Windsor, Ont., judge rejects pot charge in potential landmark case
Thursday, January 02, 2003
WINDSOR, Ont. (CP) - An Ontario Court judge has thrown out a marijuana charge against a 16-year-old boy in a ruling lawyers heralded Thursday as another sign that Canada's pot laws are relaxing.
Justice Douglas Phillips dropped the charge after lawyer Brian McAllister argued in court that there is effectively no law prohibiting the possession of 30 grams or less of marijuana.
Even though the ruling signals for some the beginning of the end for Canada's prohibition against possessing small amounts of the drug, those who do could still be charged, McAllister said.
"My interpretation of the law - and (it's) been accepted by the judge - is there's no law in Ontario prohibiting possession of marijuana," he said in an interview.
"But the danger is the police aren't likely to accept that argument and another judge may not accept that argument."
The ruling "affects at this time only this young person," he continued.
"(But) from what I understand, there's a number of other judges that have been awaiting this decision and have been holding off hearing other cases that involve the same issue, so it's potentially persuasive on those courts."
Jim Leising, a spokesman for the federal Justice Department, said the ruling will be studied carefully and a decision on whether to appeal or take some other action will likely be made within 10 days.
Because the ruling involves a minor, it's especially important to "address the judgment fairly quickly," said Leising, director of the department's federal prosecution services in Ontario.
In the meantime, Leising warned that the ruling doesn't give Canadians the freedom to use marijuana without facing possible charges. Currently, conviction of possessing 30 grams or less of pot can carry a fine or up to six months in jail.
Thursday's ruling involving the 16-year-old - who can't be named because of his age - "is unique," Leising admitted.
But the law making possession of marijuana illegal "is still valid and enforceable and someone would be (using marijuana) at their own peril."
In defending the 16-year-old, who was on probation when he was arrested last April for possessing marijuana, McAllister sought to have the charge dropped on the grounds that Ottawa has not yet adequately dealt with a ruling two years ago from the Ontario Court of Appeal.
In that landmark decision, the appeals court sided with marijuana user Terry Parker, who argued that the law violated the rights of sick people using the drug for medical reasons. Parker, an epileptic, said he needs marijuana to control his seizures.
The federal government's response to the Parker ruling was its now-infamous Marijuana Medical Access Regulations, which are supposed to allow marijuana use for medical reasons under certain circumstances.
Those regulations have been widely criticized for being cumbersome, unfair and loaded down with bureaucratic red tape.
They are also the subject of a separate constitutional challenge in Toronto by a group of marijuana users who say their rights to choose their own form of medical treatment are being violated.
Alan Young, the lawyer for the group and a longtime cannabis crusader, said he was encouraged by the ruling, but that he considered it more of a political victory than a legal one.
"It shows me that the judiciary is getting tired of dealing with minor marijuana criminals," he said.
In his ruling Thursday, Phillips sided with McAllister's argument that the new regulations don't satisfy the Parker decision, and that as a result the federal Controlled Drugs and Substances Act doesn't prohibit possession.
Joseph Neuberger, one of several lawyers involved with the Toronto-based challenge, said Thursday's decision could be the beginning of the end of the laws that make simple possession illegal in Canada.
"Because of the Parker decision, the government had to put in place a regime that allowed proper access for those who needed it for medical purposes," Neuberger said.
"The argument is the government never complied with that order .?.?.?that for simple possession, there really was no law."
In the case of the Windsor-area teen, federal drug prosecutor Ed Posliff argued that it was a crime to possess marijuana if it wasn't authorized for use for medical reasons.
McAllister argued, however, that the appeal court ruling made the entire law invalid because the federal law wasn't changed properly.
"Parliament didn't fix the problem in the right way," McAllister said. "They did it by way of regulations and the Court of Appeal (was) required to address the issues with some legislation."
McAllister noted that even though the possession charge involving the youth has been challenged, it's still illegal to traffic and grow marijuana.