HIGHEST COURT BACKS POT LAW

Enforcement Continues, Ottawa Says

But PM Again Talks Of New Legislation

OTTAWA -- The federal government, armed with a new ruling from the Supreme
Court of Canada upholding marijuana laws, says the criminal law will be
enforced until it is changed by Parliament.

"There is no free-standing constitutional right to smoke 'pot' for
recreational purposes," wrote Justices Charles Gonthier and Ian Binnie for
the 6-3 majority.

In a year-end television interview shortly after the ruling was released,
Prime Minister Paul Martin repeated his intention to revive the
decriminalization bill, first proposed under former prime minister Jean
Chretien, that would lift criminal penalties for those caught with "a very
small quantity" of pot -- 15 grams or less.

"We're not talking about legalizing it," the Prime Minister said.

But Martin dodged the question of whether he would act immediately. The
House of Commons doesn't return until early February.

Several other spokespeople for the federal government stressed yesterday
nothing has changed.

Police and crown attorneys will continue to enforce the law that still
carries the big stick of a criminal record and, in some cases, potentially
jail.

"The Supreme Court was pretty clear on that. The law stands," said Martin's
communications director Mario Lague.

Toronto Police Chief Julian Fantino said last night he was "very pleased,"
by the ruling.

"My issue is not a morality issue. ... To be frank about it, by making it
easier to smoke pot we're also increasing the profits and the activities of
organized crime who are very much involved in the grow operations."

Lawyers for three people who went to court to change the laws took cold
comfort yesterday that the court's majority noted that jail should be
reserved only for situations that involve "trafficking or hard drugs."

"Except in very exceptional circumstances, imprisonment for simple
possession of marijuana would constitute a demonstrably unfit sentence and,
if imposed, would rightly be set aside on appeal," wrote Justices Gonthier
and Binnie.

The judges wrote that it is "open to Parliament to decriminalize or
otherwise modify any aspect of the marijuana laws that it no longer
considers to be good public policy."

Martin's stated intention to replace criminal penalties with a ticketing
scheme and fines, instead of a criminal record, does not mean the
government is urging a go-slow approach to law enforcement, said Lague.

"The government doesn't send a signal to the RCMP not to apply the law. The
way it works, when the government believes the law is not right they change
the law, but until you do that, the one that is there is the one you apply."

"There's no way in Canada you can smoke -- it's not a freebie on smoking
pot," said justice department spokesperson Pascale Boulay.

"I know a lot of people are confused, but hopefully the media will inform
them correctly on that, otherwise they will be charged and they will be
prosecuted accordingly. There's a principle involved: Nobody should ignore
the law."

The law now provides up to six months in jail or fines of up to $1,000 on
summary conviction. If the crown prosecutes under provisions for an
indictable offence, a conviction could bring a jail term of up to seven
years. Even the federal government has acknowledged it is unevenly enforced
across the country.

In a 6-3 ruling that deeply disappointed marijuana activists, the Supreme
Court of Canada said it is squarely within Parliament's federal powers to
control marijuana use through criminal prohibitions.

"I'm bummed out, man," said David Malmo-Levine, a 32-year-old marijuana
activist in Vancouver who was convicted of simple possession and possession
for the purposes of trafficking.

"They're the Grinches that stole Christmas. Their hearts are two sizes too
small," he said.

The high court rejected arguments by Malmo-Levine and others that Ottawa
should prove pot smoking poses a risk of "serious harm" before it can
invoke the criminal law.

Instead, the majority said it is enough that marijuana use is accepted as
harmful to a small group of especially vulnerable people -- teens, pregnant
women, those with heart or lung disease, schizophrenia or other drug
dependencies.

Significantly, the Supreme Court left the door open to future court
challenges to any decriminalization scheme. It suggested if the federal
government gave up its criminal lawmaking power in the area, some provinces
may question Ottawa's jurisdiction to regulate at all.

"We leave this question open for another day," the judges wrote.

"It's a federal matter and we'll see what Mr. Martin does with it," said
Ontario Finance Minister Greg Sorbara.

Sorbara said the provincial Liberal government believes the "appropriate
course" for Ottawa is to press ahead with decriminalization of minor
possession of marijuana.

In its ruling, the high court recognized that the effects of a criminal
conviction are "serious" but said challenges to the legislative wisdom of
the scheme should be made in Parliament.

The judges said just because Parliament has not cracked down on other
harmful substances like alcohol or tobacco does not make its laws on pot
"arbitrary or irrational."

Only one judge in the minority group, Louise Arbour, accepted the notion
that the criminal law should be used only to prohibit conduct that poses a
significant harm to others.

In a sharp dissent, Arbour said the majority's view that jail is rarely
imposed "does not strengthen their position; it highlights the difficulty"
of exposing people to imprisonment when pot smoking has not been shown to
harm others.

"It's a sad day for civil liberties in Canada," said Vancouver lawyer John
Conroy, who represented Randy Caine, a Langley, B.C. man convicted for
possession of a half-smoked joint.

"People will still be hassled by police, will still have their cars
searched simply because of a smell of marijuana, and people will still be
stigmatized and treated as criminals because they choose to use marijuana,
even when they are not one of the vulnerable groups."

But Caine, who was convicted of simple possession and received an absolute
discharge, said he didn't see the decision as a "win-lose" affair, rather
as a step toward changing the law.

"We've exhausted the courts, now we're going to move to the political
arena," he said.

Marijuana activist and Osgoode Hall law professor Alan Young said his
disappointment "escalated into anger" when he read the judgment and
realized the court had given short shrift to the argument that casual
marijuana use is not dangerous to the vast majority of users.

Young said the judgment is little help to advocates in the battle with the
federal government.

"We were getting mileage in the courts. Now that the court of last resort
has said, 'We don't want to deal with this,' the pressure is off. Paul
Martin can go to caucus in the beginning of the year and say, 'We don't
have to follow through with this because we're not going to lose the law.'"