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Marijuana advocates across Canada are celebrating a May 16 Ontario court decision, which effectively legalized possession in Canada's largest province.

On Friday, May 16, Ontario Summary Conviction Appeal Court Justice Steve Rogin upheld the lower court ruling of Justice Philips, concerning a case of pot possession in Ontario.

Justice Rogin agreed that the federal government had failed in its obligation to change the law to allow for medical use of marijuana, and so the entire law was void.

This decision is binding on Ontario's lower courts, which means that no-one can be convicted of pot possession in Ontario. This effectively means that marijuana is now legal in Canada's largest province.

It is expected that other Appeal courts across Canada will also ratify the decision. Related cases are making their way through the courts in at least four other provinces.

The federal government has appealed the case to Ontario's Court of Appeal. The next step would be to Ontario's Supreme Court.

The "decrim" legislation being contemplated by Canada's Liberal government will presumably be aimed at filling this void in Canada's pot laws.

Marijuana advocates are encouraging pot smokers in Ontario to enjoy their new-found freedom. "The people of Ontario should be celebrating this monumental victory!" said Marc Emery of the BC Marijuana party. "Anywhere you can smoke tobacco, they should be smoking marijuana."

History of the decision

It began in January in Windsor, Ontario, when lawyer Brian McAllister convinced Provincial Court Judge Phillips that Canada's cannabis laws no longer exist, and that his 16-year-old client should go free on charges of possession. In his ruling, Justice Philips agreed, adding that if a cultivation or trafficking case had been before him, he would have thrown out those charges as well (CC#42, Canadian judges toss pot prohibition).

McAllister's novel legal argument was based on a July 2000 court ruling relating to Canadian med-pot user Terry Parker (CC#28, Canada's med-pot push). In the Parker ruling, Ontario's Supreme Court said that Canada's marijuana laws were unconstitutional because they didn't adequately address the needs of sick people who required pot. The court gave the government one year to change the law and provide medical access to marijuana, or the whole law against pot would be struck down.

One year later, the government had created new medical marijuana regulations, but didn't change the actual law. The difference, argued McAllister, is that regulations can be altered at the whim of Canada's top ministers, but laws require debate and a vote by parliament. The judge agreed, declared that the government had failed in its court-ordered legal obligations, and that therefore Canada's pot law was null and void.

Now that the Ontario Summary Conviction Appeal Court has upheld the decision, it is binding on all lower courts in Ontario. Although Ontario's higher courts could reverse the decision, right now there is no law against pot possession in Ontario.

The earlier decision from Ontario lower Provincial Court had already been reinforced by decisions in PEI and Nova Scotia. In PEI, the judge explained his reasoning as follows:

"All persons in the Province of Ontario, all 12 million of them, have acquired an immunity from prosecution for marijuana possession, which may be anything from short term to permanent. If this prosecution [in PEI] is permitted to continue, in effect it would be tantamount to a ruling that more than one third of the population of Canada is immune from prosecution while the residents of Prince Edward Island are not."

These court decisions also reveal the true purpose behind the Liberals' impending new pot "decrim" legislation. Their new law would overrule these court decisions, and so the government is expected to pass their new bill as quickly as possible, to fill in the legal void.

A more far-reaching Supreme Court challenge to Canada's marijuana laws was heard on May 6, and a decision is expected in the winter.


In a much anticipated ruling, Justice Steve Rogin has today upheld the judgment of an Ontario court judge which dismissed a marihuana possession charge against a 16 year old youth. The Jauary 2, 2003 ruling of Justice Phillips of the Ontario Court of Justice received nationwide attention in finding that there was, effectively, no longer a valid law criminalizing the possession of marihuana. The Crown immediately appealed that decision. Since that time, hundreds of marihuana possession prosecutions in Ontario have been on hold awaiting the outcome of the appeal. Marc talks to Lawyer Brian McCallister who brought the case through the courts.

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