SOURCE: Ottawa Citizen, p.A1

CONTACT: letters@thecitizen.southam.ca

Court rules today on bid to quash marijuana law

TThis could be one of the most important dates in drug's history

Mike Blanchfield
The Ottawa Citizen

Today, Mike Foster will trade the colourful confines of his
"counterculture variety store" on Bank Street in Ottawa
for a staid London, Ont., courtroom where he hopes to
witness Canadian legal history.

"He's one of my comrades. He's been put through the
ringer," Mr. Foster says of Chris Clay, the former owner of
a London hemp store.

A judge is to rule today on Mr. Clay's constitutional challenge to strike
down Canada's marijuana law. During his threeweek trial on cultivation
and trafficking charges earlier this spring, Mr. Clay's lawyers called nine
expert witnesses in the most elaborate constitutional challenge to Canada's
74yearold marijuana prohibition.

Mr. Clay's case has earned him a loyal following from people like Mr.
Foster in Canada's marijuana subculture. Mr. Foster drove to London
yesterday to be among the many supporters from across Canada expected
to attend today's court session.

Mr. Clay may be putting up the biggest fight, but he is not the only socalled
hemp store owner to run afoul of the law this year. Store operators who sell
marijuanarelated products are now before the criminal courts in Thunder
Bay and Peterborough, as well as Newfoundland, British Columbia and
Saskatchewan.

Which is why Mr. Foster feels so lucky.

In the five years he's been in business, first on Richmond Road and now on
Bank Street in the Glebe, Mr. Foster says he hasn't had so much as a cross
look from a customer, let alone any trouble from police. He didn't hear a
peep after a lengthy letter to the editor he wrote appeared with his
photograph in the Citizen in April.

In other cities, such behaviour can spark a visit from police. In January
1996, Vancouver police raided the store run by longtime activist Marc
Emery, seizing $90,000 in merchandise after he was featured in a
frontpage Wall Street Journal profile under the headline "Pot Seed
Merchant, Winked at by Police, Prospers in Canada."

Mr. Foster's store specializes in marijuana paraphernalia such as bongs and
water pipes, priced from $9.95 to $119.95, as well as rolling papers and
growing guides.

He also sells a kitschy assortment of pop culture wares including old
magazines, adult fantasy comic books, erotic videos, Tshirts and used
New Country compact discs.

Mr. Foster has donated $225 to Mr. Clay's defence fund so far.

"Just when you think some little old lady is going to give you hell, she buys a
bong," says Mr. Foster.

He can't say for certain, but Mr. Foster thinks his good luck might have
something to do with the views of OttawaCarleton Police Chief Brian
Ford.

In 1994, the chief wrote a lengthy column in the Citizen explaining why he
felt soft drugs such as marijuana should be decriminalized.

Among other things, Chief Ford argued the law creates an unnecessary
strain on tight lawenforcement resources.

Chief Ford said yesterday he stands by that position, adding he's "interested
to see what flows out of" today's ruling.

"I wish people in other cities could benefit from that sort of an outlook,"
says Mr. Foster. "It's unfortunate they can't."

Mr. Foster says he has tried to keep a low profile, blend in with his
surroundings and not make waves.

Not Mr. Clay.

Since opening his London store, Hemp Nation, in July 1993, the diminutive
26yearold had made it his personal quest to get arrested and challenge
Canada's marijuana prohibition.

He openly sold seeds and plants. In May 1995, police raided his store and
charged him.

They returned in December 1996 and raided him again. He believes that
was nothing more than a pressure tactic to convince him to accept a plea
bargain and drop his constitutional challenge.

His decision to fight on has come at considerable cost.

He's had topnotch legal representation for free by enlisting the help of
Osgoode Hall law professor Alan Young, a committed civil libertarian. Mr.
Young, who was joined by Toronto criminal lawyer Paul Burstein, has said
he had waited a decade to fight such a case.

Mr. Clay raised $25,000 through an Internet home page to cover the costs
of bringing expert witnesses to London.

