Canada: Wire: Pot Charges Could Be Stayed Across Canada
Pubdate: Sun, 30 Mar 2003
Source: Canadian Press (Canada Wire)
Copyright: 2003 The Canadian Press (CP)
Author: Louise Elliott
POT CHARGES COULD BE STAYED ACROSS CANADA: EXPERT
OTTAWA ( CP ) - Criminal charges for possessing small amounts of pot could be put on hold in provinces across the country following court rulings in Ontario and P.E.I., says a prominent legal expert.
A provincial court judge in P.E.I. ruled this month that an Ontario court decision which prompted the adjournment of all simple possession charges in Ontario should be binding in other provinces as well. He was referring to the Parker case in Windsor, Ont. - now under appeal - which saw charges thrown out against a 16-year-old boy on the argument that the federal Controlled Drugs and Substances Act no longer effectively prohibits possession under 30 grams. It led the federal Justice Department to ask its Crown attorneys to seek an adjournment or stay of all simple possession charges in Ontario.
Justice officials last week similarly stayed all pot possession charges in P.E.I. as a result of the ruling there.
Alan Young, a professor at Osgoode Hall law school in Toronto, said judges in other provinces may also follow suit out of sheer frustration with Ottawa's sluggishness in dealing with marijuana possession laws.
"Really, I think people are fed up and I would think that pretty much across the country, with the exception of possibly Alberta, most courts would be more than happy to start staying marijuana prosecution."
Young said many lawyers may not realize the charges in Ontario and P.E.I. have been stayed pending the results of the Parker appeal, but judges would not hesitate if lawyers point out the law is vulnerable.
"If raised, I can't imagine many courts wanting to proceed with these minor cases knowing that they may be imposing criminal records on people who effectively have done nothing criminal."
In an interview, Justice Ralph Thompson of P.E.I. provincial court said he'd received several requests for a copy of his ruling from other provinces. Adding to the law's vulnerability is the fact Justice Minister Martin Cauchon has promised to introduce new legislation to decriminalize marijuana.
The legislation, originally promised by the end of April, could now take until the end of the session in late June, Cauchon said recently.
Three key cases now before the Supreme Court involving simple possession, trafficking and a marijuana "club," also hang in the balance, and have been put off until May 6.
But Thompson said he didn't take into account Cauchon's promised new law in making his decision.
"Basically what I determined was that it would be an abuse of process to permit the charge to proceed here when charges weren't proceeding in Ontario," he said. "Until such time as the law can be uniformly applied across the country in such a way that 12 million people in Ontario are not subject to prosecution, then that charge will not proceed here."
Young argued the P.E.I. ruling should prompt the Justice Department to stay possession charges countrywide.
"Why they wouldn't give an instruction like that across the country is puzzling considering that we have national criminal law," he said. "My explanation is that they never go out of their way to move this issue in a progressive way. They do as little as possible and they wait until they're pushed again."
Cauchon has said he will continue to defend the current law until it is changed. He also outlined what will likely become part of his new drug strategy, a department insider said last week: a comprehensive approach to drug use involving a health strategy and greater enforcement of ticketable offences.
Trafficking and possession of other drugs would still remain a crime. Young argues that the Parker case, along with Cauchon's promise to decriminalize the law and his department's insistence on push through on prosecutions, has produced a policy quagmire.
"It's very unfair on local agents who do the dirty work for him, to have them do trials that may be for nought," Young said.
"They have a minister who seems to be suggesting he wants to change the law, yet he's still prosecuting people . . . If that's his position, he's extremely disingenuous about this issue and he's playing politics."
Mike Murphy, a spokesman for the minister, said Cauchon is acting in the public interest.
"There's no politics being played here. The minister will do what he believes is right for the Canadian people."
Young said it would be an easy legislative procedure to remove pot possession from the current act, and make it a ticketable offence.
"The question is, 'Why has it taken a year before he's even introduced the proposal?'"
Subj: Canada: Rulings Cloud Pot Charges - Law Prof
Pubdate: Mon, 31 Mar 2003
Source: Ottawa Sun (CN ON)
Copyright: 2003, Canoe Limited Partnership
Contact: oped@ott.sunpub.com
Website: http://www.fyiottawa.com/ottsun.shtml
Author: Louise Elliott / Canadian Press
RULINGS CLOUD POT CHARGES: LAW PROF
Criminal charges for possessing small amounts of pot could be put on hold in provinces across the country following court rulings in Ontario and P.E.I., says a prominent legal expert.
