Some winning strategies for both lawyers and the self-represented.

By David Malmo-Levine - C/O (most probably) Conroy and Company (www.johnconroy.com) June 2003

Recently, there have been a number of interesting decisions comming out of Canadian courts of law regarding cannabis. This is a simple guide to these decisions, and how they might affect you if you have upcoming simple possession (or even dealing and growing) charges - anywhere in Canada - any time soon.

There are currently two arguments winding their way through the court system. The first argument - "medical necessity', really began to pick up speed with the Parker case. The "harm principle/harm reduction" argument, recently put to the Supreme Court of Canada, is due by the end of the year, and may change all cannabis law in Canada. The Parker case, however, has already changed Canada's cannabis law.

It all began with Terry Parker

In 1987, epileptic Terry Parker was charged with possession of marijuana, but the judge accepted Parker's plea of "medical necessity" and acquitted him of possession charges, thus making him Canada's first semi-legal marijuana user. A year later the feds appealed the decision, and Parker won again. Despite the court decisions, in July 1996 Metropolitan Toronto police raided Parker's apartment under suspicion that he was growing pot. They found 71 plants, and charged him with possession, cultivation, and trafficking.

Since the courts had already accepted Parker's use of marijuana as a medical necessity, Harnett argued that Parker's rights were violated when police seized his plants and charged him.

In December 1997, the Ontario Court of Justice accepted Parker's defence and found him not guilty of possession and cultivation of marijuana, by reason of medical necessity. He was found guilty of trafficking after admitting he had given buds to other sick friends. The judge even ruled that Parker's pot plants should be returned, although the police failed to do so. The decision made headlines across Canada.

The feds appealed the decision to the Ontario Court of Appeal, Ontario's highest court. In July 2000, the judge ruled that Canada's law against marijuana was unconstitutional, and granted Terry Parker the right to use medicinal marijuana. The judge also ruled that Parliament had one year to rewrite Canada's marijuana laws to accommodate med-pot usage, or else the pot-prohibition law would be erased from the Criminal Code. www.cannabisculture.com/articles/1721.html

It now continues with Brian McAllister

That was back in July of 2000. In January of 2003, in Windsor, Ontario, lawyer Brian McAllister convinced Provincial Court Judge Phillips that Canada's cannabis laws no longer exist, and his 16-year-old client went free on charges of possession. In his ruling, Justice Philips added that if a cultivation or trafficking case had been before him, he would have thrown out those charges as well. www.cannabisculture.com/articles/2849.html

In the Parker ruling, Ontario's Supreme Court said that Canada's marijuana laws were unconstitutional because they didn't adequately address the needs of sick people who required pot. The court gave the government one year to change the law and provide medical access to marijuana, or the whole law against pot would be struck down.

One year later, the government had created new medical marijuana regulations, but didn't change the actual law. The difference, argued McAllister, is that regulations can be altered at the whim of Canada's top ministers, but laws require debate and a vote by parliament. The judge agreed, declared that the government had failed in its court-ordered legal obligations, and that therefore Canada's pot law was null and void.

Now that the Ontario Superior Court has upheld the decision, it is binding on all lower courts in Ontario. Although Ontario's higher courts could reverse the decision, right now there is no law against pot possession in Ontario.

The freedom is spreading ...

The earlier decision from Ontario lower Provincial Court had already been reinforced by decisions in PEI and Nova Scotia. In PEI, the judge explained his reasoning as follows:

"All persons in the Province of Ontario, all 12 million of them, have acquired an immunity from prosecution for marijuana possession, which may be anything from short term to permanent. If this prosecution [in PEI] is permitted to continue, in effect it would be tantamount to a ruling that more than one third of the population of Canada is immune from prosecution while the residents of Prince Edward Island are not."

These court decisions also reveal the true purpose behind the Liberals' impending new pot "decrim" legislation. Their new law would overrule these court decisions, and so the government is expected to pass their new bill as quickly as possible, to fill in the legal void.

www.cannabisculture.com/articles/2958.html As lawyers in other provinces advance similar arguments, a judge in Windsor, Ontario, simply dismissed 22 cases for marijuana possession on June 2. Saying that pot possession was not an "offence known to law," Justice Micheline Rawlins dismissed all the cases and let the defendants go free.

This was the first time marijuana-possession charges have been dismissed in bulk like that. but in other Ontario regions prosecutors have adjourned or stayed charges. (The stays deactivate charges for one year, when they'll be dismissed if prosecutors don't reinstate them.)

Although judges are dismissing cases and prosecutors are staying charges, most Ontario police departments are resisting the court rulings and insisting they will continue to bust people for possession. "Everything will be done the same way we've been doing it," Sgt Kevin Trudell of the Windsor, Ontario drug investigation unit told the media. "People will be arrested if they are caught > with marijuana."

Justice Rogin's ruling erased Canada's cannabis laws because they did not provide enough access to medicinal marijuana. Yet the proposed new law does not address medical marijuana at all, so it is unclear if the Liberal bill would ultimately overrule the Ontario Superior Court decision.

www.cannabisculture.com/articles/2968.html

On June 5th, Julian Fantino, the Chief of Police for Toronto, issued a press release, announcing the Toronto Police have stopped laying simple possession charges. He wrote;

"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."

What is good enough for Torontonians is good enough for all Canadians.

The Harm Principle/Harm Reduction challenges - Clay, Caine and Malmo-Levine

A more far-reaching to Canada's marijuana laws was heard on May 6 at the Supreme Court of Canada. The argument was made by lawyers John Conroy (representing Randy Caine for simple possession) and Paul Burstein (representing Chris Clay for possession, cultivation and trafficking). David Malmo-Levine (trafficking) represented himself.

The argument, in a nutshell, was that the harms that may come with cannabis abuse in a black market are relatively small, and even smaller still - well below the trivial - in a regulated market. To familiarize yourself with some of these arguments, check out the following online sources:

www.cannabisculture.com/articles/2955.html www.johnconroy.com www.pot-tv.net (click on "Supreme Court" at the top of the home page)

A decision is expected in the winter.

It is now time for lawyers to argue more principled "necessity" and "autonomy" arguments - or at the very least, have their clients cases dismissed or put off until the high courts come back with their decisions. In the case of some form of decriminalization bill passes, Canadian cannabis consumers should familiarize themselves with the "medical necessity" and "autonomy/harm principle/harm reduction" arguments - so that if you wish to clog up the court time with plenty of facts, principles and cases that are relevant to the argument of why you should not have to face any punishment whatsoever, there are lots of those materials at the above links.