cannabisnews.com: Messy Marijuana Law Tries Courts, Police





Messy Marijuana Law Tries Courts, Police
Posted by CN Staff on June 29, 2003 at 07:55:34 PT
By Jake Rupert, The Ottawa Citizen 
Source: 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. 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.Source: Ottawa Citizen (CN ON)Author: Jake Rupert, The Ottawa CitizenPublished: Sunday, June 29, 2003Copyright: 2003 The Ottawa CitizenContact: letters thecitizen.southam.caWebsite: http://www.canada.com/ottawa/ottawacitizen/ Related Articles & Web Site:Cannabis News Canadian Linkshttp://freedomtoexhale.com/can.htmAttorney Stays Charges in Cases of Marijuana http://cannabisnews.com/news/thread16658.shtmlJudge Allows Marijuana Ruling To Standhttp://cannabisnews.com/news/thread16592.shtmlNo Laws Ban Possession of Marijuanahttp://cannabisnews.com/news/thread16321.shtml 
Home Comment Email Register Recent Comments Help




Comment #10 posted by unknown pleasures on June 30, 2003 at 22:45:42 PT
so... is it anarchy?
So it seems that people can smoke pot openly in Ontario. I'm in Alberta, but over here we have yet to see the dramatic TV footage of the chaos that must be going on there. Why, there must raping and pillaging on a biblical scale, what with all them doped up hippies running loose and no laws to keep locked up. Those of you living across the border must surely to see the smoke from all the riots 
by now, right? No effectively no laws against possesion and... is everybody O.D.ing in the street?... I think the buses are stil runnning... society has not collapsed... hmmmm. Hey, who knows, maybe prohibition laws are NOT an indispensible safety rope of civillization that keep us from falling into a cesspool of drug-fuelled madness and debauchery... 
[ Post Comment ]


Comment #9 posted by FoM on June 30, 2003 at 18:21:30 PT
SoberStoner
It's going to be hard to recriminlize Cannabis in Ontario. Think about if a child begs and begs and begs for an ice cream cone and finally you let him have one. It wouldn't be taken very well to say that's it. It's over. No more ice cream cones.  You might see a temper tantrum or two. Same thing with trying to take this liberty back.I think Canada is in the home stretch!
[ Post Comment ]


Comment #8 posted by SoberStoner on June 30, 2003 at 18:04:22 PT
YESSSSSSSSSSS!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
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.GO MARK!! This is the chance we've been waiting for...at least another month of legal cannabis. Whatever will they do if the judges delay AGAIN? I think we all know Marc will do his damnedest to make sure this summer gets all the positive airtime it can. Will they try to pass the (now EVERYONE knows) RE-legalization bill? If so, it could turn out to be the fair and open discussion we've always wanted, or even better, they may just sit on it and wait until the judges release the decision..and the judges keep delaying..Once the sky doesn't fall on everyone's head, how will they EVER re-pass an already unconstitutional law? Please god let this turn out as good as we're all hoping for. I can feel a change in the air..I just hope this is over quickly, so we can ALL live free again.SS
[ Post Comment ]


Comment #7 posted by ekim on June 30, 2003 at 13:56:08 PT
 westglad to here someone who has heard of the Zoo
if it has been a while since you have been to WMU they have built a huge research park out neat 131 highway. the largest drug maker Pfizer has laied off many scienist and the city is trying to keep them here in Kal. they are doing everything they can to start up projects. i get so made because Western has one of the best papermaken depts. in all of MI. and never a mention of Hemp. we have lost thousands of papermaken jobs and the city never has done what they are doen now with the scienist they never said well why not research Hemp for paper. so i have been tryen to get the city to look at having the scienist study hemp oil for good food and healthy diets, and how it might effect heart attacts, with EFA and omega 3 and omega 6 compaired to transfatty fats. and rate hope you enjoyed life in the Zoo and best to you.
[ Post Comment ]


Comment #6 posted by westnyc on June 30, 2003 at 07:32:28 PT
Kalamazoo
Kalamazoo? I went to Western. Silly post I know; but, it brought-back alot of happy memories. :-)
[ Post Comment ]


Comment #5 posted by Kegan on June 29, 2003 at 16:34:13 PT
I sent this to the citizen
To the editor,The federal Government implemented these prohibition laws eighty years ago, based on lies and racism. The laws are being struck down now because the prohibition of the substance is unconstitutional. Just how does the government go about implementing a new prohibition law that will directly violate the constitution? Do they think we will just let them violate our constitution and basic rights? Do they think we won't notice? Face it, Canada. Pot is here to stay. 
We're here, we're high, get used to it.Russell Barth
Medical Marijuana User
[ Post Comment ]


Comment #4 posted by ekim on June 29, 2003 at 13:23:42 PT
also see this site for all the Countrys that grow
Hemp Industries Association
http://www.thehia.org/
click on info for Hemp----it is shocking how many are producing paper -- China is the #1 producer and exporter of paper from hemp. where is the outrage from all of the paperworkers in this country that have lost good jobs, while the rainforest is being cut down as we speak. i know -- here in MI just in Kalamazoo area alone many thousands of paper maken jobs have left town. 
[ Post Comment ]


Comment #3 posted by ekim on June 29, 2003 at 13:15:31 PT
Virgil look at this site and see info on Oil 
Hemp Harvest Celebration 
September 27th 
Hempola Valley Farms - Barrie, Ontario
(800) 240-9215 
Wagon rides, guided interpretive trail through the hemp fields, musical concerts, arts and crafts, demonstrations and seminars, hemp straw home, hemp food village. http://www.hempola.com
[ Post Comment ]


Comment #2 posted by afterburner on June 29, 2003 at 12:41:35 PT:
Unlikely Support
UK: Connie, 70, Campaigns For Legal Recreational Drugs http://www.mapinc.org/newscc/v03/n976/a04.html?397 29 Jun 2003 
The Observer ego transcendence follows ego destruction, catch the wave.
[ Post Comment ]


Comment #1 posted by Virgil on June 29, 2003 at 08:39:37 PT
Maybe advertising will help
 "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.Let's not hope for the best, let's work on it. Maybe advertising will help. Marc Emery stated in his video from the Toronto Police Department that the period from May 16th until November when the legislature can pass more stupid legislation at the earliest will be opportunity to show that regulation is the only way.A person can do a Google search for "hemp oil" and the exact phrase "heart disease" and not come up with too much. Sure there is the general claim that hemp oil helps with the  1 killer in America, but just try and find a study. Now if you want to sell a product that can help fight heart disease and your competition is Lipator that sells for $3.13 a 20mg pill at drugstore.com in bunches of 30, a real study might help. But it also begs the question of what eating buds and seeds of the real stuff will do in the diet. The results should be immediate. Have pot-tv pick ten people with a cholesteral problem and feed them a prescribed diet and show us the results on a weekly basis. Maybe even get a doctor to really do it right. Connect the dots for us cannot-connect-the-dot Americans. Now is the time. As for a study of hemp oil in the diet for helping heart disease and cholesteral, two years ago would have really been a little late.The place to be on July 4th is Toronto or even Anywhere, Canada. Canada is the Mecca of freedom. Go to Canada. There will be no mixed message chant from the prohibitionists on that.
[ Post Comment ]


Post Comment