FEDERAL GOVERNMENT DEFENDS ITS POT LAWS

The federal government may be talking the talk of marijuana
decriminalization, but it certainly wasn't walking the walk yesterday at
the Supreme Court of Canada.

A federal lawyer defended the law aggressively during a historic test case,
insisting judges cannot weigh Parliament's intentions when it made
marijuana possession illegal in 1923.

"Whether you like them or not, the marijuana laws are an example of the
democratic process," lawyer David Frankel said. "By their very nature, some
people do not like the laws. But it is not a popularity contest. Polling
results may be a matter that politicians want to take into consideration,
but they are not a matter for the courts."

The appeal involves three men convicted of marijuana offences. It is the
first Charter test that the marijuana laws have faced at the Supreme Court.

Appellants David Malmo-Levine, Victor Caine and Christopher Clay say
marijuana is virtually harmless and that criminal sanctions violate their
right to life, liberty and security.

Yesterday's proceeding quickly transformed into a riveting intellectual
brawl over who reigns supreme: judges or legislators.

Mr. Justice Ian Binnie at one point questioned Mr. Frankel's hard-line
defence of the very law that Prime Minister Jean Chretien recently said he
intends to change.

"You seem to be saying that short of being cruel and unusual punishment,
all of this lies within Parliament's domain," Judge Binnie remarked.

"At the end of the day, it is for Parliament to weigh and assess the
competing interests," Mr. Frankel said. "There is a base line here. If the
legislature takes what is regarded by this court as a rational decision,
that is the end of it [and] this is clearly rational legislation."

A key question is whether the government must demonstrate a serious health
risk to marijuana users or the public if it is to uphold the law.

"We must ask whether the state has any place in the living rooms of the
nation," remarked Andrew Lokan, a lawyer for the Canadian Civil Liberties
Association.

Mr. Frankel argued there is ample evidence of the danger marijuana
represents to pregnant women, youths and the mentally infirm. However,
appellant lawyers John Conroy and Paul Burstein urged the court to strike
down the law and disregard Mr. Chretien's vague promise to decriminalize
possession. "The record demonstrates many broken political promises," Mr.
Burstein said. The lawyers also tried to still the concerns of some judges
that assessing health risks underlying laws would open a Pandora's Box.

Mr. Burstein stressed that marijuana is a unique case, since a host of
doctors and government-appointed inquiries have concluded that the drug is
relatively safe.

Chief Justice Beverley McLachlin countered by citing evidence that up to
50,000 Canadians -- mostly pregnant women and schizophrenics -- could be
harmed by marijuana.

Mr. Conroy said the marijuana laws have created a thriving black market and
left more than 600,000 people with criminal records.

The court also heard from Mr. Malmo-Levine, a Vancouver marijuana activist
who waved to the judges before he spoke and later told reporters that his
entire court ensemble was made of hemp.

Mr. Malmo-Levine urged the judges to make the world a better place by
legalizing marijuana.

"It's time the human race evolved to accommodate the need to
self-medicate," he said.

The court has reserved its decision.