Court still prohibits marijuana possession

Court still prohibits marijuana possession

Shannon Kari, National Post
Published: Thursday, December 11, 2008

The prohibition against simple possession of marijuana has been
upheld by an Ontario Superior Court judge, in a closely watched case
that stemmed from the prosecution of Clifford Long, who was arrested
by Toronto police with $40 worth of cannabis.

Justice Eva Frank overturned a decision by a lower court judge last
year that found there was no valid restriction against possession of
cannabis because of flaws with the country's medical marijuana
regulations.

The lower court decision led to confusion about prosecuting simple
possession cases in Ontario, said the federal government in its
arguments before Judge Frank earlier this year.

The federal Crown argued that the present policies of Health Canada
have resulted in enough marijuana for the nearly 2,000 people with
medical certificates to possess the drug.

Judge Frank agreed with the arguments made by federal government
lawyer Lisa Csele in the ruling issued this week. "Mr. Long has
failed to establish that state conduct has infringed the interest of
persons in medical need in obtaining a reasonable supply of
marijuana," said the judge.

As a result, the prohibition against possession of marijuana
is "still in force" and the medical regulations, including Health
Canada's "supply policy" were found to be valid, explained Ms. Csele.

The ruling is the latest in a series of challenges to the country's
marijuana possession laws based on the medical regulations.

The Ontario Court of Appeal ruled in 2003 that the federal
government could ban possession of marijuana only if there was a
legitimate supply for medical users. Health Canada responded by re-
enacting three of the sections the appeal court said were
unconstitutional.

This fall, the Federal Court of Appeal found that one of the new
sections was again unconstitutional because it would not let
designated producers grow for more than one medical user. The
federal government is asking the Supreme Court to hear an appeal of
that ruling.

Alan Young, a criminal law professor at York University in Toronto
and one of the lawyers in the Federal Court case, suggested that the
ruling by Judge Frank should be appealed.

There are significant problems with the current medical marijuana
distribution scheme, which is why only 20% of medical users access
their cannabis from the federal government, noted Mr. Young.

Judge Frank stated that the Charter of Rights does not impose
a "positive obligation" on the state, only restrictions on its
ability to deprive individuals of certain rights.

"That has never been the suggestion" by medical marijuana advocates
said Mr. Young. The "ongoing waltz" of court cases in this area is
to try to reduce restrictions on producing marijuana for medical
users, instead of obtaining it from the government, he stated.

As for Mr. Long, he stated in court this summer that he did not care
about his $40 marijuana charge or the implications of his case.

His lawyer, Corbin Cawkell, said may require some form of "public
interest funding" if there is to be an appeal of the decision by
Judge Frank.

skari@nationalpost.com