R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, [2003] 3 SCR 571

R. v. Malmo‑Levine; R. v. Caine, [2003] 3 S.C.R. 571, 2003 SCC 74

David Malmo‑Levine                                                                                       Appellant

v.                           

Her Majesty The Queen                                                                               Respondent

and

Attorney General of Ontario, British Columbia Civil Liberties

Association and Canadian Civil Liberties Association                                Interveners

and between

Victor Eugene Caine                                                                                        Appellant

v.

Her Majesty The Queen                                                                               Respondent

and

Attorney General of Ontario, British Columbia Civil Liberties

Association and Canadian Civil Liberties Association                                Interveners

Indexed as:  R. v. Malmo‑Levine; R. v. Caine

Neutral citation:  2003 SCC 74.

File Nos.:  28026, 28148.

2003:  May 6; 2003:  December 23.

Present:  McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.

on appeal from the court of appeal for british columbia

Constitutional law — Charter of Rights  — Fundamental justice — Liberty and security of person — Narcotic Control Act prohibiting possession of marihuana — Imprisonment available as penalty for simple possession — Whether prohibition infringes s. 7  of Canadian Charter of Rights and Freedoms  — Narcotic Control Act, R.S.C. 1985, c. N-1, s. 3(1), Schedule.

Constitutional law — Charter of Rights  — Equality rights — Narcotic Control Act prohibiting possession of marihuana for purpose of trafficking — Whether prohibition infringes s. 15  of Canadian Charter of Rights and Freedoms  — Narcotic Control Act, R.S.C. 1985, c. N-1, s. 4(2), Schedule.

Constitutional law — Division of powers — Criminal law — Narcotic Control Act prohibiting possession of marihuana — Whether prohibition within legislative competence of Parliament — Constitution Act, 1867, s. 91(27) .

Two RCMP officers on regular patrol observed C and a male passenger sitting in a van by the ocean.  As the officers approached, C, who was in the driver’s seat, started the engine and began to back up.  As one of the officers came alongside the van, he smelled a strong odour of recently smoked marihuana.  C produced for the officer a partially smoked joint which weighed 0.5 gram.  He possessed the joint for his own use and not for any other purpose. The former Narcotic Control Act states in s. 3(1) that “[e]xcept as authorized by this Act or the regulations, no person shall have a narcotic in his possession”.  Narcotics are defined in the schedules to the Act.  Marihuana is a scheduled drug.  The penalty on summary conviction for possession of marihuana is 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.  C’s application for a declaration that the provisions of the Narcotic Control Act prohibiting the possession of marihuana were unconstitutional was denied at trial.  He was convicted of simple possession.  The Court of Appeal, in a majority decision, upheld the conviction.

M, who describes himself as a “marihuana/freedom activist”, helps operate an organization known as the Harm Reduction Club, a co-operative, non‑profit association which recognizes some potential harm associated with the use of marihuana and seeks to reduce it.  In December 1996, police entered the premises of the Club and seized over 300 grams of marihuana, much of it in the form of “joints”.  M was charged with possession of marihuana for the purpose of trafficking under s. 4(2) of the former Narcotic Control Act.  At trial, M sought to call evidence in support of a constitutional challenge but the trial judge refused to admit the evidence and dismissed the challenge.  M was convicted and the Court of Appeal, in a majority decision, upheld the conviction.

Held (Arbour, LeBel and Deschamps JJ. dissenting on C’s appeal): The appeals should be dismissed.

Per McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache and Binnie JJ.:  All sides agree that marihuana is a psychoactive drug which “causes alteration of mental function”.  That, indeed, is the purpose for which the accused use it.  There are concurrent findings in the courts below of “harm” that is neither insignificant nor trivial.  Certain groups in society share a particular vulnerability to its effects.  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 marihuana users, their numbers are significant in absolute terms.  The trial judge in C’s case estimated “chronic users” to number about 50,000.  Pregnant women and schizophrenics are also said to be at particular risk.  Advancing the protection of these and other vulnerable individuals through criminalization of the possession of marihuana is a policy choice that falls within the broad legislative scope conferred on Parliament.  Equally, it is open to Parliament to decriminalize or otherwise modify any aspect of the marihuana laws that it no longer considers to be good public policy. 

The questions before the Court are issues of law, not policy, namely whether the prohibition, including the availability of imprisonment for simple possession, is not valid legislation, either because it does not properly fall within Parliament’s legislative competence, or because the prohibition, and in particular the availability of imprisonment, violate the guarantees of the Canadian Charter of Rights and Freedoms .

Control of a psychoactive drug that causes alteration in mental functions 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 use of marihuana is therefore a proper subject matter for the exercise of the criminal law power.  The federal criminal law power is plenary in nature and has been broadly construed.  For a law to be classified as a criminal law, it must have a valid criminal law purpose backed by a prohibition and a penalty.  The criminal power extends to those laws that are designed to promote public peace, safety, order, health or some other legitimate public purpose.  The purpose of the Narcotic Control Act fits within the criminal law power, which includes the protection of vulnerable groups.  The conclusion that the present prohibition against the use of marihuana can be supported under the criminal law power makes it unnecessary to deal with whether it also falls under the peace, order and good government power.

The availability of imprisonment for the offence of simple possession of marihuana is sufficient to trigger scrutiny under s. 7  of the Charter .  However, M’s desire to build a lifestyle around the recreational use of marihuana does not attract Charter  protection.

For a rule or principle to constitute a principle of fundamental justice for the purposes of s. 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 or security of the person.

The delineation of the principles of fundamental justice must inevitably take into account the social nature of our collective existence.  To that limited extent, societal values play a role in the delineation of the boundaries of the rights and principles in question.  However, the balancing of individual and societal interests within s. 7  is only relevant when elucidating a particular principle of fundamental justice.  That done, it is not within the ambit of s. 7  to bring into account such “societal interests” as health care costs.  Those considerations will be looked at, if at all, under s. 1.

Even if the “harm principle” relied upon by the accused could be characterized as a legal principle, it does not meet the other requirements.  First, there is no sufficient consensus that the harm principle is vital or fundamental to our societal notion of criminal justice.  While the presence of harm to others may justify legislative action under the criminal law power, the absence of proven harm does not create an unqualified s. 7  barrier to legislative action.  Nor is there any consensus that the distinction between harm to others and harm to self is of controlling importance.  Finally, the harm principle is not a manageable standard against which to measure deprivation of life, liberty or security of the person.

While the “harm principle” is not a principle of fundamental justice, the state nevertheless has an interest in the avoidance of harm to those subject to its laws which may justify legislative action.  Harm need not be shown to the court’s satisfaction to be “serious and substantial” before Parliament can impose a prohibition.  Once it is demonstrated, as it has been here, that the harm is not de minimis, or not “insignificant or trivial”, the precise weighing and calculation of the nature and extent of the harm is Parliament’s job.

A criminal law that is shown to be arbitrary or irrational will infringe s. 7 .  However, in light of the state interest in the avoidance of harm to its citizens, the prohibition on marihuana possession is neither arbitrary nor irrational.  Marihuana is a psychoactive drug whose “use causes alteration of mental function”, according to the trial judge in C’s case.  This alteration creates a 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 or other drug dependencies.  These findings of fact disclose a sufficient state interest to support Parliament’s intervention should Parliament decide that it is wise to continue to intervene, subject to a constitutional standard of gross disproportionality.  While Parliament has directly addressed some of the potential harmful conduct elsewhere in the Criminal Code , one type of legal control to prevent harm does not logically oust other potential forms of legal control, subject as always to the limitation of gross disproportionality.  Moreover, Parliament’s decision to move in one area of public health and safety without at the same time moving in other areas (e.g., alcohol or tobacco) is not, on that account alone, arbitrary or irrational.

The issue of punishment should be approached in light of s. 12  of the Charter  (which protects against “cruel and unusual treatment or punishment”), and, in that regard, the constitutional standard is one of gross disproportionality.  The lack of any mandatory minimum sentence together with the existence of well-established sentencing principles mean that the mere availability of imprisonment on a marihuana charge cannot, without more, violate the principle against gross disproportionality. 

A finding that a particular form of penalty violates s. 12  of the Charter  may call for a constitutional remedy in relation to the penalty, but leave intact the criminalization of the conduct, which may still be constitutionally punishable by an alternative form of penalty.

The operative concept here is the use of incarceration, not the availability of incarceration.  Possession of marihuana carries no minimum sentence.  In most possession cases, offenders (whether vulnerable or not) receive discharges or conditional sentences.  This is particularly true where the amounts of marihuana involved are small and for recreational uses, where the usual sentence is a conditional discharge.  There is no impediment in the legislation to a trial judge imposing a fit sentence after a conviction for simple possession of marihuana.

The “availability” of imprisonment in respect of the scheduled drugs under the Narcotic Control Act is part of a statutory framework for dealing with drugs generally and is not specifically directed at marihuana.  The case law discloses that it is only in the presence of aggravating circumstances, not likely to be present in the situation of “vulnerable persons”, where a court has been persuaded that imprisonment for simple possession of marihuana was, in the particular case, a fit sentence.  There is no need to turn to the Charter  for relief against an unfit sentence.  If imprisonment is not a fit sentence in a particular case it will not be imposed, and if imposed, it will be reversed on appeal.

The effects on the accused of enforcement of the prohibition are not so grossly disproportionate that they render the prohibition on marihuana possession contrary to s. 7  of the Charter .  The consequences complained of by the accused are largely the product of deliberate disobedience to the law of the land.  If the court imposes a sentence on conviction that is no more than a fit sentence, which it is required to do, the other adverse consequences of conviction are really associated with the criminal justice system in general rather than this offence in particular.  In any system of criminal law there will be prosecutions that turn out to be unfounded, publicity that is unfairly adverse, costs associated with a successful defence, lingering and perhaps unfair consequences attached to a conviction for a relatively minor offence by other jurisdictions, and so on.  These effects are serious but they are part of the social and individual costs of having a criminal justice system.  Whenever Parliament exercises its criminal law power, such costs will arise.  To suggest that such “inherent” costs are fatal to the exercise of the power is to overshoot the function of s. 7 .

Applying a standard of gross disproportionality, the effects on accused persons of the present law, including the potential of imprisonment, fall within the broad latitude within which the Constitution permits legislative action.

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.

M’s equality claim must fail.  Prohibiting possession of marihuana for the purpose of trafficking does not infringe s. 15(1)  of the Charter .  A taste for marihuana is not a “personal characteristic” in the sense required to trigger s. 15  protection, but is a lifestyle choice that bears no analogy with the personal characteristics listed.

In the circumstances of M’s case, the trial judge erred in excluding the expert evidence of legislative and constitutional facts M wished to adduce, which was relevant to his challenge under the Charter .  While the trial judge was clearly unimpressed by what M wished to establish, in the circumstances he ought to have admitted the evidence, despite his misgivings, so as to permit M to put forward a full record in the event of an appeal.  The complications that would otherwise have attended the hearing of the appeal, however, were obviated by the parties’ agreement to treat C’s evidence of legislative fact as equally applicable to M’s appeal.  In the result, the trial judge’s error did not prejudice M.

Per Arbour J. (dissenting on C’s appeal):  The impugned provisions fall under the criminal law head of power.  As long as the legislation is directed at a legitimate public health evil and contains a prohibition accompanied by a penal sanction, and provided that it is not otherwise a “colourable” intrusion upon provincial jurisdiction, Parliament has, under s. 91(27)  of the Constitution Act, 1867 , discretion to determine the extent of the harm it considers sufficient for legislative action.  However, where Parliament relies on the protection of health as its legitimate public purpose, it has to demonstrate the injurious or undesirable effect from which it seeks to safeguard the public.  While there is no constitutional threshold level of harm required before Parliament may use its broad criminal law power, conduct with little or no threat of harm is unlikely to qualify as a public health evil.

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 s. 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”.  The position that the fitness of sentences for possession should be considered under s. 12 , and not under s. 7 , runs counter to the notion that ss. 8  to 14  of the Charter  are specific illustrations of the principles of fundamental justice.  Where a principle of fundamental justice is invoked which is not specifically set out in ss. 8  to 12 , the analysis is appropriately conducted pursuant to s. 7 .

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.

The two spheres of risks to others identified by the trial judges are not sufficient to justify recourse to the most severe penalty imposed by law, a sentence generally viewed as a last resort.  First, while the risk that persons experiencing the acute effects of the drug may be less adept at driving, flying and engaging in other activities involving complex machinery is indeed a valid concern, the act of driving while under the influence of alcohol or drugs is a separate activity from mere possession and use.  Dangerous driving is already dealt with in the Criminal Code , and rightly so, because it is this act which risks victimizing identifiable others as well as society as a whole.  The second negative effect on society as a whole that was identified, i.e., general harm to the health care and welfare systems, is just too remote and minor to justify the threat of imprisonment for simple possession of marihuana.  Canadians do not expect to face the prospect of imprisonment whenever they embark on some adventure which involves a possibility of injury to themselves.  There is no reason to single out those who may jeopardize their health by smoking marihuana.   If there remained any doubt as to whether the harms associated with marihuana use justify the state in using imprisonment as a sanction against its possession, this doubt disappears when the harms caused by the prohibition are put in the balance.  The record shows, and the trial judges found, that the prohibition of simple possession of marihuana attempts to prevent a low quantum of harm to society at a very high cost.  A negligible burden on the health care and welfare systems, coupled with the many significant negative effects of the prohibition, do not amount to more than little or no reasoned risk of harm to society.

As found by the majority, the prohibition of possession for the purpose of trafficking under s. 4(2) of the Narcotic Control Act does not discriminate against M in violation of s. 15  of the Charter  since the decision to possess and traffic in marihuana is not an immutable personal characteristic, and treating persons who choose to do so in a differential manner in no way infringes human dignity or reinforces prejudicial stereotypes or historical disadvantage.  On the record, M’s constitutional challenge to the prohibition of possession for the purpose of trafficking based on s. 7  fails.

The Crown has not made any submissions regarding s. 1  of the Charter , and none of the courts below considered the issue.  The burden is on the Crown to establish that the infringement was justified under s. 1 .  It has not met this burden.

Per LeBel J. (dissenting on C’s appeal):  There was agreement with the majority that the harm principle should not be raised to the level of a principle of fundamental justice within the meaning of s. 7  of the Charter .  However, fundamental rights are at stake and were breached and this Court must intervene as part of its constitutional duty to uphold the fundamental principles of our constitutional order.  On the available evidence, the law, as it stands, is an arbitrary response to social problems.  The Crown has failed to properly delineate the societal concerns and individual rights at stake, more particularly the liberty interest involved in this appeal.  A breach of fundamental rights is made out if and when the response to a societal problem may overreach in such a way as to taint the particular legislative response with arbitrariness.  Such a legislative overreach happened here.  While it cannot be denied that marihuana can 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.  On the other hand, the harm and the problems connected with the form of criminalization chosen by Parliament seem plain and important.  Few people appear to be jailed for simple possession but the law remains on the books.  The reluctance to enforce it to the extent of actually jailing people for the offence of simple possession seems consistent with the perception that the law as it stands amounts to some sort of legislative overreach to the apprehended problems associated with marihuana consumption.  Moreover, besides the availability of jail as a punishment, the enforcement of the law has tarred hundreds of thousands of Canadians with the stigma of a criminal record.  The fundamental liberty interest has thus been infringed by the adoption and implementation of a legislative response which is disproportionate to the societal problems at issue and therefore arbitrary, in breach of s. 7  of the Charter .

Per Deschamps J. (dissenting on C’s appeal):  Whether pursuant to its jurisdiction over peace, order and good government or under its criminal law power, the prohibition of the possession of drugs lies within Parliament’s jurisdiction.

The “harm principle” cannot validly be characterized as a principle of fundamental justice within the meaning of s. 7  of the Charter .  The criminal law finds its justification in the protection of society, both as a whole and in its individual components.  While there can be no doubt that the state is justified in using its criminal law tools to prevent harm to others, the “harm principle” is too narrow to encompass all the elements that may place limits on the state’s exercise of the criminal law.

The inclusion of cannabis in the schedule to the Narcotic Control Act infringes the accused’s right to liberty without regard for the principles of fundamental justice.  For the state to be able to justify limiting an individual’s liberty, the legislation upon which it bases its actions must not be arbitrary.  In this case, the legislation is arbitrary.  First, it seems doubtful that it is appropriate to classify marihuana consumption as conduct giving rise to a legitimate use of the criminal law in light of the Charter , since, apart from the risks related to the operation of vehicles and the impact on public health care and social assistance systems, the moderate use of marihuana is on the whole harmless.  Second, in view of the availability of more tailored methods, the choice of the criminal law for controlling conduct that causes little harm to moderate users or to control high‑risk groups for whom the effectiveness of deterrence or correction is highly dubious is out of keeping with Canadian society’s standards of justice.  Third, the harm caused by prohibiting marihuana is fundamentally disproportionate to the problems that the state seeks to suppress. This harm far outweighs the benefits that the prohibition can bring. 

Since the Crown did not attempt to justify the prohibition under s. 1  of the Charter , it has not satisfied its burden.

Cases Cited

By Gonthier and Binnie JJ.

Referred to:  Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32; Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), [2000] 1 S.C.R. 44, 2000 SCC 2; R. v. Forbes (1937), 69 C.C.C. 140; R. v. Clay, [2003] 3 S.C.R. 735, 2003 SCC 75; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Hauser, [1979] 1 S.C.R. 984; Industrial Acceptance Corp. v. The Queen, [1953] 2 S.C.R. 273; Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206; R. v. Wetmore, [1983] 2 S.C.R. 284; R. v. S. (S.), [1990] 2 S.C.R. 254; Labatt Breweries of Canada Ltd. v. Attorney General of Canada, [1980] 1 S.C.R. 914; R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401; Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1; Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Scowby v. Glendinning, [1986] 2 S.C.R. 226;  Schneider v. The Queen, [1982] 2 S.C.R. 112; Dufresne v. The King (1912), 5 D.L.R. 501; Ex p. Wakabayashi, [1928] 3 D.L.R. 226; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; R. v. Butler, [1992] 1 S.C.R. 452; R. v. Keegstra, [1995] 2 S.C.R. 381; R. v. Murdock (2003), 11 C.R. (6th) 43; R. v. Hydro-Québec, [1997] 3 S.C.R. 213; Berryland Canning Co. v. The Queen, [1974] 1 F.C. 91; Standard Sausage Co. v. Lee (1933), 60 C.C.C. 265, supplemented by addendum at (1934), 61 C.C.C. 95; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44; Buhlers v. British Columbia (Superintendent of Motor Vehicles) (1999), 170 D.L.R. (4th) 344; Horsefield v. Ontario (Registrar of Motor Vehicles) (1999), 44 O.R. (3d) 73; Cunningham v. Canada, [1993] 2 S.C.R. 143; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Swain, [1991] 1 S.C.R. 933; R. v. Jobidon, [1991] 2 S.C.R. 714; R. v. F. (R.P.) (1996), 105 C.C.C. (3d) 435; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; R. v. Arkell, [1990] 2 S.C.R. 695; R. v. Hamon (1993), 85 C.C.C. (3d) 490; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1; United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7; R. v. Fleming (1992), 21 W.A.C. 79; R. v. Culley (1977), 36 C.C.C. (2d) 433; R. v. Dauphinee (1984), 62 N.S.R. (2d) 156; R. v. Witter, [1997] O.J. No. 2248 (QL); R. v. Coady (1994), 24 W.C.B. (2d) 459; R. v. Richards (1989), 88 N.S.R. (2d) 425; R. v. Morrisey, [2000] 2 S.C.R. 90, 2000 SCC 39; R. v. Smith, [1987] 1 S.C.R. 1045; Steele v. Mountain Institution, [1990] 2 S.C.R. 1385; R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1; R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Hebert, [1990] 2 S.C.R. 151; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Vriend v. Alberta, [1998] 1 S.C.R. 493; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Egan v. Canada, [1995] 2 S.C.R. 513; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497.

By Arbour J. (dissenting in Caine)

R. v. Clay, [2003] 3 S.C.R. 735, 2003 SCC 75, aff’g (2000), 49 O.R. (3d) 577, aff’g (1997), 9 C.R. (5th) 349; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1, aff’d [1951] A.C. 179; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Hauser, [1979] 1 S.C.R. 984; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. Hydro‑Québec, [1997] 3 S.C.R. 213; Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31; Scowby v. Glendinning, [1986] 2 S.C.R. 226; R. v. Parker (2000), 146 C.C.C. (3d) 193; R. v. Hinchey, [1996] 3 S.C.R. 1128; Labatt Breweries of Canada Ltd. v. Attorney General of Canada, [1980] 1 S.C.R. 914; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; R. v. White, [1999] 2 S.C.R. 417; R. v. Heywood, [1994] 3 S.C.R. 761; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; R. v. Creighton, [1993] 3 S.C.R. 3; Fowler v. Padget (1798), 7 T.R. 509, 101 E.R. 1103; R. v. Nette, [2001] 3 S.C.R. 488, 2001 SCC 78; R. v. Martineau, [1990] 2 S.C.R. 633; R. v. DeSousa, [1992] 2 S.C.R. 944; R. v. Arkell, [1990] 2 S.C.R. 695; R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5; R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18; R. v. Murdock (2003), 11 C.R. (6th) 43; R. v. Butler, [1992] 1 S.C.R. 452; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; Cunningham v. Canada, [1993] 2 S.C.R. 143; R. v. Pan (1999), 134 C.C.C. (3d) 1, aff’d [2001] 2 S.C.R. 344, 2001 SCC 42; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46; R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Keegstra, [1995] 2 S.C.R. 381; R. v. M. (C.) (1995), 30 C.R.R. (2d) 112; R. v. Mills, [1999] 3 S.C.R. 668; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1; United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7; R. v. Oakes, [1986] 1 S.C.R. 103; Zingre v. The Queen, [1981] 2 S.C.R. 392; R. v. Williams, [2003] 2 S.C.R. 134, 2003 SCC 41.

By LeBel J. (dissenting in Caine)

R. v. Mills, [1999] 3 S.C.R. 668; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; R. v. Seaboyer, [1991] 2 S.C.R. 577.

By Deschamps J. (dissenting in Caine)

R. v. Butler, [1992] 1 S.C.R. 452; R. v. Arkell, [1990] 2 S.C.R. 695; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519; R. v. Heywood, [1994] 3 S.C.R. 761.

Statutes and Regulations Cited

Act to amend the Food and Drugs Act and the Narcotic Control Act and to make a consequential amendment to the Criminal Code, S.C. 1968-69, c. 41, s. 12.

Act to amend the Opium and Narcotic Drug Act, S.C. 1954, c. 38, s. 3.

Act to amend The Opium and Narcotic Drug Act, 1929, S.C. 1932, c. 20.

Act to amend The Opium and Narcotic Drug Act, 1929, S.C. 1938, c. 9.

Act to prohibit the importation, manufacture and sale of Opium for other than medicinal purposes, S.C. 1908, c. 50.

Bill C-38, An Act to amend the Contraventions Act and the Controlled Drugs and Substances Act, 2nd Sess., 37th Parl., 2003.

Bill S-19, An Act to amend the Food and Drugs Act, the Narcotic Control Act and the Criminal Code, 1st Sess., 30th Parl., 1974.

Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 12 , 8  to 14 , 15 .

Constitution Act, 1867, ss. 91 , 91(27) , 92 .

Contraventions Act, S.C. 1992, c. 47 .

Controlled Drugs and Substances Act, S.C. 1996, c. 19 .

Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Can. T.S. 1990 No. 42, Art. 3(2).

Criminal Code, R.S.C. 1985, c. C-46, ss. 71 , 160 , 182 , 253 , 446 , 718 , 718.1  [ad. c. 27 (1st Supp.), s. 156 ; repl. 1995, c. 22, s. 6].

Narcotic Control Act, R.S.C. 1985, c. N-1 [rep. 1996, c. 19, s. 94], ss. 2 “marihuana”, “narcotic”, 3, 3(4.1), 3(7), 4(2), Sch., item 3 [now S.C. 1996, c. 19 , Sch. II, item 1].

Narcotic Control Act, S.C. 1960-61, c. 35, s. 17(1).

Opium and Drug Act, S.C. 1911, c. 17.

Opium and Narcotic Drug Act, 1923, S.C. 1923, c. 22.

Opium and Narcotic Drug Act, 1929, S.C. 1929, c. 49, s. 4.

Single Convention on Narcotic Drugs, 1961, Can. T.S. 1964 No. 30, Art. 36.

Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37, Art. 27.

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Côté-Harper, Gisèle, Pierre Rainville et Jean Turgeon.  Traité de droit pénal canadien, 4^e éd. ref. et augm.  Cowansville, Qué.:  Yvon Blais, 1998.

Devlin, Patrick. The Enforcement of Morals.  London: Oxford University Press, 1965.

Dworkin, Gerald, ed.  Mill’s On Liberty:  Critical Essays.   Lanham, Maryland:  Rowman & Littlefield, 1997.

Feinberg, Joel.  The Moral Limits of the Criminal Law, vol. 1,  Harm to Others, and vol. 4, Harmless Wrongdoing.  Oxford:  Oxford University Press, 1984.

Fletcher, George P.  Rethinking Criminal Law.  Boston:  Little, Brown, 1978.

Hall, Wayne, Louise Degenhardt and Michael Lynskey.  National Drug Strategy:  The health and psychological effects of cannabis use, 2nd ed.  Prepared by the National Drug and Alcohol Research Centre.  Canberra:  Commonwealth of Australia, 2001.

Hall, Wayne, Nadia Solowij and Jim Lemon.  National Drug Strategy:  The health and psychological consequences of cannabis use.  Prepared by the National Drug and Alcohol Research Centre for the National Task Force on Cannabis.  Canberra:  Australian Government Publishing Service, 1994.

Harcourt, Bernard E.  “The Collapse of the Harm Principle” (1999), 90 J. Crim. L. & Criminology 109.

Hart, H. L. A.  “Immorality and Treason”, originally appearing in The Listener, July 30, 1959, pp. 162-63, reprinted in Morality and the Law.  Belmont, Calif.:  Wadsworth Publishing Co., 1971.

Hart, H. L. A.  “Punishment and the Elimination of Responsibility”.  In Punishment and Responsibility:  Essays in the Philosophy of Law.  Oxford:  Clarendon Press, 1968.

Hogg, Peter W.  Constitutional Law of Canada, student ed.  Scarborough, Ont.:  Carswell, 2002.

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APPEALS from a judgment of the British Columbia Court of Appeal (2000), 138 B.C.A.C. 218, 226 W.A.C. 218, 145 C.C.C. (3d) 225, 34 C.R. (5th) 91, 74 C.R.R. (2d) 189, [2000] B.C.J. No. 1095 (QL), 2000 BCCA 335, affirming the  decision of the British Columbia Supreme Court in R. v. Malmo-Levine (1998), 54 C.R.R. (2d) 291, [1998] B.C.J. No. 1025 (QL), and the decision of the Provincial Court in R. v. Caine, [1998] B.C.J. No. 885 (QL).  Appeal in Malmo-Levine dismissed. Appeal in Caine dismissed, Arbour, LeBel and Deschamps JJ. dissenting.

David Malmo-Levine, on his own behalf.

John W. Conroy, Q.C., for the appellant Caine.

S. David Frankel, Q.C., Kevin Wilson and W. Paul Riley, for the respondent.

Milan Rupic, for the intervener the Attorney General of Ontario.

Joseph J. Arvay, Q.C., for the intervener the British Columbia Civil Liberties Association.

Andrew K. Lokan and Andrew C. Lewis, for the intervener the Canadian Civil Liberties Association.

The judgment of McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache and Binnie JJ. was delivered by

1                                   Gonthier and Binnie JJ. — In these appeals, the Court is required to consider whether Parliament has the legislative authority to criminalize simple possession of marihuana and, if so, whether that power has been exercised in a manner that is contrary to the Canadian Charter of Rights and Freedoms .  The appellant Caine argues in particular that it is a violation of the principles of fundamental justice for Parliament to provide for a term of imprisonment as a sentence for conduct which he says results in little or no harm to other people.  The appellant Malmo-Levine puts in issue the constitutional validity of the prohibition against possession for the purpose of trafficking in marihuana.

2                                   The British Columbia Court of Appeal rejected the appellants’ challenges to the relevant provisions of the Narcotic Control Act, R.S.C. 1985, c. N-1 (“NCA”), and, in our view, it was right to do so.  Upholding as we do the constitutional validity of the simple possession offence, it follows, for the same reasons, that Malmo-Levine’s challenge to the prohibition against possession for the purpose of trafficking must also be rejected.

3                                   All sides agree that marihuana is a psychoactive drug which “causes alteration of mental function”.  That, indeed, is the purpose for which the appellants use it.  Certain groups in society share a particular vulnerability to its effects.  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 marihuana users, their numbers are significant in absolute terms.  The trial judge estimated “chronic users” to number about 50,000.  A recent Senate Special Committee report estimated users under 16 (which may overlap to some extent with the chronic user group) also at 50,000 individuals (Cannabis:  Our Position for a Canadian Public Policy (2002) (the “Senate Committee Report”), vol. I, at pp. 165-66).  Pregnant women and schizophrenics are also said to be at particular risk.  Advancing the protection of these vulnerable individuals, in our opinion, is a policy choice that falls within the broad legislative scope conferred on Parliament. 

4                                   A conviction for the possession of marihuana for personal use carries no mandatory minimum sentence.  In practice, most first offenders are given a conditional discharge.  Imprisonment is generally reserved for situations that also involve trafficking or hard drugs.  Except in very exceptional circumstances, imprisonment for simple possession of marihuana would constitute a demonstrably unfit sentence and, if imposed, would rightly be set aside on appeal.  Availability of imprisonment in a statute that deals with a wide variety of drugs from opium and heroin to crack and cocaine is not unconstitutional, and its rare imposition for marihuana offences (as a scheduled drug) can and should be dealt with under ordinary sentencing principles.  A fit sentence, by definition, complies with s. 7  of the Charter .  The mere fact of the availability of imprisonment in a statute dealing with a variety of prohibited drugs does not, in our view, make the criminalization of possession of a psychoactive drug like marihuana contrary to the principles of fundamental justice.

