The Supreme Court told Canadians that the nation’s 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 prohibitive criminal laws against ? for example ? skiing, hockey, coffee, alcohol, cigarette smoking 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, claiming it wasn’t a principle of fundamental justice.
“The harm principle,” they claimed, “is not a manageable standard against which to measure deprivation of life, liberty or security of the person.”
Formidable pot-law expert and professor Alan Young fought the case on behalf of Chris Clay, who was busted for selling clones in the front store of his London, Ontario shop, Hempnation (CC#09, Trial of the century). Young felt the court’s decision not to recognize the harm principle as a principle of fundamental justice “bordered on dishonest.”
“The way the constitution is written, it is about finding a principle with a historical pedigree,” Young told Cannabis Culture. “They didn’t think the harm principle met that standard despite the fact that it is repeated again and again at the very core of liberal and democratic philosophy. The world’s first constitution, the French declaration of rights, includes the harm principle.”
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 minorities who might be at more risk than the average user, even while they admitted that the vast majority of pot smokers use marijuana moderately and are at no significant 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.
“One thing that came back to bite us in the ass was the record in Caine,” said Young. “In the Caine case, an expert witness mistakenly said that five percent of users are chronic. So the Supreme Court went with these figures and did some math and claimed that 50,000 people were vulnerable? and still they didn’t say exactly what the vulnerability was.”
According to Young, the court managed to build a house out of straw.
“They rendered their decision in Caine, and then only made some notes in the Clay decision,” he complained. “The reason for that was the record in Clay was way better. It showed one percent of cannabis users are chronic? so that is one example of how they picked and chose what evidence they wanted to rely on. It means they can do whatever they want. It isn’t about principles, it’s about policy.”
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 booze didn’t make laws against cannabis “arbitrary or irrational.”
At the heart of the Supreme Court’s 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 wrote, comparing cannabis use to unsavory activities like bestiality, incest and cannibalism!
“The thing that really got me on the morality issue is that they mention cannibalism in connection with protecting fundamental values,” Young responded. “I thought the mention of cannibalism was bizarre? there is no criminal law against it. It is simply inherent in us as something we just wouldn’t do.”
The judges were equally unconvinced that the possibility of jail terms for possession are barbaric, since most people who are convicted of possession don’t go to jail. If there was a mandatory minimum sentence for possession, they reasoned, 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 and arbitrary, which also makes them unconstitutional.
Justice Louise Arbour was one of the dissenting three. 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 continued, and then tore apart the reasoning of the six who voted to continue prohibition, assailing the claim that vulnerable groups could be protected by incarceration and punishment.
If most judges weren’t sending people to jail for possession, she reasoned, then that is a message that the law shouldn’t provide for such a harsh punishment.
Although the ruling was unfavorable and disappointing to Canada’s cannabis community, some pot activists have noted that even a decade ago there would not have been three judges writing such courageous words in defense of freedom.
Dedicated activists can also take heart that the decision is not the end of our hope in the courts. The Church of the Universe was recently granted leave to present their case for religious use of cannabis sacrament before Canada’s Federal Court.
Also, recreational pot laws may still be unenforceable because the Canadian federal government repeatedly refuses to follow the orders of Canada’s highest courts, which demand enlightened changes to the federal med-pot regulations. Although it looks like the formal emancipation of Canada’s pot culture will have to come from Parliament, we may yet win a little more freedom from the judges of our land.