EXCERPT FROM DISSENT IN CANADIAN SUPREME COURT DECISION OVER MARIJUANA
PROHIBITION

(Editor's Note: In late December, the Canadian Supreme Court ruled in case
over the right to marijuana possession in a case known as R. v.
Malmo-Levine; R. v. Caine. While the majority ruled that the government
could prohibit marijuana possession, the minority offered an eloquent
dissent about the relative dangers of marijuana and the relative dangers of
prohibition. Below is a short excerpt of the dissent - the whole entire
ruling can be read at
http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2003scc074.wpd.html and
some excellent commentary on the case has been written by Richard Cowan at
http://www.marijuananews.com/news.php3?sid=726

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. Such a law violates a person's right to liberty under
section 7 of the Charter. Be it as a criminal sanction or as a sanction to
any other prohibition, imprisonment must, as a constitutional minimum
standard, be reserved for those whose conduct causes a reasoned risk of
harm to others. In victimizing conduct, the attribution of fault is
relatively straightforward because of the close links between the actor's
culpable conduct and the resulting harm to the victim. Harm caused to
collective interests, as opposed to harm caused to identifiable
individuals, is not easy to quantify and even less easy to impute to a
distinguishable activity or actor. In order to determine whether specific
conduct, which perhaps only causes direct harm to the actor, or which seems
rather benign, causes more than little or no risk of harm to others, courts
must assess the interest of society in prohibiting and sanctioning the
conduct. "Societal interests" may indeed form part of the s. 7 analysis
where the operative principle of fundamental justice necessarily involves
issues like the protection of society. Societal interests in prohibiting
conduct are evaluated by balancing the harmful effects on society should
the conduct in question not be prohibited by law against the effects of
prohibiting the conduct. The harm or risk of harm to society caused by the
prohibited conduct must outweigh any harm that may result from enforcement.

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.

The majority argue that the potential for imprisonment of members of
vulnerable groups is not serious, since it is only in the "presence of
aggravating circumstances" that imprisonment for possession will be a fit
sentence. This does not strengthen their position; it highlights the
difficulty. By their reasoning, it is those who are not members of
vulnerable groups and who therefore pose no more than negligible harm to
themselves or others who face the threat of imprisonment due to
"aggravating circumstances..."

Sending vulnerable people to jail to protect them from self-inflicted harm
does not respect the harm principle as a principle of fundamental
justice. Similarly, the fact that some vulnerable people may harm
themselves by using marihuana is not a sufficient justification to send
other members of the population to jail for engaging in that activity. 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 if they engage in it,
particularly if one accepts that imprisonment would be inappropriate for
the targeted vulnerable groups.