Pubdate: Wed, 18 Jul 2007
Source: Daily Herald-Tribune, The (CN AB)
Copyright: 2007 The Daily Herald-Tribune
Contact:  http://www.dailyheraldtribune.com/
Details: http://www.mapinc.org/media/804
Author: Noor Javed, The Canadian Press
Bookmark: http://www.mapinc.org/mjcn.htm (Marijuana - Canada)
Bookmark: http://www.mapinc.org/decrim.htm (Decrim/Legalization)
Bookmark: http://www.mapinc.org/people/Alan+Young
Bookmark: http://www.mapinc.org/people/Eugene+Oscapella

POT LAWS CAUSING COURT BACKLOG

Ottawa needs to fix long-standing loopholes and inconsistencies in 
Canada's marijuana laws, to help the justice system contend with a 
surge of court cases resulting from the Conservative government's new 
zeal for enforcement, legal experts say.

With witnesses reporting a dramatic increase in the number of 
possession cases before the courts, those familiar with the 
intricacies of the law say it remains vulnerable to the argument 
Canada's medicinal marijuana program renders it unconstitutional.

"Every time a judge calls into question our marijuana laws, it 
undercuts the legitimacy of the law," said Alan Young, a Osgoode Hall 
law professor and veteran of the long-standing debate about 
marijuana, its medicinal benefits and decriminalizing its possession.

Four years after Ottawa supposedly closed off a complex legal 
loophole that effectively rendered the law unenforceable, an Ontario 
Court judge agreed Friday the law governing pot possession in Canada 
was unconstitutional.

The Liberal government's decision in 2003 to allow eligible patients 
access to marijuana for medicinal reasons was made by an informal 
policy statement and never changed the existing statutes or 
regulations, Lawyer Bryan McAllister argued.

"It is a departmental policy that can be changed at whim, or even 
ignored," McAllister said in an interview.

"An aggrieved party cannot go to court to seek enforcement of a 
government policy."

Without a clause making an exception for medicinal marijuana users, 
"the policy is not enshrined in law, it has no value, and the law as 
it stands is unconstitutional," McAllister said.

Ontario Court Justice Howard Borenstein agreed and dropped the 
charges against Clifford Lond, 29, a Toronto resident who was charged 
with possessing 3.5 grams of pot. Borenstein said he would wait two 
weeks to make a formal ruling, giving public prosecutors time to file 
an appeal.

Eric Nash, who has testified as an expert witness in a number of 
cannabis cases across Canada, said the number of cases he has been 
involved in has "tripled" in recent months.

"All of a sudden there seems to be a huge increase in the number of 
marijuana possession cases going to court," Nash said.

That's because the number of people arrested for smoking pot rose 
dramatically in several Canadian cities last year after the 
Conservatives took office and killed Liberal legislation to 
decriminalize small amounts of marijuana.

Preliminary figures suggested the number of arrests jumped by more 
than one-third in several Canadian cities: Toronto, Vancouver, Ottawa 
and Halifax all reported increases of between 20 and 50 per cent in 2006.

In 2003, Young successfully argued since there was no effective 
program for sick people to possess medical marijuana without breaking 
the law, the law didn't prohibit possession.

As a result, a number of enforcement agencies said they wouldn't lay 
charges for simple possession until the laws were clarified. 
Eventually, an Ontario court closed the loophole by firming up the 
rules governing how medicinal users obtain marijuana.

The implications of last week's decision are difficult to gauge until 
the two-week grace period is over, which will also depend on if the 
ruling is deferred to a higher court, Young said.

"Right now, all it does is create another layer of confusion in terms 
of the enforcement of the marijuana possession offence."

That's not to say it won't set a precedent, he added: Judges and 
lawyers are always looking for precedent-setting cases that allow 
them to avoid lengthy marijuana possession cases.

"Courts are not that thrilled to have possession offences before 
them; they see it as a waste of time," he said. "So this decision, 
while it is not binding, is persuasive."

None of which comes as a surprise to Eugene Oscapella of the Canadian 
Foundation for Drug Policy, which has been closely monitoring the 
changing federal stance on marijuana-related offences.

"This (Conservative) government is clearly bent on a more punitive 
policy," Oscapella said. "Overwhelmingly, the emphasis is on 
punishment, and punishment is not the appropriate mechanism for 
dealing with drugs ... It's a health and social issue.

"It should not be in the area of criminal law." 
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