Pubdate: Fri, 23 May 2008
Source: Calgary Sun, The (CN AB)
Copyright: 2008 The Calgary Sun
Author: Bill Kaufmann


They fought the law and the ... law lost.

In fact, Canada's petty, nanny-state prohibition on simple marijuana
possession has been repeatedly revealed as either non-existent or as
murky as well --used bong water.

Except, you'd never know it as the charges continue to be laid and
judicial resources go up in smoke.

Since the statute criminalizing possession was ruled constitutionally
invalid after an Ontario Court of Appeal decision in 2000, a score of
charges in that province, P.E.I., Nova Scotia and B.C. have been
tossed out for lack of any clearly valid law.

Prosecutors' wrists have even been slapped by judges for pushing
through charges that in other provinces have been deemed moot. Tens of
thousands of the cases were dismissed in Ontario until and even after
October 2003, when that province's appellate court supposedly
reinstated the prohibition.

But there's doubt over the power of the court to re-validate a law
that's been struck out of the legal system. And there's doubt about
the validity of the medical marijuana regulations issued by the Privy
Council, when this is the court-declared job of Parliament.

In the meantime, defendants using case law challenging its
constitutional validity have since been winning in court, as recently
as last month in Prince Rupert, B.C. A case was withdrawn in
Kitchener-Waterloo, Ont., in February by a judge five months after a
ruling in Oshawa stated "there is no offence known to law."

We can thank our spineless, indecisive politicians -- both Liberal and
Tory -- for the disarray.

Kudos also go out to a downloadable legal defence kit trumpeting
previous cases that have stymied prosecutions available at

Pro-cannabis activist Keith Fagin has been handing out the kits to
defendants at Calgary's courts building.

Several have accepted them, with one case to be heard June 3 of
interest, he says.

But Fagin admits most are reluctant to resist even what's been proven
in court to be a vulnerable law.

"They say 'I'll take the $100 fine' but it's also a criminal record
and more than that -- it's standing up for something," he says.

That submissive attitude plays into the hands of prosecutors who are,
however, not immune to a concerted challenge, says Doug Hutchinson, a
University of Toronto philosophy professor and author of the legal
defence kit.

"When you start showing resistance on principle, they drop the charges
. they say pursuing those cases are not in the public interest but
in fact they're just running away from resistance," says Hutchinson, a
Rhodes Scholar whose Oxford thesis on jurisprudence was the rule of

"But the police have been told to keep on arresting even though the
invalidated law hasn't changed."

It's hardly a surprise in a country where police still harass
law-abiding medical marijuana-users.

Hutchinson says the Harper government is ready to take a tougher line
on the general possession issue while it trains a nervously submissive
eye to the south.

"They don't care about the law being invalid, they want to keep the
pretence of its validity for the benefit of the Americans."

Given that, says Hutchinson, the legal kit should be viewed by its
users not as a silver bullet but as another layer of defence.

Hutchinson's confronted police officers and needled prosecutors for
continuing to pursue cases, often drawing, he says, an exasperated

And he's flabbergasted at the arrest for possession of three Calgary
pro-pot demonstrators May 3.

"The CPS was foolish enough to try to intimidate a peaceful
demonstration ... there's no other city in the country where that's a
remote possibility," he says.
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