A Vancouver man arrested and charged with possession of marijuana on the Coast last May has lost his constitutional challenge to have the charges against him dropped.
"There is no basis for a stay of proceedings against Mr. Poelzer," wrote Judge Anne Rounthwaite in her ruling on the application, handed down in Sechelt provincial court on Wednesday. Ryan Poelzer, who is charged with possession of more than 30 grams of marijuana and more than one gram of hash, will now face trial as planned on June 5.
Poelzer and his lawyer, Kirk Tousaw, based his constitutional challenge on the non-viability of Health Canada's 2003 Marijuana Medical Access Regulation (MMAR), an legal avenue Rounthwaite said is within Poelzer's rights.
"There is no evidence that Mr. Poelzer is a medical marijuana user, but as an accused person he has the right to challenge the validity of the [MMAR] on the grounds that they are unconstitutional in their application to other people," she wrote.
Rounthwaite identified three questions to address in considering the challenge: whether Poelzer is required to present evidence to support his submission, whether section 4(1) of the federal Controlled Drugs and Substances Act (CDSA) is invalid as applied to marijuana, or whether "the law is so unclear that prosecution would constitute an abuse of process."
Because Poelzer didn't provide evidence to support his submission that the MMAR is unconstitutional, Rounthwaite said she could base her decision only on legal principles, not on application of the regulation. She found the relevant section of the CDSA is constitutionally valid, and stated the laws regarding marijuana possession have been found to be unclear in only two trials outside B.C., both of which have decisions now under appeal.
Poelzer, who is a reverend with the Church of the Universe, said he plans to file another constitutional challenge shortly, this time based around a freedom of religion argument, wherein it could be argued that marijuana use provides assistance in developing a spiritual path.
"It's a pretty horrible world we've come to when these kinds of things have to take up my time," said Poelzer outside the courtroom, where he appeared disheartened by the decision. "Spending five hours in the back of a police car [in May] gave me all the time I need to think about doing what I can to end this war on cannabis."
Judge Rounthwaite's full ruling can be found at: www.provincialcourt.bc.ca/judgments/pc/2008/01/p08_0102.htm.
