COURT GIVES GREEN LIGHT TO BAN HARM

It's not often you can mix an episode of the outrageously funny (but
tragically cancelled) Family Guy animated TV show with a Supreme Court
judgment on the constitutionally of marijuana.

So when the opportunity arises, I'm there, baby!

See, there's this one episode from the third season that sees wife and
mother Lois Griffin accidentally stumble across her baby Stewie's stash of
guns, bombs and death rays. (Stewie has plans for world domination, you
understand.) She confronts Stewie about this and proclaims, "Why did I have
to go and smoke pot when I was pregnant with you?"

Interestingly enough, that vignette might as well have been the heart of
the highest court's late 2003 ruling upholding the constitutionality of
Canada's pot laws. Unfortunately, once politicians figure out the
implications of the ruling, the results of that ruling won't be nearly so
funny as Family Guy.

The court focused its ruling on the aspect of "harm" and in the process may
have inadvertently helped the cause of any politician who wants to ban any
public "harm," - from smoking to fast food and who knows what else.

In the decision, the judges ruled by a 6-3 margin that it is up to
Parliament to decide this matter. Now, I happen to agree 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.

That doesn't change the possibility, however, that politicians will be able
to zap any social baddie into oblivion and the court will uphold the ban as
constitutional.

In this particular case, the court said that the "harm" caused by marijuana
use is "neither insignificant nor trivial" and that "certain groups in
society share a particular vulnerability to its effects." Those groups
include chronic users, pregnant women (hello, Lois!) and schizophrenics.

"Advancing the protection of these and other vulnerable individuals through
criminalization of the possession of marijuana is a policy choice that
falls within the broad legislative scope conferred on Parliament.

"Harm need not be shown to the court's satisfaction to be 'serious and
substantial' before Parliament can impose a prohibition," declared the court.

"A criminal law that is shown to be arbitrary or irrational will infringe
(section 7 of the Charter of Rights and Freedoms," said the court.
"However, in light of the state interest in the avoidance of harm to its
citizens, the prohibition on marijuana possession is neither arbitrary nor
irrational."

Play the substitution game with that paragraph, and you can see how easy it
would be for politicians to pass tough bans on smoking (which would make
our city council very happy), french fries, soft drinks, chocolate bars,
alcohol, car emissions or even perfume in the name of reducing harm to
"certain groups in society share a particular vulnerability to its effects."

Heck, you name it and I can find a group vulnerable to harm and a cause to
impose a ban. When I ran some of this by a learned colleague last week, he
remarked that driving certainly causes harm to certain groups - like dead
car drivers and pedestrians, for example - and thus should be banned
forthwith. He was kidding, kind of, but the point he was making was obvious.

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.

The growing (no pun intended ... OK, maybe a little) obesity epidemic
amongst children would be all the more reason for politicians to start
legislating against fatty food. When it comes to trendy identifiable groups
that need protecting from all harm, children always top the list.

Once politicians cotton on to this, there will be no stopping them. And
worst of all, it'll be constitutional. The Supreme Court will see to that.