Special to Drug War Chronicle: Briefing on Marijuana Cases Before the Supreme Court of Canada (12/22/03)

Phillip S. Smith, [email protected]

BREAKING: Judgements Deposited on Cases -- Court Didn't Overturn Possession Laws -- Three Judges Dissented

full text of decision online

At 9:45am Eastern Time on Tuesday, December 23, the Canadian Supreme Court will release its decision in a trio of linked cases that pose a comprehensive challenge to the country's marijuana laws. All three challenge Canada's pot laws as infringing on their rights under Canada's Charter of Rights and Freedoms. David Malmo-Levine, Chris Clay, and Victor Caine argued that marijuana use or possession does not rise to the level of social or personal harm to be a crime under the Charter. If the Supreme Court rules in their favor, it could strike down the laws, and would most probably give parliament a year to enact new legislation that would not involve jail sentences for the possession, and possibly cultivation and small sales.

Legal Background:

Similar to the US Bill of Rights, the Canadian Charter of Rights guarantees "the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Section 7, which is the basis for the constitutional claim against the marijuana laws, reads: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

What is at stake is whether the "principles of fundamental justice," as developed in Canadian constitutional law, allow a person to be deprived of the rights mentioned above for a marijuana offense. Determining what is fundamentally just is a balancing act, wrote one Canadian jurist, "a determination of the balance to be struck between individual rights and the interests of society." That is where the question of marijuana's harmfulness comes into play.

Caine, Clay and Malmo-Levine argued that in determining the principles of fundamental justice, the court must use the "harm principle" as a standard. Derived from 19th Century British political philosopher John Stuart Mill, an appeal court hearing two of the cases described it as arguing "that the State has no right to interfere with the personal freedom and liberty of an individual unless that individual causes harm to other persons or to society in general. Therefore, the State has no right to imprison individuals for activities that only cause harm to themselves. The appellants argue that possessing or smoking marihuana may in some cases have harmful effects on the smoker, but it does not harm others. Imprisoning a person for possessing marihuana would thereby violate the "harm principle" in the same way as imprisoning somebody for consuming caffeine or fatty foods."

The decision does not come in a legal vacuum. In 2001, Ontario's highest court declared the marijuana possession laws invalid because they did not provide for medical marijuana users. The court gave parliament one year to change the law; instead, Health Canada issued administrative guidelines that many patients complained were impossible to work with. As a result of further legal action, courts in Ontario, Nova Scotia, and Prince Edward Island ruled the marijuana possession law null and void for a few months this summer. But Health Canada has since been more responsive, and Canada now has a working -- if problematic -- medical marijuana program.

Political and Diplomatic Background:

The pending Supreme Court decision comes against a background of political turmoil over Canada's marijuana laws. With acceptance of marijuana use widespread in Canada, a growing movement to legalize or at least decriminalize marijuana possession has made significant inroads in the political sphere. Last year, in issuing a comprehensive review of the subject conducted after months of hearings and reams of testimony the Canadian Senate Select Committee on Illicit Drugs called for the outright legalization of marijuana, while a House of Commons select committee recommended decriminalization.

The government of recently retired Prime Minister Jean Chretien introduced a marijuana decriminalization bill this fall, but it died before being acted on when he adjourned parliament last month. But Chretien's successor, Paul Martin, announced last week that he would reintroduce the bill, although reportedly in a slightly tougher form.

"Decriminalization is the shadow of a first step," said Senator Pierre Claude Nolin, chair of the Senate committee that recommended outright legalization. "Public policy must be structured around guiding principles that respect the rights and responsibilities of individuals who seek their own happiness while respecting the rights of others," he told Drug War Chronicle in an interview earlier this year. "This is the pillar of our thinking, and from this it became quite easy to conclude that, for cannabis, legalization under a properly regulated system was the only sound public policy."

Pressure to liberalize Canada's marijuana laws has come from an increasingly vocal and organized cannabis movement, as well as civil liberties, health, and other groups. It is also supported by public opinion. A survey conducted by the Canadian polling firm Leger & Leger this summer found only 14% wanted pot to remain illegal, while 43% supported legalizing it for medical use, and an additional 40% wanted it totally decriminalized or legalized. Another poll, conducted in May by Ipsos & Reid, found that 55% did not think smoking marijuana should be a criminal offense, with support rising to 63% for a system of fines, not criminal charges.

