On September 4, British Columbia became the fourth Canadian province where a court has ruled that there is no law against marijuana possession. The ruling by a BC provincial court judge is not binding, but follows in the steps of similar rulings in Ontario, Prince Edward Island and Nova Scotia. Those rulings, which are binding, were in turn based on a 2000 Ontario Court of Appeals decision invalidating the federal marijuana law because it did not provide for access to medical marijuana. The Ontario court gave parliament one year to remedy the law. Parliament has not yet done so. [In a feeble attempt to get around the ruling, Health Canada created Medical Marijuana Access Regulations one day before the one-year grace period ended, but Ontario and BC courts have held that regulatory remedies were insufficient.]
In making his ruling, Provincial Court Judge Patrick Chen declared that there is no law prohibiting marijuana possession. "Once invalid, [the law banning marijuana possession] became a nullity and could not be resuscitated, it could only be re-enacted," Chen wrote in a 29-page opinion. "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."
The BC court decision further clouds an already confusing situation when it comes to marijuana possession in Canada. While four provinces have held the marijuana possession law null and void, courts in two other provinces, Alberta and Saskatchewan, have found the opposite. Similarly while Judge Chen threw out the law, two other BC provincial judges have let it stand. And the BC Supreme Court has upheld the law in a case that is now on appeal to the Canadian Supreme Court. Meanwhile, a marijuana decriminalization bill promoted by the ruling Liberal Party molders in parliament.
"This ruling just creates more confusion," said Vancouver attorney John Conroy, who is arguing one of the Supreme Court cases. "This is just the opinion of one provincial court judge. While other provincial court judges have upheld the law, Chen applied the Ontario Court of Appeals ruling and found it persuasive," he told DRCNet. "There will be other judges who follow, but they are not bound by this ruling. To settle this in BC, the crown will hopefully appeal to the BC Supreme Court. If that court agrees with Judge Chen, then it will be binding on all judges in the province."
As for pot smokers who want to try their luck, Conroy advised caution. "This opinion won't stop the police from charging you. You are taking a risk if the ruling is not upheld."
Police in Vancouver, BC's largest city are not making any changes just yet, said Constable Anne Drennan, a Vancouver Police public affairs officer. "This ruling is not binding and has no impact on police practices," she told DRCNet. Not that it would matter much anyway, Drennan claimed. "In Vancouver, we very rarely arrest for simple possession of marijuana. There would have to be exigent circumstances."
For Vancouver Member of Parliament Libby Davies, whether the ruling is binding is not the key issue. "This most recent case is just a further indication that Canada's current drug policies are ridiculous, especially around marijuana," she told DRCNet. "This decision is yet another affirmation that the courts and the people are saying the current drug laws don't help anyone. They just turn poor drug users into criminals. These cases are part of a broader trend -- whether it's the drug laws or same-sex marriage, people are tired of waiting for action and are taking the government to court."
Davies served on last year's parliamentary committee on drugs, which recommended decriminalization of marijuana, but finds herself more in tune with the Canadian Senate special committee on drugs, which called for outright legalization. "Prohibition just ends up creating more problems than the drugs themselves," she said. "I am not a big fan of drugs, but if people are going to use, we would be far better off with realistic education and addressing health and safety issues. You have to remember that a substance's legality is not what determines use levels."
As for the legal confusion, attorney Conroy said that the Canadian Supreme Court is hearing appeals in the cases of David Malmo-Levine and Victor Eugene Caine, and a companion case from Ontario. All were found guilty of possession by lower courts. The Supreme Court heard arguments on the cases in May, and a decision is pending.
To read Judge Chen's decision in Regina v. Kurtis Lee Masse, visit http://www.provincialcourt.bc.ca/judgments/pc/2003/03/p03%5F0328.htm.