ONTARIO JUDGE RULES CANNABIS PROHIBITION INVALID!
---------- Forwarded message ----------
From: Doug Hutchinson (the pot head professor)
Date: Oct 19, 2007
I have the pleasure of announcing an important legal victory.
Today in an Oshawa Court, the trial judge in the 'Tom, Dick, and Harry' case dismissed the charges against them, for simple possession of marijuana. He said that in his view the marijuana prohibition had no valid force or effect.
In the lunch recess Justice Edmunston had read the judgement of Borenstein, J. which found the same conclusion in July, a judgement that our team had managed to get to his attention, with difficulty, against obstruction by the Crown prosecutor.
He said the cases against Tom, Dick, and Harry, are dismissed because the law is not there to charge them or convict them. The exact terms of his decision will be available later, after an exchange of faxes with the Court house.
So the marijuana law has fallen again.
It seems bound to fall repeatedly whenever the Borenstein judgement is invoked.
Justice Edmundston said that though he was not bound by the decision of Justice Borenstein (the two courts are 'parallel', viz. neither one issues judgements that are binding on the other), he was persuaded by it, and found that the law had fallen into invalidity.
The precise point at issue in the Borensten ruling (the case of R. v. Lord) is that the 2003 December standing order which made it a policy to supply Health Canada schwag to those of us who are medically authorized was only a policy. Being only a policy, it wasn't good enough protection for those whose rights need to be protected (i.e. the sick among us); this means that the Medical Marijuana Access Regulations are unconstitutional, the entire prohibition falls, because the MMAR is the only thing propping up the prohibition from falling into obvious and undeniable invalidity/
Therefore in my view the best public relations course is to call for a stay of all proceedings in Canada on this charge, together with a moratorium on arrests. I will be making a public call on the Prosecution service soon, to urge him to make this decision.
The case of R. v. Lord has been appealed by the Government (the appeal was filed in August, but there was murkiness on this in court today), but no date has yet been set for this appeal in the Ontario Superior Court/
The background of the case is repeated, from my earlier post of
September 30 to this list.
Congratulations are very much in order to Ed Pearson, who volunteered many dozens or hundreds of hours of his time on this case, to fight the thing on principle, standing beside me (I paid for expenses). The youngsters were handed this victory gratis, on a silver platter, because that is how principled jurisprudence should take place.
Telephone follow up to me at 416-702-3579 you have private or
confidential information of immediate use, e.g press contacts;
otherwise followup to this e-mail address.
- Best wishes, Doug H
---------- Forwarded message ----------
From: Doug Hutchinson (the pot head professor)
Date: Sep 30, 2007
Thanks to Al Graham for raising awareness of the constitutional issue with the fellow who was charged with simple possession, and thanks to John Conroy for spelling out the meaning of the various legal processes.
And thanks very much to Ed Pearson for defending the current case.
I'd like to inform CCC members more about this current case, as it came into my hands through my philosophy course at the University of Toronto, and I am paying for the legal expenses out of my own bank account.
When my situation hit the news briefly last fall, the students in the class on the philosophy of Seneca that I was then teaching were well informed about my views on the subject of marijuana prohibition. One of my students came to me asking for help for her brother, who had been charged, along with two other youngsters, with simple possession of maijuana when police officers conducted an apparently illegal search of their car, parked in a municipal park in Whitby at dusk on a midsummer day in 2006.
Let's call these youngsters Tom, Dick, and Harry: Tom had 3 grams, Dick had 0.3 grams (recorded in evidence as 3.0), and Harry had one joint, well ess than a gram.
I agreed to help steer and pay for their defence as a matter of principle, mainly for the same reason that Al Graham acted on recently: "i believe it would help drive another nail into the prohibition coffin and eliminate prohibition forever," a hope I share.
I also have a particular objection to the damage that this senseless prohibition often does to young lives, when my entire decades-long teaching mission is to enhance the lives of young people by higher education and philosophical enlightenment.
Tom, Dick, and Harry entered pleas of not guilty, and Ed Pearson has been representing them as agent in the proceedings. After 5 previous court appearances (!), their case finally came to be heard on 2007 September 7 in Oshawa, and I was present for the proceedings.
The first thing that happened was an apparent defeat for our side. As Ed remarked, "Crown objected to jurisdiction of trial Judge to entertain or apply Long in that no notice
of constitutional issue was filed. Notwithstanding my submissions the Court followed the Crown." Ed had taken the view that since the law had already been struck down, there was no need to file the regular notice of constitutional challenge; but the decision went against this view, and we were denied the opportunity that day even to present the previously accepted arguments in Parker, J.P., Hitzig, and Long.
<The lesson that should be learned from this episode is this: If you intend to argue against a possession charge on constitutional grounds, you need to let the other side, and the Court, know in advance that this is going to be your line of defence. Ask politely how this is to be done, and then go ahead and do it. No Justice will agree to hear a sudden argument from an amateur (or even a professional) that the laws that were being applied yesterday are not to be applied today.>
The next thing that happened, after we finally got going after lunch. was the hearing of evidence from the two arresting officers, with cross-examination by Ed Pearson, also evidence from Dick. I was very impressed with Ed's cross-examination, which succeeded in showing the police officers contradicting each other and saying things of ludicrous implausibility, such as this one: one of the officers claims to have recognized 'marijuana leaflets' at a distance of many paces, through the tinted windows of a car at dusk, as they were being constructed into a spliff of "about 1/16 of a gram", on the pages of a multi-coloured road atlas. At this point I burst into involuntary laughter, which I had to stifle and suppress into a cough, since laughing with derision at a police witness is a sure way to get yourself thrown out of court.
Due to the late start of the hearing and Ed's extended and successful cross-examination, the case needed to be carried over to a future session, which got scheduled for October 19. This allowed Ed sufficient time to file a new motion of constitutional challenge, appealing to the reasons in the Long decision as well as the other cases. This challenge has now been filed and will need to be heard in 3 weeks, unless the Crown withdraws the charges.
So what seemed to have been a defeat was not a defeat: the issues of legal principle will need to be heard after all, and we now have a fresh case on the go where the reasons articulated in Long will need to be attended to by an Ontario trial judge.
If the Crown insists on proceeding, and the Judge rules against both motions (illegal search and seizure, and constitutionality), then Tom, Dick, and Harry will be found guilty. In this case we will need to appeal the conviction to the Superior Court, and we have an automatic right to do so; and if the Superior Court rules in the same direction
as Borenstein J. did in Long, then that Superior Court decision will be binding on all Ontario trial judges, and the entire prohibition will collapse again like in 2003.
If the Crown withdraws the charges at this late stage, that will prove that the Government is running scared of the flimsy constitutional status of the prohibition, and would rather let any number of accused go free than run the risk of having the veil of their Emperor's new clothes prohibition be ripped off and publicly acknowledged to be nothing real.
This would be the best outcome for the youngsters, and I'll try to make good publicity for our cause out of it if it happens. The best outcome for our movement, though it's more stressful for the youngsters), would be the hearing of the arguments by judges and their agreeing with us, which may perhaps happen; let's hope so. |