5                                   The appellants have assembled much evidence and argument  attacking the wisdom of the criminalization of simple possession of marihuana.  They say that the line between criminal and non-criminal conduct has been drawn inappropriately and that the evil effects of the law against marihuana outweigh the benefits, if any, associated with its prohibition.  These are matters of legitimate controversy, but the outcome of that debate is not for the courts to determine.  The Constitution provides no more than a framework.  Challenges to the wisdom of a legislative measure within that framework should be addressed to Parliament.  Our concern is solely with the issue of constitutionality.  We conclude that it is within Parliament’s legislative jurisdiction to criminalize the possession of marihuana should it choose to do so.  Equally, it is open to Parliament to decriminalize or otherwise modify any aspect of the marihuana laws that it no longer considers to be good public policy. 

6                                   The appeals are therefore dismissed.

I.     Facts

A.    Malmo-Levine

7                                   The appellant describes himself as a “marihuana/freedom activist”.  Self-represented in these proceedings, his primary concern is with interference by the state in what he believes to be the personal autonomy of its citizens.  He stated in his oral argument:

I’m part of a growing number of such activists, who view cannabis re-legalization as a key part of protecting human rights and our Mother Earth, while, at the same time, helping to end [the] war on poverty.

As you can see, I’m not a lawyer.  I am, however, a cannabis user and a researcher, and I would like very much to be a cannabis retailer and perhaps grow a few plants. 

8                                   Malmo-Levine does not deny that marihuana use can have harmful effects.  On the contrary, since October 1996, he has helped operate an organization in East Vancouver known as the “Harm Reduction Club”, a co-operative, non-profit association which recognizes some potential harm associated with the use of marihuana and seeks to reduce it.  The stated object of the Club is to educate its users and the general public about marihuana and provide unadulterated marihuana  at cost.  It provides instruction about safe smoking habits “to minimize any harm from the use of marihuana”, and requires its members to pledge not to operate motor vehicles or heavy equipment while under its influence.

9                                   On December 4, 1996, police entered the premises of the Harm Reduction Club and seized 316 grams of marihuana, much of it in the form of “joints”.  The appellant was charged with possession of cannabis (marihuana) for the purpose of trafficking.  At trial, he sought to call evidence in support of a constitutional challenge but the trial judge refused to admit the evidence.  On appeal, the majority of the Court of Appeal dismissed the appeal, Prowse J.A. dissenting.

B.    Caine

10                               On June 13, 1993, two RCMP officers on regular patrol observed the appellant and a male passenger sitting in a van by the ocean at White Rock, B.C.  As the officers approached, the appellant, who was seated in the driver’s seat, started the engine and began to back up.  As one of the officers came alongside the van, he smelled a strong odour of recently smoked marihuana.  The appellant Caine produced for the officer a partially smoked cigarette of marihuana that weighed 0.5 gram.  He possessed the marihuana cigarette for his own use and not for any other purpose.

11                               The appellant Caine’s application for a declaration that the provisions of the NCA prohibiting the possession of marihuana were unconstitutional was denied at trial.  The appeal was also dismissed, Prowse J.A. dissenting.

II.    Relevant Statutory and Constitutional Provisions

Narcotic Control Act, R.S.C. 1985, c. N-1 (repealed S.C. 1996, c. 19, s. 94 , effective May 14, 1997 (SI/97-47))

12                               Section 2 of the NCA defines “marihuana” as Cannabis sativa L. and a “narcotic” as “any substance included in the schedule or anything that contains any substance included in the schedule”.  Marihuana became a scheduled drug when The Opium and Narcotic Drug Act, 1923, S.C. 1923, c. 22 (the predecessor to the NCA) was enacted by Parliament.  The relevant provisions of the NCA, impugned insofar as they relate to the simple possession and use of marihuana, state:

3.  (1)  Except as authorized by this Act or the regulations, no person shall have a narcotic in his possession.

(2)  Every person who contravenes subsection (1) is guilty of an offence and liable

(a)  on summary conviction for a first offence, to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months or to both and, for a subsequent offence, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding one year or to both; or

(b)  on conviction on indictment, to imprisonment for a term not exceeding seven years.

. . .

                                                           Schedule

                                                                   . . .

3.  Cannabis sativa, its preparations, derivatives and similar synthetic preparations, including:

(1) Cannabis resin,

(2) Cannabis (marihuana),

(3) Cannabidiol,

(4) Cannabinol (3-n-amyl-6,6,9-trimethyl-6-dibenzopyran-l-ol),

(4.1) Nabilone ((")-trans-3 (1,1-dimethylheptyl)-6, 6a, 7, 8, 10, 10a-hexahydro-1-hydroxy-6,6-dimethyl-9H-dibenzo[b,d]pyran-9-one),

(5) Pyrahexyl (3-n-hexyl-6,6,9-trimethyl-7,8,9,10-tetrahydro-6-dibenzopyran-l-ol), and

(6) Tetrahydrocannabinol,

but not including:

(7) non-viable Cannabis seed.

Canadian Charter of Rights and Freedoms 

7.  Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Constitution Act, 1867 

91.  It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next herein-after enumerated; that is to say, —

                                                                   . . .

27.  The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.

III.   Judicial History

A.    Trial Court

1.    Malmo-Levine (1998), 54 C.R.R. (2d) 291 (B.C.S.C.)

13                               Curtis J., after a lengthy voir dire, refused to hear evidence tendered to show the offence of possession of marihuana for the purpose of trafficking to be unconstitutional.  He found that the proposed evidence was not relevant to his analysis under s. 7  of the Charter .

14                               In his view, the freedom to use marihuana is not a matter of fundamental, personal importance, and such use is therefore not protected by s. 7  of the Charter .  “There being no right to use marijuana created by the right to life, liberty and security of the person, the question of the principles of fundamental justice need not be considered” (p. 295).  Malmo-Levine was subsequently convicted under s. 4(2) of the NCA for possession of marihuana for the purpose of trafficking.

2.    Caine, [1998] B.C.J. No. 885 (QL) (Prov. Ct.)

15                               Howard Prov. Ct. J. heard extensive evidence about the alleged harm caused by marihuana.  We will address her careful findings of fact in this regard later in these reasons.  In the end, she held that she was bound by the decision in Malmo-Levine that the NCA did not infringe s. 7 .  Caine was therefore convicted under s. 3 of the NCA for simple possession.

B.    British Columbia Court of Appeal (2000), 138 B.C.A.C. 218, 2000 BCCA 335

1.    Braidwood J.A.

16                               Braidwood J.A., Rowles J.A. concurring, concluded that the “harm principle” was a principle of fundamental justice within the meaning of s. 7 .  “[The harm principle] is a legal principle and it is concise.  Moreover, there is a consensus among reasonable people that it is vital to our system of justice.  Indeed, I think that it is common sense that you don’t go to jail unless there is a potential that your activities will cause harm to others” (para. 134).

17                               In the result, however, he judged that the deprivation of the appellants’ liberty caused by the penal provisions of the NCA was in accordance with the harm principle, and did not violate s. 7 :  “It is for Parliament to determine what level of risk is acceptable and what level of risk requires action.  The Charter  only demands . . . a ‘reasoned apprehension of harm’ that is not [in]significant or trivial.  The appellants have not convinced me that such harm is absent in this case” (para. 158).  He therefore dismissed the appeals.

2.    Prowse J.A. (dissenting)

18                               Prowse J.A. disagreed that the threshold of harm justifying parliamentary intervention is harm that is “not insignificant or trivial”.  In her view, harm must be “serious” and “substantial” to survive a Charter  challenge.  She concluded that s. 3(1) of the NCA breached the appellants’ s. 7  Charter  rights in a manner inconsistent with a principle of fundamental justice.  She would have adjourned the proceedings to permit counsel to make further submissions with respect to the justification of the breach under s. 1  of the Charter .

IV.   Constitutional Questions

19                               On October 19, 2001, the Chief Justice stated the following constitutional questions in the case of R. v. Caine:

1.    Does prohibiting possession of Cannabis (marihuana) for personal use under s. 3(1) of the Narcotic Control Act, R.S.C. 1985, c. N-1, by reason of the inclusion of this substance in s. 3 of the Schedule to the Act (now s. 1 , Schedule II, Controlled Drugs and Substances Act, S.C. 1996, c. 19 ), infringe s. 7  of the Canadian Charter of Rights and Freedoms ?

2.    If the answer to Question 1 is in the affirmative, is the infringement justified under s. 1  of the Charter ?

3.    Is the prohibition on the possession of Cannabis (marihuana) for personal use under s. 3(1) of the Narcotic Control Act, R.S.C. 1985, c. N-1, by reason of the inclusion of this substance in s. 3 of the Schedule to the Act (now s. 1 , Schedule II, Controlled Drugs and Substances Act, S.C. 1996, c. 19 ), within the legislative competence of the Parliament of Canada as being a law enacted for the peace, order and good government of Canada pursuant to s. 91  of the Constitution Act, 1867 ; as being enacted pursuant to the criminal law power in s. 91(27)  thereof; or otherwise?

20                               In the Malmo-Levine appeal, additional constitutional questions were stated putting in issue the validity of the prohibition against possession for the purpose of trafficking in marihuana in light of s. 7  (fundamental justice) and s. 15  (equality rights) of the Charter .

V.    Analysis

21                               The controversy over the criminalization of the use of marihuana has raged  in Canada for at least 30 years.  In 1972, the Commission of Inquiry into the Non-Medical Use of Drugs (the “Le Dain Commission”), in its preliminary report entitled Cannabis, recommended that the prohibition against its use be removed from the criminal law.  In 1974, the federal government introduced Bill S-19, which would have removed penal sanctions for possession of marihuana for a first offence and substituted a monetary fine in its place.  The Bill, however, died on the Order Paper.  At the beginning of the 32nd Parliament in 1980, the Throne Speech proclaimed:

It is time . . . to move cannabis offences to the Food and Drugs Act  and remove the possibility of imprisonment for simple possession.

(House of Commons Debates, vol. I, 1st Sess., 32nd Parl., April 14, 1980, at p. 5)

22                               The trial judge in Caine estimated that over 600,000 Canadians now have criminal records for cannabis-related offences, and that widespread use despite the criminal prohibition encourages disrespect for the law.  At the time of the hearing of the appeal in this Court, the government announced its intention of introducing a bill to eliminate the availability of imprisonment for simple possession.  Bill C-38, as introduced, states that possession of amounts less than 15 grams of marihuana will render an individual “guilty of an offence punishable on summary conviction and liable to a fine” (s. 4(5.1)).  Furthermore, the offence would be designated as a contravention, pursuant to the Contraventions Act, S.C. 1992, c. 47 , with the effect that an individual convicted for such possession would not receive a criminal record.

23                               These reports and legislative initiatives were directed to crafting what was thought to be the best legislative response to the marihuana controversy.  Whether the Bill should proceed, and if so in what form, is a matter of legislative policy for Parliament to decide.  The question before us is purely a matter of law.  Is the prohibition, including the availability of imprisonment for simple possession, beyond the powers of Parliament, either because it does not properly fall within Parliament’s legislative competence, or because the prohibition, and in particular the availability of imprisonment, violate the Charter ’s guarantees of rights and freedoms?

24                               The legal issues arising on these appeals can be grouped under the following headings:

A.   Exclusion of Constitutional Fact Evidence at the Trial of Malmo-Levine

B.    The Narcotic Control Act

C.   Evidence of Harm

                   D.   Division of Powers

E.    Section 7  of the Charter 

F.    Section 15  of the Charter 

25                               We turn, then, to the first issue.

A.    Exclusion of Constitutional Fact Evidence at the Trial of Malmo-Levine

26                               Curtis J. refused to admit expert evidence of legislative and constitutional facts relevant to the Charter  challenge on the basis that, even if Malmo-Levine succeeded in establishing what he set out to establish, it would make no difference to the legal result.  In the trial judge’s view, “[t]here is no legal basis for hearing evidence in support of the defence challenge to the constitutionality of the marijuana laws; it is simply not relevant” (p. 296).

27                               In our view, the evidence which Malmo-Levine wished to adduce, which was essentially the same as the evidence tendered in Caine, was relevant to his Charter  challenge.  His argument was clearly not frivolous.  A trial judge is not required to listen to pointless, irrelevant or repetitive evidence that does not advance the work of the court, but here the proffered evidence was none of those things.  Malmo-Levine was prepared to deal with serious matters in a serious way.  Had the Crown been prepared to accept his evidentiary points, an admission by Crown counsel or an agreed Statement of Facts could have been filed to make unnecessary the hearing of viva voce evidence.  In the absence of any such Crown admissions, we agree with the British Columbia Court of Appeal that in the circumstances of this case the trial judge erred in excluding this “legislative fact” evidence.  In the Caine case, the trial judge took judicial notice of certain government reports and documents, and proceeded to hear viva voce expert evidence on the more debatable aspects of the marihuana controversy.  This was the correct procedure.

28                               While the courts apply the requirements of judicial notice less stringently to the admission of legislative fact than to adjudicative fact (Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086, at p. 1099), courts should nevertheless proceed cautiously to take judicial notice even as “legislative facts” of matters that are reasonably open to dispute, particularly where they relate to an issue that could be dispositive:  R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32; Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), [2000] 1 S.C.R. 44, 2000 SCC 2.  The evidence of harm, or the lack of it, was central to the argument raised by both Malmo-Levine and Caine.  They regarded it as dispositive.  Moreover, much of the evidence of “harm” was controversial, and needed to be tested by cross-examination. 

29                               Curtis J. was clearly unimpressed by what Malmo-Levine wished to establish.  In some aspects, we have reached the same conclusion.  However, with respect, the trial judge ought to have admitted the evidence despite his misgivings in the circumstances so as to permit Malmo-Levine to put forward a full record in the event of an appeal.

30                               The complications that would otherwise have attended the hearing of the appeal however were obviated by the parties’ agreement to treat the Caine evidence of legislative fact as equally applicable to Malmo-Levine’s appeal.  In the result, we agree with the Court of Appeal that the trial judge’s error did not, in those circumstances, prejudice Malmo-Levine.

B.      The Narcotic Control Act

1.    History of the NCA

31                               The NCA is structured as an omnibus measure covering all controlled drugs including heroin, crack cocaine and opium.  The first such Act was passed by Parliament in 1908 in the form of An Act to prohibit the importation, manufacture and sale of Opium for other than medicinal purposes, S.C. 1908, c. 50, which aimed to control the use of narcotics for non-medicinal purposes.  In 1911, this statute was replaced by The Opium and Drug Act, S.C. 1911, c. 17, which added prohibitions with regards to cocaine, morphine and eucaine.  In 1923, Parliament enacted a consolidated Opium and Narcotic Drug Act, 1923, S.C. 1923, c. 22, which added cannabis to the list of prohibited drugs.  There was no discussion or debate in the house as to why this drug was added.  In 1932, a number of important amendments were made in the Act to amend The Opium and Narcotic Drug Act, 1929, S.C. 1932, c. 20, referring to both  synthetic and natural drugs.  By 1938, the Act prohibited over 15 scheduled drugs (S.C. 1938, c. 9) (see Senate Committee Report, vol. II, at pp. 256-58).

32                               In 1954, the Opium and Narcotic Drug Act was amended, and the offence of possession was supplemented by a new offence: “possession . . . for the purpose of trafficking” (S.C. 1954, c. 38, s. 3).  A reverse onus applied to this offence, meaning that those possessing large quantities of narcotics had to prove that they were not in possession for the purpose of trafficking (Senate Committee Report, vol. II, at p. 264).  The Act contained much harsher penalties for trafficking than for possession, leading Braidwood J.A. to conclude that “Parliament’s primary purpose was to stamp out the drug traffic and punish the traffickers” (para. 81).

33                               Less than a decade later, Parliament replaced the Opium and Narcotic Drug Act with the Narcotic Control Act, S.C. 1960-61, c. 35, which gave effect to Canada’s international commitments under the Single Convention on Narcotic Drugs, 1961, Can. T.S. 1964 No. 30.  When debating the Bill, the Minister of National Health characterized marihuana as a gateway drug, stating that “[i]t . . . may well provide a stepping stone to addiction to heroin”  (House of Commons Debates, vol. VI, 4th Sess., 24th Parl., June 7, 1961, at p. 5981).  This strategy was to try to treat and cure the “evil” of marihuana by reducing the supply of drugs through stiff penalties, and reducing the demand for drugs by providing treatment for existing addicts.

34                               In 1997, the NCA and Parts III and IV of the Food and Drugs Act  were repealed and replaced by the Controlled Drugs and Substances Act, S.C. 1996, c. 19  (“CDSA ”).  The new Act was designed to discharge Canada’s more recent international obligations with regard to narcotics.  It introduced a legislative framework for the import, export, distribution and use of substances scheduled under previous legislation (Senate Committee Report, vol. II, at p. 286).  More than 150 substances now appear in the schedules to the CDSA .

2.    Sanctions under the NCA

35                               Since the enactment of the Opium Act in 1908, the sanctions for drug possession have been steadily decreasing.  In 1929, the penalty for the offence of possession was a minimum of six months to a maximum of seven years or a fine of between $200 and $1,000, or both.  It was also within the discretion of the court to sentence offenders to hard labour or a whipping: The Opium and Narcotic Drug Act, 1929, S.C. 1929, c. 49, s. 4.  See, e.g., R. v. Forbes (1937), 69 C.C.C. 140 (B.C. Co. Ct.) (accused sentenced to 18 months of hard labour plus a $200 fine for possession of marihuana). 

36                               With the amendment of the Opium and Narcotic Drug Act in 1954, penalties for offences involving trafficking increased.  For simple possession however, the availability of hard labour was removed.  The mandatory six-month prison sentence was repealed in 1961 when the Narcotic Control Act was enacted.  However, the 1961 Act provided, under s. 17(1), that if the accused was a drug addict, the court could impose custody for treatment for an indeterminate period in lieu of another sentence.

37                               In 1969, possession was redesignated as a hybrid offence, and the penalty on summary conviction for possession carried a maximum fine of $1,000 or imprisonment for a term not exceeding six months or both for a first offence and, for a subsequent offence, a fine not exceeding $2,000 or imprisonment for a term not exceeding one year or both: S.C. 1968-69, c. 41, s. 12.  The penalties are heavier, of course, if the Crown proceeds by indictment.  These provisions were still in effect when the NCA was repealed in 1996.

3.    Statutory Framework of the NCA

38                               Parliament did not attach the penalty of imprisonment directly to marihuana offences.  Rather, the NCA states at s. 3(1) that “[e]xcept as authorized by this Act or the regulations, no person shall have a narcotic in his possession”.  Narcotics are defined in the schedules to the NCA.  Marihuana is a scheduled drug.  The trial judge found that while marihuana is a psychoactive drug, it is not (medically speaking) a narcotic.  It is deemed to be a “narcotic” only for the parliamentary purposes of the NCA schedule. 

39                               Various attacks were made on this statutory vehicle in the companion Ontario appeal, R. v. Clay, [2003] 3 S.C.R. 735, 2003 SCC 75, including allegations of overbreadth, and are considered further in our reasons for rejecting that appeal, released concurrently.

C.    Evidence of Harm

40      The evidentiary issue at the core of the appellants’ constitutional challenge is the “harm principle”, and the contention that possession of marihuana for personal use is a “victimless crime”.  The appellants say that even with respect to the user himself or herself there is no cogent evidence of “significant” or “non-trivial” harm.

41                               Malmo-Levine, a self-styled “chronic user”, does not deny the existence of harm.  The name of his organization, after all, is the “Harm Reduction Club”.  In his factum, he acknowledges that “Cannabis misuse can cause harm”.  In oral argument he said that 

my purpose here was to try to shift the debate from whether the harms are trivial, insignificant, to whether the harms are mitigatable and reducible.

and

vulnerable groups, the chronic users, the mentally ill, the pregnant mothers, and the immature youth, are the ones that need harm reduction the most.

1.    Admissions by the Appellants

42                               The appellants Malmo-Levine, Caine and Clay filed with the Court a Joint Statement of Legislative Facts in which they make the following limited admissions:

(i)    Dependency

The appellants state that “[t]here appears to be little or no risk of physical addiction arising from cannabis use; however, a small percentage of users do seemingly develop problems with psychological dependence. . . .  Psychological dependence is reportedly experienced by only 2% of all cannabis users”.

(ii)   Driving, flying, or operating complex machinery

The appellants acknowledge that “[c]annabis may be contributing to accidents”.  Note, as well, that the following is printed on the Harm Reduction Club’s Membership Card (run by Mr. Malmo-Levine): “I, [name], promise not to operate any heavy machinery while impaired on any marijuana”.

(iii)  Damage to lungs

The appellants acknowledge that “Dr. Tashkin has recently demonstrated that chronic cannabis smoking will lead to chronic bronchial inflammation”.

(iv)  Schizophrenia and psychosis

The appellants state that “[c]annabis has not been shown to cause psychoses or schizophrenia, although there is some question as to whether or not cannabis can modify the course of a pre-existing psychosis.”

(v)  Amotivational syndrome

The appellants state that “diminished motivation may be a symptom of chronic intoxication but one which dissipates upon cessation of use”.

(vi)  Effect on fetus/newborns

The appellants state that “[w]hile some tests have shown some impairment of memory, verbal ability and verbal expression of ideas in school age children, the changes were measurably small.  More importantly, however, these minimal testing differences have not been linked to poor school performance in later years.”

(vii)  Reproductive system

The appellants state that “[t]here may . . . be a brief or acute decrease of sex hormone level in the brain, but this level soon returns to normal even without the complete cessation of cannabis smoking”.

43                               There is no doubt that Canadian society has become much more sceptical about the alleged harm caused by the use of marihuana since the days when Emily Murphy, an Edmonton magistrate, warned that persons under the influence of marihuana “los[e] all sense of moral responsibility. . . . are immune to pain . . . becom[ing] raving maniacs . . . liable to kill . . . using the most savage methods of cruelty” (The Black Candle (1922), at pp. 332-33).  However, to exonerate marihuana from such extreme forms of denunciation is not to say it is harmless.

2.    The Le Dain Commission Report

44                               The Le Dain Commission, established in 1969 and reporting in 1972,  recommended decriminalization of marihuana but nevertheless identified various concerns regarding its use, including the following four identified by the majority of commissioners as the major areas of social concern (at p. 268):

1.    “the effect of cannabis on adolescent maturation;”

2.    “the implications of cannabis use for the safe operation of motor vehicles and other machinery;”

3.    “the possibility that the long-term heavy use of cannabis will result in a significant amount of mental deterioration and disorder;” and

4.    “the role played by cannabis in the development and spread of multi-drug use.”

45                               Research and further studies in the intervening 30 years have caused reconsideration of some of these findings.

3.    The Trial Judge’s Findings in Caine

46                               Howard Prov. Ct. J., in response to some of the more strident warnings of the harm allegedly caused by marihuana use, reviewed the extensive evidence before her court to put in perspective the potential harms associated with the use of marihuana, as presently understood, as follows (at para. 40):

1.    the occasional to moderate use of marihuana by a healthy adult is not ordinarily harmful to health, even if used over a long period of time;

2.    there is no conclusive evidence demonstrating any irreversible organic or mental damage to the user, except in relation to the lungs and then only to those of a chronic, heavy user such as a person who smokes at least 1 and probably 3‑5 marihuana joints per day;

3.    there is no evidence demonstrating irreversible, organic or mental damage from the use of marihuana by an ordinary healthy adult who uses occasionally or moderately;

4.    marihuana use does cause alteration of mental function and as such should not be used in conjunction with driving, flying or operating complex machinery;

5.    there is no evidence that marihuana use induces psychosis in ordinary healthy adults who use [marihuana] occasionally or moderately and, in relation to the heavy user, the evidence of marihuana psychosis appears to arise only in those having a predisposition towards such a mental illness;

6.    marihuana is not addictive;

7.    there is a concern over potential dependence in heavy users, but marihuana is not a highly reinforcing type of drug, like heroin or cocaine and consequently physical dependence is not a major problem; psychological dependence may be a problem for the chronic user;

8.    there is no causal relationship between marihuana use and criminality;

9.    there is no evidence that marihuana is a gateway drug and the vast majority of marihuana users do not go on to try hard drugs . . . .

10.  marihuana does not make people aggressive or violent, but on the contrary it tends to make them passive and quiet;

11.  there have been no deaths from the use of marihuana;

12.  there is no evidence of an amotivational syndrome, although chronic use of marihuana could decrease motivation, especially if such a user smokes so often as to be in a state of chronic intoxication;

13.  assuming current rates of consumption remain stable, the health related costs of marihuana use are very, very small in comparison with those costs associated with tobacco and alcohol consumption.

47                               Having concluded that the use of marihuana is not as harmful as is sometimes claimed, the trial judge went on to state in Caine that marihuana is not “a completely harmless drug for all individual users” (para. 42).  She stated at paras. 121-22:

The evidence before me demonstrates that there is a reasonable basis for believing that the following health risks exist with [marihuana use].

There is a general risk of harm to the users of marihuana from the acute effects of the drug, but these adverse effects are rare and transient.  Persons experiencing the acute effects of the drug will be less adept at driving, flying and other activities involving complex machinery.  In this regard they represent a risk of harm to others in society.  At current rates of use, accidents caused by users under the influence of marihuana cannot be said to be significant.

48                               Key to Howard Prov. Ct. J.’s findings was the identification of perhaps 50,000 chronic users, who cannot be identified in advance, but who pose both a risk to themselves and a potential cost to society at paras. 123-26:

There is also a risk that any individual who chooses to become a casual user, may end up being a chronic user of marihuana, or a member of one of the vulnerable persons identified in the materials.  It is not possible to identify these persons in advance.

As to the chronic users of marihuana, there are health risks for such persons.  The health problems are serious ones but they arise primarily from the act of smoking rather than from the active ingredients in marihuana.  Approximately 5% of all marihuana users are chronic users.  At current rates of use, this comes to approximately 50,000 persons.  There is a risk that, upon legalization, rates of use will increase, and with that the absolute number of chronic users will increase.

In addition, there are health risks for those vulnerable persons identified in the materials.  There is no information before me to suggest how many people might fall into this group.  Given that it includes young adolescents who may be more prone to becoming chronic users, I would not estimate this group to be min[u]scule.

All of the risks noted above carry with them a cost to society, both to the health care and welfare systems.  At current rates of use, these costs are negligible compared to the costs associated with alcohol and drugs [sic].  There is a risk that, with legalization, user rates will increase and so will these costs.  [Emphasis added.]

49                               Over 20 years after the Le Dain Commission’s Report, the Hall Report was released in Australia.  The trial judge noted in Caine that “[t]here was general agreement among the witnesses who appeared before me (save perhaps for Dr. Morgan) that the conclusions contained in the Hall Report were sound . . . based on the scientific information available at this time” (par. 48).  The 1994 Hall Report found the following to be “chronic effects”:

[T]he major probable adverse effects [from chronic use] appear to be:

–     respiratory diseases associated with smoking as the method of administration, such as chronic bronchitis, and the occurrence of histopathological changes that may be precursors to the development of malignancy;

–     development of a cannabis dependence syndrome, characterized by an inability to abstain from or to control cannabis use;

–     subtle forms of cognitive impairment, most particularly of attention and memory, which persist while the user remains chronically intoxicated, and may or may not be reversible after prolonged abstinence from cannabis.

[T]he major possible adverse effects [from chronic use that is, effects] which remain to be confirmed by further research [are]:

–     an increased risk of developing cancers of the aerodigestive tract, i.e. oral cavity, pharynx, and oesophagus; 

–     an increased risk of leukemia among offspring exposed while in utero;

–     a decline in occupational performance marked by underachievement in adults in occupations requiring high level cognitive skills, and impaired educational attainment in adolescents;

–     birth defects occurring among children of women who used cannabis during their pregnancies.

(W. Hall, N. Solowij and J. Lemon, National Drug Strategy:  The health and psychological consequences of cannabis use (1994) (the “Hall Report”), at p. ix (emphasis in original))

50                               In 2001, a revised version of the Hall Report was released.  Its conclusions are similar to the 1994 Report except that the cognitive impairment probability was demoted to a possibility, the cancer risk (from smoking marihuana) was promoted from a possibility to a probability and the risks of leukemia and birth defects were no longer listed.

51                               The trial judge noted that the 1994 Hall Report identified three traditional “high risk groups” (at para. 46):

(1)   Adolescents with a history of poor school performance . . .

(2)   Women of childbearing age . . .; and

(3)   Persons with pre-existing diseases such as cardiovascular diseases, respiratory diseases, schizophrenia or other drug dependencies . . . .

The inclusion of “women of childbearing age” may have to be reconsidered in light of more recent studies casting doubt on marihuana as a potential source of birth defects.  However, given the immense importance of potential birth defects for all concerned, and the widely recognized need for further research, we have to accept that on this point as on many others “the jury is still out”.

52                               The trial judge noted, at para. 46, that the findings of the 1994 Hall Report were similar (except for the leukemia and birth defects concerns) to a report entitled Cannabis: a health perspective and research agenda (1997), published a few years later by the World Health Organization, Division of Mental Health and Prevention of Substance Abuse, which contained the following statement about the “acute health effects”, i.e., the effects experienced by users during and for a period following the use of marihuana (at p. 30):

Acute health effects of cannabis use

The acute effects of cannabis use have been recognized for many years, and recent studies have confirmed and extended earlier findings.  These may be summarized as follows:

–     cannabis impairs cognitive development (capabilities of learning), including associative processes; free recall of previously learned items is often impaired when cannabis is used both during learning and recall periods;

–     cannabis impairs psychomotor performance in a wide variety of tasks, such as motor coordination, divided attention, and operative tasks of many types; human performance on complex machinery can be impaired for as long as 24 hours after smoking as little as 20mg of THC in cannabis; there is an increased risk of motor vehicle accidents among persons who drive when intoxicated by cannabis.

