B.C.'s Marijuana Law Doesn't Exist, Judge Rules

B.C.'s Marijuana Law Doesn't Exist, Judge Rules
Posted by CN Staff on September 16, 2003 at 07:18:19 PT
By Neal Hall, Vancouver Sun
Source: Vancouver Sun 
A B.C. judge has ruled the law prohibiting the possession of marijuana does not exist. Provincial court Judge Patrick Chen found the pot possession law went up in smoke three years ago when Ontario's top appeal court found the law invalid. Once declared invalid, the law prohibiting pot possession ceased to exist, the judge concluded. "Once invalid, it became a nullity and could not be resuscitated, it could only be re-enacted," Chen said in a 29-page written judgment earlier this month.
"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."Chen's ruling, however, will not have widespread application or be binding on other judges, even at the provincial court level, said lawyer John Conroy, who specializes in marijuana law."It adds more confusion to the whole picture," Conroy said of Chen's decision. "Hopefully, this will be appealed to the Supreme Court, which would have a binding effect on other courts."Lyse Cantin, director of communications for the Department of Justice in B.C., which prosecutes all drugs cases, said the pot possession law still exists because of an earlier B.C. Court of Appeal ruling in a case called Caine, which is under appeal in the Supreme Court of Canada. Asked what would happen if a person, who reads the recent Chen judgment and believes the law doesn't exist, begins openly smoking pot on the street, Cantin said: "That's a good question."The Chen judgment is under review to see whether it can be appealed, she added.Chen's ruling came as he allowed the application of Troy Anderson, a lawyer acting for Kurtis Lee Masse, to quash a pot possession charge against Masse, who was accused of possessing marijuana last Feb. 21 in New Westminster. Snipped: Complete Article: Vancouver Sun (CN BC)Author: Neal Hall, Vancouver SunPublished: Tuesday, September 16, 2003Copyright: 2003 Vancouver Sun Contact: sunletters pacpress.southam.caWebsite: Articles:Marijuana Laws Struck Down in British Columbia Allows Marijuana Ruling To Stand Legal in Ontario Laws Ban Possession of Marijuana 
Home Comment Email Register Recent Comments Help

Comment #6 posted by ErikGhint on September 16, 2003 at 08:41:56 PT
He also went on to say the following"It's just a division of power situation. Yes, caselaw is binding, but only to lower courts of the same province. ie - Ontario Superior Court decisions are only binding on Ontario Provincial Courts. They are not binding on courts of concurrent jurisdiction (Other Superior Court judges of the same province)The purpose of this is not to recognize the higher court's decisions as "The Law" - but only to maintain consistency in lower court decisions. It's up to parliament to make or void the laws. There are several Criminal Code offences that are still hanging around. A funny one is the s.163(7) Crime of producing "Crime comics" - basically any publication that describes or illustrates someone commiting a crime - like every comic you've ever read.The courts have refused to punish anyone under it since the 50's but it's still there, and while you would never ever get busted there is nothing preventing the police from arresting you for producing a Batman comic. No one ever took it off the books, and consequently no one ever took away the police power to arrest you for it.Could you sue the cops if they took away your weed or arrested you right now? No. wait to see what the Ontario Court of Appeal says (that's the next step in this processs) Then, it will be the Supreme Court - they may uphold the acquittals and THEN it will be followed by all other courts.I recently recieved certificates of analysis from the Crown on a case in a small town in Eastern Ontario. The cops had recently (since the Ontario decision) charged someone with having 5 grams of weed - meaning they had it analyzed by the Centre of Forensic Sciences to determine that it is weed and are prepared to go to trial on this possession charge. We laughed at it of course, and it will go nowhere, but it just goes to show you that not all police forces and prosecutors are refraining from busting or charging people. I assume they are hoping that the O.C.A. will overturn the possession acquittals before this gets to trial.Hope that helps"I am going to continue my discussion with this lawyer and will inform you guys.
[ Post Comment ]

Comment #5 posted by ekim on September 16, 2003 at 08:39:36 PT
has landed
>***Taking Away More of Our Rights
>***New "Drugs and Terrorism" Bill Must Be Stopped
>Senators are drafting a "drugs and terrorism" bill that could treat many 
>non-violent drug offenders as terrorists and strip away civil liberties 
>from every American. Unless you tell your Senators "No way!" it could be 
>introduced soon.
>Fax your Senators at:
>It was bad enough that the government used tax payer dollars to produce 
>ads calling marijuana users terrorists. Now things are more serious and 
>the government is trying to create new laws to boost their 'drug war' in 
>the name of fighting terrorism.
>'Vital Interdiction of Criminal Terrorist Organizations (VICTORY) Act of 
>2003' could turn out to be more devastating for us (the ones these laws 
>should protect) than the PATRIOT Act. The Drug Policy Alliance has been 
>working behind the scenes to secure opposition to the bill in Congress 
>and help remove some of the most dangerous provisions. Now we need your help.
>Most recent drafts of the legislation would expand the Justice 
>Department's already overbearing PATRIOT Act powers to provide extra 
>penalties for drug sellers alleged to provide funding to terrorist groups 
>(even if they do not know that they are connected with 
>terrorists). Dramatically expanding the government's 'big brother' 
>powers, the VICTORY Act also allows the government to spy on citizens 
>without the checks and balances needed to prevent abuse.
>Frightening as it is, Drug Policy Alliance believes that with enough 
>pressure the VICTORY Act can be stopped before it's even introduced. Fax 
>your Senators today to urge them not to co-sponsor or support the VICTORY 
>Act. If Senator Hatch cannot find enough co-sponsors for his legislation, 
>he may be forced to rethink this unnecessary legislation.
>1)  Fax your Senators at:
>2)  Forward this alert to your friends and family
>A draft of the bill obtained by the Drug Policy Alliance can be read at:
>For problems, please contact Jeanette Irwin at jirwin
>Please consider joining the Drug Policy Alliance: 
[ Post Comment ]

