A SAGA OF TRIALS AND ERRORS , by Ted Smith

In January I was convicted of trafficking in two different trials and, upon advice from court clerks, filed appeals to the Supreme Court of B.C., as reported in the last Cannabis Digest. However, these appeals should have been filed at the B.C. Court of Appeal. Luckily, the Department of Justice will not contest this mistake and is actually helping make sure that all of the documents are being properly filed from now on. Every delay seems to work in my favour.

This change has several implications. Now the cases are before the highest level of court in the province, with 3 judges sitting on the bench to listen to my arguments. The factums and other supporting documents are much more intensive, and the court dates will not be set until most of the preparations have been made. The BC Court of Appeal is the place where changes could be made to the Controlled Drugs and Substances Act, the Medical Marijuana Access Regulations and other government policies regarding the use of cannabis. If only one judge agrees with my arguments, then I may go to the Supreme Court of Canada.

The first appeal against the charges of trafficking cannabis resin in cookies and skin products at the CBC has a much greater chance of success than the appeal against the trafficking conviction I received from sharing joints at UVic. The reasons for appeal have been posted on the web-page already, though they will become more refined in time. Since both cases will likely be heard at the same time, the focus will be placed on the resin conviction, as many people depend upon edible cannabis products and should not be forced to use pharmaceutical cannabis drugs instead. I am representing myself in these appeals for several reasons.   It costs a lot of money to pay a lawyer to prepare an appeal, let alone the costs of the transcripts. I could not live with myself if I did not fight this to the end, and I look forward to the opportunity to persuade a few judges that these laws, regulations and prejudices suppressing cannabis are wrong.

HEALTH CANADA ON CANNABIS, by J. Gee

Within the last ten years, significant strides have been made in Canada regarding access to cannabis for medical use. Following California's lead, Canadian medical clubs began forming around bold activists and sick people in the hope the government would realize cannabis is good medicine. From court decisions to Senate proclamations, the Canadian government continues to experience increasing pressure to authorize cannabis as an herb and medical product. Results being that the government had to amend the Controlled Drugs and Substances Act in order for it to be available to chronically ill people. In 1998, after the Wakeford decision, Health Canada (HE) started granting Section 56 Exemptions from the Controlled Drugs and Substances Act to those who could show a medical need of cannabis. Soon more than 600 Canadians across the country were allowed to use cannabis legally as a medicine.

The year 2000 marked a change to this procedure when HE announced a new framework for medical access directed by Ontario's Court of Appeals - Parker decision, July 31, 2000 (# 1) This new procedure was called the Marijuana Medical Access Regulations (MMAR) and it came into effect on July 30th, 2001. Soon thereafter, concerns (from the Senate Special Committee on Illegal Drugs) and other court cases (ON Court of Appeals - Hitzig decision, Oct. 2003) pressured HE to make needed changes to the original MMAR. It was then amended and published in the Canadian Gazette in October 2004. (# 2) For some background info and updates about the status of medical marijuana in Canada, check out HC's web site at   www.hc-sc.gc.ca. To locate info on medical use, it is recommended to find the 'search" link in the top right corner, click on it and enter 'cannabis' or 'medical marijuana' before pressing go. The results may or may not be surprising, depending on one's experience within the world of governments, rules and regulations, laws and lawyers. In other words, it is important to keep searching their site (and many others) for educating oneself about the changing status of cannabis, here and overseas. The Healthy Environments and Consumer Safety Branch (HECS) of Health Canada is where you will find the "Drug Strategy and Controlled Substances" program (DSCSP). This is one of five programs under the HECS and it is responsible for managing the Controlled Drugs and Substances Act and its regulations. The DSCSP also plays a lead federal role in the coordination and implementation of Canada's Drug Strategy.

