IT'S UP TO PARLIAMENT TO FIX CANADA'S POT LAWS

Supreme Court Ruled Ottawa Can Criminalize Marijuana, Now It's Up To The
Prime Minister To Choose Canada's Path

Thanks to the Supreme Court of Canada's recent decision, the legal
uncertainty surrounding Canada's marijuana laws has been resolved. Now it's
up to Prime Minister Paul Martin and his government to similarly resolve
the political uncertainty around the laws.

In a 6-3 decision, the court said "there is no free-standing constitutional
right to smoke 'pot' for recreational purposes," in response to the
arguments advanced by the appellants, Vancouver "pot activist" David
Malmo-Levine, Victoria web-page designer Christopher Clay, and Langley's
Victor Caine. The court also unanimously upheld the law prohibiting
marijuana trafficking.

The court held that the government had the constitutional authority to
criminalize marijuana possession because use of the drug "clearly raises
issues of public health and safety."

Further, the court concluded that even though a conviction for pot
possession could result in a jail sentence, the appellants' Charter rights
to liberty weren't infringed. Since there's no minimum sentence for
possession, and since clear sentencing guidelines exist, it's unlikely that
defendants would be sent to jail for simple possession.

And if an unfit sentence was delivered, the court said the appropriate
recourse would be to appeal the sentence rather than challenge the
constitutionality of the possession law.

Ultimately, the court acknowledged that many people argue the harms caused
by criminalizing marijuana are greater than the harm caused by marijuana
itself. But the court showed admirable judicial restraint, saying "the
outcome of that debate is not for the courts to determine." The court
concluded:

"[I]t 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 considers to be good public policy."

So the court recognized that amending the marijuana law is the sole
responsibility of Parliament. That gives Mr. Martin some leeway in that he
can leave the law the way it is without violating the constitution.

But he's already facing pressure from many sides, and the Canadian public
is deeply divided on the issue of decriminalization. A recent Ipsos-Reid
poll found Canadians almost evenly split on the issue, with 55 per cent
saying they don't believe marijuana possession should be a criminal offence.

And there are also deep divisions among those who have special interests in
the marijuana law.

Marijuana activists and civil liberties organizations continue to campaign
for the decriminalization or legalization of marijuana. But immediately
after the court's judgment was released, police forces called on Mr. Martin
to rethink his plans to reintroduce the marijuana bill -- Bill C-38 -- that
died when Parliament prorogued earlier this year.

Bill C-38 would have seen criminal sanctions for possession of small
amounts of marijuana replaced by fines of up to $400. It would also have
increased criminal penalties for marijuana cultivators and traffickers.

In response to the court's decision, Mr. Martin said he was happy the court
upheld the law, but also confirmed he would be "proceeding with the
marijuana bill as planned."

And that's probably the best course of action. When Bill C-38 was
introduced, The Sun argued that though there are many problems with the
bill, decriminalization is a worthwhile goal. It's estimated that 600,000
Canadians have criminal records for pot possession, records that can affect
everything from employability to the ability to travel outside the country.

Certainly Canada's relationship with the United States could be affected
were the bill to pass. U.S. drug czar John Walters condemned Bill C-38 when
it was introduced, and Mr. Martin has said that he hopes to improve the
relationship between the two countries.

Nevertheless, there are signs that the U.S. administration is warming to
Mr. Martin's plans -- pass Bill C-38 with much tougher sanctions against
growers and traffickers. In fact, after the court's decision was released,
Mr. Walters gave a thumbs up to Mr. Martin's intention to toughen up the
sanctions part of Bill C-38.

Ottawa is free, therefore, to change the law or to leave it as it is.
Whichever road it chooses will, of course, make some people uncomfortable.
But Mr. Martin seems to be on the right path.