TORONTO - Ottawa needs to fix long-standing loopholes and inconsistencies in Canada's marijuana laws to help the justice system contend with a surge of court cases resulting from the Conservative government's new zeal for enforcement, legal experts say.
With witnesses reporting a dramatic increase in the number of possession cases before the courts, those familiar with the intricacies of the law say it remains vulnerable to the argument that Canada's medicinal marijuana program renders it unconstitutional.
"Everytime a judge calls into question our marijuana laws, it undercuts the legitimacy of the law," said Alan Young, a Osgoode Hall law professor and veteran of the long-standing debate about marijuana, its medicinal benefits and decriminalizing its possession.
Four years after Ottawa supposedly closed off a complex legal loophole that effectively rendered the law unenforceable, an Ontario Court judge agreed Friday that the law governing pot possession in Canada was unconstitutional.
The Liberal government's decision in 2003 to allow eligible patients access to marijuana for medicinal reasons was made by an informal policy statement and never changed the existing statutes or regulations, Lawyer Bryan McAllister argued.
"It is a departmental policy that can be changed at whim, or even ignored," McAllister said in an interview.
"An aggrieved party cannot go to court to seek enforcement of a government policy."
Without a clause that makes an exception for medicinal marijuana users, "the policy is not enshrined in law, it has no value, and the law as it stands is unconstitutional," McAllister said.
Ontario Court Justice Howard Borenstein agreed and dropped the charges against Clifford Lond, 29, a Toronto resident who was charged with possessing 3.5 grams of pot. Borenstein said he would wait two weeks to make a formal ruling, giving public prosecutors time to file an appeal.
Eric Nash, who has testified as an expert witness in a number of cannabis cases across Canada, said the number of cases he has been involved in has "tripled" in recent months.
"All of the sudden there seems to be a huge increase in the number of marijuana possession cases going to court," Nash said.
That's because the number of people arrested for smoking pot rose dramatically in several Canadian cities last year after the Conservatives took office and killed Liberal legislation to decriminalize small amounts of marijuana.
Preliminary figures suggested the number of arrests jumped by more than one-third in several Canadian cities; Toronto, Vancouver, Ottawa and Halifax all reported increases of between 20 and 50 per cent in 2006.
In 2003, Young successfully argued that since there was no effective program for sick people to possess medical marijuana without breaking the law, the law didn't prohibit possession.
As a result, a number of enforcement agencies said they wouldn't lay charges for simple possession until the laws were clarified. Eventually, an Ontario court closed the loophole by firming up the rules governing how medicinal users obtain marijuana.
The implications of last week's decision are difficult to gauge until the two-week grace period is over, which will also depend on if the ruling is deferred to a higher court, Young said.
"Right now, all it does is create another layer of confusion in terms of the enforcement of the marijuana possession offence."
That's not to say it won't set a precedent, he added: judges and lawyers are always looking for precedent-setting cases that allow them to avoid lengthy marijuana possession cases.
"Courts are not that thrilled to have possession offences before them; they see it as a waste of time," he said. "So this decision while it is not binding, is persuasive."
None of which comes as a surprise to Eugene Oscapella of the Canadian Foundation for Drug Policy, which has been closely monitoring the changing federal stance on marijuana-related offences.
"This (Conservative) government is clearly bent on a more punitive policy," Oscapella said. "Overwhelmingly, the emphasis is on punishment, and punishment is not the appropriate mechanism for dealing with drugs . . . . It's a health and social issue. it should not be in the area of criminal law."
