NO MARIJUANA POSSESSION LAW IN ONTARIO, COURT RULES

Cops Vow to Keep Arresting Users Anyway

As of May 16, there is no law banning the possession of small amounts
of marijuana in Ontario, Canada's most populous province. On that
date, Ontario Superior Court Justice Steven Rogin upheld a lower court
ruling that a Windsor teenager arrested for smoking marijuana in a
park had not broken any law because Canada effectively has no
marijuana law. The ruling is binding on courts in Ontario and should
provide precedent for courts in other provinces, according to lawyers
who successfully argued the case. Lower courts in Nova Scotia and
Prince Edward Island had already joined with the courts in Ontario
pronouncing Canada's marijuana possession law null and void.

If the ruling stands, any moves by the Canadian government to
decriminalize marijuana possession could actually "recriminalize" it.
But the federal Justice Department is moving to have the case heard in
the Ontario Court of Appeal, and in the meantime is vowing to continue
to prosecute marijuana cases. "We are still of the opinion that the
law against marijuana is valid," the department's Jim Leising told the
Toronto Globe & Mail.

And Ontario law enforcement agencies are taking the same line, albeit with
some confusion. In Windsor, across the border from Detroit, police
spokesmen told the Detroit Free Press it would be business as usual.
"Everything will be done the same way we've been doing it -- people will be
arrested if they are caught with marijuana," said Sgt. Kevin Trudell of the
Windsor Police drug investigation unit. A Toronto police spokesman who
seemed unaware of the ruling told DRCNet: "Yes, we are arresting people for
marijuana possession. The legislation is still in effect, and until it
changes we will enforce the law." Ottawa Police and the Ontario detachment
of the Royal Canadian Mounted Police did not respond to DRCNet queries
about their policies.

Lawyers who argued the case had a different take. The decision "has
effectively erased the criminal prohibition on marijuana from the law
books in Ontario," said Brian McAllister, who represented the Windsor
teenager. "Canada's marijuana law has been nonexistent since July 31,
2001 [a year after the Canadian Supreme Court ruled it
unconstitutional] and Justice Rogin recognized that. His ruling makes
it official, at least in Ontario," he told DRCNet. "This ruling is
binding on all trial courts in the province. Any trial court here that
hears a marijuana case is bound to find there is no offense."

Still, McAllister cautioned, it wouldn't be advisable to go out and
flaunt one's pot-smoking. "I wouldn't encourage anyone to do that," he
said, "even though I don't understand why the police, who are not
trained in the law, would thumb their noses at an appeals court
decision. Given this ruling, if police continue to arrest and
prosecute people for marijuana possession, they are risking massive
civil liabilities. They can't say they didn't know better."

And while federal prosecutors vow to continue to try marijuana
possession cases, another attorney in the case told the Globe & Mail
that people facing possession charges should demand their cases be
heard now, while the law is nullified. "Anybody who's got a charge
before the court should definitely take advantage of this," said Paul
Burstein. Similarly, Burstein said, anyone charged in Ontario with
marijuana possession since Rogin's ruling should consider suing the
police for unlawful arrest.

Meanwhile, Canada's Supreme Court is now considering a trio of related
cases that could wipe out possession laws nationwide
(http://www.drcnet.org/wol/286.html#supremecourtcanada). Unlike the
Ontario case, which McAllister said revolved around parliament's
failure to enact a new marijuana law, the case before the Supreme
Court addresses the issue of whether parliament has the constitutional
right to punish marijuana possession given the lack of proven serious
harms from its use. A ruling in that case is pending.