MARIJUANA CASES CAN BE PROSECUTED

TORONTO -- The federal Justice Department insists it can prosecute
outstanding marijuana possession cases in Ontario, despite conceding there
is no prohibition against holding small amounts of the drug.

A senior Justice official also blames the confusion on judges in the province.

"There has been (a) considerable amount of inconsistency in terms of the
approach the judges have taken," James Leising, director of prosecutions
(Ontario Region) at Justice, said in court documents filed with an appeal
of a recent Ontario Superior Court decision.

Justice Steven Rogin ruled last month that there is no law against
marijuana possession because the federal government failed to comply with a
July 2001 deadline set by the Ontario Court of Appeal for Parliament to
pass new legislation.

The federal government is appealing that decision, which is binding on
provincial courts in Ontario. Earlier this month, an Ontario Court of
Appeal judge ruled that she did not have jurisdiction to suspend the
Superior Court ruling before the appeal is heard in late July.

As a result, police across Ontario have said that they will not lay new
marijuana possession charges until the issue is resolved by the Court of
Appeal.

A 1986 Supreme Court of Canada decision, however, permits the Crown to
prosecute marijuana possession cases that are still in the system, Mr.
Leising testified last week, during a cross-examination connected to the
Justice Department's appeal.

Federal Crown attorneys are telling courts that this authority comes from
the "de facto" doctrine, which upholds previous convictions under laws that
have not been declared invalid.

Paul Burstein, a Toronto defence lawyer who has acted in a number of cases
involving the country's marijuana laws, said the Crown is presenting judges
with only a short excerpt from the Supreme Court decision. He noted that
the court also made it clear that the de facto doctrine does not permit
prosecutions of laws that have been declared invalid.

"This is consistent with the whole approach to marijuana by the Department
of Justice. It is misguided and bordering on being dishonest," said Mr.
Burstein.

Mr. Leising admitted in his testimony that the legal argument "is not
working very well," in Ontario courts. "Some (judges) accept it and some
don't," he said.

Toronto police chief Julian Fantino recently criticized the Justice
Department for a lack of clarity about its position on marijuana possession.

He suggested it is responsible for some of the confusion, in part, because
the federal government has introduced legislation to replace criminal
sanctions with fines.

"I don't accept their view in that regard," Mr. Leising testified. He
denied that his department has a duty to advise police forces in Ontario on
this issue.

"We don't advise police forces in regard to how to exercise their
discretion. We never have and we haven't given advice around this issue,"
said Mr. Leising.

It was advice that Mr. Leising provided to the RCMP, however, that was the
focus of a high-profile 1999 Supreme Court ruling about the legality of
police engaging in a "reverse sting" operation by selling a large quantity
of hashish to suspected drug traffickers.

The court ultimately decided that police were required to disclose to the
defence, some of the legal advice that had been provided by Mr. Leising.

The senior Crown attorney also recently testified that he did not know how
many marijuana possession cases are currently outstanding in Ontario.

A Justice Department colleague told the Court of Appeal last week that
there are "thousands of these charges in the system." Mr. Leising would
agree only that the number is "more than many tens."