MESSY MARIJUANA LAW TRIES COURTS, POLICE

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.