info needed re: marijuana possession in canada

[mark tonin]

I used to be up on the latest developments in this area but am now out of touch.

Can someone clearly explain the current status of the law in Canada re: marijuana possession? I've lost track of what current statute law says, if recent court decisions have changed things, what the current status of "marijuana for medicinal purposes" is, and what government bills (if any) are currently being debated.

Some links to current news articles that answer the above questions would also help.

Thanks in advance.

Peace, Mark

[purple foot]

so what your saying is. can you do this for me?

[StoneMtn]

First: As I've said before but will say again, I am not a criminal lawyer, so I only know bits and pieces, but, I can say this:

The statute always was and continues to be the Controlled Drugs and Substances Act.

The caselaw is all over the map, though, and depends what your issue is. Basically, though, it's still illegal to possess or traffick in it. As well, that prohibition is not found to be overly broad and thereby it was found to be constitutional under the Charter of Rights and Freedoms.

There is caselaw saying neat stuff like you are not necessarily "impaired" just because you smoked pot, and other things. (By way of contrast, though, there is even an unfortunate judgment out of Quebec recently in which a judge gave a killer a light sentence because she found that pot, among other things, made him uncontrollably psychotic.)

Basically, as I said, it's all over the map. If you need to address a particular fact-pattern, though, just let me know what it is (you can PM if you want) and I'll see what I can dig up for you.

Edited by StoneMtN: I just re-read your post, and I now realize that you are talking specifically about medical pot, and that you want to know what sort of debates are currently ongoing. I would not likely be the best person to answer what is going on in debates right now, as that could likely be answered better by a marijuana-advocate, but I will pull some recent caselaw on the medical pot issue, and see if I can give you a reasoned answer later on.

[StoneMtn]

Okay Mark, this seems to be the latest word from the Ontario Court of Appeal. The following is a summary of the most recent judgment in Canada on this issue:

Case Name:

Hitzig v. Canada

Between

Warren Hitzig, Alison Myrden, Mary-Lynne Chamney, Catherine

Devries, Jari Dvorak, Stephen Van de Kemp, Deborah Anne

Stultz-Giffin and Marco Renda, respondents/appellants in

cross-appeal, and

Her Majesty the Queen, appellant/respondent in cross-appeal

And between

Terrance Parker, appellant/respondent in cross-appeal, and

Her Majesty the Queen, respondent/appellant in cross-appeal

And between

John C. Turmel and Marc J.J. Paquette, appellants/respondents

in cross-appeal, and

Her Majesty the Queen, respondent/appellant in cross-appeal

[2003] O.J. No. 3873

[2003] C.C.S. No. 18870

Docket Nos. C39532, C39738 and C39740

Ontario Court of Appeal

Toronto, Ontario

Doherty, Goudge and Simmons JJ.A.

Heard: July 29-31, 2003.

Judgment: October 7, 2003.

(183 paras.)

Civil rights — Canadian Charter of Rights and Freedoms — Application, exceptions — Principles of fundamental justice (Charter, s. 7.) — Denial of rights — Remedies, declaration of statute invalidity — Narcotic control — Cultivation — Licensing — Criteria — Possession — For medical purposes.

Appeal by Canada from a decision that the scheme for obtaining legal marijuana violated the Canadian Charter of Rights and Freedoms. Cross-appeal by Hitzig and others from a decision that the eligibility requirements under the Marihuana Medical Access Regulations did not violate the Charter. In 2000, the Court of Appeal held that section 4 of the Controlled Drugs and Substances Act, which prohibited the possession of marihuana, was of no force or effect due to the absence of a constitutionally valid exemption for persons who required marihuana for medical purposes. Canada subsequently enacted the Regulations, which allowed specified persons to possess marijuana where they met certain criteria. Persons who fell under category 3 had to provide supporting documents by two medical specialists. Eligible persons could produce their own marihuana, or a designated person could produce it for them. The designated persons could not be remunerated and could not provide marijuana to more than one person. Hitzig and others applied for a declaration that the Regulations violated the Charter. The judge held that the scheme for obtaining the marihuana violated the Charter, but that the eligibility requirements did not.

