As of May 16, there is no law banning the possession of small amounts of marijuana in Ontario, Canada's most populous province. On that date, Ontario Superior Court Justice Steven Rogin upheld a lower court ruling that a Windsor teenager arrested for smoking marijuana in a park had not broken any law because Canada effectively has no marijuana law. The ruling is binding on courts in Ontario and should provide precedent for courts in other provinces, according to lawyers who successfully argued the case. Lower courts in Nova Scotia and Prince Edward Island had already joined with the courts in Ontario pronouncing Canada's marijuana possession law null and void.
If the ruling stands, any moves by the Canadian government to decriminalize marijuana possession could actually "recriminalize" it. But the federal Justice Department is moving to have the case heard in the Ontario Court of Appeal, and in the meantime is vowing to continue to prosecute marijuana cases. "We are still of the opinion that the law against marijuana is valid," the department's Jim Leising told the Toronto Globe & Mail.
And Ontario law enforcement agencies are taking the same line, albeit with some confusion. In Windsor, across the border from Detroit, police spokesmen told the Detroit Free Press it would be business as usual. "Everything will be done the same way we've been doing it -- people will be arrested if they are caught with marijuana," said Sgt. Kevin Trudell of the Windsor Police drug investigation unit. A Toronto police spokesman who seemed unaware of the ruling told DRCNet: "Yes, we are arresting people for marijuana possession. The legislation is still in effect, and until it changes we will enforce the law." Ottawa Police and the Ontario detachment of the Royal Canadian Mounted Police did not respond to DRCNet queries about their policies.
Lawyers who argued the case had a different take. The decision "has effectively erased the criminal prohibition on marijuana from the law books in Ontario," said Brian McAllister, who represented the Windsor teenager. "Canada's marijuana law has been nonexistent since July 31, 2001 [a year after the Canadian Supreme Court ruled it unconstitutional] and Justice Rogin recognized that. His ruling makes it official, at least in Ontario," he told DRCNet. "This ruling is binding on all trial courts in the province. Any trial court here that hears a marijuana case is bound to find there is no offense."
Still, McAllister cautioned, it wouldn't be advisable to go out and flaunt one's pot-smoking. "I wouldn't encourage anyone to do that," he said, "even though I don't understand why the police, who are not trained in the law, would thumb their noses at an appeals court decision. Given this ruling, if police continue to arrest and prosecute people for marijuana possession, they are risking massive civil liabilities. They can't say they didn't know better."
And while federal prosecutors vow to continue to try marijuana possession cases, another attorney in the case told the Globe & Mail that people facing possession charges should demand their cases be heard now, while the law is nullified. "Anybody who's got a charge before the court should definitely take advantage of this," said Paul Burstein. Similarly, Burstein said, anyone charged in Ontario with marijuana possession since Rogin's ruling should consider suing the police for unlawful arrest.
Meanwhile, Canada's Supreme Court is now considering a trio of related cases that could wipe out possession laws nationwide (http://www.drcnet.org/wol/286.html#supremecourtcanada). Unlike the Ontario case, which McAllister said revolved around parliament's failure to enact a new marijuana law, the case before the Supreme Court addresses the issue of whether parliament has the constitutional right to punish marijuana possession given the lack of proven serious harms from its use. A ruling in that case is pending.