The unraveling of Canada's marijuana laws continued apace last week, with an Ontario court throwing out the government's medical marijuana regulations and Prime Minister Jean Chretien reversing his earlier demurral on marijuana decriminalization. Within the two weeks prior, Canadian judges had overturned the law barring possession of small amounts of marijuana (http://www.drcnet.org/wol/271.html#canadaconundrum) and thrown out a case alleging marijuana-impaired driving (http://www.drcnet.org/wol/271.html#nodwi).
In the medical marijuana case, the Ontario Court of Appeals had in 2000 ruled Canada's Controlled Drugs and Substances Act unconstitutional on the grounds that it did not provide an exemption for the medical use of marijuana and gave the federal government one year to replace the law or it would become invalid. Instead, the government developed a set of Marijuana Medicinal Access Regulations, but held up the promised distribution of medical marijuana and wrapped the entire application process in cumbersome red tape. Medical marijuana users and the Toronto Compassion Center, which had supplied medical marijuana to 1,500 patients until it was raided last year, challenged the legality of the regulatory scheme -- and won.
Ontario Superior Court Justice Sidney Lederman ruled on January 9 that a law that allows sick people to smoke marijuana, but forces them to buy it on the street, is no law worth having. "Laws which put seriously ill, vulnerable people in a position where they have to deal with the criminal underworld to obtain medicine they have been authorized to take violate the constitutional right to security of the person," Lederman wrote in a 40-page ruling. "I have grave reservations about a regime which... grants legal access by relying on drug dealers to supply and distribute the required medicine."
The federal government has six months to fix the regulations, ruled Lederman, after which time they will be "of no force and effect."
For Alan Young, one of the attorneys on the case, the ruling could mark the end of the marijuana law. "It's another nail in the coffin, and this is a big nail," Young told reporters after hearing the decision. "We feel it will be appealed, but it's the light at the end of the tunnel... I can't really see the law maintaining any operation after this year. It's sitting on a really precarious foundation."
"We're very gratified by the decision," said Joseph Neuberger, another attorney on the case. "It addresses the concerns that we highlighted and puts real pressure on the government to now put into place a regime that does provide them with access to [a] safe supply of medicinal marijuana. If they don't comply, then possession is lawful and they're no longer subject to criminal law."
"This is the strongest decision we have to date about the climate of the day with regard to decriminalization," said attorney Leora Shemesh. "Lederman is saying the Marijuana Medicinal Access Regulations are ineffective, and that's probably the best signal we've received so far from a higher court about possibly decriminalizing the entire regime."
Even Prime Minister Jean Chretien may finally be ready for that. While at Christmas time, Chretien threw cold water on comments by Justice Minister Martin Cauchon that the government was ready to move on decriminalization, by last weekend Chretien had changed his tune -- although his spokesman insisted it really was the same tune. "The PM is strong on this," said a spokesman on January 10, referring to decriminalization legislation. "The government is determined to address this issue."
Although Chretien had said on Christmas that the government had made no decision, and took pains to note that he had never smoked marijuana and didn't even know what it smelled like, he hadn't changed course now, the spokesman insisted. "I don't think he has ever had a change of heart," said the spokesman. "I just think that he really wanted to make sure that before legislation is introduced, that caucus and Cabinet and everybody who is involved in this have their opinions expressed before moving ahead."
But Chretien probably wasn't counting on the opinion of Ontario Court Justice John Moore, who a day earlier became the second Ontario judge in a week to declare the laws against possession of small amounts of marijuana invalid. He threw out pot possession charges against Toronto resident Martin Barnes, who had been busted with one joint in his pocket. "Mr. Barnes was charged with an offence not known to law," Moore said as he quashed the charges.
"The marijuana laws as they pertain to possession have completely fallen apart," Barnes's lawyer, Aaron Harnett told the National Post. "Anyone charged with simple possession of marijuana should be on the phone to their lawyer immediately to launch a similar application," he added.
Meanwhile, federal lawyers are pondering whether to appeal the medical marijuana ruling. But at the speed things are moving in the Canadian courts, and soon, in parliament, those lawyers may opt to just hold for dear life until their world stops spinning around.