Ontario Has No Marijuana Laws, Ottawa Concedes
Federal Government Fights Appeal Court Decision That Renders Current Statutes Invalid
By Shannon Kari
CanWest News Service
June 7, 2003 - Vancouver Sun
TORONTO - The federal government has finally conceded there is no existing law against possession of marijuana in Ontario.
The surprising admission, contained in court documents filed Friday, is a complete turnaround from public comments made by government officials and Justice Minister Martin Cauchon since a court ruling released in Windsor three weeks ago.
Ontario Superior Court Justice Steven Rogin upheld a lower court decision that found there was was no existing law banning possession of marijuana, because of the government's failure to comply with a July 2000 ruling by the Provincial Court of Appeal.
Justice department officials insisted repeatedly that there was still a criminal prohibition against possession of less than 30 grams of marijuana.
As well, federal attorneys continued to prosecute marijuana possession cases since the May 16 superior court ruling. "The existing legislation is valid legislation. It is constitutional legislation. We will keep enforcing it," Cauchon said in Toronto last week.
Acting on their only legal advice however, police forces across Ontario announced this week that they would not lay marijuana possession charges until there was a decision from the Court of Appeal.
In documents filed as part of a legal motion asking the appeal court to suspend the Rogin decision, the Justice Department suddenly changed its interpretation of the Superior Court ruling.
The decision "is binding on lower courts in Ontario, who have exclusive jurisdiction over most marijuana possession cases," said the justice department.
"The practical effect of Justice Rogin's judgment in there is presently no valid prohibition against marijuana possession in Ontario."
The federal government has introduced new legislation that would result in fines, instead of criminal sanctions, for possession of small amounts of marijuana. But these changes may not become law for several months.
As a result of the legal vacuum in Ontario, the Court of Appeal has agreed to an urgent request by the justice department, to hear arguments on June 10, to decide if the Superior Court judgment should be suspended until an appeal is heard later this summer.
"Without a suspension of Justice Rogin's judgment, the effective prosecution of marijuana possession in Ontario is jeopardized, pending this Court's resolution of this appeal," argued the justice department.
The request to suspend the Superior Court decision is "procedurally unprecedented," said Windsor lawyer Brian McAllister, who represented the 15 year-old youth acquitted of marijuana possession as a result of the ruling. McAllister explained that courts do not normally suspend acquittals because there has been an appeal of a decision.
Alternatively, the Justice Department is asking the Court of Appeal to give the federal government more time to comply with a deadline set by the court nearly three years ago.
In its July 2000 ruling, the Court of Appeal gave Parliament until July 2001 to pass new legislation with an exemption for medical marijuana users.
Instead, the federal cabinet enacted the Medical Marijuana Access Regulations. The justice department has argued unsuccessfully that the regulations were sufficient to comply with the Court of Appeal decision.
Police in Ontario have said they intend to continue seizing marijuana from people pending the resolution of the legal battle in the Court of Appeal. But McAllister stressed that police do not have that right, unless there is some other legitimate reason for an arrest.
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