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Street musician beats banishment over pot

Charter-challenge win angers Victoria leaders

VICTORIA -- A 21-year-old busker, Michael Reid, busted for marijuana possession has won a constitutional battle against the local court practice of banishing drug dealers from downtown Victoria.

The city's mayor and business leaders say they want the Crown to appeal a decision that they say could set back their fight to clean up their streets and promote tourism, their No. 1 industry.

Judges regularly ban drug dealers from a 2.5-square-kilometre area known as the "red zone" as a condition of probation, and have even imposed the ban as a condition of bail on those charged.

The area includes Victoria's picturesque harbourfront and the historic Empress Hotel, and borders the provincial legislature.

But Michael Reid, a welfare recipient who was panhandling and playing drums on Victoria's streets when arrested last year, contended that the Crown's application to keep him out of the downtown for a year violated his rights under the Charter of Rights and Freedoms. Mr. Reid said he can't even take a bus because the route goes through the downtown core.

"I felt like an outcast," Mr. Reid, who had no previous drug convictions, said in an interview. "I could have been arrested for going to a movie."

Mr. Reid pleaded guilty to possession for the purpose of trafficking after he was arrested with 45 grams of marijuana on a downtown street in the red zone last Sept. 25. The Crown sought 30 days in jail and a one-year prohibition from the red zone.

Hundreds of people charged with or convicted of drug offences in the city have been "zoned," or barred legally from being in the area, which has been expanded on an ad hoc basis to include one-seventh of Victoria, essentially the entire downtown.

Mr. Reid challenged the prohibition, saying it violating his Charter rights of freedom of association in a case that pitted him against the city's police department, downtown merchants and Mayor Bob Cross, who testified in support of the red zone.

Provincial Court Judge Thomas Gove backed the arguments made by Mr. Reid's lawyer, Robert Moore-Stewart.

"The use of exclusion from a large area of downtown as a condition of bail or probation seems to be unique to Victoria," Judge Gove said in his 37-page ruling released last week. "Virtually the entire downtown is the red zone."

He said the area includes essential health and social services and prevents those banned from carrying out everyday interactions.

"Many people subject to the red-zone conditions are denied the services that they need to change their lives."

The judge gave Mr. Reid a suspended sentence of eight months probation and 25 hours community service.

Mr. Moore-Stewart said that although other Canadian cities may have areas of drug activity for which the Crown may seek court-ordered restrictions for repeat offenders, Victoria has a blanket ban.

"It makes it impossible to live here. It's a de facto banishment."

Victoria Police Chief Paul Battershill said he will consult Crown lawyers about the ruling's impact. The Crown has until the end of the month to appeal. It is still unclear how the ruling will affect the way the city's police force handles drug cases.

"It may be the police practices have to change in terms of why an area restriction is necessary," said Chief Battershill.

Police say probation officers have had the discretion to give banished offenders permission to visit the downtown core for essential social services.

At first, banishment from the red zone was used only as a condition of bail. In 1994, the ban also became a condition of probation orders. Prosecutors have routinely sought the ban for every person charged with trafficking or possession for the purpose of trafficking of drugs in the red zone.

Police statistics show that drug dealing in the area has remained consistent over the past five years. There were 131 drug-dealing charges laid last year in Victoria; two-thirds occurred in the red zone.

The ruling comes while the city is in the process of enacting a bylaw to make it illegal for panhandlers to solicit "aggressively" or within six metres of an automated banking machine or a liquor store.

The court decision has angered merchants who say they don't want convicted drug dealers on their streets.

"I don't feel it's restricting someone's rights unduly," said Kathryn LeGros, general manager of the Victoria Business Improvement Centre, which represents 2,100 business owners. "We don't want this kind of activity here. Our whole economy is based on tourism. It's a very safe city. We want to keep it that way."

Mayor Bob Cross said he would like to see the ruling appealed and credits the red zone with deterring drug dealing.

"When you engage in an illegal activity such as drugs, I think you give up some of your rights. I think of the rights of everyone else," he said.

Mr. Cross said the ruling sends the wrong signal about British Columbia, where drug sentences are widely regarded as among the country's most lenient.

"We're a haven in Canada for drug dealers. They have no fear of the law. This was an attempt locally to try to protect ourselves."

But Craig Jones, president of the B.C. Civil Liberties Association, said it is unfair to banish every citizen ever convicted or charged with a drug-dealing offence from a city's downtown.

"We object to it," he said. "These conditions have to be carefully tailored to each case. A blanket prohibition just doesn't cut it."