TOP COURT TO MULL BUTTING OUT POT LAW

OTTAWA (CP) - The Liberal government is promising to rewrite the law on
marijuana use, but the Supreme Court of Canada faces a more pressing
question - what to do with the law as it is, not as it may be.

In a trio of cases to be heard Tuesday, the high court is being asked to
throw out criminal penalties for simple possession of small amounts of pot
on the grounds that they violate the Charter of Rights. Government lawyers
will be arguing the present law should be upheld, even as Prime Minister
Jean Chretien and Justice Minister Martin Cauchon prepare to change it.
That's not as bizarre as it may seem at first glance.

They key issue, stripped of legal niceties, is whether the politicians or
the courts have the final say in deciding what substances ought to be outlawed.

The federal Justice Department contends the government should have as much
leeway as possible in drafting drug policy, without being hemmed in by
constitutional fences.

"Simply put, there is no free-standing right to get stoned," says the
written brief filed by federal lawyer David Frankel.

"Whether the courts or the public at large consider Parliament's choices to
be good or bad, effective or ineffective, wise or unwise, popular or
unpopular, are not yardsticks for measuring constitutionality."

On the other side stand an array of defence lawyers who maintain the nine
judges of the Supreme Court must set limits on what the country's
legislators can do.

"You can't simply say Parliament has the right to be wrong," says Paul
Burstein, counsel for one of the three people whose pot convictions are
under review.

Burstein is hoping the court will draw a "constitutional line in the sand"
that no future government can cross, no matter what the prevailing
political winds of the day.

The cases at issue involve two self-described marijuana activists and one
man who was simply unlucky enough to get busted smoking a joint:

- - David Malmo-Levine ran the Harm Reduction Club, a non-profit co-operative
in East Vancouver that offered advice on how to use marijuana moderately
and safely and supplied pot at cost to some 1,800 members. He got a
one-year suspended sentence.

- - Christopher Clay ran Hemp Nation in London, Ont., a store he started with
a government loan. Clay, who has since moved to B.C., used the London
business to sell marijuana seeds and seedlings in a deliberate challenge to
federal law. He was fined $750 and given three years probation.

- - Victor Caine was arrested by a police officer who caught him after he lit
up a joint in his van in a parking lot in White Rock, B.C. He had 0.5 grams
of pot in his possession, was convicted at trial and given an absolute
discharge.

Trafficking issues were part of the Malmo-Levine and Clay cases, but the
central matter before the Supreme Court is whether possession for personal
use should be a crime.

It is at present, and prison terms of up to seven years are still possible
under the law although they are rarely imposed.

The three challengers argue that threatening people with jail time and a
criminal record for something that amounts to a victimless crime is
contrary to the Charter of Rights.

They also claim Ottawa is overstepping its constitutional jurisdiction and
meddling in matters that should be left to the provinces.

The Supreme Court was supposed to hear the case in December but put it off
when Cauchon said he was working on legislation to decriminalize simple
possession of less than 30 grams of pot.

Chretien reiterated that commitment last week, indicating the bill,
expected before Parliament breaks in June for the summer, would make
possession an offence akin to a traffic violation. A ticket would be issued
and a fine imposed, but the offender would not get a criminal record.

In spite of the renewed promise, the Supreme Court decided to go ahead with
the hearing this time - a move welcomed by Alan Young, a professor at
Osgoode Hall law school in Toronto.

He thinks the government, even if it brings in a bill, is unlikely to push
it through Parliament before the next federal election, likely to come in
about a year's time.

"I just don't believe they will be able to fast track it through," said
Young. "And I believe they know that."