratas, and Alan Middlemiss are each and every one of them admitted marihuana traffickers.  In June and July of 2006, Nelson City Police in Nelson, British Columbia, were conducting an undercover operation targeting the Holy Smoke Culture Shop located at 512 Hendryx Street in Nelson. 

[3] On June 2nd, 2006, at approximately 1700 hours, three undercover police officers entered the Holy Smoke Culture Shop.  They were Constable Tony Herbert of the Abbotsford Police Department, Constable Mike Martin of the Oak Bay Police Department, and Constable Darrell Fairburn of the Victoria Police Department.

[4] The Holy Smoke Culture Shop has an area where food items and coffee are sold.  Retail products are sold in the store including cannabis paraphernalia and tobacco.  In a back corner, there is a counter where marihuana was sold. 

[5] Constable Martin entered and approached a display counter

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within the shop.  It had pipes, bongs, and other cannabis paraphernalia displayed within.  He purchased a lighter from a female and then his attention was drawn to a back counter in the northwest corner.  He proceeded to this back counter.

[6] He noted items of bud marihuana displayed on a Lazy Susan on the counter.  Each was labelled with a different name, “Chocolate Hemp,” “Rong,” and “Wrepper.”  Mr. De Felice was behind the counter.  Constable Martin asked Mr. De Felice if he could have some Chocolate.  Mr. De Felice said they were getting low, but he should be able to help him out.  Mr. De Felice then measured out the marihuana, pushed it across the counter, and handed Constable Martin an empty plastic bag.  Constable Martin placed the marihuana in a baggie.

[7] Then Mr. De Felice put it on a scale.  It read, “1.7.”  Mr. De Felice returned the baggie with the marihuana to Constable Martin and asked him for $15.  Constable Martin paid $15 and took the baggie to an area where the other undercover operators were seated within the shop.  This transaction relates to Count 1 in the Information before the court.

[8] At that point, Constable Herbert approached the same counter and asked Mr. De Felice if he had some more Chocolate.  Mr. De Felice said he was out.  Constable Herbert asked which one of the remaining types was the closest to Chocolate.  Mr.

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De Felice replied that Rong was.  Constable Herbert asked to buy $15 worth of Rong.  Mr. De Felice took a piece off the large bud and weighed it and sold it to Constable Herbert for $15.  The piece of marihuana weighed 1.7 grams.  This transaction relates to Count 2 in the Information. 

[9] On June 3rd, 2006, at approximately 1515 hours, Constable Herbert and Constable Martin and Constable Fairburn once again entered the Holy Smoke Culture Shop in an undercover capacity.  Constable Martin attended at the same back counter.  Behind the counter was Mr. Annis.  Displayed in plain view on the Lazy Susan were two large buds of cannabis marihuana and a small block of dark cannabis resin.

[10] Constable Martin asked Mr. Annis what the marihuana buds were and Mr. Annis replied, “Rong and Jack Hemp.”  Constable Martin smelled the Jack Hemp.  Mr. Annis commented on how good the Jack Hemp was.  Constable Martin asked for one gram of Jack Hemp which Mr. Annis weighed out and placed in a clear plastic baggie.  Constable Martin paid $10 for the marihuana which weighed 1.25 grams.  This transaction relates to Count 3 of the Information.

[11] On the same day at approximately 1712 hours, the same undercover operators attended at the Holy Smoke Culture Shop to the same back counter.  Once again, Mr. Annis was behind

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the counter.  Constable Herbert asked if he could buy $10 worth of marihuana and $10 worth of hash.  That is a term used for cannabis resin.  Mr. Annis started packing those drugs.  There was a conversation about whether Constable Herbert could buy an ounce.  Mr. Annis said he could get an ounce together and that it would be $240.  Mr. Annis sold 1.1 grams of marihuana and 1.14 grams of cannabis resin to Constable Herbert for $25.  These transactions relate to Counts 4 and 5 on the Information.

