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The Lindsay Daily Post
Friday, March 18, 2005
Page: B2
Section: Weekend Post
Byline: Roman Zakaluzny
Source: The Daily Post

COBOCONK - Derek Francisco's battle with the courts over marijuana has resulted in five court appearances in just one year, each time without decision.

The 32-year-old Coboconk resident has, however, become a sort of armchair legal expert, listing Canadian court precedents and quoting 1982's Charter of Rights and Freedoms to argue his case.

Francisco wants to do freely what he believes is already tolerated across the country: smoke a joint every now and then.

Over the last few years, less and less Canadians have been charged and convicted for simple marijuana possession (small amounts).

Police, aware that judges aren't convicting, are less and less likely to charge in the first place.

Judges across the country have stopped hearing cases, refusing to hand a permanent criminal conviction to someone who might otherwise be a good citizen, at least until Ottawa clarifies its position.

The Liberals have a long-promised bill on the decriminalization of the drug. At the Liberal party convention two weeks ago, the party even passed a resolution calling on its decriminalization.

That, in a sense, should be comfort enough for Francisco to smoke it whenever he pleases in his own home. Unfortunately for him, however, he has a criminal record with probation conditions. One of those conditions prevents him from possessing even a gram of the stuff.

Francisco has gone before a judge in Lindsay five times in an effort to change his probation conditions. His efforts to change it have not been denied, but each time a decision is postponed.


Like an increasing number of Canadians, Francisco smoked marijuana recreationnally for years.

Now on disability insurance following a back injury, he says he smokes it for therapeutic reasons as well, to keep pain and panic attacks away.

"It helps me with my pain," he says. "It got so bad, I thought at one point I was going to off myself."

Now, says Francisco, he relies on the weed for help in his chronic battle with fibromyalgia, a rare and still mysterious muscle-wasting disease, he says is akin to arthritis.

Francisco's probation conditions stem from an incident more than two years ago.

In December 2002, Francisco, was on the stand in Lindsay court, accused of assault and possession of marijuana. Legal aid - a free service for citizens who can't afford a lawyer - was unavailable. Legal aid lawyers were striking against Queen's Park at the time.

Lawyerless, he says he had no choice but to plead guilty. He served an additional 81 days on the four months already served.

But what's caused him the most grief since his release was the probation he was slapped with: for three years after release, Francisco is not allowed to possess marijuana. If he's caught with it, he goes back to jail for violating probation.

Marijuana laws for normal citizens are "of no force and effect," according to a 2002 Alberta Court of Appeal judge. But Francisco's probation is stuck in 1990s legislation.

These days, possessing small amounts of marijuana, although not legal, is tolerated. Politicians talk of decriminalizing, if not legalizing, the substance. Senate reports have looked into it, and current Justice Minister Irwin Cotler has signaled that his department is working towards it.

Judges, reading the signals, began to throw out court cases involving simple possession.

If Francisco wasn't slapped with that probationary requirement, he could, for all intents and purposes, smoke all the weed he wanted to in his own home to relieve his pain, and perhaps, he says, start working in construction again.

However, he's terrified of one day being pulled over for a minor traffic infraction, and at the same time, getting caught with a few grams, violating his probation.

In fact, that exact scenario happened in 2003, when the OPP pulled his car over for a broken tail light.

Spotting a marijuana bud (dried cannabis flower) in the car, they searched him, and found between seven and 17 more grams of mairjuana. (Francisco says he was charged with 17 grams, he says he had only seven).

Francisco spent eight days in jail, including Father's Day. He wasn't charged with possession. He was charged, and later convicted, for breaching probation.

Not wanting to go to jail again, Francisco has now gone before a judge numerous times, seeking a probation variation. Francisco makes the arguments himself - legal aid doesn't cover probation variation, he explains.

Five appearances later, he's received five postponements from Judge Karen Johnson.