53                               The chronic and therapeutic effects of marihuana use were also listed by the World Health Organization and are set out in the Appendix.

4.    Parliamentary Reports

54                               Our attention was drawn by the parties to a number of parliamentary reports issued since the decision of the courts below, of which we may and do take judicial notice.

55                               In September 2002, the Senate Special Committee on Illegal Drugs concluded that “the state of knowledge supports the belief that, for the vast majority of recreational users, cannabis use presents no harmful consequences for physical, psychological or social well-being in either the short or the long term” (vol. I, at p. 165). 

56                               At the same time, the Senate Committee acknowledged potential harm to a minority of users, including the vulnerable groups identified by the Hall Report and reported by the trial judge (vol. I, at pp. 166-67):

The Committee feels that, because of its potential effects on the endogenous cannabinoid system and cognitive and psychosocial functions, any use in those under age 16 is at-risk use;

Our estimation would suggest that approximately 50,000 youths fall in this category.

                                                                   . . .

Heavy use of smoked cannabis can have certain negative consequences for physical health, in particular for the respiratory system (chronic bronchitis, cancer of the upper respiratory tract).

Heavy use of cannabis can result in negative psychological consequences for users, in particular impaired concentration and learning and, in rare cases and with people already predisposed, psychotic and schizophrenic episodes.

Heavy use of cannabis can result in consequences for a user’s social well-being, in particular their occupational and social situation and their ability to perform tasks.

Heavy use of cannabis can result in dependence requiring treatment; however, dependence caused by cannabis is less severe and less frequent tha[n] dependence on other psychotropic substances, including alcohol and tobacco.

57                               Echoing many other studies and reports, the Senate Committee underlined the need for further research, e.g., with respect to the potential impact of marihuana use on some psychiatric disorders (vol. I, at p. 151):

As it is, most scientific reports come to the same conclusion:  more research is needed, with more rigorous protocols, allowing in particular for comparison with other populations and other substances.

58      In December 2002, the House of Commons Special Committee on Non-Medical Use of Drugs reported on the therapeutic benefits and potential adverse effects to some users of marihuana, and recommended that possession of marihuana be dealt with by a scheme of “ticketing, except where the offence is committed in the presence of specified aggravating circumstances”, such as impaired driving (Policy for the New Millennium:  Working Together to Redefine Canada’s Drug Strategy (2002), at p. 130).

59                               On May 27, 2003, the Minister of Justice introduced Bill C-38 which would eliminate the potential of imprisonment following a conviction for possession of no more than 15 grams of marihuana. 

60                               The Senate and House of Commons Committee Reports are consistent with the conclusions reached by the courts in British Columbia that, while marihuana is not a “harmless” drug, nevertheless the degree and extent of harm associated with its use is subject to continuing controversy, as is the wisdom of the present legislative scheme.

61                               We have been shown no reason to interfere with these findings of fact.  It seems clear that the use of marihuana has less serious and permanent effects than was once claimed, but its psychoactive and health effects can be harmful, and in the case of members of vulnerable groups the harm may be serious and substantial. 

62                               We turn, now, to the legal arguments raised by the parties.

D.    Division of Powers

63                               The appellant Caine contends that Parliament has no power to criminalize the possession of marihuana for personal use under either the residuary power of peace, order and good government (“POGG”) or the criminal law power.

1.    The Purpose of the NCA

64                               The appellant Caine further argues that the Crown is resorting impermissibly to a “shifting purpose” in its effort to salvage the marihuana prohibition.  He contends that the legislative origins of the prohibition on cannabis had nothing to do with legitimate claims that cannabis was injurious to public health but was based on racism against oriental drug users and irrational, unproven and unfounded fears.  In light of changed thinking and greater knowledge, the alleged legislative facts underlying this original purpose have been refuted.  The prohibition has thus ceased to be intra vires.  As pointed out in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 335:

Purpose is a function of the intent of those who drafted and enacted the legislation at the time, and not of any shifting variable.

65      We need not review the law on this point because the argument was rejected on the facts by Braidwood J.A., who reviewed the legislative history in detail and concluded that the prohibition on simple possession of marihuana always “had more than one rationale.  It was always meant to prevent the harm to society caused by drug addiction, such as the petty thefts that occur to raise funds to buy drugs” (para. 96).  The post-1954 laws further evolved this general purpose with a larger plan to treat and “cure” drug addicts to eliminate the “market” for drug traffickers in Canada.  We accept this analysis.  Thus, although there was no explanation given during the parliamentary debates as to why cannabis (marihuana) was added to the NCA in 1923, the evidence supports the conclusion of Braidwood J.A. that a major purpose of the prohibition has been, since its enactment and continued thereafter, to be to protect health and public safety.  This purpose did not change when the treatment provisions were added to the NCA in 1961.  The purpose and character of the legislation remained the same, but new means were added to advance the original objectives of health and public safety.  In these circumstances, it cannot be said that the Crown’s argument is flawed by reliance on an impermissibly “shifting” purpose.

2.    Legislative Jurisdiction with Respect to Narcotics

66                               We turn next to the issue as to whether the NCA falls under Parliament’s residuary jurisdiction for POGG, or whether it is an exercise of the criminal law power under s. 91(27)  of the Constitution Act, 1867 , or whether, as the appellants contend, it falls within neither head of federal jurisdiction and is ultra vires.

(a)   Peace, Order and Good Government

67      Almost 25 years ago, a majority of this Court upheld the constitutional validity of the NCA under Parliament’s residual authority to legislate for POGG:  R. v. Hauser, [1979] 1 S.C.R. 984.  Pigeon J., for the majority, took the view that the NCA “is essentially legislation adopted to deal with a genuinely new problem which did not exist at the time of Confederation and clearly cannot be put in the class of ‘Matters of a merely local or private nature’” (p. 1000).  Accordingly, Pigeon J. reasoned, the subject matter of the NCA is similar to other new developments such as aviation and radio communication.  Dickson J., as he then was, dissented on this point, finding that the NCA should be considered as a matter of federal criminal power, relying on the Court’s earlier decision in Industrial Acceptance Corp. v. The Queen, [1953] 2 S.C.R. 273, which had upheld the Opium and Narcotic Drug Act, 1929, under the federal criminal power.

68                               The dissenting judgment of Dickson J. in Hauser focussed in part on whether the federal Crown had the authority to prosecute crimes (see, e.g., at p. 1011).  Some commentators have speculated that the Court strained to locate the law within the POGG power because the Court was deeply divided on this issue: see, e.g., P. W. Hogg, Constitutional Law of Canada (2002 student ed.), at p. 438.  To the extent that such considerations were a factor in the thinking of the majority, the authority of the federal Attorney General to prosecute offences created under the criminal law power has since been affirmed in Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206 (federal power to prosecute crimes under the Combines Investigation Act, R.S.C. 1970, c. C-23, ss. 15(2) and 32(1)(c)), and R. v. Wetmore, [1983] 2 S.C.R. 284 (federal power to prosecute under the Food and Drugs Act, R.S.C. 1970, c. F-27, ss. 8, 9 and 26).  See also R. v. S. (S.), [1990] 2 S.C.R. 254, at p. 283 (Parliament has jurisdiction to delegate powers to provincial officials to prosecute offences under the Young Offenders Act, S.C. 1980-81-82-83, c. 110, s. 4).

69                               In Labatt Breweries of Canada Ltd. v. Attorney General of Canada, [1980] 1 S.C.R. 914, at pp. 944-45, the Court outlined three instances in which the federal residual power applies:

(i)    the existence of a national emergency;

(ii)   with respect to a subject matter which did not exist at the time of Confederation and is clearly not in a class of matters of a merely local or private nature;

(iii) where the subject matter “goes beyond local or provincial concern and must, from its inherent nature, be the concern of the Dominion as a whole”.

70                               It is not contended that the use of marihuana rises to the level of a national emergency.  As to the second category, if, as we conclude infra, the NCA is a valid exercise of the criminal law power, it would not be consistent with that conclusion to uphold it under the branch of POGG that deals with “new” legislative subject matter not otherwise allocated.  To that extent we disagree with the view taken by the majority in Hauser, supra.

71                               These observations leave only the third category as a potential source of authority under POGG.  The Attorney General of Canada contends that the control of narcotics is a legislative subject matter that “goes beyond local or provincial concern and must, from its inherent nature, be the concern of the Dominion as a whole”.  He puts his position as follows:

The importation, manufacture, distribution, and use of psychoactive substances are matters having an impact on the country as a whole, and which can only be dealt with on an integrated national basis.  Additionally, the international aspects are such that these matters cannot be effectively addressed at the local level. 

72                               We do not exclude the possibility that the NCA might be justifiable under the “national concern” branch on the rationale adopted in R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401, at p. 432, where we held that concerted action amongst provincial and federal entities, each acting within their respective spheres of legislative jurisdiction, was essential to deal with Canada’s international obligations regarding the environment.  In our view, however, the Court should decline in this case to revisit Parliament’s residual authority to deal with drugs in general (or marihuana in particular) under the POGG power.  If, as is presently one of the options under consideration, Parliament removes marihuana entirely from the criminal law framework, Parliament’s continuing legislative authority to deal with marihuana use on a purely regulatory basis might well be questioned.  The Court would undoubtedly have more ample legislative facts and submissions in such a case than we have in this appeal.  Our conclusion that the present prohibition against the use of marihuana can be supported under the criminal law power makes it unnecessary to deal with the Attorney General’s alternative position under the POGG power, and we leave this question open for another day.

(b)   The Criminal Law Power

73                               The federal criminal law power is “plenary in nature” and has been broadly construed:

A crime is an act which the law, with appropriate penal sanctions, forbids; but as prohibitions are not enacted in a vacuum, we can properly look for some evil or injurious or undesirable effect upon the public against which the law is directed.  That effect may be in relation to social, economic or political interests; and the legislature has had in mind to suppress the evil or to safeguard the interest threatened.

(Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1 (the “Margarine Reference”), at p. 49)

In the present case the “evil or injurious or undesirable effect” is the harm attributed to the non-medical use of marihuana.

74                               For a law to be classified as a criminal law, it must possess three prerequisites:  a valid criminal law purpose backed by a prohibition and a penalty  (Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31, at para. 27).  The criminal power extends to those laws that are designed to promote public peace, safety, order, health or other legitimate public purpose.  In RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, it was held that some legitimate public purpose must underlie the prohibition.  In Labatt Breweries, supra, in holding that a health hazard may ground a criminal prohibition, Estey J. stated the potential purposes of the criminal law rather broadly as including “public peace, order, security, health and morality” (p. 933).  Of course Parliament cannot use its authority improperly, e.g. colourably, to invade areas of provincial competence:  Scowby v. Glendinning, [1986] 2 S.C.R. 226, at p. 237.

75                               In various instances members of this Court have upheld the constitutionality of the NCA on the basis of the criminal power:  Industrial Acceptance Corp., supra; Hauser, supra, per Dickson J., dissenting on this point, at p. 1060; and Schneider v. The Queen, [1982] 2 S.C.R. 112, per Laskin C.J., at p. 115.  Other courts interpreting the Opium Act and its successors have also reached this conclusion. See, e.g., Dufresne v. The King (1912), 5 D.L.R. 501 (Que. K.B.), and Ex p. Wakabayashi, [1928] 3 D.L.R. 226 (B.C.S.C.). 

76                               The purpose of the NCA fits within the criminal law power, which includes the protection of vulnerable groups:  Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at p. 595.  See also R. v. Morgentaler, [1988] 1 S.C.R. 30, at pp. 74-75, in which s. 251  of the Criminal Code  prohibiting abortions except in therapeutic situations was held to have a valid objective, namely protecting the life and health of pregnant women, although it failed the s. 1  test on other grounds.  On somewhat related issues arising under the Charter , the protection of vulnerable groups has also been upheld under s. 1  as a valid federal objective of the exercise of the criminal law power.  In R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, we upheld s. 163.1(4)  of the Criminal Code  prohibiting the possession of child pornography, noting that the prevention of harm threatening vulnerable members of society is a valid limit on freedom of expression.  Similarly in R. v. Butler, [1992] 1 S.C.R. 452, at p. 497, we concluded that “legislation proscribing obscenity is a valid objective which justifies some encroachment on the right to freedom of expression”.  In so doing, we emphasized the impact of the exploitation of women and children, depicted in publications and films, which can in certain circumstances, lead to “abject and servile victimization”.  In R. v. Keegstra, [1995] 2 S.C.R. 381, we held that the restrictions on free speech imposed by the hate speech provision in the Criminal Code  was a justifiable limit under s. 1  because of potential attacks on minorities.

77                               The protection of vulnerable groups from self-inflicted harms does not, as Caine argues, amount to no more than “legal moralism”.  Morality has traditionally been identified as a legitimate concern of the criminal law (Labatt Breweries, supra, at p. 933) although today this does not include mere “conventional standards of propriety” but must be understood as referring to societal values beyond the simply prurient or prudish:  Butler, supra, at p. 498; R. v. Murdock (2003), 11 C.R. (6th) 43 (Ont. C.A.), at para. 32.  The protection of the chronic users identified by the trial judge, and adolescents who may not yet have become chronic users, but who have the potential to do so, is a valid criminal law objective.  In R. v. Hydro-Québec, [1997] 3 S.C.R. 213, the Court held at para. 131 that “Parliament has for long exercised extensive control over such matters as food and drugs by prohibitions grounded in the criminal law power”.  See also Berryland Canning Co. v. The Queen, [1974] 1 F.C. 91 (T.D.), at pp. 94-95; Standard Sausage Co. v. Lee (1933), 60 C.C.C. 265 (B.C.C.A.), supplemented by addendum at (1934), 61 C.C.C. 95.  In our view, the control of a “psychoactive drug” that “causes alteration of mental function” clearly raises issues of public health and safety, both for the user as well as for those in the broader society affected by his or her conduct. 

78                               The use of marihuana is therefore a proper subject matter for the exercise of the criminal law power.  Butler held, at p. 504, that if there is a reasoned apprehension of harm Parliament is entitled to act, and in our view Parliament is also entitled to act on reasoned apprehension of harm even if on some points “the jury is still out”.  In light of the concurrent findings of “harm” in the courts below, we therefore confirm that the NCA in general, and the scheduling of marihuana in particular, properly fall within Parliament’s legislative competence under s. 91(27)  of the Constitution Act, 1867 .

79                               Prior to the enactment of the Charter  in 1982, that finding, which validates the exercise of the criminal law power, would have ended the appellants’ challenge.  Now, of course, Parliament must not only find legislative authority within the Constitution Act, 1867 , but it must exercise that authority subject to the individual rights and freedoms guaranteed by the Charter .

80                               We therefore turn to the appellants’ Charter  arguments.

E.    Section 7  of the Charter 

81                               The appellant Malmo-Levine argues that smoking marihuana is integral to his preferred lifestyle, and that the criminalization of marihuana in both its possession and trafficking aspects is an unacceptable infringement of his personal liberty.

82                               The appellant Caine, on the other hand, takes aim at the potential for imprisonment for conviction of possession of marihuana, and argues that imprisonment for such an offence is not in accordance with the principles of fundamental justice.  If the penalty falls, he says, the substantive offence must fall with it.

83                               These “liberty” interests are, of course, very different.  We propose therefore first to identify the s. 7  “interest” properly at stake, then secondly to discuss the applicable principles of fundamental justice.  Thirdly we will examine whether the deprivation of the s. 7  interest thus identified is in accordance with the principles of fundamental justice relevant to these appeals.  As will be seen, we find no s. 7  infringement.  It will therefore not be necessary to move to s. 1  to determine if an infringement would be justified in a free and democratic society.

1.    The Interests at Stake

84                               We say at once that the availability of imprisonment for the offence of simple possession is sufficient to trigger s. 7  scrutiny:  Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486.  However, Malmo-Levine’s position (which is supported by the intervener British Columbia Civil Liberties Association) requires us to address whether broader considerations of personal autonomy, short of imprisonment, are also sufficient to invoke s. 7  protection.  The appellant Caine, whose factum talks of the “fun” or “social” use of cannabis, writes, at para. 30:

It is submitted that a decision whether or not to possess and consume Cannabis (marijuana), even if potentially harmful to the user, is analogous to the decision by an individual as to what food to eat or not eat and whether or not to eat fatty foods, and as such is a decision of fundamental personal importance involving a choice made by the individual involving that individual’s personal autonomy. 

85                               In Morgentaler, supra, Wilson J. suggested that liberty “grants the individual a degree of autonomy in making decisions of fundamental personal importance”,  “without interference from the state” (p. 166).  Liberty accordingly means more than freedom from physical restraint.  It includes “the right to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference”: Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, at para. 66;  B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, at para. 80.  This is true only to the extent that such matters “can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence”:  Godbout, supra, at para. 66.  See also  Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44, at para. 54; Buhlers v. British Columbia (Superintendent of Motor Vehicles) (1999), 170 D.L.R. (4th) 344 (B.C.C.A.), at para. 109; Horsefield v. Ontario (Registrar of Motor Vehicles) (1999), 44 O.R. (3d) 73 (C.A.). 

86                               While we accept Malmo-Levine’s statement that smoking marihuana is central to his lifestyle, the Constitution cannot be stretched to afford protection to whatever activity an individual chooses to define as central to his or her lifestyle.  One individual chooses to smoke marihuana; another has an obsessive interest in golf; a third is addicted to gambling.  The appellant Caine invokes a taste for fatty foods.  A society that extended constitutional protection to any and all such lifestyles would be ungovernable.  Lifestyle choices of this order are not, we think, “basic choices going to the core of what it means to enjoy individual dignity and independence” (Godbout, supra, at para. 66).

87                               In our view, with respect, Malmo-Levine’s desire to build a lifestyle around the recreational use of  marihuana does not attract Charter  protection.  There is no free-standing constitutional right to smoke “pot” for recreational purposes.

88                               The appellants also invoke their s. 7  interest in “security of the person”.  In Morgentaler, supra, Dickson C.J. accepted that “serious state-imposed psychological stress” (p. 56 (emphasis added)) would suffice to infringe this interest.  The appellants, however, contend that use of marihuana is non-addictive.  Prohibition would not therefore lead to a level of stress that is constitutionally cognizable.  A very different issue would arise if the marihuana was required for medical purposes, but neither appellant uses marihuana for such a purpose.

89                               The availability of imprisonment is a different matter.  We have no doubt that the risk of being sent to jail engages the appellants’ liberty interest.  Accordingly, it is necessary to move to the next stage of the s. 7  analysis to determine what are the relevant principles of fundamental justice and whether this risk of deprivation of liberty is in accordance with the principles of fundamental justice.

2.    Principles of Fundamental Justice

90                               The appellants accept that Parliament may act to avoid harm to others without violating principles of fundamental justice.  They focus on the alleged absence of such harm, and contend that it is a denial of fundamental justice to deprive them of their liberty where such denial does not enhance a legitimate interest of the state.  To hold otherwise, they say, would require the courts to endorse the arbitrary or irrational use of the criminal law power, contrary to the principles of fundamental justice.  As Sopinka J. stated in Rodriguez, supra, at p. 594:

Where the deprivation of the right in question does little or nothing to enhance the state’s interest (whatever it may be), it seems to me that a breach of fundamental justice will be made out, as the individual’s rights will have been deprived for no valid purpose.

91                               The appellants’ s. 7  arguments have several branches predicated on the requirement of harm.  First, they argue that the only permissible target of the criminal law is harm to others; in their view, the criminal law cannot prohibit conduct that harms only the accused.  Second, they argue that, in any event, marihuana is not a harmful substance, so that the prohibition of simple possession is arbitrary or irrational.  Third, they argue that the criminalization of cannabis possession has adverse consequences, both for those users who are charged and convicted and, because of the disrespect engendered by the law, for the administration of justice generally, that are wholly disproportionate to the societal interests sought to be served by the prohibition.  Finally, they submit that the criminalization of cannabis possession is discriminatory and unfair, in light of Parliament’s failure to criminalize the possession and use of alcohol and tobacco. 

92                               The appellant Malmo-Levine further submits that any harm-based analysis should focus on the healthy user who engages in harm-reduction strategies.  He argues that the Court of Appeal erred “when they characterized the harms that may come with cannabis use as inherent, instead of a product of mis-cultivation, mis-distribution and mis-use” (Malmo-Levine’s factum, at para. 2).

93                               We will deal first with a number of preliminary points raised by the appellants.

(a)   The Propriety of Balancing Societal and Individual Interests in Section 7 

94                               The appellant Caine submits that the British Columbia Court of Appeal erred in importing into s. 7  a number of societal interests that have nothing to do with the “principles of fundamental justice” but that he says should be considered, if at all, under a s. 1  justification.  In other words, he argues that societal interests are not relevant to defining the right granted under s. 7  but only to determining whether a limit on that right is a reasonable one prescribed by law as can be demonstrably justified in a free and democratic society. 

95                               Braidwood J.A. considered that “the operative principle of fundamental justice” in these cases is the harm principle (see para. 159).  However, having concluded that the prohibition against simple possession complies with the harm principle, he went on to consider a second question — “whether the NCA strikes the ‘right balance’ between the rights of the individual and the interests of the State” (para. 160).  As authority for this approach, reference was made to Cunningham v. Canada, [1993] 2 S.C.R. 143; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at p. 539, per La Forest J.; and Rodriguez, supra, at pp. 592-93, per Sopinka J.  Prowse J.A., in dissent, engaged in a similar balancing exercise.

96                               We do not think that these authorities should be taken as suggesting that courts engage in a free-standing inquiry under s. 7  into whether a particular legislative measure “strikes the right balance” between individual and societal interests in general, or that achieving the right balance is itself an overarching principle of fundamental justice.  Such a general undertaking to balance individual and societal interests, independent of any identified principle of fundamental justice, would entirely collapse the s. 1  inquiry into s. 7 .  The procedural implications of such a collapse are significant.  Counsel for the appellant Caine, for example, urges that the appellants having identified a threat to the liberty or security of the person, the evidentiary onus should switch at once to the Crown within s. 7  “to provide evidence of the significant harm that it relies upon to justify the use of criminal sanctions” (Caine’s factum, at para. 24).

97                               We do not agree.  In R. v. Mills, [1999] 3 S.C.R. 668, a majority of this Court pointed out that, despite certain similarities between the balancing of interests in ss. 7  and 1 , there are important differences.  Firstly, the issue under s. 7  is the delineation of the boundaries of the rights and principles in question whereas under s. 1  the question is whether an infringement may be justified (para. 66).  Secondly, it was affirmed that under s. 7  it is the claimant who bears the onus of proof throughout. It is only if an infringement of s. 7  is established that the onus switches to the Crown to justify the infringement under s. 1 .  Thirdly, the range of interests to be taken into account under s. 1  is much broader than those relevant to s. 7 .  The Court said in Mills, at para. 67:

Because of these differences, the nature of the issues and interests to be balanced is not the same under the two sections.  As Lamer J. (as he then was) stated in Re B.C. Motor Vehicle Act, supra, at p. 503: “the principles of fundamental justice are to be found in the basic tenets of our legal system”.  In contrast, s. 1  is concerned with the values underlying a free and democratic society, which are broader in nature.  In R. v. Oakes, [1986] 1 S.C.R. 103, Dickson C.J. stated, at p. 136, that these values and principles “embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society”.  In R. v. Keegstra, [1990] 3 S.C.R. 697, at p. 737, Dickson C.J. described such values and principles as “numerous, covering the guarantees enumerated in the Charter  and more”. 

98                               The balancing of individual and societal interests within s. 7  is only relevant when elucidating a particular principle of fundamental justice.  As Sopinka J. explained in Rodriguez, supra, “in arriving at these principles [of fundamental justice], a balancing of the interest of the state and the individual is required” (pp. 592-93 (emphasis added)).  Once the principle of fundamental justice has been elucidated, however, it is not within the ambit of s. 7  to bring into account such “societal interests” as health care costs.  Those considerations will be looked at, if at all, under s. 1 .  As Lamer C.J. commented in R. v. Swain, [1991] 1 S.C.R. 933, at p. 977:

It is not appropriate for the state to thwart the exercise of the accused’s right by attempting to bring societal interests into the principles of fundamental justice and to thereby limit an accused’s s. 7  rights.  Societal interests are to be dealt with under s. 1  of the Charter , where the Crown has the burden of proving that the impugned law is demonstrably justified in a free and democratic society.

99                               The principles of fundamental justice asserted by the appellants include the contentions that their conduct should only be the subject of criminal sanction to the extent it harms others, that the state cannot infringe their interests in an arbitrary or irrational manner, or impose criminal sanctions that are disproportionate to the importance of the state interest sought to be protected.  Implicit in each of these principles is, of course, the recognition that the appellants do not live in isolation but are part of a larger society.  The delineation of the principles of fundamental justice must inevitably take into account the social nature of our collective existence.  To that limited extent, societal values play a role in the delineation of the boundaries of the rights and principles in question.

(b)   Malmo-Levine’s “Harm Reduction” Argument

100                           We wish to be clear  that we do not accept Malmo-Levine’s argument that Parliament should proceed on the assumption that users will use marihuana “responsibly”.  We accept his point that careful use can mitigate the harmful effects, but it is open to Parliament to proceed on the more reasonable assumption that psychoactive drugs will to some extent be misused.  Indeed, the evidence indicates the existence of both use and misuse by chronic users and by vulnerable groups who cause harm to themselves.

(c)   Malmo-Levine’s Pleasure Principle

101                           Malmo-Levine’s related argument, that the pleasure of a large number of people should not be curtailed because of (he says) relatively minor harm to a minority, is similarly misplaced under s. 7 .  Utilitarian arguments that urge a cost-benefit calculation of alleged benefit to the many versus alleged harm to the few, to the extent such arguments are relevant under the Charter , belong in s. 1 .  The appellants must first of all establish a violation of their s. 7  rights.  Only if they are able to do so is the government then required to show that the purported limitation is demonstrably justified in a free and democratic society.

(d)   The “Harm Principle”

102                           The appellants contend that unless the state can establish that the use of marihuana is harmful to others, the prohibition against simple possession cannot comply with s. 7 .  Our colleague Arbour J. accepts this proposition as correct to the extent that “the state resorts to imprisonment” (para. 244).  Accordingly, a closer look at the alleged “harm principle” is called for.

103                           We should be clear about the direction of the appellants’ argument.  It is agreed by all parties that the existence of harm, especially harm to others, is a state interest sufficient to ground the exercise of the criminal law power.  The appellants’ contention, however, is that the absence of demonstrated harm to others deprives Parliament of the power to impose criminal liability.  That is what they call the “harm principle”.

104                           We think it right to state at the outset that we do not agree that the “harm principle” plays the essential role assigned to it by the appellants in testing the criminal law against the requirements of the Charter .  Further, with respect to our colleague’s focus on the availability (if not the imposition) of imprisonment for the simple possession of marihuana, we think the punishment debate is more appropriately addressed under s. 12  of the Charter  (“cruel and unusual treatment or punishment”), rather than under s. 7 , although clearly it has implications for both s. 7  and s. 1 , as will shortly be discussed.

105                           The British Columbia Court of Appeal also dealt with this case on the premise that the harm principle was a controlling principle under s. 7  of the Charter .  It is therefore appropriate that we deal with it in some detail. 

(i)    History and Definition of the Harm Principle

106                           What is the “harm principle”?  The appellants rely, in particular, on the writings of the liberal theorist, J. S. Mill, who attempted to establish clear boundaries for the permissible intrusion of the state into private life:

The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion.  That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection.  That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.  His own good, either physical or moral, is not a sufficient warrant. . . .  The only part of the conduct of any one, for which he is amenable to society, is that which concerns others.  In the part which merely concerns himself, his independence is, of right, absolute.  Over himself, over his own body and mind, the individual is sovereign.  [Emphasis added.]

(J. S. Mill, On Liberty and Considerations on Representative Government (1946), at pp. 8-9) 

107                           Thus Mill’s principle has two essential features.  First, it rejects paternalism — that is, the prohibition of conduct that harms only the actor.  Second, it excludes what could be called “moral harm”.  Mill was of the view that such moral claims are insufficient to justify use of the criminal law.  Rather, he required clear and tangible harm to the rights and interests of others.

108                           At the same time, Mill acknowledged an exception to his requirement of harm  “to others” for vulnerable groups.  He wrote that “this doctrine is meant to apply to human beings in the maturity of their faculties. . . .  Those who are still in a state to require being taken care of by others, must be protected against their own actions as well as against external injury” (p. 9).

109                           Mill’s statement has the virtues of insight and clarity but he was advocating certain general philosophic principles, not interpreting a constitutional document.  Moreover, even his philosophical supporters have tended to agree that justification for state intervention cannot be reduced to a single factor — harm — but is a much more complex matter.  One of Mill’s most distinguished supporters, Professor H. L. A. Hart, wrote:

Mill’s formulation of the liberal point of view may well be too simple.  The grounds for interfering with human liberty are more various than the single criterion of ‘harm to others’ suggests: cruelty to animals or organizing prostitution for gain do not, as Mill himself saw, fall easily under the description of harm to others.  Conversely, even where there is harm to others in the most literal sense, there may well be other principles limiting the extent to which harmful activities should be repressed by law.  So there are multiple criteria, not a single criterion, determining when human liberty may be restricted. [Emphasis added.]

(H. L. A. Hart, “Immorality and Treason”, originally appearing in The Listener (July 30, 1959), at pp. 162-63, reprinted in Morality and the Law (1971), 49, at p. 51)

To the same effect, see Professor J. Feinberg, The Moral Limits of the Criminal Law (1984), vol. 1:  Harm to Others, at p. 12; vol. 4:  Harmless Wrongdoing, at p. 323.

(ii)   Is the Harm Principle a Principle of Fundamental Justice?

