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Canadian pot law’s foundation is crumbling
By Hempology | July 18, 2007
Toronto Star, ON
17 Jul 2007
Michele Henry
JUDGE GIVES POT SMOKERS SHORT REPRIEVE
Recent Ruling Could Lead to Dismissal of Marijuana Possession Charges, Striking Down Current Law
A recent ruling about Canada’s pot laws might make it difficult to crack down on simple possession, legal experts say.
But don’t rush out and roll a joint in public just yet.
Alan Young, Osgoode Hall law professor and marijuana legalization activist, said yesterday the grace period may not last long and doesn’t stop cops from doing their job.
“For a short period of time, this ruling may throw things into confusion,” Young said.
“But people have to be careful, police are still entitled to lay charges.”
A Toronto judge ruled Friday in the case against Clifford Lond, 29, that Canada’s pot possession laws are unconstitutional.
Lond was arrested in 2005 for having 3.5 grams of pot, worth roughly $45.
Defence lawyer Brian McAllister objected to the fact that a 2003 decision to allow access to medical marijuana was made by a policy statement and not by changing the statute or regulations.
“It’s the equivalent of an inter-departmental memo,” he said. “Now people can avail themselves of this loophole.”
McAllister argued this informality makes the pot possession laws invalid, even for those, like Lond, who don’t have a medical licence to smoke it.
Justice Howard Borenstein of the Ontario Court of Justice agreed and dismissed the charges.
The ruling gives Ontario residents charged with possession a new defence for at least next two weeks. That’s when Borenstein is supposed to present his formal ruling.
Until then, the ruling can be used as a legal shield, Young says. Judges might reserve their decisions or toss out simple possession cases. That’s what they did during a similar period of legal ambiguity in the early part of this decade.
The criminal laws became tied to the medical marijuana program in 2000 when the Ontario Court of Appeal ruled that the laws against possession couldn’t apply unless a medical marijuana program existed. The federal government threw out more than 4,000 possession cases between July 31, 2001 and Oct. 7, 2003. The Court of Appeal said the possession law was invalid during that time because it seriously limited access to a lawful source of medical marijuana.
The Court of Appeal allowed the federal government to permit contractors to supply marijuana to those licensed to smoke it.
McAllister said that while the ruling isn’t binding, it could persuade other judges to follow it, though they aren’t bound by it.
Young said one of the remedies available to Borenstein is striking down the possession laws.
It’s too early to understand the significance of the ruling, Young said.
“This is fun and games for people who want to show that the law’s foundation is crumbling,” he said.
“While politicians dance around the issue, the courts chip away at the foundation and slowly and painfully they might achieve the right result.”
Toronto police spokesperson Mark Pugash said it’s business as usual, regardless of the ruling.
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