COURTS HAVE NOT GONE TO POT ... BUT SOME ARGUE TO RUIN

Pot-smoking proponents probably won't like my position on last month's
Supreme Court of Canada decision upholding the country's marijuana
laws. I've been tipped off that "unstoned people who write newspaper
editorials" might be viewed as disseminating just an echo of the obvious.

The high court, in a 6-3 decision, rejected the arguments of three
appellants who argued that existing laws are illegal and that they had
a constitutional right to smoke dope. In writing for the majority,
Supreme Court justices Charles Gonthier and Ian Binnie were concerned
only with whether Canada's pot laws were constitutional and not
whether they were necessarily good laws.

A similar statement, or rather synopsis, of the ruling didn't sit well
with some, including Stan Persky, who penned an opinion piece -
whether it was a letter to the editor or a guest column I have yet to
substantiate - published in the Vancouver Sun. Persky teaches
philosophy at Capilano College in North Vancouver, B.C. and was
responding to an editorial in the Vancouver Sun (no affiliation to the
Sun Media chain). He quickly separates himself from those opposed to
"judicial activism" who were applauding the court for rightly bowing
to our elected representatives as those who should ultimately decide
major public policy issues.

"For people who read all 91 pages of the court's 6-3 ruling, the big
surprise is that the judgment isn't so much about pot as it is about a
much deeper question, namely, What is a crime?

"What Justices Gonthier and Ian Binnie, who wrote the majority
decision, have to say about defining crime, the legal notion of "harm"
and our constitutional right to liberty is extremely worrisome. You
have to read all the way to Justice Louise Arbour's dissenting opinion
to understand why there's a good case for thinking that the majority
got it wrong.

Majority got it wrong E obviously we have a differing opinion. Too
often those now cheering the refreshing step back from judicial
activism have been left scratching our heads wondering how it is
minority interests always seem to work their way to the surface.

Decisions in the battle of judicial activism versus restraint have too
often gone one way - a judge's decision. For example, same-sex
marriages became the furour of 2003 when the Ontario Court of Appeal
overturned the traditional legal definition of marriage in June.

But back to those jeering at the Supreme Court decision to leave it to
Prime Minister Paul Martin and the federal government to decide the
future of Canada's marijuana possession laws.

"Arbour's argument goes something like this: conduct that we define as
a crime has to be an act that intentionally causes direct, measurable
harm to other persons or their property," writes Persky.

"In such cases, society, through its government, has the right to
punish those acts. However, the harm caused has to be more than
trivial, and it has to be harm to others not to oneself. That is
especially the case if the punishment includes the possibility of a
jail sentence, one of our severest restrictions of liberty."

Persky and Michael Jenkinson, a columnist for the Edmonton Sun (which
is part of Sun Media), who has a similar opinion on the question of
harm, might thump their chest and shout the Constitution gives you
"the right to do anything you want, as long as you don't cause harm to
others."

The majority decision disagreed with the appellants' characterization
of marijuana as harmless. And there is no doubt the court would
counter Persky and Jenkinson's comments by repeating the concern about
the prospects of stoned drivers on the road, and of the effects on
adolescents and pregnant women, as well as those with pre-existing
conditions such as cardiovascular and respiratory diseases, and
schizophrenia.

Even though the court said only a minimal potential for harm is
necessary in order to sustain legislation outlawing marijuana, Persky
insists "the truth of the matter is that pot, at worse, only harms the
lungs of those who puff it.

"Instead, the court's majority relied on a subsidiary,
much-harder-to-pin-down notion of harm to society. Even there, the
harms to society that the court identified were murky at best.".

Jenkinson said in a column Monday he agrees with "the decision insofar
as it's far more appropriate for elected politicians to decide whether
marijuana should be decriminalized, legalized or remain illegal than
it is for unelected judges to decide that for the rest of us."

E but, there's always a but, Jenkinson's concern is the court ruling
on the aspect of "harm" and in the process maybe inadvertently helping
the cause of a politician who wants to ban any public harm - from
smoking to fast food to who knows what else. He seems sarcastic in
noting the court said "the harm caused by marijuana use is 'neither
insignificant nor trivial' and that 'certain groups in society share
particular vulnerability to its effects.' Those groups include chronic
users, pregnant women and schizophrenics."

Further on, Jenkinson writes "in any other social context, the court's
legal reasoning would be just another slippery-slope argument. But the
problem is that we're at a point in our society where there is real
pressure to ban or severely regulate harmful things like smoking and
unhealthy foods."

I'm from a camp, however, which is not opposed to rules for human
conduct, including those that regulate some of my indiscretions like
speed. I've never harmed anyone by letting my foot get heavy on the
pedal, but I realize there have to be limits and rules to protect
others from possible dangers. I just think it should be up to duly
elected governments to make those rules - based on a belief those
governments should have the mandate of the people on those subjects of
course.

That said, we must keep in mind Prime Minister Paul Martin's comments,
also made in December, that it is ridiculous for young Canadians to
get criminal records for possessing small amounts of marijuana. There
is obviously a possibility decriminalization of marijuana will be on
the agenda for the next government - much like it was with a bill
introduced by Martin's predecessor Jean Chretien which died when
Parliament was prorogued - and we'll hear more about making simple
possession a misdemeanour.

Done right, it would be an election issue. Let's hear the arguments of
what the seriousness of the offence is if that is a benchmark to make
penalties parallel. Let's see more scientific work done on addiction
and long-term effects of marijuana - which proponents say at worst
hurts the lungs of the toker - before anyone declares it safe and
victimless. Let's ensure police have effective roadside screening
devices to pinpoint motorists who have been puffing. Then, let's make
an informed decision.