NEWSHAWK: Thu, 14 Aug 1997 SOURCE: Ottawa Citizen, p.A1 CONTACT: Marijuana 'harmless but still illegal' Judge rejects challenge to Canada's prohibition of drug By Mike Blanchfield LONDON, Ont. While agreeing that marijuana is relatively harmless, an Ontario Court judge has rejected a constitutional challenge to Canada's prohibition of the drug. Justice John McCart said elected politicians not the courts must lead the way in establishing public policy on such issues. The judge yesterday convicted Chris Clay, the former owner of a London hemp shop, of trafficking and possession charges. Mr. Clay, 26, mounted an ambitious challenge under the Charter of Rights and Freedoms during his threeweek trial this spring, enlisting the aid of an Osgoode Hall law professor and raising $25,000 through an Internet web page after being charged in May 1995 with selling cloned marijuana plants from his London store. In his 27page ruling, Judge McCart accepted as fact the evidence of many of Mr. Clay's nine expert witnesses. Among the judge's findings: Marijuana is relatively harmless, compared to alcohol and tobacco; It does not cause criminal behaviour; It does not open the door to using harder drugs; No one has ever died from using it; It does not make people more aggressive or violent; Healthcare costs related to its use are negligible when compared to alcohol and tobacco. Judge McCart said it was curious that marijuana was added to a schedule of illegal drugs in 1923, with no debate in the House of Commons. He said the Commons may have been unduly influenced by Edmonton magistrate Emily Murphy whose 1922 book The Black Candle, and an earlier set of magazine articles she wrote, depicted the drug in "sensational and racist" terms. Judge McCart said Mrs. Murphy may have been influenced by "wild and outlandish claims" by U.S. law enforcement officials. "It was in this climate of irrational fear that the criminal sanctions against marijuana were enacted," said Judge McCart. He also noted how the Netherlands, Germany, Spain, Italy, Australia and some U.S. states have reduced the penalties for personal marijuana use to the level of a traffic ticket. "The national governments of Canada and the United States appear to be somewhat out of step with most of the rest of the western world," he said. Nonetheless, Judge McCart said, "all of the socalled decriminalized initiatives in the Netherlands, etc. were legislative initiatives, not court imposed." To grant Mr. Clay's constitutional challenge in this case, "would, in my view, amount to an unwarranted intrusion into the legislative domain." With the replacement of the Narcotics Control Act with the Controlled Drugs and Substances Act this past May, Judge McCart said Parliament is moving away from harsh penalties in cases involving small amounts of marijuana. Quoting from an earlier Supreme Court decision, Judge McCart said elected lawmakers should shape public policy to avoid "constitutionally hyperactive judges in the future pronouncing all of our emerging rights." Judge McCart said politicians should not rely on "the growing (and painless) expedient of shipping awkward political questions to the judiciary for decision, thus reserving for themselves the privilege of possible later disclaimer." The verdict disappointed about 80 onlookers, many of whom came from across Canada to hear the decision. After the verdict, Vancouver marijuana activist Marc Emery clutched a burning joint the size of a small cigar in one hand and a bag of marijuana in the other on the courthouse steps asking, "Who needs some pot?" Earlier, Mr. Emery was ejected from the courtroom for heckling Justice McCart. "If you want freedom, you're just going to have to take it," said Mr. Emery, who contributed $5,000 to Mr. Clay's defence. "That's what I'm doing here, distributing pot, just giving it away." Brenda Rochefort, 40, drove 90 minutes from Milverton, Ont., with a friend to hear the verdict. She smokes marijuana to ease daylong muscle spasms associated with a chronic tissue disorder. Ms. Rochefort, who has been arrested twice on marijuana charges, said the ruling left her feeling hopeless. "It's a bigger crime to be victimizing sick people," she said. "The judge more or less said you can't challenge the law through the court system. "What other way can you if politicians won't listen to you?" Mr. Clay said he doesn't regret fighting the law because it raised public awareness. He pledged to continue raising money to finance further appeals, despite Judge McCart's ruling. "He basically said I'm a criminal, and I don't consider myself a criminal," Mr. Clay said. The decision leaves Mr. Clay in a Catch22. He wanted a favourable court ruling to act as a catalyst for reform at the political level. His lawyer, Osgoode Hall law professor Alan Young, said the case will be appealed, likely to the Supreme Court, but that another $50,000 to $100,000 would have to be raised to finance the appeal. "The judge's position was, 'This was not for me to review, this was for a legislature to review.' "My question to the judge of course is, 'We've been trying to do that for 30 years, why would the judge think we're going to have any better luck now?'" Mr. Young said. He predicted that bringing the case into the political arena will be difficult. All political parties have shied away from the touchy issue of decriminalization since the 1972 LeDain commission recommended reopening the matter. The Liberals promised decriminalization in their 1980 throne speech, but didn't follow through. A multiparty Senate committee, in 1996, suggested a further look at the issue, but backed down when the proposition got a frosty reception from their respective caucuses. Mr. Clay faces life in prison for trafficking, although such cases usually result in sentences from a few days to several months. Prosecutors have not said whether they will seek a jail term. Federal prosecutor Kevin Wilson declined comment. If they do seek a jail term, Mr. Young said he will argue Mr. Clay had no intent to make money by selling cloned marijuana plants. He was simply trying to get arrested so that he could launch a test case against what he saw as a restrictive law. Mr. Clay is to be sentenced Sept. 5.