Pubdate: Thu, 05 Sep 2002
Source: Toronto Star (CN ON)
Copyright: 2002 The Toronto Star
Author: Canadian Press


Ban On Marijuana Unconstitutional, Lawyers To Argue

OTTAWA - Marijuana users who claim the drug is harmless will have their 
chance to sway Canada's top judges on Dec. 13 - a Friday. Lawyers for three 
convicted pot smokers will argue that federal laws banning possession, 
cultivation and trafficking of the fiercely debated herb are unconstitutional.

The much anticipated case was among 36 listed Wednesday by the Supreme 
Court of Canada in its busy fall docket, which begins Sept. 30.

The schedule was announced the same day a Senate committee studying the 
issue said pot and hashish possession should be legalized for residents 16 
or older, and regulated much like alcohol.

Federal Justice Minister Martin Cauchon said the Senate committee 
recommendations would be considered and that related laws are outdated. But 
the government won't disclose its next move before early next year, he added.

Ottawa has said it will start clinical trials as early as this fall to 
assess the benefits of medical marijuana.

The high court ruling on pot laws won't likely come until several months 
after its December hearing.

The appeal covers three cases involving Chris Clay of London, Ont., David 
Malmo-Levine of Vancouver and Victor Eugene Caine of Langley, B.C.

All three men argue that pot, if properly grown and used, is harmless. 
Moreover, they say, laws prohibiting its personal use infringe the right to 
life, liberty and security of the person guaranteed by the Charter of 
Rights and Freedoms.

Clay, the former operator of a hemp boutique in London, Ont., was convicted 
in 1997 of drug possession and trafficking for selling cannabis to an 
undercover police officer.

He failed to convince the trial judge that private, recreational pot 
smoking qualifies as a fundamental value protected under the charter. The 
judge also noted that cannabis is not completely harmless for all users.

Clay lost on appeal.

In June 2000, the B.C. Court of Appeal ruled 2-1 to uphold marijuana 
possession convictions against Malmo-Levine and Caine.

Dissenting Justice Jo-Ann Prowse said part of the law banning pot 
possession did breach the men's right to life, liberty and security of the 
person. She said she would have adjourned the appeal to allow lawyers to 
make more submissions on whether the breach is justifiable.

The high court is also set to weigh Dec. 4 whether a British Columbia man 
has the right to have his triplet sons bear his last name.

Darrell Trociuk was crushed when the B.C. Court of Appeal ruled 2-1 in May 
2001 that a portion of the Vital Statistics Act gives mothers sole power to 
name their children.

Trociuk and his former girlfriend, the triplets' mother, are now separated.

The omission of his name on the children's birth registration is an 
infringement of guaranteed equality rights, his lawyer will argue.

And on Oct. 9, the top court will consider whether a Quebec man should be 
forced to provide a DNA sample to prove the paternity of a child born in 
1983. He denies being the father.

It will be the first time the high court has assessed the ordering of DNA 
samples in a civil matter.

The Supreme Court fall session includes seven criminal law cases; six 
administrative law cases; five civil law matters and four new charter cases.
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