Marijuana advocates across Canada are celebrating an Ontario court decision, which effectively legalized possession in Canada’s largest province.
On Friday, May 16, Ontario Superior Court Justice Steven Rogin upheld the lower Provincial Court ruling of Justice Philips, concerning a case of pot possession in Ontario.
Justice Rogin agreed that the federal government had failed in its obligation to change the law to allow for medical use of marijuana, and so the entire law was void.
This decision is binding on Ontario’s lower courts, which means that no one can now be convicted of pot possession in Ontario. Therefore marijuana possession is now legal in Canada’s largest province.
Although the decision is not binding on other provinces, it is expected that other courts across Canada will eventually ratify the decision. The earlier decision from Ontario’s Provincial Court had already been reinforced by court decisions in Prince Edward Island and Nova Scotia.
The federal government has announced that it will appeal the case. Also, the “decrim” legislation being contemplated by Canada’s Liberal government will presumably be aimed at filling this void in Canada’s pot laws.
Nevertheless, marijuana advocates are encouraging pot smokers in Ontario to enjoy their new-found freedom. “The people of Ontario should be celebrating this monumental victory!” said Marc Emery of the BC Marijuana party. “Anywhere you can smoke tobacco, they should be smoking marijuana.”
History of the decision
It began in January in Windsor, Ontario, when lawyer Brian McAllister convinced Provincial Court Judge Phillips that Canada’s cannabis laws no longer exist, and that his 16-year-old client should go free on charges of possession.
McAllister’s novel legal argument was based on a July 2000 court ruling relating to Canadian med-pot user Terry Parker (CC#28, Canada’s med-pot push). In the Parker ruling, Ontario’s Supreme Court said that Canada’s marijuana laws were unconstitutional because they didn’t adequately address the needs of sick people who required pot.
In that case, the Court gave the government one year to change the law and provide medical access to marijuana, or the whole law against pot would be struck down.
One year later, the government had created new medical marijuana regulations, but didn’t change the actual law. The difference, argued McAllister, is that regulations can be altered at the whim of Canada’s top ministers, but laws require debate and a vote by Parliament.
In his ruling, Justice Philips agreed, declaring that the government had failed in its court-ordered legal obligations, and ruled Canada’s pot laws to be null and void (CC#42, Canadian judges toss pot prohibition).
Philips added that if a cultivation or trafficking case had been before him, he would have thrown out those charges as well!
Now that the Ontario Superior Court has upheld the decision, it is binding on all lower courts in Ontario. Although Ontario’s higher courts could eventually reverse the decision, as of this writing there is no law against pot possession in Ontario.
After the initial lower court rulings, cops across Canada vowed to keep busting tokers and growers.
Nova Scotia Police Sergeant Don Spicer told the press that when it came to pot smokers it was “business as usual.” Ontario Police Chief George Curtis told the press that his officers were instructed to “carry on as normal.”
Canadian Justice Minister Martin Cauchon also chimed in, telling the media that “the existing legislation is the law of the land. At Justice Canada we will keep enforcing that legislation.”
Yet now that there is a binding legal decision in Ontario the police and politicians have been oddly silent with their threats to continue on with prosecution. Some pot activists have issued threats of their own, saying they will sue for false arrest against any police possession busts.
East coast cannabis caf?
In Saint John, New Brunswick, the owners of a store called Hemp NB opened the East Coast’s first toke-friendly hangout in early April. The new “Hemp NB Cannabis Caf?” allowed patrons over 19 years of age to toke up on premises, although no cannabis was sold.
The New Brunswick government announced that it wouldn’t stop more cannabis caf?s from opening until Ottawa first patched up the leaky pot laws. But police had different ideas.
The caf?’s owners, Jim and Lynn Wood, told Cannabis Culture that a police sergeant frequented their cafe, harassed patrons and warned them that “George Bush isn’t happy.” The Woods explained that the officer “sent fire, building and health inspectors” to harass their landlord and force him to evict the caf?.
