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THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD January 8, 2003

Pot ruling exposes major
government blunder


The marijuana decriminalization debate received yet another jolt only this time it came from a totally unexpected source. Smack in the middle of the ongoing debate, which continues to divide Canadians, out bursts a judgment declaring the law against simple possession to be invalid. While the Ontario court ruling is being heralded by many, as another sign that Canada's pot laws are relaxing the true message may very well be that that the Chrétien government committed a major legal blunder.

Business as usual for the police

Before anyone thinks that they can now light up a joint without facing possible charges, they had better think twice. As far as the police are concerned, it is business as usual. Even though first-time offenders are rarely sentenced to more than a small fine the Controlled Drugs and Substances Act continues to provide for a maximum fine of $2000 and a jail sentence of up to six months for simple possession. In order to quell any doubt as to the state of the law, the federal government moved to appeal the Ontario Court ruling in a record time. More than likely it will be heard as early as next month in the Superior Court in Windsor. While the disputed judgment is not binding on any other Ontario judge much less on any judge in any other province, it nevertheless provides some powerful ammunition for all those who have been charged with simple possession since July,1991.

Impact already being felt

The impact has already been felt in Ontario where Crown prosecutors handling similar cases have begun consenting to the delaying of similar court cases until after the appeal is heard. While this is being done in large part to reduce the risk of contradictory judgments on a pure question of law, even the Superior Court decision will have no binding effect on other judges throughout Canada. As a result, it is more than likely that recent cases of simple possession in Ontario will be put on hold until the Supreme Court renders a definitive judgment. Ironically, it was just last month that the Supreme Court of Canada refused to proceed with three constitutional appeals because of the decriminalization debate.

How it all began

How could a lower court decision have such a major impact? It all began with a 16-year-old Windsor teenager who was charged with possession of a few grams of pot. Instead of copping a plea as is done in most cases, his defense attorney, Brian McAllister, claimed to have discovered a glaring gap in the law. The thrust of his defense was based on the landmark Ontario Court of Appeal ruling of July 2000 which upheld a lower court decision granting epileptic Terry Parker, 44 the right to smoke marijuana to control his sickness. Parker had been charged after the police raided his 73-plant hydroponic garden. Backed up by medical evidence, he claimed that he needed to smoke marijuana in order to alleviate the 15 to 80 seizures per week he suffered for 40 years as a result of his illness. In 1997, the Ontario Superior court agreed with Parker and ruled that the prohibition infringed on his rights to life, liberty and security of the person, guaranteed by Canada's Charter of Rights and Freedoms. When the court stayed his charges he became the first Canadian allowed to smoke and cultivate marijuana with impunity.

Landmark Ontario Court of Appeal ruling

The government appealed the ruling before the Ontario Court of Appeal only to suffer a major defeat. This time it was the highest court of the province that declared Canada's law prohibiting simple possession of marijuana to be unconstitutional on grounds that it failed to make exceptions for people who require marijuana for medicinal purposes. "I have concluded that forcing Parker to choose between his health and imprisonment violates his right to liberty and security of the person," Justice Marc Rosenberg wrote in the Ontario Court of Appeal decision. As expected, advocates for decriminalization of marijuana hailed the Appeal Court decision as a great victory for both sick people as well as for recreational smokers.

However, not everything was in vain for the federal government - the Ontario Court of Appeal granted Parliament twelve months to amend the law, failing which the law would be declared invalid. Such a reprieve is always granted by the courts whenever the striking down of a law poses a potential danger to the public.

Government had three choices

The gist of the legal error is so glaring that one can only wonder why it wasn't raised and decided upon at an earlier date. When the Ontario Appeal Court rendered its decision in July 2000 the federal government had three choices. It could appeal the decision in the hopes that the Supreme Court would reverse it; it could accept the ruling and amend the law within the one-year period so as to provide for medical exemptions, or finally it could do nothing and allow the law to be struck down once the year had expired. This latter option would have led to the legalization of marijuana much like it happened with Canada's law on abortion. When the Supreme Court struck down Canada's law on abortion in 1988 the Court implicitly encouraged the government to create a new and "improved" law only the government gave up after its bill was defeated in the Senate by a tie vote.

Instead of Parliament amending the law on marijuana within the grace period, the Chrétien cabinet devised a fourth option by simply adopting a regulation. The lawyer invoked the difference between a law and regulation and last week the judge of the Ontario Court agreed that a cabinet regulation did not meet the required standard. As a result he declared the law against possession invalid in the province and threw out the case against the Windsor teenager.

Lurking obstacle to immediate decriminalization While nothing at this juncture prevents Ottawa from decriminalizing simple possession of cannabis, despite the appeal, and replacing it with a long overdue ticketing offence, there is one major obstacle lurking in the background which has nothing to do with politics or the state of the law. Canada's largest trading partner happens to be unequivocally opposed to decriminalization. In order to keep our lawmakers in line, the United States could very easily impose, under the guise of improved "Homeland security" measures, more stringent security checks at all of their border level crossings. In doing so, the U.S. government could ultimately strangle the flow of our exports and we could never prove the link.