Canada’s Supreme Court has proven that our society is a prison, and that we are but prisoners, whose inalienable rights may be suppressed by political whimsy and ridiculous twists of reasoning more suitable to a genie granting wishes than judges appointed to uphold humane standards.
Today the Supreme Court told Canadians that our constitution “touches the core of what it means to be an autonomous human being blessed with dignity and independence [but]this does not include smoking marihuana for recreation.”
The decision came down Tuesday, December 23, in the long awaited combined cases of David Malmo-Levine, Chris Clay and Randy Caine. Much of the three cases rested on what is known as the “harm principle,” which essentially says that the government should not enact prohibitions against conduct unless there is a reasonable threat of significant harm to others or society. This protection is important to Canadians, because it reflects the sensibility that government shouldn’t be able to create criminal laws against – for example – heli-skiing, hockey, coffee, alcohol, cigarette-smoking, gay sex, heterosexual sex, or smiling.
It took nine judges to make a decision at the level of Canada’s Supreme Court, and six of the nine voted against the harm principle, claimed it wasn’t a principle of fundamental justice, and stated that the government could enact whatever criminal laws it pleased, without regard for whether the criminalized conduct would cause significant harm or not.
“The harm principle,” they claimed, “is not a manageable standard against which to measure deprivation of life, liberty or security of the person.”
Furthermore, the six judges claimed that even if the harm principle was relevant to justice, marijuana was a source of “public danger” in that it is a “psychoactive drug” that could cause impairment by users who might also be operating heavy machinery or a motor vehicle.
The judges also pointed to schizophrenics, pregnant women and a small percentage of chronic users as infinitesimal minorities who might be at more risk than the average user, even while they were forced to admit that the vast majority of people use marijuana moderately and are at no risk whatsoever. The judges missed the fact that studies of marijuana use by schizophrenics, pregnant women and even chronic users are often contradictory in their findings, sometimes showing benefits to users in these categories.
The fact that all of the issues cited by the judges could also be the basis for criminalizing tobacco or alcohol didn’t phase them. The judges claimed that the absence of criminal laws for cigarettes and shooters didn’t make laws against joints “arbitrary or irrational”.
At the heart of their reasoning was an unqualified support for laws that have nothing to uphold them but an outdated notion of morality.
?The criminalization of possession is a statement of society’s collective
disapproval of the use of a psychoactive drug such as marihuana,” they claimed, demonstrating their ignorance of Canadian public opinion as reflected in numerous published surveys over the past decade.
The six judges furthermore found that jail terms were not disproportionate to the crime of possessing marijuana, since most people found in possession didn’t go to jail. If there was a mandatory minimum sentence for possession, said the silly six, then there might be a constitutional breach.
The dissent of three judges in this case was more than significant, it was reproachful in the extreme. Two judges disagreed strongly with the decision to dispose of the harm principle. A third judge claimed that even if the harm principle were disposed of, marijuana laws are irrational, arbitrary and should be erased.
Judge Arbour was one of the dissenting three, and her criticisms were perhaps the most lucid. She lambasted the decision as “out of keeping with Canadian society’s standards of justice.”
“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,” Arbour wrote. “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.”
Arbour pointed out that Canada already has a law against dangerous driving, and that health risks to minority groups is not enough reason to imprison all users. Arbour criticized the six’s ruling for claiming to protect minority groups by jailing them, and attacked the reasoning that the laws were okay because most charged with possession don’t go to jail. If most judges weren’t sending people to jail for possession, Arbour explained, then that is a message that the law shouldn’t provide for such a harsh punishment.
Arbour’s comments reflect what we should expect from a true and fair justice system. Unfortunately, that is not the kind of justice system Canada has. Does this mean the justice system isn’t operating the way it should? That depends on what you think the justice system is meant to do. If it stands unveiled in its true role – not as protector of our liberties, but as jail keeper – then it is functioning exactly as it should.
For history and details on these Supreme Court cases:
Summary of the three Supreme Court decisions:
Complete decision in the Chris Clay Case:
Complete decision in the Malmo-Levine and Caine cases:
Canadian Press: Possession of small amounts of marijuana remains illegal, says top court
Associated Press: Canada Court to Keep Marijuana Illegal
Globe and Mail: Pot law doesn’t breach Charter