Twenty years ago today, Canada’s justice system branded me a criminal. I had launched a constitutional challenge to the country’s cannabis laws after being arrested in 1995 for selling small cannabis plants from my London, Ontario shop. In August 1997, after weeks of expert testimony, Justice John McCart released a groundbreaking judgement that ruled cannabis is relatively harmless compared to alcohol and tobacco; his ruling also confirmed there was “damning evidence that the law is asinine.” However, at the same time, he concluded that “Parliament reserves the right to be stupid” and convicted me of trafficking.
The case continued for years, as we appealed first to the Ontario Court of Appeal and then to the Supreme Court of Canada. The CBC Newsworld documentary and the Ottawa Citizen editorial below sum up the first round of what became an eight-year legal battle.
August 17, 2017
Drug ban legal but silly
Ottawa Citizen, August 17, 1997
We admire Chris Clay. The antimarijuana law crusader has risked much and sacrificed more in his efforts to get Canada’s absurd prohibition of marijuana repealed. His cause is just, his integrity irreproachable.
We also admire Justice John McCart for convicting Chris Clay on possession and trafficking charges.
For Mr. Clay’s defence, a Charter of Rights challenge to the marijuana laws, was unsound. In essence, he argued that the Charter’s guarantee that someone has the right to liberty and “not to be deprived thereof except in accordance with the principles of fundamental justice” is violated by a law that prohibits something relatively harmless.
This was, politely, a stretch. The glory of the British parliamentary system is the clear separation of the parliamentary and judicial roles, a separation courts have generally been careful to maintain by not looking at the merits of the laws they apply. We have not been shy about criticizing them when they breach that separation, because it is the task of the people’s elected parliamentary representatives to make laws, and Parliament reserves the right to be stupid.
Stupid is the only description of Parliament’s drug laws. The prohibition of marijuana in particular is a social policy utterly devoid of rational support. Marijuana was criminalized in 1923 without any discussion or debate in Parliament. It simply appeared on the list of prohibited drugs, obviously with little pressing criminal need, since there wasn’t a single marijuana conviction in the next 14 years.
Even more interesting than these facts is their source: the written opinion of the court. Justice McCart quite correctly ruled that Parliament alone decides social policy and so he convicted Mr. Clay. But while commendably resisting the impulse to strike down this foolish law, he laid out its foolishness in tough, clear language that makes his decision required reading for every member of Parliament.
Justice McCart examined numerous other countries and states where alternatives to the proven silliness of criminalization have been tried. He noted that the Netherlands’ policy of non-enforcement of its marijuana laws effectively legalization has not led to rampant drug use and that the Netherlands has a rate of teenage marijuana use only one fifth that of the United States. From Spain to Germany and Italy, European countries have either dropped mere marijuana possession out of criminal law or cut punishments back to minimal fines on a par with jaywalking. Eleven American and two Australian states have largely followed the European lead.
Justice McCart also noted that he heard evidence from a “a most impressive number of experts” who formed a “general consensus about the effects of the consumption of marijuana.” He concluded that marijuana is “relatively harmless compared to tobacco and alcohol” and that it “does not lead to ‘hard drug’ use.” These are now evidentiary findings of an Ontario court of law.
The outcome of this case could hardly be better. Justice McCart respected the boundary between the judiciary and Parliament and rightly convicted Mr. Clay. But he did not use legal propriety as an excuse to ignore the substance of the issue. He saw damning evidence that the law is asinine, and he said so.
Thoughtful officials like Justice McCart and committed citizens like Chris Clay, give us reason to hope Parliament may finally come to realize the folly of criminalizing marijuana and, moreover, to act on that realization.