CONSTITUTIONALITY THE SOLE CONCERN, TOP COURT SAYS

Argues Legislators Must Alter Laws

Criminality debate legitimate, it adds

Following is an edited excerpt from the majority opinion by the Supreme
Court of Canada regarding Canada's marijuana laws.

The appellants have assembled much evidence and argument attacking the
wisdom of the criminalization of simple possession of marijuana.

They say 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.

These are matters of legitimate controversy, but the outcome of that debate
is not for the courts to determine. The Constitution provides no more than
a framework. Challenges to the wisdom of a legislative measure within that
framework should be addressed to Parliament. Our concern is solely with the
issue of constitutionality.

We conclude that it is within Parliament's legislative jurisdiction to
criminalize the possession of marijuana should it choose to do so. Equally,
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.

We do not exclude the possibility that the Narcotics Control Act might be
justifiable under the "national concern" branch on the rationale adopted in
R. v. Crown Zellerbach Canada Ltd., (1988) . .. where we held that
concerted action amongst provincial and federal entities, each acting
within their respective spheres of legislative jurisdiction, was essential
to deal with Canada's international obligations regarding the environment.

In our view, however, the Court should decline in this case to revisit
Parliament's residual authority to deal with drugs in general (or marijuana
in particular) under the POGG (peace, order and good government) power.

If, as is presently one of the options under consideration, Parliament
removes marijuana entirely from the criminal law framework, Parliament's
continuing legislative authority to deal with marijuana use on a purely
regulatory basis might well be questioned.

The Court would undoubtedly have more ample legislative facts and
submissions in such a case than we have in this appeal. Our conclusion that
the present prohibition against the use of marijuana can be supported under
the criminal law power makes it unnecessary to deal with the
attorney-general's alternative position under the POGG power, and we leave
this question open for another day.

In addition to the possibility of imprisonment, the appellants refer to
harms flowing from having a criminal record. At paragraph 26 of their Joint
Statement of Legislative Facts, they state:

The impact of criminal convictions on the futures of young Canadians has
historically been identified as one of the most serious social harms
generated by the criminal prohibition of cannabis. Upon being charged,
tremendous costs are incurred during the pre-trial period, costs which tend
to have a much more dramatic impact on young people.

Most of the young people charged with cannabis offences are on the low end
of the socio-economic scale and, thus, for them the financial burden is
particularly onerous. Once a person is found guilty of a cannabis charge,
she/he must confront the additional adverse effects associated with having
a criminal record for such an offence.

There is no doubt that having a criminal record has serious consequences.
The legislative policy embodied in the NCA is that a conviction for the
possession of marijuana should have serious consequences.

Therein lies the deterrent effect of the prohibition. The wisdom of this
policy is, as mentioned, under review by Parliament. It appears that this
review has been prompted, in part, by a recognition of the significant
effects of being involved in the criminal justice system.

We agree that the effects on an accused person of the criminalization of
marijuana possession are serious. They are the legitimate subjects of
public controversy. They will undoubtedly be addressed in parliamentary
debate. Applying a standard of gross disproportionality, however, it is our
view that the effects on accused persons of the present law, including the
potential of imprisonment, fall within the broad latitude within which the
Constitution permits legislative action.

This Court has exercised caution in accepting arguments about the alleged
ineffectiveness of legal measures: see Firearms Reference, supra, where the
Court held that "(t)he efficacy of a law, or lack thereof, is not relevant
to Parliament's ability to enact it under the division of powers analysis"
(para. 57). While somewhat different considerations come into play under a
Charter analysis, it remains important that some deference be accorded to
Parliament in assessing the utility of its chosen responses to perceived
social ills.

Questions about which types of measures and associated sanctions are best
able to deter conduct that Parliament considers undesirable is a matter of
legitimate ongoing debate. The so-called "ineffectiveness" is simply
another way of characterizing the refusal of people in the appellants'
position to comply with the law.

It is difficult to see how that refusal can be elevated to a constitutional
argument against validity based on the invocation of fundamental principles
of justice. Indeed, it would be inconsistent with the rule of law to allow
compliance with a criminal prohibition to be determined by each
individual's personal discretion and taste.