[1] At the beginning of their trial, both accused pleaded not guilty to a charge of possession of marihuana under section 4(1) of the Controlled Drug and Substances Act. The alleged offence date is February 13, 2002. At the close of the Crown's case, both accused made two applications: to quash the Information as it discloses no offence known to law; and, for a finding of abuse of process and a judicial stay of proceedings.

[2] Neither of the applicants has claimed that the marihuana seized from them was for medical purposes.

[3] After counsel submitted thorough and thought-provoking written arguments, my colleague the Honourable Judge Chen handed down his decision in R. v. Masse, [2003] B.C.J. No. 2085. Judge Chen ruled on a similar application. Counsel then made further written submissions at my request.

[4] The following is an outline of the lengthy submissions that counsel provided.

[5] Counsel for the applicants submitted that section 4(1) of the Controlled Drug and Substances Act as related to the possession of marihuana is no longer in effect, being declared invalid by the Ontario Court of Appeal in R. v. Parker (2000), 146 C.C.C. (3d) 193. Further, that offence has not been "saved" by regulations passed by Order-in-Council to allow possession of marihuana for medical use and for licensing marihuana grow operations.

[6] The applicants' counsel urge me to follow the reasoning of Judge Chen in Masse and his conclusion that section 4(1) of the Act as it relates to marihuana is not an offence known to law.

[7] Following that simple possession of marihuana is not an offence known to law, it would be an abuse of process for the Federal Crown to prosecute under an invalid statute.

[8] Crown Counsel submitted that I am bound by the British Columbia Court of Appeal decision in R. v. Malmo-Levine, [2000] B.C.J. No. 1095, that simple possession of marihuana is not contrary to the Charter. As a result, section 4(1) of the Controlled Drug and Substances Act is still valid law in British Columbia. Crown Counsel submitted that should follow the decisions of my colleagues in R. v. Nicholls, [2003], .C.J. No. 881 (B.C. Prov. Ct.) and R. v. R.(A.C.), [2003] No. 2365 (B.C. Prov. Ct.) and find that as the law is still valid in this province, there is no abuse of process.

[9] However, should I be bound by Parker, the offending aspects of section 4(1) of the Act have been remedied by subsequent regulations.

[10] Crown Counsel further submitted that Masse was improperly decided as my colleague Judge Chen incorrectly considered R. v. J.P., [2003] O.J. No. 1949 (Ont. S.C.) as binding on him and I should decline to follow the general rule of comity.

[11] Recently, the state of law regarding simple possession of marihuana has been subject to much judicial scrutiny. The timing and chronology of the decisions is also important. The following is a very brief summary of the evolution of judicial interpretation, as I see it.

[12] The Ontario cases, specifically Parker and J.P., create difficulty in this province, not so much because of their reasoning, but because of the remedy granted in Parker. The issue then becomes this: is the result of the Ontario decisions (to date) that section 4(1) of the Act as it relates to simple possession of marihuana invalid in this province?

[13] The applicants' counsel submit that the law is invalid for these reasons:

"1. Parliament alone can save s.4(1) CDSA as it relates to the inclusion of marijuana.

2. The implementation of the MMAR, or any other regulatory scheme does not suffice. Only a legislative change carried out through a real discussion in Parliament can restore the inclusion of marijuana under s.4(1).

3. As this has not been done in the time frame given in Parker the inclusion of marijuana in s.4(1) is struck down. Section 4(1) must then be re-enacted due to the previous section being struck down.

4. While the Ontario decisions are not binding on this court, they are extremely persuasive. Even without any binding effect, the arguments themselves are valid and should be used to their utmost.

5. Any vagueness in the law is to be interpreted to the benefit of the accused, especially where penal sanctions are a possibility."

[14] Crown Counsel submits that the law is still valid until the British Columbia Court of Appeal or the Supreme Court of Canada decides otherwise. Crown also relies on Hadwen.

[15] In my view, the applicants' submissions are founded on the basic premise that while conceding that I am not bound by Parker and J.P., I ought to follow them. This is an incorrect premise in this particular case. As both decisions are from an appellate court outside of this province, they would not be binding, but may be persuasive, if they were "on point", but they are not. Parker and J.P. may be persuasive, if and only if, I were being asked to rule on a section 7 Charter challenge based on medicinal use of marihuana. That I am not asked to do.

