Source: London Free Press
Contact: editor@lfpress.com

TOKING UP COULD STILL GET YOU BUSTED

A DECISION IS DUE TODAY ON A LONDONER'S BID TO HAVE MARIJUANA POSSESSION
DECRIMINALIZED. EVEN IF HE WINS, AN APPEAL IS LIKELY.

By Helen Fallding Free Press Reporter

Dopesmokers hoping to light up a legal joint today shouldn't hold their
breath.

Chris Clay, former owner of Hemp Nation on Richmond Street in London,
has asked a London judge to strike down a section of the old Narcotic
Control Act that makes possession of marijuana illegal.

Justice John McCart is scheduled to hand down his decision today in
Ontario court, general division. Even if Clay wins, the federal
government is likely to appeal. What's more, the ruling technically
would not apply to the new Controlled Drugs and Substances Act, which
came into effect in the middle of Clay's trial this spring.

"You'd still get busted," predicts Scott Newark, executive officer at
the Canadian Police Association in Ottawa. He says police would continue
to enforce the marijuanapossession section of the law until instructed
to stop.

CHALLENGE

Paul Burstein, one of Clay's Toronto lawyers, suspects the federal
government would immediately try to get the decision stayed pending an
appeal, if Clay won.

A University of Western Ontario professor who specializes in alcohol and
drug law believes there are strong legal reasons to strike down the
marijuana law, but he's not confident it will happen. Robert Solomon
says Canadian courts have upheld the right to refuse lifesaving blood
transfusions on constitutional grounds, but have a long history of
supporting state intervention in drug use. "If you can decide to die for
your religious beliefs . . . it's going to be very interesting if we
maintain a federal criminal offence for you to smoke a joint in your
basement," Solomon says. "Either we take autonomy seriously, or we
don't."

Solomon says Canadian law is based on exaggerating the risk posed by
illicit drugs while ignoring the greater risk associated with alcohol
and tobacco.

Another professor at Western, sociologist Paul Whitehead, thinks laws on
alcohol and tobacco should be tightened up, rather than having marijuana
laws relaxed. Clay may be a healthy adult who can make responsible
decisions about marijuana, but Whitehead believes the court has a right
to limit Clay's freedom in the interest of protecting young people and
adults who are not so healthy.

Whitehead, who chairs the LondonMiddlesex Catholic school board, says
more young people face family difficulties this generation and are at
risk of turning to drugs as a way of coping. "It would be a serious
disadvantage for the current generation to live in a society where
marijuana is more acceptable and available."

CONCERN

Linda SibleyBowers, executive director at Alcohol and Drug Services of
Thames Valley, shares Whitehead's concern about young people, asserting
that Clay's store was a youth hangout. Clay sublet the store in July to
a friend, who now operates it as The Organic Traveller.

SibleyBowers believes many people underestimate the health effects of
marijuana and how hard it is to overcome psychological dependence on the
drug. She says marijuana can hurt the lungs, cause memory problems and
lead to family conflict, especially over money. But SibleyBowers
understands both sides in the decriminalization debate if marijuana
possession was not a criminal offence, her agency might find it easier
to educate the public on how to use the drug responsibly.

Grant Hopcroft, chair of London's police services board, says there
would be little impact on London's police budget if people were no
longer charged for marijuana possession. Most charges are laid in the
course of investigations into more serious crimes such as impaired
driving or drug trafficking.

But decriminalization of marijuana may be only a pipe dream for now.
Jeff Schlemmer, a lawyer who served until recently on the police
services board, says trial judges tend to leave policy decisions to
politicians. Once a case works its way to an appeal court, there's a
greater chance of changing the law, he says.

Clay's defence fund was eaten up covering travel expenses for experts at
his threeweek trial, but he says a lot of people have expressed
interest in donating money if he needs to appeal. Clay's lawyers are
working for free, but other trial costs came to about $30,000. Clay
estimates an appeal would cost another $10,000.

Win or lose, Clay's other lawyer, Osgoode Hall law professor Alan Young,
wants to use Clay's case as a launching pad to get the debate over
marijuana back into the political arena. Schlemmer says virtually every
group that has ever studied marijuana concluded it should be
decriminalized, but politicians don't want to act. "I think that the
government would not be unhappy if the court did strike the law down,"
Schlemmer says. "But nobody wants to be associated with it because then,
politically, you're tarred as a pothead."

Clay and his employee, Jordan Prentice, were charged in 1995 after
selling a cannabis seedling to an undercover officer. Clay's lawyers
argued that prosecutors did not prove the plant contained enough of the
drug THC to get anyone stoned. They also argued the Narcotic Control Act
interfered with Clay's constitutional right to bodily autonomy, without
sufficient evidence of harm to justify the interference.

If the judge agrees there is something wrong with the law, he could
remove cannabis from the list of illegal drugs, decriminalize simple
possession or disallow imprisonment for personal use of the drug. McCart
could also suspend the law until the government proves the drug causes
sufficient harm.

JAIL

Canada's new drug law still allows a maximum penalty of $1,000 and six
months in jail for possession of small amounts of marijuana, but those
arrested are no longer fingerprinted. The Addiction Research Foundation
favors reducing penalties for marijuana possession, says chief
scientist Robin Room in Toronto. He says decriminalizing the drug
would probably have little impact on how many people use it.
Legalizing marijuana and treating it like alcohol, on the other hand,
would breach international agreements aimed at controlling the drug
trade.