A judge in P.E.I. ruled this month that an Ontario decision which prompted the adjournment of all simple possession charges should be binding in other provinces.
He was referring to a case in Windsor which saw charges thrown out against a 16-year-old boy on the argument that the federal Controlled Drugs and Substances Act no longer effectively prohibits possession under 30 grams.
Justice officials last week similarly stayed all pot possession charges in P.E.I.
Alan Young, a professor at Osgoode Hall law school in Toronto, said judges in other provinces may also follow suit out of frustration with the federal government's sluggishness in dealing with marijuana possession laws.
As well, Justice Minister Martin Cauchon has promised to introduce new legislation to decriminalize marijuana.
The legislation, originally promised by the end of April, could take until the end of June, Cauchon said.
Subj: 001 CN PI: P.E.I. Judge Refuses To OK Pot Charge
Pubdate: Sun, 16 Mar 2003
Source: Edmonton Sun (CN AB)
Contact: letters@edm.sunpub.com
Copyright: 2003, Canoe Limited Partnership.
Website: http://www.fyiedmonton.com/htdocs/edmsun.shtml
P.E.I. JUDGE REFUSES TO OK POT CHARGE
Cites Similar Cases Thrown Out In Ontario
SUMMERSIDE, P.E.I. -- A Prince Edward Island judge has stayed a teen's marijuana possession charge, ruling it would be unfair to prosecute him when other Canadians have immunity from the same charge.
Provincial Court Judge Ralph C. Thompson stayed the proceedings against the 19-year-old after considering cases in Ontario.
The teen was charged with possessing 30 grams or less of marijuana in the fall.
In his decision, the judge explained an Ontario Court of Appeal ruling, known as the Parker decision, effectively struck down the law that prohibits simple possession.
In July 2000, that court said the possession of marijuana charge under the Controlled Drugs and Substances Act violated the rights of Terry Parker of Toronto, by preventing him from legally accessing marijuana for medicinal reasons. The court gave Parliament a year to revamp its laws.
In January, an Ontario court threw out marijuana possession charges against a 16-year-old on the basis Ottawa had not yet effectively dealt with the Parker ruling by filling the legislative void. That case remains under appeal.
Thompson ruled that Canadians are entitled to an even-handed approach by federal prosecutors, and until Parliament or higher courts dictate otherwise, simple possession charges will not proceed in his court.
From: CMAP (http://www.mapinc.org/cmap)
Date: Wed, 12 Feb 2003 21:52:16 -0800
Size: 34 lines 1263 bytes
Pubdate: Tue, 11 Feb 2003
Source: Toronto Sun (CN ON)
Copyright: 2003, Canoe Limited Partnership.
Contact: editor@sunpub.com
Website: http://www.fyitoronto.com/torsun.shtml
Author: Sam Pazzano
FEDS APPEAL POT RULING
Told to Fix Laws or Supply Weed
Ottawa is appealing last month's landmark Superior Court ruling that ordered the federal government to fix its medicinal marijuana regulations or provide a legal source and supply to sick people.
Last month, Justice Sydney Lederman declared the current Marijuana Medicinal Access Regulations (MMAR) unconstitutional but gave the government an ultimatum -- fix the regulations or supply the pot itself by July 9.
Lederman was scathing in his criticism of the MMAR in his judgment.
"Laws which put seriously ill, vulnerable people in a position where they have to deal with the criminal underworld to obtain medicine they have been authorized to take, violates the constitutional right to security of the person," Lederman wrote.
Government lawyers have another nine days to seek a stay of Lederman's declaration that would quash the regulations in July, preserving the current laws until an appeal is heard, perhaps later this year.
CANADIAN JUDGE REJECTS MARIJUANA CHARGE,
POTENTIAL LANDMARK CASE
According to a Canadian Press report, an Ontario Court judge threw out a marijuana charge against a 16-year-old boy in a decision lawyers say could soon spell the end of Canada's prohibition on possessing small amounts of pot. Justice Douglas Phillips dropped the charge after lawyer Brian McAllister argued in court that there is effectively no law in Canada prohibiting the possession of 30 grams of marijuana or less. McAllister warned that even though the ruling could be precedent-setting, anyone possessing small amounts of marijuana could still be charged. "I doubt police will stop charging people for the moment," said McAllister. McAllister had brought forward an application to have the charge dropped on the grounds that Ottawa has not yet adequately dealt with a ruling two years ago from the Ontario Court of Appeal. In that landmark decision, the appeals court sided with marijuana user Terry Parker, who argued that the law violated the rights of sick people using the drug for medical reasons. The federal government responded to the Parker ruling with new Marijuana Medical Access Regulations, which are supposed to allow marijuana use for medical reasons under certain circumstances. Those regulations are currently the subject of a separate constitutional challenge by a group of marijuana users who say they don't adequately meet the needs of seriously ill people.
