A provincial judge in Ontario, Canada's most populous province, ruled Thursday that the country's law on possession of small amounts of marijuana is no longer valid. In his ruling, Justice Douglas Phillips dismissed two marijuana possession charges against a 16-year-old boy and held that the Canadian Parliament had failed to address constitutional problems with Canada's marijuana laws.
In July of 2000, the Ontario Court of Appeal struck down the federal law prohibiting the possession of less than 30 grams of marijuana. In that case, the court held that the marijuana law violated the rights of people who use the drug for medicinal purposes. The court gave Parliament one year to enact changes in the law that would satisfy constitutional concerns. While the federal government, waiting until the last minute, responded to that ruling by issuing Marijuana Medical Access Regulations on July 31, 2001, those regulations did not address the issue of recreational use.
Thursday's ruling only adds to the Canadian cannabis conundrum. Canadian Justice Minister Martin Cauchon and a House of Commons select committee have both called for decriminalization, while a Senate panel earlier called for regulated legalization, but Prime Minister Jean Chretien has recently undercut Cauchon, suggesting last week that his government has made no decision on decriminalization. And while the ruling is non-binding, if it is appealed to the Ontario Court of Appeal and upheld, it would be binding for the province and would set a precedent for other provinces and the federal government.
"This could push the government to move faster," said Eugene Oscapella of the Canadian Drug Policy Foundation of Canada (http://www.cfdp.ca). "It will make things very interesting at the political level. Will the government appeal this case, arguing that possession should stay a criminal offense? If they were to lose, they could end up in a situation where there is no regulation of marijuana," he told DRCNet.
As a result, Oscapella said, he expects the government to act. "The government has to do something," he said. "Will it be true to its rhetoric about decriminalization? That is the question. The government is under intense scrutiny from the national media on this issue. The media is saying 'you said you're going to do decrim, the courts say the law is unconstitutional, what are you going to do?'"
Despite the prospect of an unregulated marijuana market if the Canadian Supreme Court eventually hears and upholds Thursday's case, that may be the most politically palatable course for the Canadian government, Oscapella said. "If we get marijuana decriminalization or legalization through the courts instead of the political process, that takes off the political pressure from the US," he said. "It is more difficult for the US to criticize our court decisions than our political decisions, and, of course, the government can then say 'it's not our fault.'"
But as the Canadian government squirms, the pressure to change the marijuana laws is mounting. According to a poll released Thursday, 50% of Canadians want decriminalization of marijuana, while 47% oppose it. The poll, conducted by Strategic Counsel, a Toronto polling firm, found that 53% of those under 40 supported decrim, while 48% over 40 did. The poll also found, unsurprisingly, that support for decrim was strongest in British Columbia, with 56%. Also, the pollsters noted, many respondents failed to differentiate between decriminalization and full legalization. "They may not have got the nuance," one of the pollsters suggested.