Yet the Woods haven’t given up their plans for a toke-friendly establishment. They hope to buy a nearby building and reopen.
Jim and Lynn Wood have been pot activists since cops kicked in their door and shot their dog to death in 1998 (CC#22, High on Firepower). Jim uses the healing plant to treat chronic back pain caused by crushed vertebrae from a car accident in 1991, and was growing pot for his condition at the time of the bust.
The decrim dance
Federal politicians have recently been promising to “decriminalize” the personal possession of pot. Yet Canada’s governing Liberal Party has been promising to soften up the pot laws for over 30 years, and the law has remained essentially unchanged until now. The only significant alterations have involved expanded police powers, reduced access to jury trials and increased seizure of property.
After a comprehensive analysis of all aspects of pot and prohibition, Canada’s Senate issued a report in 2002. Their report claimed that “cannabis is substantially less harmful than alcohol, and should be treated not as a criminal issue but as a social and public-health issue.” The Senate recommended total legalization of marijuana for anyone over the age of 16.
Sadly, the Senate report has been essentially ignored by the Liberal government, which formed a committee to create their own report. Their recent recommendations included fines for possession and a crackdown on dealers and growers.
At a $500 per plate fundraiser on April 29, Prime Minister Jean Chr?tien told the crowd that his government intended on passing a decriminalization bill before Parliament breaks for the summer. When his supporters gave him thunderous applause and even joyful whoops, a startled Chr?tien told them, “Don’t start to smoke yet!” He warned the celebrants in the audience, “We’re not legalizing it, we’re decriminalizing. So you will have another ticket, for losing your senses, or something like that.”
Yet even this promise was quickly weakened, with Chr?tien later stating that he only seeks to have “agreement in principle” on a new law before the summer break, and that perhaps the potential bill could be passed by December.
Sadly, the “decriminalization” which is being continually promised by the Liberal government is a far cry from the end of all criminal sanction sought by activists.
It is expected that if a decriminalization bill is eventually passed, it will include fines for pot possession in the range of $200 to $1,000. Also, the government has promised to “crack down” on growers and traffickers, doubling the penalties for these offenses at the same time as they introduce fines for possession.
Canada’s next Prime Minister is likely going to be Paul Martin, who will almost certainly become leader of the governing Liberal Party in February 2004. In early May, Martin told the media that he supported Chr?tien’s decriminalization plan, but also supported more law enforcement and stiffer penalties for drug offenses in general. “I think the penalties ought to be very severe,” said Martin, “and I think the government ought to crack down as much as possible. I think the government ought to crack down, period.”
So despite the rhetoric and repeated promises, it seems that any new pot laws will likely include substantial fines for pot possession and increased penalties for all other marijuana offenses. This is hardly the kind of reform Canadian pot advocates have been pushing for.
This kind of reform is what the American government is pushing for. American anti-drug officials have been appearing repeatedly in the Canadian media, warning Canadians against liberalizing their laws.
US Drug Czar John Walters told Canadian television reporters that their country’s decrim plans amounted to “a kind of chemical warfare” against the US. Walters And US Attorney General John Ashcroft then threatened Canada with increased border tie-ups, trade wars and soured diplomatic relations.
A system of heavy fines coupled with a general drug crack-down is the Liberal government’s attempt to play both sides of the fence. They will tell Canadians they are easing up on pot-people, while telling the White House that they are really cracking down. Sadly the latter will be closer to the truth.
Despite American pressure, Canada’s courts are doing what the government has failed to do. These court decisions will keep the issue in the public forum, and could force the government to rewrite their new law shortly after it is passed.
The wheels of justice turn slowly, especially when they are being pushed in a new direction. Yet in Canada it is the courts that are taking a legal stand, pushing politicians to acknowledge the illegality of ongoing marijuana prohibition.