MARIJUANA NOT A CONSTITUTIONAL RIGHT

High Court: Changes To Laws Left To Parliament

OTTAWA - The Supreme Court of Canada refused to elevate marijuana smoking
to a constitutional right yesterday in a ruling that allows Parliament to
criminalize any behaviour it sees fit to protect people from harm.

"There is no free-standing constitutional right to smoke 'pot' for
recreational purposes," justices Ian Binnie and recently retired Charles
Gonthier wrote in the 6-3 decision.

The majority, in upholding the current law, rejected the arguments advanced
by three B.C. marijuana enthusiasts, who claimed it breaches the Charter of
Rights to threaten someone with a criminal record for what they contend is
a victimless crime.

It was the Supreme Court's first test of the 80-year-old prohibition on pot
possession and the majority sided with the government on every point,
saying any change in the law is up to federal politicians.

"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," said the 82-page majority decision.

David-Malmo Levine, who heard the verdict while smoking marijuana with
"about 20 of my closest pot activist pals" at the B.C. Marijuana Party
headquarters, said the judges fell down on the job of getting rid of an
outdated law.

"It's horrible. It's a dark day for humanity, it's a dark day for
Canadians; it means that harmless people are not protected by our
Constitution," said the 32-year-old Vancouverite, who began his legal fight
after police shut down his "harm reduction club" seven years ago.

The ruling eases pressure on Paul Martin, the Prime Minister, to follow
through on a promise last week to revive a bill that would make possession
of small amounts of marijuana a ticketable offence rather than a criminal
one, said Alan Young, a lawyer in the case.

"Paul Martin is sitting in a different world going into 2004," said Mr.
Young, a professor at York University's Osgoode Hall Law School in Toronto.

"There is no pressure coming from the courts to change the law and, in
fact, there's pressure coming from the Americans to preserve the law. You
tell me how strong is Mr. Martin, and does he have the political will. I
suspect not."

Mr. Young represented Chris Clay, a 32-year-old Victoria web-page designer
who owned the Great Canadian Hemporium marijuana paraphernalia and seed
store in London, Ont. The other litigant was 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 U.S. drug czar yesterday praised Mr. Martin for announcing plans to
crack down on marijuana growers and repeat users when he reintroduces the
government's pot bill.

"I have been encouraged because of the statements he has made about
marijuana being a serious drug," John Walters said in an interview. "He has
made an effort to show a recognition that he does not side with those who
say this is a soft drug, or that this is something you don't have to pay
attention to."

Mr. Walters, director of the White House Office of Drug Control Policy,
became a harsh critic of the Jean Chretien government when it announced
plans to decriminalize possession of small amounts of marijuana.

The Supreme Court decision yesterday rejected the pot-supporters' argument
that lawmakers should have to demonstrate a serious risk of harm to
marijuana users to justify criminal sanctions.

The government passed the test by showing the health risks are not
"insignificant or trivial," concluded the court's majority.

"Chronic users may suffer serious health problems. Vulnerable groups are at
a particular risk, including adolescents with a history of poor school
performance, pregnant women and persons with pre-existing conditions such
as cardiovascular diseases, respiratory diseases, schizophrenia, or other
drug dependencies," wrote the court, citing studies.

The trio of marijuana users failed to convince the court that control over
pot possession is outside federal jurisdiction because provinces are
responsible for health, that it is unfair to target marijuana when alcohol
and cigarettes are legal, and that pot prohibition discriminates against
people because of their "substance orientation."