JUDGE ALLOWS MARIJUANA RULING TO STAND

Federal government loses bid to suspend decision that legalized drug

TORONTO -- An Ontario Court of Appeal judge declined to suspend a lower
court decision that found there is no law against marijuana possession in
the province, despite the federal Justice Department's claim that the ruling
has led to chaos and uncertainty.

Yesterday, Justice Louise Charron said that the Justice Department was
seeking an "unprecedented" order and she had no jurisdiction to suspend an
acquittal imposed by a lower court.

As a result of the Superior Court decision, possession of small amounts of
marijuana in Ontario is legal and will remain so, until the federal
government passes new legislation or the Court of Appeal ultimately
overturns the lower court ruling. The appeal of that ruling has been
scheduled for late July.

However, Justice Department lawyer Peter DeFreitas argued that it is in the
"public interest" to immediately suspend Justice Steven Rogin's decision,
which upheld the lower court acquittal of a Windsor-area teenager on
marijuana possession charges.

"It is chaotic," said Mr. DeFreitas, in describing the state of marijuana
possession prosecutions since the ruling was issued on May 16. "We have
thousands of these charges in the system," he told Judge Charron. "There is
complete uncertainty."

If the federal government is successful in its appeal, Ontario's highest
court can order a new trial for the defendant in the Windsor case and find
that there is a law that bans possession of marijuana.

But Judge Charron said it would be contrary to the established legal
principle of stare decisis, where courts are bound by precedent, to suspend
the Windsor ruling, pending the appeal.

Mr. DeFreitas suggested the acquittal of the teen could stand, but the
appeal court should stay Judge Rogin's finding that the offence of marijuana
possession in Ontario is "not known to law."

The Superior Court judge had ruled that there is no law, because the federal
government failed to comply with a July 2000 Ontario Court of Appeal
decision that gave Parliament one year to enact new marijuana possession
legislation. The Windsor ruling is binding on all provincial courts in
Ontario, where virtually all marijuana possession cases are heard.

"Where is my jurisdiction to say those reasons are wrong and tell lower
courts: Do not follow them for a while," said Judge Charron, in rejecting
the Justice Department submission.

Police forces across Ontario, including in Ottawa, said last week that they
would continue to seize marijuana, but not lay new possession charges until
the issue is resolved by the provincial Court of Appeal.

Lawyer Brian McAllister, who represents the Windsor teen, said yesterday
that police do not have the right to seize small amounts of marijuana from
people who are not engaged in any suspected criminal conduct.

The federal government is facing another marijuana-related deadline, as
Health Canada has until July 9 to comply with a separate Ontario Superior
Court judgment to provide a legal source of cannabis to people with medical
exemptions.