The Montreal Gazette, April 10, 2010

If Canada's legal position on marijuana could get any less coherent, it's hard to know how. In Montreal, neighbours of a 1,000-member "Compassion Club" have noticed that a suspiciously large number of "patients" for its medical marijuana look young and healthy and are capable of bounding up the stairs to the club's headquarters.

In Toronto, two men have launched a Charter challenge to Canada's drug laws, arguing that a prohibition against distributing marijuana violates their freedom of religion. They say marijuana is a sacrament, a claim the government has dismissed as a "fictitious artifice."

And in Nova Scotia, a judge has ruled that since Health Canada implemented in 2001 a Marijuana Medical Access regulation, allowing marijuana to be prescribed for medical purposes, the province should start shouldering the cost of marijuana for patients on welfare.

The problem is simple: When Canada decided to ease up on the possession and use of marijuana, it didn't change the law.

In 2007, the Ontario Court of Justice ruled that this failing infringed the constitution. "The government told the public not to worry about access to marijuana," said Judge Howard Borenstein. "They have a policy but not law. ... In my view," he ruled, "that is unconstitutional."

An area where where all should be crystal clear is instead grey. The point of a law is to spell out for everyone what the status of a given substance is and what will happen to you if you ignore the law and go ahead and grow, use or sell it.

But in Canada, few people would venture to state with any certainty what the facts are when it comes to marijuana. Marijuana is, officially, an illegal substance. Nonetheless, the government allows access to this illegal substance to people who need it.

Further obscuring the issue, the House of Commons Special Committee on the Non-Medical Use of Drugs in 2002 said that Canada's criminal penalties for possession and use of small amounts of marijuana were disproportionately harsh. The committee recommended that marijuana be decriminalized in cases of small amounts for personal use.

Few Canadians who use marijuana needed to be told twice that they could skirt the law if they kept their purchases to small amounts.

Police forces quite reasonably complained that as long as marijuana is an illegal substance, the actual amounts do not matter. They have a job to do, which is to enforce the law as it stands.

The federal government needs to clarify the law. Whether marijuana is to be legalized or decriminalized, a discussion has to be held. The current incoherence is untenable.