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to no one’s surprise, civil litigatigation is the latest tactical weapon to surface in the drug wars. What is surprising are the litigants.A crack addict in BC is suing his alleged dealers for selling to him, claiming they should have known better. In a claim filed in BC Supreme Court, Jay Martin of Nelson, BC, asserts that the defendants – a pair of low-rent local dealers who were arrested and charged with cocaine trafficking – should have shown more care for their clientele.
Martin claims they knew he was addicted to crack “and could not exercise free will in regard to his cocaine consumption choices.”
While lawyers and bookies alike give Martin’s case the proverbial snowball’s chance, most agree it’s an intriguing thought.
Kieran Bridge, a spokesperson on civil litigation for the BC branch of the Canadian Bar Association, says Martin might as well give it his best shot.
“If people are suing cigarette manufacturers, why not drug pushers?” he asks.
He doesn’t consider Martin’s suit frivolous by any means. “Each case,” he cautions, “must be judged on its own merits.”
While there’s little danger of reaching U.S. litigation levels, he feels this is just the beginning, and Canadians will turn more and more to the courts in the future.
“Times have changed,” he says, “and people are more tuned in to looking at things that may be harmful to them.”
Perhaps the most audacious litigation-in-waiting is an idea currently making the rounds and raising eyebrows among Marijuana party supporters.
It remains to be seen if it has a legal leg to stand on, but it’s every pothead’s pipe dream and quite possibly Paul Martin’s worst nightmare.
“It’s been gelling in my mind for the past 30 years,” says long-time activist Michael Patriguen, Marijuana party point man in Nova Scotia.
“I’ve been thinking that there’s a need to open up the war (against marijuana prohibition) on another front – with a class-action suit against the federal government based on negligence and discrimination.”
Recent court decisions only encourage him. Ontario’s highest court has already declared the marijuana law unconstitutional because it fails to recognize that pot can be used as medicine. The Ontario Court of Appeal has given Parliament until July to amend the law.
“Once I saw the judges agreeing with us,” says Patriguen, “I thought, hey, this might actually work.”
The suit, he explains, would seek financial compensation for the three categories of people most adversely affected by prohibition: anyone in the hemp industry, or their heirs, who can show financial losses due to prohibition dating back to the 1920s all those, or their heirs, who needlessly suffered when marijuana-laced medicine, which was widely prescribed in the 1920s, was suddenly taken away and anyone who has ever been prosecuted for cannabis possession.
About 600,000 Canadians fall into the latter category alone.
Ontario, he suggests, would be the best venue for such a venture.
“The Ontario Court of Appeal has already decided that the marijuana prohibition laws are based on myths and fallacy,” he says. “That puts us halfway there.”
Interim party leader Marc Boris St-Maurice isn’t quite as convinced but readily acknowledges that the idea has a certain ballsy charm.
“I’m no lawyer,” he says, “but I think this idea is sounder than it seems on the surface. It would certainly turn the heat up on the political front considerably. Can we hold government accountable for not acting on the mountains of recommendations that have piled up over the past 25 years? Why not?”
One dissenting voice is BC lawyer and veteran drug crusader John Conroy. A founding member of NORML-Canada in the late 60s, Conroy has spent the past seven years steering a couple of major constitutional challenges to the marijuana laws through the lower courts. Both cases, R. v. Caine and R. v. Malmo-Levine, are scheduled to arrive before the Supreme Court later this year. If successful, either could wipe out Canada’s marijuana laws for good.
“There may be something in it (the civil suit) for the medical marijuana community,” he says, “but I think such a case would be premature at this point. I think the anti-prohibition cause would be better served if they were to put their time, energy and fundraising abilities into some of these critical cases that are approaching the Supreme Court.”
Conroy has handled both the Caine and Malmo-Levine cases without a fee.
Drug cases are everyday occurrences in courtrooms, but should the trend to consumer litigation take off, this much is certain: drug cases before the courts on both sides of the border will definitely get stranger.
