DIALOGUE ON DRUGS

Two decisions this week by the Ontario Court of Appeal inject some
sanity into the debate over illegal drugs. Both involve marijuana
possession and both should make the federal government soberly
re-examine its policies.

In one ruling, a three-judge panel struck down portions of the
Controlled Drugs and Substances Act prohibiting marijuana possession,
saying the law unjustifiably makes criminals of those who use pot for
medicinal reasons. In the second ruling, the same judges rejected the
notion that Parliament has no authority to criminalize the
recreational use of marijuana.

In the first case, the court declared the law against simple
possession unconstitutional because it puts someone like Torontonian
Terry Parker, who smokes marijuana to control seizures, in the
position of choosing between his health or going to prison. "He was
deprived of the right to security of the person and his right to
liberty in a manner that does not accord with the principle of
fundamental justice," the judges said.

Mr. Parker, 44, suffers epileptic seizures. He has had as many as 80
seizures a week, ranging from mild petit mal to grand mal seizures
that leave him unconscious, violently twitching and writhing on the
ground. The attacks can involve vivid hallucinations. Mr. Parker has
been hospitalized more than 100 times with injuries. He's been robbed
while unconscious and arrested as a drunk even though he doesn't
drink. He has undergone two lobectomies to remove parts of his brain.
They didn't help.

Mr. Parker's only relief is marijuana. "If he consumes marijuana on a
daily basis, he experiences virtually no seizures," the court noted.
In this light, it ruled that the existing marijuana laws fail to
recognize that some people legitimately need marijuana for chronic
illness. Accordingly, they ruled that if the federal government
doesn't clarify the legislation within a year, the law on simple
marijuana possession will no longer apply in Ontario. (At the same
time, though, the judges were careful not to leave a regulatory gap in
the drug laws -- they suspended the declaration of invalidity for a
year.)

There can be little doubt the judges did the right thing on the
subject of medicinal marijuana. But what of recreational use?

In the second case, the judges upheld a conviction against Christopher
Clay, a London store owner convicted in 1997 of selling marijuana to
an undercover police officer. Mr. Clay's lawyers argued that there is
little scientific evidence marijuana is medically or socially harmful
and, therefore, Parliament does not have the authority to criminalize
its recreational use. The judges rejected Mr. Clay's views.

We disagree with their conclusions, but not with the actual judgment.
Evidence (which the judges explored at length) suggests marijuana is
less harmful than many substances already legal. But we think, as the
justices clearly did, that the law on this topic should be made by
elected legislators, not by the courts. This issue must be debated in
Parliament.

Indeed, if parliamentarians read the two judgments (and the lower
court judgments that preceded them), they will want an open, thorough
debate. Here is one tiny excerpt from the appeal court's
conclusions:

"Consumption of marihuana (sic) is relatively harmless compared to the
so-called hard drugs and including tobacco and alcohol and there is no
'hard evidence' that even long-term use can lead to irreversible
physical or psychological damage. Marihuana use is not criminogenic
(i.e. there is no causal relationship between marihuana use and
criminality) and it does not make people more aggressive or violent.
There have been no recorded deaths from consumption of marihuana ..."
The judges speak of the harms, too, and so should legislators.

At the end of the day, do Canadians want their courts and
law-enforcement agencies hunting down people who use marijuana? That
is the question these cases properly open up. The court's views are a
sane precursor to a needed public dialogue.