N.S. JUDGE STAYS POT CASE

A Dartmouth provincial court judge says she fears legal chaos if federal
authorities keep prosecuting people for simple drug possession.

Judge Flora Buchan expressed her concerns Monday when she stayed a
possession charge against Paula Clarke, 29, of Minesville, Halifax County.

Judge Buchan followed the lead of judges in Ontario and Prince Edward
Island who granted similar stays, arguing Canada's marijuana laws are unclear.

She said it's a question of whether it is an abuse of the court process to
permit the federal Crown to prosecute drug matters that have now been
stayed in three provinces.

Continuing this process could create "legal chaos" if judges in individual
provinces were required to make decisions on a matter that must be resolved
by Parliament.

She said Ms. Clarke was charged under federal legislation, and had the
offence been committed in Ontario or Prince Edward Island, the charge
against her would have been stayed.

Judge Buchan said all Canadians are entitled to expect uniformity from the
federal Crown.

"When a law has been found invalid by several courts in separate
jurisdictions in Canada, for the Crown to continue to prosecute that law in
certain provinces and not in others is an abuse of process," she said.

"Until a decision on an appeal to a higher court is made, the decisions of
lower courts stand."

Crown attorney Paul Riley said the Crown's position in Nova Scotia and
across the country is that it is still an offence to possess marijuana
under the Canadian Drug and Substance Act.

"We are going to continue to enforce that," he added.

"As to how we respond to this particular decision and what course of action
we will take, that's something we have to look at."

Mr. Riley said no decision has been made on an appeal.

"It's still business as usual for us," said Sgt. Don Spicer, Halifax
Regional Police spokesman.

"There's been no change in the existing law, and that's what we have to
work under."

Provincial Justice Minister Jamie Muir declined comment on Judge Buchan's
decision, saying he would have to review it with department lawyers.

Ms. Clarke also had no comment as she rushed from the courtroom with a
jacket covering her head to shield herself from waiting cameramen.

Her lawyer, Allan Doughty, said a stay of proceedings was sought on the
basis of an abuse of process because the issue had already been decided in
Ontario.

"The appropriate form is now the appellate courts and the Supreme Court of
Canada," he said.

In July 2000, the Ontario Court of Appeal said a possession of marijuana
charge violated the rights of Terry Parker by preventing him from legally
possessing the drug for medical reasons. The court gave Parliament one year
to revamp its law.

On Jan. 2, 2003, the Ontario court threw out marijuana charges against a
16-year-old because the federal government had not dealt with the Parker
ruling.

Earlier this month, Judge Ralph Thompson of Summerside provincial court
stayed a pot possession charge against a 19-year-old based on the Ontario
case. Three other cases were later stayed at the Crown's request.

In his decision, Judge Thompson said since the lower courts are bound by
the Parker decision, 12 million Ontarians have immunity from prosecution
for simple possession of marijuana.

He ruled that the law should be uniform across the country, and proceeding
in the Island case would be unfair when similar charges have not gone
forward in Ontario.

The Crown is appealing the judge's decision.

Mr. Doughty said the Supreme Court of Canada has said many times that you
cannot be convicted of a criminal offence under "a bad law."

He said the issue is whether the federal Crown is bound across the country
by one level of court in one province.

"That was the legal significance of (Monday's) ruling," Mr. Doughty said.

"Can the federal Crown be bound by an Ontario Court of Appeal or even a
lower Ontario court's ruling in Nova Scotia? The answer appears to be yes."

Mr. Doughty said the ball is now in the federal government's court to
resolve the issue.