 (# 3) According to their web site, the DSCSP oversees four other areas that may be of interest to readers. (# 4) They are: the Office of Drug Strategy, Office of Controlled Substances, Office of Cannabis Medical Access and the Drug Analysis Service. For the purposes of this article, we will be focusing on the Office of Cannabis Medical Access work and the medical marijuana regulations. The OCMA "coordinates the development and administration of the regulator)' approach permitting individuals to access marijuana (cannabis) for medical purposes" and also "coordinates other HE initiatives related to marijuana, including the establishment of a reliable Canadian source of medical research-grade marijuana". (# 5) The MMAR application process allows critically ill individuals to apply for a licence to possess and grow their own cannabis, or to authorize someone else to grow their medicine (aka Licenses to Produce). The recent MMAR amendments reduced the categories for those applying from 3 to 2 by merging the first two categories together. Category 1 is for people with a terminal illness applying as compassionate end-of-life care or for those suffering from symptoms of certain diseases or conditions such as multiple sclerosis, spinal cord injury, spinal cord disease, cancer, AIDS/HIV infection, severe arthritis and epilepsy. Category 2 is for those suffering from serious medical conditions not listed in Category 1. An official photograph is still required and a new one may be submitted with every fifth renewal, instead of each year. The Gazette web site quoted above provides further analysis of the recent OCMA's amendments to the MMAR. (Pis refer to #2) The amendments introduced a pilot project in BC where pharmacies will be providing medicinal cannabis from doctor's prescriptions. A recent article verified this when Health Canada 'expedited approval' of a new pain relieving spray drug derived from cannabis called Sativex. The article went on to say that this product might be available, by prescription and in drug stores by the end of June 2005. (# 6) Other changes to the MMAR include the OCMA plans to phase out Licenses To Produce by the year 2007.

(# 7) This concerns those who think people should have a choice on what particular cannabis strain works best for them. Research in this area continues to endorse work already done by compassion clubs and researchers across Canada and worldwide. {# 8) Currently, there is a need to officially authorize and regulate the work of compassion clubs. The Senate Special Committee on Illegal Drugs released a report in September 2002, addressing this need and calling on Health Canada to include compassion clubs in all areas of this ongoing work. (# 9) There is a good chance that clinical trials done cooperatively between HE and established clubs would strengthen relations and hasten a more workable MMAR system. As it stands now, compassion clubs across Canada are subject to arrest, prosecution and imprisonment for providing secure locations and safe access to medicinal cannabis products (i.e. raw herb, cookies, salves or massage oils, etc.). Canadians for Safe Access (CSA), a group representing medical marijuana patients, is one of many working at providing feedback and input to the OCMA regarding these regulations. One area CSA wants addressed is the decentralization of the MMAR's registration and approval system. Health care services in each province would oversee the application process more quickly than phone calls to Ontario every time there is a question about the application process, etc. Regarding cultivation and distribution, CSA recommends community based systems (such as compassion clubs) be set up where the growing and delivery of this medicine is handled on a non-profit basis. This would include the development of national standards for operation and licensing of these clubs along with the establishment of "guidelines for site inspections and testing of cannabis for strength and safety".

(# 10) The 'License to Produce' application process is referred back to the reader for further research. The web site   www.medicalmarihuana.ca is an informative site for growing and distributing medicinal cannabis to authorized individuals. For those seriously considering applying to the OCMA for 'authorization to possess' or 'license to produce' medical marijuana, it is also strongly suggested to do further research. One recommendation is to visit a local compassion club for support in approaching these official procedures. There are still people critical of the MMAR as they think the amendments did not go far enough and barely addressed concerns brought up by the Canadian Senate's Special Committee on Illegal Drugs report (# 11) and other groups such as Canadians for Safe Access. Ongoing questions include the OCMA's procedures for handling MMAR applications (i.e. lengthy forms, timely responses to applicants and approval process) and the reality that patients are still being criminalized and many have no safe access for acquiring their medicine. The March/April 2005 edition of Cannabis Health magazine published an interview with Libbie Davies, an MP from Vancouver East, who has spoken out repeatedly on drug policy reform. Davies response to the updated MMAR was to corroborate with Pierre Claude Nolin (Chair of the Senate's Special Committee on Illegal Drugs) on a letter sent last December 2004 to the Auditor General of Canada (Sheila Fraser) and Minister of Health (Ujjal Dosanjh).

