THE POT LAW MAY STAND, BUT IT STILL NEEDS FIXING

The Supreme Court of Canada ruled last week that Parliament has the power
to make possession of marijuana a crime. It did not rule on whether the
government should continue to do so. Its ruling did not make the law a
better law, and it did not undercut the campaign to decriminalize simple
possession of small quantities of marijuana. Prime Minister Paul Martin
should revive his predecessor's legislation to move minor possession out of
the Criminal Code.

The cases before the court involved two men, both from British Columbia,
who were separately charged in 1993 and 1996 with possession of marijuana.
Mounting separate defences, they argued that Parliament did not have the
power to criminalize the use of an intoxicant that posed little if any
harm, and that if it did have that power, the guarantee of liberty in the
Charter of Rights and Freedoms made the marijuana law unconstitutional.

Three of the judges found the arguments persuasive, though they differed in
their reasons and wrote three separate dissents. Madam Justice Marie
Des-champs neatly articulated the main objection: that "the harm caused by
prohibiting marijuana is fundamentally disproportionate to the problems
that the state seeks to suppress."

The six judges in the majority upheld the law. Although debate continues
over the effects of smoking marijuana, they ruled, it is safe to say that
chronic smokers are liable to develop chronic bronchitis and other
problems. Protecting "these vulnerable individuals" from a health hazard is
a legitimate public purpose, which in turn satisfies the test of whether
Parliament can create a criminal offence. As long as the potential harm is
"not insignificant or trivial," Mr. Justice Ian Binnie and Mr. Justice
Charles Gonthier wrote for the majority, "the precise weighing and
calculation of the nature and extent of the harm is Parliament's job."

As for the argument that Parliament is being inconsistent in criminalizing
marijuana while letting harmful drugs such as alcohol and tobacco remain
legal, the court did not disagree. It simply said the point is irrelevant.
"If Parliament is otherwise acting within its jurisdiction by enacting a
prohibition on the use of marijuana, it does not lose that jurisdiction
just because there are other substances whose health and safety effects
could arguably justify similar legislative treatment."

The majority is clearly keen to give the lawmakers in Parliament a great
deal of latitude, and we salute the principle. The court's job is to decide
whether laws offend basic rights and freedoms, not to usurp the role of the
lawmakers. In this case, the majority said the available punishment of
imprisonment for marijuana possession is not grossly disproportionate to
the offence, since there is no minimum mandatory sentence and judges
routinely hand out conditional discharges in the absence of aggravating
factors.

However -- and it's a big however -- this is the beginning, not the end.
Even as it upheld Parliament's power, the court said its concern was
"solely with the issue of constitutionality." Parliament can continue to
make possession illegal "should it choose to do so." However, the accused
men have raised "matters of legitimate controversy" in arguing that "the
line between criminal and non-criminal conduct has been drawn
inappropriately and that the evil effects of the law against marijuana
outweigh the benefits, if any, associated with its prohibition."

We are back in the political arena. It's the same arena in which the Royal
Commission Inquiry on Drug Use -- the Le Dain commission -- recommended in
1972 that simple possession be decriminalized. It's the same arena in which
the Chretien government's Bill C-38 would have made possession of less than
15 grams of marijuana a summary offence, punishable only by a fine. The
bill would have placed that law under the Contravention Act, not the
Criminal Code, to spare offenders a criminal record.

And that cuts to the heart of the problem. As one of the trial judges in
these cases noted, an estimated 600,000 Canadians have criminal records for
cannabis-related offences. The law treats hundreds of thousands of people
as criminals for engaging in an activity in which fully one-third of
Canadians are estimated to have participated. The consequences of a
criminal record -- restrictions on travel, ineligibility for certain jobs
- -- is way out of proportion to the offence. The potential penalties are so
severe that many police officers issue a warning instead of making an
arrest -- lucky for those who receive the caution, but a corrosively uneven
application of the law.

That Parliament has the power to use so heavy a hammer does not justify its
use. That the Supreme Court says the availability of imprisonment is not
"grossly disproportionate" does not make it right.

Mr. Martin has been evasive on the issue. He has indicated that he supports
the former government's bill but wants to amend it so that it covers only a
"very, very, very small amount" of marijuana. Diluting the bill would be a
mistake. Simple possession should be decriminalized. Mr. Martin should
bring strong legislation forward at the earliest opportunity. Parliament
has the power to pass that bill, too.