10/4/03 09:32 AM
Ottawa to appeal B.C. pot ruling [Post#: 3062 ]
Friday, September 19, 2003 : Ottawa to appeal B.C. pot ruling .
Ottawa to appeal B.C. pot ruling
Friday, September 19, 2003
A B.C. provincial court judge's ruling that the law governing marijuana possession is invalid will be appealed, a spokeswoman for the federal justice department said Thursday.
A notice to appeal has been filed, said Lyse Cantin, spokeswoman for the department's B.C. region.
Police and the B.C. solicitor-general were quick to insist earlier this week the ruling does not make marijuana possession legal and is not binding on other judges.
Ironically, the appeal was celebrated by the B.C. Marijuana Party.
"That's a good thing for everyone, I would think," said spokesman Marc Emery, who was planning a pot-smoking protest outside Vancouver police headquarters Thursday.
"It'll be appealed to B.C. Supreme Court and they'll rule in the favour of the judge," he predicted, calling the Sept. 4 ruling "iron clad."
In the ruling, Judge Patrick Chen wrote that, in his view, "Section 4 of the Controlled Drugs and Substances Act, as it applies to marijuana, ceased to be valid legislation after July 31, 2001.' "
The date refers to the expiry of a one-year grace period set by an Ontario Court of Appeal ruling from 2000 that Chen referred to in his judgment.
The judge wrote that the Ontario decision "severed the marijuana possession prohibition from other parts of Section 4 of the Controlled Drugs and Substances Act and declared it to be invalid, but suspended the declaration of invalidity for a period of one year 'to provide Parliament with the opportunity to fill the void.' "
A spokeswoman for Vancouver's police department said earlier this week she hadn't heard of any fallout so far from the ruling.
New legislation was proposed earlier this year to decriminalize marijuana possession.
© Copyright 2003 Vancouver Sun
Tuesday, September 16, 2003 : B.C. provincial court decriminalizes possession of marijuana .
B.C. provincial court decriminalizes possession of marijuana
Tuesday, September 16, 2003
VANCOUVER (CP) - A B.C. provincial court decriminalized possession of marijuana Monday.
In a ruling, the court said "there is no offence known to law at this time for simple possession of marijuana." The decision follows similar rulings in Ontario, P.E.I. and Nova Scotia. It relies on an July 2000 decision by the Ontario Court of Appeal in which the judge declared the law prohibiting simple possession to be constitutionally invalid because it did not have an exemption for medical use.
The defendant was an epileptic who said he needed cannabis to control life-threatening seizures.
Parliament was given one year to deal with the legal loophole and it came up with the Medical Marijuana Access Regulations.
But the Ontario and B.C. courts have said that wasn't enough, noting the regulations don't have the force of law and can be amended without debate.
As a result, the law prohibiting possession was held to have been stricken from the books by the ruling in the Ontario case.
© Copyright 2003 The Canadian Press
Tuesday, September 16, 2003 : B.C.'s marijuana law doesn't exist, judge rules.
B.C.'s marijuana law doesn't exist, judge rules
Tuesday, September 16, 2003
A B.C. judge has ruled the law prohibiting the possession of marijuana does not exist.
Provincial court Judge Patrick Chen found the pot possession law went up in smoke three years ago when Ontario's top appeal court found the law invalid.
Once declared invalid, the law prohibiting pot possession ceased to exist, the judge concluded.
"Once invalid, it became a nullity and could not be resuscitated, it could only be re-enacted," Chen said in a 29-page written judgment earlier this month.
"As a result, there was no longer any prohibition or penalty . . . for simple possession of marijuana. It follows, therefore, there is no offence known to law at this time for simple possession of marijuana."
Chen's ruling, however, will not have widespread application or be binding on other judges, even at the provincial court level, said lawyer John Conroy, who specializes in marijuana law.
"It adds more confusion to the whole picture," Conroy said of Chen's decision. "Hopefully, this will be appealed to the Supreme Court, which would have a binding effect on other courts."
Lyse Cantin, director of communications for the Department of Justice in B.C., which prosecutes all drugs cases, said the pot possession law still exists because of an earlier B.C. Court of Appeal ruling in a case called Caine, which is under appeal in the Supreme Court of Canada.
Asked what would happen if a person, who reads the recent Chen judgment and believes the law doesn't exist, begins openly smoking pot on the street, Cantin said: "That's a good question."
The Chen judgment is under review to see whether it can be appealed, she added.
Chen's ruling came as he allowed the application of Troy Anderson, a lawyer acting for Kurtis Lee Masse, to quash a pot possession charge against Masse, who was accused of possessing marijuana last Feb. 21 in New Westminster.