This letter is calling for an investigation on how Health Canada and the Office of Cannabis Medical Access (OCMA) have been handling the medical marijuana program. Davies encourages people to contact their MPs and MLAs and ask questions and increase pressure on the government to be more accountable to taxpayers by supporting an Auditor General's investigation into Health Canada's administering of the OCMA's management along with the policy and decision making procedures of the MMAR. Excerpts from Davies and Nolin's letter point out that the OCMA's "own research suggests there are over 290.000 medical users in BC alone but the OCMA has only registered 753 exemptees for the whole country in nearly 5 years of operation". In addition, "very few research projects have been approved and those that have are not adequately moving forward or have been cancelled despite a 7.5 million, 5 year clinical research grant". Regarding cannabis grown at the Flin Flon mine in Manitoba and overseen by the Prairie Plant System (PPS), "there are currently 83 exemptees purchasing cannabis from PPS. This equates to a cost of around $65,000 per exemptee receiving cannabis from this Health Canada facility".

The letter goes on to say that "many exemptees have actually returned their supply as the product is deemed unusable". (# 12) Governmental changes in the last decade regarding the use of medicinal cannabis have heralded changes many not thought possible. This could not have been done without the commitment and ongoing efforts of many people and organizations with work still needing to be done. Educational outreach, ongoing legal procedures and evolving medical support continues to grow along with the compelling evidence that prohibition is not the answer. A public health approach to drug prohibition is what Canada and the Netherlands are doing by providing a framework within their Health Ministries for legal access to medicinal cannabis. Speaking at the 2004 "Beyond Prohibition: Legal Cannabis in Canada" conference held in western Canada, Dr. Brian Emerson, a medical consultant for the Ministry of Health Services, BC. defines a 'public health approach' as "an approach to an issue that focuses on healthier promotion, healthier protection, and the prevention of disease, injury, disability, and premature mortality in populations". (# 13) Promoting public health involves all sectors of society, most notably doctors and patients along with our elected representatives. Educational outreach addressing society's misconceptions about medicinal cannabis use could result in a smoother process of the regulatory and licensing changes now in process. As research confirms the herbal qualities of medicinal cannabis more funding and clinical trials will take place. Soon after, the Canadian Medical Association and the Canadian Medical Protection Association will be more approving of cannabis as a medicine with results being good for all. A big step will be when a 'Notice of Compliance with Conditions' (# 14) is adopted which will further legitimize cannabis and two major steps could be taken from there. It is presumed doctors will be more comfortable and informed in prescribing cannabis and the cost of these medicines would be covered by Canada's medical plans, thus making these medicines available to more people. Allowing access to medicinal cannabis in a user-friendly fashion will begin to alleviate the pain and suffering critically ill people experience daily.

Pot'litical Corner, by Steve Pittner

This time last year, a Federal election raised a number of concerns for cannabis users and die clubs that help provide safe and reliable medical access. Although local M.P David Anderson won his riding in Victoria, he was dropped from cabinet and more recently has announced he will not run in die next federal election. A likely candidate to replace him in Victoria would be Dave Mulroney, a crown prosecutor from a local law firm. We have included his letter in this issue, along with a letter from the Minister of Justice, Irwin Cotler, in response to the letter we sent to politicians which was in our last issue. The wheels of change grind slow with minority governments. Unfortunately, people with chronic pain or terminal illnesses wait while politicians do little. The decrim. law, Bill C-17, sits hi limbo, which is probably a good tiling, while the minority government can't pass any laws.

Speaking of elections, a Provincial one is in full swing at this time and B.C is once again being swooned with assorted promises. At the provincial level there is limited legal responsibility for medical marihuana users as Health Canada is the federal purveyor of die Medical Marijuana Access Regulations (MMAR). However, prescription drug and law enforcement costs are paid for out of the provincial budget.

It's nice to know that a few local candidates have at one time or another supported, or at least leaned in favour of softer penalties, legalization and or safe access for medical users. Many marihuana advocates moved to the N.D.P during the last federal election due in part to Jack Layton's openness supporting full legalization and pot cafes across die country.

