DEBATING THE RECREATIONAL USE OF POT

An Ontario top court made headlines when it decided a few months ago that
epileptic Terry Parker has a constitutional right to use marijuana as medicine.

Now an Alberta court has decided the same for Grant Krieger, who has
multiple sclerosis. While these have been big steps forward, they have been
undermined by the simultaneous taking of two steps back.

What most news reports barely mentioned was that on the same day the
Ontario Court of Appeal released its decision re Parker, it also released
another decision, R. v. Clay, which had a dismayingly different outcome:
The court held that the ban on pot violated the Charter guarantees of
liberty and security of the person for Parker, a medical marijuana user,
but not for Clay, a recreational user.

Two months earlier, B.C.'s Court of Appeal reached a similar conclusion re
recreational users in R. v. Malmo-Levine.

I have long been puzzled by the peculiar interpretation that Canadian
courts have placed on the word "liberty" in section 7 of the Charter of
Rights and Freedoms. Among other things, they have said that "(liberty does
not extend) to an unconstrained right to transact business whenever one
wishes." And "...the rights protected by s. 7...do not include a right to
engage in a particular type of professional activity...."

Why not? Here's the wording: "Everyone has the right to life, liberty and
security of the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice."

The word "liberty" stands naked and unadorned. It's not embellished by
qualifiers or exceptions. There's no footnote saying that only epileptics
or victims of multiple sclerosis are entitled to it.

It doesn't say we have liberty in our homes but not our businesses. It
doesn't say we have the liberty of making wise decisions but not foolish
ones. It just says liberty. Why is that word so hard for our politicians
and judges to understand?

Christopher Clay argued that the Charter right to liberty must surely
include the right to intoxicate oneself with marijuana in the privacy of
one's own home.

Sounds pretty logical to me. But, this reasoning drove him into the brick
wall of previous Supreme Court of Canada judgments.

According to Canada's top court; "In a free and democratic society, the
individual must be left room for personal autonomy and to make decisions
that are of fundamental personal importance."

The conclusions drawn by the Ontario and B.C. appeal courts, after
considering these passages, were that the non-medicinal use of marijuana is
not a decision of fundamental importance, that the criminalization of pot
for recreational purposes is an insignificant or trivial limitation on
liberty, and that toking up is not the sort of thing the Charter guarantee
of liberty was designed to protect.

These conclusions are all highly subjective and debatable. Maybe they'll be
overturned on some future appeal. But I'm not optimistic. Not much can be
expected from jurists whose mindset is that the constitution guarantees us
liberty for those rare, momentous decisions in our lives, but not for the
day-to-day stuff.

Does this mean that if the state decides to dictate what time we rise in
the morning, the colour of our clothing, how many times we must chew our
food and how often we clip our toenails, we're still living in a free
country? How many trivial violations of liberty can they heap on us before
we're forced to admit that this is stifling authoritarianism, not freedom?

Besides, what's the logic of having different rules for decisions of
fundamental importance and those of trivial importance?

If citizens are so stupid or irresponsible that we can't handle the little
stuff without direction from the state, where will we suddenly acquire the
wisdom and character to handle the big stuff?

Both courts tried to do a balancing act, weighing the harm to the
recreational pot user of keeping marijuana illegal against the harm to
"society" of legalizing it.

But they omitted something from the equation: The harm a society suffers
when its members become so used to having the minutiae of their lives
governed for them that they consider it right and normal.

Nevertheless, thanks to Parker's epilepsy, the prohibition on possessing
marijuana has been struck down, effective in August. Now, the government
has to decide whether to re-enact a law outlawing marijuana but exempting
medicinal use, or do nothing and effectively legalize pot.

Although I've never touched the stuff and don't plan to even if it's
legalized, I'm voting for option two. Every little bit of liberty helps.