HTTP/1.0 200 OK Content-Type: text/html Marijuana Laws Interfere With Liberty
Pubdate: Wed, 13 Dec 2000
Source: Calgary Herald (CN AB)
Copyright: 2000 Calgary Herald
Contact:  P.O. Box 2400, Stn. M, Calgary, Alberta T2P 0W8
Fax: (403) 235-7379
Author: Karen Selick
Note: Karen Selick is a lawyer in
Belleville, Ont. and a columnist for Canadian Lawyer magazine, where a
version of this article first appeared.


Courts in Alberta and Ontario have recently made headlines by striking down
portions of federal law that prohibit the cultivating or use of marijuana
for medical purposes.

In Calgary on Monday, Justice Darlene Acton of Alberta's Court of Queen's
Bench said it was absurd for the federal government to exempt medicinal
users when there is no legal supply of marijuana available. In so ruling,
she stayed charges against Calgarian Grant Krieger for growing and
cultivating cannabis. She hoped that within a year, the federal government
will have addressed these legal inconsistencies.

The Ontario Court of Appeal also made headlines when it decided recently
that epileptic Terry Parker has a constitutional right to use marijuana as
medicine.  What most news reports barely mentioned was that on the same day
it released its decision in R v. Parker, the court released another
decision, R. v. Clay, with a dismayingly different outcome.

The court held that the ban on pot violated the Charter guarantees of
liberty and security of the person for Mr. Parker, a medical marijuana user,
but not for Mr. Clay, a recreational user. Less than two months earlier, the
B.C. Court of Appeal had reached a similar conclusion regarding recreational
users in the case R. V. Malmo-Levine.

I have long been puzzled by the peculiar interpretation that Canadian courts
have placed on the word "liberty" in Section 7 of the Charter of Rights and
Freedoms. Among other things, they have said, "(liberty does not extend) to
an unconstrained right to transact business whenever one wishes."

They've said, "There is no Charter-protected right to freedom of contract."
And again: "...the rights protected by Section not include a right to
engage in a particular type of professional activity...."

Why the devil not?

Here's precisely what Section 7 of the Charter says: "Everyone has the right
to life, liberty and security of person and the right not to be deprived
thereof except in accordance with the principles of fundamental justice."

The word "liberty" stands naked and unadorned. It's not embellished by
qualifiers or exceptions.

There's no footnote saying only epileptics or cancer patients are entitled
to it.  It doesn't say we have liberty in our homes but not in our
businesses. It doesn't say we have the liberty of making wise decisions but
not foolish ones. It just says liberty - plain vanilla liberty.  Why is that
word so hard for our politicians and judges to understand?

Christopher Clay argued that the Charter right to liberty must surely
include the right to intoxicate oneself with marijuana in the privacy of
one's own home.

Sounds logical to me.

However, this argument drove him smack into the brick wall of previous
Supreme Court of Canada judgements.

According to the SCOC, "In a free and democratic society, the individual
must be left room for personal autonomy to live his or her own life and to
make decisions that are of fundamental personal importance."

Elsewhere, the SCOC has said, "The Charter does not protect against
insignificant or "trivial" limitations of rights"

The conclusions drawn by the Ontario and B.C. Courts of Appeal after
considering these passages were that the non-medicinal use of marijuana is
not a decision of fundamental importance, that the criminalization of pot
for recreational purposes is an insignificant or trivial limitation on
liberty, and that toking up is not the sort of thing the Charter guarantee
of liberty was designed to protect.

These conclusions are all highly subjective and therefore quite debatable.
Maybe they'll be overturned on some future appeal to the Supreme Court.
However, I'm not optimistic. Not much can be expected from jurists whose
mind-set is that the constitution guarantees us liberty for those rare,
momentous decisions in our lives, but not for the day-to-day small stuff.

Does this mean that if the state decides to prescribe what time we must rise
in the morning, what colour our clothing must be and how many times we must
chew our food before we swallow, we're still living in a free country?

How many trivial violations of liberty can they heap on us before we're
forced to admit that this is stifling authoritarianism, not freedom?

Besides, what's the logic of having different rules for decisions of
fundamental importance and decisions of trivial importance?

If citizens are so stupid or irresponsible that we can't handle the little
stuff without direction from the state, where will we suddenly acquire the
wisdom and character to handle the big stuff?

Both courts attempted to do a balancing act, weighing the harm to the
recreational pot user of keeping marijuana illegal against the harm to
"society" of legalizing it. But they omitted one item from the equation -
the harm a society suffers when its members become so used to having the
minutiae of their lives governed for them that they consider it right and

The government must now decide whether to re-enact legislation outlawing
marijuana but exempting medicinal use, or do nothing and effectively
legalize pot. Although I've never touched the stuff in my life and don't
plan to even if they legalize it, I'm voting for option two.

Every little bit of liberty helps. 
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