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Supreme Court Decision: R. v. Malmo-Levine; R. v. Caine

By admin | July 6, 2004

Upholding Opinion:
pp 3: Even if the “harm principle” relied upon by type appellants could be characterised as a legal principle, it does not meet the other requirements. 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 measurable standard against which to measure deprivation of life, liberty or security of the person.

Pp 5: A criminal law that is shown to be arbitrary or irrational will infringe s. 7. However, in light of the state interest in the avoidance of harm to its citizens; the prohibition on marijuana possession is neither arbitrary or irrational. Marijuana is a psycoactive drug “whose use causes alteration of mental function,” according to the trial judge in C’s case. This alteration creates a potentional harm when to others when users engages in driving, flying and other activities involving complex machinery. Chronic users may suffer serious health problems. Vulnerable groups are at particular risk, including adolescence 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. These findings of fact disclose a sufficient state interest to support parliaments intervention should parliament decide that it is wise to continue to intervene, subject to a constitutional of gross disproportionality. While parliament has addressed some of the harmful conduct elsewhere in the criminal code, one type of legal control to prevent harm does not logically oust other potential forms of legal control, subject as always to the limitation of gross disproportionality. Moreover parliaments decision to move in one area of public health and safety without at the same time moving in other areas (eg. alcohol and tobacco) is not, on that account alone, arbitrary or irrational.

Dissenting opinion:
Pp 264: Arguments solely based on vague general costs to the health care system cannot justify imprisonment for any kind of risky undertaking. There is hardly a net benefit to society in imprisoning; on the basis of the costs they impose on the healthcare and welfare systems, those very persons who may need access to and support from such systems. Canadians do not expect to go to jail whenever they embark on some adventure which involves a possibility of injury to themselves. I see no reason to single out those who may jeopardise their health by smoking marijuana.

Pp 268: Most if not all of the arguments before this court have focused on possession for personal use. On this record, it is virtually impossible to determine whether possession of marijuana for the purpose of trafficking causes more than little or no harm to others. I am aware of the health risks associated with marijuana use could be used to demonstrate the trafficker, involving third parties, such as, for instance, the issue of consent.

Pp 301: The harm caused by using the criminal law to punish the simple use of marijuana far outweighs the benefits that its prohibition can bring. LeBel J. notes that the fact that jail sentences are rarely imposed illustrates the perception of judges that imprisonment is not a sanction that befits the inherent dangers of using marijuana. In the case of appellant Caine, Howard J. also observed that the prohibition had brought the law into disrepute in the eyes of over one million people. These are exactly the kinds of reactions that are indicative of the arbitrariness of the impugned provisions. As I have already mentioned and as Howard J. observed, when state prohibits socially neutral conduct, it exposes itself to the risk of eroding it’s credibility.

Topics: Articles, CD-2nd, Spring 2004 | Comments Off

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