JCT: Two years too late:

>Date: 12 Sept, 2003
>Marijuana laws struck down in British Columbia
>by Reverend Damuzi
>Westernmost province joins Ontario, PEI and Nova Scotia in
ending prohibition

[Picture] Years of protests bear fruit for freedom

RD: On September 4, Provincial Court Judge P Chen made a
landmark ruling regarding marijuana laws in British
Columbia. In his decision, Judge Chen said parts of the
Controlled Drugs and Substances Act (CDSA) are "invalid" and
that "there is no offense known to law at this time for
simple possession of marijuana" in the province.

JCT: Another judge who hasn't given any consideration for
how the invalidation affects the belated new print job on
the legislation. He must think "marijuana" is no longer in
section 4 not knowing that the word was never in s.4.

RD: Judge Chen's decision was based on a series of court
cases in Ontario that led a judge there to strike down
marijuana possession laws in January of this year. It all
goes back to medpot user Terry Parker's case before the
Ontario Court of Appeal (CC Online, Ontario Supreme Court
rules in favour of medical pot) in July, 2000. In the Parker
case, Judge Rosenberg ruled the CDSA's pot possession laws
unconstitutional, but delayed the section's repeal for one
year, giving the government time to change the law.

Rather than change the law, however, the Canadian government
made medpot regulations, which it published one day before
the one-year deadline (CC 35, Official Interference.) In
January, 2003, Ontario Provincial Court Judge Phillips
decided that regulations were not enough (CC Online,Judge
tosses Canadian pot law.) Regulations can be changed easily
by the cabinet, said the judge, unlike laws which require a
democratic vote by parliament. Thus possession laws were
struck down in Ontario.

JCT: So it's not that the MMAR didn't work, they worked just
fine, it's just that it wasn't enacted right. The
technicality.

RD: Not long after, court cases in PEI on March 14 and Nova
Scotia on March 31 upheld the Ontario court decision, and it
seemed that prohibition would fall from sea to shining sea,

JCT: On an "easy-to-fix" technicality.

RD: but as the pro-pot dominos dropped across the prairies,
the ultraconservative stronghold of Saskatchewan stood firm
against enlightened change. In a pot-possession case on
April 15, Saskatchewan Provincial Court Judge Orr ruled that
he simply didn't agree that regulations weren't enough to
save the CDSA from the Parker ruling.

JCT: And if he's right, since the MMAR works, then the law's
still alive!

RD: The next day, when a case challenging possession laws
came to court in BC, the court predictably followed the
Saskatchewan decision. On April 16, in a case titled R vs
Nicholls, Provincial Court Judge Stansfield ruled that "It
remains to be determined whether [medpot regulations] do or
do not 'pass constitutional muster.'" Stansfield wanted to
see what would develop in Ontario: until the medpot regs
"muster" was decided, said Stansfield, pot possession laws
would remain valid.

JCT: They're waiting for Doherty, Goudge, Simmons J.A.

RD: Afterwards, R vs Nicholls was regularly cited by BC
Provincial Court Judges in pot-possession cases as an excuse
to continue pot possession prohibition --- until this
September 4 and Judge P Chen's ruling.

[picture] Terry Parker, who`s case started it all

In his ruling, Judge P Chen pointed out that after R vs
Nicholls, the original Ontario case striking down pot
possession laws had been brought to the Ontario Court of
Appeal, where Judge Rogin agreed that the law should be
thrown out on May 16 (CC Online, Marijuana legal in
Ontario.)

JCT: That's not the right timing. Rogin agreed the law had
been thrown out on Terry Parker Day. Not that it should be.

RD: Judge Chen was the first BC judge to consider that
because of Rogin's decision, the circumstances of the
Nicholls ruling had changed. It was time to reassess the
law.