In Victoria former city councilor Rob Fleming, who spoke at our 2006 Cannabis Convention, is running in die Victoria/Hillside riding for die N.D.P. Not too long ago, Rob encouraged city council to ask the new Federal health minister Ujjal Dosanjh ( a former N.D.P premier in this province) to clarify the M.M.A.R. Also in the Victoria/Beacon Hill area, the Leader of the N.D.P Carole James is the candidate. While the old guard in the NDP is not fully supportive on this issue, it seems the younger generation is prepared to move beyond cannabis prohibition. The alternative is a nasty Liberal government which wants very harsh laws against all growers and compassion clubs shut down in favour of the federal government's plans. At the provincial level, the N.D.P has in the past viewed public input seriously and has often leaned towards community-based solutions to address social and health care needs. The candidates need to hear your views so it's up to you the voter to ask. If you would like to know more about the N.D.P their web address is BC.NDP.ca/comitments/platform.

#4 -   http://www.hc-sc.gc.ca/hecs-sesc/hecs/dscs.htm
#5 -   http://   www.hc-sc.gc.ca/liecs-sesc/ocma/
#6 - Victoria, BC "Times Colonist" article on April 20, 2005-05-03
#7 - Canada Health" magazine, May/June 2004 edition
#8 - http;//safeaccess.ca    
#9 - http//www.medicalmarihuana.ca/pdfiles/senatesunimary.pdf
Chapter 9
# 10 - "Beyond Prohibition: Legal Cannabis in Canada" conference proceedings, published by the BC Civil Liberties Association, May 2004 #11- Chapter 13
 # 12 - "Canada Health" magazine, March/April 2005 edition, volume 3, issues 3
 # 13 - "Beyond Prohibition: Legal Cannabis in Canada" conference proceedings, published by die BC Civil Liberties Association, May 2004
 # 14 -   http://lic-sc.oc.ca/liptb-dgpsa/tpd-dpt/noccfactsheet2005 _e.html or visit their web site at   http://www.hc-sc.ac.ca/hpb-dg.ps/dierapeut
     

More Court Victories

After listening to a one-day preliminary hearing for the last raid at the CBC, Judge Higginbotham threw out all charges because the Crown failed to prove they arrested the right people. This is the second time that the Crown could not prove that those arrested were actually in control of the space.  Lawyer Robert Moore-Stewart again deserves our thanks and appreciation for his work defending the club. The raid occurred on Feb. 19, 2003, after police arrested two people in possession of cannabis with a membership card and obtained a warrant for the Johnson St. storefront. After four trials, the police have never found a circumstance where the club's staff has made a single mistake. Undercover cops have failed in every attempt to join with inadequate information. The only thing wrong our club has done is technically break a law, something more than justified given the great benefits people get from using cannabis.

The only charge to stand after 4 trials against the club is the trafficking resin conviction from Jan. 7 that I am appealing to the B.C. Court of Appeal. That means a total of 11 various types of trafficking cannabis charges have been thrown out, with one left standing. ;. On the bright side, this resin conviction could be the only opportunity I could get to challenge the laws at the highest levels.

In a related case, Mary Jean Dunsdon, a.k.a Watermelon, in Vancouver has set some excellent precedents with her lawyer, John Conroy. She was arrested several times on Wreck Beach selling pot cookies and charged with trafficking cannabis resin. However, John successfully argued that these charges should be thrown out because the procedures used by Health Canada are unreliable. Unfortunately, the last decision was not available for my court case, though I may be able to use it in my appeal.

HOW TO EMAIL YOUR ELECTED REPRESENTATIVES:
 1. Find a computer with internet access.
 2. Go to the web site:   www.friendsoffreedom and locate the blue box, which is one of many links on a colourful banner you can't miss. Press the link that says 'Send your own message to all federal Members of Parliament'.
 3. Follow the prompts by providing your name, address and email along with the statement you would like Canadian MPs to consider.
 4. Press 'Generate Letter and Email List' and there you go.
 5. Thanks for taking the time to communicate with federal representatives.

