Drug ban legal but silly

The Ottawa Citizen

We admire Chris Clay. The antimarijuana law crusader has risked much and
sacrificed more in his efforts to get Canada's absurd prohibition of
marijuana repealed. His cause is just, his integrity irreproachable.

We also admire Justice John McCart for convicting Chris Clay on possession
and trafficking charges.

For Mr. Clay's defence, a Charter of Rights challenge to the marijuana
laws, was unsound. In essence, he argued that the Charter's guarantee that
someone has the right to liberty and "not to be deprived thereof except in
accordance with the principles of fundamental justice" is violated by a law
that prohibits something relatively harmless.

This was, politely, a stretch. The glory of the British parliamentary
system is the clear separation of the parliamentary and judicial roles, a
separation courts have generally been careful to maintain by not looking at
the merits of the laws they apply. We have not been shy about criticizing
them when they breach that separation, because it is the task of the
people's elected parliamentary representatives to make laws, and Parliament
reserves the right to be stupid.

Stupid is the only description of Parliament's drug laws. The prohibition
of marijuana in particular is a social policy utterly devoid of rational
support. Marijuana was criminalized in 1923 without any discussion or
debate in Parliament. It simply appeared on the list of prohibited drugs,
obviously with little pressing criminal need, since there wasn't a single
marijuana conviction in the next 14 years.

Even more interesting than these facts is their source: the written opinion
of the court. Justice McCart quite correctly ruled that Parliament alone
decides social policy and so he convicted Mr. Clay. But while commendably
resisting the impulse to strike down this foolish law, he laid out its
foolishness in tough, clear language that makes his decision required
reading for every member of Parliament.

Justice McCart examined numerous other countries and states where
alternatives to the proven silliness of criminalization have been tried. He
noted that the Netherlands' policy of nonenforcement of its marijuana laws
effectively legalization has not led to rampant drug use and that the
Netherlands has a rate of teenage marijuana use only onefifth that of the
United States. From Spain to Germany and Italy, European countries have
either dropped mere marijuana possession out of criminal law or cut
punishments back to minimal fines on a par with jaywalking. Eleven American
and two Australian states have largely followed the European lead.

Justice McCart also noted that he heard evidence from a "a most impressive
number of experts" who formed a "general consensus about the effects of the
consumption of marijuana." He concluded that marijuana is "relatively
harmless compared to tobacco and alcohol" and that it "does not lead to
'hard drug' use." These are now evidentiary findings of an Ontario court of
law.

The outcome of this case could hardly be better. Justice McCart respected
the boundary between the judiciary and Parliament and rightly convicted Mr.
Clay. But he did not use legal propriety as an excuse to ignore the
substance of the issue. He saw damning evidence that the law is asinine,
and he said so.

Thoughtful officials like Justice McCart and committed citizens like Chris
Clay, give us reason to hope Parliament may finally come to realize the
folly of criminalizing marijuana and, moreover, to act on that realization.