MARIJUANA LAWS

Criminally Hazy

Editorials - It seems everyone is waiting for federal Justice Minister
Martin Cauchon to exhale and blow away the haze that obscures Canada's
marijuana laws.

Or if they're not waiting, they should be.

At the top of the waiting list is the Supreme Court of Canada. Three weeks
ago, the court adjourned a package of three appeals which all challenge the
constitutionality of laying criminal charges for possession of small amounts
of pot.

The justices put the appeals over until the court's spring session, citing
recent statements by Cauchon that he expects to introduce decriminalization
legislation during the first four months of 2003. Chief Justice Beverly
McLachlin said the upcoming parliamentary debate "may provide guidance to
the courts in deciding the present appeals."

Ontario Court Justice Douglas Phillips would have been wise to keep
McLachlin's statement in mind when he ruled on a similar but unrelated case
last week. Instead, Phillips tossed out a charge of possession of less than
30 grams of marijuana against a 16-year old. Phillips ruled that the federal
government has not rewritten marijuana laws to comply with a two-year-old
Ontario Court of Appeal decision, rendering the teenager's simple possession
charge invalid.

The federal Justice Department quickly filed an appeal. Justice officials
say that regulations covering the medical use of marijuana which were
adopted by cabinet last year satisfy the Court of Appeal ruling, and that
the law regarding criminal charges for simple possession is valid.

The court cases are taking place against a background of political support
for a more liberal attitude toward marijuana. A Senate committee report
released in October called for outright legalization of small amounts of pot
and a national distribution system similar to liquor control boards, where
anyone 16 or older could buy a government-approved joint. And a month later
an all-party committee of MPs released its recommendation that simple
possession be decriminalized -- a less radical shift that would result in
fines similar to a traffic offence but no criminal record.

It would not be going too far to say the country is suffering from a touch
of reefer madness.

Police are continuing to lay simple possession charges, as they should.
Their job is to uphold the law, which is still in place. However, federal
prosecutors are being told by the Justice Department not to proceed with
trials until the appeal of Phillips's ruling is heard. That is also the
right thing to do. If the simple possession law is upheld, charges that have
been put on hold can go to court. If it is not, it would be unfair to have
prosecuted defendants under a law which was already on the way to the
dustbin.

Cauchon could clear up most of the confusion by doing what he has been
hinting at since early last year, and flat-out promised in November:
introduce decriminalization legislation. Or, if all that talk was simply an
over-inflated trial balloon, say so now and let the courts get on with their
business.

We would suggest the second course. While there are good arguments for
decriminalization -- the relatively small amount of harm marijuana does
relative to other, legal drugs; the high personal cost of a criminal record
to those convicted; the public cost of enforcement and prosecution -- they
do not outweigh the drawbacks. Marijuana may not do significant health
damage but it is still damaging, particularly to young teenagers, and
removing the criminal sanction will undoubtedly lead to greater acceptance
and use. It impairs the ability to drive, but is harder to detect than
alcohol. And a system in which possessing the drug is a minor offence but
buying or selling it is still a criminal act is illogical and would lead to
even more legal tangles.

However, Cauchon should act quickly to clear up the medical marijuana
situation. Patients who have a legitimate need for pain relief or control of
a medical condition that marijuana alleviates should not face the
bureaucratic barriers that have been erected.

The justice minister has so far been adding to the legal haze by saying he
will act but doing nothing. He should take a deep breath, decide on a policy
direction and then clear the air.