Pubdate: Mon, 15 Dec 2003
Source: Ottawa Citizen (CN ON)
Copyright: 2003 The Ottawa Citizen
Contact:  http://www.canada.com/ottawa/ottawacitizen/
Details: http://www.mapinc.org/media/326
Author: Shannon Kari
Bookmark: http://www.mapinc.org/decrim.htm (Decrim/Legalization)

MARIJUANA LAWS FACE ANOTHER COURT BATTLE

Top Court's Ruling A Threat To Restored Possession Rules

TORONTO -- The recently restored prohibition against marijuana possession 
could be thrown out again in a matter of weeks, depending on the outcome of 
a widely anticipated case heard by the Supreme Court of Canada last spring.

The court must rule by Jan. 31 on an appeal by two British Columbia men and 
an Ontario resident, who argued that potential criminal penalties for 
possession of small amounts of marijuana are unconstitutional. The three 
litigants said the ban violates Charter rights to life, liberty and 
security of the person by criminalizing activity that does not cause harm.

"There is no free-standing right to get stoned," responded the federal 
government in documents filed with the court before it heard oral arguments.

The top court decision follows a series of rulings that resulted in a 
nearly five-month period during which marijuana possession was legal in 
Ontario and forced the government to amend medical marijuana policy.

However, advocates of less restrictive marijuana laws in Canada say an 
easing of the rules is unlikely now that Paul Martin is prime minister. 
They also criticize the Justice Department for its increasingly hardline 
attitude in marijuana prosecutions and Health Canada for failing to comply 
with court rulings in medical marijuana cases.

"It is overly optimistic to think that the Martin government is going to 
re-introduce Bill C-38," said Paul Burstein, a Toronto lawyer who 
represented one of the appellants in the Supreme Court case.

Bill C-38 would have provided for fines instead of criminal charges for 
people possessing small amounts of marijuana. The bill died after 
Parliament prorogued last month.

The Justice Department is also in the process of staying nearly 4,000 
marijuana possession charges laid between August 2001 and October 2003, to 
comply with a recent Ontario Court of Appeal ruling.

But defence lawyers in Ontario and B.C. say the federal government is 
increasingly seeking jail sentences for first offenders who are low level 
participants in grow operations.

The Justice Department has also appealed an Ontario court decision that 
found it was an infringement of privacy rights for police to use infrared 
aerial cameras to try to detect excess heat in homes. As well, Justice 
Department spokesman Pat-rick Charette, said "it's back to the old rules" 
in the prosecution of marijuana possession offences.

The Ontario appeal court ruled in October there had been no valid ban 
against marijuana possession for two years because the federal government 
failed to comply with an earlier ruling to introduce legislation with an 
exemption for authorized medical users

The Court of Appeal decision also upheld a lower court ruling that Health 
Canada's medical marijuana rules were unconstitutional because they forced 
authorized users to rely on the "black market."

The appeal court amended the regulations to allow someone with a 
designated-person production licence (DPL) "to be compensated, to grow for 
more than one authority-to-possess holder, and to combine their growing 
with more than two other DPL holders."

Ironically, Health Canada may already be in violation of the Court of 
Appeal decision.

On Dec. 8, it announced people with DPL licences may grow for only one 
client and "not more than three holders of licences to produce can 
cultivate together."
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MAP posted-by: Jay Bergstrom