MEAFORD COUPLE TO CHALLENGE POT LAW

'Technical Breach' Of Marijuana Law Turns Into Constitutional Case

A Meaford man and woman will fight drug charges - laid one month
before he received licences to possess and grow marijuana for
medicinal purposes - by arguing Canada's marijuana possession law is
unconstitutional.

"The Charter of Rights, that's what this whole thing is about," James
Kerr said after a court appearance last week. He believes it has been
unconstitutional to be charged with a marijuana crime since an
Ontario Court of Appeal decision in 2001.

Kerr, 35, and Celena Negovetich, 30, are each with possession of
marijuana for the purpose of trafficking and with production of
marijuana on Jan. 4 in their Meaford residence.

Neither can afford a lawyer so they're relying partly on help from
Edwin Pearson, a pot activist who has written a book called "Never
Plead Guilty," and Doug Hutchinson, a philosophy professor who calls
himself a pothead.

Kerr and Negovetich turned down what they said was a Crown offer to
withdraw all charges in exchange for forfeiture of about $6,800 worth
of marijuana and $1,700 worth of grow equipment and his right to sue.
Kerr said they can't afford to lose that much "medicine."

Kerr said he was diagnosed in September 2005 with multiple sclerosis,
a disease of the central nervous system with no cure. It causes
attacks of prolonged muscle spasms and headaches which he says are
relieved with marijuana.

Kerr was charged after his family doctor signed the medical use of
marijuana form, which the physician had for a year. Before signing
the form, the doctor suggested Kerr use four grams per day, Kerr said.

Federal Crown attorney Doug Grace conceded in court Thursday that
Kerr now has medical production and possession licences and that the
charges relate to a "technical breach" of the law, so the Crown won't
be "bloodthirsty."

Justice Julia Morneau asked if there would be challenges under the
Charter of Rights and Freedoms and Grace said the legislation
governing marijuana possession may be tested. The trial is scheduled
to begin Aug. 12 and last one day.

Eugene Oscapella, a criminology professor at the University of Ottawa
and co-founder of the Canadian Foundation for Drug Policy, said there
have been some successful court challenges of charges of simple
possession of marijuana across the country.

Some have challenged the medical regulations which grant exceptions
for medical reasons, some have challenged other provisions.

"Some people have gone on their own and done it and some lawyers are
incompetent, so in some cases people can actually mount a very good
defence on their own," Oscapella said.

Kerr carried a copy of Pearson's book to court last week. Pearson is
not a lawyer or a paralegal but has been a pot activist since the
1960s. Kerr also relies on Hutchinson's website,
www.ThePotLawHasFallen.ca, which offers a free "defence kit" to fight
simple possession charges.

Both Pearson's and Hutchinson's arguments stem from whether the
government's medical marijuana access regulations are a
constitutionally acceptable medical exemption, in accordance with a
2001 court of appeal ruling.

Hutchinson's website cites several cases, including one in October
2007 in the Ontario Court of Justice.

In that case Pearson succeeded in getting charges against three
people charged with simple possession under Sec. 4(1) of the
Controlled Drugs and Substances Act dismissed because that section
was deemed unconstitutional. That decision was based on an earlier
court decision, which is under appeal.