POT LAW GOES TO HIGH COURT

Supreme Court Of Canada Hears Three Challenges

Current Penalties Violate Charter, Says Pot Activist

OTTAWA--This is as high as it gets for David Malmo-Levine.

The 31-year-old Vancouver marijuana activist fortified himself with "a
couple of hits" of hash from a water pipe and a marijuana joint, dressed
head-to-toe in hemp clothing, and urged the Supreme Court of Canada
yesterday to strike down the country's pot law.

"The new test should be you don't go to jail unless your activities are
inherently harmful to others," Malmo-Levine told the country's top court.

The Supreme Court heard three challenges to the constitutionality of the
country's 80-year-old marijuana possession and trafficking law -- the first
time the court has undertaken such a review of the law.

The nine justices listened impassively for 40 minutes as Malmo-Levine,
acting as his own lawyer, argued his case in a courtroom filled with
silk-robed lawyers, law students, and pot users, many dressed in hemp
T-shirts and wreathed in the faint odour of pot.

It's far from clear what the Supreme Court will now do in its review of a
marijuana law that the federal government admits it is on the verge of
liberalizing.

A bill to reduce possession of small amounts of pot for personal use to a
ticketing offence is to be tabled in June. The federal government says it
would still be a criminal offence to possess large amounts of pot, or to
traffic in the drug.

The high court reserved its decision yesterday after a full day of
arguments, and a ruling is not expected for several months.

Malmo-Levine, and four other lawyers, argued the criminal law is
unconstitutional because its potential penalties -- jail and a criminal
record -- outweigh the harm caused, and violate Charter guarantees of
liberty, security of the person, and principles of fundamental justice.

It was clear by the laughter and applause that greeted Prime Minister Jean
Chrétien's promise last week to decriminalize pot that "to that crowd and to
many other Canadians, the law is a bit of a joke," said lawyer John Conroy,
acting for a Vancouver man convicted of possessing a half-smoked joint in
his van at a local beach.

"You have to assess what's the harm you're trying to prevent. Do you really
need criminal prohibition?" said lawyer Paul Burstein, defending former
London, Ont., hemp shop owner Chris Clay.

Burstein noted every royal commission, inquiry and parliamentary committee
in the past 30 years that has studied the law has urged reform, and said it
is up to the courts now to determine whether the "heavy hammer of law" is
warranted.

"Is it up to the court to deal with that or is it best left to Parliament?"
interrupted Justice Charles Gonthier.

Chief Justice Beverley McLachlin suggested Parliament had the right to enact
criminal law prohibitions even if they protect only a small group of
vulnerable people from harm.

Malmo-Levine argued marijuana is no more harmful than alcohol, tobacco, or
even caffeine, and said there should be a constitutionally protected "right
to intoxication, relaxation and well-being" through one's own drug of choice
under controlled or regulated conditions.

Federal lawyer David Frankel dismissed Malmo-Levine's arguments, and said
the Charter should not be used to elevate a recreational pursuit to the
level of a constitutional right.

"There is no free-standing right to get stoned," he said.

It is not up to the courts to decide whether a law is justified on the basis
of whether it addresses a "serious or substantial harm," he said. Rather,
the only question is whether Parliament had a rational basis to enact a
given criminal law.