Canada's highest court backed away from a potentially groundbreaking set of marijuana cases on December 12, the day after the House of Commons committee on drugs issued its report calling for marijuana decriminalization and three days after Justice Minister Martin Cauchon said he would attempt to introduce decriminalization legislation early next year. In three cases set to be heard by the court this week, convicted marijuana smokers were ready to argue that federal marijuana laws are unconstitutional because the drug is relatively harmless. Now that court date is pushed back to the spring session, according to the court, and perhaps for much longer, according to one of the attorneys arguing the case.
While both lawyers for the defendants and the Crown sought to proceed with the hearing, the Supreme Court demurred. Speaking for the court, Chief Justice Beverley McLachlin said it would not make sense to proceed given that Canada's marijuana laws appear to be in flux. "A central question is the Minister of Justice has announced his intention to introduce legislation in the parliament that will decriminalize, in some ways, possession of marijuana," she said. "The underlying basis will be taken up in parliament and widely discussed for months to come. In considering all of these circumstances, the court will adjourn."
"They say we will be back in court in the spring, but I don't know what that means," said a frustrated Alan Young, attorney for defendant Christopher Clay. "There could legislation introduced by then, giving the court a reason to delay again. This doesn't make sense. The court should recognize that we are potentially talking about delaying this case for two years while waiting for legislation to pass."
Many Canadian activists are asking whether Justice Minister Cauchon's announcement in favor of decriminalization last week was designed to stop the court from ruling on the constitutional challenge to marijuana prohibition. "This announcement from the government came out just days before the Supreme Court was going to hear a comprehensive challenge to the cannabis law," said British Columbia Marijuana Party leader Dana Larsen. "The fact that the court decided to postpone the cases, doesn't inspire us with great hope for the court," he told DRCNet. "The timing on this is either extremely coincidental or extremely well-planned. It seems suspicious."
"The timing of Cauchon's announcement is really bizarre," agreed Marc-Boris St.-Maurice of the Canada Marijuana Party. "There is supposed to be a wall between the legislature and the judiciary, but Cauchon even wrote a letter to the Supreme Court on the issue, and the court used that as an excuse to postpone the hearings," he told DRCNet. "We think Cauchon should have to resign for improperly influencing the Supreme Court."
"It seems to me there's an utmost disrespect that was shown for the legal process," Young told DRCNet. "The court feels they've been put in a difficult position. The Minister of Justice should not have done that."
Young also said it was "beyond coincidence" that the government scheduled the release of the parliamentary committee report on decriminalization for the same week as the Supreme Court hearing. "The government is using smoke and mirrors here, people are talking out of both sides of their mouths," said Young. "There has been an effort to derail the Supreme Court challenge. The government may want to act on marijuana, but it doesn't want the court forcing its hand. I think the government wants to see what is going to happen and doesn't want to be hurried by the court."
That may be politically naïve, said Young. "Anyone who understands the politics of drugs should know that a constitutional ruling would not excite as much of a retaliatory American response as a legislative act." But it looks as if the Canadian government wants to do it the hard way.
And the marijuana defendants will be waiting. "I think we'll be back here in the spring session," David Malmo-Levine told the Toronto Globe & Mail. "The government won't have raised a finger, won't have done anything, or else they'll have introduced a horrible bill that will result in many people going to jail for unpaid fines. Either way, we'll be back here with the same complaints."