Then Judge Chen made new rulings sure to shake prohibition
to it's core. First he addressed the Parker case, in which
judge Rosenberg ruled section 4 of the CDSA unconstitutional
and gave the government a year to change the law. Previous
judges have interpreted this to mean that the law could be
"fixed" by giving medpot patients legal use of cannabis.
However, Judge Chen showed that the law was actually struck
down as unconstitutional after one year and needed to be
replaced by new a law.

JCT: Doberty, Goudge and Simmons still have to rule on that.

RD: The idea was that the new law should include access to
medpot. Instead, the government wrote medpot regulations
that didn't address pot-possession, and didn't write a new
possession law to replace the old one. So the government
totally missed the mark.

JCT: And the regime they did create didn't work. No one
noticed except the sick.

RD: If he "was wrong on this", Judge Chen was prepared to
defend his ruling on other grounds. He quoted from the
January 9, 2003 Hitzig decision (CC Online, Ontario's
highest court smashes pot prohibition,) in which judge
Lederman found medpot regulations unconstitutional since
they did not provide a legal supply of pot to patients who
couldn't grow their own.

JCT: Finally, counting on Lederman's ruling that the MMAR
didn't work.

RD: Judge Lederman gave the government 6 months to fix the
medpot regulations, by providing a legal supply, which the
government did on July 8, 2003, one day before the deadline.

But it "came too late", ruled Judge Chen.

JCT: Right he is. And Lederman didn't have the power to give
it an extension once it had already expired. But his opinion
on supply is valid even if his opinion on eligibility is
"res judicata" (matter is decided) and "issue estoppel"
(issue is stopped) by the earlier Pitt condemnation. We
hope. Our only hope to beat the new legislation coming at
us.

RD: In order for medpot regulations to fix the CDSA, they
should have been fully and constitutionally enacted before
the one year deadline of July 31, 2001, as set out in the
Parker case.

JCT: And since they were not by Midnight July 31 2001, the
last day they could have been, the law became invalid on
Aug. 1 2001, Terry Parker Day, and not on July 31, 2001 as
the Ontario Court of Appeal seem to erroneously believe.
Terry Parker Day was Aug. 1 2001. The court was wrong, the
Engineer was right.

RD: Judge Chen's decision is not only more progressive than
previous BC Provincial Court decisions, it also considers a
wider and more up-to-date range of case law, and should set
the standard for further decisions until the matter is
decided in a higher court.

JCT: So, according to the courts, the MMAR works but was too
late to validate the old CDSA prohibition, but just on time
to validate the new CDSA prohibition. Only the political
arena left.

The full Chen decision is at
http://yahoogroups.com/group/medpot/files/chen.txt but here
are a few quotes with comments:

Citation: R v. Masse
Date: 20030904 BCPC 0328
File No: 62876-1
Registry: New Westminster

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
Criminal Division
REGINA v. KURTIS LEE MASSE

REASONS FOR JUDGMENT OF THE
HONOURABLE JUDGE P. CHEN

Counsel for the Crown: David Greenbank
Counsel for the Defendant: Troy Anderson

Place of Hearing: New Westminster, B.C.
Dates of Hearing: July 18 and July 30, 2003
Date of Judgment: September 4, 2003

CHEN: [1] Kurtis Lee Masse stands charged on information
62876-1, that on or about the 21st day of February, 2003 at
or near the City of New Westminster, he did unlawfully
possess a controlled substance, to wit: Cannabis
(marihuana), contrary to Section 4(1) of the Controlled
Drugs and Substances Act.

JCT: Notice not one lawyer in Canada has argued that
marijuana came off the schedule of banned substances for all
sections. Not one. I am the only one who has thus reasoned.
Funny isn't it? Says a lot about the legal profession,
doesn't it, for them all to have missed it.

CHEN: This is an application pursuant to section 601 of the
Criminal Code of Canada to quash the information on the
ground that it does not name an offence known to law as
required by section 581(1) of the Code.

JCT: Same section for my motion to quash before Justice
Aitken though having it converted by the Ontario Court of
Appeal (OCA) into a motion for an order of prohibition so it
could be adjudicated before trial without special treatment
was a blessing.

