The judge agreed that marijuana was harmless and that prohibition was racist, but ruled that pot is still illegal. By Chris Clay
By Chris Clay
The time is always right to do what is right.
If only Ontario Court Justice John McCart agreed? On August 14th, many Canadians anxiously awaited news of a landmark decision that could have toppled this country’s archaic cannabis laws. Two years in the making, Canada’s most comprehensive challenge to marijuana prohibition finally concluded with a judgment that “passes the buck” to Parliament or a higher court.
While the media sharks circled, an impressive number of cannabis crusaders gathered at the downtown courthouse in London, Ontario. The smell of freshly-smoked bud permeated the courtroom as supporters crammed in for the action. For once I was glad to be sitting in the far-from-comfortable prisoners box, since it was the best seat in the house. My cohort in crime, Jordan Prentice, sat next to me and we patiently listened to the man who, for the time being, guarded the gates of prohibition.
Our lawyer, Professor Alan Young from Osgoode Hall law school, sat in front of us; across from Professor Young were two federal drug prosecutors who, strangely enough, were there representing Queen Elizabeth II. The trial “Queen vs Christopher James Clay and Jordan Kent Prentice” had reached its conclusion.
HEMP VS MARIJUANA
At the outset, the judge needed to clarify an issue that we had raised before the constitutional challenge began.
I was arrested in my store after selling a small cannabis cutting to an undercover officer, and the Crown was unable to prove beyond a reasonable doubt that the plant was actually “cannabis marijuana” as opposed to low-THC industrial hemp. The government analyst that tested the cutting didn’t test for levels of THC, and under oath he admitted that running a hemp shirt through his testing procedures resulted in a certificate of analysis showing “cannabis marijuana”. In other words, someone could theoretically be imprisoned for selling or wearing hemp clothing.
Professor Young and his partner, Toronto lawyer Paul Burstein, argued that the Narcotic Control Act “was not intended to apply to non-intoxicating substances” and the case should be dismissed. If the judge agreed with this premise, then the government would have to test each of the thousands of cannabis samples used as evidence each year for THC levels, an extremely costly process.
However, Justice McCart ruled simply that “it is clear that Parliament intended in 1961, by the phrase ?cannabis sativa L’ to prohibit all cannabis.”
Over the course of an hour, Justice McCart delivered his 27-page ruling to the court. Although he didn’t read from it, the decision also included an 11-page Addendum that I had prepared for him during the trial, “Cannabis Commission Reports: A summary of the potential harms and benefits”. The Addendum is a review of eight governmental reports from around the world that recommended decriminalization.
At first it seemed certain we had achieved victory. . .
For the first time, an elated courtroom heard a Superior Court judge describe the reefer-madness writings of Judge Emily Murphy as “wild and outlandish”, concluding “it was in this climate of irrational fear that the criminal sanctions against marijuana were enacted.” After three years of her “sensational and racist” media campaign, with facts “derived mainly for correspondence with US enforcement officials,” marijuana was added to the Opium and Drug Act in 1923 without any Parliamentary debate.
The mood in the courtroom climbed higher as McCart continued to describe the success of decriminalization in other countries, including The Netherlands, Germany, Spain, Italy, some US states, and Australia. He said, “Of all of the major western countries outside of North America, only France and New Zealand have taken no measures to ease the impact of cannabis laws. The national governments of Canada and the United States appear to be somewhat out of step with most of the rest of the western world.” He also made special note that “current use [of marijuana]by high school students in The Netherlands is much lower than use in the United States” (5.4% vs. 29% respectively.)
The elusive judge still hadn’t pronounced us innocent, but after the next section I became convinced the walls of prohibition were tumblin’ down. Turning to the factual evidence presented by our illustrious expert witnesses, he outlined 13 key points that sounded like a virtual endorsement of decriminalization. McCart confirmed “there was a general consensus about effects of the consumption ofmarijuana. . . [It is] relatively harmless compared to the so-called hard drugs and including tobacco andalcohol. . . Cannabis is not an addictivesubstance. . . There have been no recorded deaths from the consumption ofmarijuana. . .”
