Chapter 15 - The Criminal Justice System 

Court challenges [1][30] 

Not surprisingly, the cases that have challenged the substantive validity of drug prohibition laws under the Charter have so far specifically dealt with marijuana, rather than with harder drugs, such as cocaine and heroin. Cases dealing with the right to use cannabis for medical purposes have been discussed in Chapter 13. This section will review cases where a right to non-therapeutic (or recreational) drug use is claimed. Although the medical cases have met with greater success, Charter challenges to marijuana prohibition by recreational users have been taken more seriously by the courts than they were a few years ago.    

So far, Canada’s legislative prohibition on marijuana – as it relates to non‑therapeutic use – has been consistently upheld by the courts. However, the court’s reasons have become more elaborate and more extensive in recent cases than in earlier cases. Undoubtedly, this reflects, at least in part, a change in judicial perceptions of the scope of section 7 of the Charter.

No cases could be found which dealt with challenges to the ban on marijuana or other drugs under the Canadian Bill of Rights. Undoubtedly, this can at least in part be explained by the courts’ approach to the Bill of Rights generally, and to the “due process” clause specifically. The courts took a rather cautious approach to applying the Bill of Rights which, being an ordinary statute, was not taken to “reflect a clear constitutional mandate to make judicial decisions having the effect of limiting or qualifying the traditional sovereignty of Parliament.”[2][31] Moreover, the prevailing view of the “due process of law” standard was that it was restricted to procedural fairness, and the “liberty” interest was undoubtedly assumed to refer only to freedom from physical restraint.    

The earliest case concerning a Charter challenge to the offence of possession of an illegal narcotic–in this case, marijuana–was the Quebec Superior Court judgement in R. v. Lepage (8 May 1989, unreported).[3][32] However, this case was unreported and a copy of the decision could not be found, so the reasons for the decision, including the provisions of the Charter under which the decision was made, are not available.

The British Columbia Supreme Court decision of R. v. Cholette (1993)[4][33] was the first case located that dealt squarely with a section 7 challenge to the ban on the use of marijuana. In this case, the accused claimed that the ban violated his right to security of the person under section 7. The accused cited the benefits which he derived from using marijuana and questioned the motivation of the government’s original decision to ban marijuana in 1923 (on the basis that it reflected anti-Asian bias and stereotyping), and its continued retention of the ban, on the grounds that there is no evidence of any significant harmful effect to society. Justice Dorgan rejected the accused’s argument and concluded that the accused had failed to demonstrate that the ban on marijuana “interferes in any real way with the right of access to medical treatment for a condition representing a danger to the life or health of the accused…”[5][34]  

Four months after the Cholette case, similar arguments were being weighed by the Quebec Court of Appeal in R. v. Hamon (1993).[6][35] This time, the accused relied on the broader conception of the liberty interest advanced by Wilson J. in Morgentaler arguing that the decision to use marijuana was a fundamental personal decision. He further claimed that, as marijuana is not really harmful to society – or, at least, no more harmful than tobacco or alcohol – the ban is arbitrary and irrational, and thus contrary to the principles of fundamental justice. Justice Beauregard, for the court, was prepared to assume that an arbitrary criminal prohibition would be contrary to the principles of fundamental justice.[7][36] However, the Court concluded that the ban was not arbitrary and accepted the expert evidence adduced by the government to the effect that cannabis use did have harmful effects on individual users and society.[8][37] Moreover, the court rejected the suggestion that there was anything unjust in the government’s decision to treat cannabis differently from tobacco or alcohol.[9][38] Leave to appeal this decision to the Supreme Court of Canada was refused.

In the 1997 case of R. v. Hunter,[10][39] Justice Drake of the British Columbia Supreme Court addressed a challenge to the prohibitions on marijuana and psilocybin under various Charter provisions. With respect to the accused’s arguments that the prohibitions violated his section 7 liberty and security of the person interests, Justice Drake summarily dismissed them, stating simply that “the two statutes contain reasonable prohibitions against certain conduct, and these are not unduly broad in their application” and referring with approval to the Quebec Court of Appeal decision in Hamon.[11][40]    

In the preceding cases involving challenges to the ban on marijuana (and psilocybin, in the case of Hunter) under section 7 of the Charter, the courts dismissed the arguments with little detailed reasoning. However, in two provincial courts of appeal decisions released in 2000, similar arguments were the subject of more extensive analysis.

