Pubdate: Wed, 31 Dec 2003
Source: 100 Mile House Free Press (CN BC)
Copyright: 2003 100 Mile House Free Press
Author: Kirk Tousaw



In a decision disappointing to advocates of freedom and individual 
autonomy, the Supreme Court of Canada rejected claims that prohibiting 
marijuana possession violated the Charter of Rights and Freedom's guarantee 
of liberty. Central to the court's decision was the majority view that 
Parliament is constitutionally able to criminalize activity even when the 
wisdom of the prohibition is the subject of controversy: "The court's 
concern is not with the wisdom of the prohibition, but with its 
constitutionality," said the majority in R v. Clay (one of the three 
cases). The court intimated that Parliament could reform the law.

This decision is disappointing, particularly because the court accepted 
that criminal law power can be used to criminalize activity that causes no 
harm to others. We should emphasize that the court's decision did not say 
prohibition was wise or good social policy. Instead, the court felt our 
constitution does not require Parliament to prove an activity causes harm 
before it prohibits it.

The BC Civil Liberties Association argued in its submission to the court 
that Parliament must demonstrate the existence of a serious or substantial 
risk of harm to others before use of the criminal law power is justified.

The court disagreed, but expressed deep reservations about whether 
imprisonment for simple possession would be justified, saying at paragraph 
167 of the majority opinion: "We agree with the appellants that 
imprisonment would ordinarily be an unfit sentence for a conviction on 
simple possession of marijuana."

The court emphasized that the absence of mandatory minimum sentences, and 
that simple possession is usually punished by conditional discharges, were 
critical factors. What this decision does is put the ball back into 
Parliament's court. The majority was very careful not to make judgments 
about the wisdom of prohibition, consistent with its belief that such 
judgments belong to Parliament. It is clear from the evidence, however, 
that prohibition is an unwise and harmful exercise of legislative discretion.

Public opinion overwhelmingly supports significant reforms and it is up to 
our elected representative to take this opportunity to enact a rational and 
sensible marijuana policy. The court has signaled that mandatory minimum 
sentences, such as those currently being floated by ardent prohibitionists, 
would not survive constitutional challenge. In addition, it seems clear 
that any effort to ramp up enforcement of the prohibition against 
possession by imposing jail sentences would likely violate the charter. In 
that light, law enforcement needs to understand that this decision does not 
clear the way for a crackdown on marijuana users.

Kirk Tousaw Policy director, B.C. Civil Liberties Association
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