Pubdate: Fri, 16 Mar 2001
Source: Globe and Mail (Canada)
Copyright: 2001, The Globe and Mail Company
Contact:  http://www.globeandmail.ca/
Forum: http://forums.theglobeandmail.com/
Author: Kirk Makin

High Court Will Hear Pot Test Cases

The Supreme Court of Canada surprised legal observers Thursday by agreeing 
to hear a series of test cases that could result in the decriminalization 
of marijuana.

The decision was a triumph for marijuana advocates, who opted to take their 
case to the courts after decades of fruitlessly bashing their heads against 
a parliamentary brick wall.

"I would have thought that on an issue as politically sensitive as this, 
the court would be somewhat wary about wanting to climb into the arena," 
said Paul Burstein, a lawyer representing one of the defendants.

"The court clearly showed courage in being willing to consider 
decriminalization," he said. "It's more than I can say for the last eight 
federal governments going back to 1981."

The bedrock issue the Supreme Court will be asked to decide involves 
whether the state can jeopardize the liberty of an individual by 
criminalizing a form of behaviour that creates only the most trivial harm.

"I'm very, very pleased they are hearing this," said John Conroy, a 
Vancouver lawyer who represents defendant Victor Caine. "We're forcing them 
to decide this question: What is liberty? What is the state's interest in 
whether somebody smokes marijuana - even if they could get bronchitis?"

Mr. Conroy said most of the lower court judges to have ruled in the three 
cases agreed that, apart from some bronchial problems affecting chronic 
users, the risks and effects of marijuana use are largely benign.

"Given the number of judges and lawyers I know who have indulged at some 
point in their lives, it is pretty hard to argue that it has any long-term 
effects," Mr. Burstein remarked.

The lawyers said that in view of extensive trial records laying out medical 
and psychological effects, the debate in the Supreme Court will focus on 
pure liberty questions.

If the defendants should win, the government will likely be restricted to 
regulating marijuana use in much the same way it regulates liquor or the 
sale of tobacco to minors.

"This challenge is whether the use of criminal sanctions - the heaviest 
weapon in the legislative arsenal - is justified in regulating harm which 
isn't serious and substantial," Mr. Burstein said.

He said it is far more dangerous to golf during a lightning storm than to 
smoke marijuana. "There has never been a recorded death from the 
consumption of marijuana," Mr. Burstein said.

One of the appeals - Regina v. Victor Caine - involves a B.C. man who was 
arrested in his car with a tiny amount of marijuana. In a second B.C. case, 
pro-marijuana activist David Malmo-Levine was convicted of trafficking 
after police seized 316 grams of marijuana from a group he created in 1996 
- - the 1,800-member, pro-marijuana Harm Reduction Club.

Mr. Malmo-Levine argued at his trial that it violates the Charter of Rights 
equality guarantee to criminalize marijuana while the use of numerous other 
herbs and stimulants carry no sanctions.

While the B.C. Court of Appeal upheld Mr. Malmo-Levine's conviction, it 
concluded that marijuana is not addictive, does not lead to other crimes, 
and does not lead people to try harder drugs.

In the third case, the owner of a London, Ont., store catering to marijuana 
enthusiasts - Christopher James Clay - was convicted of possessing and 
trafficking in marijuana.

Mr. Clay raised money for his defence by issuing "victory bonds" entitling 
the bearer to a quarter-ounce of high-quality marijuana if he successfully 
decriminalizes the substance.
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MAP posted-by: Larry Stevens