HELD: Appeal dismissed, and cross-appeal allowed in part. The requirement for the second specialist for category 3 persons, and the prohibitions against payment and supplying marijuana to more than one person were declared to be invalid. The Regulations violated section 7 of the Charter by failing to effectively remove state barriers to a licit source of supply of marijuana to medical users. The requirement that category 3 applicants submit a report by a second specialist violated the right to fundamental justice, as it constituted an arbitrary barrier. The section 7 violations were not saved by section 1 of the Charter. There was no rational connection between the offending aspects of the Regulations and the government's objectives of better public health and safety and effective narcotic control. The remedy imposed was specifically targeted to the constitutional shortcomings of the Regulations. It was not appropriate to suspend the declarations of invalidity. Their effect was to impose a constitutionally valid exemption and to render the marihuana prohibition under section 4 of the Drug Act constitutionally valid and of full force and effect. As well, the immediate imposition of the order recognized the section 7 rights of the terminally ill persons to whom the exemption applied.

Statutes, Regulations and Rules Cited:

Canadian Charter of Rights and Freedoms, 1982, ss. 1, 7, 9, 11(g), 11(h).

Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 4, 5, 56.

Constitution Act, 1867, (U.K.), 30 and 31 Vict., c. 3.

Constitution Act, 1982, s. 52, 52(1).

Food and Drugs Act, R.S.C. 1985, c. F.27, s. 2.

Food and Drug Regulations, C.R.C. 1978, c. 870, s. C.08.010, C.08.011.

Marihuana Medical Access Regulations, S.O.R./2001-227, ss. 4(2)©, 5, 5(1)(e), 6, 6(1), 6(2), 6(3), 6(3)(, 6(4), 7, 9, 11, 12, 23, 34(2), 41(, 51, 54, 70.

Narcotic Control Regulations, C.R.C. 1978, c. 1041.

Appeal From:

On appeal from the judgment of Justice Sidney N. Lederman of the Superior Court of Justice, dated January 9, 2003, reported at (2003), 171 C.C.C. (3d) 18.

My understanding of this summary is that anti-drug statutes in Canada are constitutionally valid, however, we now have regulations allowing for medicinal marijuana. For that reason, it would be unconstitutional to have other laws preventing someone from distributing medicinal marijuana. For that reason, this is an exemption from our marijuana-prohibition laws; especially in light of terminally ill people who require this medication.

I have not read the full judgment as it is very long, and I say again that I am not a criminal lawyer, so I defer to any "expert's" opinion as it may differ from mine. If you would like a copy of the full judgment, PM me, and I'll email it to you.

[mark tonin]

Thanks for the posts and links and emails, and I apologize for not being clear and precise with my request.

Perhaps an easier way to do it is to state what I think the current status is re: marijuana possession in Canada and then somebody can correct me if I'm wrong. I'm not doing a major research paper or anything, I just want to share factual information with people (mostly high school students and some adult friends of mine) that ask. So here is what I think the current status is ... please correct me if I'm wrong or add to what I've said to make it clearer.

1. It is (still) a criminal offence in all parts of Canada to possess any amount of marijuana, unless a person has an official medical excemption that allows them to possess the marijuana for medical purposes.

2. The Supreme Court of Canada has ruled that Canada's current marijuana possession laws are constitutionally valid, and that the government has the right to decide whether or not the possession of marijuana is a criminal offence.

3. There is no bill currently being debated in the House of Commons that would change Canada's laws on marijuana possession.

Am I correct in making the above 3 statements? I have done some reading and research, but I am finding it difficult to find information that clearly verifies that the above 3 statements are true.

Thanks for your input!

Peace, Mark

[StoneMtn]

I agree with #s 1 and 2. I have no idea about #3.

As well, as I stated above, there is a specific exemption from the prohibition laws for medicinal marijuana use, under the Marihuana Medical Access Regulations, S.O.R./2001-227, ss. 4(2)©, 5, 5(1)(e), 6, 6(1), 6(2), 6(3), 6(3)(, 6(4), 7, 9, 11, 12, 23, 34(2), 41(, 51, 54, 70. (For legal purposes, for some odd reason, it is alwyas spelled 'marihuana'.) This means that medical marijuana is supposed to be made available to those who are prescribed it. (Practically speaking, if I'm not mistaken, we do not yet have any sort of government-sanctioned system to implement this.)

[mark tonin]

Thanks StoneMtn, I must have been writing my latest reply when you posted the recent case that you did.