Judge McCart’s Findings of Fact
I heard from a most impressive number of experts, among whom there was a general consensus about effects of the consumption of marijuana. From an analysis of their evidence I am able to reach the following conclusions:
1. Consumption of marijuana is relatively harmless compared to the so-called hard drugs and including tobacco and alcohol;
2. There exists no hard evidence demonstrating any irreversible organic or mental damage from the consumption of marijuana;
3. That cannabis does cause alteration of mental functions and as such, it would not be prudent to drive a car while intoxicated;
4. There is no hard evidence that cannabis consumption induces psychoses;
5. Cannabis is not an addictive substance;
6. Marijuana is not criminogenic in that there is no evidence of a causal relationship between cannabis use and criminality;
7. That the consumption of marijuana probably does not lead to “hard drug” use for the vast majority of marijuana consumers, although there appears to be a statistical relationship between the use of marijuana and a variety of other psychoactive drugs;
8. Marijuana does not make people more aggressive or violent;
9. There have been no recorded deaths from the consumption of marijuana;
10. There is no evidence that marijuana causes amotivational syndrome;
11. Less than 1% of marijuana consumers are daily users;
12. Consumption in so-called “decriminalized states” does not increase out of proportion to states where there is no de-criminalization;
13. Health related costs of cannabis use are negligible when compared to the costs attributable to tobacco and alcohol consumption.
In an abrupt turnaround, our hearts all sank as Justice McCart proceeded to describe “Harmful Effects of Marijuana and the Need for More Research.” Moments before, he had said that less than 1% of marijuana users smoke daily; but suddenly he emphasized that there may be some health risks to these chronic users and that despite decades of study “the jury is still out respecting the actual and potential harm” of heavy use.
This change of tone sent a chill through my body, and it soon became apparent that he had ruledagainst us. However, he paused to point out that “Health Canada released a public opinion poll in 1995 which found that 27 percent of Canadians believed that possession of marijuana should be legal, while 42.1 percent believe it should remain illegal but only punished by a fine or non-jail sentence.” I suspect he included this statement to send a clear message to Parliament as he tossed the political “hot potato” into their hands.
MARIJUANA AS MEDICINE
Before proceeding to trash our legal arguments, Justice McCart unexpectedly turned to the issue of medical marijuana. Quoting from one of our expert witnesses, Dr John Morgan of CUNY medical school, he stated that marijuana is effective for reducing nausea and vomiting from cancer chemotherapy; it reduces intra-ocular pressure associated with glaucoma; and AIDS patients find it helpful as an appetite stimulant and anti-nauseant.
Unfortunately he felt that Jordan and I “lacked standing” since we weren’t personally using marijuana for medicinal purposes. But in an important move, while avoiding a decision, he urged our politicians to act.
“As an aside, Parliament may wish to take a serious look at easing the restrictions that apply to the use of marijuana for the medical uses outlined above as well as for alleviating some of the symptoms associated with multiple sclerosis, such as pain and muscle spasm. There appears to be no merit to the widespread claim that marijuana has no therapeutic value whatsoever.”
It was terribly frustrating to hear the judge agree with all our witnesses while at the same time insist that he must maintain the status quo. In what often appeared to contradict his findings earlier in the decision, Justice McCart finally turned to the complex constitutional issues.
Professor Young, in his brilliant Memorandum of Argument, challenged the inclusion of cannabis in the Narcotic Control Act by claiming the law violates section 7 of the Charter of Rights and Freedoms. Section 7 states:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
In his decision Judge McCart explained, “the two questions required to be answered are (a) do the accused or either of them stand at risk of being deprived of their right to life, liberty and security, and (b) if so, is that deprivation contrary to the principles of fundamental justice?”
Since the answer to (a) was “yes” (I face several life sentences!), he then had to consider four main arguments submitted by Professor Young.
