MARIJUANA: 'EVERYTHING'S IN LIMBO'

One of Canada's biggest marijuana activists has some advice for potheads in
his home town of Kingston.

"If police take your cannabis away, talk to a lawyer," said Mike Foster,
the owner of one of the biggest headshops in Ottawa and a founding member
of the Marijuana Party of Canada.

"If it's not illegal, they can't take it."

Since May 16, when an Ontario Superior Court judge upheld a lower court
decision to quash a charge against a youth for simple possession of
marijuana, it's become increasingly unclear how much authority police can
exercise over someone caught with less than 30 grams of pot.

Like police across the province, Kingston Police have changed the way they
deal with simple possession.

Anyone caught with under 30 grams will be investigated and the pot
confiscated, but officers won't lay charges until someone - whether it's
the federal government or the Supreme Court - makes a decision about the
legality of simple possession, said Insp. Brian Cookman.

"The bottom line is, we're going to investigate and we're going to seize
the marijuana," Cookman said.

Foster, an outspoken advocate for pot smokers, runs Crosstown Traffic, a
popular shop in the nation's capital that sells everything from rolling
papers to pipes to comic books.

The 48-year-old also helped publish the first children's book on medicinal
marijuana, called Mommy's Funny Medicine.

He went to high school in Napanee and spent his early 20s in Kingston. His
homes on Earl Street and Victoria Street were subject to frequent RCMP
raids in the early 1970s.

He said the court decision means that pot smokers such as himself can
consider their pastime legal - no matter what police say.

"It's technically legal," he said.

The Criminal Code of Canada, which outlaws simple possession, gives
officers the authority to investigate people with under 30 grams of pot,
Cookman argued.

But he acknowledged that the May 16 decision has blurred the law.

"It's a very difficult spot they've left us in," he said.

Kingston Police aren't the only ones who've had to change the way they
handle simple possession.

Five people who were accused of simple possession of marijuana had charges
withdrawn by a federal Crown attorney in Kingston on Tuesday - adding to a
growing list of local pot smokers who are dodging convictions.

"They were surprised ... it's been a lucky break for them, that's for
sure," said federal prosecutor David Crowe, who has been instructed to
withdraw or stay simple possession charges while Ontario's cannabis laws
remain up in the air.

"Everything's in limbo," he said.

With the federal government's proposal to decriminalize possession of under
15 grams still before the House of Commons and no firm cannabis law in
place, prosecutors aren't attempting to try someone for simple possession.

Some Crown attorneys, such as those in Lanark County, have been staying
charges, which allows them to reinstate the charges within a year.

Crowe said he's opting to withdraw the charges completely.

The longer the charges are delayed, the more likely they'll be defeated
later on, he said.

Defence lawyers are also preparing for clients who might take police to
court if their pot is seized.

If an officer seizes a few joints from someone at a party and marijuana is
later decriminalized by Ottawa, it may open Kingston Police to a lawsuit.

"No doubt someone will try it," said Clyde Smith, a Kingston defence lawyer
who has had simple possession charges withdrawn against a few of his
clients. "That could be interesting."

Cookman said all marijuana seized by Kingston Police is packaged and sent
to Health Canada for testing to determine if it is cannabis.

When it is returned to police, it is stored, sealed and numbered.

If Ottawa eventually decides that simple possession isn't a crime - a
decision that won't likely come about until at least the fall - pot smokers
could theoretically go to police headquarters and ask to have their weed
returned.

"If you're going to want your dope returned after it's been sitting in a
vault, I guess it's possible," Cookman said.

"It is plant material so it will degrade to some degree."

But until the federal government makes a decision on the proposed
decriminalization legislation, the law will continue to be fuzzy.

Even though everyone has different opinions on the issue of possession -
from police to activists to lawyers - they all want the same thing.

Ottawa needs to take a stand, they say.

"We are here to enforce what society deems us to enforce. If society
dictates that possession of cannabis is no longer important to them, then
we will go with the flow," Cookman said.

"But is it a confusing time? You bet."