Pot Activists Hail Court Victory, But Crown Says It's Non-binding
The Canadian Press
November 14, 2007
OTTAWA - Marijuana activists are hailing a recent court ruling as the beginning of the end of Canada's prohibition on pot, but the Crown dismisses the decision as non-binding.
A trial judge in Oshawa, Ont., threw out charges of simple possession of marijuana against three young men on Oct. 19, relying on a previous court ruling that found Canada's pot law unconstitutional.
In making his decision, Justice Norman Edmondson cited a decision last July by a fellow judge of the Ontario Court of Justice.
In the earlier case, which is being appealed by the Crown, Justice Howard Borenstein accepted the defence lawyer's argument that Ottawa must pass a law - rather than rely solely on government policy - to allow accredited medical marijuana users to possess pot.
Health Canada has been forced by a series of court decisions to set up a medical marijuana program authorizing patients struggling with chronic conditions to use dope to alleviate their symptoms.
And a court ruling in 2003 required Health Canada to provide government-certified marijuana to these patients so they don't have to turn to the black market for their medicine.
In the July 13 Borenstein decision, defence lawyer Bryan McAllister successfully argued that the law itself should have been changed, not just the program.
And because the law has not been rewritten to accommodate medical users, the prohibition on all use - including recreational use - collapses because the law is unconstitutional, the court ruled.
A spokeswoman for the Crown said the October decision in Oshawa will not be appealed.
"The decision of the trial judge is not binding upon any other trial judge and the (Borenstein) decision he relied upon ... was wrongly decided," Stephane Marinier, of the Brampton, Ont., office of Public Prosecution Service of Canada, said in a e-mail.
The Crown will make its counter-arguments in an appeal of the Borenstein decision at Ontario's Superior Court of Justice, Marinier said.
In the Oshawa case, the three accused were defended without charge by paralegal Edwin Pearson, and with court costs of about $3,000 paid by Doug Hutchinson, a self-described "pot-head professor."
Hutchinson is a tenured professor of philosophy at the University of Toronto who took on the case after learning that one of the accused was related to a student in his class.
Pearson, a legal scholar who says the pot law has been unconstitutional since a 2001 court ruling, says the federal government is causing great harm by pursuing prohibition.
"They're making kids into criminals. They're taking away their educational capabilities, job capabilities, their travelling capabilities, because of what? Because of pot?" he said in an interview.
Pearson and Hutchinson have created a self-help kit to encourage others accused of marijuana possession to make their own constitutional challenges.
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