POT CHARGE TOSSED; LAW RULED INVALID

Ruling May Spur Decision About Decriminalization

A Windsor judge's ruling that a federal law prohibiting marijuana
possession is invalid in Ontario has opened the floodgates for other judges
to reach the same conclusion and increased pressure on the government to
make its position finally clear.

Ontario Court Justice Douglas Phillips threw out a marijuana possession
charge against a 16-year-old Kingsville youth on a legal technicality that
is expected to become the basis of numerous other similar applications.

The judge accepted lawyer Brian McAllister's argument that the government
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 epileptic Terry Parker, of Toronto,
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,
which are the subject of a separate constitutional challenge by a group of
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," Phillips said. "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 elected government
officials "to finally act on their longstanding promises to address this
issue."

That is one of the options being considered, said Jim Leising, director of
federal prosecution services in Ontario.

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 entirely on how ready other judges
are to adopt its reasons. In places were 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 will remove the prohibition on
possessing small amounts marijuana from the Criminal Code, while Prime
Minister Jean Chretien has said he's not sure.

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.

McAllister cautioned that the door has not been opened for Ontarians to
smoke pot with impunity.

"I doubt the police will stop charging people for the moment, so that
anybody is still subject to being arrested for marijuana possession. Also,
it's still an offence to traffic marijuana or to grow it," he said.

The boy's mother said she didn't understand the legal arguments, but was
happy with the results.

The youth, who can't be identified because of his age, still faces a charge
of breaching a court order requiring him to attend school.

Next step?

1) What happens to pending charges? The Crown will continue to prosecute
and argue the law should stand.

2) How will the Crown proceed given the ruling? Jim Leising, of the
Department of Justice, said either an appeal will be pursued or the
government must pass a new law re-enacting the prohibition on possessing
marijuana.

A decision is expected to be made in a week to 10 days, though the
government has 30 days to file an appeal with Ontario's Superior Court.