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.
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.
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, 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.
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.
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.
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.) 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.
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.
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. 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. 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.
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.