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Marijuana Still Illegal - Supreme Court Rules
G. Shawn Swarts
G. Shawn Swarts
G. Shawn Swarts
Shawn graduated with a law degree from University of Western Ontario. Shawn articled in Ottawa, specializing in criminal defence work. Since his call to the bar in 1991, he continues to practice in this area.

In its last decision, in 2003, the Supreme Court of Canada considered in two separate rulings the issue of our marijuana laws. In a split-decision (6-3)our present marijuana legislation (making it illegal) was upheld and it continues to be a criminal offence to possess even small amounts of marijuana for personal use. The Court also rejected the argument that the recreational use of marijuana should enjoy Charter protection, because of the no harm principal.

What was argued at the Supreme Court is that simple possession of marijuana should not be illegal, because it presents little or no harm to others. The Supreme Court in their split-decision rejected that argument and held that, there is no consensus that tangible harm to others is a necessary
pre-condition to the creation of a criminal offence. In other words, Parliament is entitled to make criminal laws even where the person being prosecuted is doing something that causes no harm to anyone else.

This decision was by no means unanimous and there was a vigorous decent by three Supreme Court Justices, who felt that simple possession of marijuana as
an offence does violate an accused Section 7 Charter principal of fundamental justice by authorizing jail terms for people, who cause little or no harm to others. However, since this was the minority decision, it is the majority decision that continues to be the law in our land.

In making this decision, the Supreme Court has effectively turned the issue of whether marijuana should continue to be illegal or not, back into the hands of Parliament. I suspect Prime Minister Paul Martin would rather have had that issue decided by the Supreme Court, but nonetheless whether marijuana is decriminalized/legalized or continues to be illegal is now clearly up to Parliament. The Supreme Court has definitively ruled the present legislation, making marijuana possession illegal as constitutional and therefore continues to be the law in Canada.

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