PC: [2] The issue before me is simply this; is possession of
cannabis (marihuana) an offence known to law in British
Columbia?...

Marihuana Medical Access Regulations

[23] The Ontario Superior Court of Justice in Hitzig heard
an application in September and October of 2002 (date of
judgment January 9, 2003) for a declaration that the MMAR
violated the applicants' right to liberty and security of
the person guaranteed under s. 7 of the Charter and were
unconstitutional.

JCT: I guess they didn't hear about our application for a
declaration that the CDSA was too. Of course, Lederman
didn't mention our application in his decision on our case.

PC: In allowing the application, Lederman, J. held that the
failure to provide a legal source of marihuana did infringe
the applicants' s. 7 rights in a manner inconsistent with
the principles of fundamental justice. Lederman, J. declared
the MMAR unconstitutional and invalid but suspended the
declaration for a period of 6 months to provide time for the
government to fix the MMAR or otherwise provide for legal
supply of marihuana.

[24] In response to Hitzig, the government brought into
force on July 8, 2003, the Marijuana Exemption (Food and
Drugs Act) Regulations. S. 2 of those regulations which
states:

Marihuana produced under contract with Her Majesty in right
of Canada is exempt from the application of the Food and
Drugs Act and the regulations made under it, other than
these Regulations.

JCT: So the MMAR is fixed on supply and eligibility pursuant
to the Lederman decision and the only fly in the ointment is
the Pitt decision saying it had not complied on eligibility.

PC: Provincial Court Decisions Subsequent to J.P. Decision
of Phillips, J.

[29] Phillips, P.C.J.'s decision in J.P. was considered in a
number of decisions from Ontario, Prince Edward Island and
Nova Scotia as well as British Columbia.

[30] In R. v. Barnes, a January 10, 2003 decision of the
Ontario Court of Justice, Moore, J. followed the decision of
Phillips, J. in J.P.

[31] R. v. Stavert, a March 14, 2003 decision of Chief Judge
Thompson of the Prince Edward Island Provincial Court, held
that prosecution of Mr. Stavert for possession of marihuana
was an abuse of process and entered a stay of proceedings.

[33] R. v. Clarke, a March 31, 2003 decision of Judge Buchan
of the Nova Scotia Provincial Court, followed the Stavert
decision.

[37] In Hadwen, Judge Orr agreed with Ontario Court of
Appeal's decision in Parker but disagreed with the Ontario
provincial court decisions in J.P. and Barnes...

[38] Judge Orr concluded his analysis of J.P. and Barnes at
paragraph 82:..

I am unable to agree with J.P. and Barnes that the MMAR are
insufficient to address the Parker concerns. Accordingly,
this argument for the invalidity of the marihuana possession
law in Saskatchewan fails.

[39] In R. v. R. (A.C.) a July 3, 2003 decision of my
brother Judge Palmer agreed with Nicholls, Hadwen and R. v.
Giesbrecht, Unreported, May 27, 2003 (Sask. P.C.) in
rejecting the accused's pre-trial application to quash the
information on the ground that "no one can be convicted of
an offence under an unconstitutional law".

[40] Judge Palmer, P.C.J., concluded at paragraphs 34 - 36:

34. In Nicholls, Stansfield, P.C.J., also declined to rule
on the sufficiency or validity of the MMAR, stating at
paragraph [70]:

As Justice Rosenberg later said in Wakeford (at para. 26),
"cases will arise in the future where the validity or
operation of the regulations will be in issue". Those cases
now have arisen, and lower courts in Ontario have expressed
the view that the MMAR do not pass constitutional muster.
Those decisions are under appeal, and no doubt will work
their way up the jurisprudential ladder unless the issue is
overtaken by new legislation.

JCT: Notice the only constitutional muster they're talking
about is the technicality, not failure on eligibility.

