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Pot Laws Up in Smoke?

By Hempology | September 23, 2003

From the Parksville Qualicum News, September 23, 2003

A decision made by a provincial court judge Sept. 4 has stirred up debate on whether it is legal – or not – to take a toke or two of pot

In B.C. provincial court, Judge Patrick Chen determined parts of the (federal) Controlled Drugs and Substances Act are invalid, and therefore, “there is no offence known to law at this time for simple possession of marijuana” in the province.

“My opinion is that this is good news – a step in the right direction,” said Parksville resident and herbalist David Faren.

Faren, who takes correspondence courses at Burnaby’s Dominion Herbal College, said the issue needs to go further.

“Having a legal source of marijuana would be a start – what about an age limit?”

Kirk Tousaw, policy director for the B.C. Civil Liberties Association, sees Chen’s decision as a “victory for advocates of freedom and personal responsibility.”

“In Ontario, this decision was upheld – I’d hope the courts here look at that,” he said.

Representatives from the Federal Justice Department’s B.C. region said Thursday Chen’s decision will be appealed.

And as far as the Oceanside RCMP are concerned, possession of pot continues to be a crime.

“Our position is, it’s still illegal – we’re still charging for possession and recommending charges to Crown,” said Oceanside RCMP Sgt. Bruce Wright.

“Our main focus is trafficking and cultivation, but if someone is caught with over 30 grams, they can be charged with possession.”

Though no definition of simple possession was given in Chen’s judgement, Wright, Tousaw and Faren agree that 30 grams or less would likely be for personal use (thirty grams of pot is just over one ounce).

Chen’s decision was based on a series of court cases in Ontario that led a judge there to strike down marijuana possession laws in January of this year.

That ruling goes back to a case known as R. v Parker and a July, 2000 judgement by the Ontario Court of Appeal – Parker refers to Terry Parker, an epileptic who used marijuana to control life-threatening seizures.

The court declared the law prohibiting simple possession of marijuana to be constitutionally invalid because it did not have an exemption for medical marijuana use.

Chen wrote, 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.”

That date refers to a one-year grace period set by the Ontario court in the R. v Parker case, a year where Parliament was supposed to re-enact the prohibition or create a legislative exemption for marijuana use.

The day before the deadline, Parliament enacted the Medical Marijuana Access regulations (MMAR), but those regulations were not law and could be amended without debate.

As a result, provincial and superior courts in Ontario (and now, B.C. Provincial Court) have ruled the law prohibiting possession was stricken from the books by the Parker case.

Provincial courts in Prince Edward Island and Nova Scotia have upheld the Ontario decision as well.

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