[12] Later that day at approximately 1800 hours, Constable Herbert and Constable Martin returned to the Holy Smoke Culture Shop.  Mr. Annis followed them to the back counter.  They had a conversation.  Constable Herbert told Mr. Annis that he was able to raise the money.  Mr. Annis said, “You want an ounce?”  Constable Martin replied, “Yes.”  Constable Martin handed Mr. Annis $300.  Mr. Annis said, “Well, it’s only $240,” and returned $60 in change.  Mr. Annis then handed Constable Martin a baggie of marihuana which weighed 30.87 grams.  This transaction relates to Count 6 in the Information.

[13] On July 12 at 1720 hours, Constable Herbert, Constable Martin, and Constable Ann Fontaine of the Vancouver Police Department entered the Holy Smoke Culture Shop again in an

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undercover capacity.  They attended at the back counter where Constables Herbert and Martin had previously purchased marihuana.  They remained at the counter for a few minutes and Mr. Stratas came and opened up the counter for business.

[14] Mr. Stratas said the marihuana was $10 a gram and that the hash and bubble hash, terms used for cannabis resin, were $15 a gram.  Constable Martin observed two types of marihuana sitting on a Lazy Susan on the counter where he was standing.  They were labelled, “Chocolate” and “Hemp Star.”  Constable Martin asked Mr. Stratas for one gram of the Chocolate and handed him a $20 bill.

[15] Mr. Stratas pulled a large bag containing approximately an ounce of marihuana from under the counter.  He weighed a quantity from the bulk, put it in a baggie, and handed Constable Martin the baggie and $10 change.  The marihuana weighed 1.4 grams.  This transaction relates to Count 7 on the Information.

[16] Constable Herbert was standing in line behind Constable Martin.  Constable Herbert asked Mr. Stratas, “Did you say the bubble hash was $15?”  Mr. Stratas replied, “Yeah, $15 a gram.”  Constable Herbert said he would take a gram.  Mr. Stratas weighed the cannabis resin and placed it in a baggie.  He gave it to Constable Herbert in exchange for $15.  The

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cannabis resin weighed 1.2 grams.  This transaction relates to Count 8 on the Information.

[17] On July 13th, 2006, the same three undercover operators again attended at the Holy Smoke Culture Shop.  They approached the back counter where Mr. Middlemiss was working.  On the counter were four or five types of marihuana.  Constable Herbert asked Mr. Middlemiss for some Chocolate pointing to one of the buds displayed.  Mr. Middlemiss asked how much and he replied, “A dime.”  That means $10.

[18] Mr. Middlemiss measured out a quantity of marihuana, later found to be 1.7 grams, placed it in a baggie, and handed it to Constable Herbert who paid him $10.  This transaction relates to Count 9 of the Information.

[19] All facts alleged by the Crown are admitted by the defence, as are the identities of each of the accused.  The accused people jointly and severally plead the common law defence of necessity.  Necessity is the only defence put forward by any of the accused people and, unless that defence prevails, convictions against of them must be entered as in every respect the Crown have proven their case or cases against each accused beyond all reasonable doubt.

[20] The defence of necessity is founded on the basis of

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excuse, not justification.  Shortly stated, a person may not break the law because of a firmly and conscientiously-held belief that the law is wrong, but may be excused from breaking the law to advert imminent peril to themselves or to others.  During the course of these reasons, I will be referring as the occasion demands particularly to R. v. Perka, a 1984 decision of the Supreme Court of Canada.  The cite is S.C.J. No. 40.

[21] The accused say that the defence of necessity is made out in each of three disparate ways:

(a) that the actions of the accused alleviate the dangers of street dealing including the risk of contaminated or impure product, the risk of sales to youth, and the tendency of dealers to offer purchasers more serious drugs; the sale of marihuana within Holy Smoke effectively addressed the problem of drug dealing in the garden near the Holy Smoke premises;

(b) that Holy Smoke provides a medicine to those who would have catastrophic consequences if it were not available to them; and

(c) that marihuana is a therapeutic alternative to more dangerous drugs.

