NEW DRUG BILL AT ODDS WITH COURT CASE

Government Wants Criminal Penalties Restored For Possession Of Marijuana As
It Moves To Decriminalize Offence

TORONTO - The federal government is asking the Ontario Court of Appeal to
restore criminal possession penalties for marijuana possession at the same
time it is introducing legislation to decriminalize the offence. A notice
to seek leave to appeal a recent Superior Court decision in Windsor was
filed in the Court of Appeal on Monday. The federal government said Justice
Steven Rogin "erred in law" when he ruled that the existing prohibition
against marijuana possession in Section 4 of the Controlled Drugs and
Substances Act is invalid.

The act provides for maximum sentences of up to six months in jail for
people convicted of possession of less than 30 grams of marijuana.

The Ontario Court of Appeal ruled in July 2000 that the section was
unconstitutional. It suspended its ruling for one year to give Parliament
time to pass new legislation that covered all aspects of marijuana
possession, including people with medical exemptions.

Instead, the federal cabinet enacted medical marijuana regulations in July
2001, which were declared unconstitutional by an Ontario Superior Court
judge earlier this year, because people with medical exemptions have no
legal supply of marijuana.

"Since Section 4 of the CDSA has not been re-enacted as it relates to
marijuana, there is no penalty for simple possession of marijuana," said
Justice Rogin in a decision that upheld a lower court ruling. "Simple
possession of marijuana in Ontario is like simple possession of ice cream.
It is not illegal," as a result of the Superior Court decision, explained
criminal lawyer Peter Zaduk.

"We take the position the law is still valid," said Eugene Williams, the
director of prosecutions in the Ottawa-Gatineau region. Mr. Williams said
federal Crown attorneys have been instructed to ask for adjournments of
marijuana possession proceedings, pending the appeal.

"I still don't see how he can say it is still a law," Mr. Zaduk responded.
He pointed to a 1988 decision by Ontario Superior Court Justice David Watt
that made it clear that appellate rulings by Superior Courts are binding on
lower courts."That is the manner in which the doctrine of precedent is
applied within the judicial hierarchy of a province." "It is indeed the
very bedrock upon which the doctrine is constituted," said Justice Watt, in
a decision that has not been over-ruled.

"We continue to go about business as usual," said Chief Thomas Kaye, the
president of the Ontario Association of Chiefs of Police. Chief Kaye, who
is also the Chief of the Owen Sound police force, said his officers would
not stop laying charges for marijuana possession unless ordered to do so by
the Justice Department.

"Police cannot remain willingfully blind to the court ruling," said
criminal lawyer Brian McAllister, who represented the defendant in the
Windsor proceeding.

Mr. McAllister said the Department of Justice and police are "thumbing
their nose" at the court ruling and could be open to civil lawsuits if
marijuana prosecutions continue while there is no new legislation in place.