Joseph Neuberger, one of several lawyers involved with that challenge, said the latest decision could be the beginning of the end of the laws that make simple possession illegal in Canada. "Because of the Parker decision, the government had to put in place a regime that allowed proper access for those who needed it for medical purposes," Neuberger said. "The argument is the government never complied with that order . . . that for simple possession, there really was no law." In the case of the Windsor-area teen, federal drug prosecutor Ed Posliff argued that it was a crime to possess marijuana if it wasn't authorized for use for medical reasons. McAllister argued, however, that the Ontario Court ruling made the entire law invalid because the federal law wasn't changed properly. "Parliament didn't fix the problem in the right way," McAllister said Thursday. "They did it by way of regulations and the Court of Appeal (was) required to address the issues with some legislation." McAllister noted that even though the possession charge involving the youth has been challenged, it's still illegal to traffic and grow marijuana.
Our present War on Drugs began in 1972 when pot-smoking demonstrators against the Vietnam War mocked all authority, ridiculed President Nixon and challenged the very assumption of his authority. His response has resulted in a society subjected to draconian remedies. The War on Drugs - through stringent, puritanical measures - attempts to set the public right. Not only is justice not done, it is threatened and derided.
Our national drug policy, hasn't changed significantly with changes in administration. It emphasizes interdiction, police action and imprisonment with a pious and pseudo-reverential nod to treatment and education. The policy persists in spite of all evidence, even the government's own, demonstrating that it is foolish and unworkable. And despite the billions of dollars spent each year in drug enforcement programs, less that $1 out of every $100 is spent on research and evaluation to find out why it isn't working. As recently as March 29 of last year the National Research Council of the National Academy of Science and the National Academy of Engineering advised that the nation's ability to evaluate whether the drug policies even work is no better now than it was twenty 20 years ago when the War on Drugs was escalated from bravado to guns and blood.
Without hard, well-researched information, it is not even possible to articulate a new or improved policy. All that is left is the frequently expressed inanity that changing our drug policy would "send the wrong message to our children."
In this darkest of comedies, the government hasn't the slightest notion what message our children are presently receiving.
Perhaps we should send a message to our children about the causes of death in the United States. We would have to tell them that tobacco is legal and, at 430,700 deaths per year, is the leading cause of substance-abuse deaths; that alcohol is legal and 110,600 die from it each year; that adverse reactions to legal prescription drugs cause 32,000 fatalities a year; that 30,500 commit suicide; 18,000 are homicide victims; and that 7,600 people die each year from taking anti-inflammatory drugs such as aspirin. Of course, we don't want to send them the wrong message that the total number of deaths caused by marijuana is zero.
Perhaps the message we should be sending our children is that local, state and federal governments now spend more than $9 billion per year to imprison 458,000 drug offenders. What would be the cost of our current drug policy if it were succeeding rather than failing? Incarcerating all cocaine users in the U.S. would cost $74 billion, but only after constructing 3.5 million more prison beds at an initial cost of $175 billion. It would cost $365 billion to jail everyone who smoked marijuana last year - five times the total national, state and local spending for all police, courts and prisons combined. To contain this crowd behind walls, we would need a cadre of guards and other prison employees larger than all of our military forces combined. These projections are not entirely academic: The nation is completing the construction, on average, of a new prison every week.
More costly than money, however, is the price we now pay for this failed policy in terms of the decline in public safety, the breakdown of our criminal justice system, the erosion of our civil liberties and the pervasive public disrespect of the law.
Good citizens, who are otherwise law-abiding, ignore or evade drug laws. With literally tens of millions of people using illegal drugs or related to those who do, an ever-increasing part of the population has become cynical about our laws, legal system and political process.
Each year since 1989, more people have been sent to prison for drug offenses than for violent crimes. At the same time, only one in five burglaries is reported and only one in 20 reported burglaries ends in arrest. Yet detectives continue to be reassigned from burglary details to investigation of street sales of drugs. The cost for this particular aspect of our national folly is absorbed in significantly increased insurance premiums.