The decision prompted B.C. Marijuana Party president Marc Emery to put up a huge banner over the weekend on the front of his party's headquarters at 307 W. Hastings. The banner proclaimed that marijuana possession is legal in B.C.
"I'm totally excited," Emery said of the ruling, adding that he agreed with the judge's finding that the law ceased to exist after the Ontario Court of Appeal ruled the law was invalid. Every possession prosecution since then has been unlawful, he added.
"Parliament can re-enact the law, but it will take at least two months," Emery added.
The federal government has announced it is considering a new marijuana law that imposes fines for possession of small amounts, but no date has been set for that legislation to be enacted.
In the Masse decision, the defence argued the charge should be quashed because it does not name an offence known to law in British Columbia.
The defence cited the Ontario Court of Appeal decision on July 31, 2000 in the case known as Parker, where the court declared the pot possession law to be invalid.
But the appeal court suspended the invalidity for one year to "provide Parliament with the opportunity to fill the void."
The accused, Parker, had epilepsy and smoked pot to control his grand mal seizures. He had been charged with cultivating marijuana and possession of pot under Section 4 of the Controlled Drugs and Substances Act.
The Ontario appeal court ruled the possession law was invalid and Parker was medically exempt from the law. The Crown did not appeal.
Chen's ruling noted that on July 30, 2001 -- a day before the Ontario appeal court's suspension of the invalidity of the law expired -- the federal government enacted the Marijuana Medicinal Access Regulations, which set out a scheme under which persons requiring marijuana for medicinal reasons can gain access to it.
The Crown argued at Masse's trial that the medicinal marijuana regulations were effective to "save" the legislation from being declared invalid. But Chen disagreed, finding the law prohibiting simple possession, after the suspension expired on July 31, 2002, "ceased to exist and could not exist again unless re-enacted."
The judge also cited the unsuccessful appeal of David Malmo-Levine, a Vancouver marijuana activist, and the companion appeal of Victor Eugene Caine.
In a 2-1 ruling on those appeals, B.C. Court of Appeal Justice Tom Braidwood wrote: "The LeDain commission recommended the decriminalization of marijuana possession nearly 30 years ago ... Parliament has chosen not to act since then, although there are moves afoot to make exceptions for the medicinal use of marijuana in the wake of recent decisions.
"Nevertheless, I do not feel it is the role of this court to strike down the prohibition on the non-medicinal use of marijuana."
But in a dissenting decision, B.C. Appeal Court Justice Jo-Ann Prowse said: "In my view, the evidence does not establish that simple possession of marijuana presents a reasoned risk of serious, substantial or significant harm to either the individual or society or others."
In his Sept. 4 ruling, Chen described the Parker and Malmo-Levine decisions as "a dialogue between the courts and the legislature ..."
Malmo-Levine, Caine and a companion appeal from Ontario were heard last May 6 by the Supreme Court of Canada, which has yet to rule on the validity of the pot possession law.
It is estimated that 95 per cent of all marijuana arrests in Canada are for simple possession, resulting in one million Canadians having a criminal record for pot offences.
Marijuana became illegal in Canada in 1923, when it was added to the list of prohibited drugs contained in the Opium and Drug Act of 1911.
© Copyright 2003 Vancouver Sun
Tuesday, September 16, 2003 : Judge makes B.C. history with pot ruling.
Judge makes B.C. history with pot ruling
Tuesday, September 16, 2003
Simple possession of marijuana is no longer illegal in B.C., a provincial court judge has ruled.
The decision by Judge Patrick Chen in the Crown's case against Kurtis Lee Masse makes B.C. the fourth province, along with Ontario, Prince Edward Island and Nova Scotia, in which the law has been struck down.
Courts in Alberta and Saskatchewan have ruled the other way.
The confusion around the state of the law arose after an Ontario Appeal Court judge struck down the law in July 2000 and gave Parliament one year to pass a new one.
That has yet to happen.
Three high-profile possession cases have been appealed to the Supreme Court of Canada. Once the high court makes its ruling, that will be the law of the land.
But for now, any judge of the B.C. provincial court would be bound by Chen's decision, Masse's lawyer Troy Anderson said yesterday.
"I've been receiving e-mails throughout the day from people who are pretty happy with this decision," he added. "It's potentially a very important case.
Anderson stressed the ruling does not affect the law against possession for the purposes of trafficking or other more serious crimes -- just simple possession.
"This is a great victory for advocates of freedom and personal responsibility," said Kirk Tousaw, policy director of the B.C. Civil Liberties Association. "Prohibiting cannabis possession is irrational. It's a relatively harmless plant . . ."
Chen's Sept. 4 ruling, released yesterday, is not binding on B.C. Supreme Court judges. If the Crown appealed Chen's ruling, a Supreme Court judge could overturn his decision.