Pubdate: Mon, 12 Jan 2009
Source: Vancouver Sun (CN BC)
Copyright: 2009 The Vancouver Sun
Author: Ian Mulgrew, Vancouver Sun
Bookmark: (Marijuana - Medicinal - Canada)
Bookmark: (Marijuana - Canada)
Bookmark: (Vancouver Island Compassion Society)


The B.C. Supreme Court has rejected complicated constitutional
arguments that deficiencies in the medical marijuana regime and
conflicting jurisprudence should invalidate the criminal drug law.

In an important, cogent 18-page judgment released Friday, Justice
Austin Cullen quashed the suggestion that pot smokers should get an
exemption from the criminal law because the medical marijuana scheme
isn't working.

He acknowledged that the pot prohibition is constitutional only as
long as medical need is accommodated: "There must be a
constitutionally acceptable exemption from prosecution for seriously
ill people with legitimate medical needs for the drug."

But that doesn't mean any constitutional deficiency or any
inefficiency in the medical marijuana program necessarily subverts the
criminal law.

Cullen parsed several conflicting Ontario, B.C., federal and Supreme
Court of Canada rulings involving the relationship between the
national medical marijuana regulations and the drug

Cullen explained that in his view, the two most important court
decisions spelled out a simple principle -- the validity of the
criminal law was tied to an effective exemption for medical users and,
if that exemption is lacking in any way, the courts have a duty to
address that issue rather than target a prohibition that has already
received the Supreme Court of Canada's blessing.

No matter what the concern, the courts must impose the least intrusive
and the most precise solution.

If the medical program is ailing, it's patients that require a remedy,
not scofflaws smoking a reefer on a B.C. ferry.

Justice Cullen was sitting as an appeal judge on the summary
provincial court conviction of Ryan Poelzer, arrested May 18, 2007
after smoking a joint as the ship pulled into Langdale. An off-duty
cop was offended and alerted the RCMP.

As he disembarked, Poelzer was stopped and in his backpack police
found 78.3 grams of marihuana, 8.6 grams of hash, and assorted
paraphernalia and pro-drug literature.

Poelzer was charged with possession, convicted and handed a six-month
conditional sentence.

His lawyer Kirk Tousaw argued the conviction should be overturned
because acknowledged deficiencies in the medical marijuana regulations
at the time of Poelzer's arrest rendered the cannabis prohibition
invalid, or, alternatively, the conflicting rulings across the country
made the state of the law so confused, prosecution constituted an
abuse of process.

The provincial court judge dismissed those propositions.

The medical regulations had been found valid, she said, adding she was
not bound by the Ontario, federal or previous B.C. cases cited by Tousaw.

There was no confusion about the state of the law -- possessing pot
was illegal and Poelzer knew that.

Cullen agreed.

"In British Columbia, there is no binding authority that section 4(1)
is of no force and effect in the absence of a constitutionally
acceptable exemption for medical marijuana users," he said.

The Supreme Court of Canada has upheld the prohibition against
possession of marijuana, Cullen emphasized, and nothing has happened
since that decision that would justify a B.C. court declaring the
criminal law "to be of no force and effect, or in treating it as such.

"To do so," he said, "would be to fashion or provide a remedy that in
the words of the Ontario Court of Appeal would be 'overly broad and
inadequately tailored to the constitutional deficiencies in the
[medical program].'"

Cullen added wryly that Poelzer couldn't have been too confused by the
conflicting jurisprudence, because some of the conflicting cases his
lawyer cited had not yet occurred.

Tousaw said his client was disappointed.

A decision in a second key B.C. Supreme Court case focusing on the
legal penumbra between the medical regulations and the criminal law is
due next month.

It is more complicated because it involves the Vancouver Island
Compassion Club. 
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