Freedom Flyer 32

By Nate Hendley

I was standing on the steps of the London, Ont. provincial courthouse on Aug. 14 when Marc Emery stepped out of the building and began handing out marijuana.

"If you want freedom, you just have to take it," explained Emery, as he and several eager takers sparked joints in front of a crowd of journalists.

With a reefer of California Orange burning in his hand, Emery, publisher of Cannabis Canada magazine and owner of Hemp BC, the best known head shop in the country, launched into a monologue about the pot trial he just witnessed.

"The judge was plainly a coward," said Emery to the scrum. "He didn't defend our rights." Emery offered a choice slander against the judge's family which I won't repeat, then announced.

Emery and about 80 other people, who ranged from hippies and street youth to suit-clad members of the libertarian Freedom Party of Ontario, had come to London to witness Justice John McCart pronounce his verdict against Chris Clay.

In May, 1995, an undercover police officer entered The Great Canadian Hemporium (later known as Hemp Nation), Clay's pot paraphernalia and cannabis information store, and purchased a two-inch female hemp clone. Clay insisted the plants he was selling contained "no THC, or only trace amounts," but police raided his London store and residence anyway, charging him with possession of marijuana, cultivation and trafficking.

Clay then hooked up with Osgoode Hall law professor Alan Young, a long-time drug critic of Canada's drug laws. Along with Toronto lawyer Paul Burstein, Clay and Young launched a legal challenge aimed of marijuana laws.

The constitutional challenge consisted of three main elements: the right to privacy, the right to "bodily integrity" (meaning the right to make decisions that affect your body - i.e. inhaling pot smoke) and what Young called the "arbitrary placement" of marijuana in the Narcotic Control Act with hard drugs like heroin and cocaine.

As precedents for the case, Young cited a 1975 decision by the Alaskan Supreme Court which legalized pot smoking in private dwellings and the 1988 ruling by the Supreme Court of Canada which overturned Canadian abortion laws.

Young also tried to prove pot had legitimate medicinal uses and that laws against recreational smoking violated the Charter of Rights and Freedoms.

The challenge failed and Justice McCart found Clay guilty on three counts of trafficking and possession. Clay was acquitted of cultivation while all charges were dismissed against Hemporium employee Jordan Prentice, who had also been arrested for possession and trafficking.

In his ruling the judge conceded that marijuana was "relatively harmless", didn't lead to hard drugs or psychosis and might have some theraputic benefits. Justice McCart spoke positively of decriminalization efforts in Europe, the United States and Australia whereby possession cases are treated as minor, ticketable offences that don't result in jail time.

While in favor of reform, Justice McCart said only politicians, not judges, had the authority to change drug laws and he urged Parliament to take a "second look" at statutes forbidding marijuana use.

RADICALS VS. GRADUALS

The trial over, splits within the pot movement have become more apparent. On one side, radicals such as Emery view the trial as a farce and pledge civil disobedience.

Robert Metz, leader of the Freedom Party, which gave Clay $1,000 to support his challenge, has said on previous occasions that "marijuana should have the same legal status as asparagus." This position may be seconded by many pot smokers, but is unlikely to win many converts in the wider public.

It seems to me that a combination of well-planned court challenges with realistic goals (Clay and Young were solely concerned with legalizing pot, not all drugs), is an excellent method of getting media attention while pressuring the government to liberalize marijuana laws. Smoking pot on the courthouse steps and talking about repealing all drug laws might make good street theatre but won't impress the audience that matters: politicians in the House of Commons who, as Justice McCart points out, are the only people who can trigger a "green revolution" and legalize pot in this country.

Clay himself says he thinks the verdict was "a very positive decision." He plans to appeal Justice McCart's verdict and that the judge's "comments on marijuana's use in treating glaucoma, nausea, AIDS wasting, etc have opened the doorway to a separate challenge based on medical grounds."