Ontario's appeal court confirms that possessing cannabis was no offence for two years

On 12 April 2002 a young person in Ontario, identified only as J.P., was charged with possessing cannabis. His lawyer did not argue that he had a medical need. He argued that on that day there was no offence of possessing cannabis in Ontario at all, and three courts in a row agreed.

How the ban stopped working

The argument went back to R. v. Parker, decided on 31 July 2000. The Court of Appeal for Ontario held that the ban on possessing cannabis in section 4 of the Controlled Drugs and Substances Act was unconstitutional unless it came with an acceptable medical exemption. It declared the prohibition invalid and suspended that declaration for twelve months, so the ban stayed in force until 31 July 2001.

On 30 July 2001, one day before the deadline, the federal government brought in the Marihuana Medical Access Regulations. They let authorised patients possess and grow cannabis. They did not touch the section of the Act the court had struck down.

Three courts, one answer

Court	Date	Result
Ontario Court of Justice	2 January 2003	Charges dismissed
Superior Court of Justice	16 May 2003	Crown’s appeal dismissed
Court of Appeal for Ontario	7 October 2003	Crown’s appeal dismissed

The first two courts held that regulations could not undo a declaration of invalidity. The ban was dead from 31 July 2001 until Parliament re-enacted it, and Parliament had not done so.

The Court of Appeal reached the same result by another route. Parliament did not need to re-enact anything: the ban was valid whenever an adequate medical exemption existed. In Hitzig, released the same morning, the court held that the 2001 regulations did not provide one. So on the day J.P. was charged, the prohibition was “of no force or effect”. The court then struck out the faulty parts of the regulations in Hitzig, and that revived the ban from that day on.

What it meant

For a little over two years, from 31 July 2001 to 7 October 2003, possessing cannabis was not a valid crime in Ontario, Canada’s most populous province. The gap closed on the same day the Court of Appeal confirmed it.

It is a reminder that the story of Canada’s cannabis laws was written largely by its courts. Patients won medical access in Parker and a government supply through Hitzig, which also explains why the federal government sold cannabis grown in a mine. J.P.’s case showed what happened in between, when a government answered a court with regulations that did not meet its test.^[1]