REEFER MADNESS REDUX

The three judges of the Ontario Court of Appeal showed the wisdom of Daniel
on Monday when they unanimously struck down as unconstitutional the law
making the possession of marijuana a crime. They declared it unjust and
unacceptable in a free and democratic society. It continues to be operative
for 12 months so as to avoid a legislative vacuum, but the judgment will
have far-reaching consequences beyond the issue of marijuana-as-medicine,
on which the decision was based.

The judges have invited the government to rewrite the law. They've given
our society an opportunity to rethink a blanket prohibition against
marijuana that was first imposed in 1923 from ignorance and superstition.

Ottawa would be unwise and unjust to appeal the decision. That would only
stall for time, postpone the inevitable reckoning with the law's
irrationality. Justice delayed is justice denied.

The court struck down the law because it prevented an epileptic from having
access to a drug whose medicinal properties have been documented for 2,600
years and have been rediscovered despite the impediments to research
created by the law.

"Based on the evidence adduced at trial, the trial judge found that the
defence had established that smoking marijuana has a therapeutic effect in
the treatment of nausea and vomiting particularly related to chemotherapy,
intraocular pressure from glaucoma, muscle spasticity from spinal cord
injuries or multiple sclerosis, migraine headaches, epileptic seizures and
chronic pain."

Moreover, the court recognized that the prohibition of marijuana in our
legal system was based, from the start, on false perceptions. "That history
shows that, unlike the regulation of assisted suicide, for example,
regulation of marijuana has a very short history and lacks a significant
foundation in our legal tradition. It is, in fact, an embarrassing history
based on misinformation and racism."

The court cited the origins of the law governing marijuana as established
by Mr. Justice J. F. McCart in his 1997 judgment in the case of R. v. Clay.

"Although there was no evidence of a problem of marijuana use in Canada in
1923, its inclusion in the Opium and Drug Act may have been influenced by
the writings of Emily Murphy, a crusading Edmonton, Alberta, magistrate. In
1920, she published a series of sensational and racist articles in
Maclean's magazine on the horrible effects of drug use and the deliberate
debauching of the young by evil, often alien, traffickers. The articles
were later expanded into a book, The Black Candle,published in 1922."

Judge McCart gave a sample of her prose that led, a year after the
publication of her book, to the inclusion of marijuana under the same
strictures as opium:

"Persons using this narcotic [marijuana] smoke the dried leaves of the
plant, which has the effect of driving them completely insane. The addict
loses all sense of moral responsibility. Addicts to this drug, while under
its influence, are immune to pain, and could be injured without having any
realization of their condition. While in this condition they become raving
maniacs and are liable to kill or indulge in any form of violence to other
persons, using the most savage methods of cruelty without, as said before,
any sense of moral responsibility. . . . If this drug is indulged in to any
great extent, it ends in the untimely death of its addict."

Judge McCart then added: "There was absolutely no truth to any of those
wild and outlandish claims. It was in this climate of irrational fear that
the criminal sanctions against marijuana were enacted."

Recent judgments have established the absurdity of all those superstitious
fears about marijuana. Judge McCart concluded, for example: "Consumption of
marijuana is relatively harmless compared to the so-called hard drugs and
including tobacco and alcohol. . . . Cannabis is not an addictive
substance. . . . Less than 1 per cent of marijuana consumers are daily users."

He also noted that consumption of marijuana is no greater in countries that
have ceased to enforce criminal laws against marijuana, such as the
Netherlands, than it is in countries that prohibit it.

And yet, like the B.C. Court of Appeal in a June 2 judgment, the Ontario
Court of Appeal refused Monday to overturn a conviction against possession
of marijuana for recreational purposes. It judged that the Charter of
Rights and Freedoms should only be invoked to overturn laws when
significant issues such as life, liberty and security are threatened. It
did not judge recreational marijuana to reach that threshold.

And so its up to Parliament to correct a 77-year-old absurdity that has
given some 600,000 living Canadians a criminal record. The Senate could
lead the way to enlightenment. In the fall, Senator Pierre-Claude Nolin is
to hold hearings on our drug laws. He might at last exorcise the demons
believed to haunt marijuana.