Pubdate: Sat, 10 Sep 2005
Source: Vancouver Sun (CN BC)
Copyright: 2005 The Vancouver Sun
Author: Peter McKnight
Bookmark: (Cannabis)
Bookmark: (Emery, Marc)
Bookmark: (Decrim/Legalization)


The U.S. 'Persecution' Of Marc Emery Leaves The Justice Minister With
Few Choices, Most Of Them Invidious

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

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.
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MAP posted-by: Larry Seguin