LEGAL VOID BEHIND REQUEST TO STAY TEEN'S POT CHARGES

The Victoria lawyer representing a 17-year-old girl facing marijuana
possession charges asked a Victoria provincial court judge Thursday to stay
the charges on constitutional grounds.

Bradley Hickford argued that the federal laws dealing with simple
possession of marijuana no longer exist.

Hickford represents a Victoria girl who was arrested May 17, 2002, and
charged after Saanich police found a joint and roach at her feet when they
stopped the car she was riding in.

The girl cannot be named under the Young Offenders Act.

The trial was set for Jan. 15, but Hickford instead filed a notice with the
court that he intended to ask the charge be stayed on the basis that the
offence is unknown to law.

Hickford was referring to a July 2000 decision by the high court of Ontario
which deemed the federal laws on possession of marijuana are unconstitutional.

That case dealt with a man who smoked marijuana for health reasons.

The Ontario court struck down Section 4(1) of the Controlled Drugs and
Substances Act but gave the federal government 12 months notice so new
regulations could be put in place.

Hickford argued in court that a void now exists and possession of marijuana
of less than 30 grams is no longer against the law because there is no law.
The provincial court on Prince Edward Island has agreed in the wake of the
Ontario decision that the federal drug laws are unclear -- three cases of
possession were thrown out last week.

But federal Crown lawyer Danielle Topliss said in Victoria that new laws on
access to medicinal marijuana do address the issues raised by the Ontario case.

"What is the argument all about? What is the problem? There is no problem,"
Topliss told Judge Anthony Palmer.

She said the possession of marijuana law remains in the Criminal Code. It's
the same section that deals with possession of many other illicit drugs.
Suggesting the law is no longer valid "is absurd," Topliss said.

The case of the Victoria girl cannot be compared with the Ontario case,
said Topliss, because there's no suggestion she used marijuana for
medicinal purposes.

But Hickford argued that there's "no question and no denying" that the
entire section regarding drug possession has been struck down in Ontario.

The laws on medicinal marijuana do not fill that void, he added.

And federal laws should be applied equally across the country, he argued.
Cases of simple possession of marijuana are not being pursued in Ontario
and P.E.I.

"All of Canadians deserve to be treated in the same fair manner," Hickford
said.

He reminded the judge of a Supreme Court of Canada ruling that no one can
be convicted of an unconstitutional law.

He asked Palmer to stay the charges of marijuana possession against his client.

Palmer said he would take time to consider the matter, calling it "a very
interesting argument, I must say."

No date was set for a decision.