MarijuanaNews.com : Canadian Supreme Court Decision Leaves Cannabis Users With A Minor Victory But A Major Loss of Freedom for All Canadians.

Analysis by Richard Cowan
Posted January 14, 2004

I have delayed writing about the Canadian Supreme Court decision on cannabis
prohibition for a number of reasons, but it may have been for the best. It has
given me more time to see how it was received, but, on the other hand, it has
also made clear that it has quickly been forgotten.

Grinchiness aside, it was unfortunate
that the decision came just before the holidays, because most commentators were
apparently too distracted to really look at the fine print.
For the full text of the decision,
see
http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2003scc074.wpd.html

The headlines naturally focused on
the disappointment in the cannabis communities, but they failed to see that the
Court allowed Parliament to be arbitrary and inconsistent in banning anything
that is not “harmless.”

While I would obviously have
preferred that the Court throw out all of the cannabis laws, philosophically I
am also sympathetic to those who are leery of “judicial activism.” Generally
speaking, laws in a democracy should be made by the people’s elected
representatives, not by judges.

Paradoxically, the court majority
proved that point by demonstrating that we cannot count on them to protect
individual freedom, and that is a problem for all Canadians, not just cannabis
users.

Oddly, the Vancouver Sun and other
anti-prohibitionist papers (most of the best papers in Canada) also called for
the Parliament to pass the phony “decrim” bill that died in the last
Parliament as a “step in the right direction.”
See
“John
Walters’ Testimony To The Canadian Parliament.” The Public Record Or What He
Would Have Said, If He Was Not Afraid of Being Asked Embarrassing Questions. The
Battle for Canada.
and links

The news reports generally emphasized a
quote (in note 87 of the opinion) that echoed the government’s argument:
“… There is no free-standing constitutional right to smoke
“pot” for recreational purposes.”
(emphasis added)

One of the few
columns written on the subject took notice of that point was written for by Stan
Persky, who teaches philosophy at Capilano College in North Vancouver. He
clearly sees the danger to everyone’s freedom.

January
6, 2004
From Vancouver Sun
http://www.canada.com/vancouver/vancouversun/

Marijuana Smokescreen
by Stan Persky

The message most quoted by the media from last month’s Supreme Court of Canada
decision upholding the country’s marijuana laws is that “there
is no free-standing constitutional right to smoke pot’ for recreational
purposes.

Stoned folks, fumbling with their Zig Zag rolling papers and baggies of dope,
can be forgiven, I suppose, for not reading beyond the headlines. Unstoned
people who write newspaper editorials, however, are less easily forgiven for not
going beyond the obvious.

The Vancouver Sun editorial (”It’s up to Parliament to fix Canada’s pot
laws,” Dec. 30, 2003) cited the court’s “no free-standing
constitutional right to smoke pot” remark and didn’t go much further than
exhaling. “The court showed admirable judicial restraint,” said the
editorial with a sigh of relief, and quoted with approval the court’s
recognition that the outcome of the marijuana debate “is not for the courts
to determine.”

For those opposed to so-called “judicial activism,” the court’s
decision was the occasion to light up
a big celebratory, er, cigar. But
for people who read all 91 pages of
the court’s 6-3 ruling, the big
surprise is that the judgment isn’t
so much about pot as it is about a
much deeper question, namely, What is
a crime?

What Justices Charles Gonthier and Ian Binnie, who wrote the majority decision,
have to say about defining crime, the legal notion of “harm,” and our
constitutional right to liberty is extremely worrisome. You have to read all the
way to Justice Louise Arbour’s dissenting opinion to understand why there’s a
good case for thinking that the majority got it wrong.

Arbour’s argument goes something like this: conduct that we define as a crime
has to be an act that intentionally causes direct, measurable harm to other
persons or their property. In such cases, society, through its government, has
the right to punish those acts.

However, the harm caused has to be more than trivial, and it has to be harm to
others not to oneself. That is especially the case if the punishment includes
the possibility of a jail sentence, one of our severest restrictions of liberty.

The big idea about liberty and harm goes back to 19th century philosopher John
Stuart Mill, who wrote in his classic On Liberty, “The sole end for
which mankind are warranted in interfering with the liberty of action of any of
their number, is self-protection. The only purpose for which power can be
rightfully exercised over any member of a civilized community, against his will,
is to prevent harm to others.”