Comment #4 posted by ErikGhint on September 16, 2003 at 08:34:50 PT
I was on another forum, and their is this canadian lawyer who is saying the same thing. I kept arguing and this is what he said to me."Erik, you're making a common and understandable mistake when it comes to the current legal situation regarding marijuana - you are confusing police powers of arrest with common law decisions.BTW - if you want to know anything about the law, ask a lawyer, a Judge, a Crown Attorney. Never ask a cop - they really never have any idea what's going on with the law - the are handed policy changes and told not to arrest people etc. etc. But what it boils down to is this: There are two kinds of Law1) legislative or statutory law - this is all the laws in the Criminal Code, passed and enacated by parliament. These laws never have to see a courtroom to be valid. 2) Common law or caselaw - these are more like procedures and precedents set by the courts hearing cases based on the statutory laws and charges that come before them. You see, the courts have power over whether or not they will follow a certain law. Like in this case, the Ontario Court has said "Well, this law may be on the books and properly enacted by parliament, but I find it unfair, I'm not going to follow it in my courtroom - case dismissed."They have that right to say what will go on in their jurisdiction, but that doesn't make the law "disappear"If the courts really had that power, they law would be taken off the books and this would be binding all over Canada. As it is, the Ontario courts are just not hearing it until a higher court says otherwise. Or until a new law is introduced by parliament. So the while the courts can ignore it when it comes before them, it's still around in the legislative sense. It's still in the Code.This is where police powers of arrest come in - the Code empowers them to arrest any person the find committing a criminal offence. Because the courts have no power to erase laws passed by parliament, neither can they prevent the police from arresting you, as the powers of arrest were also written by parliament.The same thing happend with paraphenalia laws - they are still in the criminal code (most people don't know this) - it's technically illegal to sell bongs in Canada, but in 1994 a court decided that the law was overly broad (vague) and decided not to follow it anymore. After this, there were a bunch of cases that came to court about paraphenalia, and they got thrown out. So the Prosecutors said to the police: "Look, the law may still be there, but the courts won't listen to it, so quit arresting people. We'll just end up losing."End of story in terms or our practical purposes. But, until parliament takes the big eraser to the "instruments and literature for illicit drug use" under section 462.1 of the Criminal Code.......Some rookie cop would be within his government granted power to arrest you for that bong.Same thing with pot right now.I hope that makes some sense."
[ Post Comment ]

Comment #3 posted by E_Johnson on September 16, 2003 at 08:16:30 PT
Why is the press so confused???
Decriminalized has so many more letters than legalized, and legalized is so much more accurate, why do these journalists keep using the former word when the latter clearly applies here? 
[ Post Comment ]

Comment #2 posted by FoM on September 16, 2003 at 08:07:42 PT
News Brief from The Canadian Press
B.C. Provincial Court Decriminalizes Possession of Marijuana Tuesday, Sep 16, 2003 VANCOUVER (CP) - A B.C. provincial court decriminalized possession of marijuana Monday. In a ruling, the court said "there is no offence known to law at this time for simple possession of marijuana." The decision follows similar rulings in Ontario, P.E.I. and Nova Scotia. It relies on an July 2000 decision by the Ontario Court of Appeal in which the judge declared the law prohibiting simple possession to be constitutionally invalid because it did not have an exemption for medical use. The defendant was an epileptic who said he needed cannabis to control life-threatening seizures. Parliament was given one year to deal with the legal loophole and it came up with the Medical Marijuana Access Regulations. But the Ontario and B.C. courts have said that wasn't enough, noting the regulations don't have the force of law and can be amended without debate. As a result, the law prohibiting possession was held to have been stricken from the books by the ruling in the Ontario case. Copyright: The Canadian Press, 2003 
Cannabis News Canadian Links
[ Post Comment ]

Comment #1 posted by FoM on September 16, 2003 at 07:41:28 PT
Regina v. Kurtis Lee Masse Ruling
[ Post Comment ]

Post Comment