Pubdate: Thursday, October 14, 1999
Source: eye (Canada)
Copyright: 1999 Eye Communications Ltd.
Address: 471 Adelaide St. W., Toronto, ON, M5V 1T1 Canada
Fax: (416) 504-4348
Author: Nate Hendley
LAWYERS FIGHT TO LEGALIZE IT
Canadian Drug Laws Challenged In Toronto Courtroom
Terry Parker looks tired as he sits on a bench outside Courtroom One at the
Ontario Court of Appeal. The day before, Health Minister Allan Rock
announced 14 new legal exemptions for medical marijuana users but Parker --
the first man in Canada to win the right to inhale cannabis -- isn't
"Rock's announcement sucks," says the blunt-speaking Parker, who says
marijuana is the only medicine that eases his brutal grand mal epileptic
seizures. "Having to bow down to doctors for exemptions for cannabis is
Parker was at the Court of Appeal from Oct. 6 to 8 to see if a three-judge
panel would uphold a 1997 lower-court ruling that allowed him to possess
and cultivate marijuana. His case had been twinned with that of Chris Clay,
a former London, Ont., hemp-store owner charged with possessing and
The combined Parker/Clay case marks a potentially more significant step
towards pot legalization than Rock's timid approval of a handful of new
medical marijuana users. The appeal featured some of the top legal talent
in the drug reform movement facing off against two Justice Department
lawyers before a panel of three judges. The goal of the Parker/Clay
attorneys was to convince the Appeal Court judges that marijuana isn't
dangerous enough to be criminal.
Lead lawyer Alan Young described pot as "relatively harmless" and said the
original 1923 law prohibiting it was based on "hysterical claims."
Roughly "8 to 10 per cent of Canadians are occasional marijuana smokers,"
said Young, while only "about 1 per cent are daily users." 600,000
Canadians meanwhile, have criminal records for using pot while nearly 2,000
go to jail annually on possession charges.
Lawyer Paul Burstein tried to argue that recreational pot use should be
covered by the Charter of Rights, but quickly ran into heavy weather.
"Show me that the right to use intoxicants in your home is an important
right of autonomy," demanded Justice Marc Rosenberg.
Burstein compared the right to get stoned to the right to have sex, and
hastily rattled off a list of cases dealing with recreational intercourse.
The judges seemed skeptical, but were even more so about government lawyer
Morris Pistyner. Pistyner took exception to Young's so-called "botanical
defence" -- the argument that Clay's trafficking charge was bogus because
it possibly involved non-intoxicating hemp plants. The prosecutor insisted
that even non-intoxicating cannabis is a potential menace: "If you tear up
a hemp shirt, cut it into portions, that could be consumed," he warned. Not
that doing so would be against the law -- hemp is legal in Canada, a fact
unmentioned by Pistyner.
Government lawyer Kevin Wilson also ran into criticism. The justices
repeatedly asked if Parker could have gotten pot under past drug laws in
Canada. Wilson reluctantly conceded that he couldn't.
Section 56 of the Controlled Drugs and Substances Act, which came into
effect in 1997, allows Health Canada to exempt people from prosecution for
using banned drugs. Parker, who initially won the right to possess medical
pot in a 1987 court case, only to be charged with cultivation nine years
later, doesn't have a Section 56 exemption.
Young is fairly sure, however, that the Court of Appeal will stay Parker's
charges. If the court refuses to strike down Canada's pot law itself, Young
and others working on the case say they are willing to go to the Supreme
Such bravado has attracted attention from American activists. Sitting
stone-faced throughout the hearing was Dan Abrahamson, director of legal
affairs for the New York City-based Lindesmith Centre. The Lindesmith
Centre -- one of the biggest pro-decrim organizations in America -- thinks
drug law reform in Canada will help activists tone down the War on Drugs
south of the border. Which is why Abrahamson sat in Courtroom One last
week, "monitoring the trial" as he put it, and watching a handful of
lawyers defend two minor marijuana offenders -- and attack the very basis
of Canadian drug laws.