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: http://www.marijuananews.com/news.php3?sid=720

The news reports generally emphasized a quote (in note 87 of the opinion) that echoed the governments argument: There is no free-standing constitutional right to smoke "pot" for recreational purposes. 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 (see next article.) He clearly sees the danger to everyone's freedom.

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. (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."
http://www.marijuananews.com/peter_mcwilliams_on_nonviolence.htm

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.

SUPREME COURT UPHOLDS MARIJUANA LAW

OTTAWA - The Supreme Court of Canada has ruled that possession of marijuana will remain a criminal offence until the government decides to change the law.

The highest court has rejected the appeal of three B.C. men who argued it is unconstitutional to use the law to punish a harmless activity.

The court ruled 6-3 that making marijuana possession a criminal offence does not violate Charter of Rights guarantees of liberty and security of person.

Lawyers for the three B.C. marijuana users - David Malmo-Levine, Chris Clay and Victor Caine - had argued that the government has no right to tell people what they can put in their bodies.

Malmo-Levine is a Vancouver marijuana activist has fought for 10 years to legalize marijuana.

He arrived at the court in May, admitting to reporters that he had taken a few tokes of the drug before making his argument to the court.

However, the top court rejected his argument and agreed with lawyers for the federal government who maintained that the law should be upheld and that Parliament should set drug policy for the country.

They challenged the assertion that the effects of marijuana are benign - with a report that connects use to a number of problems including driving accidents, psychiatric disorders and drug addiction.

Prime Minister Paul Martin said last week that the government will reintroduce a marijuana bill that died in November when Parliament was prorogued. The bill would decriminalize the activity, which means people caught with small amounts would face fines rather than prison.

A Victoria medical marijuana advocate says the Supreme Court made the wrong decision, and says Tuesday's ruling won't make society any safer.

It's a great early Christmas present for the black market and for the criminal gangs involved in cannabis distribution because this guarantees their lock on profits for the holidays, " says Philippe Lucas of the Vancouver Island Compassion Society.

Lucas says possession of small amounts of pot is bound to become a major issue in the next federal election.

POT BAN IS CONSTITUTIONAL, SUPREME COURT RULES

The health risks of marijuana are "neither insignificant nor trivial," the Supreme Court of Canada said Tuesday, upholding laws against pot possession.

A 6-3 majority said marijuana is capable of altering a user's behaviour to a point where it "creates a potential harm to others when the user engages in driving, flying and other activities involving complex machinery."

Chronic users may also bring serious health problems upon themselves, Mr. Justice Ian Binnie and Mr. Justice Charles Gonthier wrote for the majority.

"Vulnerable groups are at particular risk, including adolescents with a history of poor school performance, pregnant women and persons with pre-existing conditions such as cardiovascular diseases, respiratory diseases, schizophrenia or other drug dependencies," they specified.

The majority said there is nothing unconstitutional about the government choosing to criminalize marijuana based on public health concerns even as it turns a blind eye to the greater dangers associated with alcohol or tobacco use.

However, the dissenting judges - Madam Justice Louise Arbour, Mr. Justice Louis LeBel and Madam Justice Marie Deschamps - did not accept government arguments based on health concerns. They said the government failed to prove that the risks of marijuana use are serious and warrant the use of criminal sanctions.

"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," Judge Arbour said.

The appeals - the first Charter test that the marijuana laws have faced at the Supreme Court - involved three men convicted of marijuana offences. In a joint attack, they asked the court to declare the law unconstitutional because the drug is harmless.

An estimated 100,000 Canadians use the drug daily.

The status of the law remains only slightly less confusing in the wake of the ruling. Against a backdrop of court challenges involving medicinal and recreational pot use, the federal government has moved gingerly to reduce or drop penalties.

Alan Young, a lawyer who argued for the appellants, said the ruling was disappointing but not entirely surprising.

"I didn't expect the Supreme Court to change the legal landscape overnight," he said in an interview. However, Professor Young, of York University's Osgoode Hall law school, said it is unfortunate that the ruling takes pressure off the government to move quickly to decriminalize marijuana possession.

Last week, Prime Minister Paul Martin intimated he will reintroduce a bill proposed by Jean Chretien that would wipe out criminal penalties for those caught with small amounts of marijuana. The proposed bill would have made possession of less than 15 grams of pot a minor offence punishable by fines of $100 to $400. The bill which would also have maintained or increased stiff penalties for large-scale growers and traffickers died when Parliament was shut down last month to give Mr. Martin a fresh start in January.

Conservative-minded critics of the plan argued that 15 grams was too much to be considered casual use. They said it would be impossible for police to assess how high a driver was, and that biker gangs and other criminals would thrive under the new rules.

In giving a modest endorsement to decriminalization, Mr. Martin said it would have to involve "very, very, very small amounts." He said he supports a parliamentary committee considering the reduction of the original 15-gram proposal.

The Supreme Court majority said Tuesday that the constitutional guarantee to life, liberty and security of the person is an intensely important value which "touches the core of what it means to be an autonomous human being blessed with dignity and independence in matters that can properly be characterized as fundamentally or inherently personal.

"This does not include smoking marijuana for recreation," it said flatly.

The majority was also unimpressed by arguments that the possibility of a jail sentence for marijuana possession amounts to unconstitutional overkill.

Most offenders are granted discharges or conditional sentences, especially where the amount is small and clearly intended for recreational use, the majority said. They said that if a particular judge goes overboard in imposing a stringent sentence, it can be appealed and reversed.

In a separate judgment, the court upheld a federal law prohibiting possession of marijuana for trafficking.

The appellants David Malmo-Levine, Victor Caine and Christopher Clay challenged the government to show serious harm to the health of marijuana users in order to justify a law that deprives offenders of their liberty. They stressed that marijuana is a unique case, since a host of doctors and government-appointed inquiries have concluded that the drug is relatively safe.