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[22] In R. v. Perka, Mr. Justice Dickson summarized the court’s conclusions with respect to the defence of necessity as follows, and I quote:
It is now possible to summarize a number of conclusions as to the defence of necessity in terms of its nature, basis and limitations: (1) the defence of necessity could be conceptualized as either a justification or an excuse; (2) it should be recognized in Canada as an excuse, operating by virtue of s. 7(3) of the Criminal Code; (3) necessity as an excuse implies no vindication of the deeds of the actor; (4) the criterion is the moral involuntariness of the wrongful action; (5) this involuntariness is measured on the basis of society’s expectation of appropriate and normal resistance to pressure; (6) negligence or involvement in criminal or immoral activity does not disentitle the actor to the excuse of necessity; (7) actions or circumstances which indicate that the wrongful deed was not truly involuntary do disentitle; (8) the existence of a reasonable legal alternative similarly disentitles; to be involuntary the act must be inevitable, unavoidable and afford no reasonable opportunity for an alternative course of action that does not involve a breach of the law; (9) the defence only applies in circumstances of imminent risk where the action was taken to avoid a direct and immediate peril; (10) where the accused places before the Court sufficient evidence to raise the issue, the onus is on the Crown to meet it beyond a reasonable doubt.

[23] The latter portions of these conclusions are amplified in paragraph 33 of R. v. Latimer, 2001 SCC No. 1, where the court says:
The accused ... at the time of the act honestly believe, on reasonable grounds, that he faces a situation of imminent peril that leaves no ... legal alternative open.  [Emphasis added].

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[24] In the case at bar, the act was in each instance the retail transaction of illegally selling a proscribed drug to a policeman.  There is no evidence that any one of the police officers were underage, needed protection from a street dealer, were concerned about any risk of impure contaminated product, or could be tempted by more serious drugs.  There is no evidence that any of the officers needed or purported to need “medicine.”  There is no evidence that they or any one of them were buying cannabis from any of the accused as a therapeutic alternative to more dangerous drugs.

[25] Even if any one or more of the three articulated bases that the accused say constitute grounds that raise the issue of necessity exist at other times or in other circumstances, there is no evidence of any of these alleged bases raising the defence of necessity with respect to the simple retail transactions that took place between individual accused and individual undercover police officers.  The defence therefore fails and each accused must stand convicted on each count wherein he is charged.

[26] If this analysis is wrong, then I must examine in at least cursory detail the contentions of the accused that their conduct must be excused for one or more of the three reasons they articulate. 

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1.  They are excused from criminal liability because it was necessary for them to sell marihuana to chase the drug dealers out of the adjacent park or garden.

[27] The evidence of one or more of Mr. Cantwell and the three accused who testified was that dealers in the park were selling to teenagers, that dealers in the park were selling low-grade product and offering low-grade and possibly contaminated product and offering other drugs, that they were bringing heat to Holy Smoke, and that it was making the park messy and a less attractive place to be.

[28] In response to the issue of park dealers selling to teenagers, the accused retailing marihuana to adults out of their store obviously did not stop sales to teenagers, but simply moved them; as after the Holy Smoke started to sell marihuana to adults, it continued to sell marihuana paraphernalia, bongs, papers, et cetera, to teenagers.

[29] In response to the quality of marihuana or other drugs being sold in the park, no evidence was called about it being tested by any one or more of Mr. Cantwell and the three accused who testified as they tested their own product by using it.  That strikes me as being a bit like anyone who drinks water holding themselves out as water quality testers.  The evidence shows Mr. Annis did more to solve the park mess

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problem by cleaning it up than the Holy Smoke collectively did by selling marihuana at market prices, but at honest weights to anyone over 19 who asked for it.

[30] (C), taking the heat off their store is self-service, not community service.  Mr. Cantwell testified that the Holy Smoke was a safe inhalation site and was a necessary place of refuge for people who had no other place to possess an illegal drug.  I would have thought that a safe inhalation site was any site where there were no combustible dangers and no police. 

