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March 10, 2008 - Vancouver Sun (CN BC)

Column: 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

By Ian Mulgrew, Vancouver Sun

Return to Drug War News: Don't Miss Archive

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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