All of this legal stuff makes my head spin at times ... no wonder people are sometimes initmidated by and confused by our legal system!

Here is a fourth statement to go along with the above 3,

4. Because of the case decision that you posted, it is currently possible in Ontario to legally possess marijuana for a medical reason, even if the medical reason is not officially recognized by the government.

Have I got it right?

I wish the government would (finally) deal with this issue by changing and updating our marijuana laws to more accurately reflect current social beliefs and medical opinions.

Peace, Mark

[StoneMtn]

Well, Mr. Tonin, you are certainly taxing my non-criminal-defence-lawyer mind this morning!

Due to my burning curiosity, though, I went right to the source. John Conroy is the leading criminal defence lawyer in Canada on this issue, and a veritable genius at that. I went to his site, and this is a cut-and-paste of his answer to your question:

Authorization to Possess

- An authorization to possess marihuana for medical purposes will be issued by Health Canada. The application requirements to obtain an authorization to possess will depend on the category under which the request is made. The requirements will range from minimum in the case of terminal illness situations to more substantive for non-terminal illness cases where little or no conclusive scientific evidence exists.

- All applications will have to be submitted by a medical practitioner on behalf of the patient. Depending on the category under which the application is being made, support from a medical specialist may be required. The proposed regulations set out three categories.

- Category 1 is for patients who have terminal illnesses with a prognosis of death within 12 months. In this situation, the proposed Regulations provide a less demanding process to obtain the authorization to possess because the risk of long term harm is not present. The Regulations will allow for one renewal under this category should the prognosis be inaccurate. Any subsequent renewals would have to be made under another category.

- Category 2 is for patients who suffer from specific symptoms associated with some serious medical conditions (examples include weight loss in patients with AIDS/HIV in a non-terminal situation; persistent muscle spasms in multiple sclerosis). These symptoms are found in a schedule to the Regulations. Symptoms associated with serious medical conditions in this category have been selected based on the outcome or conclusions of scientific and medical reports from medical organizations that performed a review of available scientific literature (for example the IOM report previously mentioned). These reports confirm the existence of a certain amount of inconclusive scientific evidence to indicate a potential benefit but raise caution on the known risks of using a smoked form, particularly with respect to long term use. Seizures associated with epilepsy have been added to the list of symptoms in the schedule to the Regulations in view of the findings in the Parker case. Though the application under this category may be submitted by a general practitioner, specific statements from a medical specialist are required in support of the application. These statements include, among other things, that conventional treatments have been tried or at least considered and found not medically appropriate for the reasons outlined in the Regulations.

- Category 3 is for patients who have symptoms associated with medical conditions other than those in the other two categories. For this category, although the application may be submitted by a general practitioner, specific statements from two medical specialists are required in support of the application. This is necessary since less conclusive scientific evidence exists supporting the use of marihuana in the treatment of symptoms associated with medical conditions not included in Category 2. All conventional therapies should have been tried or at least considered and found not medically appropriate for the reasons outlined in the Regulations. The list of therapies tried or considered will have to be submitted with the reasons why they were found medically inappropriate.

- For all three categories, the authorization to possess marihuana for a medical purpose will specify a maximum quantity of marihuana equal to a 30-day treatment supply at any given time. Quantity of supply will be continuously refurbished by quantities produced under the licence to produce. The daily dosage that determines the 30-day treatment supply is provided by the physician and will be subject to additional requirements when proposed dosage exceeds a quantity of 5 grams per day.

I highly recommend you check out his site, at http://www.johnconroy.com, or specifically at http://www.johnconroy.com/analysis.html

Presuming his site is up to date, which I suspect that it is, the law is "in flux" meaning that you are essentially right. In my view, if you were busted for medical marijuana right now, it would be difficult to point to the exact authority that allows you to possess it, as Health Canada is yet to make its authorization. That being said, Courts do take into consideration that the law is in flux, and I suspect that what would likely occur is, either, a "stay of proceedings" (meaning that the matter is dismissed for the moment, but the Crown is welcome to resurrect the charges at a later date, presumably when the law is settled. Usually, though, a stay ends up being a "final disposition" of the matter, practically speaking) or an adjournment until such time as the law is settled, or even a dismissal of all charges in light of the fact that the law is "in flux". Clear as mud?

