| Vancouver Sun |
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Say what you will about Marc Emery, but in getting himself indicted on marijuana charges by a United States grand jury, the Prince of Pot might well achieve what he's failed to realize through decades of activism -- his life ambition of legalizing marijuana.
This summer, Emery was indicted on charges of conspiring to manufacture and distribute marijuana seeds and to engage in money laundering. He's now on bail awaiting an extradition hearing and, if extradited and convicted, Emery will face anywhere from 10 years to life in a U.S. prison.
Naturally, with the "persecution" of their patron saint, the usually laid-back potheads are anything but mellow, as they take to the streets across the world today to protest Uncle Sam's hapless and hopeless war on drugs.
Even non-smokers are getting into the act: Many condemn the United States for ostensibly violating Canadian sovereignty, while others assail Canada, and Canadian Justice Minister Irwin Cotler, for acquiescing to U.S. demands to export the Prince of Pot.
Whether Cotler had any choice in the matter is an open question: Cotler told The Vancouver Sun editorial board that under the Extradition Act and the Treaty on Extradition Between the United States and Canada, he was required to grant authority to proceed with the extradition hearing because the necessary and sufficient conditions were met -- that is, because the conduct with which Emery stands charged constitutes an offence in Canada that is punishable by two years or more in prison.
Now I'm not a specialist in extradition law, and I'm sure Cotler has a legal opinion attesting to his lack of wriggle room, but the extradition experts I've talked to have some doubts. After all, the Extradition Act uses permissive language throughout: It says that if the necessary and sufficient conditions are met, the minister of justice may grant authority to proceed with an extradition hearing, and a person may be extradited. This seems to leave the minister some residual discretion.
However, the Extradition Treaty replaces the act's permissive language with mandatory wording: The Treaty states that persons shall be delivered up for extradition. So Cotler might be right in concluding he had no alternative but to grant authority to proceed with the extradition hearing; I'll leave it to the experts and the courts to sort through this mess.
Once these questions are resolved, though, Cotler might have to step into the fray once again. Assuming the court commits Emery for extradition -- which is likely, since the judge must only be satisfied that there is sufficient evidence to commit Emery to stand trial -- Cotler will then have clear discretion, under both the act and the treaty, to refuse extradition.
Several of the grounds for refusing extradition are well enough known: If, for example, Emery were facing the death penalty, Cotler would be required to refuse extradition. Similarly, the minister would be constrained from surrendering Emery to the U.S. if Emery were facing prosecution for a political offence.
The marijuana lobby believes that Emery is indeed the subject of political persecution, given a statement posted on the U.S. Drug Enforcement Agency website that suggests a clear political motive for charging Emery. The statement reads, in part:
"Today's arrest of Mark [sic] Scott Emery, publisher of Cannabis Culture magazine and the founder of a marijuana legalization group, is a significant blow not only to the marijuana trafficking trade in the U.S. and Canada, but also to the marijuana legalization movement ... Drug legalization lobbyists now have one less pot of money to rely on."
Despite the folly of issuing such a statement, the political persecution argument is likely to fail since Emery was charged with conspiracy to traffic in drugs, not with promoting marijuana legalization, even if the motivation for charging him seems suspect.
The act also requires Cotler to refuse extradition if it "would be unjust or oppressive having regard to all the relevant circumstances." This wording seems to grant Cotler fairly broad discretion and has led Emery defenders to suggest that the disparity in sentencing between the U.S. and Canada for marijuana-related offences would justify Cotler refusing extradition.
However, courts have said that sentencing disparity need not be a factor in refusing extradition. Further, were Emery charged in Canada with producing marijuana, he would be facing a maximum of seven years in jail, which isn't markedly shorter than the 10-year minimum he faces in the U.S.
That said, Canada has never been particularly supportive of minimum sentences because they don't work. In fact, in 1987, the Supreme Court of Canada struck down as cruel and unusual punishment a section of the former Narcotic Control Act that imposed a minimum seven-year sentence for importing or exporting narcotics.
Consequently, Cotler would seem to be on solid ground in refusing extradition on the grounds that a ten year minimum sentence is unjust or oppressive, since it's not consonant with the Charter of Rights. However, Cotler could alternatively seek an assurance from U.S. authorities that the 10-year minimum not be imposed, much as Canadians can be extradited to the U.S. for capital offences provided the death penalty in not on the table.
That leaves Cotler with one last way to refuse extradition, and it's a way that, for both legal and moral reasons, Cotler ought to take. Whether he wants to admit it or not, selling viable cannabis seeds is de facto legal in Canada, and Cotler can therefore refuse to surrender Emery on the grounds that what he is charged with in the U.S. is not an offence in Canada.
To be sure, the offence of selling cannabis seeds still exists: In R. v. Hunter in 2000, the B.C. Court of Appeal upheld the conviction of Victoria's Ian Hunter for selling seeds. But successive Canadian ministers of justice, from Anne McLellan to Martin Cauchon to Irwin Cotler, have largely ignored those who sell seeds, including Emery, who has been operating his mail-order seed business publicly for almost a decade. In fact, the federal government was referring medical marijuana users to Emery's website until two years ago.
The actions and inaction of the federal government make it abundantly clear that the feds didn't -- and still don't -- consider Emery's operation illegal.
Hence the prospect of sending someone to a country that considers such conduct an offence would appear to violate the principles of fundamental justice. Cotler seems morally and legally obliged to exercise his discretion and refuse extradition.
This would, of course, open an enormous can of worms because it would require the minister of justice to concede that trafficking in viable cannabis seeds is not an offence in Canada. And that would open the door to declaring that the sale of marijuana is also legal since there's little legal difference between selling viable seeds and selling a marijuana plant:
In R. v. Hunter, the B.C. Court of Appeal noted that the sale of viable seeds is neither explicitly permitted nor proscribed in the former Narcotic Control Act (now, the Controlled Drugs and Substances Act.) However, since the act explicitly permits the sale of non-viable seeds, the court concluded that the act must, by necessary implication, criminalize the sale of viable seeds: The prohibition on the sale of viable seeds is included in the prohibition on the sale of marijuana, which effectively makes viable seeds and marijuana one and the same. Consequently, any declaration that selling viable seeds is legal is tantamount to declaring that selling marijuana itself is legal.
No minister of justice would choose to be in the position of declaring trade in marijuana legal -- legalizing trade would amount to a violation of several international treaties and would provoke the ire of the U.S. -- but thanks to the actions and inaction of his and previous governments, it's a position Cotler seems condemned to occupy.
Emery's lifelong campaign to repeal marijuana laws might therefore come to fruition, and if it does, it will be Cotler who spends the rest of his life in America's doghouse.
pmcknight@png.canwest.com
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