Pubdate: Wed, 15 Oct 2003
Source: Burlington Post (CN ON)
http://www.haltonsearch.com/hr/bp/opinion/column/story/1418879p-1670669c.html
Copyright: 2003 Burlington Post
Contact:  http://www.haltonsearch.com/hr/bp/
Details: http://www.mapinc.org/media/1528
Author: David Harris
Note: David Harris is a Burlington resident with a criminal law practice in 
Oakville. He is writing a series of columns on criminal law. To find his 
past columns, visit the Web site www. lawyers.ca/dharris.

ONTARIO COURT OF APPEAL DECISION MAKES MARIJUANA POSSESSION ILLEGAL AGAIN

People With Valid Medical Exemption Remain Free From Criminal Prosecution

Four months ago, I wrote a column asking whether simple possession of 
marijuana was legal in Canada.

It was a valid question then. After all, the Liberal government in Ottawa 
had introduced legislation to decriminalize possession of less than 15 
grams of the stuff and two judges of the Superior Court of Justice here in 
Ontario had gone one step further and struck down the possession law 
altogether.

Just this past week, however, the Ontario Court of Appeal overturned those 
decisions and possession of marijuana again became a crime.

To understand these decisions, one has to go back to July 31, 2000, when 
the same Ontario Court of Appeal decided in a case called Parker that the 
law against possession of marijuana was invalid but the declaration of 
invalidity was suspended for 12 months to allow Parliament an opportunity 
to re-enact that law with appropriate provision for making marijuana 
available for medical reasons.

Parker suffered from a very severe form of epilepsy. He attacked the law on 
the basis that it did not permit him to use marijuana to control this 
disease. This spring, the judges of the Superior Court of Justice held that 
Parliament had not done anything to amend or re-enact the anti-marijuana 
law during the 12-month grace period and as a result, that law making 
possession of marijuana a crime became invalid as of July 31, 2001.

The Federal Department of Justice appealed those decisions.

The Court of Appeal agreed with the government at least in part. The court 
noted that marijuana offers some individuals invaluable relief from a 
variety of debilitating symptoms associated with certain serious long-term 
illnesses. But, while the government had not taken the steps necessary to 
make marijuana available for medical purposes, the entire law did not need 
to be struck down.

Instead, the Court of Appeal effectively re-wrote the regulations governing 
the possession and growing of medical marijuana so as to make it more 
readily available.

The effect of this ruling was to make the law prohibiting the possession of 
marijuana constitutionally valid again as of Oct. 7, 2003.

The government was unsuccessful in getting this made retroactive however. 
No one can be charged for having possessed marijuana between July 31, 2001 
and Oct. 7, 2003. In addition, the authorities are now saddled with rules 
that make it easier for medical marijuana users to obtain their drugs.

For the rest of us however, it is once again a crime to possess marijuana 
-- at least until Parliament passes the proposed new law that would 
decriminalize the possession of less than 15 grams of that very same drug.

It should be noted that there are very real differences between legalizing 
marijuana possession and simply decriminalizing it.

In the latter case marijuana possession remains illegal but it is not a 
criminal offence. An offender would pay a fine but would not end up with a 
criminal record. In this regard it would be treated much like many of the 
current provincial liquor infractions. The proposed fines would range from 
$150-$400 for adults and from $100-$250 for young people under the age of 18.

Possession of larger amounts of marijuana would still lead to a criminal 
record.

For now, possession of any amount of pot could lead to that criminal record 
unless you have a valid medical marijuana exemption.

I expect the issue will be appealed yet again, this time to the Supreme 
Court of Canada. There is already one other case, which is scheduled to be 
heard by the Supreme Court this fall.

In the meantime, possession of any amount marijuana is a crime in Canada.