Good things gro-o-o-o-w, in Ontario-o-o-o...

[Tim Meehan]

http://www.globeandmail.ca/servlet/ArticleNews/TPStory/LAC/20030517/UMARIM/TPNational/TopStories

No laws ban possession of marijuana, court rules
Landmark Ontario decision goes beyond the decriminalization proposed by Ottawa

By COLIN FREEZE AND KIM LUNMAN

UPDATED AT 10:53 AM EDT 
Saturday, May. 17, 2003 

TORONTO and OTTAWA -- Canada has no laws prohibiting marijuana possession, an
Ontario Superior Court judge said yesterday in a ruling that will be binding on
judges in the province and may soon be picked up across the country.

"For today, and for the Victoria Day weekend, it's a very pleasant state of
affairs for recreational pot smokers," said criminal lawyer Paul Burstein, who
helped argue the case successfully.

It was the second time that a Windsor teenager who was caught smoking pot while
playing hooky in a park has been found not to have broken any law because, the
courts ruled, there are effectively no longer any marijuana laws to break.

Mr. Justice Steven Rogin upheld yesterday a lower-court decision, based on
complex arguments, that has already had far-reaching influence.

The new ruling means that proposed federal legislation to decriminalize
possession of a small amount of marijuana would actually "recriminalize" it,
defence lawyers said yesterday.

While the new law would impose fines for pot possession, yesterday's ruling
effectively eliminated any sanctions for simple pot possession in Ontario, they
said.

The decision "has effectively erased the criminal prohibition on marijuana
possession from the law books in Ontario," said Brian McAllister, the lawyer for
the accused teenager.

Courts in Nova Scotia and PEI have already put prosecutions on hold pending
yesterday's ruling, he said, and lawyers in other provinces were similarly
watching for this decision.

The initial ruling in favour of the Windsor teenager, identified only as J. P.,
had a significant spillover effect and the higher-court decision is expected to
be even more influential.

The federal Department of Justice, which appealed the initial ruling, is
planning another appeal.

The government still plans to introduce its marijuana-decriminalization
legislation later this month.

Most Canadians are behind the idea, according to an Ipsos-Reid poll released
yesterday.

It found that 55 per cent of Canadians did not believe smoking marijuana should
be a criminal offence, while 42 per cent thought it should be.

More telling, 63 per cent of respondents supported Ottawa's plans to issue
tickets and fines similar to traffic violations to those caught with 15 grams or
less of marijuana, the poll found.

Justice Minister Martin Cauchon has said he is seeking the changes so that
people who are caught with small amounts will not clog up the court system,
potentially receiving criminal records.

For the moment, however, marijuana possession remains the most frequently laid
drug charge in Canada even though courts are becoming increasingly resistant to
hearing those cases.

Jim Leising of the federal Justice Department said in an interview that he was
"disappointed" by yesterday's decision and will push to have the case heard
quickly in the Ontario Court of Appeal.

"We are are still of the opinion that the law against marijuana is valid," he
said.

Mr. Leising said prosecutions will continue, although some may be put on hold.

But defence lawyers involved in J.P.'s case said Ontarians facing possession
charges should fight Crown prosecutors' attempts to delay their cases until the
law is clarified.

Ontarians who are charged with marijuana possession after yesterday's ruling
could consider suing police for wrongful arrest, they said.

"Anybody who's got a charge before the court should definitely take advantage of
this," Mr. Burstein said.

Multiple court battles to strike down the marijuana laws are taking place, he
said, leaving Ottawa besieged from many directions.

"The courts keep firing big shots into the sides of the government's ship," Mr.
Burstein said.

"They're sinking lower and lower. They are bailing it out with a cup."

The Ipsos-Reid poll -- of 1001 people, conducted between May 13 and May 15 --
found people still have some reservations about decriminalization.

The poll results are considered to reflect accurately the feelings of the entire
country to within 3.1 percentage points, 19 times out of 20.