Pubdate: Tue, 06 May 2003
Source: Halifax Herald (CN NS)
Copyright: 2003 The Halifax Herald Limited
Contact:  http://www.herald.ns.ca/
Details: http://www.mapinc.org/media/180
Author: Canadian Press

TOP COURT TO MULL BUTTING OUT POT LAW

OTTAWA (CP) - The Liberal government is promising to rewrite the law on 
marijuana use, but the Supreme Court of Canada faces a more pressing 
question - what to do with the law as it is, not as it may be.

In a trio of cases to be heard Tuesday, the high court is being asked to 
throw out criminal penalties for simple possession of small amounts of pot 
on the grounds that they violate the Charter of Rights. Government lawyers 
will be arguing the present law should be upheld, even as Prime Minister 
Jean Chretien and Justice Minister Martin Cauchon prepare to change it. 
That's not as bizarre as it may seem at first glance.

They key issue, stripped of legal niceties, is whether the politicians or 
the courts have the final say in deciding what substances ought to be outlawed.

The federal Justice Department contends the government should have as much 
leeway as possible in drafting drug policy, without being hemmed in by 
constitutional fences.

"Simply put, there is no free-standing right to get stoned," says the 
written brief filed by federal lawyer David Frankel.

"Whether the courts or the public at large consider Parliament's choices to 
be good or bad, effective or ineffective, wise or unwise, popular or 
unpopular, are not yardsticks for measuring constitutionality."

On the other side stand an array of defence lawyers who maintain the nine 
judges of the Supreme Court must set limits on what the country's 
legislators can do.

"You can't simply say Parliament has the right to be wrong," says Paul 
Burstein, counsel for one of the three people whose pot convictions are 
under review.

Burstein is hoping the court will draw a "constitutional line in the sand" 
that no future government can cross, no matter what the prevailing 
political winds of the day.

The cases at issue involve two self-described marijuana activists and one 
man who was simply unlucky enough to get busted smoking a joint:

- - David Malmo-Levine ran the Harm Reduction Club, a non-profit co-operative 
in East Vancouver that offered advice on how to use marijuana moderately 
and safely and supplied pot at cost to some 1,800 members. He got a 
one-year suspended sentence.

- - Christopher Clay ran Hemp Nation in London, Ont., a store he started with 
a government loan. Clay, who has since moved to B.C., used the London 
business to sell marijuana seeds and seedlings in a deliberate challenge to 
federal law. He was fined $750 and given three years probation.

- - Victor Caine was arrested by a police officer who caught him after he lit 
up a joint in his van in a parking lot in White Rock, B.C. He had 0.5 grams 
of pot in his possession, was convicted at trial and given an absolute 
discharge.

Trafficking issues were part of the Malmo-Levine and Clay cases, but the 
central matter before the Supreme Court is whether possession for personal 
use should be a crime.

It is at present, and prison terms of up to seven years are still possible 
under the law although they are rarely imposed.

The three challengers argue that threatening people with jail time and a 
criminal record for something that amounts to a victimless crime is 
contrary to the Charter of Rights.

They also claim Ottawa is overstepping its constitutional jurisdiction and 
meddling in matters that should be left to the provinces.

The Supreme Court was supposed to hear the case in December but put it off 
when Cauchon said he was working on legislation to decriminalize simple 
possession of less than 30 grams of pot.

Chretien reiterated that commitment last week, indicating the bill, 
expected before Parliament breaks in June for the summer, would make 
possession an offence akin to a traffic violation. A ticket would be issued 
and a fine imposed, but the offender would not get a criminal record.

In spite of the renewed promise, the Supreme Court decided to go ahead with 
the hearing this time - a move welcomed by Alan Young, a professor at 
Osgoode Hall law school in Toronto.

He thinks the government, even if it brings in a bill, is unlikely to push 
it through Parliament before the next federal election, likely to come in 
about a year's time.

"I just don't believe they will be able to fast track it through," said 
Young. "And I believe they know that."
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