Even as the government of Prime Minister Jean Chretien moves toward decriminalizing the possession of cannabis, government lawyers were in court in Ottawa Tuesday defending the current laws. The hearing before the Canadian Supreme Court came in a trio of cases that have the potential of scrapping the country's decades-old marijuana laws.
The hearing was originally set for last December, but the court postponed it given indications the government was about to move on the marijuana laws. Now, however, the court has decided to wait no longer. After Tuesday's hearings, the justices will review the case and issue a ruling sometime in coming months.
It is deciding the cases of three men, two activists and one unlucky marijuana smoker, who are challenging the constitutionality of Canada's marijuana possession laws under provisions of the Canadian Charter of Rights. David Malmo-Levine, who was convicted of running the East Vancouver Harm Reduction Club, a nonprofit that provided medical marijuana to patients; Christopher Clay, who was convicted of selling marijuana seeds and seedlings at his London, Ontario-based Hemp Nation in a deliberate challenge to the law; and Victor Caine, who got caught smoking a joint in his van, all argue that jail sentences and criminal records for what is essentially a victimless crime violate the Charter's guarantees to life, liberty and security.
But although the federal government is moving toward decriminalization, government lawyers aggressively defended the current laws. "Simply put, there is no free-standing right to get stoned," said government lawyer David Frankel in a written brief filed with the court. He continued in the same vein during oral arguments Tuesday. "Whether you like them or not, the marijuana laws are an example of the democratic process," Frankel told the court. "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."
That prompted Justice Ian Binnie to challenge Frankel's defense of the law. "You seem to be saying that short of being cruel and unusual punishment, all of this lies within Parliament's domain," the judge remarked.
"At the end of the day, it is for Parliament to weigh and assess the competing interests," Frankel replied. "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."
Not so fast, responded attorneys for the three men. "We must ask whether the state has any place in the living rooms of the nation," said Andrew Lokan, a lawyer for the Canadian Civil Liberties Association.
A key question for the court is whether the government need demonstrate serious health risks to pot smokers or the general public in order to uphold the law. Debate over the relative risks of marijuana consumed some of the court's time, as lawyers for the two sides argued the dangers of cannabis.
Another key issue is whether the courts or parliament will ultimately decide the cannabis laws. Attorneys for the appellants told the justices they should follow the law, not political trends. "You can't simply say Parliament has the right to be wrong," said Paul Burstein, attorney for one of the trio. The court should draw a "constitutional line in the sand" beyond which parliament cannot intervene, he added.
Observers are taking no bets on how the court will rule, although many Canadian politicians would breathe a sigh of relief if a court ruling took the whole issue of marijuana law out of their hands.