On October 7, the Ontario Court of Appeal ended Canada’s “Summer of Legalization” with a legal decision that once again made pot possession into a recognized criminal offense across the province.
“I bet that as we speak, some kid is being busted on the streets of Toronto,” said renowned cannabis lawyer Alan Young, in an interview immediately after the decision. “For about a week or two, it will be very dangerous to smoke pot in Ontario. Reassertion of power is always very overbearing.”
Originally, Ontario courts had ruled that because the federal government had failed in their obligation to change the law to allow for access to pot for medical purposes, Canada’s whole cannabis law was deemed invalid (CC#44, Marijuana legal in Ontario).
This led to a summer of legal possession in Ontario, which spread to other provinces as other courts bowed to the Ontario decisions. Cannabis Culture publisher Marc Emery even went on a cross-country tour, toking up at police stations across Canada (CC#46, Marc Emery’s Summer of Legalization tour). Emery was arrested and charged with possession six times, but it seems unlikely that he will face any convictions.
In their October decision, the Ontario Court of Appeal agreed that the feds had failed to make med-pot accessible, but restored pot prohibition with a questionable do-it-yourself fix that took lawyers and activists by surprise. Instead of telling the government to clean up its own mess and change the unconstitutional med-pot regulations, the court “repaired” them itself. By thus tweaking the regulations, the court ruled that it also restored the prohibition on pot possession.
However, the court conceded that a pot possession amnesty had existed between July 31, 2001, the original deadline the government had been given to fix the law, and October 7, 2003, the day the court fixed the regulations for the government. This means that any pot possession convictions during those two years are invalid.
Activists charged that the court had usurped the powers of Parliament by rewriting a regulation, a power sacrosanct to the government’s cabinet. Young’s accomplice in pot justice, lawyer Paul Burstein, will attempt to appeal the decision to the Supreme Court of Canada, using precisely this line of argumentation.
Tweaking the regulations
In order to fix the Medical Marijuana Access Regulations (MMAR) and make them constitutional, the Ontario Court of Appeal ordered changes that should make it a little easier for Canadian med-pot users to get their medicine.
Previously, a licensed med-pot user could contract with only one grower, that grower could grow only for that one patient, and the grower couldn’t charge for their services. The court ordered the regulations changed so that a licensed grower can grow for any number of licensed med-pot users, and allowed growers to be paid for their efforts.
In an interview with Cannabis Culture, leading pot lawyer John Conroy was skeptical that Canada’s thriving network of “compassion clubs” would be approved for licenses under the new scheme.
“There is still nothing that authorizes licenses to be given to anything but individuals,” explained Conroy. “So societies, profit or nonprofit, are not covered. You might get a bunch of growers together to grow for the club, but only if the club caters exclusively to licensed patients, and most don’t.”
The Ontario Court of Appeal 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.
However, the court decision didn’t address one pressing concern: sections of the MMAR that could imperil doctor’s licenses, leading colleges of physicians across Canada to advise against signing forms for med-pot patients.
Another decision rendered on the same day by the Ontario Court of Appeal was also unfavorable to the pot culture. The accusation that marijuana laws were genocidal, brought by John Turmel and Terry Parker, was discarded with a degrading, short ruling. Turmel and Parker plan to appeal the decision.
Meanwhile, Canada’s Supreme Court is mulling another comprehensive constitutional challenge to recreational pot laws, in a case brought by pot activists David Malmo Levine, Chris Clay and Randy Caine (CC#44, Canada’s Supreme Court hears pot challenge).
A decision is expected any day, and would overrule all previous
Canadian court decisions on cannabis.
The chaos and uncertainty around Canada’s pot laws is profound enough to stir metaphysical angst. If you are charged today, will the laws you are charged under at some time in the future be deemed not to exist in the present? Or, if you were charged during the amnesty period and are applying to have your charges dropped, could those same charges at some point in the future be deemed to have truly existed?
These questions are being asked in courtrooms across Canada.
In BC at least, judges are still aggravated by cannabis’ current confused legal status.
A ruling by BC Judge Buller Bennet, handed down on October 6, the day before the pot prohibition was reinstated, asked 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 marihuana may be legal in some provinces and not in others; and when Parliament does not amend or reenact invalid legislation?” asked Judge Bennet. “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,” concluded the Judge, “I would still find an abuse of process in this case.”
Three days after the Ontario Court’s ruling, another BC Provincial Court Judge called Canada’s pot laws a “joke,” and gave the ganja grower in the case a one-year conditional sentence.