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.