The Summer of Legalization Smoke-Out Tour: No Arrest In PEI!

There Are No Laws Against The Possession Of Pot IN PEI!DML interviews his royal highness on the latest stop of his tour of the various jails of Canada. This week, Marc relates how the law enforcement officials of Charlottetown, PEI refused to give him the standard pot-head tour. Maybe the “no law” message is getting through?
Please be sure to fax a copy of the letter on the show page to the St. John’s RCMP immediateley.
Remaining East Coast Dates
St. John’s, NFLD. 4.00 p.m. Saturday, July 26

The St. John’s Poice have said they will arrest Marc when he makes his Newfoundland stop-over on the Smoke-Out Tour. We are encouraging People to fax the Police the following information to make them aware that there is currently no Federal Law regarding Marijuana Possession in Canada, prior to Marc’s arrival, in the hopes we can get the Police to Respect the current Legal Situation as they have done in both Halifax, PEI and Ontario.

(709) 772-5400
(709) 772-4519

Upon recieving this notification the Police are hereby informed that there are currently no Laws regarding cannabis use and possession in the Country of Canada. As you have ben notified of the current legal situation regarding cannabis in Canada to arrest Marc Emery or other Canadians for simple possession may be construed as false arrest. As your fellow Canadians we urge you to immediately cease and desist the illegal arrest of innocent Canadians.

The Rogin Decision means the Federal Laws regarding marijuana in Ontario are null and void. The P.E.I. R. vs Stavert Decision indicates that this same situation should hold to the Canadian Federal situation as a whole.
“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 be convicted of pot possession in Ontario. This effectively means that marijuana is now legal in Canada’s largest province.”

R. vs Stavert
[47] In my view the Federal Crown cannot be permitted to successfully contend that it is restricted by the final judgment of the Court of Appeal of Ontario only within that province. To hold otherwise would permit the Federal Crown to relitigate an identical issue in each provincial and territorial jurisdiction. The potential for conflicting decisions which could easily result in widely varied legal rights from province to province or territory is obvious. If this prosecution is permitted to continue, in effect it would be tantamount to a ruling that more than one third of the population of Canada is immune from prosecution while the residents of Prince Edward Island are not. [48] At page 1 of the Hitzig decision, Lederman J. makes reference to a recent announcement by the Minister of Justice of his intention to introduce legislation to decriminalize the simple possession of less than 30 grams of marijuana.

[49] In September of 2002 the Senate Special Committee on Illegal Drugs released its report entitled Cannabis: Our Position For a Canadian Public Policy. That four volume report contains eleven recommendations on the direction in which the Senate Special Committee considers the Government of Canada should move in relation to the control of cannabis. Recommendation #6 of the Report states: The Committee recommends that the Government of Canada amend the Controlled Drugs and Substances Act to create a criminal exemption scheme. This legislation should stipulate the conditions of obtaining licenses as well as for producing and selling cannabis; criminal penalties for illegal trafficking and export; and the preservation of criminal penalties for all activities falling outside the scope of the exemption scheme.

[50] There are societal interests to be protected here. There is at present an apparent need for some form of regulatory scheme to control the use of marijuana, whether it carries criminal or non-criminal sanctions. What is more important is that the law have a national application where the Federal Crown has jurisdiction. To restate L’Heureux- Dube J. at p. 302 of Conway: Where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings.

[51] This in my view is one of those “clearest of cases” referred to in Jewitt where a stay of proceedings should be entered by this court in order to avoid an abuse of its own process. All residents of Canada, wherever they are situated, are entitled, in fairness, to expect a uniformity of approach from the Federal Crown, wherever it performs its prosecutorial function. Until such time as the law is changed by Parliament, or the higher courts provide a ruling which will enable such approach, this charge involving the simple possession of marijuana will not proceed in this court.

[52] A stay of proceedings is therefore entered in this matter.

Ralph C. Thompson PCJ

Messy Marijuana Law Tries Courts, Police

Sunday, June 29, 2003
by Jake Rupert
from The Ottawa Citizen

Right now, there is no law against possessing marijuana for personal use in the province, due to a couple of recent court rulings. Police officers, lawyers and judges are asking what happens next.

The marijuana law situation is giving law-enforcement officials fits — in large part because now there is no law to enforce. Across the province, police chiefs have instructed their officers not to lay new charges of simple possession of marijuana.

If you’re confused about whether it is legal or illegal to possess marijuana in Ontario, you’re not alone. And you have some pretty good company.

It seems the answer to the simple question of whether possession of marijuana is legal right now depends on who you ask.

Police and federal Crown attorneys will tell you that, in their opinion, it’s still illegal to possess marijuana. On the other hand, judges and defence lawyers will tell you there is no law against having marijuana for personal use.

The fact is that, right now, in law and in practice, there is no law against possessing marijuana for personal use in the province, due to a couple of recent court rulings.

