And Then There Were Four:

CANADIAN MARIJUANA POSSESSION LAWS CRUMBLE

On September 4, British Columbia became the fourth Canadian province
where a court has ruled that there is no law against marijuana
possession. The ruling by a BC provincial court judge is not binding,
but follows in the steps of similar rulings in Ontario, Prince Edward
Island and Nova Scotia. Those rulings, which are binding, were in turn
based on a 2000 Ontario Court of Appeals decision invalidating the
federal marijuana law because it did not provide for access to medical
marijuana. The Ontario court gave parliament one year to remedy the
law. Parliament has not yet done so. [In a feeble attempt to get
around the ruling, Health Canada created Medical Marijuana Access
Regulations one day before the one-year grace period ended, but
Ontario and BC courts have held that regulatory remedies were
insufficient.]

In making his ruling, Provincial Court Judge Patrick Chen declared
that there is no law prohibiting marijuana possession. "Once invalid,
[the law banning marijuana possession] became a nullity and could not
be resuscitated, it could only be re-enacted," Chen wrote in a 29-page
opinion. "As a result, there was no longer any prohibition or
penalty... for simple possession of marijuana. It follows, therefore,
there is no offence known to law at this time for simple possession of
marijuana."

The BC court decision further clouds an already confusing situation
when it comes to marijuana possession in Canada. While four provinces
have held the marijuana possession law null and void, courts in two
other provinces, Alberta and Saskatchewan, have found the opposite.
Similarly while Judge Chen threw out the law, two other BC provincial
judges have let it stand. And the BC Supreme Court has upheld the law
in a case that is now on appeal to the Canadian Supreme Court.
Meanwhile, a marijuana decriminalization bill promoted by the ruling
Liberal Party molders in parliament.

"This ruling just creates more confusion," said Vancouver attorney
John Conroy, who is arguing one of the Supreme Court cases. "This is
just the opinion of one provincial court judge. While other provincial
court judges have upheld the law, Chen applied the Ontario Court of
Appeals ruling and found it persuasive," he told DRCNet. "There will
be other judges who follow, but they are not bound by this ruling. To
settle this in BC, the crown will hopefully appeal to the BC Supreme
Court. If that court agrees with Judge Chen, then it will be binding
on all judges in the province."

As for pot smokers who want to try their luck, Conroy advised caution.
"This opinion won't stop the police from charging you. You are taking
a risk if the ruling is not upheld."

Police in Vancouver, BC's largest city are not making any changes just
yet, said Constable Anne Drennan, a Vancouver Police public affairs
officer. "This ruling is not binding and has no impact on police
practices," she told DRCNet. Not that it would matter much anyway,
Drennan claimed. "In Vancouver, we very rarely arrest for simple
possession of marijuana. There would have to be exigent
circumstances."

For Vancouver Member of Parliament Libby Davies, whether the ruling is
binding is not the key issue. "This most recent case is just a further
indication that Canada's current drug policies are ridiculous,
especially around marijuana," she told DRCNet. "This decision is yet
another affirmation that the courts and the people are saying the
current drug laws don't help anyone. They just turn poor drug users
into criminals. These cases are part of a broader trend -- whether
it's the drug laws or same-sex marriage, people are tired of waiting
for action and are taking the government to court."

Davies served on last year's parliamentary committee on drugs, which
recommended decriminalization of marijuana, but finds herself more in
tune with the Canadian Senate special committee on drugs, which called
for outright legalization. "Prohibition just ends up creating more
problems than the drugs themselves," she said. "I am not a big fan of
drugs, but if people are going to use, we would be far better off with
realistic education and addressing health and safety issues. You have
to remember that a substance's legality is not what determines use
levels."

As for the legal confusion, attorney Conroy said that the Canadian
Supreme Court is hearing appeals in the cases of David Malmo-Levine
and Victor Eugene Caine, and a companion case from Ontario. All were
found guilty of possession by lower courts. The Supreme Court heard
arguments on the cases in May, and a decision is pending.

To read Judge Chen's decision in Regina v. Kurtis Lee Masse, visit
http://www.provincialcourt.bc.ca/judgments/pc/2003/03/p03%5F0328.htm.