[ql06] CRIMINAL: Pot -- OCA strikes back
- From: "Ken Campbell -- LAW'06" <2kc16@xxxxxxxxxxxxxxxx>
- To: <ql06@xxxxxxxxxxxxx>
- Date: Wed, 8 Oct 2003 19:05:14 -0400
This one will still keep on...
But, for now, toke with those damp towels covering the crack under the
door.
Cops can start busting people again. The argument is interesting --
driving those in medical need to the black market. But I don't see that
as ultimately convincing. (Tell me you aren't pro-pot banning, Mark? I
mean, libertarian conservatives are tolerable on some level... :)
I see many of the same names from a decade ago, when I covered the hemp
issue and protests. Our friend Alan Young, from Osgoode Hall, is of
course in there.
And Christopher Clay... Geez, I met him once at Trinity Church in
Toronto (meeting I covered) and interviewed him numerous times. Ol'
Chris is taking it to the Red Nine...
Pot use falls in that non-crime area Prof. Trotter has been dealing with
a lot of late.
Ken.
--
An author is a fool who, not content with boring those he
lives with, insists on boring future generations.
-- Charles de Montesquieu
--- cut here ---
Judges rule an end to the pot party
Appeal court restores law; Victory for medical users
TRACEY TYLER
LEGAL AFFAIRS REPORTER
TORONTO STAR
October 8 2003
The party's over.
The province's short-lived flirtation with wide-open marijuana use ended
yesterday when the Ontario Court of Appeal restored a federal narcotics
law making marijuana possession a criminal offence.
While the decision was a setback for recreational pot smokers ? and a
political defeat for those fighting to reform Canada's drug laws ? many
medical marijuana users were treating it as a major victory.
The court made it easier for medical users to obtain a reliable supply
of the drug by allowing licensed growers to produce plants for more than
one person, potentially through large-scale farming operations, and to
be compensated for their labour.
The decision also removes a requirement that would-be medical users need
a second medical specialist to support their application.
Existing federal rules governing medical marijuana use were
unconstitutional because they forced people with serious illnesses to
turn to illicit black-market sources, in violation of their right to
life, liberty and security of the person, the court said yesterday in a
decision written collectively by Mr. Justice David Doherty, Mr. Justice
Stephen Goudge and Madam Justice Janet Simmons.
"Requiring law-abiding citizens who are seriously ill to go to the black
market to fill an acknowledged medical need is a dehumanizing and
humiliating experience," the court said. "Equally, driving business to
the black market is contrary to better narcotic control."
The decision upholds a ruling made by Mr. Justice Sidney Lederman of the
Superior Court of Justice last January in the case of 10 sick people and
one "caregiver" who wanted Ottawa to supply them with the drug.
However, while Lederman struck down the existing rules, the appeal court
decided instead to fix the problem by rewriting the regulations
governing the possession and growing of medical marijuana in a way that
removes barriers to the drug and makes the scheme constitutionally
valid.
As a result, the law making it a crime to possess marijuana for any
other purpose ? invalid since July 31, 2001 ? went back on the books,
effective yesterday.
Changes to make the drug more accessible to medical users also take
immediate effect. "Some of these people are terminally ill" and it would
be "inconsistent with fundamental Charter values" if they were to die
while waiting for changes to be made, the court said.
The decision opens the door to medical marijuana users from coast to
coast getting cheap drugs from "compassion clubs," which, to date, have
been considered part of the black market.
It's ironic the government has told medical users to turn to the black
market, yet shut down many compassion clubs, "presumably because they
contravene the law," the court said, dismissing the government's appeal
of Lederman's ruling.
"The best thing that comes out of this is that it's a green light for
rebuilding and expanding compassion centres across Canada," said law
professor Alan Young, who represented several of the litigants.
"They're giving us an opportunity to ... create an underground economy,
which we couldn't do before.
"We can, if we play this right, set up warehouses with thousands and
thousands of plants for ourselves and the prices should come right
down," he explained to clients who gathered at the court to obtain a
copy of the 98-page ruling, released in conjunction with decisions in
three other related cases.
In an interview later, Young said he can easily envision at least 50 of
the 500 Canadians currently licensed to grow marijuana getting involved
in perfectly legal, large-scale grow operations, which could yield
between 3,000 and 5,000 plants.
The number of plants they are allowed to grow is based on the user's
prescribed dosage.
If the product wasn't grown under licence for medical use, "three to
five thousand plants would get you penitentiary time right now," he
said. "That's when you're considered to be an organized crime-biker
type."
Marco Renda, of Dundalk, Ont., who uses pot to battle hepatitis C,
called the decision to let growers cultivate for more than one person
"perfect."
Joyce Myrden, whose daughter Alison combats symptoms of multiple
sclerosis with marijuana, said while medical users didn't succeed in
striking down the law, the decision is a "step" in the right direction
and "gives Alison something to keep fighting for."
Young said the court delivered a "clear judgment" that removes the
"chaos" that developed from recent court rulings over the question of
whether possessing small amounts of marijuana is legal. It is also "a
very clever decision," he said, because "this court caught on to what we
were trying to do."
His clients hoped that if the courts found the federal rules
unconstitutional, prohibitions against marijuana possession would fall
by the wayside, making pot-smoking legal across the board. The court
settled on a less drastic remedy by rewriting the rules.
"Instead of throwing out the baby with the bathwater, they just changed
the bathwater," Young said. "Politically, we've lost."
However, the court also confirmed that, prior to yesterday's ruling, the
law prohibiting marijuana possession had been "of no force or effect
since July 31, 2001" ? leaving a big question mark as to what that means
for charges still in the system or those that have already resulted in
convictions.
Justice Minister Martin Cauchon, who has introduced a bill to
decriminalize the possession of small amounts of marijuana, called
yesterday's ruling "a good decision" but says the government still has
to consider its next step.
Young said convictions imposed in the past 26 months are "null and
void."
The period of invalidity stems from a ruling the appeal court made three
years ago in a case involving Terry Parker, a Toronto epileptic who uses
marijuana.
Mr. Justice Marc Rosenberg gave the federal government a year to come up
with a viable scheme that would allow would-be medical users to apply
for permission to use marijuana legally.
Rosenberg said if a workable scheme wasn't in place by July 31, 2001,
the blanket ban against pot possession would cease to exist.
The legal battle isn't quite over.
The Supreme Court of Canada could rule this fall on a challenge to the
laws banning recreational pot smoking, brought by Christopher Clay, who
owned a store in London, Ont., called the Great Canadian Hemporium.
With files from Les Whittington
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