SMOKED OUT

The courts are in a uproar. The cops don't know what to do. Life couldn't
be better for tokers.

When politicians do nothing, things get done.

Thus, de facto, decriminalized pot is just a shade shy of being a fait
accompli and Montreal lawyer Pierre Cloutier has this free advice for local
tokers: a) if busted, plead NOT guilty; and b) call him*.

Cloutier is going to court, and he has precedent on his side. In July 2000,
the Ontario Court of Appeal declared the pot possession laws invalid but
suspended their declaration for 12 months to allow Parliament time to
change the law to accommodate medical marijuana users. Parliament did
nothing in response, so two weeks ago Superior Court Justice Steven Rogin
upheld the original ruling that marijuana possession laws in Ontario "no
longer exist."

Now, thanks to a whirlwind of precedent-setting judgments from courts
across Canada, there are confused cops, chaos in the halls of justice - and
a lot of happy stoners.

Police across the land are refusing to press further possession charges
until they know what they're doing. In Montreal, meanwhile, there is a
definite divide between what police brass and beat cops are saying on the
subject of pot (See "XXXX," p. 7). Ontario judges are throwing out simple
possession charges en masse with other provinces quickly following suit. A
PEI judge said the decision should be binding in other provinces as well.
"It would be an abuse of process to permit charges to proceed here when
charges weren't proceeding in Ontario," said Justice Ralph Thompson.

Days later, Nova Scotia Judge Flora Buchanan agreed. Citing public
interest, federal justice officials sought to suspend Justice Rogin's
ruling. "It is chaotic," pleaded departmental lawyer Peter DeFreitas before
Ontario Court of Appeal Judge Louise Charron. "We have thousands of these
charges in the system and there is complete uncertainty."

She refused. Until the government passes new legislation or the Court of
Appeal overturns the lower court, Rogin's ruling stands and possession of
small amounts of pot in Ontario is perfectly legit.

Confused? How's this: It will take a Quebec judge to issue a similar ruling
to get de facto decriminalization in this province.

Enter lawyer Pierre Cloutier, among the first lawyers to graduate magna cum
laude from a school of thought that says those running afoul of the drug
laws are the victim of two crimes: prohibition, and the system that
prosecutes them. He's been fighting pot prohibition since the ink on the
Charter of Rights was dry, and will try to collapse the increasingly
rickety judicial house of cards in this province this fall.

In a recent case involving Hemp-Quebec owner Alain Berthiaume, who
sponsored last year's Cannabis Cup in Montreal and was promptly busted,
Cloutier broke new judicial ground and entered into evidence the recent
Senate report headed by Montreal Senator Pierre Nolin. The report dispels
many marijuana myths: It doesn't lead to heroin use and won't rot your brain.

"When it comes to cannabis," asserts Cloutier, "the courts have so far been
dominated by stupidity, lies and bullshit." He'll take the Ontario, PEI and
Nova Scotia rulings into a Quebec courtroom in the fall.

"My client is accused of possessing a small quantity of cannabis and I will
request the Quebec court decline jurisdiction dans cette affaire," Cloutier.

In the entrenched debate over decriminalization, Universite de Montreal
criminologist Marie-Andree Bertrand worries about something else entirely.
Pot, she reasons, will likely be decriminalized altogether, whereby it will
move from illegal substance to enticing cash grab by dollar-thirsty
municipalities and their police.

Bertrand rejoices in the Ontario police decision to temporarily abandon
simple possession cases, but she despairs of Justice Minister Martin
Cauchon's effort to replace criminal penalties for small quantities of
marijuana with a disproportionate fine system.

"If fines accumulate, one is liable to imprisonment for default of payment.
Economic sanctions are penal ones whenever they lead to deprivation of
freedom." While well-to-do tokers smoke pot in the privacy and safety of
their homes, the law itself can become discriminatory for less affluent
folk. "Young people, who may not have places of their own, tourists, poor
people, and street people who smoke and deal in public places will become
the targets of possession and trafficking laws," she said.

Also troubling her is the doubling of sentences Cauchon's bill proposes for
larger growers.

"Fourteen years is close to the number of years served in homicide cases.
No wonder so many activists - and Canadians - feel that in the absence of
political clarity and decisiveness on the cannabis issue, judicial
decisions are what really count."

The Canadian Medical Association estimates there are two million
recreational tokers in Canada, 20,000 of which are charged annually with
simple possession. Still, a recent Leger and Leger poll shows more people
support changing the marijuana laws than oppose. Of 1,501 surveyed, 40 per
cent support legalization or decriminalization, another 43 per cent back
legalizing it for medical use, while only 14 per cent want it kept illegal.

Across Canada, hyperbole seems to finally be giving way to common sense.
Few saw the transition more closely than Mike Foster, owner-operator of
Ottawa's Crosstown Traffic and onetime denizen of the endangered species list.

"When I first opened my store in 1992," he said, "cannabis was not
something that you read much about in the local papers unless someone got
busted. High Times was illegal and I was one of about 5 head-shops in
Canada. The death watch was out for all of us; now there are hundreds of
these shops."

Now, with annual sales of 50,000 packages of rolling papers, countless
pipes, bongs and other essentials, he's part of the local establishment.

An FM station recently pitched an advertising package to promote Crosstown
as Ottawa's leading supplier of marijuana supplies and accessories and a
local high school sent a letter of thanks for lending them a hookah for a
theatrical performance.

"I think we're slowly making headway toward something that looks very much
like Dutch-style freedom, but it's still a long journey," Foster says. Like
most cannabis users, he is certain that time and logic will someday
prevail. And like most Canadians, he now knows that with Parliament closed
and the politicians on vacation for the next three months, more things
might get done.