A LIMITED LIBERTY

In Toronto on Wednesday, Ontario judge Patrick Sheppard ruled that parts of
the Controlled Drug and Substance Act are unconstitutional. In staying
charges against a 42yearold epileptic who grows and consumes his own
marijuana, the judge found that the Act contravenes the Charter of Rights
and Freedoms by forbidding the use of marijuana for medical purposes.

We believe that, as a general extension of the right of selfownership, it
should be legal to consume the dried leaves of the cannabis sativa plant,
whether or not this brings medicinal benefits. It should also be legal to
seek such therapies as one wishes in partnership with the medical
professional of one's choice. People own their own blood while it is in
their bodies, and ought to be able to add things to it if they choose.

Another good argument for legalizing marijuana is that the most common
arguments against it are bad, based on absurd, exploded, decadesold
"Reefer Madness" stories. Moreover, if our legislatures cannot bring
themselves to put marijuana on the same legal footing as tobacco and
alcohol, it is difficult to believe their more sweeping promises to chart a
course into the new millennium, create a hightech economy, banish poverty
and injustice, and so forth.

So, as we have written before, and will write again until something is done
about it, we believe marijuana should be legalized.

On the other hand, the Canadian Constitution does not mandate all good
things. Nor should judges be free to read into the Constitution whatever
they think is good.

Judge Sheppard's ruling justifies the use of marijuana on medical grounds
by citing the Morgentaler case, in which the Supreme Court ruled that if a
pregnant woman needs to have an abortion to protect her health, whether
physical or emotional, then making abortions illegal violates the Charter
of Rights and Freedoms' guarantee of liberty: "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 justices."

This sounds very general. In fact, Judge Sheppard avoids asserting any
comprehensive rule of liberty, but declares that a person has the right to
health: "Health is fundamental to life and the security of each person."
People are henceforth free to smoke marijuana so long as they can show that
it is good for their health to do so.

Does a person also have the right to do things that are unhealthy, such as
smoke tobacco and drink alcohol? The law clearly allows that. But, Judge
Sheppard argues, there is no general right to do so: Tobacco and alcohol
are "part of the cultural tradition of the majority of our community." If
they were not, Parliament presumably would be free to outlaw their
consumption, as it currently outlaws marijuana use.

We would have preferred that the courts interpret the Charter's "life,
liberty and security of the person" provisions much more broadly, so that
adults would be responsible for their own choices about how to behave and
what to ingest, so long as they did not harm other members of society.

The courts not having constructed liberty this way, Parliament should act
to legalize the possession, consumption and production of marijuana. By
contrast, legalizing it through a backdoor provision that will invite what
amounts to a market in medical prescriptions is, except for the status quo,
the least satisfactory way of dealing with the problem.