Pubdate: Wed, 24 Dec 2003
Source: Globe and Mail (Canada)
Page: A1 - Front Page
Copyright: 2003, The Globe and Mail Company
Author: Kirk Makin, Justice Reporter; With a Report From Canadian Press


Charter Bid on Marijuana Possession Fails to Pass Supreme Court Scrutiny

The Supreme Court of Canada drove a legal stake into the heart of marijuana 
liberalization yesterday with a judgment affirming that possession is a 
criminal act, and stressing the potential dangers of smoking it.

"The evidence indicates the existence of both use and misuse by chronic 
users and by vulnerable groups who cause harm to themselves," a 6-3 
majority said. "There is no free-standing constitutional right to smoke 
'pot' for recreational purposes."

The judgment demolished reformists' strategy of using the courts to kill 
marijuana laws. Instead, the Supreme Court prodded them none too gently 
back toward the doors of Parliament. "We started this case because of 
political inertia," said a disappointed lawyer for the appellants, York 
University law professor Alan Young. "It's a little ironic that eight years 
later, they send us back to the institution that started it all in the 
first place."

The majority said Parliament had ample reason to fear the prospect of 
stoned drivers, pregnant women or schizophrenics causing harm to themselves 
or others. It also found penalties for possession not grossly 
disproportionate to the goal of deterring marijuana use. The argument had 
been that this contravened the Charter right to life, liberty and security 
of the person.

Rejecting another pillar of the constitutional challenge, the court said 
there is nothing unconstitutional about the government criminalizing 
marijuana smoking even if it simultaneously turns a blind eye to the 
greater dangers of alcohol and tobacco use.

The appeals -- the first Charter test that the marijuana laws have faced at 
the Supreme Court -- involved three men convicted of marijuana offences. 
David Malmo-Levine, Victor Caine and Christopher Clay jointly argued that 
marijuana is harmless, and that the possession law is a historic evil which 
has created a thriving black market and saddled more than 600,000 people 
with criminal records. "I'm bummed out, man," said Mr. Malmo-Levine, who 
operates a marijuana-lovers venue in Vancouver known as the Harm Reduction 
Club. "I was dreaming of a green Christmas but they grinched out on us. 
Their hearts are two sizes too small."

Prof. Young said the lasting scandal of the judgment is that it gives 
politicians carte blanche to criminalize an activity even if there is no 
proof it can cause harm to others. "There is no moral brake on Parliament 
if they decided tomorrow to prohibit playing golf," he said.

Prof. Young also said the ruling takes the pressure off Prime Minister Paul 
Martin to bring in marijuana reform.

Mr. Martin intimated last week that he will reintroduce a bill that would 
wipe out criminal penalties for those caught with small amounts of 
marijuana. However, his endorsement of the bill was tepid, and he stressed 
that it would pertain to "very, very, very small amounts."

The dissenting judges yesterday -- Madam Justice Louise Arbour, Mr. Justice 
Louis LeBel and Madam Justice Marie Deschamps -- took strong issue with the 
government's public-health arguments and said it had only vaguest data to 
back them up. " Canadians do not expect to go to jail whenever they embark 
on some adventure which involves a possibility of injury to themselves," 
Judge Arbour said. "I see no reason to single out those who may jeopardize 
their health by smoking marijuana." However, the majority were adamant that 
the Charter of Rights cannot be stretched to protect the lifestyle choices 
of various individuals.

"One individual chooses to smoke marijuana," Mr. Justice Ian Binnie and Mr. 
Justice Charles Gonthier said. "Another has an obsessive interest in golf. 
A third is addicted to gambling. A society that extended constitutional 
protection to any and all such lifestyles would be ungovernable."

Parliament need only apprehend a minimal potential for harm in order to 
pass legislation, they said.

"Vulnerable groups are at particular risk, including adolescents with a 
history of poor school performance, pregnant women and persons with 
pre-existing conditions such as cardiovascular diseases, respiratory 
diseases, schizophrenia or other drug dependencies." The majority also said 
most offenders these days are granted discharges or conditional sentences, 
and appeal courts are quite capable of overturning any sentence which is 
too strong. 
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