Canadian judge strikes down marijuana possession laws as unconstitutional

July 15, 2007 A judge in the province of Ontario, Canada dismissed marijuana possession charges against a Toronto man, ruling that Canada's laws governing possession are unconstitutional.

The unidentified defendant, 29, had been charged with possession after police had found him carrying 3.5 grams of marijuana.

Since July 30, 2001, Canada has allowed a medical exemption for the possession and growing of marijuana, under Health Canada's Marijuana Medical Access Regulations. The regulations describe eligible persons as those "suffering from grave and debilitating illnesses." Canada contracts a company, Prairie Plant Systems, to cultivate and package seeds and/or dried marijuana for shipping of a monthly supply to eligible patients. A packet of 30 seeds costs CA$20, plus taxes. Dried marijuana costs patients CA$150 for 30 grams (slightly more than one ounce). The defendant in the legal case was not suffering from an illness and was not in need of an exemption from the possession laws. The man put forth a defence that questioned the legality of the medical exemption since it was only a regulation, not a law. He argued that all possession laws, therefore, should be struck down.

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

The defendant's lawyer, Brian McAllister, felt that the ruling may have significant consequences for possession laws throughout the province. "Obviously, there's thousands of people that get charged with this offence every year," said McAllister. He suggested that Ontario residents can cite the new ruling as a defence for possession charges. "That's probably why the government will likely appeal the decision," he said.

Judge Borenstein will make his ruling official in two weeks time. Prosecutors in the case have said that they will appeal the decision soon.

In related news, a Liberal senator from the province of British Columbia, Larry Campbell, said Wednesday that the federal government should decriminalize marijuana and "tax the hell out of it,". He said the government should use the revenue for health care priorities. Sales should be controlled by government, he stated, in the same way that alcohol is sold. He noted that organized crime is pulling in large profits on the growing and sale of the drug.

Senator Campbell also suggested that too many resources are placed on the criminal prosecution of people for possession of small amounts of marijuana. "This is not a drug that causes criminality," he said. "People are getting criminal records for essentially nothing."

A recent UN survey, the 2007 World Drug Report, has determined that marijuana use in Canada is the highest among developed nations. Some 16.8 percent of Canadians between the ages of 15 and 64 used marijuana in 2004, compared to 12.6 percent of Americans, 8.7 percent for Britain, 8.6 percent for France, 6.9 percent for Germany, and 0.1 percent of Japanese.

York University law professor Alan Young, said the report's numbers may be skewed higher for Canadians due to the willingness of Canadians to discuss the issue. "It's become a large part of youth culture in Canada, and more importantly, 50 percent of marijuana smokers are over the age of 30," he said. "So it's really gone to all age groups, all class groups. There's no question about it that there is less stigma in Canada."

Only four other countries ranked ahead of Canada on marijuana use: Papua New Guinea, Micronesia, Ghana, and Zambia.

The UN data for harder drugs such as amphetamines and ecstasy showed relatively low use among Canadians.