POT: IS IT LEGAL OR NOT NOW?

Is It Legal Or Isn't It?

A provincial court ruling that laws prohibiting possession of marijuana
don't exist has prompted discussion over whether possession of pot is now
legal.

"It's certainly caused a lot of confusion . . . what we really need is a
higher court decision," said Abbotsford lawyer John Conroy, who specializes
in marijuana law.

Two weeks ago, Judge P. Chen said "there is no offence known to law at this
time for simple possession of marijuana" when ruling on a New Westminster
possession of pot case.

However, Abbotsford Police chief Ian Mackenzie said "it's still illegal,
despite judge Chen's decision."

Mackenzie notes the decision has no binding effect. However, chasing down
possession offences doesn't rank as one of the department's top priorities,
and police typically only recommend possession charges if a suspect, when
arrested for other criminal offences, is found in possession of cannabis.

In Chen's decision, he cited an Ontario court of Appeal case, Regina vs.
Parker, which ruled in 2000 that marijuana possession prohibitions were
invalid.

The court suspended the declaration of invalidity for one year to "provide
parliament with the opportunity to fill the void." Parliament did not take
the opportunity.

"While I agree that I am not bound by Parker, in my view it should be
followed unless there is a good reason not to do so," said Chen in a
written decision. "It is, after all, a decision of the Ontario Court of
Appeal and no decision of this province's court of Appeal has addressed the
issue of the constitutionality of section 4's prohibition against marijuana
on the basis of medical use."

Conroy noted the Ontario and recent B.C. cases are not binding, but are
"highly persuasive."

The discussion over legal possession of pot is one that is also happening
at the federal government level and in various courts, and a decision in
either arena could settle the debate over the legality of possessing pot or
"muddy the waters."

Conroy is currently awaiting a Supreme Court of Canada decision after a
constitutional challenge of pot laws. The federal justice ministry is also
considering legislation to decriminalize small amounts of marijuana.