The proof can be seen in our courts these days as judges in Ottawa and across Ontario are simply dismissing the charges against people because the charges have no legal merit.

Justice Bruce MacPhee, Eastern Ontario’s regional senior Ontario Court judge, said he quashed three of them in the week of June 16-20.

“In my view, the charge of simple possession of marijuana, less than 30 grams, is no longer capable of finding its way onto a proper information.”

Barring a drastic move by the federal government — which isn’t going to happen anytime soon — there will be no law against possession at least until the Ontario Court of Appeal rules on the case that nullified the law.

There is no date for that case to be heard at the province’s highest court. Brian McAllister, the Windsor lawyer who brought down the law, thinks the hearing will happen in late July or early August. A ruling will follow sometime after that. “As it stands, it looks like we were heading for a summer of unregulated marijuana use in Ontario,” said Mr. McAllister. “We’re actually in the middle of an interesting social experiment. It will be interesting to see what happens. Will people use marijuana more? I don’t know.

“Maybe we should look at the results to see what direction we will take on the issue in the future.”

Things got to this point because of a federal law, coupled with a series of court rulings based on the law.

In the early to mid-1990s, social activists began clamouring for a law allowing people suffering from various ailments to smoke marijuana because it helped ease their pain and suffering. At the same time, doctors began writing prescriptions for marijuana.

In June 1999, then-health minister Allan Rock started granting exemptions to people for medicinal use. However, these people still had to obtain the drug through illegal connections. The exemptions were also being granted at the minister’s discretion.

In July 2000, the Ontario Court of Appeal struck down the section of the Controlled Drugs and Substances Act prohibiting possession of less than 30 grams of marijuana. In the ruling, the court agreed that the possession law violated the federal charter rights of Terry Parker, a man suffering from severe epilepsy who’d been arrested twice by Toronto police for cultivation and possession of the drug.

The court found that if the government wasn’t going to make a legal supply of the drug available, it couldn’t make it a crime for people to grow it and possess it themselves.

The appeal court gave the federal government a year to replace the possession law — or it would cease to exist.

Instead of filling the void created by the decision, the government came up with marijuana medical-access regulations. Still, this program didn’t provide a legal supply of the drug to people with minister’s exemptions.

The bomb dropped on Jan. 2 this year when Mr. McAllister successfully argued to Ontario Court Justice Douglas Phillips that a charge of marijuana possession against a 17-year-old client in Windsor should be thrown out because the government hadn’t replaced the law that was struck down by the appeals court, and, therefore, according to the July 2000 appeal court ruling, the law no longer existed. The judge agreed the law prohibiting possession was legal no more and tossed out the charge. The Crown appealed.

Hard on the heels of this decision, after hearing a month of arguments last fall, Ontario Superior Court Justice Sydney Lederman declared the government’s medicinal-marijuana program unconstitutional because it didn’t provide a legal source of marijuana for sick people. The Crown appealed.

In the spring, the Crown’s appeal of Judge Phillips’ ruling in the Windsor case was heard, and, on May 16, was rejected by Ontario Superior Court Justice Steven Rogin. The law didn’t exist anymore, Judge Rogin found. The Crown is appealing this ruling to the province’s highest court.

But because Judge Rogin was sitting as an appeals court judge, the ruling is binding on every other lower court in Ontario — which means all the courts that hear cases of simple possession.

“This is a binding ruling,” Judge MacPhee said. “Judges have discretion, but most are following the Superior Court’s direction that the law is nullified.”

As a last-ditch effort, the Crown applied to the Ontario Court of Appeal for an order setting aside this precedent until the appeal is heard. Earlier this month, this failed when a judge at the court ruled that she simply didn’t have the authority to set aside the ruling.

The situation is giving law-enforcement officials fits — in large part because there is currently no law to enforce. Across the province, after consultation with lawyers, police chiefs have instructed their officers not to lay any new charges of simple possession of marijuana.

However, in many jurisdictions, including Ottawa, officers have been instructed to continue doing investigations — including seizing cannabis, submitting exhibits and fully documenting the investigation and seizure with an eye to laying charges later if the appeals court overturns Judge Rogin’s decision or the federal government changes the law.

This process has some potential legal pitfalls. First off, when embarking on any investigation including search and seizure, police officers must have reasonable and probable grounds to assume that a law has been broken.

However, there is currently no law against possession to break, according to the court rulings.

This means police are acting on shaky legal ground if they stop people, question them, search them, seize drugs, or even ask a person their name when they think somebody might be in possession of marijuana.

“This is a very tough situation for police, and there’s a potential for some pretty nasty situations,” Mr. McAllister said. “I worry there will be a person who refuses to co-operate with an officer who is intent on taking marijuana from them.

“It’s well-established in criminal law that you have the right to resist a wrongful arrest.”

The second problem with police continuing to investigate marijuana possession is what will happen if the Ontario Court of Appeal upholds Judge Rogin’s decision. Police will then be in a situation of having seized people’s property without the authority to do so.

