The wrong way to decriminalize marijuana
Source: National Post
Copyright: National Post
Published: April 18, 2011
Last Monday, for at least the third time in a dozen years, an Ontario court struck down provisions of Canada's marijuana laws. While we support the decriminalization of simple possession of marijuana for personal use, we would prefer to see such contentious social changes made by Parliament rather than by the courts. As was the case with same–sex marriage, such seismic shifts in Canada's traditional moral code garner more public support, more quickly, when made by Canadians' elected representatives rather than by appointed judges.
Pot smokers and judges should also drop the façade that their legal challenges and decisions deal only with medical marijuana use by sufferers of cancer, glaucoma, chronic pain and other conditions. It's obvious these court cases, while purportedly decided on the narrow issue of therapeutic toking, are in truth efforts to make marijuana more accessible to everyone.
For more than a dozen years, there has been a game going on between marijuana advocates and Ontario judges on one side, and Health Canada on the other. Advocates sue for easier access, allegedly only for people who need to smoke up to mitigate the nausea that results from chemotherapy and the like. When the courts order such access, Health Canada (not incorrectly) takes the ruling at face value and devises regulations about who may use pot medicinally and under what circumstances. They also specify how and when doctors may prescribe it. However, because such rules don't deal with activists' true goal –across–the–board pot legalization –the advocates are quickly back before the bar pleading for further expansions of the rights of medicinal weed consumers. This approach, however disingenuous, has worked. Just look at Monday's decision.
Ontario Superior Court Justice Donald Taliano granted Matthew Mernagh, a wellknown marijuana advocate who has been charged numerous times for possession or production of marijuana, a permanent stay of charges against him for having and using pot without a doctor–approved licence. Justice Taliano also gave Mr. Mernagh a "personal exemption" from criminal prosecution for the next 90 days so he may grow or buy pot freely while Ottawa revises its medical marijuana rules, as ordered by the judge.
If the court's desire were merely to ease bureaucratic delays for patients needing marijuana, it could have given Mr. Mernagh a federal licence to buy from a government–approved grower. Instead, it effectively upended Health Canada's marijuana protocols altogether, seemingly permitting Mr. Mernagh to grow his own pot without a licence or to buy from unlicensed (i.e. illegal) dealers. It is unlikely the court would have been so aggressive in fashioning a remedy in regard to any other drug.
At the heart of Mr. Mernagh's complaint was his failure to find a doctor prepared to sign his marijuana licence. In the absence of a prescriber, the court permitted him to take his treatment into his own hands. But what if Mr. Mernagh had been desirous of taking strong painkillers to treat his multiple conditions, yet could find no physician to write him a prescription? It's seem unlikely a judge would have created for him a Constitutional right to oxycontin or morphine, and given him permission to buy from a street dealer if no medical profession would supply his need.
So long as marijuana advocates want to legalize their drug using the backdoor excuse of medicinal need, they must consent to have doctors act as gatekeepers to their drug of choice. But that gatekeeping system –put in place a decade ago as a means to balance legitimate medical needs with marijuana's status as a generally illegal drug –has broken down thanks to an unstated alliance between activist judges and straight–up activists.
As noted above, we share their ultimate policy goal: Marijuana should be decriminalized, and possibly even legalized. But this is not the way to do it.
That is why it is preferable to be up front in the marijuana debate, and to settle the matter in the House of Commons rather than in the courts. Canadians are amongst the greatest per–capita consumers of marijuana in the Western world. A quarter or more of our adults have smoked it at least once. So it shouldn't be hard to find broad–based public support for decriminalization –by legislation rather than judgemade law.