Reach For the Pot, by Ted Smith

The first cannabis game show in the world has started here in Victoria at the weekly Weds night meetings of the International Hempology 101 Society. Reach for the Pot will be played every other week, with contestants being picked at 7 pm. The format has two teams of 4 contestants with 10 questions or challenges. If the answer is given with no hints, the team gets 20 points. If hints are given, the answer is worth 10 points. If no one gets it with hints, then there is a multiple choice question worth 5 points. A tournament for Reach for the Pot is being played this spring in the Inner Causeway with the final on June 15. For more information see  www.hempology.ca.

Letter From Ministry of Health to Ted Smith

On February 3 Ted Smith wrote a variety of federal, provincial and municipal politicians and public servants in regards to changing the Marijuana Medical Access Regulations (MMAR) to include cannabis resin, cannabis THE and all the other active ingredients found in cannabis. Currently, only cannabis marijuana is included in the MMAR. This letter is in the last issue of Cannabis Digest. A few have responded already; the following letters are from Irwin Cotler, Minister of Justice and Attorney General of Canada, and David Mulroney, who was unsuccessful in seeking public office for Saanich-Gulf Islands in the last federal election.

Dear Mr. Smith:
Thank you for your correspondence of February 3, 2005, concerning the Medical Marijuana Access Regulations. As Minister of Justice and Attorney General of Canada, I hope you will understand that I am not in a position to comment on the specific court cases you mention. In addition, while the Parliament of Canada is responsible for enacting criminal law, the administration of justice in a province is the responsibility of the provincial governments. Therefore, if you have not already done so, you may wish to write to the Honourable Geoff Plant, Attorney General, who is responsible for the administration of justice in your province. The office is located at P.O. Box 9044. Stn Prov Govt, Victoria, British Columbia V8W 9E2.

It may be helpful for you to know that responsibility for this matter falls within the purview of my colleague the Honourable Ujjal Dosanjh. Minister of Health. As such, I have taken the liberty of forwarding a copy of your correspondence to Minister Dosanjh for his consideration. Thank you again for writing.

Yours sincerely. Irwin Cotler

ex.: The Honourable Ujjal Dosanjh, P.C., M.P. Minister of Health


David Mulroney & Company
Barristers & Solicitors, March 14, 2005
Dear Mr. Smith:
I have your letter of February 3, 2005.

I am familiar with the various arguments for expanding the various lawful uses of marijuana and its derivatives. I note that in your letter you refer to me as a politician. Although I have sought elected office, I was unsuccessful. In the meantime, I am carrying on my law practice, part of which includes acting as Federal Crown and enforcing the laws of Canada, including our drug laws.

I believe it is the duty of every citizen to obey the laws of Canada as they presently stand. I fully recognize the desire of some citizens to commit acts of civil disobedience or victimless crimes to further their political beliefs, but those people must expect to face the consequences of their actions. In fact, in many cases, the imposition of punishment is what eventually causes society to recognize that the laws may need to be changed. If you insist upon violating the laws of Canada
I would suggest that when a charge is laid against you, you admit to the facts and dispute the law, if you feel you must. However, if a Court upholds the law you should accept the consequences of your actions as the cost of your protest.

Unfortunately, while I am engaged in the enforcement of the laws of Canada for one of my clients, I think it would be inappropriate for me to be lobbying for someone against those laws in any public forum.

Yours truly,
David Mulroney & Company
per:
David S. Mulroney
PS        I was most impressed that your letter was printed on the back of letterhead from the Ministry of Community Aboriginal and Women Services with the
colored seal of the Crown. I should have known you would be in favour of recycling. Incidentally, I would agree that whatever medication one wishes to take, it
would almost invariably be safer to ingest that medication than to light it on fire and inhale the resulting  mixture of vapor, smoke and fumes. I presume you are
familiar with the 2002 Senate Committee Report which proposes dealing with derivatives in the same way as marijuana and legalization of production for personal use.   
 

