COURT RULING COULD ALTER THE RULES

A decision waiting to be handed down in Ontario's highest court could
give amnesty to all those convicted of marijuana-related offences.

If an Ontario superior Court judge upholds earlier findings in an
ongoing challenge to the medical marijuana laws - finding no legal
prohibition against possession of cannabis because the medical
marijuana scheme was deemed unconstitutional - cannabis could be an
endangered item in the Controlled Drugs and Substances Act.

One of the co-owners of the Holy Smoke Culture Shop, who faces
sentencing December 23 on trafficking one ounce of marijuana, said the
decision could be groundbreaking.

If the pot possession laws were deemed unconstitutional for a medical
user, said Alan Middlemiss, then they would also be unconstitutional
for anyone else.

Two days before Christmas, Middlemiss and Kelsey Stratas will likely
be sentenced to up to one year in jail for trafficking marijuana, a
conviction from September 26. The decision from the Ontario Supreme
Court could be delivered any day.

"Just to be potentially going to jail right now at a time when it
looks like there could be some major renovations of the pot laws, it's
tough," Middlemiss said Tuesday.

Ultimately, if passed such a decision could affect cases like
Middlemiss' and Holy Smoke co-owner Paul DeFelice's sentences, both of
whom have been found guilty of trafficking one gram of marijuana.

"How can you be busted for trafficking a small amount of something
that is, in itself, not illegal because of this unconstitutional law?"
Middlemiss asked.

He predicted the Ontario Supreme Court ruling would mean there could
be amnesty for anybody arrested between 2001 and the present time for
possession.

Initially, Ontario Court Justice Howard Borenstein based his lower
court ruling on a 2003 Ontario Court of Appeal decision finding
sections of medical marijuana government regulations unconstitutional
saying authorized users had to obtain their medicine on the black market.

This was one of a number of decisions in the past eight years
declaring aspects of the medical marijuana regulations
unconstitutional.

Some options to remedy the situation had been offered by the judge to
Health Canada, who regulated medicinal marijuana, including allowing
compassion clubs or becoming the only supplier of marijuana for
medical users.

In turn, Health Canada re-enacted some unconstitutional restrictions,
including prohibition on a designated producer growing for more than
one user. It also entered into the contract with Prairie Plant.

The National Post reported about 20 per cent of the more than 2,000
authorized users in the country receive marijuana from Prairie Plant,
a low number because of poor quality and the high price charged by
Health Canada.

Because it is the highest level of court in Ontario, Supreme Court
Judge Eva Frank's decision will be binding across Ontario, meaning a
similar situation could arise across the rest of Canada, said Middlemiss.

Although Judge Frank had upheld the lower court decision that
medicinal marijuana regulations were unconstitutional, a further
appeal by Health Canada's lawyer Nov. 18 was made to argue about what
the remedy would be.

Judge Frank is still reserving her final ruling.