Judge tosses Canadian pot law
On January 2, 2003, an Ontario Provincial Court judge ruled that Canada's law against marijuana possession is invalid, and that it has been invalid since July, 2001. A couple of weeks earlier in December, 2002, the Quebec court ruled in favour of directors of the Montreal Compassion Club, who were providing medical pot to the sick.
On January 2, 2003, lawyer Brian McAllister, representing a 16-year-old allegedly caught with five grams of pot, successfully argued that Canada's marijuana laws were invalid because of another court case that happened three years ago - the Terry Parker case, now famous in legal circles.
In the Terry Parker case, Ontario's highest court ruled that Canada's law against marijuana was too restrictive, and the judge gave Parliament one year to rewrite the law to accommodate med-pot usage, or else pot-possession prohibition would be erased from the Criminal Code.
The government didn't comply with the court's demand in the Parker case, said lawyer McAllister, because instead of changing the laws, government officials just made new regulations, the Medical Marijuana Access Regulations (MMAR), to be precise.
Provincial Court Justice Phillips agreed. In his decision, he explained why the distinction between laws and regulations is important. Regulations are made by cabinet, can be changed at a whim, and are no better than the old system which saw the Minister of Health - a member of the cabinet - making decisions about exemptions personally.
Lawyer Alan Young, who masterminded the Parker case, warns that it may not be time to parade down the street waving spliffs and yelling "in your face" at any nearby cop.
"It's so tricky and I get this all the time with rulings out of provincial court. In theory it only has persuasive impact, not presidential, because it is the lowest court," Young told Cannabis Culture. "It has persuasive value on other lower court judges, but doesn't stop a higher court from dismissing it out of hand. it also has no application out of Ontario. What I found exciting about this case is that it means that judges are willing to toss the law; they are sick of kids with three or four grams coming in front of them."
Still, McAllister says the decision is already having an affect on how judges are handling pot cases, and presents a sticky dilemma for prosecutors. "Other judges are not obliged to follow the ruling, but I have heard that a number of judges were holding off their decisions, waiting for this ruling, and I think a lot of judges will be persuaded by it," he said. "Also, if the prosecution appeals the case and loses it, it will become a binding precedent in all of Ontario."
Pot for the sick
This isn't the only recent pro-pot decision to come from Canadian courts. In December, 2002, Marc Boris St-Maurice, leader of the Canadian Marijuana Party, and Alex Neron, former interim leader of Quebec's Bloc Pot, were found not guilty of marijuana charges for providing cannabis to the sick through the Montreal Compassion Club in 2000.
The club remained open after the bust under the direction of the talented Caroline Doyer, while the court case was delayed "at least ten times" over the past three years.
Quebec Superior Court Judge Gilles Cadieux took a long time to reach a decision, but when he finally did, he drove yet another nail into pot prohibition, ruling that giving Canadians medical exemptions, but then depriving them of a place to buy pot, was a threat to their life and liberty as protected by the constitution.
Although Justice Cadieux stopped short of declaring marijuana laws unconstitutional, he still sent a strong message to cops looking to bust compassion clubs.
"It's a finding of law about constitutionality that can be used in future cases," Marc Boris St-Maurice told the press. "It will have an effect but not as much as if the law was struck down."
Boris has pushed forward with plans to help even more sick and dying people get their cannabis by providing the world's first online therapeutic cannabis delivery service. Their website advertises that it will provide cannabis to any Canadian citizen at least 18 years old with a doctor's letter, or a sworn affidavit attesting that the applicant suffers from at least one of a list of illnesses treatable by cannabis. The lengthy list of ailments which can be treated by marijuana is also available on their website.
With Canada's Parliament discussing decriminalization, but too afraid to actually move forward, it will be up to the courts to strike down pot prohibition and force the government to create a framework for legal marijuana.
- More on the Terry Parker case: www.cannabisculture.com/articles/1721.html
- Therapeutic Cannabis home delivery: www.marijuanahomedelivery.ca
- Read a Canadian Press article about the judge throwing out the possession charges here: www.mapinc.org/drugnews/v03/n005/a04.html
- Read a Reuters article about the online mail-order med-pot service here: www.mapinc.org/drugnews/v02/n2300/a02.html