That “very simple principle,” as Mill calls it, is enshrined in the
highest law in the land, Section 7 of the Canadian Constitution’s Charter of
Rights and Freedoms, which protects “life, liberty and security of
person.” Constitutional law, remember, trumps statutory law, such as the
Criminal Code’s prohibition against possession of marijuana.
(Marijuananews note: John Stuart
Mill shared the Founding Fathers’ concern about majoritarianism. He said,
“There is no worse tyranny than that of a majority. The test of democracy is
not that the majority should always get its way but how far minorities are
respected.”
Also see
Peter
McWilliams On Non-Violence:
“Socrates, Jesus, and Martin Luther King
did more for their causes by dying for them than by killing for them.”

Section
7 reads, “. Everyone has the
right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental
justice.”
http://laws.justice.gc.ca/en/charter/
)

The media focus on whether or not Parliament has the power to make pot
laws is misleading. Of course Parliament has the right to make such laws. What
Parliament doesn’t have the right to do is criminalise conduct that doesn’t
cause direct harm to others, or to make laws that violate constitutional rights,
such as our right to liberty.

The much-cited “no free-standing constitutional right to smoke pot” is
also misleading. Of course it doesn’t say in the Constitution, “Every
Canadian has the right to toke up.” But what the Constitution does say, in
effect, is: You have the right to do anything you want, as long as you don’t
cause harm to others.

What makes the court’s recent decision more than a matter of what goes up in
smoke is that the principle of harm and the protections of the Constitution
apply to a wide range of conduct that extends from freedom of speech and belief
to intimate sexual activities. For the majority of us, who don’t smoke
marijuana, it is the dubious thinking of both the law and the court’s
vindication of that thinking that gets our attention.

So, the relevant question is: Does smoking pot cause harm to others?
Even the Supreme Court majority couldn’t find any direct harm to others, even
though it examined the evidence with a fine-tooth comb. The truth of the matter
is that pot, at worse, only harms the lungs of those who puff it.

Instead, the court’s majority relied on a subsidiary, much-harder-to-pin-down
notion of harm to society. Even there, the harms to society that the court
identified were murky at best. Marijuana harms vulnerable groups, such as
pot-smoking adolescents, pregnant women, and schizophrenics. And stoned people
who drive cars are a danger.
See

Canadian
Study Confirms That Marijuana Impairs Driving Far Less Than Alcohol
and
Classic Reefer
Madness At London Times: “Woman who killed father ‘driven mad by
cannabis.’” Quacks and Hacks and Schizophrenia. Is It Paranoid to Distrust
Politicized Science?

But, as Justice Arbour says, “The fact that some vulnerable people may harm
themselves by using marijuana is not a sufficient justification to send other
members of the population to jail for engaging in that activity. In other words,
the state cannot prevent the general population, under threat of imprisonment,
from engaging in conduct that is harmless to them, on the basis that other, more
vulnerable people may harm themselves if they engage in it.” To do so is
like saying that we can’t allow people to watch movies about bank robberies and car chases
because it may lead some people to rob banks and drive recklessly. And anyway,
we already have a law to prevent drunk or stoned people from operating motor
vehicles.

Arbour concluded, “The evidence does not support a conclusion that
marijuana use causes a reasoned risk of harm to others or society that is not
insignificant or trivial.” In the end, she decided that the existing
marijuana law “violates the right of [individuals] to liberty in a manner
that is not in accordance with the harm principle, a principle of fundamental
justice, contrary to Section 7 of the Charter.”

The dissenting justices, I think, got it right. The rest of the court let the
smoke get in their eyes.
-end-

The 9th
Amendment in the US Bill of Rights is of philosophical (but not legal)
significance in this context. It says, “The enumeration in the Constitution,
of certain rights, shall not be construed to deny or disparage others retained
by the people.”

As Persky notes,
neither the authors of the Canadian Charter of Rights nor the US Constitution
could enumerate every conceivable use of human freedom in these documents. Thus,
the point of the 9th Amendment is that rights do not come from these
documents, but rather existed when the documents are written and are “retained
by the people.” Unfortunately, even the excellent dissenting opinions (printed
below) are somewhat deficient inasmuch as the Charter itself lacks the 9th
Amendment’s recognition of pre-existing rights.

Section 1 says, “The Canadian
Charter of Rights and Freedoms guarantees the rights and freedoms set out
in it subject only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society.”