110                           The appellants submit that the harm principle is a principle of fundamental justice for the purposes of s. 7  that operates to place limits on the type of conduct the state may criminalize.  This limitation exists independently of the division of powers under ss. 91  and 92  of the Constitution Act, 1867 .  In other words, the appellants contend that there is a double threshold.  Even if the Crown is able to establish that the creation of a particular criminal offence is a valid exercise of the criminal law power, there is a second level of constraint on the type of conduct that can be made criminal by virtue of s. 7  of the Charter .

111                           We agree that there is a form of “double threshold”, in that the Charter  imposes requirements that are separate from those imposed by ss. 91  and 92  of the Constitution Act, 1867 .  However, we do not agree with the attempted elevation of the harm principle to a principle of fundamental justice.  That is, in our view the harm principle is not the constitutional standard for what conduct may or may not be the subject of the criminal law for the purposes of s. 7 .

112                           In Re B.C. Motor Vehicle Act, supra, Lamer J. (as he then was) explained that the principles of fundamental justice lie in “the basic tenets of our legal system.  They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system” (p. 503).  This Court provided further guidance as to what constitutes a principle of fundamental justice for the purposes of s. 7 , in Rodriguez, supra, per Sopinka J. (at pp. 590-91 and 607): 

A mere common law rule does not suffice to constitute a principle of fundamental justice, rather, as the term implies, principles upon which there is some consensus that they are vital or fundamental to our societal notion of justice are required.  Principles of fundamental justice must not, however, be so broad as to be no more than vague generalizations about what our society considers to be ethical or moral.  They must be capable of being identified with some precision and applied to situations in a manner which yields an understandable result.  They must also, in my view, be legal principles.

                                                                   . . .

While the principles of fundamental justice are concerned with more than process, reference must be made to principles which are “fundamental” in the sense that they would have general acceptance among reasonable people.  [Emphasis added.]

113                           The requirement of “general acceptance among reasonable people” enhances the legitimacy of judicial review of state action, and ensures that the values against which state action is measured are not just fundamental “in the eye of the beholder only”:  Rodriguez, at pp. 607 and 590 (emphasis in original).  In short, for a rule or principle to constitute a principle of fundamental justice for the purposes of s. 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 or security of the person.

a.    Is the Harm Principle a Legal Principle?

114                           In our view, the “harm principle” is better characterized as a description of an important state interest rather than a normative “legal” principle.  Be that as it may, even if the harm principle could be characterized as a legal principle, we do not think that it meets the other requirements, as explained below.

b.    There Is No Sufficient Consensus that the Harm Principle Is Vital or Fundamental to Our Societal Notion of Criminal Justice

115                           Contrary to the appellants’ assertion, we do not think there is a consensus that the harm principle is the sole justification for criminal prohibition.  There is no doubt that our case law and academic commentary are full of statements about the criminal law being aimed at conduct that “affects the public”, or that constitutes “a wrong against the public welfare”, or is “injurious to the public”, or that “affects the community”.  No doubt, as stated, the presence of harm to others may justify legislative action under the criminal law power.  However, we do not think that the absence of proven harm creates the unqualified barrier to legislative action that the appellants suggest.  On the contrary, the state may sometimes be justified in criminalizing conduct that is either not harmful (in the sense contemplated by the harm principle), or that causes harm only to the accused.

116                           The appellants cite in aid of their position the observation of Sopinka J., writing for the majority in Butler, supra, that “[t]he objective of maintaining conventional standards of propriety, independently of any harm to society, is no longer justified in light of the values of individual liberty which underlie the Charter ” (p. 498).  However, Sopinka J. went on to clarify that it is open to Parliament to legislate “on the basis of some fundamental conception of morality for the purposes of safeguarding the values which are integral to a free and democratic society” (p. 493 (emphasis added)). 

117                           Several instances of crimes that do not cause harm to others are found in the Criminal Code, R.S.C. 1985, c. C-46 .  Cannibalism is an offence (s. 182 ) that does not harm another sentient being, but that is nevertheless prohibited on the basis of fundamental social and ethical considerations.  Bestiality (s. 160) and cruelty to animals (s. 446 ) are examples of crimes that rest on their offensiveness to deeply held social values rather than on Mill’s “harm principle”.

118                           A duel fought by consenting adults is an example of a crime where the victim is no less culpable than the perpetrator, and there is no harm that is not consented to, but the prohibition (s. 71 of the Code) is nevertheless integral to our ideas of civilized society.  See also R. v. Jobidon, [1991] 2 S.C.R. 714.  Similarly, in R. v. F. (R.P.) (1996), 105 C.C.C. (3d) 435, the Nova Scotia Court of Appeal upheld the prohibition of incest under s. 155  of the Criminal Code  despite a Charter  challenge by five consenting adults.  In none of these instances of consenting adults does the criminal law conform to Mill’s expression of the harm principle that “[o]ver himself, over his own body and mind, the individual is sovereign”, as referenced earlier at para. 106.

119                           Various jurists and commentators are said by the appellants to have endorsed the idea that harm is required, but we think that these sources, read in context, do not support the “harm principle” as defined by the appellants.

120                           One source relied on by the appellants — the writings of Sir James Fitzjames Stephen — illustrates this point.  Reference was made to Stephen’s statement that the criminal law

must be confined within narrow limits, and can be applied only to definite overt acts or omissions capable of being distinctly proved, which acts or omissions inflict definite evils, either on specific persons or on the community at large. 

(J. F. Stephen, A History of the Criminal Law of England (1883), vol. II, at pp. 78-79)

121                           However, Stephen himself was a prominent critic of Mill’s harm principle.  He believed that “immoral” behaviour can be a proper subject for the criminal law. Clearly, his reference to “evils” inflicted on the community includes the idea of moral harm, which Mill specifically excluded from the scope of his “harm principle”.  Stephen thus supported a much larger view of the legitimate purposes of the criminal law than is permitted by the appellants’ argument.

122                           The appellants also rely on a 1982 report by the Law Reform Commission of Canada entitled The Criminal Law in Canadian Society which concludes, at p. 45, that the criminal law “ought to be reserved for reacting to conduct that is seriously harmful”.  This seems, on its face, to support the harm principle.  However, the report goes on to state, at p. 45, that such harm

may be caused or threatened to the collective safety or integrity of society through the infliction of direct damage or the undermining of what the Law Reform Commission terms fundamental or essential values — those values or interests necessary for social life to be carried on, or for the maintenance of the kind of society cherished by Canadians.  [Emphasis added.]

Such a definition of “harm” is clearly contrary to Mill’s harm principle as endorsed by the appellants.

c.    Nor Is There Any Consensus that the Distinction Between Harm to Others and Harm to Self Is of Controlling Importance

123                           Our colleague Arbour J. takes the view that when the state wishes to make imprisonment available as a sanction for criminal conduct, it must  be able to show the potential of such conduct to cause harm to others (para. 244).  With respect, we do not think there is any such principle anchored in our law.  As this Court noted in Rodriguez, supra, attempted suicide was an offence under Canadian criminal law (found in the original Code at s. 238) until its repeal by S.C. 1972, c. 13, s. 16.  Sopinka J. emphasized, at p. 597, that

the decriminalization of attempted suicide cannot be said to represent a consensus by Parliament or by Canadians in general that the autonomy interest of those wishing to kill themselves is paramount to the state interest in protecting the life of its citizens.

The offence of attempted suicide was removed from the Criminal Code  because Parliament came to prefer other ways of addressing the problem of suicide.  In that case, as here, there was an important distinction between constitutional competence, which is for the courts to decide, and the wisdom of a particular measure, which, within its constitutional sphere, is up to Parliament.

124                           Putting aside, for the moment, the proper approach to the appropriateness of imprisonment (which, as stated, we think should be addressed under s. 12  rather than s. 7 ), we do not accept the proposition that there is a general prohibition against the criminalization of harm to self.  Canada continues to have paternalistic laws.  Requirements that people wear seatbelts and motorcycle helmets are designed to “save people from themselves”.  There is no consensus that this sort of legislation offends our societal notions of justice.  Whether a jail sentence is an appropriate penalty for such an offence is another question.  However,  the objection in that aspect goes to the validity of an assigned punishment — it does not go to the validity of prohibiting the underlying conduct.

125                           A recent discussion policy paper from the Law Commission of Canada entitled What is a Crime? Challenges and Alternatives (2003) highlights the difficulties in distinguishing between harm to others and harm to self.  It notes that “in a society that recognizes the interdependency of its citizens, such as universally contributing to healthcare or educational needs, harm to oneself is often borne collectively” (p. 17).

126                           In short, there is no consensus that tangible harm to others is a necessary precondition to the creation of a criminal law offence.

d.    The Harm Principle Is Not a Manageable Standard Against Which to Measure Deprivation of Life, Liberty or Security of the Person

127                           Even those who agree with the “harm principle” as a regulator of the criminal law frequently disagree about what it means and what offences will meet or offend the harm principle.  In the absence of any agreed definition of “harm” for this purpose, allegations and counter-allegations of non-trivial harm can be marshalled on every side of virtually every criminal law issue, as one author explains:

The harm principle is effectively collapsing under the weight of its own success.  Claims of harm have become so pervasive that the harm principle has become meaningless:  the harm principle no longer serves the function of a critical principle because non-trivial harm arguments permeate the debate.  Today, the issue is no longer whether a moral offense causes harm, but rather what type and what amount of harms the challenged conduct causes, and how the harms compare.  On those issues, the harm principle is silent. [Emphasis in original.]

(B. E. Harcourt, “The Collapse of the Harm Principle” (1999), 90 J. Crim. L. & Criminology 109, at p. 113)

Professor Harcourt goes on to point out that it is the “hidden normative dimensions . . . [that] do the work in the harm principle, not the abstract, simple notion of harm”  (p. 185).  In other words, the existence of harm (however defined) does no more than open a gateway to the debate; it does not give any precise guidance about its resolution.

128                           Harm, as interpreted in the jurisprudence, can take a multitude of forms, including economic, physical and social (e.g., injury and/or offence to fundamental societal values). In the present appeal, for example, the respondents put forward a list of “harms” which they attribute to marihuana use.  The appellants put forward a list of “harms” which they attribute to marihuana prohibition.  Neither side gives much credence  to the “harms” listed by the other.  Each claims the “net” result to be in its favour.  

129                           In the result, we do not believe that the content of the “harm” principle as described by Mill and advocated by the appellants provides a manageable standard under which to review criminal or other laws under s. 7  of the Charter .  Parliament, we think, is entitled to act under the criminal law power in the protection of legitimate state interests other than the avoidance of harm to others, subject to Charter  limits such as the rules against arbitrariness, irrationality and gross disproportionality, discussed below. 

(iii)  “Avoidance of Harm” Is Nevertheless a Valid State Interest

130                           While we do not agree with the courts below that the “harm principle” is a principle of fundamental justice, there is nevertheless a state interest in the avoidance of harm to those subject to its laws which may justify parliamentary action. 

131                           In other words, avoidance of harm is a “state interest” within the rule against arbitrary or irrational state conduct mentioned in Rodriguez, supra, at p. 594, previously cited, 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 to me that a breach of fundamental justice will be made out, as the individual’s rights will have been deprived for no valid purpose.  [Emphasis added.]

132                           The conclusion that the state has a particular interest in acting to protect vulnerable groups is also consistent with Charter  jurisprudence affirming the state’s power to intervene to protect children whose lives are in jeopardy and to promote their well-being:  New Brunswick (Minister of Health and Community Services) v. G. (J.),  [1999] 3 S.C.R. 46, at para. 70; B. (R.), supra, at para. 88 (per La Forest J.).

133                           We do not agree with Prowse J.A. that harm must be shown to the court’s satisfaction to be “serious” and “substantial” before Parliament can impose a prohibition.  Once it is demonstrated, as it has been here, that the harm is not de minimis, or in the words of Braidwood J.A., the harm is “not [in]significant or trivial”, the precise weighing and calculation of the nature and extent of the harm is Parliament’s job.  Members of Parliament are elected to make these sorts of decisions, and have access to a broader range of information, more points of view, and a more flexible investigative process than courts do.  A “serious and substantial” standard of review would involve the courts in micromanagement of Parliament’s agenda.  The relevant constitutional control is not micromanagement but the general principle that the parliamentary response must not be grossly disproportionate to the state interest sought to be protected, as will be discussed.

134                           Having said that, our understanding of the view taken of the facts by the courts below is that while the risk of harm to the great majority of users can be characterized at the lower level of “neither trivial nor insignificant”, the risk of harm to members of the vulnerable groups reaches the higher level of “serious and substantial”.  This distinction simply underlines the difficulties of a court attempting to quantify “harm” beyond a de minimis standard.

(iv)  In Light of the State Interest Thus Identified, the Prohibition Is Neither Arbitrary nor Irrational

135                           A criminal law that is shown to be arbitrary or irrational will infringe s. 7 :  R. v. Arkell, [1990] 2 S.C.R. 695, at p. 704; R. v. Hamon (1993), 85 C.C.C. (3d) 490 (Que. C.A.), at p. 492.  Our colleagues LeBel and Deschamps JJ. consider the marihuana prohibition to be disproportionate to the societal problems at issue, and, thus arbitrary.  This, we think, puts the threshold of judicial intervention too low.  LeBel J. writes that “it cannot be denied that marihuana can cause problems of varying nature and severity to some people or to groups of them” (para. 280).  That being the case, we think the Charter  allows Parliament a broad, though certainly not unlimited, legislative capacity to respond.  Marihuana is a psychoactive drug whose “use causes alteration of mental function” according to the trial judge.  This alteration creates a 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 diseases such as cardiovascular diseases, respiratory diseases, schizophrenia or other drug dependencies.  These findings of fact disclose a sufficient state interest to support Parliament’s intervention should Parliament decide that it is wise to continue to do so, subject to a constitutional standard of gross disproportionality, discussed below.

136                           The criminalization of possession is a statement of society’s collective disapproval of the use of a psychoactive drug such as marihuana (Morgentaler, supra, at p. 70), and, through Parliament, the continuing view that its use should be deterred.  The prohibition is not arbitrary but is rationally connected to a reasonable apprehension of harm.  In particular, criminalization seeks to take marihuana out of the hands of users and potential users, so as to prevent the associated harm and to eliminate the market for traffickers.  In light of these findings of fact it cannot be said that the prohibition on marihuana possession is arbitrary or irrational, although the wisdom of the prohibition and its related penalties is always open to reconsideration by Parliament itself.

137                           It is true that Parliament can and has directly addressed some of the potential harmful conduct elsewhere in the Criminal Code .  Section 253 , for example, prohibits driving while impaired.  One type of legal control to prevent harm does not logically oust other potential forms of legal control, subject as always to the limitation of gross disproportionality discussed below.

138                           The appellants also contend that Parliament’s failure to criminalize the consumption of alcohol and tobacco, while criminalizing the use of marihuana (which the appellants say is, if anything, less harmful) shows the arbitrariness of the law.  It is clear that the consumption of alcohol and tobacco can be harmful.  Moreover in some respects the harm is of a type comparable to that caused by marihuana consumption.  Much of the bronchial harm associated with marihuana, for instance, comes from the smoking aspect rather than its intoxicating properties.

139                           However, if Parliament is otherwise acting within its jurisdiction by enacting a prohibition on the use of marihuana, it does not lose that jurisdiction just because there are other substances whose health and safety effects could arguably justify similar legislative treatment.  To hold otherwise would involve the courts in not only defining the outer limits of the legislative action allowed by the Constitution but also in ordering Parliament’s priorities within those limits.  That is not the role of the courts under our constitutional arrangements.

140                           Parliament may, as a matter of constitutional law, determine what is not criminal as well as what is.  The choice to use the criminal law in a particular context does not require its use in any other:  RJR-MacDonald, supra, at para. 50.  Parliament’s decision to move in one area of public health and safety without at the same time moving in other areas is not, on that account alone, arbitrary or irrational.

(v)   The Allegation of Disproportionality

141                           Having rejected the appellants’ contention that Parliament is without authority to criminalize conduct unless it causes harm to others, as well as their claim that criminalization of marihuana is arbitrary and irrational, we proceed to the next level of their argument, namely that even if it is not arbitrary and irrational, criminalization is nevertheless disproportionate to any threat posed by marihuana use.

142                           In Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1, at para. 47, the Court accepted that the means taken to achieve an objective can be so disproportionate to the desired end so as to offend the principles of fundamental justice:

Determining whether deportation to torture violates the principles of fundamental justice requires us to balance [under s. 7 ] Canada’s interest in combatting terrorism and the Convention refugee’s interest in not being deported to torture.  Canada has a legitimate and compelling interest in combatting terrorism.   But it is also committed to fundamental justice.  The notion of proportionality is fundamental to our constitutional system.  Thus we must ask whether the government’s proposed response is reasonable in relation to the threat.  In the past, we have held that some responses are so extreme that they are per se disproportionate to any legitimate government interest: see Burns, supra.  We must ask whether deporting a refugee to torture would be such a response.  [Emphasis added.]

See also United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7, at para. 78.

143                           In short, after it is determined that Parliament acted pursuant to a legitimate state interest, the question can still be posed under s. 7  whether the government’s legislative measures in response to the use of marihuana were, in the language of Suresh, “so extreme that they are per se disproportionate to any legitimate government interest” (para. 47 (emphasis added)).  As we explain below, the applicable standard is one of gross disproportionality, the proof of which rests on the claimant.

144                           The aspect of proportionality of interest to the appellants is the alleged lack of proportionality between the contribution of the marihuana prohibition to public health and safety (the appellants say the prohibition is so ineffective that it contributes little) and the adverse effects on persons subject to the prohibition, including those who are charged and convicted of the offence (the appellants say the adverse effects are severe and lasting).  The relevant effects include those that relate to the life, liberty or security of an individual, and that are the product of the state action complained of.

145                           We have already rejected Mr. Malmo-Levine’s “pleasure principle” on the basis that depriving the general user of the freedom to smoke “pot” is not the violation of a freestanding constitutional right.  We turn now to the effects of the criminalization of marihuana possession on accused persons.

3.    The Availability of Imprisonment

146                           Although this issue belongs to the s. 7  analysis, we wish to highlight its importance here to address our disagreement with Arbour J., for whom the availability of imprisonment is the controlling consideration (paras. 216, 244, 256 and 257).

147                           Our colleague writes at para. 257:

While the cases referred to by my colleagues clearly illustrate the state’s interest in the protection of vulnerable groups from others who might harm them, they are far from suggesting that it is the vulnerable ones who should be sent to jail for their self-protection.  Implicit in my colleagues’ argument is that the state would be justified in threatening with imprisonment adolescents with a history of poor school performance, women of childbearing age and persons with pre-existing diseases such as cardiovascular diseases, respiratory diseases, schizophrenia and other drug dependencies, who are at particular risk of harming themselves by using marihuana.  I do not think that an exception to the harm principle is justified to allow the state to threaten with imprisonment vulnerable people in order to prevent them from harming themselves.

148                           We disagree with our colleague’s view that it is unconstitutional for the state to attempt to deter vulnerable people from self-harm by criminalization of the harmful conduct backed up, where appropriate, by the “threat” of imprisonment.  We disagree with the premise that vulnerable people of the sort she describes are in fact threatened with jail, or that imposition of a jail term in the circumstances she envisages would be upheld as a fit sentence or a constitutional sentence. 

149                           A finding that a particular form of penalty violates s. 12  may call for a constitutional remedy in relation to the penalty, but leave intact the criminalization of the conduct, which may still be constitutionally punishable by an alternative form of penalty.

150                           Braidwood J.A., too, rested his analysis on the availability of imprisonment.  He found that “it is common sense that you don’t go to jail unless there is a potential that your activities will cause harm to others” (para. 134).  The appellant in Clay, supra, released concurrently, similarly argued at para. 25 of his factum that “[w]hile a reasonable apprehension of a ‘not insignificant’ or ‘not trivial’ harm may suffice to justify a regulatory prohibition on the personal and private consumption of a substance, it is not constitutionally adequate for justifying the use of incarceration and the imposition of a criminal record to deter such consumption” (emphasis added).  We agree with the observation that the operative concept here is the use of incarceration, not the availability of incarceration.

151                           In addition to the possible penalty of imprisonment, the appellants highlight a number of other consequences of being charged and convicted for possession of marihuana, including the effects of having a criminal record, the cost of mounting a defence, and the potential adverse impact on education and job prospects (even prior to trial, and whether or not a conviction results).  They submit that these harms to the individual accused are disproportionate to any societal interest served by the (largely ineffective) suppression of marihuana use.  

152                           As the appellants’ principal argument on this branch of the case relates to the availability of imprisonment, we will turn first to that issue.

(a)   No Mandatory Minimum Sentence

153                           Possession of marihuana carries no minimum sentence. However, the general framework of the NCA permits imprisonment, and marihuana is one of the scheduled drugs.  The prescription of sentencing options by Parliament reflects its view of the seriousness of the offence, and is ordinarily taken into consideration by the sentencing judge.

154                           Imprisonment is imposed by the courts for simple possession only in exceptional circumstances.  Our colleague Arbour J. writes, as mentioned earlier, about threatening with jail underachieving school age adolescents, women of childbearing age and the mentally afflicted, but the cases show that this analysis rests on a faulty premise.  In most possession cases, offenders (whether vulnerable or not) receive discharges or conditional sentences.  This is particularly true where the amounts of marihuana involved are small and for recreational uses, where the usual sentence is a conditional discharge.  See, e.g., C. C. Ruby and D. L. Martin, Criminal Sentencing Digest (loose‑leaf), 30§320, at p. 1251; R. v. Fleming (1992), 21 W.A.C. 79 (B.C.C.A.); R. v. Culley (1977), 36 C.C.C. (2d) 433 (Ont. C.A.).

155                           The reality is this.  There is no impediment (such as a mandatory minimum sentence) to a trial judge imposing a fit sentence after a conviction for simple possession of marihuana.  The “availability” of imprisonment in respect of the scheduled drugs under the NCA is part of a statutory framework for dealing with drugs generally and is not specifically directed at marihuana.  The case law discloses that it is only in the presence of aggravating circumstances, not likely to be present in the situation of the “vulnerable persons” referred to by our colleague, where a court has been persuaded that imprisonment for simple possession of marihuana was, in the particular case, a fit sentence.

156                           In R. v. Dauphinee (1984), 62 N.S.R. (2d) 156 (S.C. App. Div.), a three-month sentence of imprisonment for simple possession of one ounce of marihuana was upheld on appeal because the offender had five prior narcotics possession offences and the trial judge noted that the accused showed no signs of amending his conduct.  Prison sentences are also occasionally handed out where an individual has been sentenced for a more serious drug offence.  See, e.g., R. v. Witter, [1997] O.J. No. 2248 (QL) (Gen. Div.) (six-month sentence for possession of marihuana to be served concurrently with three-year sentence for trafficking in cocaine; accused had nine prior narcotics convictions); R. v. Coady (1994), 24 W.C.B. (2d) 459 (Nfld. S.C.T.D.) (sentenced to 14 days’ imprisonment for possession of 70 grams of marihuana to be served concurrently with nine-month sentence for possession of hashish with intent to traffic); R. v. Richards (1989), 88 N.S.R. (2d) 425 (S.C. App. Div.) (four-month sentence for possession of 113.5 grams of marihuana to be served concurrently with a sentence of one year for possession of 15 grams of cocaine, plus one year’s probation; respondent had six prior narcotics-related convictions; the court noted his behaviour endangered the safety of his family and no leniency was warranted in light of his recidivism).  In addition, some incarcerations associated with possession offences result from the failure to pay fines, or where the Crown has agreed to permit a plea bargain for a lesser included offence.  See B. A. MacFarlane, R. J. Frater and C. Proulx, Drug Offences in Canada (3rd ed. (loose-leaf)), at p. 29-20.

157                           It is no doubt true that in an earlier era judges may have resorted to imprisonment more frequently than would be considered acceptable under the Charter , but the argument here is a post-Charter  argument.  It asks whether the marihuana prohibition can be — and is required to be — applied consistently with the Charter .  In our view, the answer to both questions is yes.

158                           First, as mentioned above, we believe that the issue of punishment should be approached in light of s. 12  of the Charter  (which protects against “cruel and unusual treatment or punishment”), and, in that regard, the constitutional standard is one of gross disproportionality.  Second, in our opinion, the lack of any mandatory minimum sentence together with the existence of well-established sentencing principles mean that the mere availability of imprisonment on a marihuana charge cannot, without more, violate the principle against gross disproportionality. 

(b)   The Section 12  Standard — Gross Disproportionality

159                           The standard set out in s. 12  of the Charter  sheds light on the requirements of s. 7 .  As Lamer J. explained in Re B.C. Motor Vehicle Act, supra, ss. 8  to 14  of the Charter  may be seen as specific illustrations of the principles of fundamental justice in s. 7 .  While proportionality “is the essence of a s. 12  analysis” (R. v. Morrisey, [2000] 2 S.C.R. 90, 2000 SCC 39, at para. 44), the constitutional standard is gross disproportionality.  As the majority explained in Morrisey (at para. 26) :

Where a punishment is merely disproportionate, no remedy can be found under s. 12 . Rather, the court must be satisfied that the punishment imposed is grossly disproportionate for the offender, such that Canadians would find the punishment abhorrent or intolerable.  [First emphasis added; second emphasis in original.]

See R. v. Smith, [1987] 1 S.C.R. 1045, per Lamer J., at p. 1072:

The test for review under s. 12  of the Charter  is one of gross disproportionality, because it is aimed at punishments that are more than merely excessive. We should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation, and should leave to the usual sentencing appeal process the task of reviewing the fitness of a sentence.  [Emphasis added.]

See also Steele v. Mountain Institution, [1990] 2 S.C.R. 1385, at p. 1417:  “The test for determining whether a sentence is disproportionately long is very properly stringent and demanding.  A lesser test would tend to trivialize the Charter ”.  See also R. v. Latimer, [2001] 1 S.C.R. 3, 2001 SCC 1, at para. 77.

160                           Is there then a principle of fundamental justice embedded in s. 7  that would give rise to a constitutional remedy against a punishment that does not infringe s. 12 ?  We do not think so.  To find that gross and excessive disproportionality of punishment is required under s. 12  but a lesser degree of proportionality suffices under s. 7  would render incoherent the scheme of interconnected “legal rights” set out in ss. 7  to 14  of the Charter  by attributing contradictory standards to ss. 12  and 7  in relation to the same subject matter.  Such a result, in our view, would be unacceptable.

161                           Accordingly, even if we were persuaded by our colleague Arbour J. that punishment should be considered under s. 7  instead of s. 12 , the result would remain the same.  In both cases, the constitutional standard is gross disproportionality.  In neither case is the standard met.

162                           Further, even if the penalty of imprisonment were found to violate the gross disproportionality standard, the constitutional remedy would have to address the range of available penalties rather than the decriminalization of the underlying conduct of marihuana possession.

(c)   Proportionality in Sentencing

163                           At this point, we turn from the Charter  to the Criminal Code , in which Parliament has made the idea of proportionality central to the principles of sentencing.  Section 718.1  of the Criminal Code  provides that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” The importance of proportionality in punishment has been discussed on several occasions by this Court. See, for instance, R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5, at para. 82, where Lamer C.J., writing for the Court, referred to “the fundamental principle of sentencing, which provides that a sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender”.  See also R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18, at para. 18; R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 40; and Re B.C. Motor Vehicle Act, supra, per Wilson J. (concurring), at p. 533.

164                           The requirement of proportionality in sentencing undermines rather than advances the appellants’ argument.  There is no need to turn to the Charter  for relief against an unfit sentence.  If imprisonment is not a fit sentence in a particular case it will not be imposed, and if imposed, it will be reversed on appeal.

165                           There is no plausible threat, express or implied, to imprison accused persons — including vulnerable ones — for whom imprisonment is not a fit sentence.

166                           On another branch of the imprisonment argument, our colleague Arbour J. argues that it is unconstitutional for the state to attempt to 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 (para. 258).  In our view, with respect, this proposition is too broadly stated.  In the present context, as previously noted, the evidence shows that it is not possible generally to distinguish in advance the general population from its more vulnerable members.  Chronic users emerge from unexpected sources.  If our colleague is correct, the impossibility of precise identification of “chronic users” in advance would incapacitate Parliament from taking any action at all to help those in need of its protection, a proposition we do not accept.  Further, we do not agree with our colleague that it is a straightforward matter to distinguish between harm to self and harm to others.  We noted earlier the recent comment of the Law Commission of Canada that “in a society that recognizes the interdependency of its citizens, such as universally contributing to healthcare or educational needs, harm to oneself is often borne collectively” (p. 17). 

167                           We agree with the appellants that imprisonment would ordinarily be an unfit sentence for a conviction on simple possession of marihuana. We disagree, however, that this observation gives rise to a finding of unconstitutionality. Rather, it gives rise, in appropriate circumstances, to an ordinary sentence appeal.

168                           In the result, where there is no minimum mandatory sentence, the mere availability of imprisonment on a charge of marihuana possession does not violate the s. 7  principle against gross disproportionality.  There are circumstances, as noted, where imprisonment would constitute a fit sentence.

4.    A More General Principle of Disproportionality

169                           As stated, the proportionality argument made by the appellants is broader than the mere disproportionality of penalty.  They are correct to point out that interaction by an accused with the criminal justice system brings with it a number of consequences, not least among them the possibility of a criminal record.  We agree that the proportionality principle of fundamental justice recognized in Burns and Suresh is not exhausted by its manifestation in s. 12 .  The content of s. 7  is not limited to the sum of ss. 8  to 14  of the Charter .  See, for instance, R. v. Hebert, [1990] 2 S.C.R. 151; Thomson Newspapers, supra.  We thus accept that the principle against gross disproportionality under s. 7  is broader than the requirements of s. 12  and is not limited to a consideration of the penalty attaching to conviction.  Nevertheless the standard under s. 7 , as under s. 12 , remains one of gross disproportionality.  In other words, if the use of the criminal law were shown by the appellants to be grossly disproportionate in its effects on accused persons, when considered in light of the objective of protecting them from the harm caused by marihuana use, the prohibition would be contrary to fundamental justice and s. 7  of the Charter .

