Pot laws don't breach Charter: Supreme Court
By KIRK MAKIN
Globe and Mail Update
UPDATED AT 10:45 AM EST Tuesday, Dec. 23, 2003
If marijuana is going to be legalized, Parliament will have to be the one to do it, the Supreme Court of Canada said Tuesday.
Refusing to strike down the law and effectively legalize marijuana possession, the court said Parliament has the constitutional right to punish marijuana possession ? including imposing terms of imprisonment.
"Our concern is solely with the issue of constitutionality," Mr. Justice Charles Gonthier and Mr. Justice Ian Binnie wrote for a 6-3 majority. "We conclude that it is within Parliament's legislative jurisdiction to criminalize the possession of marijuana should it choose to do so.
"Equally, it is open to Parliament to decriminalize or otherwise modify any aspect of the marijuana laws that it no longer considers to be good public policy."
In a separate judgment, the court upheld a federal law prohibiting possession of marijuana for trafficking.
The appeals ? the first Charter test that the marijuana laws have faced at the Supreme Court ? involved three men convicted of marijuana offences. In a joint attack, they asked the court to declare the law unconstitutional because the drug is harmless.
An estimated 100,000 Canadians use the drug daily.
The status of the law remains only slightly less confusing in the wake of the ruling. Against a backdrop of court challenges involving medicinal and recreational pot use, the federal government has made ginger moves to reduce or drop penalties.
Last week, Prime Minister Paul Martin intimated he will reintroduce a bill proposed by Jean Chr?tien that would wipe out criminal penalties for those caught with small amounts of marijuana. The proposed bill would have made possession of less than 15 grams of pot a minor offence punishable by fines of $100 to $400.
At the same time, it would have maintained or increased stiff penalties for large-scale growers and traffickers. The bill died when Parliament was shut down last month to give Mr. Martin a fresh start in January.
Conservative-minded critics of the plan argued that 15 grams was too much to be considered casual use. They said it would be impossible for police to assess how high a driver was, and that biker gangs and other criminals would thrive under the new rules.
In giving a modest endorsement to decriminalization, Mr. Martin said it would have to involve "very, very, very small amounts." He said he support a parliamentary committee considering the reduction of the original 15-gram proposal.
Government lawyers took a hard line in Supreme Court, insisting that judges cannot weigh what Parliament had in mind when it made marijuana possession illegal in 1923.
"By their very nature, some people do not like the laws," federal lawyer David Frankel argued during the appeal. "But it is not a popularity contest. Polling results may be a matter that politicians want to take into consideration, but they are not a matter for the courts."
Mr. Frankel said the appellants were simply trying "to elevate a recreational pursuit to a constitutional right. There is no free-standing right to get stoned."
The appellants ? David Malmo-Levine, Victor Caine and Christopher Clay ? argued that marijuana is virtually harmless and that criminal sanctions violate their right to life, liberty and security. All three had failed to persuade lower courts that the pot law is unconstitutional.
Their lawyers based their attack on two main grounds. The first challenged the government to show serious harm to the health of marijuana users in order to justify a law that deprives offenders of their liberty. They stressed that marijuana is a unique case, since a host of doctors and government-appointed inquiries have concluded that the drug is relatively safe.
The appellants also argued that the federal government has no jurisdiction to create sanctions involving health issues, because health is a provincial responsibility.
At times, the hearing resembled a battle experts and statistics. The government claimed that up to 50,000 Canadians ? mostly pregnant women and schizophrenics ? could be harmed by marijuana. Lawyers for the marijuana enthusiasts countered that marijuana laws have created a thriving black market and left more than 600,000 people with criminal records.
Mr. Clay, 32, is one of three litigants who argue that threatening people with a criminal record and jail time for what they contend is a victimless crime breaches Charter of Rights' guarantees of life, liberty and security of the person.
Mr. Conroy is the lawyer for Victor Caine, who was convicted of possession for sharing a joint with a friend in his car while parked at a beach near Vancouver.
The third litigant is David Malmo-Levine, who formed the Vancouver-based Harm Reduction Club for marijuana smokers.
Apperently nothing is going to change *rolls eyes*