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Views Differ On What Judge’s Pot Ruling Actually Means

By Hempology | September 21, 2003

From the Abbotsford Times, September 19th, 2003

By Christina Toth

To possess or not to possess. That’s the question wafting across the province after provincial court Judge Patrick Chen decided Sept. 12 that there is no valid Canadian law prohibiting the possession of marijuana.

In his ruling, Chen pointed out the Ontario Court of Appeal found the possession portion of the Controlled Drugs and Substance Act invalid and null three years ago, in July 2000. The Crown did not appeal then. Therefore the law just doesn’t exist, Chen said. To become law again, it would have to be re-enacted in Parliament, he wrote.

However, British Columbia’s Solicitor General Rich Coleman said possession of marijuana remains illegal, despite Chen’s finding there is no possession law in Canada.

An earlier B.C. Court of Appeal ruled the pot law does exist, but this case is now under appeal in the Supreme Court of Canada, and similar cases in Ontario are also under review.

Chen’s judgment followed the history of contradictory rulings on Sect. 4 of the Controlled Drugs and Substance Act since July 2001. While some judges around the country were persuaded by the original Ontario ruling that severed simple possession of marijuana from the Act, other judges did not.

Abbotsford criminal lawyer John Conroy said what is really needed is a ruling from Canada’s Supreme Court, which would turn to the Charter of Rights and Freedoms for guidance.

“It leads to some considerable confusion. What’s a police officer going to do, follow the earlier ruling or a later ruling?” he wondered.

The Ontario provincial court decision is not binding on other provincial or higher courts, although judges may find such rulings “persuasive,” said Conroy.

He pointed out a dozen American states – Alaska, Oregon and California among them – already have liberal possession rules.

At this point it’s anyone’s guess which way the Canadian courts will go, but while those who smoke pot may be excited about the progress in the evolution of pot laws, Conroy said not all his clients would be happy to see marijuana decriminalized or legalized.

“Many of the growers think they make money because it’s a black market prohibition. The position of the growers and dealers is ‘you’re ruining a good thing,’ ” Conroy said.

The best thing would simply be to legalize marijuana, he said.

Abbotsford’s outspoken marijuana advocate Tim Felger also hopes to see the issue face an appeal and be forced to go to a higher court.

For Felger, Chen’s ruling is just another step toward ending pot prohibition.

“It’s more than the start [of the end of prohibition]. I think it started a long time ago. The end is coming,” he said Tuesday.

It’s also further proof that Canada’s marijuana laws don’t make any sense in light of the rights bestowed in 1982 in Canada’s Charter of Rights and Freedoms, he said.

“We’ve chased the courts in every province across Canada and in every state and the laws of possession have been found invalid. In Alaska, it’s legal to have four ounces [of pot] in your possession yet the police still make arrests. Why? Where’s the [legal] limit? There is no limit,” said Felger, whose Bradner Road farm has been raided by the Abbotsford police before.

He argues that the City of Abbotsford and the police service are “recklessly endangering the community” with their raids of growing operations.

“If they shoot somebody, who’s going to be liable? They’re opening up the city to massive liabilities,” he said.

For Abbotsford police officers, it’s business as usual, said Deputy Chief Paul Tinsley. He said the police force would take its direction on this matter from the federal Department of Justice.

“Possession is still illegal and we will enforce it,” he said Tuesday, but added that the laying of charges would depend on circumstances.

“It falls into an area of discretion. For instance, if a person was on school grounds or near a school, they’d be charged,” he said.

Currently, the federal government is considering a new marijuana law that will impose fines for the possession of small amounts of pot, following a comprehensive study into drug use in Canada. Federal and provincial justice ministers are expected to meet in two weeks to discuss the decriminalization of marijuana.

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