Medicinal marijuana: Is having prescribed pot on you, if you’re driving under its influence, illegal drug possession?

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In what’s believed to be a Canadian first, a judge in Sarnia is having to wrestle with the question whether having medicinal pot on you is illegal if you’re driving under its influence.

In a case heard Wednesday, federal drug prosecutor Michael Robb said the issue hadn’t come up before in the government’s prosecution service.

Anthony Francis Barr, 27, of St. Clair Township near Sarnia, pleaded guilty to driving while impaired by marijuana and to possession of marijuana.

Barr had a prescription for marijuana to deal with an anxiety condition.

Barr was convicted and fined $1,000 for driving while impaired.

But while the impaired-by-pot charge wasn’t in dispute, the drug possession charge is more hazy.

“I am struggling with a lawful prescription becoming unlawful due to its use,” said Justice Mark Hornblower, who delayed his finding on the possession charge until Sept. 25.

Robb said he had no case law supporting the contention that possession of the marijuana became illegal because Bar was using it as he drove.

New federal marijuana legislation, for Ottawa’s planned legalization of recreational pot use starting a little more than a year from now, considers the legality of marijuana in such circumstances just like that of alcohol, said Robb.

Transporting sealed booze in a vehicle is legal, but having open alcohol — and consuming it — as you drive, are not.

On April 12 Barr was driving on the St. Clair Parkway south of Sarnia when he passed five vehicles while approaching a curve.

The driving was troubling due to the potential risk to other motorists, said assistant Crown attorney Melanie Nancekievill.

Barr’s vehicle was stopped by OPP officers who smelled fresh and burnt marijuana in the vehicle.

Barr told officers he’d smoked two bowls of marijuana since leaving work 30 minutes before he was stopped.

Marijuana weighing a total of 18 grams was found in the vehicle.

Barr’s prescription allowed him to use between 1.5 and three grams daily.

In entering his guilty plea Barr had considered the Crown’s position that in the circumstances his possession was unlawful, said defence lawyer David Burns.

“I don’t see it with the clarity of the Public Prosecution Service . . . I need to satisfy myself,” said Hornblower in adjourning the marijuana possession charge.

The federal Liberal government’s legislation legalizing possession of small amounts of marijuana for personal use is expected to be in place by July 2018.

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