POT LAWS CAUSING COURT BACKLOG

Ottawa needs to fix long-standing loopholes and inconsistencies in
Canada's marijuana laws, to help the justice system contend with a
surge of court cases resulting from the Conservative government's new
zeal for enforcement, legal experts say.

With witnesses reporting a dramatic increase in the number of
possession cases before the courts, those familiar with the
intricacies of the law say it remains vulnerable to the argument
Canada's medicinal marijuana program renders it unconstitutional.

"Every time a judge calls into question our marijuana laws, it
undercuts the legitimacy of the law," said Alan Young, a Osgoode Hall
law professor and veteran of the long-standing debate about
marijuana, its medicinal benefits and decriminalizing its possession.

Four years after Ottawa supposedly closed off a complex legal
loophole that effectively rendered the law unenforceable, an Ontario
Court judge agreed Friday the law governing pot possession in Canada
was unconstitutional.

The Liberal government's decision in 2003 to allow eligible patients
access to marijuana for medicinal reasons was made by an informal
policy statement and never changed the existing statutes or
regulations, Lawyer Bryan McAllister argued.

"It is a departmental policy that can be changed at whim, or even
ignored," McAllister said in an interview.

"An aggrieved party cannot go to court to seek enforcement of a
government policy."

Without a clause making an exception for medicinal marijuana users,
"the policy is not enshrined in law, it has no value, and the law as
it stands is unconstitutional," McAllister said.

Ontario Court Justice Howard Borenstein agreed and dropped the
charges against Clifford Lond, 29, a Toronto resident who was charged
with possessing 3.5 grams of pot. Borenstein said he would wait two
weeks to make a formal ruling, giving public prosecutors time to file
an appeal.

Eric Nash, who has testified as an expert witness in a number of
cannabis cases across Canada, said the number of cases he has been
involved in has "tripled" in recent months.

"All of a sudden there seems to be a huge increase in the number of
marijuana possession cases going to court," Nash said.

That's because the number of people arrested for smoking pot rose
dramatically in several Canadian cities last year after the
Conservatives took office and killed Liberal legislation to
decriminalize small amounts of marijuana.

Preliminary figures suggested the number of arrests jumped by more
than one-third in several Canadian cities: Toronto, Vancouver, Ottawa
and Halifax all reported increases of between 20 and 50 per cent in 2006.

In 2003, Young successfully argued since there was no effective
program for sick people to possess medical marijuana without breaking
the law, the law didn't prohibit possession.

As a result, a number of enforcement agencies said they wouldn't lay
charges for simple possession until the laws were clarified.
Eventually, an Ontario court closed the loophole by firming up the
rules governing how medicinal users obtain marijuana.

The implications of last week's decision are difficult to gauge until
the two-week grace period is over, which will also depend on if the
ruling is deferred to a higher court, Young said.

"Right now, all it does is create another layer of confusion in terms
of the enforcement of the marijuana possession offence."

That's not to say it won't set a precedent, he added: Judges and
lawyers are always looking for precedent-setting cases that allow
them to avoid lengthy marijuana possession cases.

"Courts are not that thrilled to have possession offences before
them; they see it as a waste of time," he said. "So this decision,
while it is not binding, is persuasive."

None of which comes as a surprise to Eugene Oscapella of the Canadian
Foundation for Drug Policy, which has been closely monitoring the
changing federal stance on marijuana-related offences.

"This (Conservative) government is clearly bent on a more punitive
policy," Oscapella said. "Overwhelmingly, the emphasis is on
punishment, and punishment is not the appropriate mechanism for
dealing with drugs ... It's a health and social issue.

"It should not be in the area of criminal law."