There is a huge sucking sound in Ontario, and it's not just delighted marijuana consumers hitting the bong. The sucking noise is coming from the huge legal vacuum into which the marijuana laws in Canada's most populous province have fallen. A succession of court rulings in the province have effectively nullified the marijuana possession law, unprecedented efforts by federal government lawyers to suspend those rulings have failed, and in the process government lawyers conceded what cabinet ministers have denied: Ontario has no marijuana possession law. While the government of Prime Minister Jean Chretien is moving ahead with a bill that would replace criminal penalties for pot possession with fines, it is unlikely to become law for months. And after a court ruling this week, it appears that any judicial resolution to the vanishing cannabis law problem will not take place until the end of July at the earliest.
The police are finally taking notice. Beginning with Toronto police chief Julian Fantino, law enforcement officials heading agencies aground the province have announced that they are no longer arresting marijuana users and people who possess less than 30 grams of the weed. But, while responses vary from department to department, many, including Toronto, have announced that they will continue to seize marijuana and record the names of those found in possession for possible future prosecution if and when Ontario gets its pot law back.
Things came to a head Tuesday, when Ontario Court of Appeal Justice Louise Charron refused a federal Justice Department request to stay a May 16 ruling by Ontario Superior Court Judge Steven Rogin that acquitted a Windsor youth on possession charges because there was no law with which to charge him. Ontario courts have ruled that the federal government has failed to act on a 2000 Ontario Supreme Court ruling declaring the marijuana laws unconstitutional and giving the feds a year to fix them. Crown lawyers tried the unheard of request for a stay to no avail, as Justice Charron pronounced herself "baffled" at the "unprecedented" motion.
"Today is a clear signal that Justice Rogin's decision is, for now, the law of the province, which judges in trial courts have to apply," Brian McAllister, the lawyer representing the teenager, told reporters after the ruling. "I think a lot of judges were hesitant to throw out charges in anticipation of this hearing, but today's decision should certainly have an impact on what people do from now on."
"It wasn't the acquittal we were seeking to have stayed so much as the effect of Justice Rogin's order, which has been interpreted by many to suggest there is no prohibition against possessing marijuana in Ontario," said Justice Department spokesman Jim Leising. Leising's formulation itself suggested that whether there was a marijuana law or not remained controversial and echoed the public statements of Justice Minister Martin Cauchon, but in papers filed with the court last week, the Crown's own lawyers disagreed.
"The practical effect of Justice Rogin's judgment in there is presently no valid prohibition against marijuana possession in Ontario," Crown attorneys wrote in the motion for a stay. Rogin's decision "is binding on lower courts in Ontario, who have exclusive jurisdiction over most marijuana possession cases," the Justice Department conceded. "Without a suspension of Justice Rogin's judgment, the effective prosecution of marijuana possession in Ontario is jeopardized, pending this Court's resolution of this appeal."
Justice Charron granted the Crown motion to appeal Rogin's ruling on an expedited basis, but it will take until late July to assemble a panel to hear that motion and some time after that for it to issue a ruling. The Crown has quit bringing marijuana possession charges in the province, many court have quit trying them, and now the police are almost falling in line, too.
Prodded by an advisory from the Ontario Association of Chiefs of Police last week calling on police to show "discretion" in handling small-time possession cases, Toronto Police Chief Julian Fantino announced June 6 that his department would no longer arrest for possession -- but that it would continue to seize the pot and take names. "Police will not lay charges of simple possession," Fantino said in a release. "Rather, they will seize the marijuana and fully document the incident with a view to laying a charge following clarification of the law by the Court of Appeal or Parliament."
In his advisory, Tom Kaye, president of the Ontario Association of Chiefs of Police, told police chiefs, "If it's under 30 grams, process them in accordance with your department's policy procedure, lob the drugs in the vault, do up all the paperwork... then wait until we see what's going to happen from the appeals court."
Departments around the province are heeding those words. Departments in London, Ottawa, and Chatham-Kent have adopted similar procedures, and for those honeymooners reading these words, so have the Niagara Regional Police. Hamilton police are still making arrests, but local justices of the peace are refusing to hear the cases. Hamilton Justice Wendy Casey even threw out charges laid before the May 16 ruling, effectively wiping out a half-dozen Crown cases there.
That's not good enough for some Ontario activists and criminal defense attorneys. Brian McCallister, who argued the Rogin case, warned that police could leave themselves open to lawsuits by continuing to harass pot possessors, asking how police can enforce a law that has been "effectively erased." Toronto defense attorney Paul Copeland agreed, telling the Toronto Star, "It's legal to smoke pot in this province. My opinion is there is no law in Ontario prohibiting possession of up to 30 grams, or a gram of hashish, for that matter."
And the Ontario Consumers for Safe Access to Recreational Cannabis (http://www.ocsarc.org) demanded an end to any further police attention toward pot possessors. "Search and seizure laws are quite clear: You may only be detained and lawfully searched on suspicion of committing a serious offence," said Tim Meehan, OCSARC's Communications Director. "This new policy could open the Toronto force to a wide range of liability for illegal search and seizure for possession of a substance which is legal under law according to the courts. Seizing joints and taking names just in case the law is reenacted on appeal smacks of sour grapes, and could be a financially painful lesson for the police -- and for Toronto ratepayers," Meehan continued.
Other members of the cannabis consuming community, however, were a bit more mellow. Mike Foster, owner of Ottawa's Crosstown Traffic head shop, told the Buffalo Evening News, it didn't matter much. "We all kind of live our lives oblivious to government anyway," Foster said. "We smoked dope yesterday, we'll smoke dope tomorrow." And at least for the time being, they can smoke it without fear of arrest in most of Ontario.