Pubdate: Wed, 14 Nov 2012
Source: Kamloops Daily News (CN BC)
Copyright: 2012 Kamloops Daily News
Contact:  http://www.kamloopsnews.ca/
Details: http://www.mapinc.org/media/679
Author: Mike Youds
Cited: http://sensiblebc.ca/

POT PETITION FACES LEGAL OBSTACLES

Activist behind decriminalization campaign to speak in Kamloops

An impending province wide initiative campaign to decriminalize
marijuana faces legal hurdles but may have merit as well, local
lawyers say.

Dana Larsen, pot activist and former NDP leadership candidate, has
branded his province wide initiative petition drive "Sensible B.C."
His campaign is modeled on the successful initiative brought about by
ex-premier Bill Vander Zalm to quash the HST.

The purpose of this one?

To make B.C. safer from criminal gang activity, save taxpayer dollars
spent on law enforcement and bring the law into line with the will of
the majority, Larsen said, citing a recent poll suggesting 80 per cent
public support for decriminalization.

Since enforcing marijuana prohibition is federal jurisdiction under
the Controlled Drug and Substances Act, and therefore beyond B.C.'s
reach, Larsen is spearheading Plan B: a campaign to have the Police
Act amended such that police would not enforce simple possession among
adults.

There would be no impact on laws applying to trafficking, possession
for the purpose of trafficking or cultivation. Police would still
confiscate pot from minors, just as the B.C. Liquor Control Act
applies to minors.

"Elections B.C. has confirmed that it's valid," Larsen said. "It's
fully within provincial jurisdiction."

A second part of his proposal would exempt B.C. from the Controlled
Drugs and Substances Act (or remove cannabis from the act). This would
carry decriminalization a considerable step further, allowing B.C. to
tax and regulate pot.

Two other initiatives convinced Larsen that the approach might work.
The anti-HST campaign and an earlier move, when eight provinces,
including B.C., refused to expend resources enforcing the now-defunct
long-gun registry.

"If they can do it with guns, they can do it for cannabis."

A similar approach was used to keep Vancouver's safe-injection clinic,
InSite, operating against Ottawa's directive, he said.

To have the draft law brought before the legislature, petitioners need
the signatures of at least 10 per cent of voters in all 85 provincial
ridings. But Larsen and his supporters may find it more difficult than
even the colossal task of obtaining the required John Does.

Micah Rankin, a TRU law professor who specializes in areas of criminal
and constitutional law, sees potential conflict between federal law
and the proposed Sensible Policing Act.

"It would be kind of an attempt to do an end run around federal
criminal law," Rankin said. He cited the doctrine of paramountcy. This
doctrine holds that in Canadian constitutional, where provincial and
federal laws conflict, federal law prevails and provincial law is
inoperative.

However, B.C.'s attorney general has the power to decline to prosecute
laws deemed not in the public interest, which might provide an avenue
for the proposal, he suggested.

"I think there are creative ways in which the provinces could try to
use their regulatory and enforcement powers to attenuate the severity
of federal criminal law in certain cases," Rankin said.

Another difficulty he sees with the back-door concept is enforcement
jurisdiction. While municipal police might take their marching orders
from such a law, the RCMP is regulated federally.

"I have difficulty with the proposition that the province would be
able to prevent federal police officers from enforcing federal laws,"
Rankin said.

Shawn Buckley, a Kamloops lawyer who has defended Carl Anderson, a
local medical marijuana advocate, sees some potential for the idea. He
wonders whether the attorney general's oath of office specifically
requires the province's top cop to enforce federal laws.

"There is some room for the attorney general to use discretion,"
Buckley said. "We want our politicians directing police as to what
public charges are made."

Whether there is legal merit or not to the initiative, there is
certainly political merit in staging a referendum campaign to pressure
governments to bring about change by other means, Buckley said.

Rankin thinks so, too.

"It's a good way to attract attention to the issue. It's creative. I'm
not aware of anyone having done this kind of thing before."

Larsen, meanwhile, was buoyed by passage last week of U.S. ballot
measures legalizing pot in Washington State and Colorado, measures
that are bound to face the challenge of federal authority.

Elections B.C. is expected to issue the Sensible B.C. petition on
Monday, at which time Larsen has 90 days to gather the signatures of
at least 10 per cent of voters from all 85 B.C. electoral districts.

But Larsen plans to use the months ahead to build public awareness and
support, then start collecting signatures next September after
reapplying for a second petition.

On Tuesday evening, Larsen gives a public talk at 6:30 p.m. at Desert
Gardens Community Centre, 540 Seymour St.

"We're trying to register people and sign them up ahead of time,"
Larsen said.
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MAP posted-by: Matt