Furthermore, interdiction efforts are utterly futile.
Using data supplied by the federal Office of National Drug Control Policy, we learn that the price of heroin has dropped, not increased, while its production has risen greatly. The illegal market price of cocaine in 1981 was $275.12 per gram and by 1996 it had dropped to $94.52. Because a kilogram of raw opium sells for $90 in Pakistan, but is worth $290,000 in the United States, law enforcement seizures have little, if any, impact on operations or profitability.
And, as New York Times columnist Anthony Lewis observed on April 28, 2001, "The effort to stop cocaine exports from Peru has cut the flow from there substantially. But that reduction has been more than made up by a huge increase in coca cultivation and production in Colombia. As Plan Columbia, the military anti-drug program, gets under way there, production is reportedly beginning to shift to Ecuador." Lewis listed the costs to other nations of our current drug policies: the rise of drug gangs, the poisoning of peasants from the spraying of undesirable crops, the corruption of governments and increased deaths by violence. "Yet," he notes, "the amount of cocaine and heroin entering the United States is as great as ever."
Police agencies still need to protect the public by holding those who cause accidents or commit crimes while under the influence of drugs and alcohol fully accountable for their acts, but we must get them out of the business of financing their operations through the seizure and forfeiture of private property. The costs of law enforcement should be funded from the public treasury so that we can determine how much the implementation of government policies is costing. In other and harsher words, we need to terminate the symbiotic business relationship that law enforcement has with the illegal drug industry. Each scratches the other's back.
Indeed, the two groups who would suffer most from an elimination of the black market in drugs would be, in nearly equal measure, organized crime and law enforcement. Those who would benefit the most would be the people, especially children, who have never before tried drugs because there would be no economic incentive to turn them into customers.
Those who are already addicted or abusing drugs or who will no matter what law obtains can be treated rather than imprisoned at a cost of one-seventh the amount needed to imprison them.
And let's not forget the "other victims" of the so-called War on Drugs - those people and businesses who can't get into court to have their cases heard; the victims of traditional crimes such as burglary, rape and robbery who can't get justice because the police are tied up with drug cases; merchants going bankrupt because the police no longer have time to investigate or prosecute bad-check cases; battered spouses whose mates are not sent to jail because there's only room there for pot smokers; physicians and other medical care providers who cannot treat their patients according to conscience and the discipline of their profession; the sick and dying who endure unnecessary pain; children whose parents are taken from them; the police who have given up honorable and challenging work investigating and detecting crime because they have become addicted to and dependent upon an informant-based system reminiscent of Lenin's dreaded Cheka; families forced to select one member to plead guilty lest the entire family be charged; prosecutors and defense attorneys who have turned the temples of justice into plea-bargaining bazaars; and, most painful to me, judges who let this happen and don't say a word.
In order to deal successfully with drug abuse, this nation must abandon its failed policies and rhetoric of misinformation.
I suggest that federal drug law should be severely cut back. The importing of unauthorized drugs should continue to be a federal crime and the regulation of manufacturing drugs for distribution in interstate commerce should likewise be a federal concern, but the several states should regulate sales and decide which activities are criminal - such as selling or inducing minors to take drugs - and which drugs, if any, should be prohibited. In sum, the policy should be to end the black market, end the freebooting financing of law enforcement by forfeiture and treat those drug and alcohol abusers who want to be treated.
At the present time, our national drug policy is inconsistent with the nature of justice, abusive of the nature of authority and ignorant of the compelling force of forgiveness. Our drug laws, indeed, are more mocked than feared. These are the messages we are sending our children.
It was good to see Judge John L. Kane come out with so many detailed points about why the War on Drugs creates far more problems than it solves ("America in a fix," April 27). But he still believes that the "importing of unauthorized drugs should continue to be a federal crime . . ." This is precisely the bogus legal pretext on which the War on Drugs is now waged.
Kane does not discuss the much deeper point that the powers of the federal government are enumerated. The power to "authorize" some drugs and criminalize others is not one of them. The only authority it has is to tax them. He also ignores that there are only three federal crimes -- piracy, counterfeiting and treason. Drug use is not one of them.
Why did alcohol prohibition require a constitutional amendment, but not drug prohibition? On what basis, then, does Kane and the rest of the federal judiciary continue to sanction the blatantly unconstitutional War on Drugs?
Lee Smith
Loveland
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