JUSTICE SERVED

Editorials - Canadians do not have a fundamental, constitutional right to
smoke marijuana just to get a buzz. And because they don't, the federal
government is free to make laws that would send people to jail for smoking a
joint.

That's the essence of a 6-3 ruling by the Supreme Court of Canada released
Tuesday. It is a welcome decision, even though it doesn't guarantee an end
to more than a year of waffling and indecision on the part of the
government.

What it does do is put the responsibility for making marijuana laws where it
belongs, with Parliament and elected politicians. Had they denied the
federal government the right to declare marijuana illegal, as they had been
asked to do in three separate cases, the justices would have put themselves
in the position of making law, not interpreting it.

Marijuana advocates, and some more aggressive defenders of civil rights,
would say the justices erred on the side of caution. There will be whispers
that the court is giving in to criticism that it has become too activist and
in doing so has not met its obligation to protect the rights and freedoms
guaranteed under the Charter.

There is some merit to that argument. The case for, and against,
criminalization of marijuana is anything but black and white. That's why it
has been such a struggle for politicians to come up with effective laws on
medical use of the drug, the treatment of those caught with small amounts
and definitions of impairment in relation to motorists who light up and then
hit the highways.

Even the Supreme Court justices had a difficult time being consistent in
their ruling. The majority agreed that putting someone in jail for
possession of a small amount of marijuana does not infringe on the Charter
right to personal liberty. The liberty right, they stated, "touches the core
of what it means to be an autonomous human being blessed with dignity and
independence...This does not include smoking marijuana for recreation."

However, the same justices suggested it would be wrong to actually jail
someone for minor possession: "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."

The minority justices who argued criminal charges for simple possession are
unconstitutional displayed similar ambiguity. Their argument was based
primarily on the harm a jail sentence does to the individual, relative to
the harm of marijuana use.

Madame Justice Louise Arbour wrote: "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."
However, it would be a significant stretch to accept her contention that the
government has only a limited public interest in controlling use of a
substance that is harmless, "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 Court has confirmed the federal government's authority to continue
criminalization of minor pot possession. It has not given any direction on
whether it should do so. That will be for the politicians to decide, as it
should be.

Prime Minister Paul Martin has said he intends to decriminalize simple
possession. That would remove the penalty of a criminal record for those
caught in a minor, somewhat victimless crime, which has its attractions.
However, it would also send a message that use of the drug has unofficial
state approval, which will be a incentive for teenagers in particular to get
high more often.

If simple possession is to be decriminalized the government will also have
to take steps to make certain people, teens in particular, realize marijuana
is still illegal.