R v. Malmo-Levine; R v. Caine

M described himself as a “marijuana/freedom activist” helping to operate a co-operative, non-profit association seeking to minimize the harm caused by marijuana use. The police raided the organisation’s premises and seized 300 grams of marijuana. M was charged with possession of marijuana for the purpose of trafficking pursuant to section 4(2) Narcotics Control Act 1985 (“Act”). He sought to call evidence in support of a constitutional challenge that the prohibition infringed his right to life, liberty and security of the person as protected by section 71 of the Canadian Charter of Rights and Freedoms (“Charter”), but the trial judge refused to admit the evidence, reasoning that the freedom to use marijuana was not a matter of fundamental importance deserving of protection. M was convicted.

C was found by two policemen in a van parked by a beach. One of the police officers, upon approaching the vehicle, smelled marijuana. C produced a partially smoked joint that weighed 0.5 gram stating that he possessed the marijuana for his own use and not for any other purpose. C was convicted of simple possession of a scheduled drug under section 3(1) of the Act. The penalty on summary conviction for possession of marijuana was a maximum fine of $1,000 or imprisonment for up to six months or both for a first offence and a maximum fine of $2,000 or imprisonment for up to one year or both for a subsequent offence. However, a conviction for the possession of marijuana for personal use carried no mandatory minimum sentence. C’s application for a declaration that the provisions of the Act were unconstitutional on the grounds that it violated principles of fundamental justice by providing for a term of imprisonment as a sentence for conduct which resulted in little or no harm to others was denied at trial, and he was convicted of simple possession.

The Court of Appeal heard both appeals together and dismissed them both, ruling that the deprivation of M and C’s liberty was in accordance with the principle that it was necessary to prevent harm to others. M and C appealed on the grounds that the prohibition under the Act, including the availability of imprisonment for simple possession, was invalid either because (a) it did not properly fall within Parliament’s legislative competence; or (b) it violated section 7 of the Charter given that the possession of marijuana for personal use was a “victimless crime” which did not result in any significant harm to either the user or others. M also argued that the criminalization of marijuana constituted a breach of his equality rights under section 15 of the Charter based on the fact that users had a “substance orientation,” which was a personal characteristic analogous to other section 15 grounds such as sexual orientation.

[Adapted from INTERIGHTS summary, with permission]

The Supreme Court dismissed the appeal, holding that the Act and convictions were constitutional. The Court reasoned that marijuana is a psychoactive drug that causes alteration of mental function, which creates potential harm to others when the user engages in driving, flying, and other activities involving complex machinery. Chronic users may suffer serious health problems. Vulnerable groups are at particular risk, including adolescents with a history of poor school performance, pregnant women, and persons with pre-existing conditions such as cardiovascular diseases, respiratory diseases, schizophrenia, and those with other drug dependencies. Advancing protection for those at particular risk and other vulnerable people through the criminalization of the possession of marijuana is a policy choice that falls within the legislative scope conferred on Parliament. Therefore, the use of marijuana is the proper subject for the use of criminal law powers in that they extend to those laws that are designed to promote public peace, order, health or some other legitimate public purpose. In this regard the purpose of the Act fits within the criminal law power of protecting vulnerable groups. The Court further notes that, even if there remains a debate on the potential harm inflicted by marijuana, Parliament is entitled to act based on reasonable apprehension.

Regarding the Charter, the Court held that the availability of imprisonment for the offense of simple possession was sufficient to trigger scrutiny under section 7 of the Charter. For a rule or principle to constitute a principle of fundamental justice for the purposes of section 7, it must be a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty, and security of the person. The findings of fact in this case disclosed a sufficient state interest to support Parliament's intervention, should Parliament decide that it is wise to intervene, subject to a constitutional standard of gross disproportionality. Moreover, Parliament's decision to move in one area of public health and safety without at the same time moving in others, such as alcohol and tabacco, is not, on that account alone, arbitrary or irrational.

Having identified a legitimate state interest, the Court further examined whether the prohibition was  arbitrary or irrational, particularly in light of section 12 of the Charter, which protects against cruel and unusual treatment or punishment. The Court held that the lack of any mandatory minimum sentence together with the existence of well-established sentencing principles meant that mere availability of imprisonment on a marijuana charge did not on its own violate the principle against gross disproportionality between a crime and its punishment. The operative concept is the use of incarceration, not its availability. In most possession cases, offenders, whether vulnerable or not, received discharges or conditional sentences. This was particularly the case where amounts of marijuana weresmall and for recreational uses, where the usual sentence was conditional discharge. It wasonly in the presence of aggravating circumstances, not likely to be present in the situation of vulnerable persons, that a court would be persuaded that imprisonment for simple possession of marijuana was a fitting sentence. Thus, there was no need to turn to the Charter for relief against unfit sentence. If imprisonment is not a fit sentence in a particular case, it will not be imposed, and if imposed, will be reversed on appeal.

Finally, the Court rejected M's equality claim because a taste for marijuana is not a ‘personal characteristic’ in the sense required to trigger section 15 protection, but is a lifestyle choice that bears no analogy with the personal characteristics listed in that section. It would trivialize this list to maintain that marijuana smoking is analogous to gender or religion as a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs.

The dissent argued that the principles of fundamental justice require that whenever the state resorts to imprisonment, a minimum of harm to others must be an essential part of the offence. The state cannot resort to imprisonment as a punishment for conduct that causes little or no reasoned risk of harm to others. Prohibited conduct punishable by imprisonment cannot be harmless conduct or conduct that only causes harm to the perpetrator. In this case, the inevitable conclusion from the scientific evidence was that, apart from the risks of impairment while driving, flying or operating complex machinery (which can be dealt with separately under the criminal law) and the impact on the health care and welfare systems, all of which are insignificant and negligible, the harms associated with marijuana use are exclusively health risks for individual users. 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 persons may harm themselves.

[Adapted from INTERIGHTS summary, with permission]

"The so-called “ineffectiveness” of the prohibition on marihuana possession is simply another way of characterizing a refusal to comply with the law. That refusal cannot be elevated to a constitutional argument against validity based on the invocation of fundamental principles of justice. Moreover, balancing the law’s salutary and deleterious effects is a function that is more properly reserved for s. 1. As the accused have not established an infringement of s. 7, there is no need to call on the government for a s. 1 justification." Page 577.

"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. Apart from the risks of impairment while driving, flying or operating complex machinery and the impact of marihuana use on the health care and welfare systems, the harms associated with marihuana use are exclusively health risks for the individual user, ranging from almost non-existent for low/occasional/moderate users of marihuana to relatively significant for chronic users. Harm to self does not satisfy the constitutional requirement that whenever the state resorts to imprisonment, there must be a minimum harm to others as an essential part of the offence." Page 579 (dissent).