Pubdate: Wed, 12 Mar 2003
Source: Windsor Star (CN ON)
Copyright: The Windsor Star 2003
Contact:  http://www.canada.com/windsor/
Details: http://www.mapinc.org/media/501
Author: Craig Pearson

POT LAWS UNCONSTITUTIONAL: LAWYER

It is unconstitutional to outlaw possession of marijuana in Ontario in 
light of recent court decisions, Windsor lawyer Brian McAllister argued in 
Superior Court Tuesday.

"This is more than a political question, it's a constitutional one," 
McAllister said outside the Superior Court building after making a detailed 
presentation citing numerous cases. "The courts have recognized that 
there's a constitutional right for people who need marijuana for medical 
purposes to get it. Parliament has refused to address that underlying need."

McAllister said that since the Controlled Drug and Substances Act does not 
differentiate between recreational and medical uses of marijuana, he argued 
that neither should be considered a criminal offence.

McAllister and government lawyers wrapped up their arguments Tuesday in a 
case that could have national repercussions.

Superior Court Justice Steven Rogin, whose decision will govern all Ontario 
lower courts, reserved judgment. A date for the ruling has not been set.

Quash Charge

McAllister initiated the high-profile case when he convinced Ontario Court 
Justice Douglas Phillips on Jan. 2 to quash a charge against a 16-year-old 
Kingsville youth for possessing less than 30 grams of marijuana.

Hundreds of marijuana cases across Ontario have since been put on hold. 
While McAllister's case has moved up to Superior Court, a similar case goes 
before the Ontario Court of Appeals in Toronto today.

McAllister said a number of judges, dating to the 1971 LeDain Commission 
report, have shown support for decriminalizing marijuana.

"The courts have repeatedly sent a signal to parliament that it's time to 
change the way we regulate marijuana in this country, particularly because 
there's a recognized need for people with medical needs to get it," he 
said. "The government has for 30 years sent signals and hints that it's 
going to decriminalize it and it hasn't. And I think the judiciary is 
finally getting fed up and it's going to force parliament to take the bull 
by the horns one way or another."

Federal lawyer Peter DeFreitas, however, argued that the case has nothing 
to do with the Constitution.

"This is a very narrow issue as to whether or not the marijuana prohibition 
is an offence known to law," DeFreitas said. "This is not a constitutional 
case."

DeFreitas also said the government is addressing the issue.

"Parliament responded in this case by passing regulations," DeFreitas said. 
"That's an act of parliament."

McAllister's challenge is based on a July 31, 2000, decision by the Ontario 
Court of Appeal striking down the federal law prohibiting the possession of 
less than 30 grams of marijuana.

Violated rights

The court found in the case of Terry Parker of Toronto -- who was in court 
in Windsor Tuesday -- that the law violated the rights of sick people who 
use marijuana for medical reasons.

It gave the government a year to revamp the law and correct the problem, or 
the current law would become invalid.

Ottawa responded with its Medical Marijuana Access Regulations which 
McAllister says does not go far enough.
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MAP posted-by: Alex