Canadian Supreme Court Upholds Marijuana Law -- Cannabis Battle Heads Back to Parliament 12/26/03

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The Supreme Court of Canada ruled Tuesday that laws making marijuana possession a criminal offense potentially punishable by jail time do not violate the Canadian Charter of Rights and Freedoms. The ruling came in the conjoined cases of David Malmo-Levine, Chris Clay and Victor Caine, all of whom argued that the harmfulness of marijuana did not rise to a level that allowed the government to threaten their liberty and personal security through criminal sanctions. Instead, the court agreed with government lawyers, who argued that the laws should stand unless and until parliament decides to change them.

"We conclude that it is within Parliament's legislative jurisdiction to criminalize the possession of marijuana, should it choose to do so," said the decision, co-written by Justices Charles Gonthier and Ian Binnie. "Equally, it is open to Parliament to decriminalize or otherwise modify any aspect of the marijuana laws that it no longer considers to be good public policy... The evidence indicates the existence of both use and misuse by chronic users and by vulnerable groups who cause harm to themselves," said the 6-3 opinion. "There is no free-standing constitutional right to smoke 'pot' for recreational purposes."

Justice Louise Arbour
authored the dissenting opinion.
The dissenting justices scoffed at the majority's public health claims and said that it had only vague data to back up those claims. "Canadians do not expect to go to jail whenever they embark on some adventure which involves a possibility of injury to themselves," wrote Justice Louise Arbour said. "I see no reason to single out those who may jeopardize their health by smoking marijuana." But that was the minority opinion.

The ruling effectively returns the battle for marijuana law reform to the realm of politics. New Prime Minister Paul Martin has announced that his government will reintroduce a marijuana decriminalization bill, as did his predecessor Jean Chretien. But early indications are that the Martin pot bill will be even more restrictive than Chretien's -- the Chretien bill foresaw a personal possession limit of 15 grams, while talk around the Martin bill is of a 5 or 10 gram limit. The Martin bill may also end up with stiffer penalties for growers and dealers than the Chretien bill.

"It's a sad day for civil liberties in Canada," said John Conroy, attorney for Caine. "The court is saying that as long as there is some risk to some vulnerable group, it is okay for parliament to criminalize behavior and threaten your liberty, and it doesn't involve Charter rights. This has closed off almost every avenue for challenging the marijuana law under the Charter," he told DRCNet. "The court hinted that perhaps one could use a claim of disproportionate punishment, but it showed that it had little regard for the stigmatization and all the other things that happen to people prior to being sentenced," he said.

"Those justices are a bunch of Grinches," said David Malmo-Levine, who had famously toked up before arguing his case before the court. "Their hearts are two sizes too small. They ruined Christmas for over three million Canadians," he told DRCNet. "We are not protected by the constitution. This is a real psychic kick in the nuts."

"This is an unfortunate ruling," agreed Eugene Oscapella of the Canadian Foundation for Drug Policy ( "It is a setback, but at least we didn't see any of that demonizing rhetoric that we get from courts in the US," he told DRCNet. "In the Clay case, the judge who originally heard the case basically said the law is stupid but it is not his job to change it. In effect, that seems to be what the Supreme Court said as well. I was hoping the court would force the government's hand, but it did not."

Now some supporters of marijuana law reform are preparing to fight for the decriminalization bill as an alternative, while others categorically reject it as a dangerous charade. "The Supreme Court is basically telling parliament it is up to us," said Sen. Pierre Claude Nolin, head of the Senate Select Committee on Illicit Drugs, which last year called for the legalization and regulation of the herb. "Mr. Martin was quite positive in reintroducing the decrim bill this week; he reaffirmed that with minor changes he is ready to push it," Nolin told DRCNet. "I and others will try to convince parliament that prohibition is not the way to go if we want to prevent the abuse and excessive use of cannabis."

"I suspect we'll end up with a ticketing scheme that will jack up the fines," said Conroy. "But that's just not right. People shouldn't have to be submitted to that for this sort of conduct. I will focus my efforts on sentencing issues; we have to make sure there is no prison time for growing and dealing pot."

While decriminalization is not what the New Democratic Party's anti-prohibitionist wing seeks, the party's Brian Taylor told DRCNet it will be the next battleground. "The only route now is the political route," said Taylor. "We have to influence the politicians. A bad decriminalization bill would put discretionary power in the hands of police, and they could become addicted to the additional revenue -- as they always do," he said.