I have written that I think that the cannabis laws fail that test.
See

Canadian
Supreme Court Punts On Cannabis Cases Until Spring. The Games Governments Play
Prove The Need for International Debate on Cannabis Prohibition. Special to
MarijuanaNews

However, the Charter lists the “Fundamental
Freedoms” in Section 2:
“Everyone has the following fundamental freedoms:

a)
freedom of conscience and religion;
b) freedom of thought, belief, opinion and
expression, including freedom of the press and other media of communication;

c) freedom of
peaceful assembly; and

d) freedom of
association.”

There is a “freedom of
conscience” – but no freedom of “consciousness,” hence there is “no
free-standing constitutional right to smoke ‘pot’ for recreational purposes.”

(On the other hand, it would appear that the way is still open for a challenge
on religious grounds, but it would take years to work its way through the
courts. Also, note that this ruling had nothing to do with medical use.)

Nonetheless, while we did not get
what we wanted, we did not come out of this process with nothing at all.
Politically, we won a few valuable “consolation prizes.”

First, the three dissenting judges
were all Francophone, and in the Canadian context that could be very useful in
appealing to Quebecois members of Parliament.

Second, the majority seemed to be
saying that jailing users, which sometimes still happens, is unacceptable,
absent any “aggravating circumstances.”

“If
imprisonment is not a fit sentence in a particular case it will not be imposed,
and if imposed, it will be reversed on appeal.”

That
statement will certainly not go down in history as a great defense of human
rights, but in the context of the Canadian courts, it should bring an end to
jailing typical users, which would be “subject
to a constitutional standard of gross disproportionality.”
(emphasis added)

Third, the
majority opinion did nothing for the reefer madness crowd. However, while that
is good news for cannabis users, it is bad news for Canadians in general.

The majority
ruled:

“Harm need not be shown to the court’s satisfaction to be
‘serious and substantial’ before Parliament can impose a prohibition. Once
it is demonstrated, as it has been here, that the harm is not de minimis, or not
‘insignificant or trivial’, the precise weighing and calculation of the
nature and extent of the harm is Parliament’s job.
See
“Marijuana
Isn’t Harmless.” Okay, But Why Isn’t It Sold Over the Counter? Or Would
You Ban Something That Causes 300,000 ER Visits Every Year, And Kills A Child
Every Month? (Trick Question)

First, there is no sufficient consensus that the harm
principle is vital or fundamental to our societal notion of criminal justice.
While the presence of harm to others may justify legislative action under the
criminal law power, the absence of proven harm does not create
an unqualified s. 7 barrier to legislative action. Nor is there any
consensus that the distinction between harm to others and harm to self is of
controlling importance. Finally, the harm principle is not a manageable standard
against which to measure deprivation of life, liberty or security of the person.

While “the harm
principle” is not a principle of fundamental justice, the state
nevertheless has an interest in the avoidance of harm to those subject to its
laws which may justify legislative action. Harm need not
be shown to the court’s satisfaction to be “serious and substantial”
before Parliament can impose a prohibition. Once it is demonstrated, as it has
been here, that the harm is not de minimis, or not “insignificant
or trivial”, the precise weighing and calculation of the nature and extent
of the harm is Parliament’s job…”

The problem for
society as a whole is that if one can justify arresting people for using
cannabis, one can justify arresting people for almost anything, and it need not
be consistent.

And Parliamentary hypocrisy is not unconstitutional:

Moreover, Parliament’s
decision to move in one area of public health and safety without at the same
time moving in other areas (e.g. alcohol or tobacco) is not, on that account
alone, arbitrary or irrational…

Here are the
dissenting opinions by

The
Honourable Madam Justice Louise Arbour

The
Honourable Mr. Justice Louis LeBel

The
Honourable Madam Justice Marie Deschamps

Per Arbour J.
(dissenting in part on M’s appeal; dissenting on C’s appeal): The impugned
provisions fall under the criminal law head of power. As long as the
legislation is directed at a legitimate public health evil and contains a
prohibition accompanied by a penal sanction, and provided that it is not
otherwise a “colourable” intrusion upon provincial jurisdiction,
Parliament has, under s. 91(27) of the Constitution Act, 1867, discretion
to determine the extent of the harm it considers sufficient for legislative
action. However, where Parliament relies on the protection of health as its
legitimate public purpose, it has to demonstrate the injurious or undesirable
effect from which it seeks to safeguard the public. While there is no
constitutional threshold level of harm required before Parliament may use its
broad criminal law power, conduct with little or no threat of harm is unlikely
to qualify as a public health evil.

