JUDGE TO DECIDE IF BAN ON POSSESSION IS VALID

One Of Several Cases That May Force Parliament To Change Marijuana Laws

TORONTO -- Windsor-based Justice Douglas Phillips is to issue a ruling
today that could affect the prosecution of people charged with possession
of marijuana across Ontario.

Judge Phillips will decide if the ban on marijuana possession is invalid as
a result of the federal government's failure to comply with a higher court
ruling more than two years ago.

The Windsor case is one of several court challenges that may ultimately
force the government to clarify whether it intends to introduce legislation
to decriminalize possession of small amounts of marijuana.

The Ontario Court judge heard arguments last month in the trial of a
16-year-old charged with possession of five grams of marijuana.

His lawyer, Brian McAllister, argued the charges should be thrown out
because of a July 2000 decision by the Ontario Court of Appeal that found a
section of the federal Controlled Drugs and Substances Act, was "invalid"
because it violated the constitutional rights of people who used the
substance for medical reasons.

The appeal court suspended its ruling for 12 months to give Parliament time
to amend the act. Instead, the federal government brought in medical access
regulations that govern exemptions for people to smoke or produce marijuana
for medical reasons.

Mr. McAllister said he is not arguing Parliament doesn't have the right to
draft a new law to prohibit marijuana possession. But the failure to do so
within the 12-month period means "there is no law to prosecute my client.
They didn't fill the void, they enacted medical exemptions," Mr. McAllister
explained.

The federal government acknowledged the possibility of amending the act in
a "Regulatory Impact Analysis Statement" that was released when the new
medical access rules took effect in July 2001. But the option was rejected
because the amendments "cannot be completed with the time available" and
they are "more difficult to amend when necessary to adapt to new
information," according to the policy statement.

Judge Phillips' ruling is not binding on other judges in Ontario. But if he
finds the marijuana ban is invalid, his ruling is likely to be cited by
defence lawyers across the province. Already, judges in at least two
Ontario cities have suspended cases involving marijuana possession until
Judge Phillips releases his decision.

As well, there is the possibility the Marijuana Medical Access Regulations
may also be found to be unconstitutional in an Ontario Superior Court
proceeding in Toronto where a decision is expected as early as this month.

The Justice Department also submitted a last-minute written brief that
warned about the health hazards of cannabis at a Supreme Court of Canada
hearing last month that was supposed to decide the constitutionality of the
country's marijuana laws. The Supreme Court delayed the hearing until the
spring because of the apparent policy conflict between Justice Department
officials and Justice Minister Martin Cauchon.

A few days before the Supreme Court hearing, Mr. Cauchon indicated he would
move to introduce legislation to decriminalize possession of small amounts
of marijuana.

During the Supreme Court hearing though, a Justice Department lawyer said
Mr. Cauchon was expressing "a personal view" and not government policy.

To add to the confusion, Prime Minister Jean Chretien said during an
interview two weeks ago the federal government has not decided whether to
decriminalize marijuana.