Marijuana and the Short-lived Freedom of the Summer of 2003
June 23, 2008 by Paul McKeever
On June 19, 2008, the National Post’s Letters Editor, Paul Russell, posted to the NP blog a letter he had received from a reader, Ross Reynolds. In the letter, Mr. Reynolds asserted that there is no “constitutionally valid” law (i.e., there is no law) prohibiting the possession of marijuana in Canada.
Mr. Reynolds would be correct (at least in the Canadian province of Ontario) were his letter written in the midst of the summer of 2003. In May of 2003, an Ontario court concluded that although the federal government of Canada in 2000 had been given a year to repair an unconstitutional marijuana prohibition law, it had failed to do so, such that possession of a small amount of marijuana was not prohibited by any law of Canada. Given the decision, the “Prince of Pot”, Marc Emery (who co-founded Freedom Party of Ontario in 1984) commenced a cross-Canada “Summer of Legalization Tour“, during which he smoked pot in or near police stations across Canada to demonstrate and spread knowledge about the absense of marijuana prohibition in Canada.* And, during the summer of 2003, I was the guest of UPN Detroit’s television program “Street Beat” to discuss the non-prohibition of marijuana (and gay marriage) in a short debate segment entitled “Canada: Friend or Foe?”.
McKeever on Street Beat in 2003: “Canada: Friend or Foe?”
Mr. Reynolds’ assertions about marijuana can be found written by numerous people on numerous web sites. However, the constitutional argument put forth by Mr. Reynolds ceased to hold water following the summer of 2003.
Therefore, on the NP blog, I replied as follows:
Hate to spoil the party, but Mr. Reynolds ceased to be correct on October 7, 2003. On that date, in the case of Hitzig v. Canada, the Ontario Court of Appeal remedied the offending provisions of the prohibitive legislation, thereby rendering it constitutional again. Ontario’s summer of possession was a short-lived summer of justice.
Here’s the key passage, followed by a link to the full decision:
“In R. v. Parker, supra, this court declared the prohibition invalid as of July 31, 2001 if by that date the Government had not enacted a constitutionally sound medical exemption. Our decision in this case confirms that it did not do so. Hence the marihuana prohibition in s. 4 has been of no force or effect since July 31, 2001. Since the July 8, 2003 regulation did not address the eligibility deficiency, that alone could not have cured the problem. However, our order has the result of constitutionalizing the medical exemption created by the Government. As a result, the marihuana prohibition in s. 4 is no longer inconsistent with the provisions of the Constitution. Although Parliament may subsequently choose to change it, that prohibition is now no longer invalid, but is of full force and effect.” (para. 170)
Full text of the decision: www.ontariocourts.on.ca/decisions/2003/october/hitzigC39532.htm
Note: I must add that, in lamenting the loss of the freedom gained in 2003, I am not, by implication, glorifying escapism (nor, for that matter, do I think that the government ought to be passing laws about who can be married, or that discriminate on the basis of marital status, per se). There can be no rational argument that it is ethically right or virtuous intentionally to escape the facts of reality. To the extent that someone is using any substance to help their brain to do so, it is a vice, not a virtue, so to use such a substance (which is not to imply that the substance, itself, is somehow intrinsically bad or good). However, it is not a function of a government to force people to act virtuously or to pursue rational values. It is, rather, the function of a government to ensure that no person’s immoral choices violate any other person’s control over their own life, liberty or property. Accordingly, marijuana prohibition is not a function of government. I leave it to you, dear reader, to determine of what sort of organization it is a function.
Footnote: Dismissing electoral politics as a fruitful pursuit, Marc parted from his involvement with Freedom Party of Ontario in 1992, and lived, for a time, in India. He returned to Canada shortly thereafter. Motivated by a belief that freedom is most effectively sought by picking a single issue that gets to the root of issues relating to freedom (e.g., control over what goes into ones own body), Marc chose to focus on marijuana prohibition laws. He established the BC Marijuana Party in the Canadian province of British Columbia, and set up a business selling marijuana seeds online. He openly reported the source of his earnings in his tax returns, and the government of Canada was happy to receive a large chunk of the proceeds of his marijuana seed sales as income taxes. Largely because of his openly political approach, the the US DEA set up offices in Canada and, eventually, persuaded Canadian police to arrest Marc for online seed sales (although he had been charged in Canada a few times, he had never been given anything more than a fine in respect of his seed sales). As a result of his arrest in respect of seed sales to US buyers, the US government is seeking the extradition of Marc to the USA, where he could face life imprisonment. It was reported, earlier this year, that the US government was willing to settle the matter for a penalty that involved five years imprisonment, mostly in Canadian prisons. At last report, the Canadian government was unwilling to agree to those terms, and was willing to approve Marc’s extradition.