A law that has the potential to
imprison a person whose conduct causes little or no reasoned risk of harm to
others offends the principles of fundamental justice. Such a law violates a
person’s right to liberty under s. 7 of the Charter. Be it as a criminal
sanction or as a sanction to any other prohibition, imprisonment must, as a
constitutional minimum standard, be reserved for those whose conduct causes a
reasoned risk of harm to others. In victimizing conduct, the attribution of
fault is relatively straightforward because of the close links between the
actor’s culpable conduct and the resulting harm to the victim. Harm caused to
collective interests, as opposed to harm caused to identifiable individuals,
is not easy to quantify and even less easy to impute to a distinguishable
activity or actor. In order to determine whether specific conduct, which
perhaps only causes direct harm to the actor, or which seems rather benign,
causes more than little or no risk of harm to others, courts must assess the
interest of society in prohibiting and sanctioning the conduct. “Societal
interests” may indeed form part of the s. 7 analysis where the
operative principle of fundamental justice necessarily involves issues like
the protection of society. Societal interests in prohibiting conduct are
evaluated by balancing the harmful effects on society should the conduct in
question not be prohibited by law against the effects of prohibiting the
conduct. The harm or risk of harm to society caused by the prohibited conduct
must outweigh any harm that may result from enforcement.

The harm associated with
marihuana use does not justify the state’s decision to use imprisonment as a
sanction against the prohibition of its possession. Apart from the risks of
impairment while driving, flying or operating complex machinery and the impact
of marihuana use on the health care and welfare systems, the harms associated
with marihuana use are exclusively health risks for the individual user,
ranging from almost non-existent for low/occasional/moderate users of
marihuana to relatively significant for chronic users. Harm to self does not
satisfy the constitutional requirement that whenever the state resorts to
imprisonment, there must be a minimum harm to others as an essential part of
the offence.

The majority argue that the
potential for imprisonment of members of vulnerable groups is not serious,
since it is only in the “presence of aggravating circumstances” that
imprisonment for possession will be a fit sentence. This does not strengthen
their position; it highlights the difficulty. By their reasoning, it is those
who are not members of vulnerable groups and who therefore pose no more than
negligible harm to themselves or others who face the threat of imprisonment
due to “aggravating circumstances”. The position that the fitness of
sentences for possession should be considered under s. 12, and not under
s. 7, runs counter to the notion that ss. 8 to 14 of the Charter are
specific illustrations of the principles of fundamental justice. Where a
principle of fundamental justice is invoked which is not specifically set out
in ss. 8 to 12, the analysis is appropriately conducted pursuant to s. 7.

Sending vulnerable people to
jail to protect them from self-inflicted harm does not respect the harm
principle as a principle of fundamental justice. Similarly, the fact that some
vulnerable people may harm themselves by using marihuana is not a sufficient
justification to send other members of the population to jail for engaging in
that activity. The state cannot prevent the general population, under threat
of imprisonment, from engaging in conduct that is harmless to them, on the
basis that other, more vulnerable persons may harm themselves if they engage
in it, particularly if one accepts that imprisonment would be inappropriate
for the targeted vulnerable groups.

The two spheres of risks to
others identified by the trial judges are not sufficient to justify recourse
to the most severe penalty imposed by law, a sentence generally viewed as a
last resort. First, while the risk that persons experiencing the acute effects
of the drug may be less adept at driving, flying and engaging in other
activities involving complex machinery is indeed a valid concern, the act of
driving while under the influence of alcohol or drugs is a separate activity
from mere possession and use. Dangerous driving is already dealt with in the
Criminal Code, and rightly so, because it is this act which risks victimizing
identifiable others as well as society as a whole. The second negative effect
on society as a whole that was identified, i.e., general harm to the health
care and welfare systems, is just too remote and minor to justify the threat
of imprisonment for simple possession of marihuana. Canadians do not expect to
face the prospect of imprisonment whenever they embark on some adventure which
involves a possibility of injury to themselves. There is no reason to single
out those who may jeopardize their health by smoking marihuana. If there
remained any doubt as to whether the harms associated with marihuana use
justify the state in using imprisonment as a sanction against its possession,
this doubt disappears when the harms caused by the prohibition are put in the
balance. The record shows, and the trial judges found, that the prohibition of
simple possession of marihuana attempts to prevent a low quantum of harm to
society at a very high cost. A negligible burden on the health care and
welfare systems, coupled with the many significant negative effects of the
prohibition, do not amount to more than little or no reasoned risk of harm to
society.