170                           In this respect, the appellants urge three factors.  Firstly, they point to the adverse consequences to the individual accused other than imprisonment.  Secondly, they suggest that the relative ineffectiveness of the ban shows that the prohibition only marginally advances the interest of the state, and that this should facilitate a judicial finding of gross disproportionality. Thirdly, and more generally, the appellants state that the salutary effects of the law are vastly outweighed by the deleterious effects. 

171                           We address these three aspects of the appellants’ disproportionality argument in turn.

(a)   The Consequences to the Individual Other Than Imprisonment

172                           In addition to the possibility of imprisonment, the appellants refer to harms flowing from having a criminal record.  At para. 26 of their Joint Statement of Legislative Facts, they state:

The impact of criminal convictions on the futures of young Canadians has historically been identified as one of the most serious social harms generated by the criminal prohibition of cannabis. Upon being charged, tremendous costs are incurred during the pre-trial period, costs which tend to have a much more dramatic impact on young people. Most of the young people charged with cannabis offences are on the low end of the socioeconomic scale and, thus, for them the financial burden is particularly onerous. Once a person is found guilty of a cannabis charge, s/he must confront the additional adverse effects associated with having a criminal record for such an offence. 

There is no doubt that having a criminal record has serious consequences.  The legislative policy embodied in the NCA is that a conviction for the possession of marihuana should  have serious consequences.  Therein lies the deterrent effect of the prohibition.  The wisdom of this policy is, as mentioned, under review by Parliament.  It appears that this review has been prompted, in part, by a recognition of the significant effects of being involved in the criminal justice system.  For instance, background information from Health Canada states:

[B]eing prosecuted and convicted in a criminal court bears a stigma that can have far-reaching consequences in an individual’s life in such areas as job choices, travel and education.  Participating in the criminal court process can also involve personal upheaval.

Health Canada.  Information: Cannabis Reform Bill, May 2003.

173                           However, the question before us is not whether Parliament should change its policy but whether it is required by the Constitution to do so.  As Dickson C.J. commented in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, at p. 1142:  “The issue is not whether the legislative scheme is frustrating or unwise but whether the scheme offends the basic tenets of our legal system.”

174                           On this branch of the case the Court can only ask whether the effects on the accused are so grossly disproportionate that they render the prohibition contrary to s. 7  of the Charter .  Once it is determined that Parliament acted pursuant to a valid state interest in attempting to suppress the use for recreational purposes of a particular psychoactive drug, and given the findings of harm flowing from marihuana use, already discussed, we do not think that the consequences in this case trigger a finding of gross disproportionality.  Firstly, the consequences are largely the product of deliberate disobedience to the law of the land.  In his factum, Malmo-Levine speaks of “mass civil disobedience”.  He writes (at para. 10):

The glaring hypocrisy of the war on “some” drugs, and the obvious effectiveness of cannabis will ensure users are never going to back down, and that we intend to out-grow the “low-functioning” stigma foisted upon us and assume our rightful place as the “mellow and imaginative” section of society.

This may be so, but evaluation of adverse effects has to take the nature of this political confrontation into account.  Secondly,  if the court imposes a sentence on conviction that is no more than a fit sentence, which it is required to do, the other adverse consequences are really associated with the criminal justice system in general rather than this offence in particular.  In any system of criminal law there will be prosecutions that turn out to be unfounded, publicity that is unfairly adverse, costs associated with a successful defence, lingering and perhaps unfair consequences attached to a conviction for a relatively minor offence by other jurisdictions, and so on.  These effects are serious but they are part of the social and individual costs of having a criminal justice system.  Whenever Parliament exercises its criminal law power, such costs will arise.  To suggest that such “inherent” costs are fatal to the exercise of the power is to overshoot the function of s. 7 .

175                           We agree that the effects on an accused person of the criminalization of marihuana possession are serious.  They are the legitimate subject of public controversy.  They will undoubtedly be addressed in parliamentary debate.  Applying a standard of gross disproportionality however, it is our view that the effects on accused persons of the present law, including the potential of imprisonment, fall within the broad latitude within which the Constitution permits legislative action. 

(b)   Ineffectiveness of the Prohibition of Marihuana

176                           The appellants next argue that the adverse effects on accused persons of the prohibition on possession are grossly disproportionate to any legitimate state interest because the prohibition is simply ineffective.  It contributes virtually nothing to advancing the state interest in preventing the use of marihuana.  Reliance is placed in this regard on the view of the trial judge in Caine who stated:  “Thus, in Canada, it would appear that the variations in consumption rates noted above (in particular, the decline in consumption since 1969) have occurred with no apparent statistical relationship to any increase or decrease in the severity of the law or its application” (para. 57).  Also, at para. 62:  “It is a fair and common sense conclusion that marihuana consumption would increase upon legalization, thereby leading to an increase in the absolute number of chronic users and vulnerable persons adversely affected by the drug.  However, it is impossible to conclude, from the evidence before me, whether this increase would be substantial, moderate, or negligible.”

177                           This Court has exercised caution in accepting arguments about the alleged ineffectiveness of legal measures:  see Reference re Firearms Act (Can.), supra, where the Court held that “[t]he efficacy of a law, or lack thereof, is not relevant to Parliament’s ability to enact it under the division of powers analysis” (para. 57).  While somewhat different considerations come into play under a Charter  analysis, it remains important that some deference be accorded to Parliament in assessing the utility of its chosen responses to perceived social ills. 

178                           Questions about which types of measures and associated sanctions are best able to deter conduct that Parliament considers undesirable is a matter of legitimate ongoing debate.  The so-called “ineffectiveness” is simply another way of characterizing the refusal of people in the appellants’ position to comply with the law.  It is difficult to see how that refusal can be elevated to a constitutional argument against validity based on the invocation of fundamental principles of justice.  Indeed, it would be inconsistent with the rule of law to allow compliance with a criminal prohibition to be determined by each individual’s personal discretion and taste.

(c)   The Balance of Salutary and Deleterious Effects

179                           Finally, the appellants say that the prohibition is disproportionate to the state’s interest because its negative consequences are grossly disproportionate to its positive features, if any.

180                           In this connection, Braidwood J.A. reproduced a summary of the evidence of harm to society resulting from the prohibition itself including disrespect for the law among those who disagree with it; distrust of health and educational authorities who have “promoted false and exaggerated allegations about marihuana”; lack of communication between youth and their elders about the use of marihuana; risks from involvement with criminals and hard-drug users; lack of governmental control over drug quality; “the creation of a lawless sub-culture”; financial costs associated with enforcing the law; and “the inability to engage in meaningful research into the properties, effects and dangers of the drug, because possession of the drug is unlawful” (para. 28).

181                           In effect, the exercise undertaken by Braidwood J.A. was to balance the law’s salutary and deleterious effects.  In our view, with respect, that is a function that is more properly reserved for s. 1 .  These are the types of social and economic harms that generally have no place in s. 7 .

182                           The appellants were correct to criticize the government’s attempted wholesale importation of “societal interests” from s. 1  to s. 7  to try to support the constitutional validity of the prohibition.  In our view, the appellants should equally be stopped from importing the “salutary/deleterious” effects balance from s. 1  in order to try to justify the opposite conclusion. 

183                           As, in our view, the appellants have not established an infringement of s. 7 , there is no need to call on the government for a s. 1  justification.

F.      Section 15  of the Charter 

184                           The appellant Malmo-Levine makes the additional argument that the criminalization of marihuana constitutes a breach of s. 15  of the Charter .  He posits that marihuana users have a “substance orientation” which is a personal characteristic analogous to other s. 15  grounds such as sexual orientation:  Vriend v. Alberta, [1998] 1 S.C.R. 493.  He further submits that s. 15  is meant to protect individuals who have experienced persecution for activities that are not inherently harmful to society, and in the appellant Malmo-Levine’s view, cannabis use is simply “harmless hedonis[m]”. 

185                           A taste for marihuana is not a “personal characteristic” in the sense required to trigger s. 15  protection:  Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.  As Malmo-Levine argues elsewhere, it is a lifestyle choice. It bears no analogy with the personal characteristics listed in s. 15 , namely race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.  It would trivialize this list to say that “pot” smoking is analogous to gender or religion as a “deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs”:  Egan v. Canada, [1995] 2 S.C.R. 513, at para. 5; Vriend, supra, at para. 90.  Malmo-Levine’s equality claim therefore fails at the first hurdle of the requirements set out in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497.  The true focus of s. 15  is “to remedy or prevent discrimination against groups subject to stereotyping, historical disadvantage and political and social prejudice in Canadian society”:  Swain, supra, at p. 992, per Lamer C.J.; and Rodriguez, supra, at p. 616.  To uphold Malmo-Levine’s argument for recreational choice (or lifestyle protection) on the basis of s. 15  of the Charter  would simply be to create a parody of a noble purpose.

VI.   Conclusion

186                           For these reasons, it is our view that the Charter  challenges must fail and that the appeals should be dismissed.

187                           The constitutional questions in the Malmo-Levine appeal should therefore be answered as follows:

1.    Does prohibiting possession of Cannabis (marihuana) for the purpose of trafficking under s. 4(2) of the Narcotic Control Act, R.S.C. 1985, c. N-1, by reason of the inclusion of this substance in s. 3 of the Schedule to the Act (now s. 1 , Schedule II, Controlled Drugs and Substances Act, S.C. 1996, c. 19 ), infringe s. 7  of the Canadian Charter of Rights and Freedoms ?

Answer:  No.

2.    If the answer to Question 1 is in the affirmative, is the infringement justified under s. 1  of the Charter ?

Answer:  It is unnecessary to answer this question.

3.    Does prohibiting possession of Cannabis (marihuana) for the purpose of trafficking under s. 4(2) of the Narcotic Control Act, R.S.C. 1985, c. N-1, by reason of the inclusion of this substance in s. 3 of the Schedule to the Act (now s. 1 , Schedule II, Controlled Drugs and Substances Act, S.C. 1996, c. 19 ), infringe s. 15(1)  of the Charter  by discriminating against a certain group of persons on the basis of their substance orientation, occupation orientation, or both?

Answer:  No.

4.    If the answer to Question 3 is in the affirmative, is the infringement justified under s. 1  of the Charter ?

Answer:  It is unnecessary to answer this question.

188                           The constitutional questions in the Caine appeal should be answered as follows:

                   1.    Does prohibiting possession of Cannabis (marihuana) for personal use under s. 3(1) of the Narcotic Control Act, R.S.C. 1985, c. N-1, by reason of the inclusion of this substance in s. 3 of the Schedule to the Act (now s. 1 , Schedule II, Controlled Drugs and Substances Act, S.C. 1996, c. 19 ), infringe s. 7  of the Canadian Charter of Rights and Freedoms ?

Answer: No.

2.    If the answer to Question 1 is in the affirmative, is the infringement justified under s. 1  of the Charter ?

Answer:  It is unnecessary to answer this question.

3.    Is the prohibition on the possession of Cannabis (marihuana) for personal use under s. 3(1) of the Narcotic Control Act, R.S.C. 1985, c. N-1, by reason of the inclusion of this substance in s. 3 of the Schedule to the Act (now s. 1 , Schedule II, Controlled Drugs and Substances Act, S.C. 1996, c. 19 ), within the legislative competence of the Parliament of Canada as being a law enacted for the peace, order and good government of Canada pursuant to s. 91  of the Constitution Act, 1867 ; as being enacted pursuant to the criminal law power in s. 91(27)  thereof; or otherwise?

Answer:  Yes.

The following are the reasons delivered by

189                           Arbour J. (dissenting in Caine)  — The appeal of the appellant Caine calls into question the constitutionality of the provisions prohibiting possession of cannabis (marihuana) for personal use.  The provisions are attacked on the ground that they are not within the legislative competence of the Parliament of Canada and that they infringe s. 7  of the Canadian Charter of Rights and Freedoms .  In addition to challenging the prohibition on simple possession, the appellant Malmo-Levine also challenges the prohibition of possession of marihuana for the purpose of trafficking on the ground that it infringes ss. 7  and 15  of the Charter .  The case of the appellant Clay (R. v. Clay, [2003] 3 S.C.R. 735, 2003 SCC 75), on appeal from the decision of the Court of Appeal for Ontario ((2000), 49 O.R. (3d) 577), was heard together with the cases of the appellants Caine and Malmo-Levine, on appeal from the decision of the Court of Appeal of British Columbia ((2000), 138 B.C.A.C. 218, 2000 BCCA 335).  The Clay appeal raises issues identical to the Caine appeal and is based on similar findings of fact.  Therefore, I will address all three appeals in these reasons and refer to the findings of the courts below in Ontario and in British Columbia.

190                           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.  In a landmark 1985 case, Lamer J. (as he then was) 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 s. 7  of the Charter ” (Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 492 (“Motor Vehicle Reference”)).  In my view, a “person who has not really done anything wrong” is a person whose conduct caused little or no reasoned risk of harm or whose harmful conduct was not his or her fault.  Therefore, for the reasons that follow,  I am of the view that s. 7  of the Charter  requires not only that some minimal mental element be an essential element of any offence punishable by imprisonment, but also that the prohibited act be harmful or pose a risk of harm to others.  A law that has the potential to convict a person whose conduct causes little or no reasoned risk of harm to others 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 s. 7  of the Charter .  Imprisonment can only be used to punish blameworthy conduct that is harmful to others.

I.     The Facts and the Proceedings

191                           My colleagues Justices Gonthier and Binnie have referred to the salient facts.  The adjudicative facts of each case are not in dispute and my colleagues have aptly summarized them.  I propose to simply highlight what I consider essential to the disposition of these appeals, most of which is contained in the findings of fact of the trial judges with respect to the harms associated with marihuana use.   My colleagues have also referred to recent studies and recent parliamentary reports on the effects of the use of marihuana.  The conclusions and recommendations in these new documents are similar to those presented to the trial judges and in my view they add nothing to the full factual record upon which both the trial judges and the courts of appeal in these cases founded their conclusions.  In light of this, I do not think that we need to come to our own assessment of the facts.  Rather, we should defer to the trial courts absent a patent and overriding error on their part.  I am content to rely entirely on the findings of fact below as I see nothing in the new materials introduced before us that suggests that these findings were in error.

192                           The findings of fact made by the trial judges in Caine and Clay are similar in all respects (they are set out in full in para. 40 of the reasons for judgment of Howard Prov. Ct. J. in the Caine appeal, and in para. 25 of the reasons for judgment of McCart J. in the Clay appeal).  In Clay, McCart J. made the following findings of fact, which were accepted by Rosenberg J.A. at the Court of Appeal for Ontario (at para. 10):

1.    Consumption of marijuana is relatively harmless compared to the so-called hard drugs and including tobacco and alcohol;

2.    There exists no hard evidence demonstrating any irreversible organic or mental damage from the consumption of marijuana;

3.    That cannabis does cause alteration of mental functions and as such, it would not be prudent to drive a car while intoxicated;

4.    There is no hard evidence that cannabis consumption induces psychoses;

5.    Cannabis is not an addictive substance;

6.    Marijuana is not criminogenic in that there is no evidence of a causal relationship between cannabis use and criminality;

7.    That the consumption of marijuana probably does not lead to “hard drug” use for the vast majority of marijuana consumers, although there appears to be a statistical relationship between the use of marijuana and a variety of other psychoactive drugs;

8.    Marijuana does not make people more aggressive or violent;

9.    There have been no recorded deaths from the consumption of marijuana;

10.  There is no evidence that marijuana causes amotivational syndrome;

11.  Less than 1% of marijuana consumers are daily users;

12.  Consumption in so-called “de-criminalized states” does not increase out of proportion to states where there is no de-criminalization;

13.  Health related costs of cannabis use are negligible when compared to the costs attributable to tobacco and alcohol consumption.

193                           After having thus established what harms are not associated with marihuana use, McCart J. found, at paras. 26-27:

Having said all of this, there was also general consensus among the experts who testified that the consumption of marijuana is not completely harmless.  While marijuana may not cause schizophrenia, it may trigger it.  Bronchial pulmonary damage is at risk of occurring with heavy use. However, to be fair, there is also general agreement among the experts who testified that moderate use of marijuana causes no physical or psychological harm.  Field studies in Greece, Costa Rica and Jamaica generally supported the idea that marijuana was a relatively safe drug — not totally free from potential harm, but unlikely to create serious harm for most individual users or society.

The Le Dain Commission found at least four major grounds for social concern:  the probably harmful effect of cannabis on the maturing process in adolescence; the implications for safe driving arising from impairment of cognitive functions and psycho motor abilities, from the additive interaction of cannabis and alcohol and from the difficulties of recognizing or detecting cannabis intoxication; the possibility, suggested by reports in other countries and clinical observations on this continent, that the long term, heavy use of cannabis may result in a significant amount of mental deterioration and disorder; and the role played by cannabis in the development and spread of multi‑drug use by stimulating a desire for drug experience and lowering inhibitions about drug experimentation.  This report went on to state that it did not yet know enough about cannabis to speak with assurance as to what constitutes moderate as opposed to excessive use.

194  In Caine, Howard Prov. Ct. J. found as follows with respect to what harms are not associated with marihuana use (at para. 40):

1.    the occasional to moderate use of marihuana by a healthy adult is not ordinarily harmful to health, even if used over a long period of time;

2.    there is no conclusive evidence demonstrating any irreversible organic or mental damage to the user, except in relation to the lungs and then only to those of a chronic, heavy user such as a person who smokes at least 1 and probably 3-5 marihuana joints per day;

3.    there is no evidence demonstrating irreversible, organic or mental damage from the use of marihuana by an ordinary healthy adult who uses occasionally or moderately;

4.    marihuana use does cause alteration of mental function and as such should not be used in conjunction with driving, flying or operating complex machinery;

5.    there is no evidence that marihuana use induces psychosis in ordinary healthy adults who use [marihuana] occasionally or moderately and, in relation to the heavy user, the evidence of marihuana psychosis appears to arise only in those having a predisposition towards such a mental illness;

6.    marihuana is not addictive;

7.    there is a concern over potential dependence in heavy users, but marihuana is not a highly reinforcing type of drug, like heroin or cocaine and consequently physical dependence is not a major problem; psychological dependence may be a problem for the chronic user;

8.    there is no causal relationship between marihuana use and criminality;

9.    there is no evidence that marihuana is a gateway drug and the vast majority of marihuana users do not go on to try hard drugs; recent animal studies involving the release of dopamine and the release of cortico releasing factor when under stress do not support the gateway theory;

10.  marihuana does not make people aggressive or violent, but on the contrary it tends to make them passive and quiet;

11.  there have been no deaths from the use of marihuana;

12.  there is no evidence of an amotivational syndrome, although chronic use of marihuana could decrease motivation, especially if such a user smokes so often as to be in a state of chronic intoxication;

13.  assuming current rates of consumption remain stable, the health related costs of marihuana use are very, very small in comparison with those costs associated with tobacco and alcohol consumption.

195                           The trial judge mentioned that these findings were consistent with, inter alia, the findings of the Commission of Inquiry into the Non‑Medical Use of Drugs, chaired by Gerald Le Dain (later Le Dain J. of this Court).  After almost four years of public hearings and research, the majority of the commissioners concluded that simple possession of marihuana should not be a criminal offence.  The Commission made the following findings with respect to the harms that are not associated with marihuana use:

1. cannabis is not a “narcotic”;

                   2. few acute physiological effects have been detected from current use in Canada;

                   3. few users (less than one percent) of cannabis move on to use harder and more dangerous drugs;

                   4. there is no scientific evidence indicating that cannabis use is responsible for other forms of criminal behaviour;

                   5. at present levels of use, the risks or harms from consumption of cannabis are much less serious than the risks or harms from alcohol use; and

6.  the short term physical effects of cannabis are relatively insignificant and there is no evidence of serious long term physical effects.

(Cannabis:  A Report of the Commission of Inquiry into the Non‑Medical Use of Drugs (1972), at pp. 265‑310)

196                           Howard Prov. Ct. J. added, however, that marihuana is not a “completely harmless drug for all individual users” (para. 42).  She first discussed the health risks for the user and summarized her findings as follows (at para. 39):

On the question of whether individual marihuana users face any health risks, the distinction between “low/occasional/moderate users” and “chronic users” is of considerable importance.  Quite simply, the risk of harm from the use of marihuana depends upon which group one is talking about.  All of the witnesses from whom I have heard, including Dr. Kalant, appear to agree that there is no evidence to sug[g]est that low/occasional/moderate users assume any significant health risks from smoking marihuana, so long as they are healthy adults and do not fall into one of the vulnerable groups, namely immature youths, pregnant women and the mentally ill.  On the other hand, for the chronic user, there is a significant health risk although, this is primarily from the process of smoking, rather than from the chemical make‑up of the drug.

Howard Prov. Ct. J. again referred, at para. 42, to the findings of the Le Dain Commission, this time with respect to the harm that may be occasioned by marihuana use.  These findings were also referred to in Clay, at para. 27,  and reproduced above, but I repeat them here for convenience:

1.  “the probably harmful effect of cannabis on the maturing process in adolescence;”

2.  “the implications for safe driving arising from impairment of cognitive functions and psycho motor abilities . . .;”

3.  “the possibility, suggested by reports in other countries and clinical observations on this continent, that the long term, heavy use of cannabis may result in a significant amount of mental deterioration and disorder;” and

4.  “the role played by cannabis in the development and spread of multi‑drug use by stimulating a desire for drug experience and lowering inhibitions about drug experimentation.”

197                           Howard Prov. Ct. J. also referred to the Hall Report (W. Hall, N. Solowij and J. Lemon, National Drug Strategy:  The health and psychological consequences of cannabis use (1994), and summarized its conclusions with regard to the “[a]cute effects” of marihuana use, that is, the adverse effects that might occur while actually under the influence (at para. 44):

Taken as a whole, the findings suggest that: (1) naive users should be careful and if they choose to smoke should do so with experienced users and in an appropriate setting, (2) no one should be studying, writing an exam, or engaging in other complex mental activities while in a state of intoxication induced by cannabis (or alcohol, for that matter); (3) pregnant women should not smoke cannabis (of course, they should not be smoking tobacco or drinking alcohol either); (4) the mentally ill or those with a family history of mental illness should not use cannabis; and (5) as with alcohol, no one should drive, fly or operate complex machinery while under the influence of marihuana.

As to the “chronic effects”, that is, the adverse effects that might occur from the chronic use of cannabis (daily use over many years), the Hall Report notes that there is still considerable “uncertainty” and Howard Prov. Ct. J. summarized its findings as follows, at paras. 45-46:

The “major probable adverse effects” from chronic use appear to be:

–     respiratory diseases associated with smoking as the method of administration, such as chronic bronchitis, and the occurrence of histo[pa]th[o]logical changes that may be precursors to the development of malignancy;

–     development of a cannabis dependence syndrome, characterized by an inability to abstain from or to control cannabis use;

–     subtle forms of cognitive impairment, most particularly of attention and memory, which persist while the user remains chronically intoxicated, and may or may not be reversible after prolonged abstinence from cannabis.

The “major possible adverse effects” from chronic use (that is, effects which remain to be confirmed by further research) are:

–     an increased risk of developing cancers of the aerodigestive tract, i.e. oral cavity, pharynx, and oesophagus;

–     an increased risk of leukaemia among offspring exposed while in utero; (since disproved)

–     a decline in occupational performance marked by underachievement in adults in occupations requiring high level cognitive skills, and impaired educational attainment in adolescents;

–     birth defects occurring among children of women who used cannabis during pregnancies. (since disproved)

Both Dr. Kalant and Dr. Connolly agreed that research since the publication of the Hall Report (1994) has failed to reveal any foundation for the above‑noted concerns regarding (1) leukaemia among off‑spring, and (2) birth defects among children of women who used marihuana during pregnancy.  These concerns would no longer be considered as “risks” in the scientific community.

Finally, the Hall Report identifies three traditional “high risk groups”:

(1)       Adolescents with a history of poor school performance whose educational achievements may be further limited by cognitive impairments if chronically intoxicated, or who start using cannabis at an early age (there being a concern that such youths are at higher risk of becoming chronic users of cannabis as well as other drugs);

(2)       Women of childbearing age, because of the concern with the effects of smoking cannabis while pregnant; and

(3)       Persons with pre‑existing diseases such as cardiovascular diseases, respiratory diseases, schizophrenia or other drug dependencies, all of whom may face a risk of precipitating or exacerbating the symptoms of their d[is]eases.

198                           On the basis of this evidence, Howard Prov. Ct. J. concluded as follows with respect to the health risks to the user occasioned by marihuana use (at para. 48):

There was general agreement among the witnesses who appeared before me (save perhaps for Dr. Morgan) that the conclusions contained in the Hall Report were sound (except for the references to leukemia and birth defects), based on the scientific information available at this time.  It should be noted that, apart from the “acute effects”, which are rare and transient, none of the above reports raise any significant concerns about the well‑being of a healthy adult who is a low/occasional/moderate user of marihuana.

199                           Howard Prov. Ct. J. then discussed the risk of harm to others or to society as a whole. She concluded that the only possible harm to individual members of society is related to the fact that an “individual who is in a state of intoxication induced by marihuana poses a risk to the health and safety of others should he or she drive, fly or operate complex machinery” (para. 49).  However, Howard Prov. Ct. J. noted that while the state had a legitimate interest in protecting members of society from such conduct, s. 253 (a) of the Criminal Code, R.S.C. 1985, c. C-46 , already achieves this purpose.  With respect to harm to society as a whole, Howard Prov. Ct. J., at paras. 51-52, concluded that

[t]he current widespread use of marihuana does not appear to have had any significant impact on the health care system of this province and, more importantly, it has not been perceived by our health care officials as a significant health concern, either provincially or nationally. . . .

The evidence establishes that any health care concerns (including financial concerns) associated with marihuana use in this country are minor compared to the social, criminal and financial costs associated with the use of alcohol or tobacc[o].

200  Finally, Howard Prov. Ct. J. considered the harm caused by the prohibition of marihuana, which she summarized as follows, at para. 63:

1.    countless Canadians, mostly adolescents and young adults, are being prosecuted in the “criminal” courts, subjected to the threat of (if not actual) imprisonment, and branded with criminal records for engaging [in] an activity that is remark[a]bly benign (estimates suggest that over 600,000 Canadians now have criminal records for cannabis related offences); meanwhile others are free to consume society’s drugs of choice, alcohol and tobacco, even though these drugs are known killers;

2.    disrespect for the law by upwards of one million persons who are prepared to engage in this activity, notwithstanding the legal prohibition;

3.    distrust, by users, of health and educational authorities who, in the past, have promoted false and exaggerated allegations about marihuana; the risk is that marihuana users, especially the young, will no longer listen, even to the truth;

4.    lack of open communication between young persons and their elders about their use of the drug or any problems they are experiencing with it, given that it is illegal;

5.    the risk that our young people will be associating with actual criminals and hard drug users who are the primary suppliers of the drug;

6.    the lack of governmental control over the quality of the drug on the market, given that it is available only on the black market;

7.    the creation of a lawless sub‑culture whose only reason for being is to grow, import and distribute a drug which is not available through lawful means;

8.    the enormous financial costs associated with enforcement of the law; and

9.    the inability to engage in meaningful research into the properties, effects and dangers of the drug, because possession of the drug is unlawful.

201                           We have to analyse the constitutional questions raised in these appeals on the basis of these facts.  Although criminalization of marihuana is a sensitive political issue and raises many social policy considerations, our analysis is circumscribed by the findings of fact of the trial judges, which are well supported by an extensive record.  These findings are the basis upon which we must decide whether, or to what extent, Parliament may criminalize under threat of imprisonment possession of marihuana for personal use and, alternatively, for the purpose of trafficking.  We must determine whether, on the basis of these facts, constitutional requirements are met, with respect to both the division of powers issue and the Charter  considerations.  These cases are not about whether Parliament should or should not prohibit or regulate possession of marihuana, whether the law is fair or unfair to marihuana users, or whether the legislation is effective in reducing the harm occasioned by marihuana use.  These cases ask us to determine the limits imposed by the Charter  upon Parliament to use imprisonment as a sanction for prohibited conduct.

II.    Analysis

202                           Parliament has full legislative power with respect to the criminal law, including the determination of the essential elements of any given crime.  Prior to the enactment of the Charter , Parliament could prohibit any act and impose any penal consequences for infringing the prohibition, provided only that the prohibition served “a public purpose which can support it as being in relation to criminal law” (Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1 (“Margarine Reference”), p. 50; appeal to the Privy Council dismissed, [1951] A.C. 179).  Once the legislation was found to have met this test, the courts had virtually no role in reviewing the substance of the legislation.  However, with the entrenchment of the Charter  in the Constitution, courts must now consider not only the vires of legislation, but also the compliance of legislation with the guarantees of the Charter  (R. v. Vaillancourt, [1987] 2 S.C.R. 636, at p. 651; Motor Vehicle Reference, supra, at pp. 496-97, per Lamer J., at p. 525, per Wilson J.).

203                           In assessing Charter  compliance, courts are to look both to the purpose and to the effect of the legislation (R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1071, per Lamer J.).  As Dickson J. said, speaking for the majority of this Court in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 334, “if a law with a valid purpose interferes by its impact, with rights or freedoms, a litigant could still argue the effects of the legislation as a means to defeat its applicability and possibly its validity”.  Thus, as Lamer J. said in Smith, supra, at p. 1071:

. . . even though the pursuit of a constitutionally invalid purpose will result in the invalidity of the impugned legislation irrespective of its effects, a valid purpose does not end the constitutional inquiry. The means chosen by Parliament to achieve that valid purpose may result in effects which deprive Canadians of their rights guaranteed under the Charter . In such a case it would then be incumbent upon the authorities to demonstrate under s. 1  that the importance of that valid purpose is such that, irrespective of the effect of the legislation, it is a reasonable limit in a free and democratic society.

