Don’t Let the Smoke Get in Your Eyes

By Stan Persky | January 7, 2004

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. Bummer, eh?, they mumbled, and lit up. Unstoned people who write newspaper editorials, however, are less easily forgiven for not going beyond the obvious.

The editorial in my local neighbourhood paper, The Vancouver Sun (“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.”

The Globe and Mail editorial wasn’t much better. The Toronto paper’s opinion (“The pot law may stand, but it still needs fixing,” Jan. 2, 2004) mainly concentrated on the pragmatic issue, urging PM Paul Martin to go ahead with the planned reform currently in the legislative pipeline that would partially decriminalize possession of small amounts of marijuana. Like the Sun, the Globe also cheered the fact that the court “is clearly keen to give the lawmakers in Parliament a great deal of latitude, and we salute the principle. The court’s job is to decide whether laws offend basic rights and freedoms, not to usurp the role of the lawmakers.”

That, of course, is exactly the depressing position of the right-wing Canadian Alliance party, leaders of the long-running red-herring campaign against alleged “judicial activism.” “What I like about the Supreme Court decision,” said Alliance MP Vic Toews, “is that it makes it clear that this is a matter of public policy for elected officials, not judges.” For those opposed to so-called “judicial activism,” the court’s decision was the occasion to light up a big celebratory, er, cigar. For those who recognize the judicial activism claim as a canard, it was the occasion to clear your lungs and again point out that the charge of judicial activism is mostly a disguise for political disagreement with certain court decisions and for a deep-seated dislike of the Canadian Charter of Rights and Freedoms. The fundies still haven’t gotten over a 1988 Supreme Court decision that made abortion legal.

But for people who read all 91 pages of the court’s 6-3 ruling on pot, 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 conservative Justices Charles Gonthier and Ian Binnie, who wrote the majority decision (a decision supported, alas, by Chief Justice Beverly McLachlin, who usually has better sense), 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.

For those who haven’t followed any of this, here, briefly, is the setup. The case is a double case, R. v. Malmo-Levine, and R. v. Caine. Malmo-Levine is the name of a loopily enthusiastic west coast marijuana advocate, and Caine is the name of another British Columbian who was captured smoking a joint while parked in his van at a Vancouver beach. Both of them were charged back in the mid-1990s with violating the Narcotics Control Act, and have, ever since, been appealing the guilty verdicts. By the time the combined cases got to the Supreme Court of Canada last year, the legal questions the court decided to answer were 1) “Does prohibiting possession of cannabis for personal use… infringe Sec. 7 of the Canadian Charter of Rights and Freedoms?” (Sec. 7 is the one that protects everyone’s right to “life, liberty and security of person”), and 2) “Is the prohibition on the possession of cannabis for personal use… within the legislative competence of the Parliament of Canada” either under the “peace, order and good government” provision of the Canadian Constitution or the criminal law power?

Although the second question got most of the media headlines, it’s not the interesting one, except to lawmaking buffs. It only got into the mix because one of the appellants wondered what the hell Parliament is doing by criminalising actions that aren’t harmful. The bigger question is the first one: does preventing people from possessing and using a relatively harmless substance violate the constitutional right to liberty? This question, it turns out, also revolves around figuring out what is a harmful act.

The majority of the court decided that, yes, marijuana is somehow harmful; that, yes, Parliament has the legitimate power to make pot possession illegal; and that, no, sticking hapless potheads into jail doesn’t violate liberty rights. Since all these conclusions are dead wrong, one can anticipate exactly how convoluted, murky, and full of tortured logic the majority decision is.

Though the decision is intellectually interesting primarily because of the debate about the relation of harm to criminal law, the ruling of course has a lot of material about marijuana. What the court has to say about the dangers of pot is largely risible. Justices Gonthier and Binnie, in a rare moment of mirth, concede “there is no doubt that Canadian society has become much more sceptical about the alleged harm caused by the use of marijuana” since the days, back in the 1920s, when Edmonton magistrate Emily Murphy warned that persons under the influence of pot “lose all sense of moral responsibility… are immune to pain… become raving maniacs… liable to kill… using the most savage methods of cruelty.” Gonthier and Binnie then harumph, “However, to exonerate marijuana from such extreme forms of denunciation is not to say it is harmless.” There then follows a long march through 30 years of documentation showing that pot is indeed pretty harmless—and the majority justices have to do a lot of straining to discover otherwise. So, from the LeDain Commission in 1972, calling for decriminalization of marijuana possession, to the trial judge’s findings, we get a tour of the marijuana evidence.

