POT OWNER GETS BREAK

Judge Rules That New Westminster Man Was Not Breaking The Law

A B.C. judge has ruled that a man who was arrested in New Westminster with
what would amount to a small garbage bag full of marijuana was not breaking
the law.

On Sept. 4 in provincial court in Coquitlam, Judge P. Chen concluded that
"there is no offence known to law at this time for simple possession of
marijuana."

The judgment, which is expected to have immediate ramifications in B.C.
courts, refers only to possession of marijuana, not possession for the
purpose of trafficking.

"It's caught the attention of a number of defence lawyers," said Troy
Anderson, the New Westminster lawyer who defended Kurtis Lee Masse, the
accused.

"I would expect similar applications are going to be heard over the next
few weeks."

The charge against Masse died before it got to trial.

"It was a preliminary application to quash the charging document on the
basis that it didn't disclose an offence known to law," said Anderson,
explaining that such an application is the first argument an accused can make.

In this case, the judge agreed, based on a July 2000 ruling of the Ontario
Court of Appeal. That ruling involved the case against Terry Parker, a man
who smoked marijuana to control epileptic seizures and successfully
challenged the law.

In this case, New Westminster police report that during a check of a motor
vehicle on Feb. 21 of this year, a police officer smelled marijuana.
Questioned about the odor, a man inside the vehicle handed over a marijuana
cigarette. Police then searched the vehicle and found 386 grams - close to
a pound - of the substance.

Although Anderson said simple possession charges are not common in the
Lower Mainland anymore, New Westminster police say they aren't about to
look the other way when they come across the drug.

"We will continue to submit charges for possession of marijuana and the
Department of Justice will decide whether they are processed or not," said
Insp. Dave Jones in an interview Thursday. "At the end of the day, we'll
enforce the laws. Crown (counsel) hasn't said to us, 'Stop, there are no
more charges for marijuana.'"

Police forward proposed charges to Crown counsel, who decides whether to
proceed through the courts with them. Criteria involve whether proceeding
is in the pubic interest and if there is a reasonable chance of conviction.

Sgt. Paul Milne, head of the department's drug section, reiterated Jones' view.

"We're still doing them (possession-of-marijuana arrests) ... Of course,
every case you take on its own merits. I know the attitude from the
government and from the public is that it's not an important thing, but we
think it's important."

Jones said police have been told by the federal Department of Justice that
the department is reviewing the Masse case to assess whether to appeal.

Justice department spokesperson Lyse Cantin noted that the provincial court
judgement is not binding in other courts.

Asked if he was surprised by this first-in-B.C. ruling, Jones said, yes and no.

"Yes, because there were other case decisions in B.C. that appeared to have
dealt with it. No, because there are other rulings that have come from
Ontario."

In his 29-page judgment, Judge Chen cites many cases.

In short, he points out that on July 31, 2000, the Ontario Court of Appeal,
in its ruling on the Terry Parker case, took marijuana possession out of
the Controlled Drugs and Substances Act, declaring it invalid. However, to
give Parliament a chance to come up with a new law addressing marijuana
possession, the court postponed making it invalid for one year.

One day before the year was up, the federal cabinet enacted the Marijuana
Medical Access Regulations (MMAR), which set out rules allowing people who
require the drug for medical purposes to gain access to it.

In his ruling, Judge Chen points to an Ontario decision in January 2003,
that said the government's new regulations did not adequately fill the
legislative gap.

For instance, Chen referred to the statement that "regulations can be
changed with every publication of the Canada Gazette, without consideration
of Parliament and the debate that would entail."

He also referred to a decision that noted the regulations do not contain
any prohibition or penalty for simple possession of marijuana.

Chen concluded that although the government enacted new Marijuana Exemption
Regulations under the Food and Drugs Act on July 8 of this year, they came
too late to help out with the already invalid legislation.

"Once invalid, it became a nullity and could not be resuscitated; it could
only be re-enacted. It follows, therefore, that there is no offence known
to law at this time for simple possession of marijuana."