As found by the majority, the
prohibition of possession for the purpose of trafficking under s. 4(2) of
the Narcotic Control Act does not discriminate against M in violation of s. 15
of the Charter since the decision to possess and traffic in marihuana is not
an immutable personal characteristic, and treating persons who choose to do so
in a differential manner in no way infringes human dignity or reinforces
prejudicial stereotypes or historical disadvantage. On the record, M’s
constitutional challenge to the prohibition of possession for the purpose of
trafficking based on s. 7 fails.

The respondent Crown has not
made any submissions regarding s. 1 of the Charter, and none of the
courts below considered the issue. The burden is on the Crown to establish
that the infringement was justified under s. 1. It has not met this
burden.

Per LeBel J. (dissenting in part on M’s appeal; dissenting on C’s
appeal): There was agreement with the majority that the harm principle should
not be raised to the level of a principle of fundamental justice within the
meaning of s. 7 of the Charter. However, fundamental rights are at stake
and were breached and this Court must intervene as part of its constitutional
duty to uphold the fundamental principles of our constitutional order. On the
available evidence, the law, as it stands, is an arbitrary response to social
problems. The Crown has failed to properly delineate the societal concerns and
individual rights at stake, more particularly the liberty interest involved in
this appeal. A breach of fundamental rights is made out if and when the
response to a societal problem may overreach in such a way as to taint the
particular legislative response with arbitrariness. Such a legislative
overreach happened here. While it cannot be denied that marihuana can cause
problems of varying nature and severity to some people or to groups of them,
the harm its consumption may cause seems rather mild on the evidence
available. On the other hand, the harm and the problems connected with the
form of criminalization chosen by Parliament seem plain and important. Few
people appear to be jailed for simple possession but the law remains on the
books. The reluctance to enforce it to the extent of actually jailing people
for the offence of simple possession seems consistent with the perception that
the law as it stands amounts to some sort of legislative overreach to the
apprehended problems associated with marihuana consumption. Moreover, besides
the availability of jail as a punishment, the enforcement of the law has
tarred hundreds of thousands of Canadians with the stigma of a criminal
record. The fundamental liberty interest has thus been infringed by the
adoption and implementation of a legislative response which is
disproportionate to the societal problems at issue and therefore arbitrary, in
breach of s. 7 of the Charter.

Per Deschamps J. (dissenting in part on M’s appeal; dissenting on C’s
appeal): Whether pursuant to its jurisdiction over peace, order and good
government or under its criminal law power, the prohibition of the possession
of drugs lies within Parliament’s jurisdiction

The “harm principle”
cannot validly be characterized as a principle of fundamental justice within
the meaning of s. 7 of the Charter. The criminal law finds its
justification in the protection of society, both as a whole and in its
individual components. While there can be no doubt that the state is justified
in using its criminal law tools to prevent harm to others, the “harm
principle” is too narrow to encompass all the elements that may place
limits on the state’s exercise of the criminal law.

The inclusion of cannabis in
the schedule to the Narcotic Control Act infringes the accused’s right to
liberty without regard for the principles of fundamental justice. For the
state to be able to justify limiting an individual’s liberty, the legislation
upon which it bases its actions must not be arbitrary. In this case, the
legislation is arbitrary. First, it seems doubtful that it is appropriate to
classify marihuana consumption as conduct giving rise to a legitimate use of
the criminal law in light of the Charter, since, apart from the risks related
to the operation of vehicles and the impact on public health care and social
assistance systems, the moderate use of marihuana is on the whole harmless.
Second, in view of the availability of more tailored methods, the choice of
the criminal law for controlling conduct that causes little harm to moderate
users or to control high-risk groups for whom the effectiveness of deterrence
or correction is highly dubious is out of keeping with Canadian society’s
standards of justice. Third, the harm caused by prohibiting marihuana is
fundamentally disproportionate to the problems that the state seeks to
suppress. This harm far outweighs the benefits that the prohibition can bring.