ONTARIO COURT OF APPEAL DECISION MAKES MARIJUANA POSSESSION ILLEGAL AGAIN

People With Valid Medical Exemption Remain Free From Criminal Prosecution

Four months ago, I wrote a column asking whether simple possession of
marijuana was legal in Canada.

It was a valid question then. After all, the Liberal government in Ottawa
had introduced legislation to decriminalize possession of less than 15
grams of the stuff and two judges of the Superior Court of Justice here in
Ontario had gone one step further and struck down the possession law
altogether.

Just this past week, however, the Ontario Court of Appeal overturned those
decisions and possession of marijuana again became a crime.

To understand these decisions, one has to go back to July 31, 2000, when
the same Ontario Court of Appeal decided in a case called Parker that the
law against possession of marijuana was invalid but the declaration of
invalidity was suspended for 12 months to allow Parliament an opportunity
to re-enact that law with appropriate provision for making marijuana
available for medical reasons.

Parker suffered from a very severe form of epilepsy. He attacked the law on
the basis that it did not permit him to use marijuana to control this
disease. This spring, the judges of the Superior Court of Justice held that
Parliament had not done anything to amend or re-enact the anti-marijuana
law during the 12-month grace period and as a result, that law making
possession of marijuana a crime became invalid as of July 31, 2001.

The Federal Department of Justice appealed those decisions.

The Court of Appeal agreed with the government at least in part. The court
noted that marijuana offers some individuals invaluable relief from a
variety of debilitating symptoms associated with certain serious long-term
illnesses. But, while the government had not taken the steps necessary to
make marijuana available for medical purposes, the entire law did not need
to be struck down.

Instead, the Court of Appeal effectively re-wrote the regulations governing
the possession and growing of medical marijuana so as to make it more
readily available.

The effect of this ruling was to make the law prohibiting the possession of
marijuana constitutionally valid again as of Oct. 7, 2003.

The government was unsuccessful in getting this made retroactive however.
No one can be charged for having possessed marijuana between July 31, 2001
and Oct. 7, 2003. In addition, the authorities are now saddled with rules
that make it easier for medical marijuana users to obtain their drugs.

For the rest of us however, it is once again a crime to possess marijuana
-- at least until Parliament passes the proposed new law that would
decriminalize the possession of less than 15 grams of that very same drug.

It should be noted that there are very real differences between legalizing
marijuana possession and simply decriminalizing it.

In the latter case marijuana possession remains illegal but it is not a
criminal offence. An offender would pay a fine but would not end up with a
criminal record. In this regard it would be treated much like many of the
current provincial liquor infractions. The proposed fines would range from
$150-$400 for adults and from $100-$250 for young people under the age of 18.

Possession of larger amounts of marijuana would still lead to a criminal
record.

For now, possession of any amount of pot could lead to that criminal record
unless you have a valid medical marijuana exemption.

I expect the issue will be appealed yet again, this time to the Supreme
Court of Canada. There is already one other case, which is scheduled to be
heard by the Supreme Court this fall.

In the meantime, possession of any amount marijuana is a crime in Canada.