But there is opposition to liberalization of the marijuana laws, not only among conservative politicians, law enforcement, and segments of the health profession, but even within the ruling Liberal Party. Randy White, a Canadian Alliance Member of Parliament from British Columbia who is the opposition shadow spokesman on criminal justice issues, has been reduced to haggling over whether the decrim bill should set a limit at 5 grams, 10, or 15.

Some of the loudest squeals of disapproval have come from south of the border. John Walters, head of the Office of National Drug Control Policy, has repeatedly lashed out at Canada for considering changes in its marijuana laws, as has US Ambassador Paul Celluci. Walters has been warning for months that Canadian decriminalization would cause a boom in US consumption. "It's a multibillion-dollar industry and most of the production is headed south," he said in May. At the time, he praised countries such as Mexico and Colombia, which supported eradication, but "Canada seems to be going in another direction." A few days later, he weighed in again. "We'll respond to the threat," he told a cable news show. "What we have to do is protect Americans and right now, this is out of control."

Cellucci, meanwhile, has raised ominous concerns that decriminalization could tie up the busy US-Canadian border, of key importance to the Canadian economy. He was at it most recently in Edmonton, Alberta, December 10, telling reporters decrim could mean problems. "Our concern is the perception of this is that this is a weakening of the law... that it will be easier to get marijuana in Canada," he said. "Our customs and immigration officers, they're law-enforcement officers. If they think it's easier to get marijuana in Canada, they're going to be on the lookout for it. That's going to put pressure on the border at a time when we've been trying to take pressure off it. We don't want to have a lot of young people having their vehicles inspected when they're crossing the border."

Canadian politicians, however, don't think much of such rhetoric. In an interview published on November 14, Vancouver, British Columbia Mayor Larry Campbell, formerly a narcotics officer with the Mounties then Vancouver's coroner, told Drug War Chronicle, "[John Walters] is probably the most misinformed person in the whole United States." In July 2002, following a visit to Canada by US Rep. Mark Souder, Member of Parliament Libby Davies, responding to Souder's claim that marijuana is as dangerous as cocaine, told the Canadian Press, " My God, what is this man talking about? We can't be subservient to the ridiculous rhetoric coming out of the United States."

In fairness to Canada, it should be pointed out that two-thirds of the US population lives in states where marijuana possession has been decriminalized. In Ohio, for instance, possession of up to a quarter-pound is punishable by only a fine. According to Mayor Campbell, in fact, " [m]ost US states have more liberal policies on marijuana than we do."

The Cases:

Caine: Chris Caine and a companion were sitting in Caine's van in the beachfront parking lot at White Rock, British Columbia, when two passing RCMP officers noticed "a strong odour of recently smoked cannabis (marihuana)," as the court put it in its summary of the facts. Upon questioning, Caine produced a partially smoked joint and was arrested for marijuana possession. The amount of pot involved was a half-gram, and all parties stipulated it was for his own use.

Caine was convicted, and he appealed, arguing that the laws against marijuana possession violated his rights under Section 7 of the Canadian Charter of Rights. The possibility of serving a jail sentence threatened his "right to human dignity and personal autonomy; his the right to privacy; and his the right to physical liberty (freedom from the threat of imprisonment)."

David Malmo-Levine, who described himself to the court as a "marijuana/freedom activist," and who publicly lit up before arguing his case before the justices, helped operate the East Vancouver Harm Reduction Club, a co-op that educated its members about pot and provided marijuana to them at cost. Police raided the operation on December 4, 1996, and seized 316 grams, most of it already rolled. Malmo-Levine was charged with and convicted of possession with the intent to traffic. He appealed, raising issues similar to Caine.

Chris Clay was owner of the Great Canadian Hemporium, where in addition to hemp products, pot pipes, and marijuana leaf logos, he also sold marijuana seedlings. After a police undercover agent bought clones from Clay, he was raided and charged with marijuana possession, trafficking, and cultivation. He, too, appealed, again using similar arguments.

Related Links:

Canada Supreme Court summary of cases

Report of the Canadian Senate Select Committee on Illicit Drugs

Canadian Foundation for Drug Policy

Drug War Chronicle Interview with Senator Nolin

Drug War Chronicle Interview with Mayor Campbell

Video footage of DC "Out from the Shadows" press conference with Senator Nolin, Member of the European Parliament Marco Cappato, and Arnold Trebach

Address by Senator Nolin, McGill University, November 18, 2003

Drug War Chronicle report on the press conference, "Senator Nolin Comes to Washington"

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