Drug policy and public good
The Canadian charter for individual rights and their freedoms stipulates that each individual in the country has the right for life, liberty and security that cannot be deprived except in cases where it touches fundamental guidelines of justice. It is because of this assertion that the Supreme Court was asked in 2003 as to whether parliament had the jurisdiction to criminalize simple use of Cannabis, if so, there was need for clarification on whether it violated any exercised power (R. v. Malmo-Levine and R. v. Caine, 2003). Caine, who was the Appellant, provided an argument that since prison is a conceivable sentence for conviction, the principles of fundamental justice are violated in the case of activity that causes little or no harm to others power (Mosher and Akins, 2007). The other Appellant, Malmo-Levine, requested the court to find a way of making it possible to prohibit possession of such drugs with the purpose of trafficking that has the capability of violating constitutional rights of others power (R. v. Malmo-Levine and R. v. Caine, 2003). It is asserted that in both cases the court found out that certain sections of the legislations were constitutionally valid for the prohibition of simple possession of Cannabis and trafficking terming it as good law, after deliberations the Supreme Court of Canada upheld both these decisions.
History of the facts
According to reports, Malmo-Levine was well known Marijuana and freedom activist who operated an organization whose objective was to educate the general public on the importance of minimizing use of marijuana to reduce the chances of harm that may be associated with the drug. It is asserted that in December 1996 law enforcement officers entered the Harm Reduction Club that was associated by Malmo and in the process seized 316g of marijuana, mostly in the form of joints (R. v. Malmo-Levine and R. v. Caine, 2003). He was later convicted of the crime because the trial judge at the time never allowed him to present evidence in support of his argument that freedom to use marijuana was a matter of fundamental personal importance protected by the law.
Related to this, in 1993 Caine and a friend were believed to be in a van when they were approached by two police officers who were on a regular patrol near the ocean in British Columbia (Mosher and Akins, 2007). It is established that one of the officers went closer and smelled what was believed to be a strong smell of recently smoked marijuana. It was after the officer suspected the odour that Caine produced a partially smoked piece of marijuana which according to him was for his use and no other purpose, he was convicted of the crime. Based on the same premise of both cases, Caine and Malmo-Levine appealed but unfortunately the British Columbia Court of Appeal dismissed the appeals, notwithstanding with other judges dissenting.
Majority judgment and evidence presented on Cannabis policy and public good
It is asserted that in the case involving Malmo-Levine, all the nine judges agreed with the decision with Justices Gonthier and Binnie tasked with the responsibility of writing the majority judgment decisions. Based on the assertion it is evident that the majority of the Supreme Court concurred with the finding of the court that the trial judge who was handling the case at the time did a mistake by not allowing the use of the evidence that Malmo wished to present in the court (R. v. Malmo-Levine and R. v. Caine, 2003). It is worth pointing out that these pieces of evidence included government reports and documents as well as testimony of expert evidence on the debatable and controversial aspects of cannabis use.
On the other hand, the majority observed that in the case involving Caine, the trial judge at the time followed the due process and procedure of taking notice of the legislative fact evidence presented in the court (Mosher and Akins, 2007). Law experts have affirmed that legislative fact evidence is evidence that establishes the purpose and background of legislation and in most cases is general in scope and subject to minimum scrutiny. This supported the assertion that integrating legislative fact was instrumental in deciding on the issue of harm and helped facilitate cross-examination. In light of the argument, on appeal, Malmo-Levine agreed that the Court of Appeal could consider the same legislative fact evidence that was considered in the Caine case and led to upholding of the conviction power (Mosher and Akins, 2007). It was agreed by both parties that were before the Supreme Court that smoking cannabis had several harmful effects that were associated with its use. This led the Court to accept findings from the lower courts that there was a substantial harmful risk to vulnerable persons such as pregnant women and persons with schizophrenia upon exposure to the drug. The Supreme Court documented that the parliament has the power to create laws that protect vulnerable people with majority judges affirming that parliament has the power to make laws and legislations related to criminal law, particularly where the legislation promotes peace, order and good governance. The court also noted that imprisonment sentence was available that triggered the judicial scrutiny of the law to see whether it was contrary to the charter on human rights and liberty (R. v. Malmo-Levine and R. v. Caine, 2003).
