POLICE BACKING OFF ON POT

Toronto First Major Force To Ignore Simple Possession. Ontario Now "Safe Haven" For Marijuana Users, Says Fantino

Toronto police Chief Julian Fantino has told his officers to stop laying
charges for simple possession of marijuana.

The decision, Fantino said in a statement yesterday, follows government
inaction and court decisions that leave police wondering "whether simple
possession of marijuana is an offence at all."

Tom Kaye, president of the Ontario Association of Chiefs of Police, echoed
Fantino's move and yesterday advised police leaders across the province to
"use discretion in situations that involve the simple possession of
marijuana."

It's the first time a major Canadian police force - and a provincial
organization of chiefs of police - have taken such a stand on cases
involving simple marijuana possession.

Fantino said police will simply seize the drugs and record the
circumstances, with a view to possibly laying a charge later "following
clarification of the law by the court of appeal or Parliament."

But that, said Toronto criminal lawyer Paul Copeland, could leave police
officers open to lawsuits. "It's legal to smoke pot in this province," he
said yesterday. "My opinion is there is no law in Ontario prohibiting
possession of up to 30 grams, or a gram of hashish, for that matter."

Allan Blakeney, president of the Canadian Civil Liberties Association and a
former Saskatchewan premier, agreed.

"The citizen must know that his conduct is illegal at the time that he is
engaged in it," he said last night. "Both the judiciary and the police are
acting at this time as if it's not illegal to have a small quantity of
marijuana.

"It is inappropriate for the police to charge him for what he does today on
the grounds that an appeal court says three months from now that it is
illegal," said Blakeney, a lawyer.

Both Fantino and Kaye pointed to a May 16 decision by Mr. Justice Steven
Rogin of the Ontario Superior Court of Justice, who upheld a lower court
decision to quash a charge against a youth for possessing less than 30 grams
of marijuana because the law is no longer valid.

Under the change in policy, police will now record the names of anyone found
in possession of less than 30 grams of marijuana - about an ounce - and
document the seizure, recording names and circumstances.

"Police will continue to investigate and enforce the law regarding marijuana
according to established procedures, but will not lay charges of simple
possession," Fantino said in the statement. "Rather, they will seize the
marijuana and fully document the incident with a view to laying a charge
following clarification of the law by the court of appeal or Parliament."

According to Statistics Canada, police in Toronto laid 6,122 charges for
possession of marijuana in 2001, the latest year for which figures are
available.

Kaye, police chief in Owen Sound, counselled other police chiefs in the
province to follow the same procedure.

"We're asking the chiefs basically to advise their officers to show
discretion when they're dealing with these things," Kaye said. "If it's
under 30 grams, process them in accordance with your department's policy
procedure, lob the drugs in the vault, do up all the paperwork that would be
required and then wait until we see what's going to happen from the appeals
court."

And, he warned, "these individuals may well be charged down the road."

After Rogin reached his decision in Windsor last month, Brian McAllister,
the lawyer who challenged the law on behalf of a 17-year-old, said the
decision "effectively erased the criminal prohibition on marijuana from the
law books in Ontario."

At the time, legal experts said Rogin's decision would almost certainly be
followed by judges of Ontario's lower courts, where nearly all marijuana
possession cases are decided.

Since then, judges across Ontario have followed Rogin's lead and thrown out
charges against people accused of possessing less than 30 grams of the drug.
Like Rogin, they've relied on a decision from the Ontario Court of Appeal
two years ago in the case of Terry Parker, a Toronto man who asserted a
constitutional right to smoke marijuana for treatment of his epilepsy.

The appeal court told the federal government that, if it didn't find a way
to accommodate medical users by July, 2002, the criminal prohibitions on
simple possession would fall.

According to a running tally kept by the Ontario Criminal Lawyers'
Association, judges have generally been halting such prosecutions when they
come to court:

*A Newmarket judge ruled May 30 that information sworn by police in support
of laying a charge of simple possession does not constitute an offence known
in law.

*After a judge at Old City Hall suggested the crown either set a date for
trial or stay a possession charge, prosecutors dropped the case.

*A youth court judge at Family Court on Jarvis St. quashed simple possession
charges in several cases.

*Justices of the peace in Windsor have been refusing to deal with
informations sworn by police officers in support of simple possession
charges. They are instead passing on the paperwork to judges for a decision
on whether to authorize the charge.

*Crown attorneys in Brockville have been withdrawing simple possession
charges; in Lanark County, west of Ottawa, they've been staying the charges,
a variation that gives them the right to reinstate the charge within a year.

But some judges are keeping cases alive and postponing them until later in
the year. Yesterday a Toronto judge, Mr. Justice Richard Schneider of the
Ontario Court, general division, adjourned until September a case involving
simple possession.

Rogin's decision in the Windsor case, which is being appealed to the Ontario
Court of Appeal, and the government's decision to decriminalize the
possession of up to 15 grams of marijuana, have left police confused,
Fantino said.

It's also made Ontario a "safe haven" for marijuana users, Fantino
complained.

Fantino also slammed the lack of support from the federal justice
department. "Police officers, entrusted with enforcing the law and ensuring
the public safety, are entitled to receive clear direction regarding the law
from those responsible for making the law."

With files from Tracey Tyler and Canadian Press