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Toronto Police Service Interim Procedure regarding possession of marijuana.

Source: Julian Fantino, Chief of Police for Toronto - 06/05/03

While the Federal Government has been unduly preoccupied with the introduction of legislation to decriminalize the simple possession of marijuana police officers in Ontario are currently in a position of uncertainty with regard to whether simple possession of marihuana is an offence at all.

On May 16th, 2003, The Honourable Mr. Justice Rogin of the Ontario Superior Court of Justice sitting as a Summary Conviction Appeal Court in the Southwest Region issued his judgment in the matter of Regina v. J.P. (a young person) charged with possession of under 30 grams of marihuana contrary to section 4(1) of the Controlled Drugs & Substances Act (CDSA).

In his judgment, Mr. Justice Rogin held that due to the lack of Parliamentary response to the July 31, 2000 decision of the Ontario Court of Appeal in Regina v. Parker, simple possession of marihuana was no longer an offence known to law. Mr. Justice Rogin cited Parker, stating that in that decision Mr. Justice Rosenberg, speaking for the Court, had severed marihuana from s. 4 of the CDSA and declared it invalid (s. 4 as it relates to substances other than marihuana remained in full force and effect.) This declaration of invalidity was suspended by Mr. Justice Rosenberg for a period of 12 months from July 31, 2000. Accordingly, as of July 31, 2001, Mr. Justice Rogin held, s. 4 of the CDSA as it relates to marihuana became invalid.

Parliament's response to the Ontario Court of Appeal decision in Parker was to enact the Medical Marihuana Access Regulations which came into force on July 30, 2001. However, Mr. Justice Rogin held that parliament had not re-enacted s.4 of the CDSA as it relates to marihuana, and to again make simple possession of marihuana an offence.

The Department of Justice is appealing the Judgement in J.P. to the Ontario Court of Appeal.

In the interim, Justices of the Peace are not issuing or confirming the process required to place charges of simple possession of marijuana before the Court. In addition, Justices are declaring existing charges to be a nullity.

Requests for adjournments until the Court of Appeal renders its decision in J.P. are not being granted.

This is not the first time that a Provincial Court of Appeal has declared a federal law unconstitutional and of no force and effect within that Province. However, federal offences, and especially those aimed at stemming the use of illegal substances, demand a uniform and consistent application nation-wide. It is not in the public interest to allow safe havens from prosecution for possession of marihuana to exist within Canada. Nor is it acceptable to have our police officers left in a quandary regarding the enforcement of the law.

Further difficulty has been created by the lack of advice or direction to police from the Federal Justice Ministry. While the Federal Government focuses its efforts on decriminalizing simple possession of marihuana, our police officers have been left in a total sense of uncertainty regarding enforcement of the current law. Police officers, entrusted with enforcing the law and ensuring the public safety, are entitled to receive clear direction regarding the law from those responsible for making the law.

Due to this uncertain and unsatisfactory state of affairs, I have recommended that our officers exercise their discretion regarding situations which involve simple possession of marihuana. Police will continue to investigate and enforce the law regarding marihuana according to established procedures, but will not lay charges of simple possession. Rather they will seize the marihuana and fully document the incident with a view to laying a charge following clarification of the law by the Court of Appeal or Parliament.

Enforcement of all offences other than simple possession of marihuana remains unaffected.

Julian Fantino

Chief of Police

June 5, 2003

Supt. W. Cotgreave for Chief J. Fantino