ONTARIO COURT OF JUSTICE 

HER MAJESTY THE QUEEN 
v. 
DANIELLE NIELSEN, DOUGLAS NIELSEN and LAUREL NIELSEN

BEFORE THE HONOURABLE JUSTICE G. EDWARD

September 14, 2004 at BRANTFORD, Ontario

REASONS FOR RULING 

CHARGES: Section 4(1) C.D.S.A Possession of a substance 
Section 5(2) C.D.S.A. Possession / purpose trafficking 

APPEARANCES: 
G. Smith Counsel for the Federal Crown
Danielle Nielsen In Person 
Douglas Nielsen In Person 
Laurel Nielsen In Person 

EDWARD, J. (Orally) All right here is my decision with 
respect to the application that was brought by the Nielsen's 
earlier this summer. This application was brought by all 
three accused and it asked that the charges be dismissed as 
unknown to law.

The information against all three accused, alleged that on 
or about June 2nd, 2004, all three unlawfully possessed a 
controlled substance to wit: Marijuana, contrary to Section 
4(1) of the Controlled Drugs and Substances Act, and further 
that all three unlawfully possessed a controlled substance 
to wit: Marijuana for the purposes of trafficking, contrary 
to Section 5(2) of the Controlled Drugs and Substances Act.

As to whether these offences are unknown at law, two cases 
from our Court of Appeal released in October of 2003 clarify 
the law. On the issue of Count 2, pertaining to Section 
5(2), the Ontario Court of Appeal in Regina v. Turmel wrote 
at paragraph six:

"The declaration of invalidity made by this Court in Parker 
supra does not delete marijuana from Schedule 2 of the 
Controlled Drugs and Substances Act, it simply declares that 
the reference Schedule 2 is of no force or effect for the 
purposes of the possession charge in Section 4 of the 
Controlled Drugs and Substances Act. The declaration does 
not extend to any other section of the Controlled Drugs and 
Substances Act. In particular it does not diminish the 
effect of listing marijuana in Schedule 2 for the purposes 
of Section of 5(2) of the Controlled Substances Act." As a 
result, the charge of possession of marijuana for the 
purposes of trafficking existed on May 26th 2003. And so to 
existed on the date of the offences in this application."

On the issue of Count 1 pertaining to Section 4(1) of the 
Controlled Drugs and Substances Act, again the Court of 
Appeal in a case called Regina v. Hitzig, which also was 
released in October of 2003 wrote at Paragraph 2: 

"This case is not about the social or recreational use of 
marijuana but it is about those with the medical need to use 
marijuana to treat symptoms of serious medical conditions. 
We have concluded that for those people the MMAR as drafted 
by the government do not create a constitutionally 
acceptable medical exemption. Our reasons for so concluding 
differ somewhat from those of Lederman J, so does the remedy 
we would impose, namely to declare invalid only five 
specific provisions of the MMAR. This renders constitutional 
the medical exemption as described in the remaining 
provisions of the MMAR, thereby rendering the possession 
prohibition in Section 4 of the Controlled Drugs and 
Substances Act as constitutional: Regina v. Parker supra. 
The interests of justice are best served by removing any 
uncertainty as to the constitutionality of the possession 
prohibition while at the same time providing for 
constitutionally acceptable medical exemptions." 

The Court of Appeal decisions in this province are binding 
on this Court. As of October 7th 2003, it was unlawful to 
possess marijuana contrary to Section 4(1) of the Controlled 
Drugs and Substances Act and it was always unlawful to 
possess marijuana for the purposes of trafficking under 
Section 5(2) of the Controlled Drugs and Substances Act, 
therefore the defendants' applications are hereby dismissed.
WHEREUPON THIS MATTER WAS CONCLUDED