JUDGE CONVICTS MEDICINAL POT SMOKER OF POSSESSION

Court: Defence calls verdict 'great injustice,' promises to appeal

A Hainesville man who argued against the legality of Canada's drug
laws and claimed he was permitted to possess marijuana for medicinal
purposes was found guilty of possessing the narcotic by a provincial
court judge.

Todd Terrance LeClair was fined $500 by Chief Judge R. Leslie Jackson
after a trial in which the defence argued regulations governing access
to medicinal marijuana are unconstitutional because of unreasonable
delays in processing applications for permits. LeClair also argued
certain sections of the Controlled Drugs and Substances Act (CDSA) had
no force with respect to marijuana because the medical exemption
regulations were unconstitutional.

LeClair was arrested and charged with possession of marijuana after
police executed a search warrant of his residence on Oct. 19, 2009.

During the search, police seized 215 grams of bud marijuana and 1,300
grams of marijuana "shake" from the residence.

According to testimony from RCMP Cpl. Andy Munro, a small amount of
marijuana was sent to Winnipeg for testing to verify it was actually
marijuana.

Munro said LeClair showed him a prescription for marijuana at the time
of the search.

LeClair's defence was primarily based on the notion he was permitted
to possess marijuana as long as he had a doctor's prescription.

When LeClair testified during the trial, he said his doctor had told
him if he had the prescription he would be exempt from
prosecution.

"Nobody told me I wasn't ready to go," LeClair said.

LeClair told the court he'd been taking painkillers since a motorcycle
accident in 1987. After a fall in 2008, he said a friend let him try
marijuana and it seemed to help his condition.

According to LeClair, he had never been told the prescription was only
to obtain a possession licence through Health Canada and he'd never
been given an explanation for the lengthy delay in receiving a licence.

LeClair received a licence on Jan. 13, 2010.

In a written decision, Judge Jackson said there was no doubt LeClair
was in possession of marijuana on Oct. 19, 2009, and LeClair had
admitted as much during the trial.

Jackson said the constitutionality of the medical exemption
regulations was irrelevant to any issue he had to decide.

"The issue here is whether the structure set out in the medical
marijuana access regulations is manifestly unfair because of the
delays in processing times," Jackson wrote in his decision. "LeClair
also suggests that the procedure is manifestly unfair as the delays
prevent him from having timely access to his 'medicine.' "

LeClair had argued if his doctor had issued a prescription for the
painkiller Dilaudid, he'd have had access to the medicine in hours
instead of weeks or months.

Jackson dismissed the argument, noting the document LeClair had been
issued wasn't a prescription, but a medical practitioner's declaration
and signature to be used in the application process.

"No physician can prescribe marijuana as it is a prohibited drug,"
Jackson wrote. "The declaration is a necessary part of an application
for an authorization to possess but is not on its own a legal
authorization to possess marijuana."

Jackson also addressed the issue of the lengthy delay LeClair claimed
he experienced while waiting for his application to be processed.

The Crown had called Jeannine Ritchot, director of the Bureau of
Medical Cannabis at Health Canada to testify as to the procedures of
her organization and the systemic delays in terms of processing the
applications.

Ritchot told the court there had been a sharp increase in the number
of applications received by her organization beginning in September
2009, and by November 2009 it was clear a new trend was being
established.

She said the operational standard of her organization as far as how
long to process an application was eight to 10 weeks, but the large
number coming in beginning in the fall of 2009 made it difficult to
meet that standard.

Ritchot said Health Canada has been taking steps to address the delays
and return to their standards.

Ritchot also provided the court with a copy of LeClair's application
for the exemption.

The document was dated March 15, 2009, which was consistent with
LeClair's testimony.

But Ritchot indicated the application wasn't received by Health Canada
until Oct. 23, 2009.

Call logs of conversations between LeClair or his girlfriend Judy
Jamieson and Health Canada regarding the application process were
supplied by Ritchot in an affidavit.

According to the logs, LeClair or Jamieson indicated on several
occasions the application was mailed in March, May, June or July 2009.

"I am satisfied on the evidence before me that the application was, in
fact, not mailed in March 2009 and was in all probability not mailed
until after the execution of the search warrant on Oct. 19, 2009,"
Jackson wrote.

As for the constitutionality of certain sections of the CDSA, Judge
Jackson said he was bound by prior rulings from the New Brunswick
Court of Appeal.

"Section 4(1) of the Act is valid legislation and has never been
repealed," Jackson wrote, referring to the section dealing with
possession of illegal drugs.

Based on all those factors, LeClair was convicted of the
charge.

LeClair was fined $500 plus a $75 victim fine surcharge, which must be
paid by May 31, 2011.

Jamieson, who'd represented LeClair during the proceedings, made it
clear she didn't think the verdict was appropriate and vowed to appeal
the conviction.

She said the verdict sent a message to medicinal marijuana users that
Canadian laws don't protect them.

"A great injustice has occurred here," Jamieson said outside the
courtroom.