Freedom Flyer October1997 Cover

Freedom Flyer 32

the official newsletter of the
Freedom Party of Ontario

October 1997




"TRIVIAL" FREEDOMS NOT PROTECTED BY CHARTER, JUDGE RULES

London hemp store proprietor Chris Clay and his lawyer Alan Young talk to reporters Tuesday during a break in the trial.
Photo source: SUSAN BRADNAM/The London Free Press
Chris Clay and lawyer Alan Young

LONDON (August 14, 1997) - In a decision following twelve full days of testimony, Justice John McCart of the Ontario Court (General Division, Southwest Region) convicted Hemp Nation owner Chris Clay of possession of marijuana, possession for the purpose of trafficking, and trafficking of marijuana. A charge of cultivation was dismissed.

Although Clay did not succeed in his legal bid to have the charges dropped, McCart's decision nevertheless provided ample ammunition for Clay to pursue his challenge in a higher court.

THE EVIDENCE

"From an analysis of evidence," wrote McCart, "I am able to reach the following conclusions: (1) Consumption of marijuana is relatively harmless compared to the so-called hard drugs and including tobacco and alcohol; (2) There exists no hard evidence demonstrating any irreversible organic or mental damage from the consumption of marijuana; (3) That cannabis does cause alteration of mental functions and as such, it would not be prudent to drive a car while intoxicated; (4) There is no hard evidence that cannabis consumption induces psychoses; (5) Cannabis is not an addictive substance; (6) Marijuana is not criminogenic in that there is no evidence of a causal relationship between cannabis use and criminality; (7) That the consumption of marijuana probably does not lead to 'hard drug' use for the vast majority of marijuana consumers, although there appears to be a statistical relationship between the use of marijuana and a variety of other psychoactive drugs; (8) Marijuana does not make people more aggressive or violent; (9) There have been no recorded deaths from the consumption of marijuana; (10) There is no evidence that marijuana causes amotivational syndrome; (11) less that 1% of marijuana consumers are daily users; (12) Consumption in so-called 'de-criminalized states' does not increase out of proportion to states where there is not de-criminalization; (13) Health related costs of cannabis use are negligible when compared to the costs attributable to tobacco and alcohol consumption."

'VALUE' JUDGEMENT REQUIRED

Despite McCart's acceptance of these facts and statistics, he cited a 1994 South Australian Royal Commission report which concluded that "The summary of the scientific and medical evidence does not entirely resolve the policy questions, since further value judgements have to be made." (Report of the National Task Force on Cannabis, Canberra, Australia, Sept 30, 1994)

"I can only conclude... ...that the jury is still out respecting the actual and potential harm from the consumption of marijuana," wrote McCart, and ruled that the laws against the "consumption of marijuana" were a justifiable violation of fundamental freedoms under "the Harm Principle". (This could throw the door wide open for the prohibition of alcohol and tobacco, given McCart's acceptance of the evidence that both are far more harmful and addictive than marijuana.)

McCart readily conceded that Clay, by facing criminal charges for the possession of marijuana, had his "liberty and security in grave peril." However, he wrote: "The question is whether the provisions of the Narcotic Control Act under which (Clay) is charged violate the principles of fundamental justice.

'FUNDAMENTAL' = CONSENSUS

"A mere common law rule does not suffice to constitute a principle of fundamental justice," argued McCart, in his citing of previous court decisions. "...Reference must be made to principles which are 'fundamental' in the sense that they have general acceptance among reasonable people."

With this definition, McCart has made it alarmingly clear that in the court's method of reasoning, "fundamental" means "consensus". Thus, under this definition, a "fundamental principle" is a policy with which a majority agrees, whether or not it is objectively valid.

STATE INTEREST PRIMARY

McCart further cited a legal precedent which placed the state's interest above that of any individual citizen's: "Where the deprivation of the right in question does little or nothing to enhance the state's interest (whatever it may be), it seems to me that a breach of fundamental justice will be made out as the individual's rights will have been deprived for no valid purpose."

Thus, according to McCart's interpretation, if a law "enhances" the state's interest, regardless of what that interest is, the government has a right to violate its citizen's rights. In his decision, he defined the state's interest as "the protection of society".

Because "marijuana is primarily used for occasional recreation," wrote McCart, "one might legitimately ask whether this form of recreation qualifies as of 'fundamental personal importance' such as to attract Charter attention... ...The Charter does not protect against insignificant or trivial limitations of rights."

In his appeal to consensus as the "fundamental" principle on which the law is based, McCart did not stop at Canada's borders; he cited laws, attitudes, and opinions from around the world: "Nowhere in the western world has trafficking, possession for the purpose of trafficking and cultivation been decriminalized, nor has there been any recommendation (save for one) that this should take place."

His conclusion: "...with respect to marijuana, the prohibition against the possession, possession for the purpose of trafficking, trafficking and cultivation do not infringe s.7 of the Constitution."

On September 5, McCart sentenced Clay to three years probation plus a $750 fine. More ominously, the court ruled that Clay's confiscated inventory, valued at approximately $80,000, would be kept by police.

Clay intends to take his charter challenge to a higher court. Stay tuned for further developments.




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