Updates, Suggestions, Warnings and Announcements, by Gayle Quin

Scott and Ryan's charges were very fortunately overturned. We would like express our thanks to those of you who kindly wrote letters of support for them, as they are in the end actually for the club. Do you remember SPIKE, HASH BEAUTY, and HAPPY ROBOT? If you do and would like to see them back on the menu, would you PLEASE write letters of support for the wonderful folks that USED to grow them for us. Our government in its infinite wisdom says we may use our medicine, but has no protection for those who lovingly produce it for us. Without a blanket exemption for our club and all die people involved in keeping it operational, we will continue to fight an uphill battle. Another couple caught growing for die club up island two years ago are facing trial this summer in Nanaimo, though with lawyer John Conroy and the buyers club fully supporting them, it is anticipated that they will get a light sentence.

Once again I would like to graciously thank all who have completed and returned their Research Questionnaires! We've been telling people to take their time with them to do a good job, but please do not forget about it. If you like you can always get another one and start again to continue to monitor your progress. The best way to reclaim your health is to reclaim your life and be responsible for your Whole Self, even if it means searching for a new doctor. VICS will be starting their trial for cultivating in May or June as well. The preliminary hearing for Ted's Nov. 15, 2000 cookie giveaway arrest has been set for June 1,2005 at 10am. The room # is always a mystery until the last minute so please come a few minutes early if you can. Ted is expecting a trial by jury this fall. Ted has appealed his cannabis resin conviction and his UVIC trafficking conviction and is presently waiting for court dates to be set. Thanks to everyone who bought a raffle ticket to pay the fine. If you would like to volunteer or help around the club be sure to attend our Working Group Meetings: next meeting July 5 at 6:30 pm at the club.    Have a happy, healthy, and safe summer!

ANOTHER SUCCESSFUL CONVENTION, by Anthony D'Agati

On Sunday, March 20, the 6th Annual Cannabis Convention, Growing Beyond Prohibition, was held in the Young Building at Camosun College. The convention, sponsored by Camosun College Hempology 101, the Cannabis Buyer's Club of Canada and Advanced Nutrients, educates students and the public about cannabis and hemp. In addition, the afternoon is a great networking tool for people within the movement, where they can exchange stories, share strategies and plan for the future. There were six guest speakers forming a well-rounded group of activists: Gordon Harper spoke on behalf of the Regional Addictions Advocacy Society, a group dedicated to educating on harmful patterns of substance abuse. Advanced Nutrients, die leading manufacturer of grow products, sent Tech' Mike to inform us of their new line and discuss responsible growing. 

Mathew McCally spoke on behalf of LEAP (Law Enforcement Against Prohibition), an American founded, but now worldwide, organization composed of ex-law enforcement officers, lawyers, judges and concerned citizens; LEAP is dedicated to fighting against prohibition starting from within the system. Gayle Quin, who represented the Cannabis Buyer's Club of Canada, told us her story and talked about the medical benefits of cannabis as well as the unique products the club has to offer. Joanna McKee, founder of the Seattle Green Cross and catalyst for the Washington State Medical Marijuana Initiative, spoke about her patient co-op, a group of medical users who help each other grow medical-grade cannabis. Of course, the convention would not be complete without the host Ted Smith, President of the International Hempology 101 Society and founder of the Cannabis Buyer's Club of Canada.

To cap off the afternoon we had a raffle and a 4:20; prizes included a beautiful glass bong, a Walbran Steve plaque and a full kit of nutrients supplied by Advanced Nutrients, to name a few. The convention was a huge success. To accommodate larger attendance the 7th Annual Cannabis Convention will be moved to the University of Victoria, to be held in Jan. 2006 instead of March, a busier month for students. Ted was arrested Nov.8, 2000 at a 4:20 circle on campus and was banned from UVic. That afternoon, undercover officers faked tokes at the 4:20, put the roaches out and later arrested Ted in the parking lot. However, a recent court decision allowed Ted back at the university for the first time in over four years, where he continues the Wed. 4:20 meetings of the UVic International Hempology 101 Club. Ted's fine of $575 for sharing joints at UVIC will be paid for in large part by a raffle held on April 20 at 4:20. Keep updated at weekly Wed. meetings, 3:20 at Lansdowne Camosun, 4:20 at UVic and 7 pm at a location downtown. Check out our website:   www.hempology.ca .
  
