POT BAN IS CONSTITUTIONAL, SUPREME COURT RULES

IThe health risks of marijuana are "neither insignificant nor trivial,"
the Supreme Court of Canada said Tuesday, upholding laws against pot
possession.

A 6-3 majority said marijuana is capable of altering a user's
behaviour to a point where it "creates a potential harm to others when
the user engages in driving, flying and other activities involving
complex machinery."

Chronic users may also bring serious health problems upon themselves,
Mr. Justice Ian Binnie and Mr. Justice Charles Gonthier wrote for the
majority.

"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," they specified.

The majority said there is nothing unconstitutional about the
government choosing to criminalize marijuana based on public health
concerns even as it turns a blind eye to the greater dangers
associated with alcohol or tobacco use.

However, the dissenting judges ­ Madam Justice Louise Arbour, Mr.
Justice Louis LeBel and Madam Justice Marie Deschamps ­ did not accept
government arguments based on health concerns. They said the
government failed to prove that the risks of marijuana use are serious
and warrant the use of criminal sanctions.

"The state cannot prevent the general population, under threat of
imprisonment, from engaging in conduct that is harmless to them, on
the basis that other, more vulnerable persons may harm themselves if
they engage in it, particularly if one accepts that imprisonment would
be inappropriate for the targeted vulnerable groups," Judge Arbour
said.

The appeals - ­ the first Charter test that the marijuana laws have
faced at the Supreme Court - ­ involved three men convicted of marijuana
offences. In a joint attack, they asked the court to declare the law
unconstitutional because the drug is harmless.

An estimated 100,000 Canadians use the drug daily.

The status of the law remains only slightly less confusing in the wake
of the ruling. Against a backdrop of court challenges involving
medicinal and recreational pot use, the federal government has moved
gingerly to reduce or drop penalties.

Alan Young, a lawyer who argued for the appellants, said the ruling
was disappointing but not entirely surprising.

"I didn't expect the Supreme Court to change the legal landscape
overnight," he said in an interview. However, Professor Young, of York
University's Osgoode Hall law school, said it is unfortunate that the
ruling takes pressure off the government to move quickly to
decriminalize marijuana possession.

Last week, Prime Minister Paul Martin intimated he will reintroduce a
bill proposed by Jean Chretien that would wipe out criminal penalties
for those caught with small amounts of marijuana. The proposed bill
would have made possession of less than 15 grams of pot a minor
offence punishable by fines of $100 to $400. The bill ­ which would
also have maintained or increased stiff penalties for large-scale
growers and traffickers ­ died when Parliament was shut down last
month to give Mr. Martin a fresh start in January.

Conservative-minded critics of the plan argued that 15 grams was too
much to be considered casual use. They said it would be impossible for
police to assess how high a driver was, and that biker gangs and other
criminals would thrive under the new rules.

In giving a modest endorsement to decriminalization, Mr. Martin said
it would have to involve "very, very, very small amounts." He said he
support a parliamentary committee considering the reduction of the
original 15-gram proposal.

The Supreme Court majority said Tuesday that the constitutional
guarantee to life, liberty and security of the person is an intensely
important value which "touches the core of what it means to be an
autonomous human being blessed with dignity and independence in
matters that can properly be characterized as fundamentally or
inherently personal.

"This does not include smoking marijuana for recreation," it said
flatly.

The majority was also unimpressed by arguments that the possibility of
a jail sentence for marijuana possession amounts to unconstitutional
overkill.

Most offenders are granted discharges or conditional sentences,
especially where the amount is small and clearly intended for
recreational use, the majority said. They said that if a particular
judge goes overboard in imposing a stringent sentence, it can
be appealed and reversed.

In a separate judgment, the court upheld a federal law prohibiting
possession of marijuana for trafficking.

The appellants ­ David Malmo-Levine, Victor Caine and Christopher Clay
­ challenged the government to show serious harm to the health of
marijuana users in order to justify a law that deprives offenders of
their liberty. They stressed that marijuana is a unique case, since a
host of doctors and government-appointed inquiries have concluded that
the drug is relatively safe.