SPECIAL HEARING SET AFTER JUDGE'S DEATH LEAVES CASE HANGING

Criminal Drug-Trafficking Trial Involves Important Constitutional Challenge

The death of B.C. Supreme Court Justice Robert Edwards has
jeopardized a lengthy and costly Victoria criminal trial involving an
important constitutional challenge of the marijuana law.

In most criminal cases, when a judge is unable to follow through to
judgment a mistrial is declared and everyone begins again.

There is too much at stake here, so on Friday a rare hearing has been
scheduled in Vancouver to see if there is a way to save the huge
expense incurred and the evidence already presented.

"We don't want to see the incredible effort by the chronically ill
patients who have supported and testified in this case lost," defence
lawyer Kirk Tousaw said Wednesday.

"We're hoping to find a way to move forward because this case has
such widespread repercussions for the tens of thousands of terminally
ill and ailing Canadians who get therapeutic help from marijuana."

Michael Swallow, 41, and Mat Beren, 32, both were charged with
producing and possessing marijuana for the purpose of trafficking in
May 2004 after the RCMP raided a Sooke house used by the Vancouver
Island Compassion Society.

The club provides the cannabis products and other health services to
roughly 600 members.

Tousaw and colleague John Conroy have been arguing the criminal law
is constitutionally invalid because the federal government has failed
to provide adequate access and supply of medical marijuana as
required under the prevailing Supreme Court of Canada decision about
the criminal prohibition.

In that 2003 case, the high bench decided ill people should not be
forced to go to the black market for medication and the criminal
prohibition was constitutional only if Ottawa provided an adequate
medical program.

Health Canada responded by providing three legal ways for the sick to
obtain marijuana: They can obtain a permit to grow it themselves,
they can get permission to have a designated grower produce it for
them, or they can buy it from the government, which gets it from a
company growing the plants at an unused Manitoba mine property.

But there are widespread complaints from patients that obtaining and
maintaining the necessary permits from Ottawa is an interminably
clotted bureaucratic process.

As well, many say the federal pot isn't very good and they either
need better quality dope or a different strain.

They say the current situation forces them to support organized crime
and buy the medicine they need from street dealers.

A study was presented to the court in fact that indicated most
patients using marijuana buy it from illicit sources.

Thousands across the country, however, have turned to compassion
clubs such as the VICS that provide a variety of better quality
cannabis products, as well as the dried herb.

Justice Edwards has heard from a who's who about the issue including
Conservative Senator Pierre Claude Nolin, who led the 2002
parliamentary review of drug policy that called for marijuana
legalization, Victoria's No. 2 cop and the province's most visible
legal pot producer, Eric Nash.

The importance of this trial is underscored given two recent Ontario
court judgments that accepted similar arguments.

A judge in Oshawa threw out possession charges against three young
men on Oct. 19, citing a ruling in July by the Ontario Court of Justice.

In the earlier case, which is being appealed by the Crown, Justice
Howard Borenstein agreed with arguments that Ottawa should have
passed a new law in response to the 2003 Supreme Court decision.

The current criminal law is unconstitutional, he said, because it
does not accommodate legal medical use and Ottawa should have
rewritten it rather than respond by issuing regulatory permits.

This case is also in the spotlight because the Conservative
government is pushing to stiffen criminal penalties for cannabis
offences as part of its vaunted law-and-order legislative package.

Testifying for the defence in this case, however, Deputy Victoria
Police Chief Bill Naughton said the compassion society's Cormorant
Street office has not generated any complaints.

He added marijuana ranks behind drugs like cocaine, methamphetamine
and heroin in terms of his department's priorities.

Funny that the local cops didn't think it was a problem but the
police force controlled by Ottawa decided to move in.

B.C. Supreme Court Chief Justice Don Brenner said the late Justice
Edwards had few cases or unwritten decisions on his plate when he
died a few weeks ago and only this file presented a particular challenge.

He appointed veteran Justice Marvyn Koenigsberg to see what could be done.

Should everyone go through the expense of mounting a retrial, or
might it be possible for the justice to read a transcript of what's
happened since the trial began in May and continue?

The proposed solution is for a mistrial to be declared and a new
trial started with an agreement that the evidence already heard will
be admitted into the record in transcript form.

But, there remain concerns -- credibility is difficult to determine
from a transcript alone and the written record often does not convey
the emotional impact of a live witness, and Justice Edwards listened
to heartfelt pleas from sick people.

"There's going to be some interesting discussion," Tousaw said. "We
think it's important to get a judgment quickly.

"The current program is not working and people are unable to get the
medicine they need without risking criminal charges and jail. "If
there is any way to save what has already been invested in this case,
I think we should find a way to do that."