"I don't want to waste the court's time," he said. "It's probably (costing the system) $2,500 every time I've been to court. I've been in five times."

Francisco makes it clear he isn't being charged with anything. Precedents across the country now make it virtually impossible to convict for possessing small amounts for personal use.

"They can't convict, because it's not against the law," explains Francisco. "It's not legal, but it's not illegal, either."

It is, however, a breach of his probation.

The first four times, Francisco argued that marijuana was medicine for his chronic pain, and that it was unlawful for the government to prevent citizens from self-medicating.

To back up his case, he lists Alberta Court of Appeal precedents, and brings government documents.

"I've informed the (federal) government, and I've informed my doctor," says Francisco about his drug use.

Francisco has an "open file," as he refers to it, with Health Canada. A letter from the department instructs Francisco to find a fibromylagia specialist willing to fill out a number of government forms.

Franciso said only 150 doctors in Ontario are considered specialists in the disease, and only half of them are taking new patients. "I called every one of those, and none of them would fill out the Health Canada forms."

He also has a note from a Lindsay physician, dated July 29, 2004, which although does not prescribe weed, acknowledges that Francisco finds smoking it a relief.

"He suffers from a chronic pain syndrome. He finds marijuana helpful to reduce his pain. He has been referred to a chronic pain specialist to assess him for medical use of marijuana."

However, he has been unable to find a chronic pain specialist or a doctor willing to prescribe it. The Canadian Medical Association instructed its members in the past not to prescribe it, arguing that its side-effects are unknown, and medical malpractice insurance won't cover physicians if a patient sues.

Not getting anywhere with the medical argument, Francisco changed tactics at his last probation review hearing on Feb. 25. He found religion.

He's a member of a number of North American churches, all of which believe that marijuana is a sacrament.

Francisco himself has been appointed a doctor of divinity by one of them.

"All three believe in the tree of life," said Francisco. The tree of life is marijuana.

The churches don't have chapters yet in the Kawartha Lakes. Mostly, they are online, based out of other provinces, or the U.S. One, the Assembly of the Church of the Universe, from Modesto, Calif., actually mandates members to smoke the drug. In fact, its writings preach that Jesus Christ smoked weed for enlightenment.

"I don't attend church," Francisco admits. "I'm not a religious person. I'm more of a spiritual person."

However, Francisco argued that the state, with its probation conditions, was restricted his freedom of religion. And that was a Charter violation.

Still, that argument got him nowhere, with the judge telling Francisco to take it to the Superior Court. Francisco says he doesn't have the money to do that.

For now, he is willing to wait until the spring, when Health Canada is promising amendments to the Medical Marijuana Access Regulation, making it easier for Francisco's family doctor to prescribe it.

He has advice for people currently in conflict with the state over a marijuana charges.

"If people use marijuana for any reason - recreation, medical or religious - just stick to your guns," he said. "If you don't plead guilty, you can't be convicted."

Photo: Derek Francisco is worried that even getting pulled over for a traffic infraction will land him in jail for a probation violation. It happened once before, when a broken tail light landed him in jail on Father's Day for eight days when police found marijuana in his car.
Colour Photo: Francisco has membership to a number of churches that condone marijuana use, and used the argument that the drug was a necessary as a sacrament in his fifth appearance before a judge to change the terms of his probation. At left, he holds the certificates of membership to those churches.
Colour Photo: Francisco surfs the Internet searching for court precedents that will help his argument in court.
Photo: Francisco, asked that his wife, son and daughter not be photographed to protect their identities, aware of the stigmatization they might go through because of his battles in the courts. The Coboconk resident didn't mind being pictured with the family pet, 10-year-old German Shepherd Shania, however. Francisco is the only family member to use marijuana, he said, and he keeps it completely out of view of his children.

Idnumber: 200503180017
Edition: Final
Story Type: News
Length: 1327 words
Illustration Type: PHOTO COLOUR

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