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.