Judge Rules Canada's Pot Possession Laws Unconstitutional Fri, 13 Jul 2007 © Canadian Broadcasting Corporation (Canada Web)

A Toronto judge has ruled that Canada's pot possession laws are unconstitutional after a man argued the country's medicinal marijuana regulations are flawed.

The 29-year-old Toronto resident had been charged with possession of about 3.5 grams or roughly $45 dollars worth of marijuana.

The man has no medical issues and doesn't want a medical exemption to smoke marijuana. In 2001, Health Canada implemented the Marijuana Medical Access Regulations, which allow access to marijuana to people who are suffering from grave and debilitating illnesses.

In court, the man argued that the federal government only made it policy to provide marijuana to those who need it, but never made it an actual law. Because of that, he argued, all possession laws, whether medicinal or not, should be quashed.

The judge agreed and dismissed the charges.

"The government told the public not to worry about access to marijuana," said Judge Howard Borenstein. "They have a policy but not law.... In my view that is unconstitutional."

Defence lawyer Brian McAllister, who represented the man, said the ramifications of the ruling have potential to be "pretty big."

"Obviously, there's thousands of people that get charged with this offence every year," he said.

McAllister said Ontario residents charged with possessing marijuana now have a new defence.

"That's probably why the government will likely appeal the decision," he said.

Borenstein has given prosecutors two weeks before he makes his ruling official. Prosecutors told CBC News they want a speedy appeal to overturn the decision.

"For the time being, nothing changes," Toronto police spokesman Mark Pugash said about how the force deals with marijuana possession. "We have to wait and see what happens with the process through the courts."

Marijuana Possession
Globe and Mail (Canada) © 2007

Pot Activists Hail Ruling

OTTAWA -- Marijuana activists are hailing a recent court ruling as the beginning of the end of Canada's prohibition on pot, but the Crown dismisses the decision as non-binding.

A trial judge in Oshawa, Ont., threw out charges of simple possession of marijuana against three young men on Oct. 19, relying on a previous court ruling that found Canada's pot law unconstitutional. In making his decision, Judge Norman Edmondson cited a decision last July by a fellow judge of the Ontario Court of Justice.

In the earlier case, which is being appealed by the Crown, Judge Howard Borenstein accepted the defence lawyer's argument that Ottawa must pass a law - rather than rely solely on government policy - to allow accredited medical marijuana users to possess pot. (see article above)

Health Canada has been forced by a series of court decisions to set up a medical marijuana program authorizing patients struggling with chronic conditions to use dope to alleviate their symptoms.

And a court ruling in 2003 required Health Canada to provide government-certified marijuana to these patients so they don't have to turn to the black market for their medicine.

In the July 13 Borenstein decision, defence lawyer Bryan McAllister successfully argued that the law itself should have been changed, not just the program. And because the law has not been rewritten to accommodate medical users, the prohibition on all use - including recreational use - collapses because the law is unconstitutional, the court ruled.

A spokeswoman for the Crown said the October decision in Oshawa will not be appealed.

"The decision of the trial judge is not binding upon any other trial judge and the [Borenstein] decision he relied upon ... was wrongly decided," Stephane Marinier, of the Brampton, Ont., office of Public Prosecution Service of Canada, said in a e-mail.

The Crown will make its counterarguments in an appeal of the Borenstein decision at Ontario's Superior Court of Justice, Ms. Marinier said.

Ed Note: For the time being pot is legal in Canada period!

Please also read: Long Term Exposure To Cannabis