Hence, in the cases before this Court, even if Parliament has the legislative power to prohibit and sanction possession of marihuana, i.e. if  there is a legitimate legislative purpose falling under a federal head of power, the means chosen by Parliament to achieve this purpose, for example the type of sanction chosen to enforce the prohibition, may infringe the rights to life, liberty or security of the appellants in a manner that is not in accordance with the principles of fundamental justice, as protected by s. 7  of the Charter .

204                           These cases concern whether the provisions prohibiting possession of marihuana for personal use and, alternatively, for the purpose of trafficking, are within the constitutional legislative power of the Parliament of Canada, either under its general peace, order and good government power (“POGG power”), or under s. 91(27)  of the Constitution Act, 1867  pursuant to its criminal law power.  These cases also concern whether the impugned provisions are contrary to s. 7  of the Charter .   Much confusion has permeated the debate before us and in the courts below regarding these two related but distinct limits imposed upon Parliament’s legislative power. Much of the debate thus far has indeed surrounded whether Parliament could “criminalize” possession of marihuana.  This issue must be decided according to the division of powers principles, and is but one aspect of the constitutional challenge before us.  The Charter  imposes additional constraints on Parliament when it chooses to provide for deprivation of liberty.  I will analyse these two limits on legislative power in turn and endeavour to distinguish the thresholds to be met, as they are in my view distinct and serve different purposes.

A.     The Division of Powers Issue

205                           The appellants Clay and Caine challenge the prohibition against possession of marihuana as being beyond the authority of Parliament under the Constitution Act, 1867 .  My colleagues Gonthier and Binnie JJ. have concluded that the impugned provisions fall under the criminal law head of power.  For that reason, they conclude that it is not necessary to revisit the correctness of the conclusion in R. v. Hauser, [1979] 1 S.C.R. 984, with respect to Parliament’s residual authority to deal with drugs in general or marihuana in particular under the POGG power.  I am in general agreement with the conclusion reached by my colleagues and I will only make a few comments, which will inform the Charter  analysis.

206                           As mentioned above, legislation which properly falls under one of the federal heads of power will pass the division of powers challenge, but may still be found to infringe on a right or freedom protected by the Charter .  With regard to the federal criminal law power, under s. 91(27)  of the Constitution Act, 1867 , Parliament has been accorded the power to make criminal law in the widest sense (see, inter alia, RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 28; R. v. Hydro‑Québec, [1997] 3 S.C.R. 213, at para. 118; Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31, at paras. 28-31).  It is entirely within Parliament’s discretion to determine what evil it wishes to suppress by penal prohibition and what threatened interest it thereby wishes to safeguard.  Apart from the Charter , the only qualification attached to Parliament’s plenary power over criminal law is that it cannot be employed colourably.  Like other legislative powers, the criminal law power does not permit Parliament, simply by legislating in the proper form, colourably to invade areas of exclusively provincial legislative competence.  To determine whether such a colourable attempt is made, we must determine whether a legitimate public purpose underlies the criminal prohibition (Scowby v. Glendinning, [1986] 2 S.C.R. 226, at p. 237; Hydro‑Québec, supra, at para. 121).

207                           In the Margarine Reference, supra, Rand J. drew attention, at pp. 49‑50, to the need to identify the evil or injurious effect at which a penal prohibition was directed and explained that a prohibition is not criminal unless it serves “a public purpose which can support it as being in relation to criminal law”.  Further, he explained that the “ordinary though not exclusive ends” served by the criminal law are “[p]ublic peace, order, security, health, [and] morality” (emphasis added).

208                            The main objective of the impugned legislation here is protection from the possible adverse health consequences of marihuana use.  The objective of the state in prohibiting marihuana has been summarized by Rosenberg J.A. in Clay’s companion case R. v. Parker (2000), 146 C.C.C. (3d) 193 (Ont. C.A.), at para. 143:

First, the state has an interest in protecting against the harmful effects of use of that drug. Those include bronchial pulmonary harm to humans; psychomotor impairment from marihuana use leading to a risk of automobile accidents and no simple screening device for detection; possible precipitation of relapse in persons with schizophrenia; possible negative effects on immune system; possible long‑term negative cognitive effects in children whose mothers used marihuana while pregnant; possible long‑term negative cognitive effects in long‑term users; and some evidence that some heavy users may develop a dependency. The other objectives are: to satisfy Canada’s international treaty obligations and to control the domestic and international trade in illicit drugs.

Jurisdiction over health is shared between Parliament and the provincial legislatures; their respective competence depends on the pith and substance of the particular measure at issue.

209                           In RJR-MacDonald, supra, the issue was whether Parliament could validly employ its criminal law power to prohibit tobacco manufacturers from advertising their products to Canadians, and to increase public awareness concerning the hazards of tobacco use.  La Forest J., at para. 32, concluded that the detrimental health effects of tobacco are both dramatic and substantial and that Parliament could validly employ the criminal law:

Given the “amorphous” nature of health as a constitutional matter, and the resulting fact that Parliament and the provincial legislatures may both validly legislate in this area, it is important to emphasize once again the plenary nature of the criminal law power. In the Margarine Reference, supra, at pp. 49‑50, Rand J. made it clear that the protection of “health” is one of the “ordinary ends” served by the criminal law, and that the criminal law power may validly be used to safeguard the public from any “injurious or undesirable effect”. The scope of the federal power to create criminal legislation with respect to health matters is broad, and is circumscribed only by the requirements that the legislation must contain a prohibition accompanied by a penal sanction and must be directed at a legitimate public health evil.  If a given piece of federal legislation contains these features, and if that legislation is not otherwise a “colourable” intrusion upon provincial jurisdiction, then it is valid as criminal law; see Scowby, supra, at pp. 237‑38.  [Emphasis added.]

210                           The respondent argues that there is no baseline or threshold level of harm that must be reached before the criminal law power can be invoked.  The Crown argues, citing R. v. Hinchey, [1996] 3 S.C.R. 1128, at para. 29, and Hydro-Québec, supra, at para. 121, that the recognition of a Charter  principle precluding Parliament from criminalizing conduct unless it can demonstrate a potential for serious or substantial harm would be inconsistent with the well-established constitutional principle that the criminal law can be used to enact legislation to address social, political, or economic interests or “some legitimate public purpose”.  The respondent submits that even though there would be a rational basis for a statutory or regulatory prohibition, a “harm principle” would call for judicial review of what are essentially policy decisions.  The submissions of the Attorney General of Ontario (“AGO”) are similar on this respect.  The AGO argues that whether a criminal offence is reviewed by way of a vires analysis under the division of powers doctrine, or by way of a “harm principle” within the ambit of s. 7 , the result will necessarily be the same.  The AGO argues that the “harm principle”, at least as it has been formulated by Braidwood and Rosenberg JJ.A., does no more than reiterate the threshold test for Parliament’s exercise of its criminal law jurisdiction.  The AGO further submits that Lamer J.’s analysis in Motor Vehicle Reference should not apply to a consideration of the actus reus of the offence.  The AGO states that consideration of the actus reus is precluded because “the decision to criminalize specific types of conduct belongs wholly to Parliament” (AGO’s factum, at para. 12).

211                           It is not the courts’ function to reassess the wisdom of validly enacted legislation. As L’Heureux-Dubé J. said in Hinchey, supra, at para. 34, “the judiciary should not  rewrite [legislation] to suit its own particular conception of what type of conduct can be considered criminal”.  And further, at para. 36: “If Parliament chooses to criminalize conduct which, notwithstanding Charter  scrutiny, appears to be outside of what a judge considers ‘criminal’, there must be a sense of deference to the legislated authority which has specifically written in these elements.”

212                           Although courts cannot question the wisdom of legislation, they must assess its constitutionality.  There is, as such, no constitutional threshold of harm required for legislative action under the criminal law power.  There had been uncertainties in the past in this regard, as some would have required “significant, grave and serious risk of harm to public health, morality, safety or security” before a prohibition could fall within the purview of the criminal law power (see, e.g., RJR-MacDonald, supra, at paras. 199-202, per Major J.).  It is now established that as long as the legislation is directed at a legitimate public health evil and contains a prohibition accompanied by a penal sanction, and provided that it is not otherwise a “colourable” intrusion upon provincial jurisdiction, Parliament has, under s. 91(27)  of the Constitution Act, 1867 , discretion to determine the extent of the harm it considers sufficient for legislative action (RJR-MacDonald, supra, at para. 32;  Reference re Firearms Act (Can.), supra, at para. 27).  Obviously, however, where Parliament relies on the protection of health as its legitimate public purpose, it has to demonstrate the “injurious or undesirable effect” from which it seeks to safeguard the public.  This will likely be done by demonstrating the harm to the health of individuals or the public associated with the prohibited conduct.  While there is no constitutional threshold level of harm required before Parliament may use its broad criminal law power, conduct with little or no threat of harm is unlikely to qualify as a “public health evil”.

213                           In Hydro‑Québec, supra, at para. 120, La Forest J. came to a similar conclusion for the majority of this Court with regard to the mental element dimension of a criminal offence.  He held:

. . . under s. 91(27)  of the Constitution Act, 1867 , it is also within the discretion of Parliament to determine the extent of blameworthiness that it wishes to attach to a criminal prohibition. . . . This flows from the fact that Parliament has been accorded plenary power to make criminal law in the widest sense.  This power is, of course, subject to the “fundamental justice” requirements of s. 7  of the Canadian Charter of Rights and Freedoms , which may dictate a higher level of mens rea for serious or “true” crimes . . . .

Just as Parliament may determine the nature of the mental element pertaining to different crimes, it may determine the nature of the “evil or injurious effect” from which it wishes to protect the public.  However, while Parliament has the power to define the elements of a crime, the courts have the mandate to review that definition to ensure that it complies with the Charter  (see, e.g., Vaillancourt, supra, at p. 652).  As I will discuss below, the “fundamental justice” requirements of s. 7  of the Charter  may, where imprisonment is available as a punishment, call for an “evil or injurious effect” of a certain nature or degree.

214                           The concerns raised by the respondent and the AGO reflect the wrong focus in the courts below as to whether Parliament could “criminalize” possession of marihuana.  Indeed, Howard Prov. Ct. J. in Caine, in considering the “harm principle”, wrote as follows, at paras. 117-20:

In my view, the proposals that the criminal law be used only to protect against conduct that involves demonstrable harm to another individual or other individuals or to society as a whole or against conduct that is seriously harmful or substantially harmful to society are not “principles of fundamental justice”.  The case authorities are to the contrary. . . .

In fact, our Supreme Court has consistently granted Parliament “a broad discretion in proscribing conduct as criminal and in determining proper punishment”.  R. v. Hinchey (1996), 111 C.C.C. (3d) 353 at 369‑70.  The principles applicable to Parliament’s law‑making powers in the criminal sphere make clear that Parliament has a broad scope of authority to “criminalize” conduct in order to address any social, political or economic interests. . . .

If there was any doubt of how this principle might be applied in the present context, it was resolved when the Supreme Court of Canada indicated, in RJR-MacDonald Inc. v. Canada, (supra) that Parliament may legislate under the criminal law power to protect Canadians from harmful drugs. . . .

The correct position is, in my view, that which is set out in Butler, (supra) at 165.  To paraphrase in terms that are applicable to the case before me: Parliament may enact penal legislation prohibiting use of a drug, when it has a reasonable basis for concluding that there is a risk of harm to the health of the user, or a risk of harm to society as a whole. [Emphasis added.]

With respect, the trial judge confused the tests developed by this Court in division of power jurisprudence, which are used to determine whether Parliament has validly used its criminal power in a manner that is not a colourable intrusion upon provincial competences, with the Charter  constraints imposed upon Parliament when otherwise valid criminal legislation is alleged to infringe on rights protected by the Charter .  In my respectful view, the same confusion appears in Braidwood J.A.’s analysis.

215                           After a thorough review of the common law, leading treatises on the criminal law, law reform commission reports, Canadian federalism cases (addressing the federal criminal law power), and Charter  jurisprudence, Braidwood J.A. came to the conclusion that the harm principle is indeed a principle of fundamental justice within the meaning of s. 7 .  After having concluded as to the existence of this principle, Braidwood J.A. set “the appropriate threshold for criminal sanctions” (para. 139) and determined that “[t]he degree of harm must be neither insignificant nor trivial” (para. 138).  In determining the appropriate threshold, Braidwood J.A. explained that he had to consider the “relationship, and parallels, between the Criminal Law power of Parliament pursuant to s. 91(27)  of the Constitution Act, 1867  and the test to be applied pursuant to s. 7  of the Charter ” (para. 139).  Braidwood J.A. was thus apparently concerned with affording Parliament the deference it is owed in legislating in criminal matters while at the same time give meaning to the harm principle, because, as he put it:  “it is common sense that you don’t go to jail unless there is a potential that your activities will cause harm to others” (para. 134).  This tension led him to conclude, at paras. 158-60:

In conclusion, the deprivation of the appellants’ liberty caused by the presence of penal provisions in the NCA is in accordance with the harm principle.  I agree that the evidence shows that the risk posed by marihuana is not large.  Yet, it need not be large in order for Parliament to act.  It is for Parliament to determine what level of risk is acceptable and what level of risk requires action.  The Charter  only demands that a “reasoned apprehension of harm” that is not [in]significant or trivial.  The appellants have not convinced me that such harm is absent in this case.

Therefore, I find that the legal prohibition against the possession of marihuana does not offend the operative principle of fundamental justice in this case.

Determining whether the NCA strikes the “right balance” between the rights of the individual and the interests of the State is more difficult.  In the end, I have decided that such matters are best left to Parliament. . . . I do not feel it is the role of this court to strike down the prohibition on the non‑medical use of marihuana possession at this time.  [Emphasis added.]

With respect, Braidwood J.A. wrongly focused his analysis on Parliament’s power to criminalize possession of marihuana.  As I briefly mentioned above, and as my colleagues Gonthier and Binnie JJ. have also reviewed, the principles regarding the scope of Parliament’s criminal law power are now well established and harm may not be the sole basis upon which criminal law may be used.  Parliament may have the power to prohibit certain conduct, be it under its criminal law power or otherwise, but it must respect minimum Charter  requirements before it resorts to imprisonment as a sanction.  In other words, the harm principle as a principle of fundamental justice operates to prevent restriction of liberty under s. 7  of the Charter  and not as a constraint inherent in Parliament’s criminal law power.

216                           The focus must therefore be on the use of imprisonment as a sanction attaching to a prohibited conduct.  This becomes obvious upon consideration of the various sources of legislative power under which Parliament may prohibit and sanction certain activities or behaviours.  To situate the harm principle within the principles regarding the criminal law power of Parliament would in fact exclude the applicability of this principle of fundamental justice to other prohibitions enforceable by imprisonment and, of course, to the enforcement of provincial statutes.  For example, as my colleagues explained, the residual POGG power has application in only three situations: (i) a national emergency; (ii) the federal competence arose because the subject matter did not exist at the time of Confederation and clearly cannot be put into the class of matters of merely local or private nature; and (iii) where the subject matter “goes beyond local or provincial concern or interest and must, from its inherent nature, be the concern of the Dominion as a whole” (Labatt Breweries of Canada Ltd. v. Attorney General of Canada, [1980] 1 S.C.R. 914).  The determination of whether the impugned legislation meets these criteria thus focuses on characteristics of the legislation that have nothing to do with those falling under the criminal law power, such as the necessity to identify an evil or injurious effect at which the prohibition is directed and a valid criminal law purpose.  Needless to say, no harm, be it to identifiable others, to society as a whole, or to self, is required, or even relevant to the determination of whether legislation falls under the POGG power.  The harm principle as applied by the courts below would thus be inapplicable to prohibitions enacted under the POGG power, or any other non-criminal fields of federal competence.

217                           The use of imprisonment, be it for a criminal offence, a prohibition enacted under the POGG power, or for any other offence created as a means of enforcement of non-criminal legislation, including provincial offences, must be subject to the same Charter  requirements.  The comments of Lamer C.J., in R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, at p. 189, are equally applicable here:

In my view, whether this offence (or the Act generally) is better characterized as “criminal” or “regulatory” is not the issue. The focus of the analysis in Re B.C. Motor Vehicle Act and Vaillancourt was on the use of imprisonment to enforce the prohibition of certain behaviour or activity. A person whose liberty has been restricted by way of imprisonment has lost no less liberty because he or she is being punished for the commission of a regulatory offence as opposed to a criminal offence.  Jail is jail, whatever the reason for it. In my view, it is the fact that the state has resorted to the restriction of liberty through imprisonment for enforcement purposes which is determinative of the principles of fundamental justice. [Emphasis in original.]

Similarly here, it is the fact that the state has resorted to the restriction of liberty through imprisonment for enforcement purposes which calls into play the harm principle as a principle of fundamental justice. I note here that the question is not whether imprisonment is used frequently or only in the rarest cases.  The mere availability of imprisonment dictates the constitutional test to be applied (Motor Vehicle Reference, supra, at p. 515).

218                           According to my colleagues’ conclusion, the impugned legislation is within Parliament’s legislative powers.  For my purposes, once it is determined that the legislation falls within one of Parliament’s constitutional heads of power, it does not matter whether the legislation falls under the criminal law power or otherwise.  The key is indeed whether the approach taken by Parliament to enforce the prohibition of possession of marihuana is in accordance with the prescriptions of the Charter .  This case is therefore an opportunity for this Court to evaluate the principles developed in Motor Vehicle Reference with respect to the actus reus of the offence.

B.    The Charter  Issues

219                           The appellants Caine and Clay assert that the prohibition of possession of marihuana infringes s. 7  of the Charter .  The s. 7  analysis requires the appellants to demonstrate a deprivation of liberty that is not in accordance with the principles of fundamental justice.  Indeed, as per Iacobucci J. in R. v. White, [1999] 2 S.C.R. 417, at para. 38, the s. 7  analysis involves three stages:

The first question to be resolved is whether there exists a real or imminent deprivation of life, liberty, security of the person, or a combination of these interests.  The second stage involves identifying and defining the relevant principle or principles of fundamental justice.  Finally, it must be determined whether the deprivation has occurred in accordance with the relevant principle . . . .

I will now consider each of these three stages.  I note that the analysis will concentrate on the challenge of the provisions prohibiting simple possession of marihuana.  At the end of the analysis I will address Malmo-Levine’s challenge to the prohibition of possession of marihuana for the purpose of trafficking.

(1)   Deprivation of Life, Liberty, or Security of the Person

220                           The respondent concedes, as the lower courts found, that the possibility of imprisonment under s. 3(1) of the Narcotic Control Act, R.S.C. 1985, c. N-1, engages the s. 7  liberty interest of the appellants.  This is consistent with this Court’s past holdings:  Motor Vehicle Reference, supra, at p. 515; R. v. Heywood, [1994] 3 S.C.R. 761, at p. 789.

221                           The appellants also argue that the right to use marihuana in the privacy of one’s home is a fundamental aspect of personal autonomy and dignity.  On this issue, I am in complete agreement with my colleagues Gonthier and Binnie JJ.  Neither the widest view on liberty, as expressed by La Forest J., writing for himself, L’Heureux-Dubé, Gonthier and McLachlin JJ. on this issue, in B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, at para. 80, nor the interpretation of security as including a right to personal autonomy, cover the recreational use of marihuana, even in the privacy of one’s home.  This use does not qualify as a matter of fundamental importance so as to engage the liberty and security interests under s. 7  of the Charter .  Put another way:

. . . the autonomy protected by the s. 7  right to liberty encompasses only those matters that can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence.

(Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, at para. 66)

222                           The threat of imprisonment clearly engages the s. 7  liberty interest of the appellants; since no one has addressed whether sanctions other than imprisonment could engage the right to liberty or security of the person,  I will limit my analysis to the threat of imprisonment.  Thus, I need not address here, given the scope of my analysis and the nature of this appeal, whether the imposition of a fine for simple possession of marihuana, or imprisonment as an alternative to the non-payment of a fine, or imposition of a criminal record simpliciter, engage the right to security or liberty of the person.  Those issues were not addressed by the courts below and it would be both unwise and unnecessary to address them here.  As the threat of imprisonment clearly engages the s. 7  liberty interest of the appellants, it is necessary to determine the relevant principles of fundamental justice, to which I now turn.

(2)   The Relevant Principles of Fundamental Justice

223                           The primary principle of fundamental justice put forth by the appellants is the alleged “harm principle”.  The British Columbia Court of Appeal in Caine recognized the existence of a harm principle as a principle of fundamental justice, although the majority and the minority had different views on which threshold of harm was required by this principle.  Rosenberg J.A. of the Court of Appeal for Ontario in Clay did not decide the issue but was ready to accept for the purposes of the case at bar that the harm principle was a principle of fundamental justice.  The appellants also submit other principles of fundamental justice which they say are applicable to the cases at bar, namely the principle of restraint, the principle precluding irrationality and arbitrariness in the legislative scheme and the principle of overbreadth (see para. 31 of the appellant Caine’s factum).

224                           Principles of fundamental justice have been defined as follows by Sopinka J. in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at pp. 590-91:

Principles of fundamental justice must not, however, be so broad as to be no more than vague generalizations about what our society considers to be ethical or moral. They must be capable of being identified with some precision and applied to situations in a manner which yields an understandable result. They must also, in my view, be legal principles. The now familiar words of Lamer J. in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 512‑13, are as follows:

Consequently, the principles of fundamental justice are to be found in the basic tenets and principles, not only of our judicial process, but also of the other components of our legal system.

                                                                   . . .

Whether any given principle may be said to be a principle of fundamental justice within the meaning of s. 7  will rest upon an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and in our legal system, as it evolves.

225                           As I mentioned earlier, in determining which principles of fundamental justice are at play here and in assessing their content and their scope, the focus must remain on the choice made by the state to resort to imprisonment to enforce the prohibition of possession of marihuana for personal use and alternatively, of possession of marihuana for the purpose of trafficking (Wholesale Travel Group Inc., supra, at p. 189, per Lamer C.J.).

(A)  Harm Principle

226                           As Lamer J. recalled in Motor Vehicle Reference, supra, at p. 513, “[i]t has from time immemorial been part of our system of laws that the innocent not be punished”.  This fundamental principle is at the core of his introductory remarks, at p. 492:

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 s. 7 of the Charter of Rights and Freedoms . . . .

In other words, absolute liability and imprisonment cannot be combined.

Since this landmark decision, courts have been “‘empowered, indeed required, to measure the content of legislation’ against the principles of fundamental justice contained in s. 7  of the Charter , and specifically, to ensure that the morally innocent not be punished” (R. v. Creighton, [1993] 3 S.C.R. 3, at p. 17). 

227                           It is a fundamental substantive principle of criminal law that there should be no criminal responsibility without an act or omission accompanied by some sort of fault.  The Latin phrase is actus non facit reum, nisi mens sit rea or “[t]he intent and the [a]ct must both concur to constitute the crime” (Fowler v. Padget (1798), 7 T.R. 509, 101 E.R. 1103 (K.B.), at p. 1106; see K. Roach, Criminal Law (2nd ed. 2000), at p. 8; D. Stuart, Canadian Criminal Law:  A Treatise (4th ed. 2001), at p. 359; G. Côté-Harper, P. Rainville and J. Turgeon, Traité de droit pénal canadien (4th ed. rev. 1998), at pp. 263-64; J. C. Smith and B. Hogan, Criminal Law: Cases and Materials (7th ed. 1999), at p. 27; A. P. Simester and G. R. Sullivan, Criminal Law:  Theory and Doctrine (2000), at p. 21).  Legal causation, which seeks to link the prohibited consequences to a culpable act of the accused, also reflects the fundamental principle that the morally innocent should not be punished (see R. v. Nette, [2001] 3 S.C.R. 488, 2001 SCC 78, at para. 45).  In determining whether legal causation is established, the inquiry is directed at the question of whether the accused person should be held criminally responsible for the consequences that occurred from his or her conduct.  As I said in Nette, supra, at para. 47, “[w]hile causation is a distinct issue from mens rea, the proper standard of causation expresses an element of fault that is in law sufficient, in addition to the requisite mental element, to base criminal responsibility.”  This inquiry seeks in fact to determine whether blame can be attributed to the accused and is illustrative of criminal law’s preoccupation that both the physical and mental elements of an offence coincide to reflect the blameworthiness attached to the offence and the offender.

228                           In order to determine whether the principle developed in the Motor Vehicle Reference may apply to ground an element of fault in the actus reus, it is instructive to examine the interaction between the mental and physical elements of an offence and to review how the Court has applied that principle with respect to the mens rea.  As Lamer J. explained in Vaillancourt, supra, at p. 652:

In effect, Re B.C. Motor Vehicle Act acknowledges that, whenever the state resorts to the restriction of liberty, such as imprisonment, to assist in the enforcement of a law, even, as in Re B.C. Motor Vehicle Act, a mere provincial regulatory offence, there is, as a principle of fundamental justice, a minimum mental state which is an essential element of the offence. . . .  Re B.C. Motor Vehicle Act did not decide what level of mens rea was constitutionally required for each type of offence, but inferentially decided that even for a mere provincial regulatory offence at least negligence was required, in that at least a defence of due diligence must always be open to an accused who risks imprisonment upon conviction. [Emphasis in original.]

Further, Lamer J. explained, at p. 653, that

whatever the minimum mens rea for the act or the result may be, there are, though very few in number, certain crimes where, because of the special nature of the stigma attached to a conviction therefor or the available penalties, the principles of fundamental justice require a mens rea reflecting the particular nature of that crime. Such is theft, where, in my view, a conviction requires proof of some dishonesty. Murder is another such offence. 

The constitutionalization of fault requirements has indeed cast doubt on some Criminal Code  offences and this Court has, in Vaillancourt, supra, and in R. v. Martineau, [1990] 2 S.C.R. 633, for example, used the criteria of the stigma and punishment attached to an offence as determinative of the fault level or mens rea required for conviction.  Specifically,  the Court has decided that for murder and theft, principles of fundamental justice guaranteed by s. 7 of the Charter demand subjective intent or recklessness.  Thus, the constructive murder provisions of the Code which required only objective foreseeability of death and in some circumstances, only a causal connection, were held to be unconstitutional.

229                           The special mental element required for these offences gives rise to the moral blameworthiness which justifies the stigma and sentence attached to them:  Vaillancourt, supra, at p. 654; Martineau, supra, at p. 646.  In Martineau, it was decided that the essential role of requiring subjective foresight of death in the context of murder was to “maintain a proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender” (p. 646).  The principles of fundamental justice require, because of the special nature of the stigma attached to a murder conviction, and the available penalties, a mens rea reflecting the particular nature of the crime.  The moral blameworthiness of a particular offender thus stems from the constitutionally required mental element, which is determined by considering the stigma and criminal sanction attaching to prohibited conduct.

230                           In my view, the principle that stigma and punishment must be proportionate to the moral blameworthiness of the offender stands only if there is a sufficiently blameworthy element in the actus reus itself.   A culpable mental state attached to a conduct may only be held “culpable” provided that the offender and his conduct ought to be blamed (see A. von Hirsch and N. Jareborg, “Gauging Criminal Harm: A Living-Standard Analysis” (1991), 11 Oxford J. Legal Stud. 1, at p. 6).  This was implicitly recognized by this Court in R. v. DeSousa, [1992] 2 S.C.R. 944, at pp. 964-65, where Sopinka J. held:  “[p]rovided that there is a sufficiently blameworthy element in the actus reus to which a culpable mental state is attached, there is no additional requirement that any other element of the actus reus be linked to this mental state or a further culpable mental state” (emphasis added).  Thus, in my opinion, the principles developed in Motor Vehicle Reference mandate a consideration of what is blamable in a specific conduct, i.e., what underlies stigma and punishment.  Offences have both a mental and a physical element.  An evaluation of the blameworthiness of conduct must take into account both elements so that wrongful conduct will not be held blamable without the necessary mental element and, on the other hand, a deliberate (or reckless or negligent) activity will not be held blamable without the activity being wrongful in the first place.  Therefore, in assessing the moral blameworthiness of the offender, the inherent nature of the act committed, or the wrongfulness of the actus reus, must be considered.

231                           What exactly is wrong or blameworthy in a given criminal offence is rarely an object of debate and is usually described by the harm or risk of harm associated with the conduct.  Indeed, harm is so intrinsic to most offences that few would contest, for example, the harm to others associated with murder, assault, or theft.  Murder affects the fundamental right to life; assault affects the victim’s security and dignity; and theft affects the victim’s material comfort and, in certain circumstances, his or her right to security, dignity and privacy.  In fact, harm is often central to the requirement that punishment must be proportionate to the moral blameworthiness of the offender; in other words, “the fundamental principle of a morally based system of law [is] that those causing harm intentionally [should] be punished more severely than those causing harm unintentionally” (Martineau, supra, at p. 645; Creighton, supra, at p. 46; H. L. A. Hart, “Punishment and the Elimination of Responsibility”, in Punishment and Responsibility:  Essays in the Philosophy of Law (1968), at p. 162).  Typically, the debate usually does not concern whether the conduct is harmful per se, but rather whether the level of harm caused or the inherent gravity of the conduct justify an increase in the harshness of labelling or sentencing.

232                           Courts indeed often undertake an evaluation of the level of blameworthiness of the actus reus.  Identical levels of intent (e.g., the intention to cause death) can lead to different degrees of labelling if the act itself is more deserving of condemnation.  For instance, in R. v. Arkell, [1990] 2 S.C.R. 695 (released concurrently with Martineau, supra), this Court analysed in light of s. 7  whether a sentencing scheme which classified murders done while committing certain underlying offences as more serious, and thereby attaching more serious penalties to them, was unconstitutional.  This Court found the increased harshness of labelling and punishment to be constitutionally valid under s. 7 .  Lamer C.J. came to this by examining the blameworthiness of the offence (at p. 704):

The section is based on an organizing principle that treats murders committed while the perpetrator is illegally dominating another person as more serious than other murders. Further, the relationship between the classification and the moral blameworthiness of the offender clearly exists. . . . Parliament’s decision to treat more seriously murders that have been committed while the offender is exploiting a position of power through illegal domination of the victim accords with the principle that there must be a proportionality between a sentence and the moral blameworthiness of the offender and other considerations such as deterrence and societal condemnation of the acts of the offender. [Emphasis added.]

