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CN PI: Judge In Summerside Stays Pot Possession Charge
URL: http://www.mapinc.org/drugnews/v03/n415/a03.html
Newshawk: CMAP (http://www.mapinc.org/cmap)
Pubdate: Sat, 15 Mar 2003
Source: Journal-Pioneer, The (CN PI)
Copyright: 2003 Journal-Pioneer
Contact: http://www.journalpioneer.com/reader_editor.cfm
Website: http://www.journalpioneer.com/
Details: http://www.mapinc.org/media/2789
Author: Lori A.Mayne


JUDGE IN SUMMERSIDE STAYS POT POSSESSION CHARGE

A judge has stayed a marijuana possession charge against an Island teen, ruling it wouldn't be fair to prosecute him when approximately 12 million other Canadians have immunity from the same charge.

In Provincial Court in Summerside Friday, Judge Ralph C. Thompson stayed proceedings against a 19-year-old after considering cases in Ontario.

The young Islander had been charged with possessing 30 grams or less of marijuana in the fall. His defence lawyer, Clifford McCabe, had argued in a previous hearing that the charge should be quashed, because it's not a valid offence based on the Ontario cases.

In his 11-page decision, Thompson explained an Ontario Court of Appeal ruling known as the Parker decision effectively struck down the law that prohibits simple possession.

In July 2000, that court said the possession of marijuana charge under the Controlled Drugs and Substances Act violated the rights of Terry Parker, by preventing him from legally accessing marijuana for medicinal reasons. The court gave Parliament a year to revamp its laws.

Jan. 2 this year, an Ontario court threw out marijuana possession charges against a 16-year-old on the basis Ottawa had not yet effectively dealt with the Parker ruling by filling the legislative void. That case remains under appeal.

Since lower Ontario courts are bound by the Parker decision, Thompson pointed out 12 million Ontarians have immunity from prosecution for simple marijana possession -- at least for the time being.

He noted the Parker decision hadn't been appealed and cited recent cases in Ontario that effectively fall into line with its ruling.

Courts in one province do not have to follow those in other provinces, but they typically take their rulings under advisment.

Drug possession laws across the country all come under the domain of the Federal Crown. Judge Thompson ruled that the law should be applied the same across the country. In that case, proceeding with the possession of marijuana charge in an Island court -- when such charges haven't been proceeding in Ontario -- would simply not be fair.

"If this prosecution is permitted to continue, in effect it would be tantamount to a ruling that more than one third of the population of Canada is immune from prosecution while the residents of Prince Edward Island are not."

The judge agreed it's in society's interest to have some form of regulatory scheme in place to control the use of marijuana. But it's even more important to ensure fair application of the law across the country.

"All residents of Canada, wherever they are situated, are entitled, in fairness, to expect a uniformity of approach from the Federal Crown, wherever it performs its prosecutorial function. Until such time as the law is changed by Parliament, or the higher courts provide a ruling which will enable such approach, this charge involving the simple possession of marijuana will not proceed in this court."

In a later interview, McCabe explained the stay means the proceedings have been stopped in their tracks, not dismissed or thrown out of court.

He said, for instance, if the Crown appeals the case and wins, theoretically the charge could proceed in future.

But he said the ruling should prove significant not only for Thompson's court but on a national scale, explaining the courts largely tend to agree with each other unless they have good reason to disagree.

As for his client, McCabe said the young man didn't realize what actually had taken place until McCabe explained it after the hearing.

"He's relieved. He also understands it's not over."

In an interview Friday afternoon, a spokesperson for the Federal Department of Justice from Ottawa, Patrick Charette, said the department will have to review the case before determining how it will proceed and if it will appeal.



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