POT STILL ILLEGAL, TOP COURT RULES

Charter Bid on Marijuana Possession Fails to Pass Supreme Court Scrutiny

The Supreme Court of Canada drove a legal stake into the heart of marijuana
liberalization yesterday with a judgment affirming that possession is a
criminal act, and stressing the potential dangers of smoking it.

"The evidence indicates the existence of both use and misuse by chronic
users and by vulnerable groups who cause harm to themselves," a 6-3
majority said. "There is no free-standing constitutional right to smoke
'pot' for recreational purposes."

The judgment demolished reformists' strategy of using the courts to kill
marijuana laws. Instead, the Supreme Court prodded them none too gently
back toward the doors of Parliament. "We started this case because of
political inertia," said a disappointed lawyer for the appellants, York
University law professor Alan Young. "It's a little ironic that eight years
later, they send us back to the institution that started it all in the
first place."

The majority said Parliament had ample reason to fear the prospect of
stoned drivers, pregnant women or schizophrenics causing harm to themselves
or others. It also found penalties for possession not grossly
disproportionate to the goal of deterring marijuana use. The argument had
been that this contravened the Charter right to life, liberty and security
of the person.

Rejecting another pillar of the constitutional challenge, the court said
there is nothing unconstitutional about the government criminalizing
marijuana smoking even if it simultaneously turns a blind eye to the
greater dangers of alcohol and tobacco use.

The appeals -- the first Charter test that the marijuana laws have faced at
the Supreme Court -- involved three men convicted of marijuana offences.
David Malmo-Levine, Victor Caine and Christopher Clay jointly argued that
marijuana is harmless, and that the possession law is a historic evil which
has created a thriving black market and saddled more than 600,000 people
with criminal records. "I'm bummed out, man," said Mr. Malmo-Levine, who
operates a marijuana-lovers venue in Vancouver known as the Harm Reduction
Club. "I was dreaming of a green Christmas but they grinched out on us.
Their hearts are two sizes too small."

Prof. Young said the lasting scandal of the judgment is that it gives
politicians carte blanche to criminalize an activity even if there is no
proof it can cause harm to others. "There is no moral brake on Parliament
if they decided tomorrow to prohibit playing golf," he said.

Prof. Young also said the ruling takes the pressure off Prime Minister Paul
Martin to bring in marijuana reform.

Mr. Martin intimated last week that he will reintroduce a bill that would
wipe out criminal penalties for those caught with small amounts of
marijuana. However, his endorsement of the bill was tepid, and he stressed
that it would pertain to "very, very, very small amounts."

The dissenting judges yesterday -- Madam Justice Louise Arbour, Mr. Justice
Louis LeBel and Madam Justice Marie Deschamps -- took strong issue with the
government's public-health arguments and said it had only vaguest data to
back them up. " Canadians do not expect to go to jail whenever they embark
on some adventure which involves a possibility of injury to themselves,"
Judge Arbour said. "I see no reason to single out those who may jeopardize
their health by smoking marijuana." However, the majority were adamant that
the Charter of Rights cannot be stretched to protect the lifestyle choices
of various individuals.

"One individual chooses to smoke marijuana," Mr. Justice Ian Binnie and Mr.
Justice Charles Gonthier said. "Another has an obsessive interest in golf.
A third is addicted to gambling. A society that extended constitutional
protection to any and all such lifestyles would be ungovernable."

Parliament need only apprehend a minimal potential for harm in order to
pass legislation, they said.

"Vulnerable groups are at particular risk, including adolescents with a
history of poor school performance, pregnant women and persons with
pre-existing conditions such as cardiovascular diseases, respiratory
diseases, schizophrenia or other drug dependencies." The majority also said
most offenders these days are granted discharges or conditional sentences,
and appeal courts are quite capable of overturning any sentence which is
too strong.