Today Ontario’s highest court, the Court of Appeals blew the drug war trumpet loud and clear in a series of much-awaited legal decisions including Rogin, Hitzig, Parker, Turmel and Paquette. The court opened season on Ontario residents who possess under 30 grams, who for the last few months have enjoyed relative immunity from the law. On a lighter note, the ruling also opened the way for compassion clubs to receive legal licenses.
Cannabis Culture contacted legal-expert and university professor Alan Young, who shepherded the Hitzig decision through the courts with the help of Leora Shemesh, a lawyer with Neuberger/Rose.
“I bet as I’m speaking to you right now some kid’s being busted on the streets of Toronto,” he said regretfully. “For about a week or two, it will be very dangerous to smoke pot in Ontario. Reassertion of power is always very overbearing.”
Lumping together appeals to a decision involving an unnamed young offender, which confirmed pot possession was legal in Ontario; the Hitzig decision, which declared medical marijuana access regulations (MMAR) unconstitutional; and a claim by Parker and Turmel that marijuana laws are genocidal; the Ontario Court of Appeals ruled that possession in Ontario is illegal, as of today’s ruling.
The crux of the complex multi-case decision was Hitzig et al, where the Ontario Court of Appeals ordered changes to the MMAR that would allow compassion clubs to get licenses from the government to grow for medical users, and to receive financial compensation for their efforts. Previously, licensed growers could only provide to one medpot user each, could only grow together in groups of three, and couldn’t receive compensation for their efforts.
The Ontario Court of Appeals also struck out MMAR requirements that forced applicants to get recommendations from more than one doctor, often making it impossible for sick people to find enough specialists to fill out their forms. The decision didn’t address one of medpot advocates’ most pressing concerns, however: sections of the MMAR that imperil doctor’s licenses, leading colleges of physicians across Canada to advise against signing the forms.
Alan Young, Terry Parker, John Turmel and Marc Paquette hoped that the decision would yield more fruit. They had argued that possession laws should be thrown out altogether. It all goes back to Parker’s July, 2000 case, when the courts gave the government one year to change the drug laws to allow for medical access, or possession laws would be invalid – wiped out because they were unconstitutional. The government dragged its feet, but one year later published the MMAR, the medpot regs. Then, when the Hitzig decision declared the MMAR unconstitutional, the legal team argued that possession laws should be unconstitutional by default, since the government hadn’t met its one year deadline in Parker.
The court dismissed the line of reasoning as an “overly broad” remedy to the issue of sick people getting their medicine. Alan Young, who worked on the series of cases leading up to Hitzig for several years, was disappointed.
“I’m unhappy because the parts that they fixed don’t solve the problem,” he explained. “I could take the loss if the remedy pertaining to access to medical marijuana was more practical. All they’ve done is create a situation where we could start applying to run large grow-op compassion clubs. Well we are going to call the court’s bluff and get compassion clubs to apply.”
Alan Young is also considering an appeal to the Supreme Court of Canada.
Other decisions rendered by the Ontario Court of Appeals were equally unfavourable. The accusation that marijuana laws were genocidal, for example, brought by John Turmel and Terry Parker, was dispatched like a fly, smacked to death in one shot by a degradingly short ruling.
The Ontario Court of Appeals today also dispatched the court case that had everyone in Ontario puffing phatties this summer – the case of a young person, argued by Brian McAllister. McAllister’s argument was so successful in Ontario provincial and supreme courts that the province suspended possession charges under 30 grams. Nova Scotia, PEI and British Columbia followed suit.
Like Alan Young’s, Brian McAllister’s argument was also based on the July, 2000 Parker decision – the one that gave the government a year to change possession laws to allow for medical use. When McAllister’s case was appealed to the Ontario Supreme Court, Justice Rogin ruled that pot possession laws where utterly wiped out at the one-year Parker deadline on July 31, 2001, and needed to be reenacted by the government. The Ontario Court of Appeals crashed the multi-province pot party, however, ruling that no reenactment of the laws was necessary.
In a strange twist, the Ontario Court of Appeals also ruled that pot laws were invalid between April 12 and today – April 12 being the date when the young person in McAllister’s case was first charged. Anyone in Ontario facing charges incurred during this period should apply to have them dismissed.
Canadians in the provinces of British Columbia, PEI and Nova Scotia may be still somewhat protected by the immunities afforded in their provinces, but judges there might also decide to follow this most recent decision of the Ontario Court of Appeals, leading to a series of skirmishes in courts around the country.
Meanwhile, the Malmo-Levine/Clay/Caine decision is about to be unleashed by Canada’s Supreme Court, trumping whatever the provincial courts decide. Sources say the mammoth ruling is expected any day.
Globe and Mail report: Ottawa’s Pot Rules Unconstitutional, Court Rules
Toronto Star report: Court Makes Pot Possession Illegal Again
Synopsis of the court ruling: www.ontariocourts.on.ca/decisions/2003/october/hitzigsynopsis.htm