On the defensive side, Malmo-Levine provided an argument that smoking Cannabis is an integral part of his lifestyle and that prohibition of his possession of the said drug was violating his rights confined in the Charter of rights (Mosher and Akins, 2007). However, the Supreme Court found no infringement on his personal lifestyle and as such his liberty rights was affected because the liberty stated that an individual is granted certain levels of autonomy on issues of personal importance. The defendant argued that in the case that he was deprived of smoking cannabis then his security right and liberty would be violated in the process but the court with the contrary opinion established that the appellants had argued that cannabis is non-addictive, so to deprive someone of its use would not cause any grave physical or psychological state- enforced pressure that is associated with deficiency of security of the person.
Majority of the Supreme Court established that the issue of punishment should not be taken into account as a violation of section 7 of the charter, rather should be analyzed in correspondence to section 12 that guarantees individuals the rights to be free from cruel and unusual treatment or punishment, whose legal test is determined on the premise of punishment issued in a way that is grossly disproportional to the harm caused by the offence. They went further to note that NCA as a body did not set out its compulsory minimum sentence on issues dealing with drugs and since time in prison is not admissible as punishment then the legal principle of gross proportionality is not violated. Based on the above evidence and arguments coupled with the objectives of parliament, decisions of the court and provisions of NCA that was discovered to not violate the Charter, the court upheld the convictions of both Malmo-Levine and Caine.
The judges who provided the majority judgment agreed that cannabis as a drug was capable of altering the mental function and ability of an individual and such an assertion was supported by the reason why the accused used the drug (Room et al, 2010). For public good, the conviction was upheld to protect the interests of the minority community members who were vulnerable to its effects. According to the judges, issues touching on public interest involve all members of the community irrespective of the size and their occupation, in fact, it is asserted that while members of these groups, whose identity cannot in general be distinguished from other users in advance, are relatively small as a percentage of all cannabis users, their numbers are significant in absolute terms. It has been established that such groups include pregnant women and schizophrenics who are believed to be at higher risk of the effects associated with the drug and thus cannabis and drug policy are anchored on public good. This means that to accomplish the communal good concern of all people in the society, the strategies ought to help in outlawing ownership of the drug as it will help in proceeding with fortification to the otherwise susceptible participants of the community (Babor et al, 2010). According to law experts this is a policy choice that falls within the broad legislative scope conferred on Parliament and so it up to the institution to decriminalize or otherwise modify any aspect of the cannabis laws that it no longer considers to be good public policy (Babor et al, 2010).
According to the pronouncements of the court, drug laws and policies are put in place to protect the larger society and all its inhabitants (Babor et al, 2010). Therefore, it is opined that control of the use of the drug raises issues of public health and safety, both for the user and for those in the broader society affected by his or her conduct. The legal opinions provided by the majority judges support the notion that the federal criminal law power is complete in nature and has been largely interpreted in the cases (Mosher and Akins, 2007). In other words, it is clear from the interpretations provided in the case that for a law to be classified as a criminal law, it must have a lawful criminal law drive sponsored by a proscription and a penalty (Mosher and Akins, 2007). Criminal analysts have attested to the fact that criminal power may extend even to those legislations that are designed to promote public peace, safety, order, health or some other legitimate public purpose, otherwise for public good. This supports the notion that Cannabis policy enshrined in Narcotic Control Act fits within the criminal law power, which includes the protection of vulnerable groups, and for that matter, the conclusion and pronouncement provided by the judges confirms and warn against the use of Cannabis. This is because drug policies and public good can be supported under the criminal law power makes it unnecessary to deal with whether it also falls under the peace, order and good public administration.
