POT LAWS PAIN CANADA'S ILL
Critics Condemn Ottawa For Spending Millions Of Taxpayers' Dollars Each Year In The Criminal Prosecution Of People Who Grow And Smoke Marijuana For Medical Use. But Justice Department Says It Is Merely Upholding The Rule Of Law
It appeared to be another run-of-the-mill marijuana traffiking case, except for the people directly involved.
In a Peterborough court this month, Justice Bruce Glass of the Ontario Superior Court of Justice acquitted 59-year-old Jim Calberry on charges of possession for the purposes of trafficking. Judge Glass said police misled a justice of the peace to obtain a search warrant for the August 1999 raid on Calberry's home and they violated the ( sic ) his rights under the Charter of Rights and Freedoms by, among other things, not properly instructing him of his right to counsel.
To include the police evidence "would bring the administration of justice into disrepute," Judge Glass ruled.
"It scared me," Calberry said of the police raid. "I thought I was going to have to go to the pen."
Calbeery readily admits he grows and smokes marijuana to cope with severe back pain caused by a serious work-related injury he suffered in the early 1980s. He is on long-term disability and lives quietly with his common-law wife in rural Ontario.
There was never any evidence Calberry was selling or even giving away the marijuana he grew. Police decided, however, that the marijuana they found was more than Calberry required for his personal use. So he was charged with an offence that carries a maximum sentence of life imprisonment.
For critics of the federal Department of Justice, which is responsible for drug prosecutions in Canada, the Calberry case is yet another example of what they call "a policy of over-criminalization," and a poor use of its resources.
In Calgary, medicinal marijuana crusader Grant Krieger waged a protracted battle with authorities that eventually resulted in his being allowed to grow and cultivate pot for his own use.
The Crown is appealing the Court of Queen's Bench ruling, handed down last December.
The case took a bizarre turn earlier this year when Krieger, who suffers from multiple sclerosis, demanded he be allowed to take a 100-gram pack of pot to jail. He had been sentenced to 33 days for failure to pay $1,750 in fines imposed for breaching probation resulting form earlier marijuana-related cases.
His request was denied, and his pack was seized.
Krieger, 46, served his time, then sought the return of his pot. However, he had to go to court to seek a judge's order because police would technically have been trafficking.
The Justice Department insists the focus is on prosecuting people charged with serious drug offences. But according to the Canadian Centre of Justice Statistics, about three-quarters of all drug charges involve cannabis. More than 31,000 marijuana-related charges were laid in 1999, two-thirds of them for possession. The number of police-reported "incidents" relating to marijuana has increased by 37 per cent since 1995.
There are no precise numbers for prosecutions involving the medical use of marijuana, but lawyers in the field say that based on their anecdotal evidence, there are several hundred cases now in the criminal justice system.
"Some sort of auditor with a moral perspective has to come in," says Alan Young, a law professor at Osgoode Hall law school in Toronto, who has acted in a number of medical marijuana cases.
"I really believe that wasting resources is probably the most critical problem in criminal justice today."
According to Young, that problem is most acute at the Department of Justice.
He says prosecutors have a wide discretion once charges have been laid. Too often,he says, Crown attorneys take the politically safe route and allow a case to go to trial, even on shaky evidence, and wait for a judge to throw out the charges.
"They can't make a decision about what is criminal or merely trivial," said Young.
In the most extreme cases, this can lead to a bizarre use of anti-drug resources. Earlier this year, the Ontario Court of Appeal threw out the conviction of a 14 year-old youth who was induced to sell $10 worth of marijuana to two undercover Hamilton police officers outside a Marilyn Manson concert. The veteran officers were dressed up in makeup as part of a "buy and bust" operation.
According to the youth, the men were intimidating and "looked like KISS fans."
The police operation, court costs and legal fees in that criminal proceeding added up to well over $100,000, lawyers say. Even the Calberry case, which ended at an early stage, likely cost taxpayers an amount well into the high five figures.
Croft Michaelson, the director of strategic prosecutions, policy section, at the Department of Justice, says Crown attorneys have two main guidelines. Is it in the public interest to prosecute and is there a reasonable prospect of conviction?
He said Parliament has made the determination it is in the public interest to prosecute marijuana possession by keeping the law in the Criminal Code.
"As prosecutors, we can't second guess Parliament," said Michaelson.
Under Section 56 of the Controlled Drugs and Substances Act, a person who claims to need marijuana for medical purposes can apply fro an exemption to Health Canada.
There may not be a formal guideline, but Michaelson insists Justice Department prosecutors are willing to adjourn a case if the defendant has made a legitimate Section 56 application.
In July, Health Canada will introduce new medical marijuana regulations. Last summer, the Ontario Court of Appeal ruled the prohibition on the cultivation and possession of marijuana for medical use was unconstitutional. The new guidelines will allow people with medical exemptions to possess a limited amount of marijuana and cultivate a specific number of plants.
Marijuana advocates say a lack of understanding about what is involved in growing the substance is likely to result in more unnecessary criminal prosecutions.
"The whole thing of plant numbers is foolishness," said Chris Conrad, a medical marijuana expert who has testified in more than 50 criminal cases in California. "It's like saying you can build a house, but you can only cut down two trees."
Greg LaFontaine, the lawyer who represented Calberry and the youth in the Marilyn Manson case, said some medical marijuana users may occasionally grow more than they are permitted to make sure they don't run out of what they consider to be their medicine.
Meanwhile, there is a growing call for the decriminalization of simple possession of marijuana in Canada. Last week, the Canadian Medical Association Journal published an editorial asking Parliament to update the marijuana laws. Three days later, the House of Commons agreed to form a committee to examine the issue.
Crusaders For Medicinal Marijuana
[PIC] Jim Wakeford, Toronto In May,1999, Wakeford, a social activist, won the legal right to grow and smoke marijuana after receiving an interim constitutional exemption from prosecution.
[PIC] Lynn Harichy, London, Ont. In 1999, Harichy, seen here with her husband Mike, had charges of possession of marijuana stayed. Harichy, who suffers from multiple sclerosis, smoked pot on the steps of London police headquarters to raise the profile of the campaign to legalize marijuana for medicinal purposes.
[PIC] Nelly Stolk, Montreal Stolk, 53, uses marijuana to help her fight the pain and tremors she gets from cancer and epilepsy. The Montreal artist launched a door-to-door campaign in her suburban neighbourhood to legalize pot for terminally ill people.
[PIC] Grant Krieger, Calgary Earlier this year, Krieger won a landmark court ruling allowing him to grow and possess pot to alleviate the pain he suffers from multiple sclerosis