And what do we find? “Occasional to moderate use of marijuana by a healthy adult is not ordinarily harmful to health, even if used over a long period of time”; no evidence of any damage to users, “except in relation to the lungs and then only to those of a chronic, heavy user”; “marijuana is not addictive”; “there is no causal relationship between marijuana use and criminality”; “there is no evidence that marijuana is a gateway drug and the vast majority of marijuana users do not go on to try hard drugs”; and “there have been no deaths from the use of marijuana.” Of course, this is what pot advocates have been crying to deaf legal ears for decades, while cigarette smokers and alkies have been dropping like flies. But those determined to discover harms in marijuana are willing to engage in real mental contortions. Gonthier and Binnie decide that sufficient apprehension of harm is raised by the thought of chronic users and other “vulnerable groups,” such as adolescents, pregnant women, and schizophrenics, and the fact that the risks to the vulnerable “carry with them a cost to society, both to the health care and welfare systems.” It takes pages and pages for Gonthier-Binnie to get to the conclusion that members of vulnerable groups may be seriously and substantially harmed.

It also takes pages and pages for the court’s majority to explain why Parliament has the lawful power to make laws about this relatively harmless substance, and why this isn’t a violation of the individual’s right to liberty. A lot of the fine-tooth-combing, and the connecting of the dots is interesting to those of us who have a passion for the arcane, but most of the reasoning in the Gonthier-Binnie decision is painfully dull, although it does produce sentences like, “There is no free standing constitutional right to smoke ‘pot’ for recreational purposes,” for use by the media.

After some 40 or 50 pages of this, it’s a relief to get to Justice Louise Arbour’s brisk dissenting opinion. Arbour frames the case this way: “We are asked to address, directly for the first time, whether the Charter requires that harm to others or to society be an essential element of an offence punishable by imprisonment.” She cites an earlier landmark case in which former Chief Justice Antonio Lamer said, “A law that has the potential to convict a person who has not really done anything wrong offends the principles of fundamental justice and, if imprisonment is available as a penalty, such a law then violates a person’s right to liberty under Section 7 of the Charter.”

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’s especially true 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.

Arbour appropriately focuses on the harm-to-others issue. The question isn’t only applicable to pot laws, but affects all sorts of victimless crimes, involving everything from free speech and expression to intimate sexual behaviours. And the court’s worst decisions in the last 10 years—decisions about obscenity, child pornography, soliciting for sex, and euthanasia—have all foundered on the issue of harm. John Stuart Mill was not only insistent on the harm-to-others principle, he was also clear about what we mean by harm: harm has to be direct, measurable damage to persons or property. Indirect harm isn’t sufficient. And given our therapeutic era, psychological harms are also an inappropriate measure, since they so easily shade into mere offensiveness, or simple political disagreements. Where there isn’t direct harm, what rushes into lawmaking is morality, values, religion. If you’re a Canadian Alliance religious fundamentalist, this is exactly what you want. If you’re a secular humanist pagan like me, this is exactly what you don’t want. Fortunately, most of the rules for making rules in Canada favours a strict separation of church and common sense reasoning.

Gonthier and Binnie, who deny that “harm” is a fundamental principle of justice, or a necessary component for criminalizing some act, go through considerable acrobatics to deny the harm principle. In chewing over John Stuart Mill’s ideas, Gonthier-Binnie locate crimes that don’t cause harm to others. “Cannibalism is an offence (Section 182 of the Criminal Code) that does not harm another sentient being, but that is nevertheless prohibited on the basis of fundamental social and ethical considerations. Bestiality and cruelty to animals are examples of crimes that rest on their offensiveness to deeply held social values rather than on Mill’s ‘harm principle’.” Talk about desperately reaching for examples. Contrary to Gonthier-Binnie’s intention, the rare exceptions don’t at all disprove the harm principle, rather they display the general applicability of the idea of harm as a necessary component, except for the rare exceptions. In any case, cannibalism does cause harm to a sentient being if the person being eaten is still alive, as a recent gruesome European case demonstrated. But in that case, the consumed was a consenting adult, and god only knows what we’re supposed to do in the presence of sheer madness. That’s why the saying in law goes, Hard cases don’t make good law. In any case, by now we’re a long way from the acrid fumes of mere stinkweed.

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. For the majority of us who don’t smoke marijuana, it is the dubious thinking of both the marijuana law and the court’s vindication of that thinking that gets our attention.

So, let’s revisit the pot question now that Justice Arbour has cleared up the matter of harm: 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 the obsession of a pot smoker combing through the stuff looking for bad seeds of harm. 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, Gonthier-Binnie insisted. And stoned people who drive cars are a danger.

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.

What’s more, if the aim of the exercise is to protect vulnerable others, probably the best solution would be to legalize marijuana, market it under government control (like liquor and tobacco), and prohibit the sale of it to kids, pregnant women, schizophrenics, and people about to fly airplanes.

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.

Vancouver, January 7, 2004. (An earlier and briefer version of some of this material appeared in the Vancouver Sun, Jan. 6, 2004.)


  • Stan Persky

    Stan Persky taught philosophy at Capilano University in N. Vancouver, B.C. He received the 2010 B.C. Lieutenant-Governor's Award for Literary Excellence. His most recent books are Reading the 21st Century: Books of the Decade, 2000-2009 (McGill-Queen's, 2011), Post-Communist Stories: About Cities, Politics, Desires (Cormorant, 2014), and Letter from Berlin: Essays 2015-2016 (Dooney's, 2017).

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