THE HARM PRINCIPLE
According to Justice Antonio Lamer (now the Chief Justice of Canada), “a law that has the potential to convict a person who has not really done anything wrong offends the principles of fundamental justice and, if imprisonment is available as a penalty, such a law then violates a person’s right to liberty under s.7 of the Charter of Rights and Freedoms.”
Professor Young argued that the cannabis laws prohibit something that isn’t inherently wrong, since it’s a “victimless crime” and is also relatively harmless to the individual. The Memorandum of Argument points out that “virtually every Commission of Inquiry appointed by the Canadian, American, British and Australian governments have concluded that the consumption of cannabis sativa does not raise sufficient harm to warrant imposition of the criminal sanction.”
In his decision, McCart responded by saying that Parliament doesn’t have to demonstrate a behavior is harmful in order to criminalize the conduct. He also emphasized that “the consumption of marijuana does cause harm, albeit perhaps not as much harm as was first believed.”
In 1992, Madame Justice Corbett wrote that “a criminal law with irrational distinctions between what is criminal conduct and what is not criminal conduct is fundamentally unjust and therefore contravenes s. 7 of the Charter.”
Echoing the LeDain Commission Report on Cannabis, Professor Young pointed out that “the classification of cannabis sativa as a dangerous ?narcotic’ is arbitrary and irrational. This substance is neither a narcotic nor does it share any of the pharmacological effects of the other narcotics contained in the schedule of the Narcotics Control Act.”
Conveniently, the new Controlled Drugs and Substances Act came into force during the trial, so McCart felt these concerns had been addressed: “In this Act marijuana is listed in a separate schedule from the so-called hard drugs and the penalties for simple possession of small amounts of marijuana have been significantly reduced.”
In the case R. vs. Heywood, the Supreme Court ruled that section 7 of the Charter is violated if “legislation infringes on life, liberty and security of the person in a manner that is unnecessarily broad, going beyond what is needed to accomplish the governmental objective.”
Professor Young submitted that “the blanket prohibition on the use and distribution of cannabis sativa is overbroad in that no meaningful exemptions are provided for legitimate medical use.” He continued that “it is theoretically possible for a physician to prescribe cannabis sativa; however? applying for a prescription is a meaningless exercise because, even were such a prescription granted by a physician, individuals would be compelled to enter the black market to fill the prescription. The Supreme Court of Canada has held that it is a violation of the principles of fundamental justice to create an illusory exemption or defence for a criminal offence.”
In now-typical fashion, McCart avoided the issue once again by saying that since Jordan and I weren’t medical marijuana users, it was irrelevant. (Lawyer Paul Burstein later pointed out that Canada’s abortion laws were successfully fought by Dr. Henry Morgentaler, who was neither a woman nor pregnant.)
PERSONAL PRIVACY AND AUTONOMY
In a landmark 1975 decision, the Supreme Court of Alaska struck down the state’s cannabis laws for violating the right to personal privacy. “The privacy of the individual’s home cannot be breached absent a persuasive showing of a close and substantial relationship of the intrusion to a legitimate government interest. Here, mere scientific doubts will not suffice. The state must demonstrate a need based on proof that the public health or welfare will in fact suffer if the controls are not applied.”
Also, the Supreme Court of Canada struck down Canada’s abortion laws when they ruled that a woman has the right to control her own body.
However, once again McCart disagreed and cited case law saying “freedom of the individual to do what he or she wishes must, in any organized society, be subjected to numerous constraints for the common good? Liberty interest is rooted in the fundamental concepts of human dignity, personal autonomy, privacy and choice in decisions going to the individual’s fundamental being.”
McCart felt that “private possession of marijuana. . . cannot be deemed fundamental” and emphasized that “the Charter does not protect against insignificant or ?trivial’ limitations of rights.”
THE BUCK IS PASSED
Despite his strong sentiments towards decriminalization, Justice John McCart placed the issue right back into the hands of Parliament:
“The overwhelming weight of the evidence which I heard supports legislative controls over any scheme which might ease or remove the criminal sanctions for simple possession of marijuana? Easing of restrictions on the possession and use of marijuana is within the domain of the legislative branch of government.”
