The Canadian government announced on January 3 that it will appeal an Ontario court decision overturning Canada's laws against the possession of small amounts of marijuana. The ruling by Justice Douglas Phillips came in the case of an unnamed 16-year-old Windsor youth. Phillips agreed with defense counsel that the Canadian government's failure to adequately deal with an earlier Ontario Court of Appeals ruling effectively invalidated the possession law. In the earlier case, involving medical marijuana patient Terry Parker, Justice Marc Rosenberg ruled that if the government did not craft new legislation within a year allowing for medical use of marijuana, the blanket prohibition on marijuana possession in Canada's drug laws would be nullified. Although Ottawa responded by crafting medical marijuana regulations, Phillips ruled that they fell short of the new legislation demanded by Rosenberg, thus rendering void the nation's current marijuana possession ban.
Government spokesmen painted the rapid decision to appeal as aiming at reducing "uncertainty" about Canada's marijuana policies. But the move only adds to the confusion about what the government of Prime Minister Jean Chretien intends to do about the contentious issue. Last year, a Senate panel called for legalization of marijuana and a House of Commons panel called for its decriminalization. Justice Minister Martin Cauchon told reporters he would introduce decrim legislation by April. But his boss, the prime minister, undercut Cauchon late in December, saying no decision had been made on marijuana policy. This week, a Cauchon spokesman retorted that "nothing had changed." The Canadian Supreme Court last month also reprimanded the government for sending mixed messages on pot. Now, the government is appealing a court decision that could have resolved the issue, and at the same time it is telling prosecutors to hold off on trying simple possession cases.
"It makes you wonder," said Brian McAllister, attorney for the 16-year-old, telling the Calgary Herald the appeal made him suspicious about whether the government would actually move to decriminalize and calling on Ottawa to clarify its position. "It seems like every time there's a court challenge to marijuana laws, there are rumblings out of Parliament about decriminalization and. it's almost as if they're trying to influence the courts," he said.
"We were aware of the uncertainty the decision created, so we thought we'd move as quickly as possible," Canadian Justice Department spokesman Jim Leising told an Ottawa press conference. "We are hoping the appeal will be heard quickly because it is in the public interest that this occurs," he said, adding that he expected a hearing from the Ontario Superior Court within 30 days.
In the meantime, said Leising, the Controlled Drugs and Substances Act remains the law of the land and police will continue to arrest people for possessing less than 30 grams of cannabis. "We haven't given any direction to police to not continue to enforce the law," he said. But he did say Crown prosecutors should consent to postpone cases involving less than 30 grams pending the outcome of the appeal. "What we've put on hold is proceedings with trials where people want to rely on the same defense. Hopefully, by prosecutors agreeing to adjournments, nobody will be jeopardized by the uncertainty."
Leising maintained that the government's position is consistent. "There is a continued and consistent view that there needs to be a prohibition against possession of marijuana, he said.