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Pubdate: Sun, 04 Jan 2004 Source: Halifax Herald (CN NS) Copyright: 2004 The Halifax Herald Limited Contact: http://www.herald.ns.ca/ Details: http://www.mapinc.org/media/180 Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada) TOKIN' JUSTICE So much for all that judge-made law that was supposed to be taking this country by storm. The Supreme Court of Canada has been bashed by social conservatives for quite some time now for "reading in" rights, notably for gays and lesbians, who are not explicitly protected from discrimination under the Charter of Rights and Freedoms. Yet in a decision handed down just before Christmas which may come as a surprise to its critics, the Supreme Court has rendered unto Parliament what belongs to Parliament. In a 6-3 ruling, the top judges quashed a constitutional challenge mounted by recreational marijuana users. The latter had argued that penalties for simple possession are grossly disproportionate to the negligible social harm pot smoking does - so much so that they violate the Charter's guarantees of life, liberty and security of the person. But the majority of the judges pointed out that there is no minimum sentence for pot possession and that a jail sentence is imposed in most cases only where there are "aggravating circumstances." "There is no need to turn to the Charter for relief against an unfit sentence. If imprisonment is not a fit sentence in a particular case, it will not be imposed, and if imposed, it will be reversed on appeal," the decision read. This makes eminent sense. Elevating a dope-possession conviction to the status of a human-rights violation is a stretch - as the court said, there is no "free-standing constitutional right to smoke pot for recreational purposes." Parliament, the court affirmed, is well within its rights to control the use of marijuana through the criminal law. We support this view. But just because lawmakers can, does that mean they should? The majority of the judges argued that "the prohibition on marijuana is neither arbitrary nor irrational" because public health concerns - from stoned drivers to chronic users inflicting permanent harm on themselves - justify the state's intervention. That alcohol and tobacco are legal, while marijuana is not - although similar public-health arguments can be made about all three - does not constitute a sufficient basis to strike down pot laws, the judges ruled. Yet herein like the Achilles' heel of this decision, and Madam Justice Louise Arbour exploited it beautifully in her dissenting opinion. "The harm associated with marijuana use does not justify the state's decision to use imprisonment as a sanction against the prohibition of its possession," she wrote. "Apart from the risks of impairment while driving, flying or operating complex machinery and the impact of marijuana use on the health care and welfare systems, the harms associated with marijuana use are exclusively health risks for the individual user, ranging from almost non-existent for low/occasional/moderate users to relatively significant for chronic users. Harm to self does not satisfy the constitutional requirement that whenever the state resorts to imprisonment, there must be a minimum harm to others as an essential part of the offence." Criminalizing simple pot possession, she found, does in fact run counter to the principles of fundamental justice. While this may not be the prevailing view of her judicial colleagues, it is fast becoming the mainstream opinion across this country. Which is why Paul Martin should revive the pot liberalization bill - in suspended animation since Parliament was prorogued - at the earliest opportunity. Removing criminal sanctions and replacing them with a fine-based regime is fair progress for most Canadians. - --- MAP posted-by: Terry Liittschwager