No doubt most of your readers have by now heard of the case of Mary Jean Dunsdon, aka Watermelon, Pot Diva, comedian, nudist, and cookie vendor, who was charged with trafficking and possession for the purpose of trafficking in "Cannabis resin" under 3 kg on Wreck Beach, a local nudist beach near Vancouver in 2001 and again in 2003. She was also prohibited by her bail conditions, from attending any part of the UBC Endowment Lands except the hospital, in an effort to ban her from the beach in order "to make it more acceptable for families", or so they said in their 'Operational Plan.'

The RCMP Detachment from Richmond, BC covers UBC. It decided to mount an 'undercover operation' at the local 'clothing optional' beach (they - a male and female officer - wore bathing suits), in order to catch the people selling illegal drugs. In so doing they enlisted the help of the illegal booze vendors to hunt down those terrible but popular 'crazy cookie' vendors!! Once Watermelon was pointed out to them they hailed her over as she came down the beach yelling 'crazy cookies, crazy cookies' in an effort to sell her wares – in the nude, of course. They soon engaged her in conversation as to what was in the cookies and secured an admission - cannabis of course and that they packed a real punch! They purchased a couple of cookies and sent them to the lab for analysis. Eventually the designated and certified Health Canada analyst analyzed the 'cookie' following the Cannabis Identification Guidelines set out in his Standing Operating Procedures or "the protocol" and concluded that they contained "Cannabis resin" as prohibited by the Controlled Drugs and Substances Act (CDSA).

The analysis went like this. First it looks like a cookie and smells like a cookie. Second no botanical features can be seen such as fragments of leaves, stalks or seeds. This is confirmed on microscopic analysis. If botanical features sufficient to identify the cannabis plant are seen they will, following the protocol, certify the substance to be "cannabis (marihuana)". If no botanical features are seen, they then apply something called the 'Duquenois-Levine' test which simply indicates the presence of 'cannabinoids' if a certain colour is achieved as a reaction to the application of a certain solution. If a presence is indicated, they then do a further chemical analysis (thin layer chromatography) to determine if certain three or four cannabinoids, characteristic to Cannabis are present. If they are, they certify the substance to be "cannabis resin". While the CDSA and its regulations do not define what 'resin' is, the protocol defines 'cannabis resin' as (a) a solid or sticky resinous material containing cannabinoids prepared from cannabis plant material; (b) a liquid extract to be the cannabis plant material or cannabis resin; or (c) mouldy or decomposed material containing cannabinoids and lacking botanical characteristics of cannabis (marihuana). They do not see any 'resin'. Those of you who know anything about baking know that the minute the resin is in the mix you will no longer be able to visibly find it. Not having baked before, I didn't think about this until later. We managed to get the Court to remove the 'no go' restriction and Watermelon returned to the scene of the crime. Police suspected her of re-offending , but they weren’t quite sure – meaning they had 'no reasonable grounds' to search her or her bags. Because her first arrest on the beach had caused a mini riot on her behalf, the police decided to wait and arrest her later. They stopped her at the top of the stairs to the beach, searched her bag and found some more of those 'crazy cookies'. They later conducted a further 'undercover operation' similar to the first and caught Watermelon selling cookies again. So now she was facing several trafficking charges as well as several breach of bail charges.

My problem was trying to figure out what her defense was going to be. I knew I had an arguable unreasonable search and seizure at the top of the stairs on the possession for the purposes charge when they searched her bag without grounds and thereby violated her constitutional rights. When later at trial they tried to stretch it into an 'officer safety' search we won and the evidence was excluded. But what about the trafficking counts? Two separate sets of undercover operators with surveillance backup and a webpage (www.melon girl.com) to confirm just who she is, what she does and even the recipe for the 'crazy cookies'! I thought we should probably make a deal and get one count with probation as a penalty, but it would mean a 'no go' condition for a period of time. Watermelon was having nothing of the sort and assured me that she was praying for a miracle and seemed confident that one would come to pass.

