MARIJUANA POSSESSION STILL SUBJECT TO COURT OF APPEAL CASE

Is possession of marijuana now legal in Canada? It is quite understandable
if you are unsure of the answer to that question. The federal government in
Ottawa introduced legislation to decriminalize possession of less than 15
grams of the stuff.

But the courts in Ontario have gone one step further and struck down the
possession law altogether.

So is it legal to possess marijuana right now?

Unfortunately the best answer I can give right away is 'maybe'. Here's why.

On July 31, 2000, the Ontario Court of Appeal declared in a case called
Parker that the law against possession of marijuana was invalid. This
declaration of invalidity was however suspended for a period of 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 had attacked the law on
the basis that it did not permit him to use marijuana to control this disease.

In a recent decision of the Superior Court of Justice in Windsor, it was
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.

So that means that possession of marijuana is legal, doesn't it?

Well, it does for now but the federal Department of Justice has appealed
that decision saying that it is wrong. If the Court of Appeal agrees with
this view, then we are right back where we started -- with a law that says
that marijuana is still illegal and in fact it always has been.

So while police may not be charging anyone with possession right now, they
may be able to do so after the Court of Appeal makes its decision.
Therefore, it would be wise to refrain from rushing out to buy any
marijuana just yet.

But isn't the federal Department of Justice run by the Minister of Justice?
And isn't that Minister of Justice the person who just introduced the new
law that, if passed by Parliament, would decriminalize the possession of
less than 15 grams of that very same marijuana? The answer to both of these
questions is 'yes'. That same person is trying to save the law making
possession of marijuana illegal while at the same time decriminalizing it.
No wonder we are confused.

It should be noted however 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 people under 18. Possession of larger amounts
of marijuana would still lead to a criminal record.

It should be noted that neither the court ruling nor the proposed new law
would make marijuana legally available to users.

As a result, those who possess marijuana might not be criminals but they
will have to buy it from someone who is by law a criminal -- the drug
trafficker.

Some traffickers are otherwise ordinary people who earn money selling drugs.

Others unfortunately are hardened criminals affiliated with other such
criminals. The changes in the law do nothing to eliminate the need for drug
users to associate with these people unless they become criminals
themselves by growing their own marijuana.

We certainly have not heard the last of this issue. The Court of Appeal
will hear argument eventually and we will find out if pot is illegal or not.

In the meantime, the debate over decriminalization will continue, both in
Parliament and the community. I will try to keep you posted as to the
outcome on both fronts.

David Harris is a Burlington resident with a criminal law practice in
Oakville. He is writing a series of columns on criminal law. To find his
past columns, visit the Web site www.lawyers.ca/dharris.