Editorial: A Matter of Basic Fairness in the Marc Emery Case

David Borden [7], Executive Director

This week it was reported that Marc Emery, Canada's famed marijuana law reformer and one-time seed merchant, has tentatively reached a plea agreement with the US Dept. of Justice that will spare co-defendants Michelle Rainey and Greg Williams prosecution, and will spare him extradition to the US, but will place him behind bars in Canada for the next five years. The reports were premature -- the deal has yet to be accepted by both countries, either could reject it, according to Jodie Emery, posting on talk groups -- but that is the way things may go as they are looking at this point.

The Emery case highlights two issues of basic fairness where the US and Canadian governments both fell short. One is the root injustice of prohibition. As Emery pointed out to media, no one was harmed by his business. Therefore taking away his freedom -- putting him in prison -- is unjust. Even just shutting down his business was unjust, based on this idea, because the law is an unjust one. This is an unfairness applying to the vast majority of drug prohibition prosecutions.

The other fairness issue flows from the fact that Emery carried out his business completely in the open, with full knowledge of authorities on both sides of the border, for almost a decade. His office is literally in the center of downtown Vancouver, and the magazine headquarters and bookstore across the street have an open storefront. I've seen these places myself. Anyone searching the Internet could find out what he was up to -- if they didn't already know from him directly, at a rally or reading his quotes in the media.

Setting aside the wrongfulness of prohibition itself, one could argue that because prohibition is the law now, the government had the right to tell him to stop until the law one day gets changed. In this view, the fair approach would have been to inform Emery that things had changed, and that he had to stop selling seeds or risk US or Canadian ire moving forward. Unfortunately that's not what happened. Having done nothing to move against him for all of those years, and not having warned him, instead one day the DEA moved in, filed extradition papers, and announced that Emery and his friends were facing 20-to-life. And Canada -- having tolerated him for years and years, even having accepted $600,000 or so in taxes, according to reports, knowing that he gave most of it away -- cooperated fully.

This second fairness issue is one that is fairly specific to Marc Emery's case, more perhaps than to any other. But it also reflects on the character of the criminal justice system -- many of us refer to it as the (in)justice system -- that the people making the decisions on how they would proceed would choose this route instead of the other, and that the sentences Emery and Rainey and Williams could face are so obscenely long to begin with. We have many prisoners here in the so-called land of the free who will serve decades before seeing freedom, if they ever do. It's a dark sign of the times that in part what I feel about this outcome is relief that he may only serve five years.

But make no mistake, five years is a big chunk of a life, a very severe punishment and a very long time. Try to imagine if you were about to be incarcerated, only for one year, how you would feel. Even a year in prison is a very severe punishment, if we are going to be realistic about it. But the "tough-on-crime" hawks who have dominated policymaking as of late have forgotten this. Too bad for Marc that that has happened. But too bad for all of us too.