Minority judgment and evidence presented on Cannabis policy and public good
Minority opinions was given by judge Arbour who dissented from the majority opinion in Caine’s appeal having found out that limited harm was associated with the use of cannabis and thus did not justify a potential prison time as a way of discouraging the use of the drug. According to his arguments the policy and public good is no issue with the assertion that a law that has the potential to imprison a person whose conduct causes little or no reasoned risk of harm to others offends the principles of fundamental justice. This means that by using the drug the accused was not capable of offending and affecting the public to warrant public good assertion. The presentation here confirms that such a law violates individual right as the act does not affect other people, it is opined that the sanction to inhibit any behavior through imprisonment must, as a constitutional minimum standard, be reserved for those whose conduct causes a reasoned risk of harm to others. Based on the evidence provided it is difficult to enumerate the expanse of detriment instigated to other members of the community and that it is the obligation of the courts to evaluate the safeties of the society in segregating and endorsing the conduct (Mosher and Akins, 2007).
It is affirmed that the safeties of humanity must then form part of the section seven of the Charter whose chief aim is to deliver essential justice to matters poignant on fortification of the society (R. v. Malmo-Levine and R. v. Caine, 2003). This should then be followed by interests of the society being evaluated and balanced against the harmful effects to the society and in the end the harm or risk of harm to society caused by the prohibited conduct must outweigh any harm that may result from enforcement. Experts have established that Interpretations have been formulated to assert that state imprisoning individuals on the ownership cannabis is unwarranted (Mosher and Akins, 2007). This is because evidence provided in the court supported the assertion that apart from the risks of impairment while driving, flying or operating complex machinery and the impact of cannabis use on the health care and welfare systems, cannabis use was purely personal (Mosher and Akins, 2007). As a matter of fact, the risks and harms that are linked to the use of the drug does not affect the society or the public but are exclusively health risks for the individual user, ranging from almost non-existent for small scale users to relatively significant for habitual users. Moreover, harm inflicted to individual’s self does not meet the threshold for the constitutional requirement that whenever the state recourses to incarceration, there must be a least possible harm to others as an indispensable part of the offence.
According to the minority opinions of justice Arbour, public good and drug policy does not encompass sending susceptible people to prison with the intention of protecting them from harming themselves, and does not form the basis and principle of fundamental justice. In addition, there is no sufficient ground that an individual may affect other members of the society through the use of cannabis. This points an accusing finger to the state as it 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 if they engage in it, particularly if one accepts that imprisonment would be inappropriate for the targeted vulnerable groups and individuals.
Justice Lebel also provided a minority judgment that since few people are jailed for simple possession of cannabis, it should be taken off the law documents as a possible punishment. In addition, the judge pointed out that the stigma associated with individual criminal records has the capability of affecting an individual’s liberty right that in the process disproportionately conflicts with the harm that is caused by the activity. According to the assertions of the judge, the state has failed to address the concerns of the society specifically the individual rights that are enshrined in the charter of rights, in this case the liberty interest at stake in the appeal (Mosher and Akins, 2007). It is asserted that constitutionally, a breach of central rights is made out if and when the response to a communal problem may outsmart in such a way as to stain the specific legislative rejoinder with chance. Based on the statements of the judge such a situation occurred in the appeal case, the premise of the assertion was the notion that while it could not be denied that cannabis could cause problems of varying nature and severity to some people or to groups of them, the harm its consumption may cause seems rather mild on the evidence available. Moreover, the form of criminalizing the act pursued by parliament was neither compact nor convincing as the harm and problems caused by possession of the drug could not affect members of the community, as such there is no policy or public good that was violated by the accused. Presentations of the judge confirmed that actually few people appear to be jailed for simple ownership but the law remains on the books, and so the question is on the unwillingness to enforce it to the degree of essentially imprisoning people for the wrongdoing of simple possession (R. v. Malmo-Levine and R. v. Caine, 2003). As a matter of fact, the judge lamented that the conviction for simple possession of the drug was consistent with the insight that the law as it stands amounts to some sort of legislative deceive to the detained glitches related to cannabis consumption. Consequently, the judge in his minority decision pointed out that many citizens of Canada have faced stigma associated with criminal records despite the accessibility of jail as a chastisement. In his dissent opinion the judge pointed out that the fundamental liberty interest of the accused was infringed the implementation of a legislative reply which is unbalanced to the societal problems at issue and therefore arbitrary, in breach of section seven of the Charter.