Analysis

PC: [47] I also find Rosenberg, J.'s reasons for judgment in
Parker compelling. None of the cases presented to me that
have considered Parker have disagreed with those reasons.
The divergence in decisions since then has resulted from:

1. different interpretations by different courts in this
country of the combined effect of the decisions in Parker
and Clay; and

2. different interpretations by different courts in this
country of the effect of the MMAR on Rosenberg, J.'s
declaration, in Parker, of the invalidity of the s.4
marihuana prohibitions.

JCT: Different interpretations on the straw man techicality
in the JP case.

PC: [48] In my view there was nothing ambiguous about the
decision of Rosenberg, J. in Parker. Having found the
marihuana prohibition in s.4 an unjustifiable infringement
on the s.7 Charter rights of Mr. Parker and other persons
requiring marihuana for medical reasons, Rosenberg, J.
declared it unconstitutional and suspended the declaration
of invalidity for a period of one year.

[51] I agree with the argument of defence counsel that the
combined effect of Parker,, Clay and Malmo-Levine is a
dialogue between the courts and the legislature in which the
Ontario Court of Appeal is communicating to Parliament that
legislation prohibiting possession of marihuana for
recreational, non-medical, use would not be an infringement
of s.7 Charter rights and that such legislation, as long as
it allowed persons requiring marihuana for medical purposes
to legally access it, could be validly enacted.

JCT: Valid enactment to cure the technicality coming up.

PC: However, it is my view that, having communicated that
message to Parliament, the Ontario Court of Appeal, never-
the-less, declared s.4 invalid and suspended the operation
of that declaration for a period of one year.

[53] Rosenberg, J. did not say that s.4 was unconstitutional
unless some event occurred. He did not say it was
unconstitutional only for medical users of marihuana. In my
view, Rosenberg, J.'s declaration of s.4's invalidity in
Parker was clear, unequivocal, unqualified, unconditional
and unrestricted in its application to all citizens, subject
only to the proviso that its operation was to be suspended
until July 31, 2001. In my view, had the government done
nothing by July 31, 2001, the prohibitions against marihuana
found in s.4 of the Controlled Drugs and Substances Act
would be invalid.

JCT: Makes a good case for the technicality. But it's fixed
with the new legislation.

PC: [54] The only issue that remains is the effect of the
Medical Marijuana Access Regulations (MMAR) that came into
force on July 30, 2001. Did the MMAR avoid the declaration
of invalidity coming into effect on July 31, 2001?

[55] In Nicholls the court was of the view that "it remains
to be determined whether the MMAR does or does not 'pass
constitutional muster', and whether it saves s. 4(1)" (at
paragraph 67) and that until a court in British Columbia
decided that the MMAR does not "save" s.4(1), it remained
valid legislation.

[56] In my view, implicit in the question of whether the
MMAR could "save" s. 4 of the Controlled Drugs and
Substances Act is the fact that, if s.4 is not "saved", then
by operation of the Ontario Court of Appeal's ruling in
Parker, the legislation was a nullity as of July 31, 2001.

JCT: July 31, 2001, 11:59:59pm

PC: I am unable to agree with the conclusion above analysis
of Stansfield, P.C.J. that s. 4(1) remains valid legislation
until a court decides that the MMAR does not save it.
because, in my view, if I were to adopt the reasons of
Rosenberg, J. in Parker. S. , and I do, then I must find s.4
was declared of the Controlled Drugs and Substances Act to
be invalid legislation as it relates applies to marihuana.
That unless that legislation therefore is invalid unless
either s. 4 is re-enacted, or"saved" by the MMAR can operate
to halt Rosenberg, J.'s declaration of invalidity.. The
legislation was not re-enacted. The onus on this application
should not be on the applicant to show that the MMAR do not
"save" s.4, it s

JCT: That onus was on Parker-Turmel-Paquette but that onus
was ignored.

PC: [58] As noted in R. (A.C.), Stansfield, P.C.J. declined to
rule on the sufficiency or validity of the MMAR. At
paragraphs 67 and 68 of Nicholls:

67. ...It is my view that it remains to be determined
whether the MMAR does or does not "pass constitutional
muster", and whether it saves s.4(1).

