HTTP/1.0 200 OK Content-Type: text/html Ontario Court Rules Federal Pot Possession Law Invalid
Pubdate: Fri, 03 Jan 2003
Source: Vancouver Sun (CN BC)
Copyright: 2003 The Vancouver Sun
Author: Ellen van Wageningen, with files from David Reevely
Bookmark: (Cannabis - Canada)
Bookmark: (Decrim/Legalization)


Decision Puts Pressure On Ottawa To Make Position Clear

WINDSOR, Ont. -- A Windsor judge's ruling that a federal law prohibiting 
possession of small amounts of marijuana is invalid in Ontario has opened 
the floodgates for other judges to reach the same conclusion and increased 
pressure on Ottawa to make its position clear.

Ontario Court Justice Douglas Phillips threw out a possession charge 
against a 16-year-old youth on a legal technicality that is expected to 
become the basis of numerous other similar applications.

The judge accepted lawyer Brian McAllister's argument that the government 
needed to pass a new law prohibiting marijuana after the current one was 
struck down by the Ontario Court of Appeal two years ago.

The appeal court ruled in favour of epileptic Terry Parker, of Toronto, 
saying the law violated the rights of sick people who use marijuana for 
medical reasons. It gave the federal government a year to revamp the law 
before the existing law would become invalid in Ontario.

The government responded with the Medical Marijuana Access Regulations, 
subject of a separate constitutional challenge by a group of pot users who 
say they don't meet the needs of the seriously ill.

Phillips found that the regulations didn't satisfy the appeal court's 
ruling because they weren't debated and passed by Parliament.

"This is simply not the sort of matter that Parliament can legitimately 
delegate to the federal cabinet, a Crown minister or administrative agency.

"Regulations crafted to provide the solution [even were these fashioned to 
create sufficient standards governing exemptions] cannot be found to remedy 
the defects determined by the Parker dicta."

McAllister said outside court that the ruling may compel federal 
politicians "to finally act on their longstanding promises to address this 

That is one of the options being considered, said Jim Leising, director of 
federal prosecution services in Ontario.

"We're going to consider our options, but the only two we're considering 
are an appeal or re-enacting the prohibition" on possessing marijuana, he said.

A decision is expected to be made in a week to 10 days, though the 
government has 30 days to file an appeal with the superior court, he said.

While Phillips' decision is not binding on other judges, lawyers across the 
province will be rushing into court to make the same argument, predicted 
Aaron Harnett, the Toronto lawyer who represented Parker.

"How significant it will be will depend on how ready other judges are to 
adopt its reasons. In places where the tone already is 'Why are we doing 
this? Why are we wasting court space harassing people who get caught with a 
half a dozen joints who otherwise aren't a problem to society?' In those 
places this could well fuel legal momentum. Secondly, it will help fuel the 
political momentum to do what people seemed to be inclined to do, which is 
decriminalize up to an ounce," he said.

In British Columbia, pro-legalization activists were jubilant about 
Phillips' ruling.

"Of course, the precedent is in Ontario, but anybody arguing a case in B.C. 
would have to give a reason why the ruling wouldn't work here," said Chris 
Bennett, a spokesman for the B.C. Marijuana Party.

He said it's one in a string of rulings that have pushed the federal 
government to put forward a clear new position on marijuana.

Since federal Justice Minister Martin Cauchon said last month that the law 
will likely be softened in the spring, at least one Ontario judge has 
simply refused to hear prosecutions based on the existing rules.

"If they don't come up with a new law, it looks like the old one will just 
be no good," Bennett said. He pointed out that that's how abortion became 
legal in Canada: The supreme court set aside an existing law that 
restricted it and the federal government simply never passed a new one.

Justice Minister Martin Cauchon has said he intends to decriminalize 
possession of less than 30 grams of pot.

Phillips's ruling "might spur the minister of justice to introduce 
legislation more quickly. This might force the government to show its 
hand," said Ottawa lawyer Eugene Oscapella, an expert on Canadian drug 
policy who says possessing small amounts of marijuana shouldn't be a crime.

Leaving the issue to the courts allows the government to escape political 
pressure from the American administration, which is taking a hard line on 
drugs, Oscapella said. "This may be the way the government is happy to see 
things go, given the pressure from the United States."

McAllister cautioned the door has not been opened for Ontarians to smoke 
pot with impunity.

"I doubt the police will stop charging people for the moment, so that 
anybody is still subject to being arrested for marijuana possession. Also, 
it's still an offence to traffick marijuana or to grow it," he said.

Still, the state of the law became more ambiguous when his 16-year-old 
client walked out of court Thursday cleared of possessing less than 30 
grams of marijuana and breaching a court order not to possess illegal 
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