“They’re running a risk with this practice,” said legal scholar David Paciocco. “They’re gambling that the Court of Appeal will find Judge Rogin’s decision was wrong, and the law will come back. If it doesn’t, they will be in a position where they’ve seized people’s private property, and that could have legal ramifications.”

In a statement, Ottawa police Chief Vince Bevan said the situation has put the police in a difficult position and is undermining public confidence in the integrity of the criminal justice system.

“These are matters of law and are of great import to the police and to the community at large,” he said. “I call upon the government of Canada to take immediate action to resolve this urgent matter.”

Recently, the federal government introduced legislation that would decriminalize marijuana possession. The legislation is being debated by the justice committee, and with Parliament not sitting until the fall, it won’t be passed anytime soon. Furthermore, the legislation would only decriminalize possession — it doesn’t propose legalizing marijuana. This means people caught with the drug would be fined instead of charged with a criminal offence.

However, the Ontario court rulings legalize marijuana. So even if the bill is passed sometime in the future, it falls short of remedying the situation in Ontario. And it all adds up to a messy situation for federal Crown attorneys in Ontario who prosecute drug offences.

Jim Leising, the man who oversees federal criminal prosecutions in the province, says he’s been instructing his assistants not to take any cases to trial until the situation is sorted out.

Instead, they’ve been asking for adjournments or stays of proceedings.

“We’re trying to exercise our discretion as even-handedly as we can,” he said. “In our opinion, there’s a valid prohibition on the books against possession of marijuana, but in the face of that, there’s a binding court decision saying it’s nullified.”

The Ottawa-area’s head of federal prosecutions went even further when he directed stays of proceedings against all people charged with the crime in his jurisdiction. Eugene Williams said it was the right thing to do because the prohibition against the crime is effectively gone.

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Ontario Has No Marijuana Laws, Ottawa Concedes

Federal Government Fights Appeal Court Decision
That Renders Current Statutes Invalid

By Shannon Kari
CanWest News Service
June 7, 2003 – Vancouver Sun

TORONTO – The federal government has finally conceded there is no existing law against possession of marijuana in Ontario.

The surprising admission, contained in court documents filed Friday, is a complete turnaround from public comments made by government officials and Justice Minister Martin Cauchon since a court ruling released in Windsor three weeks ago.

Ontario Superior Court Justice Steven Rogin upheld a lower court decision that found there was was no existing law banning possession of marijuana, because of the government’s failure to comply with a July 2000 ruling by the Provincial Court of Appeal.

Justice department officials insisted repeatedly that there was still a criminal prohibition against possession of less than 30 grams of marijuana.

As well, federal attorneys continued to prosecute marijuana possession cases since the May 16 superior court ruling. “The existing legislation is valid legislation. It is constitutional legislation. We will keep enforcing it,” Cauchon said in Toronto last week.

Acting on their only legal advice however, police forces across Ontario announced this week that they would not lay marijuana possession charges until there was a decision from the Court of Appeal.

In documents filed as part of a legal motion asking the appeal court to suspend the Rogin decision, the Justice Department suddenly changed its interpretation of the Superior Court ruling.

The decision “is binding on lower courts in Ontario, who have exclusive jurisdiction over most marijuana possession cases,” said the justice department.

“The practical effect of Justice Rogin’s judgment in there is presently no valid prohibition against marijuana possession in Ontario.”

The federal government has introduced new legislation that would result in fines, instead of criminal sanctions, for possession of small amounts of marijuana. But these changes may not become law for several months.

As a result of the legal vacuum in Ontario, the Court of Appeal has agreed to an urgent request by the justice department, to hear arguments on June 10, to decide if the Superior Court judgment should be suspended until an appeal is heard later this summer.

“Without a suspension of Justice Rogin’s judgment, the effective prosecution of marijuana possession in Ontario is jeopardized, pending this Court’s resolution of this appeal,” argued the justice department.

The request to suspend the Superior Court decision is “procedurally unprecedented,” said Windsor lawyer Brian McAllister, who represented the 15 year-old youth acquitted of marijuana possession as a result of the ruling. McAllister explained that courts do not normally suspend acquittals because there has been an appeal of a decision.

Alternatively, the Justice Department is asking the Court of Appeal to give the federal government more time to comply with a deadline set by the court nearly three years ago.

In its July 2000 ruling, the Court of Appeal gave Parliament until July 2001 to pass new legislation with an exemption for medical marijuana users.

Instead, the federal cabinet enacted the Medical Marijuana Access Regulations. The justice department has argued unsuccessfully that the regulations were sufficient to comply with the Court of Appeal decision.

Police in Ontario have said they intend to continue seizing marijuana from people pending the resolution of the legal battle in the Court of Appeal. But McAllister stressed that police do not have that right, unless there is some other legitimate reason for an arrest.