Canada: BC Supreme Court Rejects Challenge to Marijuana Law

The British Columbia Supreme Court last Friday rejected a challenge to the country's law criminalizing marijuana possession based on deficiencies in Canada's medical marijuana regime. In cases earlier this decade, some Canadian courts had held that because Canada's drug law did not provide for the therapeutic use of cannabis, the law was invalid. But in part because of changes already made to the program, the BC Supreme Court wasn't buying that argument.

In response to those earlier rulings, the Canadian government created a limited medical marijuana program, whose utility was challenged in the present case. But Justice Austin Cullen ruled that even if Canada's medical marijuana program is less than ideal, that doesn't mean recreational pot smokers win a get out of jail free card.

Pot prohibition is constitutional only as long as medical need is accommodated, Cullen conceded. "There must be a constitutionally acceptable exemption from prosecution for seriously ill people with legitimate medical needs for the drug," he wrote in the opinion in Poelzer v. Her Majesty The Queen. But even if medical need is not adequately accommodated, as some courts have ruled, "it does not follow that the prohibition on possession of marijuana is of no force and effect," Cullen held. Any remedy should be "more specifically targeted to the constitutional shortcomings" in the medical marijuana program, not an excuse for marijuana users to avoid prosecution.

Ryan Poelzer was arrested in May 2007 for smoking a joint aboard a ferry pulling into Langdale, BC. Police searched him as he disembarked and found about five ounces of marijuana and a quarter-ounce of hashish. He was charged with marijuana possession, convicted, and handed six month's probation.

With the aid of attorney Kirk Tousaw, Poelzer appealed, arguing that defects in the medical marijuana law rendered marijuana prohibition invalid and, alternately, that conflicting court rulings had left the legal situation so muddied that prosecutions should be considered an abuse of process. But while provincial courts in Ontario had held the marijuana law invalid because of the medical marijuana problem, neither the federal nor the BC courts had.

"In British Columbia, there is no binding authority that [the marijuana law] is of no force and effect in the absence of a constitutionally acceptable exemption for medical marijuana users," Cullen ruled. To rule otherwise "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].'"

Looks like it's back to the drawing board for Canada's legalizers, at least on the West Coast.