PRESUMED DANGEROUS

If Our Top Judges Don't Like Pot, They Won't Like Sex Either

Just before Christmas the Supreme Court Of Canada ruled that this country's
marijuana laws are just fine, thank you very much. In a 6-3 split decision,
the court said Parliament is entitled under the Canadian Charter Of Rights
And Freedoms to criminalize the trafficking and use of drugs.

As disappointing as the ruling is for legions of pot smokers, the judgment
also gives us a taste of how the court will deal with sex issues, if a
bathhouse, swingers' club or prostitution case were to come before it.

That taste, sad to say, is a bitter one. If the court looks like a
welcoming friend when it comes to equality issues like same-sex marriage,
it's not showing any interest at all in increasing our civil liberties. As
much as we'd like to think that sex and drugs have become issues of
personal choice and health, they're still moral issues in the minds of most
of Canada's top judges. And the government still has the power to force
that morality upon us.

Not only did the court majority declare that marijuana is harmful to
society, it also ruled that it doesn't matter whether it's harmful. If you
thought the law was in place to protect Canadians from harm, you're wrong.

"Several instances of crimes that do not cause harm to others are found in
the Criminal Code," wrote the majority. "Cannibalism is an offence that
does not harm another sentient being, but that is nevertheless prohibited
on the basis of fundamental social and ethical considerations. Bestiality
and cruelty to animals are examples of crimes that rest on their
offensiveness to deeply held social values" rather than the principle of
harm. (Please don't tell your pet that the Supreme Court doesn't consider
setting dear kitty on fire to be harmful.)

Incest, consensual duelling and assisted suicide are also given as examples
of activities that are not necessarily harmful, but properly forbidden.

Instead of harm, the court relies on the vaguer notion of societal
consensus and societal interest. As long as most Canadians believe
something to be bad, it can be prohibited, even if most Canadians are
ill-informed and prejudiced.

Gay and lesbian people have won many court battles in the last couple of
decades, not because courts have sanctioned our sexual and romantic
behaviour, but because courts have classified homosexuality as a kind of
ethnicity under the Charter. We're protected from discrimination not
because we have gay and lesbian sex, but because we are gay and lesbian
people. To give us that basic equality doesn't require societal consensus.

But equality is not freedom, a distinction the Supreme Court makes
perfectly clear in the pot ruling.

"[T]he Constitution cannot be stretched to afford protection to whatever
activity an individual chooses to define as central to his or her
lifestyle. One individual chooses to smoke marijuana; another has an
obsessive interest in golf; a third is addicted to gambling," wrote the
court. "A society that extended constitutional protection to any and all
such lifestyles would be ungovernable."

If a test of harm is applied, the judges here sound like hysteric
Cassandras. The obsessive golfer would presumably be punished for hitting
his balls through others' windows, but if he can afford to golf 24/7, we
let him. Why not the midnight toker or the orgy-goer? As our society
already successfully juggles a panoply of values, it seems the Supreme
Court majority has a distaste only for new or marginal ones.

Now that gay and lesbian people have for the most part been given legal
equality, it looks increasingly unlikely the courts will respect the values
gay men and lesbians develop and bring to society through leading open
lives. The value of not being ashamed of sex. The value of sexual
exploration. The value of intense friendships that can exceed family bonds.
Are these merely lifestyle choices like incest, dope-smoking and
cannibalism? If the Goliath bathhouse raid makes it to the Supreme Court,
we might find that gay promiscuity isn't much different from consensual
duelling - because there is no societal consensus affirming it.

Or perhaps our previous experience before the Supreme Court on other queer
issues will have taught the justices that the person and the lifestyle are
not so easily separated.

Too bad the potheads didn't have all the courtroom practice we've had.

* Paul Gallant is Xtra's managing editor.