THE WRONG WAY TO DECRIMINALIZE MARIJUANA

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 facade 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 well known 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 judge made law.