420 Magazine Background

Special Hearing Set After Judge's Death Leaves Case Hanging


420 Staff
Criminal Drug-Trafficking Trial Involves Important Constitutional Challenge

The death of B.C. Supreme Court Justice Robert Edwards has jeopardized a lengthy and costly Victoria criminal trial involving an important constitutional challenge of the marijuana law.

In most criminal cases, when a judge is unable to follow through to judgment a mistrial is declared and everyone begins again.

There is too much at stake here, so on Friday a rare hearing has been scheduled in Vancouver to see if there is a way to save the huge expense incurred and the evidence already presented.

"We don't want to see the incredible effort by the chronically ill patients who have supported and testified in this case lost," defence lawyer Kirk Tousaw said Wednesday.

"We're hoping to find a way to move forward because this case has such widespread repercussions for the tens of thousands of terminally ill and ailing Canadians who get therapeutic help from marijuana."

Michael Swallow, 41, and Mat Beren, 32, both were charged with producing and possessing marijuana for the purpose of trafficking in May 2004 after the RCMP raided a Sooke house used by the Vancouver Island Compassion Society.

The club provides the cannabis products and other health services to roughly 600 members.

Tousaw and colleague John Conroy have been arguing the criminal law is constitutionally invalid because the federal government has failed to provide adequate access and supply of medical marijuana as required under the prevailing Supreme Court of Canada decision about the criminal prohibition.

In that 2003 case, the high bench decided ill people should not be forced to go to the black market for medication and the criminal prohibition was constitutional only if Ottawa provided an adequate medical program.

Health Canada responded by providing three legal ways for the sick to obtain marijuana: They can obtain a permit to grow it themselves, they can get permission to have a designated grower produce it for them, or they can buy it from the government, which gets it from a company growing the plants at an unused Manitoba mine property.

But there are widespread complaints from patients that obtaining and maintaining the necessary permits from Ottawa is an interminably clotted bureaucratic process.

As well, many say the federal pot isn't very good and they either need better quality dope or a different strain.

They say the current situation forces them to support organized crime and buy the medicine they need from street dealers.

A study was presented to the court in fact that indicated most patients using marijuana buy it from illicit sources.

Thousands across the country, however, have turned to compassion clubs such as the VICS that provide a variety of better quality cannabis products, as well as the dried herb.

Justice Edwards has heard from a who's who about the issue including Conservative Senator Pierre Claude Nolin, who led the 2002 parliamentary review of drug policy that called for marijuana legalization, Victoria's No. 2 cop and the province's most visible legal pot producer, Eric Nash.

The importance of this trial is underscored given two recent Ontario court judgments that accepted similar arguments.

A judge in Oshawa threw out possession charges against three young men on Oct. 19, citing a ruling in July by the Ontario Court of Justice.

In the earlier case, which is being appealed by the Crown, Justice Howard Borenstein agreed with arguments that Ottawa should have passed a new law in response to the 2003 Supreme Court decision.

The current criminal law is unconstitutional, he said, because it does not accommodate legal medical use and Ottawa should have rewritten it rather than respond by issuing regulatory permits.

This case is also in the spotlight because the Conservative government is pushing to stiffen criminal penalties for cannabis offences as part of its vaunted law-and-order legislative package.

Testifying for the defence in this case, however, Deputy Victoria Police Chief Bill Naughton said the compassion society's Cormorant Street office has not generated any complaints.

He added marijuana ranks behind drugs like cocaine, methamphetamine and heroin in terms of his department's priorities.

Funny that the local cops didn't think it was a problem but the police force controlled by Ottawa decided to move in.

B.C. Supreme Court Chief Justice Don Brenner said the late Justice Edwards had few cases or unwritten decisions on his plate when he died a few weeks ago and only this file presented a particular challenge.

He appointed veteran Justice Marvyn Koenigsberg to see what could be done.

Should everyone go through the expense of mounting a retrial, or might it be possible for the justice to read a transcript of what's happened since the trial began in May and continue?

The proposed solution is for a mistrial to be declared and a new trial started with an agreement that the evidence already heard will be admitted into the record in transcript form.

But, there remain concerns -- credibility is difficult to determine from a transcript alone and the written record often does not convey the emotional impact of a live witness, and Justice Edwards listened to heartfelt pleas from sick people.

"There's going to be some interesting discussion," Tousaw said. "We think it's important to get a judgment quickly.

"The current program is not working and people are unable to get the medicine they need without risking criminal charges and jail. "If there is any way to save what has already been invested in this case, I think we should find a way to do that."

Source: Vancouver Sun (CN BC)
Copyright: 2007 The Vancouver Sun
Contact: sunletters@png.canwest.com
Website: canada.com
Top Bottom