233                           Harm is frequently the determining factor in assessing the severity of an offence and in distinguishing between levels of responsibility for equally mentally blamable acts.  For example, under s. 7 , this Court, in DeSousa (per Sopinka J.), held that Parliament could treat crimes that produce certain consequences as more serious than crimes that lack those consequences: “[I]t is acceptable to distinguish between criminal responsibility for equally reprehensible acts on the basis of the harm that is actually caused” (p. 967).  See also R. v. Williams, [2003] 2 S.C.R. 134, 2003 SCC 41, at paras. 43-46.

234                           These principles are also in line with all sentencing principles adopted by this Court.  Indeed, harm, or the seriousness of prohibited conduct, along with mental blameworthiness, form the basis for culpability, and go hand in hand to determine the appropriate sentence  (see D. E. Scheid, “Constructing a Theory of Punishment, Desert, and the Distribution of Punishments” (1997), 10 Can. J.L. & Juris. 441, at p. 484; von Hirsch and Jareborg, supra, at p. 2).  It is a fundamental principle of sentencing that both the severity of the offence and the moral blameworthiness of the offender should dictate the quantum of sentence.  As Lamer C.J. held in R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 36:  “For offences where imprisonment is available, the Code sets maximum terms of incarceration in accordance with the relative severity of each crime.”  And further, at para. 40:  “It is a well‑established tenet of our criminal law that the quantum of sentence imposed should be broadly commensurate with the gravity of the offence committed and the moral blameworthiness of the offender.”  See also s. 718.1  of the Criminal Code , which states that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”:  R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5, at para. 82; R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18, at para. 18; G. P. Fletcher, Rethinking Criminal Law (1978), at pp. 461-62.

235                           Hence, harm or the risk of harm is a determinative factor in the assessment of the seriousness or wrongfulness of prohibited conduct.  Harm associated with victimizing conduct, i.e., conduct which infringes on the rights and freedoms of identifiable persons, is the most obvious, and the concern usually is with how much the person has been harmed.  This, in turn, is likely to dictate the extent of punishment or the difference in the labelling of an offence, as well as the level of mens rea necessary to establish culpability.  Other forms of conduct cause harm that is more diffuse, where no identifiable persons have had their rights or freedoms infringed by the conduct; the harm there is collective and it is the public interest that is adversely affected.  Finally, other conduct is even more distant from this notion of harm, and the prohibition of that conduct is aimed at advancing public interests distinct from the protection of individuals or society.

236                           The fundamental question raised in these appeals is whether harm is a constitutionally required component of the actus reus of any offence punishable by imprisonment.  We have seen above that harm may not be the only basis upon which Parliament may decide to prohibit or regulate a given type of conduct.  We must now determine whether the Charter  requires that harm be the sole basis upon which the state may employ the threat of imprisonment as a sanction against a prohibited conduct.

237                           The debate over the harm principle takes place around the traditional confrontation between harm and morality as a basis for restricting an individual’s liberty.  The liberal view was initially espoused by Victorian philosopher and economist John Stuart Mill in his essay, On Liberty.  He wrote:

The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion.  That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self‑protection.  That 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.  His own good, either physical or moral, is not a sufficient warrant.  He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right.  These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise.  To justify that, the conduct from which it is desired to deter him, must be calculated to produce evil to some one else.  The only part of the conduct of any one, for which he is amenable to society, is that which concerns others.  In the part which merely concerns himself, his independence is, of right, absolute.  Over himself, over his own body and mind, the individual is sovereign.  [Emphasis added.]

(J. S. Mill, On Liberty and Considerations on Representative Government (1946), at pp. 8-9)

Mill’s principle was exclusive:  “[T]he 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” (p. 8 (emphasis added)).

238                           Mill’s assertion was challenged by Sir James Fitzjames Stephen in Liberty, Equality, Fraternity (1967), initially published in 1874, who strongly opposed any limitation on the power of the state to enforce morality.  Stephen’s argument was best captured in a now-famous passage: “there are acts of wickedness so gross and outrageous that, self-protection apart, they must be prevented as far as possible at any cost to the offender, and punished, if they occur, with exemplary severity” (p. 162).  This debate between Mill and Stephen was reignited in England by the recommendation in 1957 of the Committee on Homosexual Offences and Prostitution to decriminalize homosexuality on the basis that it is not the duty of the law to concern itself with immorality as such (The Wolfenden Report (1963), at paras. 61-62).  The reactions to the Wolfenden Report have been vehement.  Lord Patrick Devlin, in his Maccabaean Lecture delivered at the British Academy in 1959 (later published: P. Devlin, The Enforcement of Morals (1965)), argued that purportedly immoral activities, like homosexuality and prostitution, should remain criminal offences and he became associated with the principle of legal moralism — the principle that moral offences should be regulated because they are immoral (see on this:  B. E. Harcourt, “The Collapse of the Harm Principle” (1999), 90 J. Crim. L. & Criminology 109, at pp. 111-12; B. Lauzon, Les champs légitimes du droit criminel et leur application aux manipulations génétiques transmissibles aux générations futures (2002), at p. 26). 

239                           This position is opposed to the liberal view of Professors Hart and Feinberg who reiterated Mill’s harm principle.  According to J. Feinberg, who adopts a less exclusive view of the harm principle in The Moral Limits of the Criminal Law (1984), in the first volume, entitled Harm to Others, at p. 26, “[i]t is always a good reason in support of penal legislation that it would probably be effective in preventing . . . harm to persons other than the actor.”  The debate between legal moralism and the harm principle has stimulated academic discussions and much has been written on this topic (see, inter alia, in addition to other sources cited throughout these reasons: “Symposium: The Moral Limits of the Criminal Law” (2001), 5 Buff. Crim. L. Rev. 1-319; Mill’s On Liberty: Critical Essays (1997), edited by Gerald Dworkin).  Braidwood J.A. referred, at paras. 107-12, to various authors who either adopted the harm principle or incorporated it in their writings.  One of the most prominent, H. L. Packer, in his influential The Limits of the Criminal Sanction (1968) said, at p. 267, that “harm to others” must be a “limiting criteri[on] for invocation of the criminal sanction”.  This debate, which has remained focused, as I said earlier, on what should be criminalized, also permeated the work of the Law Reform Commissions in Canada on possible reforms of the Criminal Code .  I need not expand on their recommendations for my purposes.  Suffice it to say that Braidwood J.A. referred to various reports, all of which basically advocated that the criminal law should only be used, save in exceptional circumstances, where conduct causes or risks causing significant or grave harm to others or society (see paras. 113-16). 

240                           This philosophical and theoretical debate is of great interest and is a useful policy  tool for law makers.  It may also serve as a guide in the characterization of the harm principle as a principle of fundamental justice.  However, as guardians of the constitutional principles of fundamental justice, courts are not expected to merely choose from among the competing theories of harm advanced by criminal law theorists.  As Doherty J.A. said in R. v. Murdock (2003), 11 C.R. (6th) 43 (Ont. C.A.), at para. 31:

Nor should the harm principle be taken as an invitation to the judiciary to consecrate a particular theory of criminal liability as a principle of fundamental justice.  This is so even if that theory has gained the support of law reformers, some of whom also happen to be judges.  Judicial review of the substantive content of criminal legislation under s. 7  should not be confused with law reform.  Judicial review tests the validity of legislation against the minimum standards set out in the Charter .  Law reform tests the legal status quo against the law reformer’s opinion of what the law should be.

241                           This Court has discussed, albeit under s. 1 , the interaction between morality and harm as a valid basis to restrict Charter  rights.  In R. v. Butler, [1992] 1 S.C.R. 452, at p. 498, Sopinka J., writing for the majority, held that “[t]he objective of maintaining conventional standards of propriety, independently of any harm to society, is no longer justified in light of the values of individual liberty which underlie the Charter .”  Sopinka J. also noted, at pp. 492-93, that “[t]o impose a certain standard of public and sexual morality, solely because it reflects the conventions of a given community, is inimical to the exercise and enjoyment of individual freedoms, which form the basis of our social contract. . . . The prevention of ‘dirt for dirt’s sake’ is not a legitimate objective which would justify the violation of one of the most fundamental freedoms enshrined in the Charter .”  Sopinka J. however conceded that Parliament had the right to legislate on the basis of some fundamental conception of morality for the purposes of safeguarding the values which are integral to a free and democratic society (at p. 493):

Moral disapprobation is recognized as an appropriate response when it has its basis in Charter  values.

As the respondent and many of the interveners have pointed out, much of the criminal law is based on moral conceptions of right and wrong and the mere fact that a law is grounded in morality does not automatically render it illegitimate. In this regard, criminalizing the proliferation of materials which undermine another basic Charter  right may indeed be a legitimate objective.

Sopinka J. found that the overriding objective of the impugned provision was not however moral disapprobation but the avoidance of harm to society, which he considered a substantial concern that justified restriction of the freedom of expression.

242                           In a concurring opinion, Gonthier J., writing for himself and L’Heureux-Dubé J., said, at p. 522, that “the avoidance of harm to society is but one instance of a fundamental conception of morality”.  Speaking about the type of moral claim that could justify an infringement of s. 2 (b) of the Charter , Gonthier J. wrote, at pp. 523-24:

First of all, the moral claims must be grounded. They must involve concrete problems such as life, harm, well‑being, to name a few, and not merely differences of opinion or of taste.  Parliament cannot restrict Charter  rights simply on the basis of dislike; this is what is meant by the expression “substantial and pressing” concern.

Secondly, a consensus must exist among the population on these claims.  They must attract the support of more than a simple majority of people.  In a pluralistic society like ours, many different conceptions of the good are held by various segments of the population. . . .  In this sense a wide consensus among holders of different conceptions of the good is necessary before the State can intervene in the name of morality.

243                         In the present case, the state does not advance morality as a basis for restricting the right to liberty of the appellants, although it appears to have played an important role in the original addition of cannabis to the list of prohibited narcotics (both trial judges put special emphasis on the provocative writings of Edmonton, Alberta Magistrate Emily Murphy, which, according to Howard Prov. Ct. J., “consisted of reckless assertions of fact which were, quite simply, untrue” and which “helped to create a climate of irrational fear which, no doubt, provided some impetus to the movement to prohibit the use of marihuana” (para. 32)).  Had the respondent based its legislation on morality grounds, we would have had to determine the sufficiency of this justification to resort to imprisonment in light of the harm principle as a principle of fundamental justice. However, it is not necessary to comment on the eventual success of such an argument because in any event, here, as in Butler, supra, the overriding purpose of the prohibition is not moral disapprobation, but the protection against harm.  Therefore, we are not asked in these cases to take side in the “harm vs. morality” debate nor to determine if, and if so in which circumstances, conduct that offends morality could be said to harm others or society as a whole.  The state purports to prohibit conduct that it says is directly harmful to the health of individuals, and incidentally to society as a whole.

244                           I am of the view 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.  As Braidwood J.A. said in Caine, “it is common sense that you don’t go to jail unless there is a potential that your activities will cause harm to others” (para. 134).

245                           In Murdock, supra, Doherty J.A. characterized the harm principle as follows, at para. 33:

The harm principle, as a principle of fundamental justice, goes only so far as to preclude the criminalization of conduct for which there is no “reasoned apprehension of harm” to any legitimate personal or societal interest.  If conduct clears that threshold, it cannot be said that criminalization of such conduct raises the spectre of convicting someone who has not done anything wrong. Difficult questions such as whether the harm justifies the imposition of a criminal prohibition or whether the criminal law is the best way to address the harm are policy questions that are beyond the constitutional competence of the judiciary and the institutional competence of the criminal law adversarial process. 

Like Braidwood J.A. in Caine and Rosenberg J.A. in Clay, Doherty J.A.’s concern was, by his own words, to draw a distinction “between the harm principle as a principle of fundamental justice and closely related, but distinct policy questions surrounding the application of the criminal law” (para. 34).  Indeed,  he adds in a footnote at para. 33:

For example, many argue that the criminal sanction should be a last resort employed only if other forms of governmental action cannot adequately address the harm flowing from the conduct.  This minimalist approach to criminal law may well be sound criminal law policy.  However, it hardly reflects the historical reality of the scope of the criminal law so as to be properly described as a principle of fundamental justice.  Any attempt to apply minimalist doctrine to a specific piece of legislation would raise complex questions of social policy which would defy effective resolution in the context of the adversarial criminal law process.

246                           As I said before, however, the focus must remain on the choice by the state to resort to imprisonment to sanction conduct that it has decided to prohibit through its criminal law power or otherwise.  The power of Parliament to use criminal law is broad and any concern as to what should be criminalized remains in the hands of the elected representatives.  However, in my view, 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.  “Doing nothing wrong” in that sense means acting in a manner which causes little or no reasoned risk of harm to others or to society.  The Charter  requires that the highest form of restriction of liberty be reserved for those who, at a minimum, infringe on the rights or freedoms of other individuals or otherwise harm society.  I note that the notion of harm is not foreign to s. 7 .  Indeed, in addition to the cases referred to earlier, McLachlin J. (as she then was), in her dissenting reasons in Rodriguez, supra, at p. 618, referred to the notion of harm to others while discussing the scope of the right to security under s. 7 :

Security of the person has an element of personal autonomy, protecting the dignity and privacy of individuals with respect to decisions concerning their own body. It is part of the persona and dignity of the human being that he or she have the autonomy to decide what is best for his or her body. This is in accordance with the fact, alluded to by McEachern C.J.B.C. below, that “s. 7  was enacted for the purpose of ensuring human dignity and individual control, so long as it harms no one else”: (1993), 76 B.C.L.R. (2d) 145, at p. 164.  [Emphasis added.]

247                           Where legislation which may deprive individuals of their liberty is aimed at protecting other individuals or society from the risk of harm caused by the prohibited conduct, courts must scrutinize carefully the harm alleged.  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.  This Court has used principles of interpretation aimed at excluding from the criminal ambit conduct that is tenuously related to the alleged harm.  Thus, in R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, the accused accepted that harm to children justified criminalizing possession of some forms of child pornography.  The fundamental question was rather whether the prohibition went too far by criminalizing possession of an unjustifiable range of material.  McLachlin C.J., for the majority of this Court, had this to say on whether the causal link between a specific prohibition and the harm to children was sufficient, at paras. 74, 75 and 95:

These exclusions support the earlier suggestion that Parliament’s goal was to prohibit possession of child pornography that poses a reasoned risk of harm to children. The primary definition of “child pornography” does not embrace every kind of material that might conceivably pose a risk of harm to children, but appears rather to target blatantly pornographic material. . . .

Yet problems remain. The interpretation of the legislation suggested above reveals that the law may catch some material that particularly engages the value of self‑fulfilment and poses little or no risk of harm to children.

                                                                   . . .

If the law is drafted in a way that unnecessarily catches material that has little or nothing to do with the prevention of harm to children, then the justification for overriding freedom of expression is absent.   [Emphasis added.]

While these comments were made under s. 1 , they illustrate the threshold to be met to establish a sufficient causal link between prohibited conduct and the harm alleged to be caused by such conduct.  Thus, for our purposes, if the prohibition of conduct engages a s. 7  interest, as the threat of imprisonment does, while the conduct poses little or no risk of harm to others, then the law is contrary to s. 7 .

248                           Where harm to society as a whole is alleged, how must such harm be assessed?  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.  McLachlin J., in Rodriguez, supra, best summarized this idea.  She stated, at p. 622:

As my colleague Sopinka J. notes, this Court has held that the principles of fundamental justice may in some cases reflect a balance between the interests of the individual and those of the state.  This depends upon the character of the principle of fundamental justice at issue.  Where, for instance, the Court is considering whether it accords with fundamental justice to permit the fingerprinting of a person who has been arrested but not yet convicted (R. v. Beare, [1988] 2 S.C.R. 387), or the propriety of a particular change in correctional law which has the effect of depriving a prisoner of a liberty interest (Cunningham v. Canada, [1993] 2 S.C.R. 143), it may be that the alleged principle will be comprehensible only if the state’s interest is taken into account at the s. 7  stage.

(See, inter alia, Cunningham v. Canada, [1993] 2 S.C.R. 143, at pp. 151-52; Godbout, supra, at para. 78:  “From the foregoing discussion, it is clear that deciding whether the infringement of a s. 7  right is fundamental[ly] just may, in certain cases, require that the right at issue be weighed against the interests pursued by the state in causing that infringement”; Parker, supra, at para. 113; R. v. Pan (1999), 134 C.C.C. (3d) 1, at paras. 177-87, appeal dismissed [2001] 2 S.C.R. 344, 2001 SCC 42, at paras. 39-40.)  Considering the nature of the harm principle, societal interests will have to be assessed where the harm alleged to be associated with the prohibited conduct affects society as a whole rather than identifiable individuals. 

249  Societal interests in prohibiting conduct are evaluated by balancing the harmful effects on society if the conduct in question is not prohibited by law against the effects of prohibiting the conduct in question.  It would indeed be misleading to engage in an assessment of the state’s interest in prohibiting conduct by evaluating solely the collective harm that the state wishes to prevent without also evaluating the collective costs incurred by preventing such harm (see Packer, supra, at p. 267:  “[o]ne cannot meaningfully deal with the question of ‘harm to others’ without weighing benefits against detriments”).  The harm or risk of harm to society caused by the prohibited conduct must outweigh any harm that may result from enforcement.

250                           The impact conduct has on society will be assessed by gauging the tolerance society has for the negative effects (or harm) occasioned by the conduct in question.   Similarly to what Sopinka J. said in Butler, supra, at p. 485, the stronger the inference of a risk of harm, the lesser the likelihood of tolerance. Such an assessment is contextual; it cannot be undertaken in a vacuum and must therefore be made in concreto, by reference, where possible, to the tolerance society shows to the harm occasioned by comparable conduct.  The risk of harm to society occasioned by the conduct must then be balanced against the costs imposed upon society by the prohibition of the conduct in question.  The stronger the risk of harm to society caused by the conduct, the greater the costs society will be ready to bear to enforce its prohibition.  Here once again, if the prohibition of conduct engages a s. 7  interest, as the threat of imprisonment does, while the conduct poses little or no risk of harm to others, then the law is contrary to s. 7 .

251                           I stress that where direct harm to identifiable others is caused by conduct, societal interests are easier to identify because of the nature of the relationship between the state, the offender, and the victim.   As Doherty J.A. mentioned in Murdock, supra, at para. 35, in those circumstances, the state’s interest is the protection of individuals in the community from the harm occasioned by the conduct in question. In prohibiting the conduct and in threatening imprisonment for its enforcement, the state restricts the actor’s liberty in order to protect the rights or freedoms of others.  In circumstances where one’s rights and freedoms are directly threatened by another’s actions, the state is justified in using imprisonment to sanction the conduct, provided that it causes more than little or no reasoned risk of harm to others.  The justification is then grounded in the outer limits of individual freedom which reflect the need to preserve the rights and freedoms of others.  In those circumstances, it would be offensive to pursue a further analysis as to whether the costs of enforcement of the offence are such that they outweigh the victim’s rights.  However, where others’ rights and interests are not directly threatened by the prohibited conduct, the justification has a different source.  In those circumstances, societal interests, comprising the benefits and detriments of a prohibition, must be such that the restriction of the person’s liberty produces a net benefit as a whole. 

(b)   Other Principles of Fundamental Justice Involved

252                           The harm principle is dispositive of these appeals.  Therefore, I need not discuss whether other principles of fundamental justice are involved and whether the impugned provisions are in accordance with them.

253                           We must now determine whether the harm associated with marihuana use justifies the state’s decision to use imprisonment as a sanction against the prohibition of its possession.

(3)   Has the Deprivation of Liberty Occurred in Accordance with the Principles of Fundamental Justice?

254                           It is useful at this stage to briefly revisit the harm caused by marihuana use as found by the trial judges.  Although there is no need at this stage to reproduce the findings of the trial judges as to what harms are not associated with marihuana use,  remember that these findings displaced many commonly held but entirely erroneous assumptions regarding the effects of marihuana use (see para. 192, above).  As to the harmful effects of marihuana use, recall that McCart J. held in Clay that the consumption of marihuana is “not completely harmless” but “unlikely to create serious harm for most individual users or society” (para. 26). 

255                           Howard Prov. Ct. J. in Caine summarized her overall findings on harm as follows, at paras. 121-26:

The evidence before me demonstrates that there is a reasonable basis for believing that the following health risks exist with [marihuana use].

There is a general risk of harm to the users of marihuana from the acute effects of the drug, but these adverse effects are rare and transient.  Persons experiencing the acute effects of the drug will be less adept at driving, flying and other activities involving complex machinery.  In this regard they represent a risk of harm to others in society.  At current rates of use, accidents caused by users under the influence of marihuana cannot be said to be significant.

There is also a risk that any individual who chooses to become a casual user, may end up being a chronic user of marihuana, or a member of one of the vulnerable persons identified in the materials.  It is not possible to identify these persons in advance.

As to the chronic users of marihuana, there are health risks for such persons. The health problems are serious ones but they arise primarily from the act of smoking rather than from the active ingredients in marihuana. Approximately 5% of all marihuana users are chron[i]c users.  At current rates of use, this comes to approximately 50,000 persons. There is a risk that, upon legalization, rates of use will increase, and with that the absolute number of chronic users will increase.

In addition, there are health risks for those vulnerable persons identified in the materials. There is no information before me to suggest how many people might fall into this group.  Given that it includes young adolescents who may be more prone to becoming chronic users, I would not estimate this group to be min[u]scule.

All of the risks noted above carry with them a cost to society, both to the health care and welfare systems. At current rates of use, these costs are negligible compared to the costs associated with alcohol and drugs [sic].  There is a risk that, with legalization, user rates will increase and so will these costs.

256                           The inevitable conclusion is that 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, to which I will return, 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.  In my view, as I stated above, 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 prohibition of conduct that only causes harm to self, regardless of the gravity of the harm, is not in accordance with the principles of fundamental justice and, if imprisonment is available as a means to enforce the prohibition, a breach of s. 7  of the Charter  will have been established.

257                           It is important at this stage to address a specific issue raised by my colleagues.  Although they find that the purpose of the impugned legislation is the protection of health and public safety in general (see majority reasons at para. 65), my colleagues put great emphasis on the fact that it also aims at protecting vulnerable groups from self-inflicted harm (see majority reasons at paras. 76, 77, 100, 108, 123-126 and 132).  Specifically, they recall the state’s interest in acting to protect vulnerable groups, citing New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at para. 70; and B. (R.), supra, at para. 88.  They also claim that the protection of vulnerable groups is a valid exercise of the criminal law power, citing Rodriguez, supra, at p. 595; R. v. Morgentaler, [1988] 1 S.C.R. 30, at pp. 74-75; R. v. Keegstra, [1995] 2 S.C.R. 381; Sharpe, supra; and Butler, supra.  While the cases referred to by my colleagues clearly illustrate the state’s interest in the protection of vulnerable groups from others who might harm them, they are far from suggesting that it is the vulnerable ones who should be sent to jail for their self-protection.  Implicit in my colleagues’ argument is that the state would be justified in threatening with imprisonment adolescents with a history of poor school performance, women of childbearing age and persons with pre-existing diseases such as cardiovascular diseases, respiratory diseases, schizophrenia and other drug dependencies, who are at particular risk of harming themselves by using marihuana.  I do not think that an exception to the harm principle is justified to allow the state to threaten with imprisonment vulnerable people in order to prevent them from harming themselves.  To this effect, I note Abella J.A.’s sound reasoning (with which the other members of the panel agreed, albeit on narrower grounds), in R. v. M. (C.) (1995), 30 C.R.R. (2d) 112 (Ont. C.A.), at pp. 121-23.  In that case, the issue was the constitutionality of criminalizing anal intercourse between non-married persons under 18 years of age, regardless of consent:

The issue then comes down to this: is sending young persons to jail a reasonable way for the state to protect them from any risks associated with consensual anal intercourse?

If the prevention of harm by discouraging the risk is the objective, it is difficult to imagine a more intrusive way to protect an individual from harm than criminal prosecution. . . .  The risk associated with unprotected sexual conduct is a health risk. It strikes me as decidedly inappropriate to deal with minimizing health risks at any age by using the punitive force of the Criminal Code , but especially so for young people.

                                                                   . . .

There is no evidence that threatening to send an adolescent to jail will protect him (or her) from the risks of anal intercourse.  I can see no rational connection between protecting someone from the potential harm of exercising sexual preferences and imprisoning that individual for exercising them.  There is no proportionality between the articulated health objectives and the Draconian criminal means chosen to achieve them.

258                           While these comments were made in the analysis of the proportionality test under s. 1 , they reflect my view that 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.  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 persons may harm themselves if they engage in it, particularly if one accepts that imprisonment would be inappropriate for the targeted vulnerable groups.  I agree with Packer that to justify imprisonment of both vulnerable persons and other members of the population on that basis would create a society in which “all are safe but none is free” (Packer, supra, at p. 65).

259                           My colleagues Gonthier and Binnie JJ. have argued that imprisonment for simple possession is not a serious threat upon conviction for possession of marihuana by members of vulnerable groups, since it is only in the presence of “aggravating circumstances” that imprisonment will be a fit sentence.  This assertion does not strengthen their position.  In fact, it highlights the main difficulty.  Imprisonment is an available punishment for simple possession.  As demonstrated by the cases cited by my colleagues (at para. 156), imprisonment has been and continues to be employed by Canadian courts in sentencing those convicted of possession simpliciter.  By definition, the vulnerable groups are the ones whose members are most likely to suffer harm from the use of marihuana.  However, by the reasoning of my colleagues, it is those offenders who are not members of vulnerable groups, i.e., those that do not risk anything more than negligible harm to self and others, who will face the threat of imprisonment due to the “presence of aggravating circumstances” (para. 155).

260                           The argument of the majority that the availability of imprisonment as a fit sentence in this case is more appropriately approached under s. 12  than under s. 7  is unconvincing.  Section 12  of the Charter  protects against “cruel and unusual treatment or punishment”.  Although imprisonment is undoubtedly very serious, it is not inherently “cruel and unusual”.  Section 7  provides the proper scope for considering whether the availability of imprisonment for an offence and the consequent engagement of the liberty interest in s. 7  are in accordance with the principles of fundamental justice.  This accords with Lamer J.’s observations in Motor Vehicle Reference, supra, at p. 515:

A law enacting an absolute liability offence will violate s. 7  of the Charter  only if and to the extent that it has the potential of depriving of life, liberty, or security of the person.

Obviously, imprisonment . . . deprives persons of their liberty. An offence has that potential as of the moment it is open to the judge to impose imprisonment. There is no need that imprisonment, as in s. 94(2), be made mandatory. [Emphasis added.]

It is inappropriate to restrict the consideration of the constitutionality of a person’s liberty interest to s. 12 .  Such a stance is counter to the notion that ss. 8  to 14  of the Charter  are specific illustrations of the principles of fundamental justice in s. 7 , as explained by Lamer J. in Motor Vehicle Reference, supra, at p. 502.  Where, as here, a principle of fundamental justice that is not specifically named in ss. 8  to 12  — the harm principle — is invoked, the analysis is appropriately conducted pursuant to s. 7 .

261                           With respect to the harm to others or to society as a whole occasioned by marihuana use,  Howard Prov. Ct. J. (McCart J. came to the same conclusion) identified (i) the risk that persons intoxicated from marihuana may be less adept at driving, flying, or doing other activities involving complex machinery, and (ii) the “cost to society, both to the health care and welfare systems” (para. 126).  Regarding the former, she acknowledges that “[a]t current rates of use, accidents caused by users under the influence of marihuana cannot be said to be significant” (para. 122).  Regarding the latter, she acknowledged, at para. 52,  that “[t]he evidence establishes that any health care concerns (including financial concerns) associated with marihuana use in this country are minor compared to the social, criminal and financial costs associated with the use of alcohol or tobacc[o]”, but considered that “[t]here is a risk that, with legalization, user rates will increase and so will these costs” (para. 126).  Hence, describing the two risks of harm to others (from driving and from the burden on the health and welfare systems), Howard Prov. Ct. J. said that at current rates of use, the first risk “cannot be said to be significant”, and that the second is “minor”. 

262                           With respect, I can see no difference for the purpose of determining the level of harm to others caused by marihuana use between the terms “insignificant” and “trivial”, used by Braidwood J.A. in Caine and Rosenberg J.A. in Clay to describe the threshold level of harm, and the expressions “cannot be said to be significant” and “negligible”, used by Howard Prov. Ct. J. to quantify the level of harm to society.  Both Braidwood J.A. and Rosenberg J.A. concluded that the findings of fact of the trial judges show that marihuana indeed poses a risk of harm to others and society that is not insignificant nor trivial (paras. 141-43 in Caine; para. 34 in Clay).  However, Braidwood J.A. came to this conclusion after he quoted in whole the passage from Howard Prov. Ct. J.’s reasons which summarizes all the possible harms associated with marihuana use, including health risks to the user.  Rosenberg J.A. apparently did the same since he referred to the findings of McCart J. as a whole and concluded that this showed that “there is some harm associated with marijuana use” (para. 34).  Braidwood J.A. and Rosenberg J.A. apparently failed to distinguish between harm caused only to self from harm which puts others or society as a whole at risk.  Having made this essential distinction, I conclude that the evidence does not support a conclusion that marihuana use causes a reasoned risk of harm to others or to society that is not insignificant or trivial, to use Braidwood J.A.’s own terms.