The first of these two cases was R. v. Malmo-Levine (and its companion case of Regina v. Caine),[12][41] a decision of the British Columbia Court of Appeal released on 2 June 2000. In this case, a majority of the court upheld the criminal prohibition on simple possession of marijuana as being in conformity with section 7 of the Charter.

First, the Court decided that the accused’s section 7 liberty interest was engaged by the fact that the penalty for the offence provided for possible imprisonment; and that it was therefore unnecessary to decide whether personal recreational use of marijuana was independently protected as an element of “liberty.”[13][42]

Justice Braidwood, for the majority, then turned to the task of identifying and defining the principles of fundamental justice applicable in the case. After considering relevant common law and constitutional jurisprudence, scholarly legal and philosophical writings (in particular, those of John Stuart Mill), and law reform commission reports, the Court accepted the accused’s argument that the principles of fundamental justice as set out in section 7 of the Charter include a precept referred to as the “harm principle,” pursuant to which a person ought not to be imprisoned unless there is a potential that his or her activities will otherwise cause harm to others.[14][43] Moreover, this principle requires that the degree of harm involved “must be neither insignificant nor trivial.”[15][44]  

Recognition of the “harm principle” as a principle of fundamental justice is consistent with the assumption made by the Quebec Court of Appeal in Hamon, that a prohibition that was arbitrary and irrational would be contrary to section 7 of the Charter.  

As in Hamon, the majority of the Court in Malmo-Levine found that the prohibition was not arbitrary. Justice Braidwood, for the majority of the Court, held that the criminal prohibition on possession of marijuana satisfied the harm principle. The majority concluded that Parliament had a “reasonable basis” to ban marijuana based on the following findings concerning the health risks associated with its use:  

vv     Impairment of ability to drive, fly, or operate complex machinery–in this regard, users represent a risk of harm to others in society as well as to themselves (however, the number of accidents attributable to marijuana use cannot be said to be significant).

vv     Risk that the person will become a “chronic” user. Approximately 5% of marijuana users are chronic users; and it is impossible to tell in advance who is likely to become a chronic user. There is a risk that marijuana use, and with it the total number of chronic users, would increase if it were legalized.  

vv     Increased health risks to “vulnerable persons” such as young adolescents.  

vv     Risk of added costs to the health care and welfare system with increased use of marijuana (although, at current rates of use, such costs would be “negligible” compared with those associated with tobacco or alcohol use).[16][45]

Justice Braidwood then proceeded to weigh the interests of the state versus the rights of the individual, as prescribed by the Supreme Court of Canada in Cunningham, to determine if the criminal prohibition on marijuana possession struck “the right balance” between the individual and society. On the side of the individual, the Court weighed the deleterious effects on the individual and his or her family of imprisonment, and of having a criminal record. The Court also noted the disrespect and distrust for the drug laws fostered by the prohibition on marijuana possession. With respect to the state interest in retaining the ban on marijuana possession, the Court weighed the fact that it serves to minimize the harm to potential users and to society associated with cannabis use which, “however small, … is neither insignificant nor trivial.”[17][46] The Court also noted that, in practice, a person convicted of simple possession of marijuana can likely expect a minor fine or a discharge, unless the person is a repeat offender.[18][47] Nonetheless, the Court observed, the threat of imprisonment remains and, in any event, “every year thousands of Canadians are branded with criminal records for a ‘remarkably benign activity.’ ”[19][48]  

In the end, Justice Braidwood observed that the result of the balancing of interests was “quite close,” and that “there is no clear winner.”[20][49] However, he noted that Parliament is owed some deference in matters of public policy and returned to his conclusion that, although the threat posed by marijuana was not large, it did not need to be for Parliament to act.[21][50] The principles of fundamental justice demand only a “reasoned apprehension of harm.”[22][51] As this had been demonstrated, the majority dismissed the accused’s section 7 challenge to the prohibition on marijuana possession.  

