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Pubdate: Tue, 01 Aug 2000
Source: Vancouver Sun (CN BC)
Copyright: The Vancouver Sun 2000
Address: 200 Granville Street, Ste.#1, Vancouver BC V6C 3N3
Fax: (604) 605-2323
Author: Lindsay Kines
Bookmark: additional articles on cannabis are available at and articles on Canada are available at


The law prohibiting possession of marijuana was declared unconstitutional Monday by Ontario's top court -- a decision hailed by some as a step toward decriminalizing the drug across the country.

In an unanimous decision, the Ontario Court of Appeal ruled the possession law violates Canada's Charter of Rights and Freedoms because it fails to make exceptions for people who require marijuana for medicinal purposes.

But rather than strike down the law outright, the court gave the federal government one year to rewrite its legislation to comply with the Charter.  Possession will remain a criminal offence for 12 months, but if the government fails to act in that time, the law will cease to exist and simple possession will become legal in Canada.

Marijuana activists called the ruling a major breakthrough.

"If they make amendments ...  to include the medicinal use of cannabis, that's an amazing victory," said Hilary Black, founder of Vancouver's Compassion Club, which distributes marijuana for medicinal uses.  "If they don't make amendments and [the law] becomes stricken, that's even more of an amazing victory.  So it really is a win-win situation."

The Ontario Court of Appeal ruling upheld a decision by a judge who stayed possession charges against Terry Parker, a 44-year-old Toronto man who smokes marijuana to control his epilepsy.  The judge had concluded, and the appeal court agreed, that Parker requires the marijuana for health reasons, and that the possession law infringed his Charter rights.

"I have concluded that forcing Parker to choose between his health and imprisonment violates his right to liberty and security of the person," Justice Marc Rosenberg wrote in the Ontario Court of Appeal decision.

The federal government recently instituted an exemption from the marijuana provisions in the Criminal Code of Canada for people who could prove they needed the drug for medicinal reasons, but the Ontario appeals court found that was unjust.

"I have concluded that the possibility of an exemption ...  dependent upon the unfettered and unstructured discretion of the Minister of Health is not consistent with the principles of fundamental justice," Rosenberg said.

Simon Fraser University criminologist Neil Boyd said the appeal court decision clearly puts the onus on federal politicians to act.

Most of the changes over the past three decades have been initiated by police and the judiciary, Boyd said.  "And politicians who are really supposed to exercise moral leadership on these kinds of contentious moral issues have been sitting on their hands, not wanting to alienate their constituents -- regardless of which side of the fence they come down on."

Boyd said the government could respond to the court ruling in a number of ways: It could craft an exemption in the possession law for medical use; it could wait for the matter to go to the Supreme Court of Canada; or, it could sit back, do nothing, and let the law die, as happened after Canada's abortion legislation was struck down.

Health Canada officials declined to comment on the ruling, and would not say whether the matter will be appealed to the Supreme Court of Canada.

Police officials, meanwhile, said the decision is unlikely to change law enforcement.  Vancouver police rarely process possession of marijuana charges, so the ruling likely won't affect law enforcement in the city, media liaison Constable Anne Drennan said Monday.

"We tend not to want to waste a lot of time on simple possession charges, and are very much aware that Crown feels the same way," she said.  "We tend rather to go for the grow-ops, in terms of marijuana investigations, or target dealers."

For years, officers in the Downtown Eastside and other parts of Vancouver have confiscated joints from people smoking pot in public, but have generally avoided laying charges.

However, both Vancouver police and B.C.'s Organized Crime Agency have been targeting the region's burgeoning marijuana-growing industry.

Police maintain the money made by large-scale marijuana dealers funds other criminal activity in the city, including organized crime and gangs.

In another ruling Monday, the Ontario appeal court rejected an appeal from Chris Clay, a former London hemp store owner who was seeking the general legalization of marijuana. 

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