... and once again (the old cover-my-ass comment) I'm not a criminal defence lawyer. The above is not legal advice on any specific set of facts, and if you need actual legal advice on this issue I recommend contacting a criminal defence lawyer in your own provincial jurisdiction.

[mark tonin]

I'm pretty sure that statement number 4. that I posted above is not correct, but I'm having trouble pulling the key point(s) from the case. I think the case is more about how medical marijuana is supplied, but part of it also seems to get at the system used to grant a possession excemption.

Here is another attempt at clarifying the current situation:

The government has made it possible for some people to obtain a medical excemption that allows them to possess marijuana for medical purposes. Currently there is a court battle about how people can obtain such a medical exemption, and there is another court battle about how a person should be able to obtain the actual marijuana once they have an excemption to possess it? Does this sound correct?

Wow, I can't believe that our country is still spending so much time and energy and money debating the issue of marijuana possession ... it just blows my mind!

Peace, Mark

[StoneMtn]

I hate to continue to muddy the waters, but I don't think that's exactly right either. I think:

1. The legislature has passed regulations allowing for possession of medical pot.

2. Ontario Court of Appeal has upheld those regulations insofar as they exempt people from certain sections of the Controlled Drugs and Substances Act.

3. Health Canada is currently formulating how to implement the above.

4. It would only be after Health Canada does its job that we could, possibly, then have a further court battle over that.

(I think.)

[mark tonin]

Thanks for the link SugarMegs ... miss ya!

StoneMtn, once again I think you posted while I was typing a reply. I really appreciate the time and energy that you put into this. My curiosity is also getting to me, although I think I'd better put it on hold for a little while so that I can get some class preparation done. Once again, thanks for the research and the links.

And I totally understand your caution about you not being a criminal lawyer ... I occasionally have to make the same sort of statement to a student that asks a verify specific question about a legal situation.

Peace, Mark

[mark tonin]

Thanks for the 4 point summary StoneMtn, that makes sense to me. Maybe another person with some knowledge in this area will post to either confirm or correct what has been said so far.

Peace, Mark

[bokonon]

hey mark, i emailed my brother to confirm all of this because he is a criminal defense lawyer but i think he is waitin for a retainer as he doesn't believe any of my friends have real jobs and he thinks that i am just dispensing free legal advice to stoned wooks. but if he ever does reply without requesting the retainer i will post his answer here.

[mark tonin]

Sometimes I have a hard time telling who is being serious and who is joking around on this board. I know that I sometimes forget to indicate that I am joking or being sarcastic by using the smiley faces or coloured text. In this case, I am assuming that you are being serious Lex. Thanks for asking your brother for me.

Unfortunately, people do make generalizations, and stereotyping does happen. I am never guilty of those doing those things, but certainly other people are. (Ok, that was a lame attempt at humour.) I remember the first time I went to Frontier Town, with all of it's crazy party madness in full force, and then I started to get to know some of the people that I met there and realized that there are all kinds of different people that are part of the "jam" community. Yes it's a pretty homogeneous community in some respects, but it still freaks me out how wide the spectrum of people is that visit this message board and go to shows.

That's it for this late night ramble ... time for some sleep.

Peace, Mark

[guigsy]

but it still freaks me out how wide the spectrum of people is that visit this message board and go to shows.

::

god, i love tonin!

[mark tonin]

right back at you, guigsy! ::

[bokonon]

hey mark, my brother finally sent me a response so here it is. i left the sarcastic bits in because i thought they were pretty funny.

If he has a respectable job he can't possibly be a real hippy. If he tells you he is he's probably just doing research for an acting part or a really convincing halloween costume. Or maybe he's a cop.

Anyway, I don't know exactly what you mean by "the info" on marijuana law. It's not like the whole of marijuana law can be condensed into a one page memo. Anyway, I'm assuming he wants some kind of summary. I don't have a good summary on my computer right now so what I'm going to do is e-mail you a copy of the governing legislation and I will try to briefly summarize some main points.