David Malmo-Levine wants nothing to do with decriminalization. "Decrim is worse than doing nothing at all," said the long-time Vancouver pot activist. "Hell, Singapore has decrim. You don't get a criminal record there; you just get 'behavior modification.' Some of the politicians now are talking about similar things: forced treatment for repeat offenders, mandatory minimums for growers. There would be hundreds of thousands of Canadians going to jail," he hissed. "This sort of decriminalization must be fought tooth and nail; we will not tolerate a decriminalization that has punishments. Zero punishment for zero harm," Malmo-Levine insisted.

Malmo-Levine is not alone. While "responsible" activists may seek to craft a least bad decrim bill, much of the Canadian pot-smoking rank-and-file continue to insist on nothing less than legalization. "This is just a scam for the cops to make money, and they want to throw growers in jail for even longer," said one customer at the Holy Smoke Culture Center and Psychedeli in Nelson, BC, as he shared an afternoon smoke.

The ruling won kudos from the usual suspects -- and some unusual ones. The Canadian Professional Police Association applauded the move, with the group's president, Tony Cannavino, telling Canada Press that the decision was only a "first step." Liberalizing the marijuana laws, he said, sends the wrong message about a "harmful drug."

But according to Brian Taylor, commercial growers he spoke with were also applauding the ruling. "This is a Christmas present to the black market," he said. "The growers are saying 'right on.' They said that the market was depressed, but between this ruling and a series of RCMP raids, that should push prices up and stabilize the industry."

"Those growers are idiots," retorted Malmo-Levine. "They're going to have a drug war nightmare if they don't watch out. Mandatory minimums will mean that people like them will go to prison. They think they can't make any money in a legal market, but that's a short-sighted attitude. Just look at all those poor, starving growers in Holland," he scoffed. "No, we'll do better than Starbucks with a legal pot market, and I'd love to see that. There's nothing the straights and the war machine hate more than a hippie with a fad wad of cash."

The Vancouver activist told DRCNet he is pondering direct actions to agitate against pot prohibition. "I'm thinking about dealing openly for an hour or two on the weekends, letting the police come, but then having the customers defend the dealer from the police," he said. The customers would hold onto the dealer. The pot sales would become a political protest against the pot-dealing laws. If the police wanted to arrest one dealer, they would have to arrest 30 customers for obstructing justice," he thought out loud. "I want to send a message through our actions that this is not over. I'm thinking of calling it 'Ounces of Prevention,'" he laughed.

It's back to parliament for marijuana reform in Canada. And while activists differ on the proper approach, they were unanimous in saying that instead of being deflated by the decision, it is a signal that they need to fight even harder.

Visit and type in "Malmo-Levine," "Clay," or "Caine" in the "search all judgments" box to read the decision online. Visit for further information and links.

In our Canada update last Tuesday, we inadvertently mixed up the names of the past prime minister, Jean Chretien, and the new one, Paul Martin. Apologies go to our Canadian friends, and thanks to those of you who pointed out the error to us. Please be assured that we did indeed know which was which; this was a typo caused by haste only.

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Issue #317, 12/26/03 Message from the Executive Director: Another Year at DRCNet and in Drug Policy Reform | Canadian Supreme Court Upholds Marijuana Law -- Cannabis Battle Heads Back to Parliament | The New Jersey Weedman is Back! Forchion Announces House Bid Before Arrest at Liberty Bell Pot-Smoking Religious Demo | Newsbrief: The Complete List of President Bush's Drug War Prisoner Pardons | Newsbrief: Return of the Undead, Part I -- "B-1 Bob" Dornan to Challenge Rohrabacher in House Race, Attacks Medical Marijuana | Newsbrief: Return of the Undead, Part II -- Arch-Drug Warrior McCollum Seeks Florida GOP Senate Nod | Newsbrief: Prohibition-Terror Link? | Newsbrief: Cable Giant Censors Medical Marijuana Issue Ads in New Hampshire | Newsbrief: Todd McCormick Released from Federal Prison | Newsbrief: Why Don't People Seek Treatment? | Popular Television News and Drama Programs to Discuss Mandatory Minimum Sentencing in January | BUSTED: New and Improved Video Offer from DRCNet | DRCNet Temporarily Suspending Our Web-Based Write-to-Congress Service Due to Funding Shortfalls -- Your Help Can Bring It Back -- Keep Contacting Congress in the Meantime | Perry Fund Accepting Applications for 2003-2004 and 2004-2005 School Years, Providing Scholarships for Students Losing Aid Because of Drug Convictions | The Reformer's Calendar

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