The lawyer for owners and associates of the Holy Smoke Culture Shop in Nelson is taking a wait and see approach following the ruling of a lower Ontario court judge July 13 that Canada's marijuana possession laws are unconstitutional.

Nelson lawyer Don Skogstad said that while he plans to use the ruling in the Holy Smoke case regardless, the Crown will undoubtedly appeal the decision.

"They [the Crown] are going to appeal it and they're going to keep charging it in Ontario so at the moment it appears that it will have no impact on us unless it's affirmed by a higher court," said Skogstad, adding that rulings in other provinces can only have an advisory effect and not a binding one. "We'll use it anyways but if it's affirmed by a higher court, it will make it more effective for us."

In 2001, Health Canada implemented the Marijuana Medical Access Regulations in 2001 which allow access to marijuana for people suffering from grave, debilitating illnesses, CBC News reported.

When presiding over the case of a 29 year-old Toronto man charged with possession of 3.5 grams of pot (about $45 worth) last week, Judge Howard Borenstein ruled that while the Government of Canada has a policy allowing access for medicinal purposes, it does not have a law and it was his opinion that the pot possession law is unconstitutional.

"Although you can use marijuana now for medical reasons, apparently you can't always get it so this is how the argument got revived," said Skogstad.

"If the medical people can't get it then it can't be prohibited period. They should be able to grow it and use it and you can't distinguish between the two so it just becomes legal to possess period, end of story."

Borenstein has given the Crown two weeks before making his ruling official.

The Holy Smoke case, which will not go to trial until July 2008, involves mostly trafficking charges laid against four people, including two of the three co-owners of the store and two associates. If the judge's decision to render the pot possession law unconstitutional is held up it's possible trafficking laws may fall as well.

"We think it will have an impact because all that we're working on here is related," said Skogstad adding there are some drugs that are legal to possess because of religious connotations but are illegal to traffic.

Co-owner Paul DeFelice arrested last year outside Holy Smoke, is facing a possession charge and was elated when he heard about the ruling.

"I couldn't believe it. I started looking on the Internet and the more I read the happier I got and I started doing cartwheels around the store wanting to hang a banner," said DeFelice. "It was lucky Friday the 13th."