However, Mr. Clay says he had to give up his store, Hemp Nation,
because he went broke. He says he couldn't recoup the financial losses
sparked by the two police raids, which cleaned out from $80,000 to
$100,000 of his inventory.

As a condition of his bail after the December raid, he wasn't allowed to sell
marijuana pipes or seeds. He tried to adapt by selling industrial hemp
products clothing, knapsacks, paper, cosmetics and other
environmentally friendly products.

His sales plummeted by twothirds, he says.

"People read about me and assumed they could come into the shop and buy
a pipe. It seemed to take so many people so long to realize I had to change
directions. It just wasn't worth it. I was working all day and not selling very
much. "

He has since sublet the store to a friend, Pete Young, who was to reopen it
today as The Organic Traveller. Win or lose, Mr. Clay and his entourage
have scheduled a press conference there today after Justice John McCart
releases his ruling.

"I don't think he'll strike down the law completely," Mr. Clay says. "We got
the sense he was ready to do something."

Mr. Clay said he hopes Judge McCart makes some kind of comment on
the need to allow people to smoke marijuana for medicinal purposes, for
conditions such as HIV, AIDS or cancer.

Since November, smoking and growing marijuana for medicinal purposes
has been essentially legal in California and Arizona, after voterdriven
propositions won widespread support in the last U.S. election.

In Canada, there are no such legal provisions, but marijuana buyers' clubs
do operate, although on a much smaller scale. Recently, a club in Toronto
disbanded because it was unable to attract members. The group blamed the
law for forcing it to operate in a clandestine fashion.

However, at the Cannabis Compassion Club in Vancouver, business is
booming. Vancouver police have said they are not concerned about the
club's activities unless it starts selling to minors or recreational users.

Hilary Black, the club's founder, says she has about 100 members,
twothirds of whom are AIDS or HIV patients. Since a Vancouver Sun
story about her club last month, she has received about 30 phone calls a
day from people interested in becoming members, she says.

She says Mr. Clay's challenge has important ramifications for people with
serious illnesses or chronic pain.

But she says she won't be discouraged if the judgment isn't favourable to
her cause. "I'm going to feel like my work is that much more important," she
says. "This issue is so incredibly important to me, for people to have the
right to chose how they wish to heal themselves.

"This is about people who are chronically ill or dying and a plant that grows
out of the earth. Archaic laws can't keep these people away from the
medicine that works for them."

Mr. Clay's lawyer doesn't like to admit it, but he says he doesn't expect to
win his constitutional challenge.

"A victory, meaning invalidation of the law, would be a surprise to pretty
much everyone involved in the case, not because we don't believe in the
merits of our claim," says Mr. Young. "We know the capacity of courts to
actively engage in law reform is quite muted. That's not really a role they like
to take upon themselves."

Regardless of the ruling, Mr. Young says he has a clear plan. If he loses,
he'll appeal, all the way to the Supreme Court of Canada if necessary. And
he plans to push for an October meeting with Health Minister Alan Rock.

He wants Mr. Rock to revisit the work of a Senate committee that
examined Bill C8, which later became the Controlled Drugs and
Substances Act.

The committee considered a recommendation to study the merits of
marijuana criminalization. But when senators brought the idea back to their
respective party caucuses, they got a lukewarm reception and eventually
backed down.

"I believe when presented with the same evidence we presented Judge
McCart, (Mr. Rock) will feel there is some need to do what the Senate
recommended, which is have another review of the cannabis laws," says
Mr. Young.

Describing Mr. Rock as a "responsive and intelligent" minister, Mr. Young
says he is confident he and his supporters will at least receive some lip
service.

Still, Mr. Young is prepared even if Mr. Rock brushes him off.

"We will engage in a media campaign over the next year that will make the
government appear to be callous and indifferent," he says.

"He (Mr. Rock) thought he was just inheriting the problems from Canada's
blood system. But he's going to find out he's inherited a lot more."