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Ottawa Battles To Regain Control of Reefer Madness

By Hempology | January 20, 2003

“Up to politicians to amend, revoke, create new laws” – Even courts are confused about pot legislation.

From the Toronto Star, January 20, 2003
By Tonda Maccharles

Ottawa · Recipe for Reefer Madness.

Take: One rookie justice minister who wants to decriminalize simple pot possession.

Toss in: Several court rulings that Ottawa must allow medical use and possession of pot.

Spike with: Two lower-court acquittals (and counting) of recreational pot smokers by judges who say the law
is no longer valid.

Bake: At low heat on backburner for too long.

Serve up: Confusion for millions.

We can all be forgiven for not knowing the state of Canada’s marijuana law. Even the courts seem confused.

On Jan. 10, a second Ontario Court judge in a month found there is currently no law prohibiting the possession of small amounts of marijuana, saying he followed a “common sense” path in the wake of a number of recent court rulings.

Justice John Moore quashed marijuana possession charges against Martin Barnes, a 40-year-old Toronto man arrested last summer with the equivalent of one joint, or about $5 worth of marijuana, in his coat pocket.

Officially, federal prosecutors carry on as if the criminal law against pot possession is valid even though it is under attack by both judicial and public authorities.

“Prosecutors are obliged to enforce valid laws as they exist. It’s up to the politicians to decide if they wish to amend laws, revoke laws, legislate new laws,” said Richard Kramer, senior counsel at the department’s Ontario regional office in Toronto.

But critics say the law’s days are numbered.

“The law is on its last legs,” says lawyer Paul Burstein who has argued several challenges to the marijuana possession law on behalf of chronically ill patients.

“The combined effect of all the decisions is such that the government or the minister of justice should just declare a moratorium on proceeding with charges that might get laid until they finally come to the right decision, which will inevitably be to decriminalize marijuana possession,” said Burstein.

Here’s where things stand.

There is still, on the books at least, a criminal law against simple pot possession – usually deemed to be small amounts, up to 30 grams, for personal use – even though the justice minister and two parliamentary committees have stated publicly it ought to be reviewed.

That’s because, so far, the government has not moved – despite all the bluster – to decriminalize pot, or in other words, make it simply a ticketing offence that carries no threat of criminal record.

Justice Minister Martin Cauchon, who toked in his youth, told reporters this month before leaving for Europe he still intends to bring a proposal to federal cabinet within the next few weeks.

“There’s a concern in our Canadian society, which has been there for quite some time now, and I guess it’s time to deal with that question,” Cauchon said.

But here’s where it gets confusing.

In past weeks, there have been several court rulings on pot – some on medical use of marijuana, some on recreational users.

All have found the law invalid for differing reasons, but the effect of the rulings is limited because they come from lower courts – and are not necessarily binding.

The country’s top court, the Supreme Court of Canada, was all set to hear three challenges to the law in December, but in the end, delayed hearing the cases until spring because Ottawa’s position is unclear.

The Supreme Court judges noted Cauchon’s media statements that the law is too tough and too unfair in its uneven application across the country – and chided the federal lawyer before them who argued it was merely Cauchon’s “personal view.”

Government, Justice Minister Desperately Trying To Retain Control Over Issue

“You’re putting us in a rather difficult position. The position of the government of Canada we do not know entirely, and you’re asking us to, in effect, close our eyes and decide this case on the basis of a record which may be incomplete,” said usually mild-mannered Justice Louis Lebel.

How did we get to this? Critics say it’s all because of government foot-dragging.

Since 1997, there have been a series of rulings that the over-all criminal prohibition on marijuana possession is unconstitutional because it is too broad and violates the Charter rights of medicinal users by denying them access to a drug that does little harm, yet eases suffering.

Now, lawyers for other pot smokers – recreational or casual users – are using those victories to successfully attack the law for their clients, too.

The most significant decision, perhaps, is the July, 2000, Ontario Court of Appeal ruling against Ottawa in the case of Terry Parker, who has epilepsy.

In that case, the province’s highest court – its decisions are binding in Ontario – upheld a 1997 trial court ruling that acquitted Parker.

The appeal court declared the marijuana possession law failed to allow patients with a legitimate medical need to get access to pot without fear of prosecution.

The judges gave Ottawa 12 months to rewrite the law.

But on the same day, the Ontario appeal court also ruled against a London hemp shop owner and found there is no constitutional right to smoke pot for recreational users.

In July, 2001, Ottawa responded to the Parker ruling with Medical Marijuana Access Regulations enacted by the federal cabinet, not a whole new law debated in Parliament.

Courts are now saying: Not good enough.

In the case of a 16-year-old Windsor teenager, an Ontario Court judge decided in December the Parker ruling required the federal government to come up with new legislation, not merely regulations.

On that narrow, technical basis, he found the government failed to meet the deadline, and the law is invalid, as the Ontario appeal court originally found.

Cauchon has appealed the teen’s acquittal, even as he talks about the need to lessen the criminal sanctions on young people who are convicted of smoking pot.

“What we’re saying actually is that regulation was okay to comply with the judgment and that therefore the section is valid,” said Cauchon.

“In other words, it has really nothing to do with what I have on my table as justice minister,” he told reporters.

Enter Terry Parker again.

This month, he and a group of eight other sick people, and a “compassion club” owner who wants to supply medical marijuana, persuaded Ontario Superior Court Judge Sidney Lederman the new federal regulations still force seriously ill people who use pot as medicine to break the law to obtain the drug.

Lederman struck down the regulations and gave Ottawa another six months to comply.

The judge suggested the federal government could meet legitimate medical users’ needs by: using a federal test crop to provide marijuana seeds, or by adopting a Senate committee recommendation of licensing pot distribution centres.

The government is now studying whether to appeal, a justice department spokesperson said.

But Burstein says the government and the justice minister, with appeals of negative rulings, are desperately trying to retain control over an issue that has got away from them.

“It wants complete discretion as to the form and substance of decriminalization of marijuana possession. They don’t want to be constrained by a court’s interpretation, and in somewhat arrogant fashion are saying, `Butt out judges, it’s our problem, we’ll figure it out, leave it alone.’”

Lawyer Burstein says the government has had 30 years to act since the Le Dain commission urged decriminalization of pot.

In the throne speech last fall, Prime Minister Jean Chretien promised a new National Drug Strategy.

Critics say it can’t come soon enough.

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