STATUS OF GRASS IS LEFT TO THE COURTS

The Government Can't Decide About Marijuana, So Judges Are Once Again
Finding Solutions

Once again, the courts have come to the rescue of a government that can't
seem to make up its mind. As they did in legalizing gay marriage, judges
have made it possible for Canadians who need medical marijuana to get it,
and at the same time have reinstated simple possession of pot as a crime in
Ontario.

The government is asking Parliament to set fines for those caught with less
than 15 grams of pot instead of making them liable to criminal prosecution.
But the legislation has been a long time coming, and it's not certain that
it will be passed into law before the retirement of Prime Minister Jean
Chretien -- who has said he's looking forward to a puff and paying the $150
fine himself.

The government's tentative steps to make pot available to a few hundred
Canadians whom doctors certify need the drug for medical reasons, failed
miserably. The government decided it didn't want to get into merchandising
marijuana, so there was no way for those eligible to get it without
breaking the law.

The Ontario Court of Appeal declared in July 2001 that because there was no
constitutionally acceptable medical exemption from the law making simple
possession a crime, possession itself -- of less than 30 grams -- was no
longer a crime in Ontario. The court, however, gave the government a year
to come up with a medically based exception that would stand up under the
charter before the law lapsed.

The government came up with new regulations, but a lower court in that
province found that they, too, were deficient, because they forced
qualified users either to grow their own pot or buy it on the black market.
This decision meant that, once again, as of July 9, possession of marijuana
was no longer a crime in Ontario at least, and could be found legal in
other parts of Canada by other courts.

The Ontario appeal court this week agreed that the new regulations were
deficient constitutionally. But instead of throwing them out and confirming
the legality of possession, it removed the conditions that made them
unconstitutional -- those that prevented growers from being paid to produce
medical marijuana, from producing pot for more than one qualified patient
and from pooling resources with other licensed producers, and requiring two
doctors to validate the patient's need for the drug.

The court thereby devised what it called a constitutionally valid medical
exemption to marijuana possession -- something the government had been
unable to come up with. Consequently, it said, the law against possession
is "immediately constitutionally valid and of full force and effect . . .
removing any uncertainty concerning the validity of the prohibition."

All this, of course, would have been unnecessary if the government had not
been so hesitant in bringing in marijuana reform which it has been
promising for years. Instead of making jokes about it, Chretien should
press ahead with decriminalization -- as in other matters, we can't be sure
what his successor, Paul Martin, plans to do.