On May 6, Canada’s Supreme Court heard a comprehensive three-part constitutional challenge to Canada’s marijuana laws.
The three cases involve defendants Randy Caine, Chris Clay, and David Malmo-Levine, and cover the whole spectrum of cannabis law ? possession, cultivation and trafficking.
Randy Caine was was arrested in White Rock, BC for possession of a half-gram of pot in 1993 (CC#01, Voyages). Chris Clay owned a store in London, Ontario and was arrested in 1995 for selling clones over the counter (CC#09, Trial of the century). David Malmo-Levine was charged with trafficking in 1997 for selling pot from his Harm Reduction Club (CC#09, Heaven with an eagle feather).
David Malmo-Levine represented himself, a rarity in Supreme Court hearings. Chris Clay has been represented by lawyers Alan Young and Paul Burstein, while Randy Caine is represented by John Conroy. Also speaking on behalf of changes to Canada’s marijuana laws were the BC Civil Liberties Association and the Canadian Civil Liberties Association.
Prohibition vs. harm reduction
The main point of the legal debate was the disparity between the minimal harm caused by the sale and use of marijuana as compared to the penalties given for those offenses. Lower courts had ruled that the harm caused by the use of cannabis was minimal, but still more than trivial, and so the government could arbitrarily criminalize it for that reason (CC#10, Justice denied).
David Malmo-Levine told the court that he wanted to shift the debate, to focus not on whatever specific amount of harm is caused by cannabis use, but rather on how best to reduce or eliminate those potential harms. Malmo-Levine argued that when done properly, any potential harms involved in the use and sale of cannabis products can be successfully mitigated or lowered to negligible levels.
As an example of a responsible dealer, Malmo-Levine described his Harm Reduction Club. Malmo-Levine’s Club sold marijuana only to members who first read a “Safer, Smarter Smoking Guide” and also promised not to operate heavy machinery while impaired. The Club also sold only organically grown cannabis, so as to eliminate the harms caused by pesticides and over-fertilization.
The Court seemed receptive to the arguments presented to them, but it is impossible to predict what their ultimate ruling will be. There is typically a six to eight month waiting period for such a decision, so there will hopefully be a ruling issued by the court before the end of the year.
Decisions and delays
The possible responses from the Supreme Court range from them rejecting all calls for reform, to their striking down all of Canada’s pot laws and creating a new standard for how to judge the necessity of restrictive legislation.
One likely scenario is that the Court will support liberalization, but take a middle road. They could agree that the current laws against cannabis violate Canada’s Charter of Rights and Freedoms in some specific ways. They would likely then give the government a time limit, possibly one year, to write a new marijuana law which fits into their liberalized legal guidelines.
If this is the scenario that emerges, then we can expect the government to act as they have in regards to similar court decisions regarding medical marijuana. In every instance, the Liberal government has complied with the courts only to an absolute minimum, including stalling and delaying their actions as much as possible.
Canadian marijuana activists could be returning to the Supreme Court over the coming years, as their government resists making any substantial changes to their campaign against marijuana and those who enjoy it.