On the Arrest of Mark Emery

Click on over to Andrew Anderson’s Bound by Gravity, in particular this discussion about the arrest of Mark Emery. Be sure to check out the comments. The issue, it seems, has shaken up the traditional political coalitions. Across the Liberal/NDP/Conservative spectrum you have debates ranging from “the law is the law” and “the law is an ass”. Not only does it expose questions of Canadian sovereignty, but the rule of law, and the effectiveness or merit of American drug policy.

The Mark Emery case is complicated. Here are my thoughts:

Leaving aside for a minute the merits of the American prohibition on marijuana, we have to point out that the law is the law, and Mark Emery broke it. He sold $3 million worth of seeds to addresses in the United States in direct contravention of their legal code. It stands to reason that American legal authorities would have every right to arrest Emery once he steps on American soil.

Last time I checked, however, Halifax and Vancouver weren’t American soil.

So, if the Americans want him, they have to extradite him. And as we have an extradition treaty with the United States, we have to think long and hard about whether or not we want to defy the Americans simply because we question the merits of the American legal code on marijuana. Imagine our reaction if we demanded the extradition of an American citizen, and the U.S. responded “nuh, uh! We think the law you’re using to charge him with is wrong.” We would be furious.

On the other hand, as a matter of sovereignty, the United States has the right to deny extradition tif it feels that its citizens are being charged on unjust laws. And if Americans have this right, so do we. We already refuse to extradite to countries where the person charged is likely to face the death penalty. So, we have a lot of thinking to do.

The legal situation around Emery isn’t helping with the confusion. Why did Canadian authorities need to arrest Emery? I can understand them raiding the Vancouver grow-op to gather evidence at the request of American legal authorities, but arresting Emery? Is he a flight risk? I mean, where’s he likely to go, across the border into the U— oh, wait!

Is it common for people facing extradition to another country, though they’ve not been charged with breaking a law here, though they’re no threat to civil society here, to be arrested pending the extradition trial? I ask this question seriously as I simply do not know.

At present, although the United States has officially requested Emery’s extradition, it’s unclear on what charge Emery is being held on: the contravention of an American law or a Canadian one. Until we get a clearer explanation, the debates in the Canadian blogosphere are going to continue.

All of that’s just about the extradition process. Whether or not marijuana deserves to be criminalized is a whole other kettle of fish. I’ll only say this:

In the United States, morphine is classified as a Class 2 narcotic: meaning, dangerous, but with enough medical benefit to still be prescribed. Marijuana is a Class 1 narcotic: meaning super dangerous, and with no medical benefit whatsoever.

I have witnessed (but not personally experienced) the medical effects of morphine, and I have witnessed (but not personally experienced) the medical effects of marijuana, and it astounds me that the United States could possibly keep morphine legal while prohibiting marijuana. There is no question which is the more dangerous drug, and while this remains law in the United States, the American legal system has a fairly serious bit of hypocrisy in its books.

Upon further consideration (see comments)… Oh, yeah. This thing’s going to the Supreme Court.

Another discussion to watch comes from Sinister Thoughts. Warren Kinsella puts in an appearance:

Emery hurt himself by bragging about $3m in income, and by being naive about exporting to USA.

That said, the extra-territorial application of US law, here, and our federal government’s willingness to just go along with that, should give every Canadian pause. The Martin government should not be assisting the Bush Administration in enforcing its extremist drug policy beyond American borders.

That’s the best legal argument for Emery. Call Clay Ruby, ASAP.

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