POT LAW IN DOUBT AS TEEN ACQUITTED

Judge Dismisses Possession Case; Lawyer Argues Federal Act Invalid

WINDSOR (CP) -- An Ontario judge has thrown out a marijuana charge against
a 16-year-old boy in a ruling lawyers heralded yesterday as another sign
that Canada's pot laws are relaxing.

Mr. Justice Douglas Phillips dropped the charge after lawyer Brian
McAllister argued in court there is effectively no law prohibiting the
possession of 30 grams or less of marijuana.

Even though the ruling signals for some the beginning of the end for
Canada's prohibition against possessing small amounts of the drug, those
who do could still be charged, McAllister said.

"My interpretation of the law -- and (it's) been accepted by the judge --
is there's no law in Ontario prohibiting possession of marijuana," he said
in an interview.

"But the danger is the police aren't likely to accept that argument and
another judge may not accept that argument."

The ruling "affects at this time only this young person," he said.

"(But) from what I understand, there's a number of other judges that have
been awaiting this decision and have been holding off hearing other cases
that involve the same issue, so it's potentially persuasive on those courts."

Jim Leising, a spokesperson for the federal justice department, said the
ruling will be studied carefully and a decision on whether to appeal or
take some other action will likely be made within 10 days.

Because the ruling involves a minor, it's especially important to "address
the judgment fairly quickly," said Leising, director of the department's
federal prosecution services in Ontario.

In the meantime, Leising warned the ruling doesn't give Canadians the
freedom to use marijuana without facing possible charges.

Currently, conviction of possessing 30 grams or less of pot can carry a
fine or up to six months in jail.

Yesterday's ruling involving the 16-year-old -- who can't be named because
of his age -- "is unique," Leising said.

But the law making possession of marijuana illegal "is still valid and
enforceable and someone would be (using marijuana) at their own peril."

In defending the 16-year-old, who was on probation when he was arrested
last April for possessing marijuana, McAllister sought to have the charge
dropped on the grounds that Ottawa has not yet adequately dealt with a
ruling two years ago from the Ontario Court of Appeal.

In that landmark decision, the appeals court sided with marijuana user
Terry Parker, who argued the law violated the rights of sick people using
the drug for medical reasons. Parker, an epileptic, said he needs marijuana
to control his seizures.

The federal government's response to the Parker ruling was its now-infamous
Marijuana Medical Access Regulations, which are supposed to allow marijuana
use for medical reasons under certain circumstances.

Those regulations have been widely criticized for being cumbersome, unfair
and loaded down with bureaucratic red tape.

They are also the subject of a separate constitutional challenge in Toronto
by a group of marijuana users who say their rights to choose their own form
of medical treatment are being violated.

In his ruling yesterday in the Ontario Court of Justice, Phillips sided
with McAllister's argument that the new regulations don't satisfy the
Parker decision, and that as a result the federal Controlled Drugs and
Substances Act doesn't prohibit possession.

Joseph Neuberger, one of several lawyers involved with the Toronto-based
challenge, said yesterday's decision could be the beginning of the end of
the laws that make simple possession illegal in Canada.

"Because of the Parker decision, the government had to put in place a
regime that allowed proper access for those who needed it for medical
purposes," Neuberger said.

"The argument is the government never complied with that order ... that for
simple possession, there really was no law."

In the case of the Windsor-area teen, federal drug prosecutor Ed Posliff
argued that it was a crime to possess marijuana if it wasn't authorized for
use for medical reasons.

McAllister argued, however, that the appeal court ruling made the entire
law invalid because the federal law wasn't changed properly.

"Parliament didn't fix the problem in the right way," McAllister said.

"They did it by way of regulations and the Court of Appeal ... required to
address the issues with some legislation."

McAllister noted that even though the possession charge involving the youth
has been challenged, it's still illegal to traffic and grow marijuana.

In recent months, federal Justice Minister Martin Cauchon has indicated he
wants to decriminalize marijuana, perhaps making possession of small
amounts of cannabis a ticketing offence rather than a crime punishable in jail.

In a highly unusual move, the Supreme Court of Canada refused last month to
proceed with three constitutional appeals to Canada's pot law because of
the decriminalization debate.