POLITICIANS, COURTS MUST JOINTLY SORT OUT POT LAWS

University of Toronto law professor Kent Roach says the public is
understandably confused about the uncertain status of Canada's pot laws.

He says the courts appear to be signalling to policy makers in Ottawa that
they should not take a piecemeal approach, but should move ahead with
comprehensive legislation that will be applied uniformly to all Canadians.

Roach explained the situation in an interview with The Spectator. The cases
he refers to are described above.

ROACH: The issues of medical marijuana and its recreational use are getting
mixed in a way that I think is confusing for the public. But I think they
are united in that they're both about consequences of the Parker decision.

What does seem odd in the Parker decision, which is about medical
marijuana, is that if Parliament does not respond properly, it could have
the effect of striking down the possession of marijuana offence throughout
Ontario for everyone. And that would go much further even than the
government is proposing to do with its decriminalization bill now before
Parliament.

SPECTATOR: Health Canada has announced it was going to start selling
marijuana to sick people who qualify under Ottawa's medical pot program.
Its hand was being forced on this issue by another court-imposed deadline.
What's that case about?

ROACH: My understanding of the Hitzig case is that the courts are saying,
look, it's not enough to exempt this person from criminal prosecution for
medical reasons. You actually have to find some legal means for this person
to get marijuana, if you accept that there's a medical need for marijuana.

SPECTATOR: Former minister Allan Rock and current Health Minister Anne
McLellan have stressed the importance of research into the medicinal value
of pot. Canada has studies under way, but in the meantime the health
department is appealing Hitzig. McLellan says she may halt the sales
program for medicinal users if her department wins the appeal. Isn't she
sending mixed messages?

ROACH: I can understand why people think that, because on the one hand, you
have a government and a minister of justice who has introduced a
decriminalization bill, but on the other hand, lawyers representing the
Attorney General of Canada are appealing these acquittals in the Ontario
Court of Appeal. And at the same time, they're defending the existing
possession laws under the Charter with these cases now before the Supreme
Court of Canada.

But I think it's helpful to distinguish between what a prosecutor argues in
court and what the minister of justice does as a matter of policy. I think
there's some justification for the minister saying, look, Parliament wants
to decriminalize marijuana on its own terms, but we don't concede that the
existing laws are inconsistent under the Charter.

So, that, partly, is what I think is going on here. It's a battle about who
is going to change the law. Is it going to be Parliament or is it going to
be the courts? And I think the minister of justice wants this done in
Parliament.

SPECTATOR: We'll have to see if the appeal court agrees with Lederman in
the Hitzig case.

ROACH: It also raises a conundrum for the justice minister's
decriminalization bill because how much sense does it make to say that it's
not criminal to possess marijuana, but it remains criminal to grow it --
even for personal use -- or to distribute marijuana?

The courts are, I think, pushing the legislators to think through some
implications of these decisions and the courts are demonstrating that the
solutions aren't simple. They're saying partial solutions are problematic.

SPECTATOR: We have a situation in Ontario where people found with small
amounts of pot are in legal limbo. They're not being charged, although
their drugs may be seized, while at the same time Canadians in other parts
of the country are still being arrested, charged and prosecuted.

ROACH: That is one of the disadvantages of relying on the courts to reform
the marijuana laws because it will have to be done on a
province-by-province basis. And although what the Ontario Court of Appeal
does will certainly be considered with respect in other provinces, it does
not bind judges in other provinces.

If Parliament gets its act together and moves proactively, that would
certainly be a more uniform solution for everyone in the country.

SPECTATOR: Is the debate about legalization versus decriminalization put to
rest now that Martin Cauchon has introduced legislation to decriminalize
simple possession of marijuana?

ROACH: It actually gets more complicated because the Supreme Court has
under reserve the case of Malmo-Levine, a Charter challenge to the
possession offence, not a medical case but a challenge on liberty grounds.

(Three cases, including David Malmo-Levine, were heard in May. The Supreme
Court is to rule this fall.)

I see those cases and the proposed federal decriminalization bill in some
ways grouped together. Those cases are trying to knock down the possession
law for everybody, arguing there's not enough harm to pot to criminalize it.

I would, personally, be surprised if those arguments were successful. At
the same time, obviously, Ottawa has made a policy decision not to legalize
marijuana but to decriminalize it.

SPECTATOR: What you're saying is the debate is far from over?

ROACH: It's not clear that the decriminalization bill is going to be able
to work its way through Parliament before the next election. And I suppose
there's still some uncertainty about who will be in charge after the
Liberal Party convention. So, yes, I think this debate will drag on for
quite some time.