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Marijuana Smokescreen

By Hempology | January 6, 2004

The Supreme Court erred when a 6-3 majority upheld Canada’s cannabis laws.

From The Vancouver Sun, January 6th, 2004

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 editorials, however, are less easily forgiven for not going beyond the obvious.

The sun’s editorial (It’s up to Parliament to fix Canada’s pot laws, Dec. 30)
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 juidicial 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 judgement 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 every right to punish
those acts. However, the harm caused has to be more than trivial, and it has to be harmful
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
the Criminal Code’s prohibition against possession of marijuana.

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 criminalize conduct that doesn’t cuase 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 my view, is: You have the right to do anything you
want, as long as you don’t cuase 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 that 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 worst,
only harms the lungs of those who puff it.

Instead, the court’s majority relief 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.

But, as Justice Arbour wrote, “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 order 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 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

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 judges, I think, got it right. The rest of the court let the
smoke get in their eyes.

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