Toronto Police executed arrests and search warrants in "Project Gator" this past week to shut down Cannabis Culture, a chain of marijuana dispensaries associated with cannabis activists Jodi and Marc Emery. They arrested Jodi and Marc and three others, who were released on bail this past Friday.
I can tell you from having been one of two defence counsel at Marc and Jodi's bail hearing that both the police and the Crown's office are visibly frustrated by what they see as the blatant disregard for our marijuana laws that marijuana activists represent. They have no interest in the legal, social and political issues that inform their challenge to unpopular laws such as marijuana prohibition.
We have been here before though, most memorably in the gay bathhouse raids in Toronto that took place well over 30 years ago. Most of the charges laid in that raid were dropped by the Crown. The main offence charged, keeping a common bawdy house, was struck down three years ago by the Supreme Court in Canada (AG) v. Bedford.
We've come a long way on gay rights, but on the use of marijuana, the fight by people like Jodi and Marc continues. Legally, it is just as questionable as to whether the charges laid by the police will stick. Jodi, Marc, and their BC-based lawyer, Kirk Tousaw, will challenge the continued use of criminal laws in the marijuana context.
The real question here is whether recourse to unpopular criminal laws still on the books is justified in an environment where the government plans to legalize marijuana this coming spring and where poll after poll of Canadians supports this move.
After all, police have discretion as to whether to pursue an investigation and lay charges. Sexual intercourse between consenting males remained a criminal offence up until 1995. Many people don't realize that. Police could have easily investigated that "crime," but they almost never did. No-one supported that move, least of all the police themselves, many of whom were gay (just as many police officers today smoke marijuana).
In 2003 in the case of R. v. Malmo-Levine, three judges of the Supreme Court agreed that the criminalization of marijuana possession was a disproportionate response to a virtually non-existent problem. The expert consensus on marijuana use was that it was harmless in the vast majority of cases. Criminalization, on the other hand, caused many problems.
Deschamps J. was one of those three judges. She wrote: "the harm caused by prohibiting marihuana is fundamentally disproportionate to the problems created by its use". Really, the criminalization of sugar would have more of a chance of being justified in court than marijuana.
In Canada (AG) v. Bedford, the Supreme Court said that if the parameters of a debate fundamentally shifted, it could overturn one of its previous rulings. The federal government's task force favours dispensary-type sales of marijuana. Its pending legalization this spring as well as popular support dramatically shifts the debate from where we were almost 15 years ago. It would not be hard to see a swing of only two judges from where we were then, which could tip the balance in favour of Jodi and Marc's position.
Toronto Police and our Crown attorneys will have to face up to this reality. The Cannabis Culture arrests place them in the legal swamp of yesterday. In our day of limited judicial resources, this is not the wisest allocation of judicial energies. It is also a harsh response to people such as Jodi and Marc, who helped generate the public support that will lead to legalization any day.
See also Wikipedia article on "Operation Soap", 1981 gay bathhouse raids.