 

Regina v. Dunsdon Provincial Court Reasons

There are striking similarities between the court cases of Mary Jean Dunsdon, aka Watermelon, and that of Ted Smith; both were charged with the trafficking of cannabis resin. Watermelon was charged for selling cookies, while Ted was charged for selling cookies, massage oil, salve and edible vegetable capsules filled with extra virgin olive oil infused with cannabis (Ryanol). The following are exerts from her decisions of Oct. 15, 2004 and Jan.5, 2005. Oct. 15, 2004

 6) The difficulty in this case is that the analyst was unable to identify either cannabis resin or cannabis (marijuana) by sight in the sample of the cookie that she analyzed. What she was able to do was to identify a number of other cannabinoids under Schedule II that are mentioned separately there.

 7) In creating these different offences for those two substances, resin and marihuana, Parliament has ascribed different weights of those substances that will attract, not only different penalties, but different court process. The analyst, Jenny Luk, who gave evidence in this case, said that they cannot quantify cannabis resin when it is in the form of a baked product, such as a cookie. It therefore becomes impossible to place it in one of these categories that the Parliament has created, because it cannot be seen and it cannot be quantified.

10) This is not a case that is going to throw the law or law enforcement into a tailspin. It is simply a case where it was wrongly charged. Had the charges been worded differently, then it most likely would have led to a more successful prosecution. Perhaps that is why there have been no cases in these 7 or 8 years, and it is simply not problematic except if the wrong charge is laid.

Jan. 5, 2005
 5) Mr. Lam, who is employed at the Drug Analytical Service Lab and who did the analysis in tiiis case and prepared the Certificates of Analyst, was called to testify at trial. He testifies that he conducted several tests on the samples provided and found cannabinoids present in the samples. The presence of cannabinoids alone would not tell Mr. Lam whether or not cannabis resin or cannabis marihuana was present or the source of the cannabinoids found in the samples because the chemical analysis methods he used apparently cannot differentiate between cannabis resin and cannabis marihuana when the sample is one taken from something like these cookies, which are made up of ground-up substances. Nor was Mr. Lam able to determine the amount of cannabis resin or cannabis marihuana in the samples provided.

 6) He agreed in cross-examination that a trace amount of cannabinoids such as these could be present in a sample if finely ground up nonviable hempseed or even mature cannabis stalks were used to make the cookies. He attempted to identify certain botanical features such as leaves, et cetera, in the samples, but he could not. No botanical features were visible on either a macro or micro scale, that is to the naked eye or by microscope.

 7) Mr. Lam testified that he is bound by the Cannabis Identification Guidelines which set put standard operating procedures. The Guidelines prohibit the identification of samples as containing cannabis marihuana in the absence of detection of visible botanical features in them. If such botanical features cannot be seen by eye or by microscope, the substance in the sample must be identified as cannabis resin in circumstances such as these.

10) If all I had before me were the certificates and there was no other evidence, the Crown's argument may have prevailed. However, in my view Mr. Lam's viva voce evidence that he reached the conclusion that the samples contained cannabis resin rather that cannabis marijuana simply because the standard operating procedures in the Cannabis Identification Guidelines prohibit the identification of cannabis marijuana unless botanical features such as leaf can be seen in the sample under analysis, means that the cookies may have contained any of the following items alone or in combination: cannabis marijuana, cannabis resin, hempseed or mature cannabis stalks.

30) If the cookies did contain a substance listed in Schedule II to the CDSA, 1 would have a reasonable doubt as to whether that substance was cannabis resin or cannabis marihuana, given that Mr. Lam's conclusion was seemingly based not on science, but made by default, he being bound under the standard operating procedures in the Cannabis Identification Guidelines, namely, that if he could not see any botanical features in the sample, it must, therefore, be cannabis resin and not marihuana.


Thanks to all our contributors: Ted Smith, Gayle Quin, Steve Pittner, Janice Gee, Anthony D'Agati.