Wednesday November 10, 2004

Possession laws not legit, marijuana advocate says

Man petitions Durham to overrule Ontario’s appeals court

Jeff Mitchell
Oshawa This Week

OSHAWA – A marijuana advocate has asked a judge in Durham Region to find marijuana possession laws are without merit, a decision that would overrule the Province’s highest court.

Edwin Pearson wants Ontario Court Justice James Keaney to find a former Oshawa man not guilty of simple possession of pot, since the prohibition on possession is, in his words “a nullity.”

Mr. Pearson launched the charter challenge on behalf of 23-year old Marko Ivancicevic, who was busted in Whitby last January with 49 grams of pot.

“The basis for the application is there’s no such offence,” Mr. Pearson declared in an Oshawa courtroom.

He is asking the judge to rule that Ontario’s Court of Appeal judges erred when they said last year that the nation’s marijuana laws no longer infringed upon constitutional rights when provisions for the supply of medical marijuana were adopted by the federal government.

Mr. Pearson argues that once a law is declared unconstitutional – as he contends it was in 2000, in the appeal court’s famous Parker ruling – it stays that way.

“You cannot suspend a declaration of unconstitutionality,” he said.

Justice Keaney appeared to be taken aback by the submission.

“Are you asking me to conclude…I can pass judgment on the validity of judgments made by the Court of Appeal?” he asked.

“You certainly have the authority,” Mr. Pearson shot back.

Prosecutor Sevag Yeghoyan took a different view: He said the illegality of marijuana possession has been constant.

In ruling on the case of Terry Parker, the Court of Appeal declared the nation’s prohibition against possession of no force and effect in the absence of a constitutionally acceptable exemption for medical use. But the court suspended its ruling for a year to allow Ottawa an opportunity to address the issue.

The feds responded with the Marijuana Medical Access Regulations (MMAR).

A court challenge found them insufficient; a subsequent Court of Appeal ruling created a constitutionally viable exemption for medical marijuana users.

That decision, in the view of the appeal court judges, cleared up questions about the constitutionality of laws against possession for recreational users.

Once again, the prohibition against possession was in place.

Mr. Pearson argues, however, that the Parker ruling struck the possession laws from the books. Reinstating the laws was wrong-headed, he said, because the courts cannot revive a law that’s been struck down.

“If this judgment was valid, I would not be in this courtroom,” he said.

Mr. Yeghoyan told the judge that, even if Mr. Pearson’s arguments have merit, the question of the validity of the country’s marijuana laws can’t be settled in a lower court.

“This court cannot overrule the Ontario Court of Appeal,” he said.

The arguments were heard, coincidentally, the same day federal Justice Minister Irwin Cotler re-introduced Ottawa’s revised marijuana laws. While the legislation would decriminalize possession of small amounts of dope, it imposes harsher sentences on producers and those caught while driving high.

Mr. Ivancicevic, who was busted last January while smoking a joint behind a pool hall, realizes his defense strategy is a long shot.

He said he could have challenged the police search that led to his arrest and the possession charge, but chose instead to put his name to the constitutional challenge as a matter of principle.

“There are thousands of people who’ve been arrested and had their lives ruined – for a plant,” he said, “something that grows in the ground.”

Justice Keaney is to rule on Mr Pearson’s argument Dec 15th.

Thanks for keeping us up to date with your case and its coverage.

I look forward to Dec. 15th with... curiosity, mostly. I presume he'll avoid ruling in your favour and allow you to appeal it up. But, you never know when you're going to get a judge who decides to do it by the book and grant you a win. Maybe, he'll let the crown face whether or not to appeal. One can always hope!

I'm spacin' on some sweet summer homegrown. yummmmmm.

Peace

Very shocking this thread doesn't have more peeps looking at and realizing the profound impact this would have if the judge ruled in favor.

I wish you the best in your outcome Marko! Incidentally, my case may be decided upon this as well, dependant on the ruling in yours of course.

Peace

WOW!!!

Marko it would be amazing if you win. Even if the judge doesn't rule it's still not over aswell you still a couple more chance's in the higher courts.

Good luck

The core argument is sound, that courts cannot revive dead laws. The problem is lower court judges ruuling against a higher court decision is pretty unheard of, and the Supreme Court of Canada rejected an appeal of the OCA decision on Hitzig that raised from the dead an nulled law. I'm sure glad Marko and Ed Pearson are giving it a good shot and I am grateful they are attempting it.

Well we're under a month away until the decision. As Marc said the tough part is having the lower court overrule the OCA, but as Ed explained to Keaney it can and MUST be done.
This is a very complex argument, but when you get to the core of it, it makes sense.

budEluv, I wish you luck in your case. Keep up the fight, you'll win!

Good afternoon all

It's been a long time since I've posted, been quite
busy as of late. But at the same time there's too much bickering going on to want to pay attention to what's been
happening in the forums.

Anyways, tomorrow is decision day. I've been awaiting
this day for a long time and have been a little
nervous over the last week. I'm really hoping that
Justice Keaney does the right thing and rules in our
favor, but we know how the prohibitionist circle
works, so I'll be expecting to prepare for appeal
(have to play devils advocate).

I must thank Ed for all of his hard work he's put into
my case. Let's hope that all his hard work pays off.
Many thanks to everybody who has sent me emails or
posted their well wishes...If we win, this is a win
for all!

Marko

Did you use Kreiger? What paragraphs?

If you win, can you guys post your entire defense online?

I'm pulling for you .... all the judges can't be heartless grinches.




Then again, I'm well known for my unreasonable optimism.

Good Luck Marco. I'm praying for you and I'm an atheist. I have to say that No drug has ever been regulated so severely that neither doctor or patient will want to work within the authorized procedures, specially when by default, the patient has been self-medicating through an already existing, more obtainable source of medication such as growing their own, the blackmarket, or compassion clubs. In context of the relatively harmless nature of cannabis, no medical explanation can adequately justify Canada's proposed structure. I am sure that if the Ontario Courts ruling is left overlooked, the procedure will be amended over and over again because it is ineffective, as well as infringe upon the privacy rights of patients and practitioners as well as licensed growers and suppliers due to the increased regulatory burden.

Chris