Another judge, Deschamps also dissented by arguing that moderate use of cannabis is comparatively inoffensive and that using the option of a jail sentence to discourage people from using it is a punishment and inconsistent to the harm instigated by the offence. According to the judge, using the principle of harm cannot justify the fundamental justice enshrined in section seven of the Charter (Mosher and Akins, 2007). It is worth noting that the precincts of criminal law encompass both protection of society as whole and in an individual as a component (Mosher and Akins, 2007). The judge asserted that the principle of harm is too narrow to carry all the components that the state may use to exercise criminal law when trying to prevent harm to others in the society. This means that using the principle as the basis of conviction may not fully implement the public good and drug policies in the society. According to the evidence presented in the case, the accused individual liberty right is infringed by the inclusion of cannabis to the Narcotic Control Act. It is asserted that for the state to be able to validate off-putting an individual’s liberty, the statute upon which it bases its actions must not be subjective, which is evident in the case (Mosher and Akins, 2007).
In dissent, judge Deschamps pointed out that moderate use of cannabis was to a large extent harmless, and so it seemed doubtful to try and classify consumption of the drug as harmful to other people thereby giving rise to a legitimate use of the criminal law in light of the Charter (R. v. Malmo-Levine and R. v. Caine, 2003). In addition, it is a dubious way of conducting justice in Canada with the use of customized methods of using criminal law to control conduct of individuals who moderately use cannabis with the pretense that all actions are aimed for a public and common good of protecting the society from harm caused due to association with cannabis. Consequently, the judge affirmed that the harm instigated by barring cannabis is profoundly disproportionate to the harms that the state pursues to overwhelm. According to him, upon balancing, the harm far overshadows the benefits that the proscription can bring, and hence fundamentally the court did not justify the prohibition of cannabis use and possession and therefore did not satisfy the burden of proof (Mosher and Akins, 2007).
As a conclusion, law experts have asserted that the Canadian society environment is drastically changing on the fronts of knowledge and morals that have also witnessed tremendous growth. Even if the judges upheld the conviction cases of both the appellants, prohibiting possession and use in my opinion is no longer defensible. Based on the above discussions my analysis points to my conclusion that little harm is caused by possession and use of cannabis for personal lifestyle, this in the process casts serious doubts on the suitability of state intercession in this case. My opinion upon consultation of law scholars and documents is that the available legislation is very inconsistent with the constitutional guidelines of liberty rights enshrined in section seven of the Charter. This conclusion is arrived upon weighing the prohibition guidelines and other methods of dealing with harm associated with the use and possession of cannabis in the society in pursuit of public good (Mosher and Akins, 2007). Others scholars have argued that problems that may be caused due to prohibition of the simple use of the drug are far worse and as such, there is need to justify the law touching on the drug under the specific section in the Charter, the law should henceforth be reversed (Mosher and Akins, 2007).
Babor, T., Caulkins, J., Edwards, G., Fischer, B., Foxcroft, D., Humphreys, K. and Strang, J.
(2010). Drug policy and the public good. Oxford, UK: Oxford University Press.
Mosher, C. J., & Akins, S. (2007). Drugs and drug policy: The control of consciousness
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Room R., Fischer, B., Hall, W., Lenton, S., and Reuter, P. (2010). Cannabis policy: Moving
beyond stalemate. Oxford, UK: Oxford University Press.
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<http://canlii.ca/t/1gbdn>, retrieved on 2016-06-18