Thirty years after the LeDain Commission first recommended decriminalizing marijuana use, and just months following a Senate Special Committee report advocating outright legalization, Canada’s marijuana prohibition may finally be coming to an end. The criminal penalties for personal use and possession of marijuana are the subject of argument in the Supreme Court of Canada on May 6, 2003. Three appellants and two intervenors, including the BC Civil Liberties Association, argue that the Charter of Rights and Freedoms is violated by imposing criminal sanctions on individuals who choose to use marijuana.
“Every major study of marijuana use confirms that it is a relatively harmless activity. Marijuana is not addictive, does not cause violence or crime, does not decrease motivation, is not a gateway to hard drug use and has never caused an overdose. Despite these facts, millions of Canadians are branded as criminals and threatened with imprisonment for their decision to smoke marijuana. In a free society, we must respect the choices of our citizens when, as in the case of marijuana use, those choices do not cause harm to other people.” said Kirk Tousaw, Policy Director of the Association. He continued, “The Charter guarantees us all the right to liberty. Criminalizing marijuana use drastically infringes that liberty, for no good reason.”
The Crown’s position, gleaned from its Supreme Court pleadings, is that the government need not prove harm before criminalizing conduct. It also alleges that marijuana use does cause harm to society, principally in the form of health impact on chronic, long-term users. The Crown also claims that marijuana use impairs one’s ability to drive, and that driving while impaired causes harm to society.
“Of course nobody should use drugs, any drugs, and drive,” said Tousaw, “but there are already laws against impaired driving. That is no justification for turning countless responsible users into criminals. The government may as well prohibit cough syrup, because some people will become impaired and drive. It makes no sense.” Tousaw also dismissed the health rationale, “We don’t make people criminals for being unhealthy. A very small minority of users will have health problems, but they harm only themselves, not anyone else. In a free country, we must allow people to make unhealthy choices. What is next, criminal prohibition of fatty foods?”
The Supreme Court argument comes on the heels of the Prime Minister’s promise to introduce marijuana decriminalization legislation within three weeks. Decriminalization would retain the criminal prohibition, but make violation the subject of a fine, with no possibility of imprisonment. “Decriminalization is a step in the right direction,” says Tousaw, “but we are concerned that police may be told to step up enforcement, to hand out fines like speeding tickets, which would actually be moving backward. There are simply much more important things for police to spend their time and resources on, such as investigating and preventing real crimes. Legalization, and regulation, is a much better option.”
“What is really comes down to,” argues Tousaw, “is whether we trust Canadians to make decisions about what to put into their own bodies or whether we want the government making that decision for us. Turning harmless people into criminals, without any legitimate reason, is simply wrong. Canadians are entitled to freedom and we are confident that the Supreme Court will agree.”
The BC Civil Liberties Association is represented in this challenge by Vancouver attorney Joe Arvay, of Arvay Finlay. The Association’s Factum is available here>>