In a dissenting opinion, Justice Prowse, while agreeing with much of Justice Braidwood’s analysis, found that section 7 and the harm principle required a greater degree of harm to justify a criminal prohibition than merely non-trivial or not insignificant. Because the accused was able to demonstrate the absence of evidence indicating a reasonable apprehension of “serious, substantial or significant” harm, Justice Prowse would have ruled that the criminal prohibition on simple possession violated section 7 of the Charter.[23][52]

The Ontario Court of Appeal decision in R. v. Clay,[24][53] released on 31 July 2000, dealt with almost the same issues and arguments as those in Malmo-Levine. Moreover, a unanimous panel of the Ontario Court of Appeal reached the same conclusion as the majority in the British Columbia Court of Appeal judgement released the previous month.  

In Clay, Justice Rosenberg, for the court, accepted the “harm principle” elucidated by Justice Braidwood in Malmo-Levine.[25][54] Justice Rosenberg noted, among other things, that the notion of a “harm principle” encompassed by section 7 would be consistent with Justice Sopinka’s statement in Rodriguez that where the “deprivation of the right in question does little or nothing to enhance the state’s interest (whatever it may be), it seems … that a breach of fundamental justice will be made out, as the individual’s rights will have been deprived for no valid purpose.”[26][55]

Moreover, in applying the “harm principle” to the criminal prohibition on marijuana possession, the Court came to the same conclusion as the majority in Malmo-Levine: Because there is some evidence of harm caused by marijuana use that is neither trivial nor insignificant, Parliament has a rational basis to act as it has done and the marijuana prohibition is therefore consistent with the principles of fundamental justice in section 7.[27][56]  

Justice Rosenberg, for the Court in Clay, noted that while the original basis for extending the ban on narcotics to include marijuana may have involved “racism” as well as “irrational, unproven and unfounded fears,” the valid objective of protecting Canadians from harm has remained constant.[28][57] The Court also rejected the relevance (for the purposes of constitutional analysis) of arguments and evidence showing that other legal substances, such as alcohol and tobacco, cause greater harm than marijuana: “[t]he fact that Parliament has been unable or unwilling to prohibit the use of other more dangerous substances does not preclude its intervention with respect to marijuana, provided Parliament had a rational basis for doing so.”[29][58] The Court concluded that it did and upheld the prohibition on marijuana possession, except as it related to persons who need it for medical reasons (which was dealt with by the Court in the companion case of R. v. Parker–discussed below).[30][59]  

As in Malmo-Levine, the Court in Clay found that section 7 of the Charter was triggered by the possibility of imprisonment, which implicated the accused’s liberty interest. However, the Court in Clay went further and addressed the argument that personal use of marijuana per se was protected as an aspect of liberty and/or security of the person based on the expanded conception of these interests recognized by Justices of the Supreme Court of Canada in decisions such as:  B. (R.) v. Children’s Aid Society of Metropolitan Toronto; New Brunswick (Minister of Health and Community Services) v. G. (J.); and Rodriguez (all discussed above). The Court concluded that personal marijuana use (apart from its genuine medicinal use) did not engage the “wider aspect of liberty” which protected the freedom to make decisions of “fundamental personal importance.”[31][60] Nor did it fall within the sphere of personal autonomy, which encompassed the right to “make choices concerning one’s own body” and a right to “basic human dignity” as aspects of security of the person.[32][61]

The Malmo-Levine, Caine and Clay cases are currently before the Supreme Court of Canada. The cases will revolve around whether section 7 of the Charter contains the “harm principle” and the associated question of what is the appropriate threshold of harm: is it enough that the harm is “neither insignificant nor trivial” or must there be reasonable apprehension of serious, substantial or significant harm?