[31] Mr. Cantwell testified about the Holy Smoke designated-dealer program.  I do not see how that touches the defence of necessity, but in any event, two of the four accused were co-owners of the Holy Smoke with Mr. Cantwell.  One was the keeper of the garden who worked as a marihuana vender on Saturdays because no one else wanted to work that day of the week.  No one told us why Mr. Stratas was selling marihuana out of the Holy Smoke.

[32] When the park dealers were driven by the competition of the Holy Smoke out of the garden, the Holy Smoke sold roughly $2,000 worth of marihuana on those Saturdays when Mr. Annis worked.  The evidence from the other accused who testified was rather vague about the sales.  Mr. Annis described selling marihuana at market prices and unlike the other products sold

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in the store, the marihuana sales did not go through the till. 

[33] To raise the defence of necessity, the accused must be able to say that they had an objectively-sustainable subjective belief that they or others were in imminent peril.  They did not avail themselves of police assistance to put down the park dealing.  They did not trust the police.

[34] They had the alternatives of making anonymous complaints to the police or indeed of effecting citizens’ arrests of those they found committing the indictable offence of trafficking in a controlled drug.  Instead, they chose to cast the money lenders out of the temple by setting up a cash-to-payday store across the street.  The defence of necessity does not arise on this issue. 

[35] The next issue put forward by the defence is that the accused must be excused from conviction because they were selling marihuana to those with a medical need who would suffer greatly without their sales.  Since 1999, Nelson has had a Compassion Club that sells marihuana to seriously ill people who have informed their doctor or doctors that they are using marihuana to control nausea or pain.

[36] Philip McMillan is the director of that club and he testified that the owners of the Holy Smoke helped set up the

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club.  He also testified that an agreement was forged whereby the Holy Smoke would direct its sales to recreational marihuana while the club would focus on medical use.  The Compassion Club is open from Monday to Friday while the Holy Smoke is open Saturday, as well.

[37] Three civilian users of marihuana testified that they use the substance to alleviate various pains or conditions, but for various reasons had not applied for authorization to possess or grow under the Marihuana Medical Access Regulations and Amendments.  The fourth civilian had a licence and in the unlikely event of two successive crop failures and the Compassion Club not being available, i.e. on a Saturday, she said she would then go to the Holy Smoke.

[38] Dr. Melamede, an academic molecular biochemist, gave opinion evidence on the value of supplementary cannabis being beneficial to many people to enhance their natural endocannabinoid system.  I could not give very much weight to Dr. Melamede’s evidence as he acknowledged that he was a marihuana advocate and that its use figured in his spirituality.

[39] Unfortunately, he was prone to mixing science with anecdote and failing to clearly distinguish on occasion between fact and hypothesis.  He did say marihuana use can

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negatively impact the process of coming into maturity and suggested it not be used by those under 19.  I fail to see why 19 is a magic age as maturity like senility does not come to all of us at the same age.

[40] When there is a medical authorization process in place, like Mr. Justice Dickson in the Morgenthaler case, I do not want to second-guess the Legislature.  Parliament is the best place to assess the relative merits of social policies underlying criminal prohibitions.

[41] I heard no evidence that anyone had died because they were waiting for legal medical access to marihuana.  No one can objectively say the accused had to sell marihuana to suffering people to save them from imminent peril as was the case in R. v. Synergy Group of Canada Inc., [2006] A.J. No. 964.

[42] Marihuana may well be a therapeutic alternative to other drugs, but if so, the citizen should apply for an authorization much as a heroin addict might get a prescription for methadone or a drunk for Antabuse. 

[43] In the reply to Crown’s submissions filed by the four accused, they say in the last paragraph of that reply:
The innovative approach by the Holy Smoke should be recognized as serving the public interest.

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[44] Those words clearly are addressed to justification, not to necessity as the concept is defined in Canada.  For these reasons, even if I am wrong in my primary analysis, the defence of necessity has not been raised on the evidence before me and each accused must be found guilty of each charge he faces.

Last Updated ( Thursday, 09 October 2008 )
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