Canadian judges toss pot prohibition

Canada began 2003 with a series of monumental court decisions which are spelling the end of pot prohibition in America’s northern neighbor. On January 2, an Ontario judge ruled that Canada’s law against marijuana possession is invalid and of no force. A week later, Ontario’s highest court ruled that Canada’s Medical Marijuana Access Regulations are unconstitutional, and gave the feds six months to rewrite the law or have it struck down entirely.
Both these rulings are the result of legal challenges which have been working their way through the courts for many years. Individually, these decisions each strike a blow at the foundations of marijuana prohibition, and taken together they have the potential to see marijuana prohibition end across Canada.

No more pot prohibition

On January 2, lawyer Brian McAllister, representing a 16-year-old allegedly caught with five grams of pot, successfully argued that Canada’s marijuana laws were invalid. His argument was based upon an earlier court decision from July 2000, involving epileptic med-pot user Terry Parker.

In the Parker case, Ontario’s highest court ruled that Canada’s law against marijuana was too restrictive, and needed to be changed to accommodate medical users (CC#28, Canada’s med-pot push). The judge gave Parliament one year to rewrite the law, until July 2001, or else the prohibition on marijuana possession would be erased from the Controlled Drugs and Substances Act.

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 (CC#34, Medical pot grows in Canada).

Provincial Court Justice Phillips agreed. In his decision, the judge explained why the distinction between laws and regulations is important. Laws must be passed by Parliament after open debate. Regulations are made by the Ministry and can be changed at a whim.

One week later, another Ontario judge did the same thing, and threw out pot possession charges against a 40-year-old man who was alleged to have had the equivalent of a joint in his pocket.

Both judges agreed that since the government had failed to appropriately change the law within the deadline, possession of under 30 grams of marijuana is “an offence not known to law” and therefore “no longer exists.”

Does this mean that pot possession is totally legal in Ontario? The police don’t think so, and quickly told the media they would continue to be making busts for personal possession as always. “Our same policies are still in effect,” one Police Chief told the media, adding “we won’t stop such action until the Supreme Court says so.”

In an interview with Cannabis Culture, renowned Canadian cannabis lawyer Alan Young explained the ramifications of these decisions. “It’s so tricky and I get this all the time with rulings out of provincial court,” said Young. “In theory these rulings have only persuasive impact, not presidential, because they are from the province’s lowest court. They also have no application in provinces outside of Ontario. But what I found exciting about these cases 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.”

The federal government has already announced that they will appeal. Nevertheless, McAllister says the decisions are already having an effect on how judges are handling pot cases, and presents a sticky dilemma for prosecutors. “Other judges are not obliged to follow the ruling,” explains McAllister, “but if the prosecution appeals the case and loses it, it will become a binding precedent in all of Ontario.”

Alan Young in a media scrum.Alan Young in a media scrum.Six more months

In the midst of all this, another major marijuana ruling came on January 9, when Ontario’s highest court, the Court of Appeal, ruled that Canada’s Medical Marijuana Access Regulations are unconstitutional for a different reason. The court agreed that the difficulty med-pot users have in getting a legal supply of cannabis makes the regulations unworkable. Despite having legal permission to use marijuana, many patients are forced to look on the streets for their medicinal supply.

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. Shemesh and Young asked the court to address several issues, including the Ministry of Health’s decision to withhold pot grown by government contractors at their isolated mineshaft 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 regulations, with a six-month grace period to fix the problem,” Young told Cannabis Culture.

So while the lower courts were ruling that the government had already missed their expiry date and that pot possession is no longer against Canadian law, the higher court gave the feds six more months to make the needed changes. By July 9 Canada should have easy and open access to medicinal pot, or it will have no pot possession law at all. The Appeal Court judge suggested that the government might want to take a look at letting Canada’s current network of compassion clubs operate within the law.

Young predicted that the government will simply do nothing, and let the courts strike down the marijuana laws. “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.”

There is a precedent for Parliament to simply let a controversial law get struck down by the courts in this manner. In 1988, the Supreme Court ruled that Canada’s abortion law violated the Charter of Rights. Rather than try to write a new law on the divisive issue, the Liberal government has made it clear they prefer to let the court decision stand, leaving canada with no clear abortion legislation.

Terry Parker: fighting for 24 years in Canadian courts.Terry Parker: fighting for 24 years in Canadian courts.Supreme spring

Before the six-month deadline expires on July 9, Canada’s Supreme Court should have heard comprehensive arguments on all aspects of cannabis prohibition. All of these issues were actually set to go before Canada’s Supreme Court in December 2002, but the hearing was put off.

Defendants Randy Caine, Chris Clay and David Malmo-Levine were scheduled to go before the Supreme Court on December 13, to argue against all aspects of cannabis prohibition ? their respective cases covering possession, cultivation and trafficking.

With activists from across Canada gathered in the courthouse to hear the anticipated day of legal arguments, the nine justices of Canada’s highest court decided that they would postpone their hearing until the spring. Even though all lawyers on both sides wanted to proceed with their arguments, the justices opted to wait until the spring session.

The judges decided that since a recent Parliamentary report had recommended making possession of under 30 grams into a ticketing offence, and since Canadian politicians had been talking about quickly decriminalizing marijuana, they should give the feds more time to possibly introduce new legislation.

Yet regardless of any changes to the law which may come during the next few months, the Supreme Court will hear arguments on all aspects of pot prohibition this spring. Their ruling, which could potentially strike down all of Canada’s laws against pot cultivation and sales, is expected to come about six months later.

Reefer refugees

As Canada moves toward decriminalization of marijuana, there is likely to be an increasing number of “reefer refugees” coming in from the US. The success of high-profile cases like Renee Boje and Steve Kubby is giving American med-pot patients hope that they will be able to escape across the border and grow their medicine in peace. Added to this total will be many thousands of people fleeing extreme sentences for marijuana offences which are considered trivial in Canada.

Canada has a tradition of leading the US on issues of social liberalization, and has long accepted American refugees fleeing the tyranny of their government.

American slaves who had fled their captors took the underground railroad to Canada. Canada also led the US out of alcohol prohibition in the 1920’s.

During the Vietnam War, Canadian Prime Minister Pierre Trudeau welcomed draft dodgers and deserters into Canada. His administration passed a regulation that applicants from the US could not be asked why they were immigrating, or what their draft status was. Over 30,000 peace-loving Americans sought refuge in Canada, many as landed immigrants, others as long-term visitors who just never left.

The issue of extraditing med-pot patients to the US even made it into a popular Canadian TV drama series called The Eleventh Hour. A mid-January episode centered around a fictional Canadian who faced a mandatory life sentence in Florida for med-pot cultivation. The episode concluded with the sympathetic cannabis grower escaping from Canadian police and going into hiding, after being ordered to return to the US despite journalistic maneuverings by the Eleventh Hour crew.

Canadian marijuana activists are prepared to keep pushing the envelope. “I want to open a marijuana outlet and sell pot to tourists from the US,” Cannabis Culture publisher Marc Emery told the media after the court decisions came down. “If we have a law that allows possession of only 30 grams, that amounts to a lot of pot in a crowded room. How will the police be able to say which buds belong to whom? There’s plenty of ways we can work with this. This is just the beginning!”Terry Parker: fighting for 24 years in Canadian courts.

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