Ontario’s highest court smashes pot prohibition

Prohibition in Canada teeters on the brink as court case after court case tips it further toward its ignominious end.
On January 9, Ontario’s highest court, the Court of Appeal ruled that Canada’s Medical Marijuana Access Regulations (MMAR) are unconstitutional, because the difficulty that legal medpot users have in getting a legal supply of cannabis – many of whom are forced to look on the streets. The case was shepherded by lawyer Alan Young and argued by lawyer Leora Shemesh on behalf of nine medical cannabis users and one compassion club founder, Warren Hitzig. In the case, Shemesh and Young asked the court to address several issues including the Ministry of Health’s decision to withhold pot grown by the government at their facility in Flin Flon, Manitoba (CC#38, Health Canada claims their pot sucks).

“Ultimately the lack of a lawful source led the court to strike down the MMAR with a 6 months grace period to fix the problem,” Young told Cannabis Culture.

If the government fails to meet the 6 months deadline, the judge promised to flush marijuana from the Controlled Drugs and Substances Act (CDSA), the law which makes all marijuana possession, trafficking and cultivation illegal. The judge suggested that the government might want to take a look at letting compassion clubs operate with the full consent of the law.

“I think the government will choose to let the law die” said Young. “There may only be 800 exemptees right now, but if the government starts distributing, they will eventually have to distribute for tens of thousands of medical users, and they don’t want to be in that position. It will be a major enterprise. It will cost them more money to maintain prohibition.”

If you close your eyes while someone reads you the January 9 ruling, you might have a flashback to the Parker case of July 2000 (CC#30, One year to change the law), when the courts told the government to change medpot access rules in 12 months under threat of flushing the CDSA. The spirit of the decision was that the government was supposed to make the laws clearer, giving the Minister of Health less discretion to grant exemptions in what seemed a whimsical, nonsensical fashion. Before the Parker ruling, medpot patients faced seemingly absurd, helter-skelter decisions from the Ministry of Health regarding who would get an exemption and who wouldn’t. Two people with the exact same condition could get entirely different decisions, and only a small handful of Canadians received an exemption at all.

12 months later, in July 2001, a seemingly vengeful Canadian government made medpot rules even harder for medpot users (CC#35, Official interference), including provisions that put doctors at risk of losing their licenses for prescribing, forcing many patients to find two specialists and a GP to prescribe them marijuana as part of the application process, and still only a small number of people received exemptions, while those who already had exemptions found the annual renewal process suddenly impossible. How will the government react now? Will it use the court decision to put medpot users further out of luck?

One thing’s for sure: the political environment is more ripe for change than it has ever been. On January 2, a provincial court judge in Ontario ruled that Section 4 of the Controlled Drugs and Substances Act, which relates to possession, was invalid (CC Online, Judge tosses Canadian pot law) when lawyer Brian McAllister argued that the government was supposed to change the law in July 2001, but instead only wrote regulations, a subtle difference that nonetheless has profound implications. Laws must pass through parliament, may face committee hearings, and are not subject to change at a whim, McAllister explained. Regulations, on the other hand, are concocted by Canada’s cabinet, and can be changed by a simple publication of the Canada Gazette. McAllister’s case was appealed by the prosecution on January 3 (CC Online, Prosecution appeals landmark case), but the appeal means that issue is still undecided, and may become precedent setting.

It all comes down to a time crunch for politicians who now must change the medpot rules in 6 months. Should they change the regulations and face the possibility that McAllister’s case will succeed? Or should they navigate the lengthy parliamentary process sometimes necessary for legislative reform, risking the 6-months deadline?

Meanwhile, other court cases are in the wings, waiting to clobber prohibition. The case of Caine, Clay and Malmo Levine, represented partly by lawyer John Conroy and partly by Malmo Levine himself, argues that recreational use and trafficking are protected by the constitution, and is potent enough to make pot prosecutors around the country shake in their boots. The Caine, Clay and Malmo Levine case was delayed late in 2002 because Minister of Justice Cauchon announced that Canada would decriminalize within a few months, and the court wanted to await the outcome (CC Online, Canadian justice delayed). The case will now almost certainly resurface since Prime Minister Chretien cuffed Cauchon with the announcement that decriminalization isn’t yet a fate accompli.

Another promising decision came on January 8, when Lawyer Rick Reimer was found innocent of driving while intoxicated. Reimer – who holds a medical marijuana exemption – was pulled over by cops while he puffed a joint in January of last year (CC#40, Driving high). Instead of putting it out, he kept smoking, even as he rolled down his window to face an astonished officer. Reimer argued that there was no way to say if he was impaired, as studies have yet to be done to determine how much a person can consume before they are intoxicated, and because everyone has a different tolerance level.

The courts are sending a clear message to Canadian politicians – “change the destructive prohibition laws, show some compassion to medical users, or face the consequences.” There is also a hidden message – the courts are ready to strike down all marijuana laws, and chances are that judges are sick and tired of sentencing people to jail for a harmless, green, happiness-inducing and medicinal herb.