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Ontario Court Rules Federal Pot Possession Law Invalid
Pubdate: Fri, 03 Jan 2003
Source: Vancouver Sun (CN BC)
Copyright: 2003 The Vancouver Sun
Contact: http://www.canada.com/vancouver/vancouversun/
Details: http://www.mapinc.org/media/477
Author: Ellen van Wageningen, with files from David Reevely
Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada)
Bookmark: http://www.mapinc.org/decrim.htm (Decrim/Legalization)
ONTARIO COURT RULES FEDERAL POT POSSESSION LAW INVALID
Decision Puts Pressure On Ottawa To Make Position Clear
WINDSOR, Ont. -- A Windsor judge's ruling that a federal law prohibiting
possession of small amounts of marijuana is invalid in Ontario has opened
the floodgates for other judges to reach the same conclusion and increased
pressure on Ottawa to make its position clear.
Ontario Court Justice Douglas Phillips threw out a possession charge
against a 16-year-old youth on a legal technicality that is expected to
become the basis of numerous other similar applications.
The judge accepted lawyer Brian McAllister's argument that the government
needed to pass a new law prohibiting marijuana after the current one was
struck down by the Ontario Court of Appeal two years ago.
The appeal court ruled in favour of epileptic Terry Parker, of Toronto,
saying the law violated the rights of sick people who use marijuana for
medical reasons. It gave the federal government a year to revamp the law
before the existing law would become invalid in Ontario.
The government responded with the Medical Marijuana Access Regulations,
subject of a separate constitutional challenge by a group of pot users who
say they don't meet the needs of the seriously ill.
Phillips found that the regulations didn't satisfy the appeal court's
ruling because they weren't debated and passed by Parliament.
"This is simply not the sort of matter that Parliament can legitimately
delegate to the federal cabinet, a Crown minister or administrative agency.
"Regulations crafted to provide the solution [even were these fashioned to
create sufficient standards governing exemptions] cannot be found to remedy
the defects determined by the Parker dicta."
McAllister said outside court that the ruling may compel federal
politicians "to finally act on their longstanding promises to address this
issue."
That is one of the options being considered, said Jim Leising, director of
federal prosecution services in Ontario.
"We're going to consider our options, but the only two we're considering
are an appeal or re-enacting the prohibition" on possessing marijuana, he said.
A decision is expected to be made in a week to 10 days, though the
government has 30 days to file an appeal with the superior court, he said.
While Phillips' decision is not binding on other judges, lawyers across the
province will be rushing into court to make the same argument, predicted
Aaron Harnett, the Toronto lawyer who represented Parker.
"How significant it will be will depend on how ready other judges are to
adopt its reasons. In places where the tone already is 'Why are we doing
this? Why are we wasting court space harassing people who get caught with a
half a dozen joints who otherwise aren't a problem to society?' In those
places this could well fuel legal momentum. Secondly, it will help fuel the
political momentum to do what people seemed to be inclined to do, which is
decriminalize up to an ounce," he said.
In British Columbia, pro-legalization activists were jubilant about
Phillips' ruling.
"Of course, the precedent is in Ontario, but anybody arguing a case in B.C.
would have to give a reason why the ruling wouldn't work here," said Chris
Bennett, a spokesman for the B.C. Marijuana Party.
He said it's one in a string of rulings that have pushed the federal
government to put forward a clear new position on marijuana.
Since federal Justice Minister Martin Cauchon said last month that the law
will likely be softened in the spring, at least one Ontario judge has
simply refused to hear prosecutions based on the existing rules.
"If they don't come up with a new law, it looks like the old one will just
be no good," Bennett said. He pointed out that that's how abortion became
legal in Canada: The supreme court set aside an existing law that
restricted it and the federal government simply never passed a new one.
Justice Minister Martin Cauchon has said he intends to decriminalize
possession of less than 30 grams of pot.
Phillips's ruling "might spur the minister of justice to introduce
legislation more quickly. This might force the government to show its
hand," said Ottawa lawyer Eugene Oscapella, an expert on Canadian drug
policy who says possessing small amounts of marijuana shouldn't be a crime.
Leaving the issue to the courts allows the government to escape political
pressure from the American administration, which is taking a hard line on
drugs, Oscapella said. "This may be the way the government is happy to see
things go, given the pressure from the United States."
McAllister cautioned the door has not been opened for Ontarians to smoke
pot with impunity.
"I doubt the police will stop charging people for the moment, so that
anybody is still subject to being arrested for marijuana possession. Also,
it's still an offence to traffick marijuana or to grow it," he said.
Still, the state of the law became more ambiguous when his 16-year-old
client walked out of court Thursday cleared of possessing less than 30
grams of marijuana and breaching a court order not to possess illegal
substances.
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MAP posted-by: Terry Liittschwager