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Judge To Decide If Ban On Possession is Valid



Source: Ottawa Citizen (CN ON)
Author: Shannon Kari, The Ottawa Citizen 
Published: Thursday, January 02, 2003
Copyright: 2003 The Ottawa Citizen
Contact: [email protected]
Website: http://www.canada.com/ottawa/ottawacitizen/

One of several cases that may force Parliament to change marijuana laws.

Toronto -- Windsor-based Justice Douglas Phillips is to issue a ruling today that could affect the prosecution of people charged with possession of marijuana across Ontario.

Judge Phillips will decide if the ban on marijuana possession is invalid as a result of the federal government's failure to comply with a higher court ruling more than two years ago.

The Windsor case is one of several court challenges that may ultimately force the government to clarify whether it intends to introduce legislation to decriminalize possession of small amounts of marijuana.

The Ontario Court judge heard arguments last month in the trial of a 16-year-old charged with possession of five grams of marijuana.

His lawyer, Brian McAllister, argued the charges should be thrown out because of a July 2000 decision by the Ontario Court of Appeal that found a section of the federal Controlled Drugs and Substances Act, was "invalid" because it violated the constitutional rights of people who used the substance for medical reasons.

The appeal court suspended its ruling for 12 months to give Parliament time to amend the act. Instead, the federal government brought in medical access regulations that govern exemptions for people to smoke or produce marijuana for medical reasons.

Mr. McAllister said he is not arguing Parliament doesn't have the right to draft a new law to prohibit marijuana possession. But the failure to do so within the 12-month period means "there is no law to prosecute my client. They didn't fill the void, they enacted medical exemptions," Mr. McAllister explained.

The federal government acknowledged the possibility of amending the act in a "Regulatory Impact Analysis Statement" that was released when the new medical access rules took effect in July 2001. But the option was rejected because the amendments "cannot be completed with the time available" and they are "more difficult to amend when necessary to adapt to new information," according to the policy statement.

Judge Phillips' ruling is not binding on other judges in Ontario. But if he finds the marijuana ban is invalid, his ruling is likely to be cited by defence lawyers across the province. Already, judges in at least two Ontario cities have suspended cases involving marijuana possession until Judge Phillips releases his decision.

As well, there is the possibility the Marijuana Medical Access Regulations may also be found to be unconstitutional in an Ontario Superior Court proceeding in Toronto where a decision is expected as early as this month.

The Justice Department also submitted a last-minute written brief that warned about the health hazards of cannabis at a Supreme Court of Canada hearing last month that was supposed to decide the constitutionality of the country's marijuana laws. The Supreme Court delayed the hearing until the spring because of the apparent policy conflict between Justice Department officials and Justice Minister Martin Cauchon.

A few days before the Supreme Court hearing, Mr. Cauchon indicated he would move to introduce legislation to decriminalize possession of small amounts of marijuana.

During the Supreme Court hearing though, a Justice Department lawyer said Mr. Cauchon was expressing "a personal view" and not government policy.

To add to the confusion, Prime Minister Jean Chrétien said during an interview two weeks ago the federal government has not decided whether to decriminalize marijuana.

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