MARIJUANA LAWS FACE ANOTHER COURT BATTLE

Top Court's Ruling A Threat To Restored Possession Rules

TORONTO -- The recently restored prohibition against marijuana possession
could be thrown out again in a matter of weeks, depending on the outcome of
a widely anticipated case heard by the Supreme Court of Canada last spring.

The court must rule by Jan. 31 on an appeal by two British Columbia men and
an Ontario resident, who argued that potential criminal penalties for
possession of small amounts of marijuana are unconstitutional. The three
litigants said the ban violates Charter rights to life, liberty and
security of the person by criminalizing activity that does not cause harm.

"There is no free-standing right to get stoned," responded the federal
government in documents filed with the court before it heard oral arguments.

The top court decision follows a series of rulings that resulted in a
nearly five-month period during which marijuana possession was legal in
Ontario and forced the government to amend medical marijuana policy.

However, advocates of less restrictive marijuana laws in Canada say an
easing of the rules is unlikely now that Paul Martin is prime minister.
They also criticize the Justice Department for its increasingly hardline
attitude in marijuana prosecutions and Health Canada for failing to comply
with court rulings in medical marijuana cases.

"It is overly optimistic to think that the Martin government is going to
re-introduce Bill C-38," said Paul Burstein, a Toronto lawyer who
represented one of the appellants in the Supreme Court case.

Bill C-38 would have provided for fines instead of criminal charges for
people possessing small amounts of marijuana. The bill died after
Parliament prorogued last month.

The Justice Department is also in the process of staying nearly 4,000
marijuana possession charges laid between August 2001 and October 2003, to
comply with a recent Ontario Court of Appeal ruling.

But defence lawyers in Ontario and B.C. say the federal government is
increasingly seeking jail sentences for first offenders who are low level
participants in grow operations.

The Justice Department has also appealed an Ontario court decision that
found it was an infringement of privacy rights for police to use infrared
aerial cameras to try to detect excess heat in homes. As well, Justice
Department spokesman Pat-rick Charette, said "it's back to the old rules"
in the prosecution of marijuana possession offences.

The Ontario appeal court ruled in October there had been no valid ban
against marijuana possession for two years because the federal government
failed to comply with an earlier ruling to introduce legislation with an
exemption for authorized medical users

The Court of Appeal decision also upheld a lower court ruling that Health
Canada's medical marijuana rules were unconstitutional because they forced
authorized users to rely on the "black market."

The appeal court amended the regulations to allow someone with a
designated-person production licence (DPL) "to be compensated, to grow for
more than one authority-to-possess holder, and to combine their growing
with more than two other DPL holders."

Ironically, Health Canada may already be in violation of the Court of
Appeal decision.

On Dec. 8, it announced people with DPL licences may grow for only one
client and "not more than three holders of licences to produce can
cultivate together."