[16] The applicants must provide some legal basis for a conclusion that section 4(1) of the Act is invalid in this province. For the reasons stated above, Parker and J.P. are not helpful. The applicants have not otherwise provided persuasive or binding authority from outside of this province that the Parker declaration of invalidity applies nationwide.

[17] I am bound, however, by the principle of comity to consider the ruling by my colleague Judge Chen in Masse. I disagree with Judge Chen's analysis to the extent that he applied Parker and J.P. when he was not ruling on a section 7 Charter application. However, I may depart from his judgment and the principle of comity only for these reasons:

[1] Subsequent decisions have affected the validity of the impugned judgment;

[2] It is demonstrated that some binding authority in case law or some relevant statute was not considered;

[3] The judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial judges, where the exigencies of the trial require an immediate decision without opportunity to fully consult authority.

(Re: Hansard Spruce Mills Ltd. (1954), 4 D.L.R. 590 (B.C.S.C.)).

[18] Of course, the applicants urge me to apply the principle of comity and follow Masse. Crown Counsel submits that I ought not follow Masse as J.P. is not a binding authority. Also, the validity of J.P. is questionable as Rogin, J. did not consider Hitzig. Hitzig is not ad idem with J.P. regarding the declaration. Therefore J.P. cannot be said the affect the validity of the British Columbia cases Nicholls, Therrien or R.(A.C).

[19] After careful reading of the Masse decision and submissions of counsel, I am not aware of any subsequent decisions that have affected the validity of Judge Chen's judgment. Also, Judge Chen thoroughly analyzed the existing case law and statutes, so I could not conclude that it was in any way a nisi prius judgment.

[20] Crown Counsel submits that I ought to depart from the Masse decision because it was incorrect decided upon questionable, non-binding authority. That, however, is not the test. As I stated above, all relevant cases and statutes were considered and analyzed. Although I would have come to a different conclusion on those authorities than Judge Chen, again according to Re: Hansard, that is not reason enough to depart from his decision.

[21] Therefore, I must follow Masse and the conclusion that section 4(1) of the Act as it related to the simple possession of marihuana is invalid.

[22] Applicants' counsel relied upon the reasoning of the Supreme Court of Canada in R. v. Jewitt (1985), 21 C.C. C. (3d) 7, for authority for a finding of abuse of process and a stay of proceedings. The court held that:

"The stay of proceeding for abuse of process is given as a substitute for an acquittal because, while on the merits the accused may not deserve an acquittal, the Crown by its abuse of process is disentitled to a conviction. No consideration of the merits - that is whether the accused is guilty independently of a consideration of the conduct of the Crown - is required to justify a stay." (pg. 23)

[23] Chief Justice Dickson, writing for the court, adopted the conclusion of the Ontario Court of Appeal in R. v. Young (1984), 13 C.C.C. (3d) 1:

",,,'There is a residual discretion in a trial court judge to stay proceeding where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings.'

I would also adopt the caveat added by the court in Young that this is a power which can be exercised only in the 'clearest of cases'".(pg. 14)

[24] Having found that the law is invalid, the spectre of abuse of process raises its head. Is it an abuse of process to prosecute under an invalid law? I take from Stavert and Clarke that it most certainly is an abuse of process. I agree with that conclusion.

[25] But the analysis must go further in this case. My colleague Judge Stansfield wrote in Nicholls, the state of the law regarding simple possession of marihuana is a "mess". Justice Buchan in Clarke and my colleague Judge Palmer in R. (A.C.) wrote that the law is in a state of "flux". The question is this: how can an informed citizen know the state of the law when judges cannot agree amongst themselves; when it appears that possession of marihuana may be legal in some provinces and not in others; and when Parliament does not amend or re-enact invalid legislation? The answer is self-evident: he or she cannot. Therefore, even if I had found that the law was valid in this province and it was not an abuse of process to prosecute under it, I would still find an abuse of process in this case.

[26] Therefore, as this is in my view the "clearest of cases", I grant both of the applications for stays of proceedings.

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M. Buller Bennett, P.C.J.