Cannabis Trial Ends
By Myles Magner

Two years after his arrest for selling cannabis seeds and seedlings,
London, Ont., hemp store owner Chris Clay finally had his day in court
in May.

Clay and employee Jordan Prentice were charged with cannabis possession,
possession for the purposes of trafficking, trafficking and
cultivation. While they could face jail terms if convicted, their
defence did not focus on contesting the facts of the arrest.

Instead, over three weeks of testimony by a battery of expert witnesses,
Clay and his lawyer, Osgoode Hall law professor Alan Young, attempted to
put Canada’s cannabis laws on trial in a constitutional challenge to the
Narcotic Control Act.

As The Journal went to press, a ruling in the case was not expected
until later this summer.

When Clay first opened the Great Canadian Hemporium to sell hemp
products in 1993, he hoped it would help finance his efforts to lobby
for cannabis legalization.

But by 1995, with the federal government moving ahead with Bill C8, the
Controlled Drugs and Substances Act, Clay was losing faith that lobbying
alone would lead to meaningful reform.

He then decided to challenge the law directly by selling young marijuana
plants.

"I was getting increasingly frustrated with lobbying and getting
nowhere," he told The Journal. "At the same time, I knew that in
Germany a successful court case led to cannabis decriminalization… When
I was arrested, I contacted Prof. Young, who had been looking for the
right test case."

The heart of the argument by Young and law partner Paul Burstein is that
there is no scientific or legal basis for including cannabis in the same
criminal law as heroin and cocaine. During the trial they argued that
cannabis use does not cross a "sufficient threshold of harm," that the
state should not prohibit private behavior that causes little harm to
the user or society, and that the law interferes with legitimate medical
and industrial uses of cannabis.

The range of possible judgments sought by the defence include striking
down cannabis possession, trafficking and cultivation offences;
overturning the ban on personal possession; eliminating prison sentences
for possession; or suspending some or all cannabis offences pending a
parliamentary review.

Among those testifying for the defence were:

Harvard psychiatry professor Dr. Lester Grinspoon and Dr. John Morgan,
professor of pharmacology at CUNY Medical School in New York, who
challenged claims regarding health risks associated with cannabis use
and described a range of medical uses for the drug

Criminology professor Neil Boyd, of Simon Fraser University, who
described the history of cannabis prohibition in Canada and its impact
on the more than 600,000 people who have received criminal records for
possession.

Prof. Eric Single, of the University of Toronto’s department of
preventive medicine and biostatistics, who testified that cannabis
accounts for only part of the $1.37 billion price tag for illicit
substance abuse in Canada, compared to $7.5 billion for alchohol and
$9.6 billion for tobacco

U of T professor Dianne Riley and Addiction Research Foundation senior
scientist Patricia Erickson, who disbuted claims that cannabis acts as a
"gateway" to the use of other illicit drugs, challenged the deterrent
effect of the ban on cannabis possession and argued that
decriminalization was unlikely to lead to a significant increase in use, and
Prof. MarieAndree Bertrand and Dr. Heinz Lehmann, former members of the
LeDain commission, whose 1972 report recommended the decriminalization
of cannabis.

Also testifying on Clay’s behalf were two women who use marijuana to
treat pain and muscle spasms associated with multiple sclerosis and
Ehler Danlos syndrome.

Federal Crown prosecutor Kevin Wilson called only one expert witness to
address health effects. Dr. Harold Kalant, emeritus professor of
pharmacology at the University of Toronto, testified that cannabis
intoxication can impair a user’s ability to perform tasks such as
driving, and that heavy users can experience dependence, problems with
pulmonary function, memory and other cognitive functions.

Kalant, who is director emeritus at ARF, also testified that there is
evidence that cannabis – and its derivatives – have some medicinal
value. However, he said, the drug’s regulation as a medicine should be
seen as a separate issue from laws concerning
its recreational use, as is true for heroin and all other drugs.

Wilson argued that in the absence of conclusive evidence, "a reasoned
apprehension of harm" was enough of a legal basis to maintain a criminal
law regarding cannabis. He also argued that cannabis policy should be
made by Parliament, not the courts.

While Clay felt cautiously optimistic following the trial, he admitted
that whatever the verdict, the case was likely to end up before the
Supreme Court. "I just hope it doesn’t turn out like LeDain, and that
25 years from now we’ll be wondering what went wrong."