68. But to extrapolate from the lower court decision in J.P.
and Hitzig that the Ontario Court of Appeal will inevitably
decide that Parliament has failed to do that which was
required of it in the Parker decision is in my respectful
view to jump the gun....

[59] Now there has been an appellate decision in J.P.
whose further appeal to the Ontario Court of Appeal has yet
to be heard but which was never put before Stansfield,
P.C.J. in Nicholls and not considered in any of the other
cases following Nicholls.

JCT: The appeal was heard and everyone's waiting for
Doherty, Goudge, Simmons, JJ.A.

PC: [63] I agree with the reasons of Rogin, J. in the appellate
decision of J.P.. The MMAR cannot "save" s.4 and cannot halt
the operation of a declaration made one year less a day
prior to their enactment. The suspension of Rosenberg J.'s
declaration of the invalidity of the marihuana prohibition
in s.4 of the Controlled Drugs and Substances Act in Parker
expired on July 31, 2001. There is nothing in that decision
to indicate that the declaration would be rendered
ineffective if regulations were passed before July 31, 2001
allowing medical users of marihuana access to the drug. The
court's declaration of invalidity was unconditional, subject
only to the proviso that its operation was suspended for one
year.

[64] Rogin's reasoning in the J.P. appellate decision was
simply this: S.4 of the Controlled Drugs and Substances Act
has not been re-enacted as it relates to marihuana. Once the
declaration of invalidity took effect, s.4 as it related to
marihuana became a nullity. It ceased to exist and could not
exist again unless re-enacted. As a result, there was no
longer any prohibition or penalty in the Act for simple
possession of marihuana. The MMAR themselves do not contain
any prohibition or penalty for simple possession of
marihuana.

[65] It may be that, had the MMAR been in existence at the
time of the Parker decision, the Ontario Court of Appeal may
have come to a different conclusion with respect to the
issue of whether the marihuana prohibition in s.4 infringed
on Mr. Parker's s.7 Charter rights. It is also possible the
court may still have come to the same conclusion on the
basis of the lack of any legal supply of marihuana, as was
found by Lederman, J. in Hitzig.

JCT: And "it is also possible court may still have come to
the same conclusion on the basis of the lack eligibility for
access, as was found by Pitt, J. in Parker. The more
important case.

PC: However, that is all immaterial to the application
before me. In my view, s.4 of the Controlled Drugs and
Substances Act, as it applies to marihuana, ceased to be
valid legislation after July 31,2001.

[66] If I am wrong in this, and it is possible for
regulations addressing the concerns raised in Parker to halt
the operation of the declaration of s.4's invalidity, then I
agree with the decision in Hitzig that the MMAR were
inadequate for this purpose because, as long as there is no
legal supply of marihuana for persons requiring it for
medical use, the infringement on s. 7 Charter rights
identified in Parker has not been cured. The enactment of
the Marijuana Exemption (Food and Drugs Act) Regulations on
July 8, 2003 may or may not address the concerns raised in
Hitzig but came too late to have any effect on the
declaration of invalidity in Parker.

JCT: I wonder if he read my "time's up" arguments or whether
he figured it out on his own.

PC: July 31, 2001 had, by that time, already come and gone,
and the legislation had already been rendered invalid. Once
invalid, it became a nullity and could not be resuscitated;,
it could only be re-enacted.

JCT: Not "resuscitated; resurrrected.

PC: Disposition

[67] It follows therefore, that there is no offence known to
law at this time for simple possession of marihuana. The
application is allowed.
P. Chen, P.C.J.

--
Abolitionist Slave Leader John C."The Banking Systems Engineer" Turmel
for UNILETS interest-free time-based currency in U.N. resolution C6
to Governments in the http://www.un.org/millennium/declaration.htm
http://www.cyberclass.net/turmel 613-562-0669 USENET: can.politics