263                           In any event, in my view, the two spheres of risks to others or society as a whole identified by the trial judges are not sufficient to justify recourse to the most severe penalty imposed by law, a sentence generally viewed as a last resort (see Motor Vehicle Reference, supra, at p. 532, per Wilson J.).  The two risks do not show that marihuana use causes more than little or no harm to others or to society.  First, while the risk that persons experiencing the acute effects of the drug may be less adept at driving, flying and engaging in other activities involving complex machinery is indeed a valid concern, the act of driving while under the influence of alcohol or drugs is an  activity separate from mere possession and use.  Such dangerous driving is already dealt with in the Criminal Code , and rightly so, because it is this act which risks victimizing identifiable others as well as society as a whole.  In my view, the state cannot rely on this separate offence to justify the prohibition of possession of marihuana simpliciter.   This is indeed the approach Parliament has adopted regarding alcohol.   I note that in Caine, supra, Howard Prov. Ct. J. stated explicitly that “[a]part from the above problem [operation of vehicles or other machinery while intoxicated], there is no evidence to suggest that harm of any kind will befall individual members of society as a result of any actions by individual marihuana users” (para. 50).

264                           The second negative effect on society as a whole found by the trial judge, i.e., general harm to the health care and welfare systems, is simply too remote and minor to justify the threat of imprisonment for simple possession of marihuana.  Much seemingly innocent conduct may have deleterious consequences.  In fact, it is not easy to identify conduct which can be said confidently to be without risk of injury in the long run (see, inter alia, A. von Hirsch, “Extending the Harm Principle: ‘Remote’ Harms and Fair Imputation”, in A. P. Simester and A. T. H. Smith, eds., Harm and Culpability (1996), 259, at p. 260; Harcourt, supra).  Canadians have a universal health care system to deal with injuries and illnesses, irrespective of fault.  Arguments solely based on vague general costs to the health care system cannot justify imprisonment for any kind of risky undertaking.  There is hardly a net benefit to society in imprisoning, on the basis of the costs they impose on the health care and welfare systems, those very persons who may need access to and support from such systems.  Canadians do not expect to go to jail whenever they embark on some adventure which involves a possibility of injury to themselves.  I see no reason to single out those who may jeopardize their health by smoking marihuana. 

265                           In the cases before us, the societal interests in prohibiting marihuana possession must take into account, on the one hand, the burden that marihuana use imposes on the health care and welfare systems, and, on the other, the costs incurred by society because of the prohibition.  Howard Prov. Ct. J. noted that at current rates of use, the costs imposed upon the health care and welfare systems by marihuana are negligible compared to the costs associated with alcohol and drugs.  As I mentioned earlier, society’s tolerance for the harmful effects that the conduct may entail must be assessed, where possible, by reference to its tolerance for comparable conduct.  I will thus simply take note of the trial judges’ findings that the burden that marihuana use imposes on society is “negligible” or “very, very small” compared to the costs imposed by comparable conduct that society tolerates (i.e., alcohol and tobacco use).

266                           If there remained any doubt as to whether the harms associated with marihuana use justified the state in using imprisonment as a sanction against its possession, this doubt disappears when the harms caused by the prohibition are put in the balance.  The record shows and the trial judges found that the prohibition of simple possession of marihuana attempts to prevent a low quantum of harm to society at a very high cost.  A “negligible” burden on the health care and welfare systems, coupled with the many significant negative effects of the prohibition, cannot be said to amount to more than little or no reasoned risk of harm to society.  I thus conclude that s. 3(1) and (2) of the Narcotic Control Act, as it prohibits the possession of marihuana for personal use under threat of imprisonment, violates the right of the appellants to liberty in a manner that is not in accordance with the harm principle, a principle of fundamental justice, contrary to s. 7  of the Charter .

(4)   Possession for the Purpose of Trafficking

267                           Before moving to the issue of whether the infringement is justified under s. 1  of the Charter , I will briefly address the issues raised by the appellant Malmo-Levine.   Malmo-Levine argues that the prohibition of possession for the purpose of trafficking under s. 4(2) of the Narcotic Control Act infringes ss. 7  and 15  of the Charter .  My colleagues Gonthier and Binnie JJ. have discussed Malmo-Levine’s argument under s. 15 , and have concluded that s. 4(2) of the Narcotic Control Act does not discriminate against the appellant since the decision to possess and traffic in marihuana is not an immutable personal characteristic, and treating persons who choose to do so in a differential manner in no way infringes human dignity or reinforces prejudicial stereotypes or historical disadvantage.  I agree entirely with this conclusion.

268                           Considering their conclusion that the prohibition of simple possession of marihuana does not violate s. 7  of the Charter , my colleagues Gonthier and Binnie JJ. did not address the issue raised by Malmo-Levine with regard to s. 7  and, for the same reason, neither did the courts below.   In fact, Malmo-Levine’s challenge at the British Columbia Court of Appeal was restricted to the part of his charge relating to possession (para. 8 of Braidwood J.A.’s reasons).  Moreover, the findings of fact of the trial judges in Clay and Caine concern the harm related to marihuana use, but there is nothing in the factual record concerning the harm associated specifically with the act of trafficking.  Most if not all of the arguments before this Court have focussed on possession for personal use. On this record, it is virtually impossible to determine whether possession of marihuana for the purpose of trafficking causes more than little or no harm to others.  I am aware that the health risks associated with marihuana use could be used to demonstrate that the trafficker, involving third parties, puts their health at risk and thus risks causing more than little or no harm to others than himself or herself.  However, this obvious argument cannot be properly addressed without consideration of many factors which were not argued by the parties, such as, for instance, the issue of consent (see, e.g., P. Alldridge, “Dealing with Drug Dealing”, in Harm and Culpability, supra, at p. 239).  A conclusion on this issue raised by the appellant Malmo-Levine would be based on pure speculation.  On this record, I cannot conclude that the appellant has met his burden and therefore his constitutional challenge fails.

(5)   Is the Infringement Justified Under Section 1 of the Charter ?

269                           This Court has explained, in R. v. Mills, [1999] 3 S.C.R. 668, the relation between ss. 7  and 1 .  McLachlin and Iacobucci JJ., writing for the majority, held as follows, at paras. 65-67:

It is also important to distinguish between balancing the principles of fundamental justice under s. 7  and balancing interests under s. 1  of the Charter .  The s. 1  jurisprudence that has developed in this Court is in many respects quite similar to the balancing process mandated by s. 7 . . . .

However, there are several important differences between the balancing exercises under ss. 1  and 7 . The most important difference is that the issue under s. 7  is the delineation of the boundaries of the rights in question whereas under s. 1  the question is whether the violation of these boundaries may be justified. The different role played by ss. 1  and 7  also has important implications regarding which party bears the burden of proof. If interests are balanced under s. 7  then it is the rights claimant who bears the burden of proving that the balance struck by the impugned legislation violates s. 7 . If interests are balanced under s. 1  then it is the state that bears the burden of justifying the infringement of the Charter  rights.

Because of these differences, the nature of the issues and interests to be balanced is not the same under the two sections. As Lamer J. (as he then was) stated in Re B.C. Motor Vehicle Act, supra, at p. 503: “the principles of fundamental justice are to be found in the basic tenets of our legal system”.  In contrast, s. 1  is concerned with the values underlying a free and democratic society, which are broader in nature.  In R. v. Oakes, [1986] 1 S.C.R. 103, Dickson C.J. stated, at p. 136, that these values and principles “embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society”.  In R. v. Keegstra, [1990] 3 S.C.R. 697, at p. 737, Dickson C.J. described such values and principles as “numerous, covering the guarantees enumerated in the Charter  and more”. [Emphasis added.]

270                           In the cases before this Court, certain factors would be better evaluated in the analysis under s. 1 , where the Crown will bear the burden of proving them, rather than under s. 7 .  As Rosenberg J.A. held in Parker, supra, the companion case of Clay at the Court of Appeal for Ontario, at para. 119:

Thus, the difference between the s. 1  and the s. 7  analysis is important not only because of the different interests to be considered but also because of the shift in the burden of proof.  For example, the Crown argued that in considering whether the law struck the right balance between the accused’s interests and the interests of the state under s. 7 , the court should consider Canada’s international treaty obligations. It may be, however, that such interests are more properly a matter for consideration under s. 1 , in which case the Crown would bear the onus of demonstrating that the violation of s. 7  was necessary to uphold Canada’s treaty obligations.  See R. v. Malmo‑Levine, 2000 BCCA 335, at para. 151, 145 C.C.C. (3d) 225.

Some balancing of societal interests has been done here under s. 7  in ascertaining the existence and the content of the harm principle as a principle of fundamental justice.  In many instances, Canada’s treaty obligations will be apposite to a s. 7  analysis.  Indeed, in some cases an examination of international law will provide indispensable insight into the scope and content to be given to the “principles of fundamental justice”  (Motor Vehicle Reference, supra, at p. 503; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1, at para. 46; United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7, at paras. 79-81).  This is not the case here, however.  Given the nature of the harm principle, Canada’s treaty obligations are not particularly helpful in demonstrating the existence or application of the principle as a principle of fundamental justice.   Treaty obligations and international law generally may, of course, also be considered under s. 1  in the determination of whether a violation of s. 7  can be justified (R. v. Oakes, [1986] 1 S.C.R. 103, at pp. 140-41; Mills, supra, at paras. 65-67).

271                           However, while s. 7  violations may be saved by s. 1 , this will occur rarely, as was explained by Lamer C.J. in New Brunswick (Minister of Health and Community Services), supra, at para. 99: 

Section 7  violations are not easily saved by s. 1 . . . .

                                                                   . . .

This is so for two reasons. First, the rights protected by s. 7  —  life, liberty, and security of the person — are very significant and cannot ordinarily be overridden by competing social interests. Second, rarely will a violation of the principles of fundamental justice, specifically the right to a fair hearing, be upheld as a reasonable limit demonstrably justified in a free and democratic society.

The general approach in international law is that a state may not invoke its internal law as justification for its failure to perform a treaty (Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37, Art. 27; Zingre v. The Queen, [1981] 2 S.C.R. 392, at p. 410).  However, the treaty obligations Canada has undertaken in the war on drugs are subject to, inter alia, Canada’s “constitutional limitations” (Single Convention on Narcotic Drugs, 1961, Can. T.S. 1964 No. 30, Art. 36) and Canada’s “constitutional principles and the basic concepts of its legal system” (Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Can. T.S. 1990 No. 42, Art. 3(2)).   The express subordination of these treaties to the requirements of domestic constitutional law suggests that they would not significantly assist an attempt to justify the s. 7  violation in s. 1 .

272                           The respondent has not made any submissions regarding s. 1 , and none of the courts below considered the issue.  Given that the burden is on the Crown to establish that the infringement was justified under s. 1 , I conclude that it has not met this burden.

III.   Conclusion

A.    Malmo-Levine

273                           For the foregoing reasons, in the case of the appellant David Malmo-Levine, I would dismiss the appeal.

274                           The constitutional questions in the Malmo-Levine appeal should be answered as follows:

1.    Does prohibiting possession of Cannabis (marihuana) for the purpose of trafficking under s. 4(2) of the Narcotic Control Act, R.S.C. 1985, c. N-1, by reason of the inclusion of this substance in s. 3 of the Schedule to the Act (now s. 1 , Schedule II, Controlled Drugs and Substances Act, S.C. 1996, c. 19 ), infringe s. 7  of the Canadian Charter of Rights and Freedoms ?

Answer:  No.

2.    If the answer to Question 1 is in the affirmative, is the infringement justified under s. 1  of the Charter ?

Answer:  It is unnecessary to answer this question.

3.    Does prohibiting possession of Cannabis (marihuana) for the purpose of trafficking under s. 4(2) of the Narcotic Control Act, R.S.C. 1985, c. N-1, by reason of the inclusion of this substance in s. 3 of the Schedule to the Act (now s. 1 , Schedule II, Controlled Drugs and Substances Act, S.C. 1996, c. 19 ), infringe s. 15(1)  of the Charter  by discriminating against a certain group of persons on the basis of their substance orientation, occupation orientation, or both?

Answer:  No.

4.    If the answer to Question 3 is in the affirmative, is the infringement justified under s. 1  of the Charter ?

Answer:  It is unnecessary to answer this question.

B.      Caine

275                           In the case of the appellant Victor Eugene Caine, I would allow the appeal and set aside the conviction for simple possession.

276                           The constitutional questions in the Caine appeal should be answered as follows:

1.    Does prohibiting possession of Cannabis (marihuana) for personal use under s. 3(1) of the Narcotic Control Act, R.S.C. 1985, c. N-1, by reason of the inclusion of this substance in s. 3 of the Schedule to the Act (now s. 1 , Schedule II, Controlled Drugs and Substances Act, S.C. 1996, c. 19 ), infringe s. 7  of the Canadian Charter of Rights and Freedoms ?

Answer:  Yes.

2.    If the answer to Question 1 is in the affirmative, is the infringement justified under s. 1  of the Charter ?

Answer:  No.

3.    Is the prohibition on the possession of Cannabis (marihuana) for personal use under s. 3(1) of the Narcotic Control Act, R.S.C. 1985, c. N-1, by reason of the inclusion of this substance in s. 3 of the Schedule to the Act (now s. 1 , Schedule II, Controlled Drugs and Substances Act, S.C. 1996, c. 19 ), within the legislative competence of the Parliament of Canada as being a law enacted for the peace, order and good government of Canada pursuant to s. 91  of the Constitution Act, 1867 ; as being enacted pursuant to the criminal law power in s. 91(27)  thereof; or otherwise?

Answer:  Yes.

The following are the reasons delivered by

277                           LeBel J. (dissenting in Caine) — I have had the opportunity of reading the joint reasons of Justices Gonthier and Binnie who would dismiss the appeal, and those of Justice Arbour who would allow it.  With respect for the other view, I am in agreement with the disposition suggested by Arbour J. and I would answer the constitutional questions as she proposes.  Nevertheless, I am not yet convinced that we should raise the harm principle to the level of a principle of fundamental justice within the meaning of s. 7  of the Canadian Charter of Rights and Freedoms .  On this question, I share the skepticism of my colleagues Binnie and Gonthier JJ.  I part company with them, however, at the point where they hold that the prohibition of simple possession of marihuana is not an arbitrary or irrational legislative response.  On the evidence which is available to us and which was carefully reviewed by Arbour J., the law, as it stands, is indeed an arbitrary response to social problems. The Crown has failed to properly delineate the societal concerns and individual rights at stake, more particularly the liberty interest involved in this appeal.

278                           The process of delineation of rights under s. 7  unavoidably involves balancing competing rights and interests (R. v. Mills, [1999] 3 S.C.R. 668, at paras. 65-66).  In this respect, concerns about the harm done to society or some of its members or even to the accused themselves must be weighed together with the consequences which flow from the criminalization of simple possession.  A balancing of this nature must occur when it is asserted that the liberty interest of the accused has been infringed in a way that is inconsistent with the tenets of fundamental justice under s. 7  of the Charter .  Such an analysis is not as narrowly focussed as a review of a punishment under s. 12  of the Charter  where courts must determine whether a specific penalty should be considered as cruel and unusual because of its grossly disproportionate nature.

279                           In the course of a s. 7  analysis, the inquiry of the Court is more subtle, broader, and more difficult.  Although the availability of imprisonment triggers the inquiry into the applicability of s. 7 , the investigation must move beyond the sole question of the penalty and the courts must take into account all relevant factors viewed as a whole, in order to determine whether a breach of fundamental rights has been made out.  It is made out if and when the response to a societal problem may overreach in such a way as to taint the particular legislative response with arbitrariness.  (See for example, Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1, at para. 47; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, at para. 76; R. v. Seaboyer, [1991] 2 S.C.R. 577, at pp. 621 and 625.)

280                           On the evidence which is available in this appeal, such a legislative overreach happened.  I do not need to engage in any additional review of this evidence, given that it was carefully reviewed and discussed by my colleagues.  I will not even attempt to summarize it again.  In my mind, it cannot be denied that marihuana can cause problems of varying nature and severity to some people or to groups of them.  Nevertheless, the harm its consumption may cause seems rather mild on the evidence we have.  In contrast, the harm and the problems connected with the form of criminalization chosen by Parliament seem plain and important.  Few people appear to be jailed for simple possession but the law remains on the books.  The reluctance to enforce it to the extent of actually jailing people for the offence of simple possession seems consistent with the perception that the law, as it stands, amounts to some sort of legislative overreach to the apprehended problems associated with marihuana consumption.  Moreover, besides the availability of jail as a punishment, the enforcement of the law has tarred hundreds of thousands of Canadians with the stigma of a criminal record.  They have had to bear the burden of the consequences of such criminal records as Arbour J. points out.  The fundamental liberty interest has been infringed by the adoption and implementation of a legislative response which is disproportionate to the societal problems at issue. It is thus arbitrary and  in breach of s. 7  of the Charter .  For these reasons, I agree with Arbour J. that fundamental rights are at stake, that they were breached, and that this Court must intervene as part of its duty under the Constitution to uphold the fundamental principles of our constitutional order.

English version of the reasons delivered by

281                           Deschamps J.  (dissenting in Caine) — The appellants contest Parliament’s power to prohibit the simple possession of marihuana.  Their challenge is based on two grounds:  the division of powers and the Canadian Charter of Rights and Freedoms .

282                           Like my colleagues, I conclude that, in Canada, the prohibition of the possession of drugs lies within federal jurisdiction.  At issue here is Parliament’s power to prohibit certain conduct by imposing a sanction of imprisonment, whether pursuant to its jurisdiction over peace, order and good government or under its criminal law power.  As the exercise for determining the proper division of powers depends more upon a categorization of the nature of the enactment than on the enactment’s legality, which is the focus of a Charter  challenge, I find that Parliament may validly exercise its coercive power by invoking a ground falling within its criminal law jurisdiction, namely health.

283                           There remains the question of conformity with the Charter .  Four main arguments are raised:  Parliament may not use its coercive power to limit an individual’s personal freedom to use marihuana; the purpose of the original statute (The Opium and Narcotic Drug Act, 1923, S.C. 1923, c. 22) has shifted over time; the prohibition is unconstitutional because marihuana does not harm anyone other than its users; and the prohibition is disproportionate and arbitrary.

284                           I agree with the majority of this Court on the arguments relating to the protection of lifestyle and the shifting purpose of the Act.  I will limit my comments to the arguments concerning the “harm principle” and the arbitrary nature of the legislation.  The latter argument leads me to conclude that the inclusion of cannabis in the schedule to the Narcotic Control Act, R.S.C. 1985, c. N-1 (rep. S.C. 1996, c. 19, s. 94 ), infringes the appellants’ right to liberty.

I.     The “Harm Principle”

285                           The “harm principle”, as defined by John Stuart Mill, is cited and interpreted in both the majority opinion and the opinion of Arbour J.  I agree with the conclusion of the majority in that I am of the opinion that the “harm principle” is not a principle of fundamental justice per se, but I believe it would be useful to focus on one aspect of their reasoning and even elaborate upon it.

286                           A vision of the criminal law based on Mill’s work, attractive though it may be, leaves the state no room to intervene in order to safeguard the moral values that are

fundamental to a free and democratic society:  see R. v. Butler, [1992] 1 S.C.R. 452, at p. 493.  Mill’s restrictive position does not fit well with the Canadian reality, in which it is accepted that social morality and criminal law are inextricably linked.  Many prohibitions cannot be rationalized under the “harm principle”, as emphasized in para. 118 of the majority opinion.  Moreover, the state’s intervention in punishing a crime is generally the expression of a popular consensus condemning socially reprehensible conduct, such as murder or sexual assault.  Thus, reprehension for such conduct must generally be accompanied by the requirement that the individual understand that the conduct is blameworthy, in other words, that the individual have a guilty mind (mens rea):  see in this regard H. L. Packer, The Limits of the Criminal Sanction (1968), at p. 262; V. V. Ramraj, “Freedom of the Person and the Principles of Criminal Fault” (2002), 18 S. Afr. J. Hum. Rts. 225.  To be sure, morality alone cannot be the sole justification for the state’s exercise of its criminal law power.  Still, social morality remains an integral part of the justificatory framework for allowing the state to use this power, and its categorical exclusion under the “harm principle” demonstrates the limitations of this concept.

287                           Moreover, I believe that restricting criminal law to situations in which harm is caused to others would minimize the role of the state as protector of society.  Indeed, the fundamental purpose of criminal justice is the protection of society:  see Report of the Canadian Committee on Corrections — Toward Unity:  Criminal Justice and Corrections (the Ouimet Report) (1969), at p. 11.  The “harm principle” can prove difficult to apply, for example, when the victim is not easily identifiable, as in the case of certain crimes against society as a whole.  Mill was himself ambiguous on this point.  The state’s use of dissuasive sanctions can also help to eliminate conduct where the resulting harm may be difficult to evaluate or prove, such as corruption, in certain cases.

288                           The criminal law thus finds its justification in the protection of society, both as a whole and in its individual components.  While there can be no doubt that the state is justified in using its criminal law tools to prevent harm to others, this principle is too narrow to encompass all the elements that may place limits on the state’s exercise of the criminal law.  It cannot validly be characterized as a principle of fundamental justice.

II.   Arbitrary Nature of the Inclusion of Marihuana in the Schedule to the Narcotic Control Act

289                           The criminal law is one of the most aggressive weapons the state has to enforce its dictates.  This weapon must be wielded with great care.  The courts must intervene when an enactment violates constitutional guarantees.  More specifically, and without repeating the detailed comments of my colleagues, the courts must act when the right to liberty is infringed without regard for the principles of fundamental justice.  In the present case, I believe Parliament has exercised its power arbitrarily.

290                           When the state prohibits socially neutral conduct, that is, conduct that causes no harm, that is not immoral and upon which there is no societal consensus as to its blameworthiness, it cannot do so without raising a problem of legitimacy and, consequently, losing credibility.  Citizens become inclined not to take the criminal justice system seriously and lose confidence in the administration of justice.  Judges become reluctant to impose the sanctions attached to such laws.

291                           Recognizing this chain reaction allows one to grasp the importance of the principle of fundamental justice which holds that for the state to be able to justify limiting an individual’s liberty, the legislation upon which it bases its actions must not be arbitrary:  see, e.g., R. v. Arkell, [1990] 2 S.C.R. 695, at p. 704; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at pp. 619-20 (per McLachlin J. (as she then was) dissenting); R. v. Heywood, [1994] 3 S.C.R. 761, at p. 793.  There are several basic tenets of criminal law that can be used to measure the arbitrariness of a prohibition.  I shall rely on three of these principles here:  the need for the state to protect society from harm, the availability of tools other than criminal law that could adequately control the conduct and the proportionality of the measure to the problem in question.  In emphasizing these three rules, I do not mean to suggest that others could not be used to determine if an enactment is arbitrary, nor that these three rules must always be met in a given case.  They do, however, serve to delineate the legitimate scope of criminal law.  These rules are not new.  They were referred to over 35 years ago by the Canadian Committee on Corrections (Ouimet Report, supra, at p. 12) in the chapter dealing with the basic principles and goals of criminal justice.  I realize that such working groups usually attempt to describe the law as it should be, in a normative sense, but in this chapter, the Committee took care to outline the foundations specific to our criminal law.  Those factors are still relevant today.

292                           Is the inclusion of marihuana in the schedule to the Narcotic Control Act  arbitrary?

293                           As mentioned by the majority, the reasons for adding marihuana to the schedule to the Narcotic Control Act are nebulous, at best.  The historical background outlined by the trial judge in the case of the appellant Caine clearly shows that Parliament’s decision was made at a time when a climate of irrational fear predominated, owing to a campaign led by Edmonton magistrate Emily Murphy, who claimed that marihuana caused users to lose their minds, along with all sense of moral responsibility, becoming maniacs capable of murder and many other acts of cruelty.

294                           Fortunately, the consequences of marihuana use are nothing like those described at that time.  Although I do not accept the “harm principle” as an independent principle, I believe that the need for the state to protect society from harm plays an active role in any assessment of the arbitrariness of legislation.  As a general rule, the state is justified in using the coercive tools of criminal law in cases where an individual willfully causes harm.

295                           Although I do not adopt the approach of my colleague Arbour J., who would limit the sanction of imprisonment to cases where harm is done to others, I agree with her description of the consequences of marihuana use.  The inherent risks of marihuana use, apart from those related to the operation of vehicles and the impact on public health care and social assistance systems, affect only the users themselves.  These risks can be situated on a spectrum, ranging from no risk for occasional users to more significant risks for frequent users and vulnerable groups.  On the whole, with a few exceptions, moderate use of marihuana is harmless.  Thus, it seems doubtful that it is appropriate to classify marihuana consumption as conduct giving rise to a legitimate use of the criminal law in light of the Charter .

296                        An examination of the second criterion, that of the availability of more tailored methods than the criminal law for controlling conduct, is equally perplexing.

297                        The criminal law is an indispensable tool, but only in very limited circumstances:  when society needs to be protected from an offender, when punishment is required to deter an individual or society in general from committing offences and when corrective measures specific to this field of law are necessary (see s. 718  of the Criminal Code, R.S.C. 1985, c. C-46 ).  The minimal harm caused by marihuana does not fit squarely within the categories of conduct usually kept in check by the criminal law.

298                        I would refer back to the comments made by Arbour J. (at paras. 192 to 200) concerning the risks identified by the trial judges.  Only three groups are traditionally identified as requiring state intervention for their protection: young persons, pregnant women and certain people with medical conditions.  This line of reasoning does not have to be pushed very far before it becomes obvious that criminal law is not society’s preferred means of controlling the conduct of these groups.  The use of imprisonment and all the other aspects of the criminal justice system, including the imposition of a criminal record, to suppress conduct that causes little harm to moderate users or to control high‑risk groups for whom the effectiveness of deterrence or correction is highly dubious and seems to me out of keeping with Canadian society’s standards of justice.

299                           This brings me to the third factor, proportionality.  The harmful effects of marihuana use have already been discussed and are highly debatable.  The harm caused by its prohibition, however, is clear and significant.  For the details, I refer back once again to the effects listed by Arbour J. (para. 200).  A balancing of these two factors yields the result that the harm caused by prohibiting marihuana is fundamentally disproportionate to the problems created by its use that the state seeks to suppress.

300                           While I am more comfortable using three criteria for evaluating constitutionality rather than just one, I nevertheless agree with LeBel J.’s analysis with regard to proportionality.

301                           The harm caused by using the criminal law to punish the simple use of marihuana far outweighs the benefits that its prohibition can bring.  LeBel J. notes that the fact that jail sentences are rarely imposed illustrates the perception of judges that imprisonment is not a sanction that befits the inherent dangers of using marihuana.  In the case of the appellant Caine, Howard Prov. Ct. J. also observed that the prohibition had brought the law into disrepute in the eyes of over one million people.  These are exactly the kinds of reactions that are indicative of the arbitrariness of the impugned provisions.  As I have already mentioned, and as Howard Prov. Ct. J. observed, when the state prohibits socially neutral conduct, it exposes itself to the risk of eroding its credibility.

302                           Canadian society is changing.  Its knowledge base is growing, and its morals are evolving.  Even if it was once the case, and in my view it never was, the prohibition against cannabis is no longer defensible.  My analysis leads me to conclude that the little harm caused by marihuana casts doubt on the appropriateness of state intervention in this case.  When I weigh the prohibition against, first, other available methods for countering the harm that marihuana use presents and, second, the problems caused by marihuana use, I must conclude that the legislation is inconsistent with the constitutional guarantee in s. 7  of the Charter .

303                           The respondent did not attempt to justify the prohibition under s. 1  of the Charter .  It has therefore not satisfied its burden.

304                           For these reasons, I agree with the disposition proposed by Arbour J.

                                                            APPENDIX

Extracts from a document entitled Cannabis:  a health perspective and research agenda, Division of Mental Health and Prevention of Substance Abuse, World Health Organization (1997), at pp. 30-31:

Chronic health effects of cannabis use

The chronic use of cannabis produces additional health hazards including:

–                  selective impairments of cognitive functioning which include the organization and integration of complex information involving various mechanisms of attention and memory processes;

–                  prolonged use may lead to greater impairment, which may not recover with cessation of use, and which could affect daily life functions;

–                  development of a cannabis dependence syndrome characterized by a loss of control over cannabis use is likely in chronic users;

–                  cannabis use can exacerbate schizophrenia in affected individuals;

–                  epithelial injury of the trachea and major bronchi is caused by long-term cannabis smoking;

–                  airway injury, lung inflammation, and impaired pulmonary defence against infection from persistent cannabis consumption over prolonged periods;

–                  heavy cannabis consumption is associated with a higher prevalence of symptoms of chronic bronchitis and a higher incidence of acute bronchitis than in the non-smoking cohort;

–                  cannabis use during pregnancy is associated with impairment in fetal development leading to a reduction in birth weight;

–                  cannabis use during pregnancy may lead to postnatal risk of rare forms of cancer although more research is needed in this area.

The health consequences of cannabis use in developing countries are largely unknown because of limited and non-systematic research, but there is no reason a priori to expect that biological effects on individuals in these populations would be substantially different to what has been observed in developed countries.  However, other consequences might be different given the cultural and social differences between countries.

Therapeutic uses of cannabinoids

Several studies have demonstrated the therapeutic effects of cannabinoids for nausea and vomiting in the advanced stages of illnesses such as cancer and AIDS.  Dronabinol (tetrahydrocannabinol) has been available by prescription for more than a decade in the USA.  Other therapeutic uses of cannabinoids are being demonstrated by controlled studies, including treatment of asthma and glaucoma, as an antidepressant, appetite stimulant, anticonvulsant and anti-spasmodic, research in this area should continue.  For example, more basic research on the central and peripheral mechanisms of the effects of cannabinoids on gastrointestinal function may improve the ability to alleviate nausea and emesis.  More research is needed on the basic neuropharmacology of THC and other cannabinoids so that better therapeutic agents can be found.

Appeal in Malmo-Levine dismissed.

Appeal in Caine dismissed, Arbour, LeBel and Deschamps JJ. dissenting.

Solicitors for the appellant Caine:  Conroy & Company, Abbotsford.

Solicitor for the respondent:  Attorney General of Canada, Vancouver.

Solicitor for the intervener the Attorney General of Ontario:  Attorney General of Ontario, Toronto.

Solicitors for the intervener the British Columbia Civil Liberties Association:  Arvay Finlay, Victoria.

Solicitors for the intervener the Canadian Civil Liberties Association:  Paliare, Roland, Rosenberg, Rothstein, Toronto.