Pubdate: Tue, 16 Dec 2008 Source: Nelson Daily News (CN BC) Copyright: 2008 Nelson Daily News Contact: http://www.mapinc.org/media/288 Author: Timothy Schafer Note: The newspaper does not have an active website. Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada) Bookmark: http://www.mapinc.org/mmjcn.htm (Cannabis - Medicinal - Canada) Bookmark: http://www.mapinc.org/decrim.htm (Decrim/Legalization) Bookmark: http://www.mapinc.org/topics/holy+smoke COURT RULING COULD ALTER THE RULES A decision waiting to be handed down in Ontario's highest court could give amnesty to all those convicted of marijuana-related offences. If an Ontario superior Court judge upholds earlier findings in an ongoing challenge to the medical marijuana laws - finding no legal prohibition against possession of cannabis because the medical marijuana scheme was deemed unconstitutional - cannabis could be an endangered item in the Controlled Drugs and Substances Act. One of the co-owners of the Holy Smoke Culture Shop, who faces sentencing December 23 on trafficking one ounce of marijuana, said the decision could be groundbreaking. If the pot possession laws were deemed unconstitutional for a medical user, said Alan Middlemiss, then they would also be unconstitutional for anyone else. Two days before Christmas, Middlemiss and Kelsey Stratas will likely be sentenced to up to one year in jail for trafficking marijuana, a conviction from September 26. The decision from the Ontario Supreme Court could be delivered any day. "Just to be potentially going to jail right now at a time when it looks like there could be some major renovations of the pot laws, it's tough," Middlemiss said Tuesday. Ultimately, if passed such a decision could affect cases like Middlemiss' and Holy Smoke co-owner Paul DeFelice's sentences, both of whom have been found guilty of trafficking one gram of marijuana. "How can you be busted for trafficking a small amount of something that is, in itself, not illegal because of this unconstitutional law?" Middlemiss asked. He predicted the Ontario Supreme Court ruling would mean there could be amnesty for anybody arrested between 2001 and the present time for possession. Initially, Ontario Court Justice Howard Borenstein based his lower court ruling on a 2003 Ontario Court of Appeal decision finding sections of medical marijuana government regulations unconstitutional saying authorized users had to obtain their medicine on the black market. This was one of a number of decisions in the past eight years declaring aspects of the medical marijuana regulations unconstitutional. Some options to remedy the situation had been offered by the judge to Health Canada, who regulated medicinal marijuana, including allowing compassion clubs or becoming the only supplier of marijuana for medical users. In turn, Health Canada re-enacted some unconstitutional restrictions, including prohibition on a designated producer growing for more than one user. It also entered into the contract with Prairie Plant. The National Post reported about 20 per cent of the more than 2,000 authorized users in the country receive marijuana from Prairie Plant, a low number because of poor quality and the high price charged by Health Canada. Because it is the highest level of court in Ontario, Supreme Court Judge Eva Frank's decision will be binding across Ontario, meaning a similar situation could arise across the rest of Canada, said Middlemiss. Although Judge Frank had upheld the lower court decision that medicinal marijuana regulations were unconstitutional, a further appeal by Health Canada's lawyer Nov. 18 was made to argue about what the remedy would be. Judge Frank is still reserving her final ruling. - --- MAP posted-by: Larry Seguin