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Aaron Harnett predicts Crown will lose marijuana appeal

Article Originally Published on April 27, 2011 by Advocate Daily. 

Toronto criminal lawyer Aaron Harnett says he welcomes the federal government’s decision to appeal an Ontario ruling that if left to stand could legalize possession of marijuana in the province.

Harnett, who was counsel to Terry Parker in the landmark 1997 and 2000 rulings striking down the marijuana laws, says he’s “confident the Crown will lose the appeal, but hopefully this will get us on the road to deciding the issue once and for all.” (Read Story)

The appeal comes a week after Superior Court Justice Donald Taliano found marijuana cultivation and usage laws unconstitutional. (Read Story)

The appeal claims Taliano “erred in law” when he said access regulations aren’t valid under the Constitution and hold no force, while deciding the case of Matthew Mernagh, who relies on marijuana to ease pain.

“What I take away from the Mernagh decision was Justice Taliano’s recognition that doctors have been far too conservative in their approach to medical marijuana to be effective gatekeepers. And, my view is that the logical extension of what he has discovered in that case is that we should reconsider criminalizing marijuana possession in general.”

Harnett says he welcomes the appeal “because I believe that continuing to debate the merits of the marijuana prohibition in a forum where reason and facts and science govern the debate will ultimately move us in the right direction, much more so than any Parliamentary action we’ve seen – especially under the Harper government where their intention is to increase the penalties.”

At the same time Harnett doesn’t agree with the basis of the government bringing the appeal. “The judgment is sound. It is careful, balanced, and follows well-recognized constitutional principles. Of course I would much prefer if they simply amended the law to address the problems that Justice Taliano identified, but I don’t see the Harper government jumping up and down to get that done any time soon.”

Harnett notes that he believes “the criminalization of the possession of marijuana is irrational and does much more damage to Canadian society than good. It criminalizes people for behaviour that is not morally wrong, and not a significant danger to their own health or to the health of other Canadians.”

Harnett points to the Parker trial decision in 1997, and the 2000 ruling of the Ontario Court of Appeal as “truly revolutionary. Mainstream Canadians were educated about marijuana in a way that had never happened before. Since that time the conservative elements have chipped away at the gains that we made and now the Mernagh decision essentially reinvigorates the movement to rationalize the marijuana laws.”

Harnett stresses he’s speaking of the marijuana laws in general “because the law prohibiting the use of marijuana has never been a fact-based or science-based law. The very beginning of the prohibition was based on a mis-statement of the nature of the plant, cotton industry protectionism and racist immigration policy agendas. So, I welcome the appeal to the extent that a higher court will have an opportunity once again to look at the marijuana prohibition in light of science and facts.

Says Harnett: “If we can’t have a rational debate about this issue in Parliament, then we will have to have it in the courtroom.”

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