Canadian pot laws still unconstitutional?

The October 7 Ontario decision to raise prohibition from the grave is digging up once dead potlaws in PEI, Nova Scotia and British Columbia – all of which followed the earlier Ontario decision to invalidate the law earlier this year. Yet, confusingly, the validity of the law is still in question.
On October 23, a PEI Supreme Court judge ruled that prohibition was again in full effect in the province. The case was an appeal of an earlier one that found it unfair to criminalize Prince Edward Islanders for possession when Ontarians were puffing joints openly in their homes, in cafe’s and on the streets.

A comparable situation exists in Nova Scotia, where pot possession laws were similarly put out of their misery earlier this year.

Because the Nova Scotia decision was based on the PEI one, the law will likely be re-enacted on November 25, the date of appeal for the case that overturned the potlaw in that province.

In BC, the judgment that ended pot possession was a little different than in PEI or Nova Scotia. BC Provincial Court Judge Chen didn’t say it was unfair to prosecute in BC and not in Ontario; instead, he agreed with the substance of the Ontario Court’s prohibition-ending ruling: namely, that the government had missed a court-ordered deadline to fix pot laws to allow for constitutionally approved medical use.

The Ontario Court of Appeal dismissed BC Judge Chen’s line of reasoning but BC Courts are so far reluctant to follow in Ontario’s footsteps. The key may be in Judge M Buller Bennet’s October 6 ruling, in which she ponders how Canadians can be charged under a law that always seems to be changing.

“How can an informed citizen know the state of the law when judges cannot agree amongst themselves; when it appears that possession of marijuana may be legal in some provinces and not in others; and when Parliament does not amend or reenact invalid legislation?” she asked. “The answer is self-evident: he or she cannot. Therefore, even if I had found that the law was valid in this province and it was not an abuse of process to prosecute under it, I would still find an abuse of process in this case.”

Similarly, three days after the Ontario court’s ruling, another BC Provincial Court Judge called Canada’s pot laws a “joke” with reference to the Prime Minister’s guffaw that he might some day try the weed. The grower in the case received a one-year conditional sentence.

The widening gap between the direction of the courts and government on the marijuana issue is creating such a fragmented application of the law that it’s hard to say whether marijuana laws exist at all, and if they do, to what extent and where.

The Federal government, for example, refuses to enact recent Ontario Court of Appeal changes to Canada’s medpot regs while it mulls an appeal. The changes were intended to fix constitutional problems with marijuana possession laws, so it is arguable that marijuana possession laws are still unconstitutional.

In the meantime, Canadians have no way of knowing which way the smoke will blow.