The governing legislation is the Controlled Drugs and Substances Act (CDSA for short). It deals with all controlled drugs including marijuana. I have attached it hereto in Wordperfet format because I don't have a functioning Word program on this computer. The CDSA is a federal statute as opposed to a Provincial Statute (an example of a provincial statute is the Highway Traffic Act). That means that it is an act that was created by the Federal Legislature. Offences under the CDSA are considered criminal offences just like those under the Criminal Code (again, contrast this to an offence under the Highway Traffic Act like speeding which is not a criminal offence, it is merely a provincial offence and doesn't carry the same stigma). In my opinion most (if not all) of the offences under the CDSA are bullshit and should not be criminal offences (or offences of any kind). I think adults should be able to choose wether or not to take drugs just like they choose whether or not they can drink and the sale of drugs should be regulated but not prohibited. On this one thing at least I agree with the hippies.

Anyway, I digress. The CDSA prohibits the possession, production, or sale/transfer of controlled substances except in accordance with the provisions of the CDSA or the regulations made under that act. Marijuana is a substance prohibited by Schedule II of the CDSA ("Schedule" is just a fancy word for "list."). The CDSA has 8 Schedules or lists of drugs. Some of those Schedules (like Schedule II) contain a list of drugs that are generally thought to be less serious and some contain drugs thought to be more serious. Some schedules list drugs for a more technical purpose that I won't get into here because it would take forever and would require me to actually do some research. Most marijuana offences are simple possession charges under s. 4(1) of the CDSA. The very fact that these "offences" are even prosecuted is a disgrace and makes me embarassed on behalf of the justice system because it lacks the sense to be embarassed on its own account. It breeds disrespect for the law that sane, informed adults are prosecuted and labelled as criminals (and their lives are thereby ruined because they can't get jobs after that or travel to the United States for vacations) for smoking small quantities of marijuana and we're told this is somehow "for their own good." All this while big tobacco and the government itself (LCBO) rake in billions each year for selling products that are proven to kill their consumers (I'm not saying that they shouldn't be able to sell cigarettes or alchohol, I think they should, I just think it's a bit hypocritical to then criminalize the sale of weed). Anyway, I digress. So just to finish up here, CDSA offences are prosecuted by a Federal Crown as opposed to all criminal code offences which are prosecuted by the provincial Crown Attorny's office. I'm not sure why this is as the Criminal Code is also a federal statute they should probably just have the regular crowns prosecute CDSA charges. Maybe there is a good reason for this but given what I know about the justice system and the law in general I kind of doubt it.

Oh, here's and interesting little tidbit for you. For a brief period during 2003, the simple possession of less than 30 grams of marijuana was perfectly legal (I bet you cashed in on that hippie jackpot didn't you?). The reason for this is that in July of 2000 a case called R v. Parker was decided by the Ontario Court of Appeal and that case stated that s. 4(1) of the CDSA was constitutionally invalid because it did not allow for marijuana to be used for medicinal purposes. The court gave Parliament 12 months to re enact the section accordingly but Parliament neglected to do so. Technically possession of less than 30 g of marijuana was legal from July 2001 until sometime in late 2003. However, I don't think anyone brought this argument up until the R. v J.P. case was decided in May 2003. J.P. decided that until the government re enacted s. 4(1) of the CDSA with respect to small quantities of marijuana it was legal to possess such small quantities. So for a while during 2003 people were having a ball smoking pot on the steps of courthouses and police stations youremember, you were there.

Anyway, just to be clear, you can't smoke marijuana now. A court of appeal decision in J.P. came down at the end of the summer of 2003 and ended the party for everyone (sons of bitches!). The Parliament is still thinking about decriminalizing marijuana and turning it into a non criminal offence but they're taking their sweet time about it.

[meggo]

what an interesting read! thanks to you and your bro. you guys are funny.

[bokonon]

he sent me the cdsa but it came in html when i opened it in wordpad and i don't know what to do with that.

[bokonon]

i did find a website with a lot of potential to help anyone interested in canadian federal law. it's http://laws.justice.gc.ca . just to warn you, it's huge and takes some searching skills.

[mark tonin]

Thanks Lex, and thanks to your brother as well ... it's informative and it got me chuckling a few times as well.

And I like that avatar!

Peace, Mark

[bokonon]

more humour from my brother that i want to share:

P.S. Although I think marijuana should be legal I still think that patchouli should be illegal and possession and use should be punishible by death, or at least a severe bathing.

(please note the opinions expressed in this sarcastic mini rant do not necessarily represent the opinions of all neziols)