Newshawk: CMAP (http://www.mapinc.org/cmap)
Pubdate: Wed, 07 May 2003
Source: Globe and Mail (Canada)
Copyright: 2003, The Globe and Mail Company
Author: Kirk Makin, Justice Reporter
Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada)
Bookmark: http://www.mapinc.org/decrim.htm (Decrim/Legalization)
FEDERAL GOVERNMENT DEFENDS ITS POT LAWS
The federal government may be talking the talk of marijuana decriminalization, but it certainly wasn't walking the walk yesterday at the Supreme Court of Canada.
A federal lawyer defended the law aggressively during a historic test case, insisting judges cannot weigh Parliament's intentions when it made marijuana possession illegal in 1923.
"Whether you like them or not, the marijuana laws are an example of the democratic process," lawyer David Frankel said. "By their very nature, some people do not like the laws. But it is not a popularity contest. Polling results may be a matter that politicians want to take into consideration, but they are not a matter for the courts."
The appeal involves three men convicted of marijuana offences. It is the first Charter test that the marijuana laws have faced at the Supreme Court.
Appellants David Malmo-Levine, Victor Caine and Christopher Clay say marijuana is virtually harmless and that criminal sanctions violate their right to life, liberty and security.
Yesterday's proceeding quickly transformed into a riveting intellectual brawl over who reigns supreme: judges or legislators.
Mr. Justice Ian Binnie at one point questioned Mr. Frankel's hard-line defence of the very law that Prime Minister Jean Chretien recently said he intends to change.
"You seem to be saying that short of being cruel and unusual punishment, all of this lies within Parliament's domain," Judge Binnie remarked.
"At the end of the day, it is for Parliament to weigh and assess the competing interests," Mr. Frankel said. "There is a base line here. If the legislature takes what is regarded by this court as a rational decision, that is the end of it [and] this is clearly rational legislation."
A key question is whether the government must demonstrate a serious health risk to marijuana users or the public if it is to uphold the law.
"We must ask whether the state has any place in the living rooms of the nation," remarked Andrew Lokan, a lawyer for the Canadian Civil Liberties Association.
Mr. Frankel argued there is ample evidence of the danger marijuana represents to pregnant women, youths and the mentally infirm. However, appellant lawyers John Conroy and Paul Burstein urged the court to strike down the law and disregard Mr. Chretien's vague promise to decriminalize possession. "The record demonstrates many broken political promises," Mr. Burstein said. The lawyers also tried to still the concerns of some judges that assessing health risks underlying laws would open a Pandora's Box.
Mr. Burstein stressed that marijuana is a unique case, since a host of doctors and government-appointed inquiries have concluded that the drug is relatively safe.
Chief Justice Beverley McLachlin countered by citing evidence that up to 50,000 Canadians -- mostly pregnant women and schizophrenics -- could be harmed by marijuana.
Mr. Conroy said the marijuana laws have created a thriving black market and left more than 600,000 people with criminal records.
The court also heard from Mr. Malmo-Levine, a Vancouver marijuana activist who waved to the judges before he spoke and later told reporters that his entire court ensemble was made of hemp.
Mr. Malmo-Levine urged the judges to make the world a better place by legalizing marijuana.
"It's time the human race evolved to accommodate the need to self-medicate," he said.
The court has reserved its decision.
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