Then one day I had lunch with David Pate PhD, an expert on Cannabis, and chemist. When telling him this story he pointed out the bakers tip – you can't see resin in a baked cookie. We wondered how they were going to prove they contained Cannabis resin and under 3 kg. We got the analysts work sheets and figured out what he did, but still couldn't figure out how he came up with cannabis resin because we didn't know about the protocol. My concern was that if we showed they couldn't identify 'resin' they might ask the court to amend the charge to conform to the evidence at the end of the Crown's case to say just 'cannabis' or perhaps a specific 'cannabinoid' like "THC". At the first trial we asked the Crown to call the analyst so we could ask questions about his certificate saying it was 'cannabis resin'. Under cross examination he explained the process, that he was not a botanist and could not say that he had seen any 'resin', and the protocol he must follow to certify it to be 'resin' if he didn't see any botanical features and the cannabinoids were present. He conceded that one might find the presence of cannabinoids in cookies made from perfectly legal parts of the cannabis plant such as non viable seed or mature stalks. The Crown declined to provide us or the Court with a copy of the analysis protocol at that time. We called no evidence in our defense and argued that the Crown had failed to prove beyond a reasonable doubt that the cookies contained 'cannabis resin', and they had not proved any measurable amount of the substance. Remember the charge was trafficking in an amount under 3 kg. The Crown argued they had proved the case, and if not, that the court could amend on its own motion to conform to the evidence.

The trouble for the Crown was that some years ago Parliament Americanized the Controlled Drugs and Substances Act (CDSA) to some extent by providing for this distinction between under 3kg and over, as well as over and under 1gram of resin or 30 grams of marihuana. Possession under 1gram of resin or 30 grams of marihuana is a summary conviction only offence. The matter is in the absolute jurisdiction of the Provincial Court. The person is not subject to fingerprinting and photographing under the Criminal Records Act (so your Record is harder to find). The penalties are lower involving a maximum of 6 months in prison. Similarly, although an indictable and therefore more serious offence, if you traffic under 3kg of 'cannabis resin' or 'cannabis marihuana' it is within the same absolute jurisdiction of the provincial court and the maximum is five years less a day. If over 3 kg, then the accused has the option to be tried in the provincial court, or to elect to go up to the BC Supreme Court for a trial by judge alone or by a judge and jury. The maximum is life imprisonment.

The only possible amendments were to delete the word 'resin' leaving a charge of trafficking in 'cannabis' without any qualifier or alleging a specific cannabinoid. However the Crown had alleged 'resin' and under 3kg and had been unable to prove either. We were stuck in provincial court because of that decision. Had the Crown charged cannabis or a cannabinoid initially, we could have elected trial by jury. We didn't get that opportunity. Consequently to make the amendment at that late stage was prejudicial to the Defense and was not permitted. The Crown failed to prove its case and Watermelon was acquitted.

By the time of the second trafficking trial we had obtained a copy of the protocol and were able to cross examine the Crown's analyst as well as call Dr. Pate as our expert. The result was the same in that the Crown failed to prove the existence of cannabis resin in the cookies and she was acquitted.

Last week they finally not only abandoned an appeal of the first decision but also dropped all the breach charges. We were going to argue that they violated her mobility rights under the Charter and that a policeman cannot absolutely ban someone from going somewhere before trial, but can only impose conditions on going to such place that relates to the protection of a victim or witness. Free speech and association were also in the mix. She can now return to her Church!

So remember if you are going to make crazy cookies (from perfectly legal non viable seeds and mature stalks of course), if they can see botanical features they will charge you with 'cannabis marihuana' under 3kg unless you really made a pile of cookies. Your trial will be in Provincial Court. If they can't see any botanical features they will do the other tests and you may be charged with something in relation to 'cannabis' with no qualifier or a specific 'cannabinoid'. You will have the option to be tried in Supreme Court before a Judge alone or before a court composed of a Judge and Jury or to stay in provincial court.

And most importantly, if you're selling them at Wreck Beach - don-t sell them to anybody who has their clothes on!