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Canada: Judge rules marijuana law invalid
Ellen van Wageningen Ottawa Citizen, Canada
Friday 03 Jan 2003 WINDSOR, Ont. -- A Windsor judge has ruled that a federal law prohibiting possession of small amounts of marijuana is invalid in Ontario, opening the floodgates for other judges to reach the same conclusion and increasing pressure on the federal government 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. Instead of writing new laws, the government passed regulations to create a medical marijuana system. McAllister argued that the situation means Canada effectively has no law prohibiting possession of about an ounce or less of marijuana. Judge Phillips agreed, dropping the charges against the youth, who cannot be named because of his age. Judge Phillips found that the medical marijuana 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 issue." 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 Judge Phillips's 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 epileptic Terry Parker, the man involved in the appeal court case. "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. Justice Minister Martin Cauchon has said he intends to decriminalize possession of less than 30 grams of cannabis. Judge 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 however that door has not been opened for Ontarians to smoke marijuana 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 traffic 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 substances.
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