On May 6, Canada’s Supreme Court heard a comprehensive three-part challenge to the constitutionality of 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 was represented by lawyers Alan Young and Paul Burstain, while Randy Caine was represented by lawyer John Conroy. Also speaking on behalf of changes to Canada’s marijuana laws were the BC Civil Liberites Association and the Canadian Civil Liberites Association.
The cases have been slowly working their way through Canada’s legal system, and the Supreme Court hearing is their last hope for a judicial solution to pot prohibition.
The nine justices of the Supreme Court peppered the lawyers with questions during their presentations, but they allowed Malmo-Levine to make his entire speech uninterrupted.
Prohibition vs harm reduction
The main point of the legal debate was the concept of “harm” and the disparity between the minimal harm caused by the sale and use of marijuana as compared to the severe penalties given for those offences. 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.
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 them, but it is impossible to predict what their ultimate decision 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 court range from them rejecting all calls for reform, to their permanently striking down all of Canada’s pot laws.
What seems most likely to many observers is that the court will agree that the laws against cannabis as they now stand violate Canada’s Charter of Rights and Freedoms in some specific ways. They will likely give the government a time limit, possibly one year, to write a new marijuana law which fits into their guidelines. These might range from simple age limits or a maximum number of plants that can be grown without a license, or some other range of acceptable limits.
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. A 2000 court decision demanded that the government change the law to allow for medical access to marijuana, and gave them a one year time limit, or else the law against cannabis would be deemed invalid (CC#28, Canada’s med-pot push). The government waited 11 months, and then created a new set of regulations which allowed for an “exemption” process whereby those with a medical need for marijuana could get a legal exmeption to personally grow and use the herb (CC#35, Official interference).
Judges in Ontario, PEI and Nova Scotia have recently ruled that since the government did not actually write a new law, but merely created new regulations, they failed to meet their obligations under the earlier court order. Therefore these judges have ruled that Canada has no marijuana law at all! All of these decisions have come from the lower courts and so are being appeaed by the federal government. If the appeal courts agree with the lower courts, then the government will have to quickly pass new legislation or else Canada will truly be the world’s first modern nation to have no laws against marijuana on the books.
Meanwhile, federal politicians have recently been promising to “decriminalize” the personal possession of pot. Indeed, it was promises of having a decrim bill passed by April that delayed the Supreme Court from having their hearing on cannabis in December, 2002, when it was originally scheduled.
Canada’s governing Liberal Party has been promising to soften up the pot laws for over 30 years, yet the law has remained essentially unchanged until now. The only significant changes have involved expanded police powers, reduced access to jury trials and increased seizure of property.
At a $500 a plate fundraiser on April 29, Chretien told the crowd that his government intended on passing a decriminalization bill before Parliament breaks for the summer. When his supporters gave him thunderous applause and even joyful whoops, Chretien told them “Don’t start to smoke yet!” He warned the celebrants in the audience that “We’re not legalizing it, we’re decriminalizing. So you will have another ticket, for losing your senses, or something like that.”
Yet Chretien’s promises have also been slowly back-tracked. He has more recently stated that he will only have “agreement in principle” on a new law before the summer break, and that perhaps the law would only be passed in the fall or winter.
The “decriminalization” which is being continually promised by the Liberal government is a far cry from the end of all criminal sanction sought by activists. The range of debate in Canada’s Parliament is about how many grams should be considered “personal,” and what an appropriate fine should be. It is expected that if a decriminalization bill is eventually passed, it will include fines in the range of $200 to $1000. Also, the government has promised to “crack down” on growers and traffickers at the same time as they decriminalize pot possession.
Canada’s next Prime Minister is almost certainly going to be Paul Martin, who will likely become leader of the federal Liberal Party in February 2004. On May 8, Martin said he supported Chretien’s decriminalization plan, but also supported more law enforcement and stiffer penalties for drug offences in general. “I think the penalties ought to be very severe and I think the government ought to crack down as much as possible. I think the government ought to crack down, period.”
So despite the rhetoric and repeated promises, it seems highly unlikely that the Liberal government will make any changes to Canada’s pot laws until late this year at the soonest. Further, any new pot laws will likely include substantial fines for pot possession and increased penalties for all other drug offences. This is hardly the kind of reform which Canadian pot advocates have been pushing for.
This could set the scene for a showdown between Canada’s Supreme Court and Parliament. If the Liberals pass a new law in the fall it will be only because they are trying to avert a Supreme Court decision which could be much more far-reaching in its consequences.
* John Conroy: www.johnconroy.com
* David Malmo-Levine: www.potshotzine.com
* Toronto Star article, April 30, 2003. Chretien Ready To Ease Pot Possession Law www.mapinc.org/drugnews/v03/n619/a05.html
* Toronto Star, May 3, 2003. Pot Plan Puts U.S. Noses Out Of Joint www.mapinc.org/drugnews/v03/n640/a07.html
* Toronto Star article, May 6, 2003. Pot Users Have ‘Right To Relaxation’, Top Court Told www.mapinc.org/drugnews/v03/n676/a11.html
* Globe and Mail article, May 7, 2003. Federal Government Defends Its Pot Laws www.mapinc.org/drugnews/v03/n669/a06.html