ONT. JUDGE RULES NOT A CRIME TO CARRY POT

Throws Out Case Against Teen; May Force Ottawa To Act

WINDSOR (CP)- The hazy state of Canada's marijuana laws became even murkier
Thursday when a 16-year-old boy walked out of court after an Ontario judge
said there's no law against him having a small amount of pot in his possession.

Ontario Court Justice Douglas Phillips ruled that a federal law prohibiting
the possession of 30 grams or less of marijuana is invalid in Ontario. In
doing so, he opened the floodgates for other judges to reach the same
conclusion and increased pressure on Ottawa to make its position clear.

"My interpretation of the law -- and (it's) been accepted by the judge --
is there's no law in Ontario prohibiting possession of marijuana," said
lawyer Brian McAllister.

He hastened to point out that the ruling affects the boy, who was on
probation when he was arrested last April for possessing marijuana.

"(But) from what I understand, there's a number of other judges that have
been awaiting this decision ... so it's potentially persuasive on those
courts."

The judge accepted McAllister's argument that Ottawa needed to pass a new
law prohibiting marijuana after the current one was struck down by the
Ontario Court of Appeal two years ago.

The appeal court ruled in favour of Toronto epileptic Terry Parker, saying
the law violated the rights of sick people who use marijuana for medical
reasons. It gave the federal government a year to revamp the law before the
existing law would become invalid in Ontario.

The government responded with the Medical Marijuana Access Regulations,
subject of a separate constitutional challenge by pot users who say they
don't meet the needs of the seriously ill.

Phillips found that the regulations didn't satisfy the appeal court's
ruling because they weren't debated and passed by Parliament.

"This is simply not the sort of matter that Parliament can legitimately
delegate to the federal cabinet, a Crown minister or administrative agency.

"Regulations crafted to provide the solution (even were these fashioned to
create sufficient standards governing exemptions) cannot be found to remedy
the defects determined by the Parker dicta."

McAllister said outside court that the ruling may compel federal
politicians "to finally act on their longstanding promises to address this
issue."

Jim Leising, a spokesman for the federal Justice Department, said the
ruling will be studied and a decision on whether to appeal will likely be
made within 10 days.

Because the ruling involves a minor, it's especially important to "address
the judgment fairly quickly," said Leising.

In the meantime, Leising warned that the ruling doesn't give Canadians the
freedom to use marijuana without facing possible charges. Currently,
conviction of possessing 30 grams or less of pot can carry a fine or up to
six months in jail.

Joseph Neuberger, one of several lawyers involved with the Toronto-based
challenge, said Thursday's decision could be the beginning of the end of
the laws that make simple possession illegal in Canada.

"Because of the Parker decision, the government had to put in place a
regime that allowed proper access for those who needed it for medical
purposes," Neuberger said.

"The argument is the government never complied with that order ... that for
simple possession, there really was no law."

In the case of the Windsor teen, federal prosecutor Ed Posliff argued that
it was a crime to possess marijuana if it wasn't authorized for use for
medical reasons.

McAllister argued, however, that the appeal court ruling made the entire
law invalid because the federal law wasn't changed properly.

"Parliament didn't fix the problem in the right way," McAllister said.
"They did it by way of regulations and the Court of Appeal (was) required
to address the issues with some legislation."

While Phillips's decision is not binding on other judges, lawyers across
the province will be rushing into court to make the same argument,
predicted Aaron Harnett, the Toronto lawyer who represented Parker.

"How significant it will be will depend on how ready other judges are to
adopt its reasons. In places where the tone already is 'Why are we doing
this? Why are we wasting court space harassing people who get caught with a
half a dozen joints who otherwise aren't a problem to society?' In those
places this could well fuel legal momentum. Secondly, it will help fuel the
political momentum to do what people seemed to be inclined to do, which is
decriminalize up to an ounce," he said.

Justice Minister Martin Cauchon has said he intends to decriminalize
possession of less than 30 grams of pot.

Phillips's ruling "might spur the minister of justice to introduce
legislation more quickly. This might force the government to show its
hand," said Ottawa lawyer Eugene Oscapella, an expert on Canadian drug
policy who says possessing small amounts of marijuana shouldn't be a crime.

Leaving the issue to the courts allows the government to escape political
pressure from the American administration, which is taking a hard line on
drugs, Oscapella said. "This may be the way the government is happy to see
things go."

THE DEBATE

- - Dec. 9 -- Justice Minister Martin Cauchon says he'll press ahead with
legislation so people caught with small amounts won't face a criminal record.

- - Dec. 12 -- A parliamentary committee says current penalties for
possession are too stiff. It recommends fines.

- - Dec. 18 -- Prime Minister Jean Chretien says no final decision has been made.