Pubdate: Mon, 12 Jan 2009 Source: Vancouver Sun (CN BC) Copyright: 2009 The Vancouver Sun Contact: http://www.canada.com/vancouversun/letters.html Website: http://www.canada.com/vancouversun/ Details: http://www.mapinc.org/media/477 Author: Ian Mulgrew, Vancouver Sun Bookmark: http://www.mapinc.org/mmjcn.htm (Marijuana - Medicinal - Canada) Bookmark: http://www.mapinc.org/mjcn.htm (Marijuana - Canada) Bookmark: http://www.mapinc.org/find?235 (Vancouver Island Compassion Society) POT SMOKERS WON'T GET AN EXEMPTION FROM LAW 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 prohibition. 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. - --- MAP posted-by: Richard Lake