He concluded, “perhaps someday they may adopt some of the [decriminalization]measures that exist, for example, in Australia, and which I do not believe would meet with much objection from an informed public.”
With that, he pronounced me guilty of possession of a narcotic, possession for the purpose of trafficking, and trafficking in a narcotic. He found me not guilty of cultivation, and he acquitted Jordan of all charges. I am to be sentenced on September 5.
TRIUMPH IN DEFEAT
There was immediate reaction to the verdict. Outside the courthouse a frenzied media beamed signals nationwide announcing the news that “Judge finds marijuana ?relatively harmless'”, and “Parliament urged to reform the cannabis laws.” Both Professor Young and I were quickly encircled by countless cameras and microphones.
Smoke soon filled the air as supporters gathered in the sun to discuss their mixed feelings. Someone grabbed the old Hemp Nation sidewalk sign from a nearby store and chained it to the courthouse in a last act of protest. Hemp BC owner Marc Emery passed out free BC bud to onlookers while shouting, “Who needs some more marijuana?”
Once the dust settled, I had a chance to get reactions from many people. Professor Young, after so much work, was obviously frustrated at being told to deal with Parliament: “My question to the judge of course is, ?We’ve been trying to do that for 30 years; why would the judge think we’re going to have any better luck now?'”
Equally frustrated, some activists vented their anger at the judge, insulting his honesty, integrity, and manhood.
Personally, I felt a sense of accomplishment on the way out of the courthouse. Judge McCart could have simply disagreed with our legal arguments and left it at that. However, he wrote a carefully worded decision that debunks many “marijuana myths” and urges reform.
In a commentary for CBC Radio, Eugene Oscapella of the Canadian Foundation for Drug Policy (and an expert witness in the trial) concluded:
“The triumph lies in the recognition by the judge hearing the case that Canada’s laws prohibiting marijuana are not, and have never been, based on a sound footing. This judgment also appears to be among the first in Canada to systematically catalogue many of the legislative and scientific deficiencies in Parliament’s attack on marijuana ? a tremendously costly attack driven by irrationality, and one that, through the criminal records it produces, is enormously damaging to the lives of hundreds of thousands of Canadians.”
From the beginning, we knew that whatever happened August 14th the case would be appealed to the Ontario Court of Appeal and then to the Supreme Court of Canada. The appeal was filed before my sentencing date in September, and it should be heard by Spring.
Co-counsel Paul Burstein is feeling confident: “The main purpose of trial courts is to find facts, and that’s what this court did. The main purpose of appeal courts is to shape the law. So we consider it a success at stage one where we now have a strong factual foundation to go to the appeal court and shape the law in a way that conforms with the constitution and will benefit Canadians.”
Professor Young agrees. “I am pleased that the judge made findings of fact in terms of our sociological, criminological and medical evidence, and courts of appeal should defer to him on finding the facts because he heard them from the witnesses.”
In the meantime, Professor Young is planning a campaign to lobby politicians and get marijuana prohibition back on the legislative agenda. I will turn once again to fundraising activities, since the appeal is expected to cost around $10,000.
Come Spring, armed with Justice McCart’s ruling, we will enter Round 2.
FOR MORE INFO
The complete verdict is available on the Hemp Nation website at http://www.hempnation.com/challenge/decision.html
The Chris Clay Constitutional Challenge now moves to stage two, before the Ontario Court of Appeals. The appeal will likely be heard in the Spring.
The total cost for the appeal will be around $10,000, mainly to cover the enormous cost of ordering several copies of the transcripts from the first trial. Please help us make this a success by purchasing a Victory Bond.
Victory Bonds are $25 each, and redeemable for a quarter ounce of quality marijuana at the end of prohibition.
To donate, send a cheque or money order, payable to The Hemp Nation Constitutional Challenge, to:
Hemp Nation Constitutional Challenge, 101-343 Richmond Street London, Ontario, Canada. N6A 3C2
Or use Visa, Mastercard, or American express through the Hemp Nation website at http://www.hempnation.com