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Pot advocate's constitutional challenge up in smoke
Durham judge rules nation's possession law is valid

Dec 23, 2004
By Jeff Mitchell
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OSHAWA - A Durham Region judge has rejected a marijuana advocate's constitutional challenge to the nation's possession laws.

Ontario Court of Justice Judge James Keaney said the argument put forth by former Oshawa resident Marko Ivancicevic did not compel him to take the remarkable step of effectively striking down Canada's prohibition on possession of marijuana.

Mr. Ivancicevic's challenge, argued in an Oshawa courtroom by marijuana advocate Edwin Pearson, called upon the judge to declare Ontario's Court of Appeal erred in reinstating the possession laws, which were declared unconstitutional in a landmark ruling in 2000.

"With respect, I decline the invitation to do so," the judge said in a ruling delivered Wednesday morning.

The judge convicted Mr. Ivancicevic of simple possession and gave him a suspended sentence. The 23-year-old Toronto man has been ordered to perform 20 hours of community service and will be on probation for a year. He is also banned from possessing any non-prescription drugs while he's on probation.

Mr. Ivancicevic, who never disputed the fact he was in possession of 49 grams of marijuana when police caught him smoking a joint behind a Whitby pool hall last January, said he'll appeal the judge's dismissal of his constitutional challenge.

The self-declared marijuana advocate said he'll take his case all the way to the Supreme Court of Canada as he fights for the legalization of pot.

Marijuana advocates must fight for their cause in the courts, rather than waiting for politicians to address the issue, Mr. Ivancicevic said.

"If we rely on Parliament, we're doomed," he said.

"Eventually one day, we'll find the right judge."

Mr. Pearson argued Mr. Ivancicevic couldn't be prosecuted under Canada's possession laws because they failed the test of constitutionality back in 2000. That's when Ontario's appeals court, in its landmark Parker decision, ruled that marijuana laws infringed upon the Charter of Rights because they made no exception for medical use of the drug. The court suspended its ruling for a year to allow Ottawa to address the inequity; nevertheless, the ruling created confusion and consternation for police and justice officials.

When Parliament adopted its Medical Marijuana Access Regulations, laws against possession by non-medical users were once again considered to be constitutionally sound.

In fact, the law was never struck down, Crown attorney Sevag Yeghoyan argued. He told the judge that, while the appeals court raised questions about marijuana laws, it never actually struck them down.

But Mr. Pearson argued that the moment the law was declared unconstitutional, it ceased to have any effect. Revisions to the law cannot restore it as legitimate, he said. He calls possession laws "a nullity."

Mr. Pearson is fighting the battle of several fronts, including in courts in Quebec and British Columbia. He has vowed to take Mr. Ivancicevic's case to the Ontario Court of Appeal.

Mr. Ivancicevic said he's in the fight for the long haul.

"Regardless of what Justice Keaney says, the law is dead," he said.

"We'll wind up in the Supreme Court one way or another."



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