Toronto police executed search warrants and made arrests in an operation dubbed Project Gator last week to shut down Cannabis Culture, a chain of marijuana dispensaries associated with cannabis activists Marc and Jodie Emery. The Emerys and three business associates were arrested and released on bail Friday, March 10.

I can tell you, having been one of two defence counsel representing the Emerys at the bail hearing, that both the police and the Crown’s office are visibly frustrated by what they see as marijuana activists’ blatant disregard for our marijuana laws. They showed little interest in the legal, social and political issues that inform the challenge to unpopular laws prohibiting marijuana. Evidence of that are the strict bail conditions imposed on the Emerys, which include limits on their ability to leave the province of Ontario and, more importantly, that they not be involved in the operation of Cannabis Culture stores.

Legally speaking, we have been here before, most memorably during the gay bathhouse raids in Toronto well over 30 years ago. Most of the charges laid in that raid were eventually dropped by the Crown.

We’ve come a long way on gay rights. Legally, the charges laid by police in Project Gator, which include trafficking of marijuana and possession of the proceeds of crime, are just as questionable, given the federal government’s plan to legalize the recreational use of marijuana. (Legislation is expected this spring.)

The other question here is whether recourse to unpopular criminal laws still on the books is justified when marijuana prohibition laws are unpopular and poll after poll shows Canadians support legalization. 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. Police could easily have investigated that “crime,” but they almost never did because no one supported that move, least of all the police themselves, some of whom were gay (just as some 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 is harmless in the vast majority of cases. Criminalization, on the other hand, causes many problems.

As Marie Deschamps, one of the three judges, wrote: “The harm caused by prohibiting marihuana is fundamentally disproportionate to the problems created by its use.” Really, the criminalization of sugar would have a better chance of being justified in court than marijuana.

In Canada v. Bedford, the legal case that struck down the bawdy house provisions in prostitution laws, the Supreme Court said that if the parameters of a debate fundamentally shifted, it could overturn one of its previous rulings.

To wit: the federal government’s own task force on marijuana, which tabled its recommendations last December, favours dispensary-type sales of marijuana.

Pending legalization dramatically shifts the debate from where we were 15 years ago.

Toronto police and our Crown attorneys will have to face up to the reality that the Cannabis Culture arrests place them in a legal swamp.

In our day of limited resources, prosecuting marijuana charges is not the wisest allocation of judicial energies. It is also a disproportionately harsh response to people like Marc and Jodie Emery, who helped generate the public support that will lead to legalization any day now.

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