Pubdate: Mon, 28 Jul 2003
Source: Hamilton Spectator (CN ON)
Copyright: The Hamilton Spectator 2003
Author: Barbara Brown
Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada)
POT LAWS MAY GO UP IN SMOKE
Pot smokers are in legal limbo and for the moment it doesn't matter if the joint they're lighting up is for medical or purely recreational purposes.
Two cases before the Ontario Court of Appeal and a trio of challenges in the Supreme Court of Canada, however, could clear up confusion about whether it's illegal to possess a little marijuana.
Police in the province stopped laying charges for possession of less than 30 grams ( one ounce ) in the wake of a precedent-setting ruling on May 16 from a Windsor judge. Superior Court Justice Stephen Rogin upheld a lower court's decision to acquit a Windsor teenager on a legal technicality, effectively taking "simple possession" off the books in Ontario.
His ruling was broadly interpreted by justices of the peace and judges to mean certain sections of the Controlled Drugs and Substances Act pertaining to the simple possession of marijuana were legally null and void.
Since then, federal drug prosecutors in Ontario have been withdrawing, adjourning or staying proceedings for pot possession that were already before the courts.
Jim Leising, Justice Canada's director of criminal prosecutions for Ontario, said federal lawyers will be in the appeal court tomorrow and Wednesday asking a panel of judges to overturn the Windsor case, along with a civil decision involving a Toronto man who operated a "compassion club" to supply medical users of pot.
Rogin's decision upholding the Windsor teen's acquittal effectively halted criminal prosecutions for the simple possession of marijuana.
Leising maintains the prohibition against marijuana remains legally valid until such time as the Canadian government enacts a new law to decriminalize its possession.
At the same time, he recognizes Rogin's decision as legally binding, which is why he directed federal prosecutors to halt or delay proceedings.
Hamilton police Inspector Warren Korol said although police are not currently laying charges, they are continuing to seize marijuana when they find it during the course of their duties.
"If we come into possession of a drug in relation to any other search, we will seize it," said Korol. "We cannot just hand it back to the person because that would be considered trafficking in a narcotic, which does continue to be an offence."
Kent Roach, a criminal law specialist with the University of Toronto's Faculty of Law, said Canadian courts are moving quickly on the issue of marijuana reform, while Parliament appears to be "fighting fires in response to judicial cases."
On June 20, Madame Justice Mary Southin, of the British Columbia Court of Appeal, gave what is surely the strongest criticism of the country's marijuana laws ever issued from the bench. The three-judge appeal panel unanimously acquitted a married couple convicted of cultivating marijuana, finding police had violated the pair's fundamental rights.
In giving her reasons, Southin wrote she did not believe cannabis was a danger to society and that people who smoked marijuana were no more immoral than those who enjoyed a good martini.
"I have not yet abandoned my conviction that Parliament has a constitutional right to be hoodwinked, as it was in the 1920s and 1930s by the propaganda against marijuana, and to remain hoodwinked," she said.
Southin noted the enforcement and prosecution of marijuana laws had created a good deal of work for police, lawyers and judges.
"Whether that work contributes to peace, order and good government is another matter," she said.
The following is a list of the pertinent cases, pending legislation and new government regulations affecting people who smoke marijuana.
May 2003 -- Canada's Justice Minister Martin Cauchon introduces legislation to decriminalize possession. Being found with up to 15 grams of marijuana, enough for 15 or 20 joints, would be a minor offence with a fine from $100 to $250 but no criminal record, if approved.
July 2003 -- Health Canada announces new regulations that would let it sell marijuana to the sick who qualify under Ottawa's medical-pot program. The interim policy would see the government sell bags of marijuana seeds and pot to registered users, even as police outside Ontario continue to bust people for possessing pot. The move was in response to a January decision by Ontario Superior Court Justice Sidney Lederman who gave Ottawa six months to provide medical users with a legal supply.
THE COURT CASES
July 2000 ( Parker ) -- The controversy begins with the Ontario Court of Appeal's ruling that sections of the Controlled Drugs and Substance Act are unconstitutional because they force sick people to choose between effective treatment and arrest.
The court sided with Terry Parker, who suffered epileptic seizures, and gave Ottawa a year to change its laws and allow medical use of cannabis. Otherwise, the court ruled, it would strike down laws against personal possession.
January 2003 ( Hitzig ) -- Lederman strikes another blow to Canada's pot laws when he rules Ottawa's new regulations for medical users of marijuana are unconstitutional because they don't give sick people legal access to the drug. Lederman gave Ottawa six months to respond. Otherwise the possession law for everyone would be struck down. Warren Hitzig and others sought a ruling from the court after the Toronto Compassion Centre, which distributed marijuana to about 1,200 ill people, was raided by police.
May 2003 ( J.P. ) --Rogin upholds a lower court's decision to acquit a Windsor teenager ( known only as J.P. ) caught smoking pot in a park. Rogin found the laws prohibiting less than 30 grams of pot to be null and void because Ottawa, in enacting its Medical Marijuana Access Regulations, had not responded adequately to the appeal court's decision in Parker's case.
July 29, 2003 -- Federal lawyers will be in the Ontario Court of Appeal tomorrow trying to overturn the decisions of Rogin in Regina v. J.P. and Lederman's decision in the Hitzig case.
Fall 2003 ( Malmo-Levine ) -- The Supreme Court of Canada will render its decision on the comprehensive challenge it heard this spring to Canada's pot-possession laws, brought by a trio of recreational smokers: David Malmo-Levine, of Vancouver, a co-founder of the Harm Reduction Club who works at Pot TV; Chris Clay, of London, Ont.; and Randy Caine, of White Rock, B.C.
The debate boils down to the concept of personal liberty and the disparity between the minimal harm caused by sale and use of marijuana, as opposed to the severe penalties handed out for those offences.
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