Comparing margarine to marijuana

Defence lawyer argues bread spread
once also considered harmful and
banned

Mike Blanchfield
The Ottawa Citizen

It almost sounded like a dare.

After drawing upon Supreme Court precedents, referring to
unheeded recommendations by public inquiries, evoking 19th
Century civil libertarian ideals, even citing a turnofthecentury ban
on margarine, a Toronto lawyer urged a judge to transform his court
into "a vehicle for change" and strike down Canada's marijuana law.

"Will the decision of this court serve as an impetus for change?"
Alan Young asked Mr. Justice John McCart, of the the Ontario
Court (general division). "Or is it simply going to be affirming the
status quo?"

"Send a message to Parliament that it is unacceptable to maintain a
cannabis prohibition that causes more harm to society than it can
possibly reap."

Mr. Young is an Osgoode Hall law professor who says he's waited
10 years for a shot at making Canadian legal history by challenging
what he sees as the country's archaic cannabis law. Yesterday, he
got his chance when he made his closing argument in the
threeweekold trial of a London shopkeeper charged with
cultivating and trafficking marijuana.

Chris Clay, 26, the owner of Hemp Nation, was charged along with
an employee in 1995. Financing his defence on a shoestring budget
and a creative Internet fundraising initiative, Mr. Clay has enlisted
Mr. Young to argue that Canada's marijuana law is unconstitutional.

The trial has revisited the work the 1972 LeDain Commission that
recommended decriminalizing marijuana in Canada, and has heard
from almost a dozen experts in the field of addictions in an attempt
by the defence to show that marijuana is no more harmful than
alcohol or tobacco.

The marijuana prohibition was illconsidered by Parliament when it
added it to the list of banned drugs in 1923, Mr. Young argued.
And since then parliamentarians have continued to ignore mounting
evidence that the drug is not as harmful as originally thought.

Mr. Young said this contrasts with how politicians carefully study
other issues. However, Mr. Justice McCart interjected with a laugh:
"You may have elevated some members of parliament to a level
they don't deserve."

Mr. Young accused lawmakers of "legal moralism" and called the
current ban "a prohibition crying out for some meaningful
justification."

At the turn of the century, Mr. Young said, Canadian politicians
banned margarine because it was thought to be unsafe for human
consumption. In 1951, the Supreme Court overturned the law on
the basis of new scientific evidence. "I think the situation we have
with marijuana is analogous."

He urged Mr. Justice McCart to strike down the current law saying
it violates his client's right to "life, liberty and security" under the
Charter of Rights and Freedoms.

Mr. Young said the law, arbitrary imposed by government, flies in
the face of modern democratic tradition. He read from the
oftenquoted 1859 treatise by John Stuart Mill: "The only purpose
for which power can be rightfully exercised over any member of a
civilized community, against his will, is to prevent harm to others."

He also cited hard data, presented in court by the experts he called
to testify.

Studies show that 40 per cent of cannabis users fall into the 30 to
49 age demographic. It is no longer the preferred drug of an
alternative subculture as more than half the lawyers and onethird of
physicians in Canada have tried it, he said.

A 1996 study by the Addiction Research Foundation found that
0.05 per cent of Ontario residents are addicted to cannabis, while
five per cent are addicted to alcohol and 12 per cent to tobacco.

A 1992 ARF study found that tobacco cost the Ontario health care
system $1.07 billion and alcohol cost it $442 million, compared to
$341,000 for cannabis.

In The Netherlands, where marijuana use is essentially legal, 5.4 per
cent of Dutch youth have tried marijuana compared to 22 per cent
of youth in Ontario.

And Mr. Young pointed to The Netherlands, Spain, Germany, Italy,
11 American states, South Australia and the Australian Capital
Territory, as jurisdictions that have decriminalized cannabis or have
policies against actively pursing users.

Meanwhile, Canada has created a class of 600,000 undeserving
criminals by continuing to prosecute people like Mr. Clay.

"That's where our money is being spent not chasing drug cartels,
biker gangs, people making methamphetamine," he said. "This
trivializes the law."

He added: "Mr. Clay is an intellectual, hardworking young man.
He's not a criminal as Canadians understand that label."

Mr. Young said if politicians won't change the law, then they must
be prodded by the courts. "I hope I've provided you with sufficient
tools for this court to be a vehicle for change."

Crown attorney Kevin Wilson disagreed.

"They're asking the court to exceed its jurisdiction and take over the
legislative function," he argued. "This is a policy issue and the
Charter does not empower the courts to take over policy making
from Parliament."

Mr. Wilson said there is no great impetus to change Canadian
marijuana laws.

He cited a recent Senate committee report, which stopped short of
recommending that the House of Commons decriminalize marijuana.

"Because they thought it would be futile," Mr. Justice McCart shot
back.

The Crown is to continue its closing argument today.

Mr. Justice McCart is expected to reserve his decision, potentially
for weeks.

It is likely both sides will appeal Mr. Justice McCart's ruling to the
Ontario Court of Appeal and potentially the Supreme Court.

'They (defence) are asking the court to exceed its jurisdiction and
take over the legislative function.'

_____________________________________________
Hemp Nation * http://www.hempnation.com/
Chris Clay * Email chris.clay@hempnation.com
Constitutional challenge is underway!