TOKIN' JUSTICE

So much for all that judge-made law that was supposed to be taking this
country by storm.

The Supreme Court of Canada has been bashed by social conservatives for
quite some time now for "reading in" rights, notably for gays and lesbians,
who are not explicitly protected from discrimination under the Charter of
Rights and Freedoms.

Yet in a decision handed down just before Christmas which may come as a
surprise to its critics, the Supreme Court has rendered unto Parliament
what belongs to Parliament.

In a 6-3 ruling, the top judges quashed a constitutional challenge mounted
by recreational marijuana users. The latter had argued that penalties for
simple possession are grossly disproportionate to the negligible social
harm pot smoking does - so much so that they violate the Charter's
guarantees of life, liberty and security of the person.

But the majority of the judges pointed out that there is no minimum
sentence for pot possession and that a jail sentence is imposed in most
cases only where there are "aggravating circumstances."

"There is no need to turn to the Charter for relief against an unfit
sentence. If imprisonment is not a fit sentence in a particular case, it
will not be imposed, and if imposed, it will be reversed on appeal," the
decision read.

This makes eminent sense. Elevating a dope-possession conviction to the
status of a human-rights violation is a stretch - as the court said, there
is no "free-standing constitutional right to smoke pot for recreational
purposes."

Parliament, the court affirmed, is well within its rights to control the
use of marijuana through the criminal law. We support this view.

But just because lawmakers can, does that mean they should?

The majority of the judges argued that "the prohibition on marijuana is
neither arbitrary nor irrational" because public health concerns - from
stoned drivers to chronic users inflicting permanent harm on themselves -
justify the state's intervention.

That alcohol and tobacco are legal, while marijuana is not - although
similar public-health arguments can be made about all three - does not
constitute a sufficient basis to strike down pot laws, the judges ruled.

Yet herein like the Achilles' heel of this decision, and Madam Justice
Louise Arbour exploited it beautifully in her dissenting opinion. "The harm
associated with marijuana use does not justify the state's decision to use
imprisonment as a sanction against the prohibition of its possession," she
wrote.

"Apart from the risks of impairment while driving, flying or operating
complex machinery and the impact of marijuana use on the health care and
welfare systems, the harms associated with marijuana use are exclusively
health risks for the individual user, ranging from almost non-existent for
low/occasional/moderate users to relatively significant for chronic users.
Harm to self does not satisfy the constitutional requirement that whenever
the state resorts to imprisonment, there must be a minimum harm to others
as an essential part of the offence."

Criminalizing simple pot possession, she found, does in fact run counter to
the principles of fundamental justice. While this may not be the prevailing
view of her judicial colleagues, it is fast becoming the mainstream opinion
across this country.

Which is why Paul Martin should revive the pot liberalization bill - in
suspended animation since Parliament was prorogued - at the earliest
opportunity. Removing criminal sanctions and replacing them with a
fine-based regime is fair progress for most Canadians.