Is marijuana possession legal in Canada?

There is a strange series of cases in Ontario, Canada, that call into question whether marijuana possession is truly illegal in the Great White North.

Clifford Long’s constitutional saga began in September 2005 when he was a passenger in a car stopped by police for a seatbelt infraction.

The officers conducted a search, allegedly found $40 worth of marijuana and Long joined the ranks of the more than 40,000 people still charged each year across Canada for simple possession of cannabis.

Long was acquitted in July 2007 when provincial court Justice Howard Borenstein accepted an argument by Long’s lawyer that Canada’s marijuana possession laws were unconstitutional because of flaws in the medical marijuana regulations.

Earlier this year, a Federal Court of Canada judge also found the medical marijuana regulations to be unconstitutional, a decision that is under appeal.

That got me to Googling, because I couldn’t figure out how a medical marijuana regulation would affect a non-medical possession case.

HELD: The provisions respecting the criminalization of the possession of marijuana were declared unconstitutional in the absence of an accompanying constitutionally acceptable exemption for medical marijuana. The current exemption depended on the government supplying marijuana, which it was only doing as a result of the policy. However, the policy did not impose a legal obligation upon the government to supply marijuana to those who needed it for medical purposes. The court held that without such an obligation, the exemption was constitutionally unacceptable, as access to marijuana depended on the implementation of a policy rather than the application of a law. If the government wanted to control the supply of marijuana, it had to impose an obligation upon itself to supply marijuana to eligible persons. The court held that if the government was obliged by law to supply marijuana in accordance with the policy, the exemption would be constitutionally acceptable.

If I am reading this correctly (and I may not be – I’m no lawyer, and certainly even less familiar with Canadian law), it breaks down like this:

• There’s a law against possessing marijuana.
• However, you have a right to use medical marijuana.
• So how do you know that the marijuana possessor isn’t using it medically?
• The government said it will supply the marijuana to medical users, that way, anyone possessing non-government marijuana will be criminal.
• But hold on – government only made that a policy.  There’s no law that says they have to supply medical marijuana.
• If there’s no law requiring government to supply medical marijuana, then government’s not bound to supply medical marijuana.
• If government’s not bound to supply medical marijuana, then medical users have no choice but to obtain it illegally.
• Thus, since there is no legal way for medical users to assert their right, the law preventing them from doing so is null and void.

Even though the decision in the Long case isn’t binding upon Canadian law, provincial judges in Ontario have stopped accepting guilty pleas in minor marijuana possession cases.  The government in Ottawa wants to get this resolved by appealing the case, but there are some strange twists in tale as well:

The federal government quickly filed an appeal of Borenstein’s ruling last summer, but Long’s former lawyer is under administrative suspension by the body that regulates the profession in Ontario. “I have been told he no longer practices law,” Long said.

Meanwhile, his current lawyer, retained to represent him on the charges that led to him being in custody, isn’t returning his calls. “I want to fire him,” the defendant said.

Another lawyer from that firm arrived in court eventually to say she knew little about the case, but would be willing to represent Long if he receives legal aid.

Frank instructed Long to take more steps to try to get funding, but pointed out Long may have to represent himself in the case.

“The administration of justice requires that we get on with this,” said Frank.

And there is the ultimate irony – that the fate of Canada’s pot possession laws may rest on the legal self-defense of one heavily-tattooed 30-year-old Canadian man with no professional legal knowledge or experience.