HTTP/1.0 200 OK Content-Type: text/html Marijuana Smokescreen
Pubdate: Thu, 08 Jan 2004
Source: Vancouver Sun (CN BC)
Copyright: 2004 The Vancouver Sun
Author: Stan Persky
Note: Stan Persky teaches philosophy at Capilano College in North Vancouver,
Bookmark: (Cannabis - Popular)


The message most quoted by the media from last month's Supreme Court
of Canada decision upholding the country's marijuana laws is that
"there is no free-standing constitutional right to smoke 'pot' for
recreational purposes."

Stoned folks, fumbling with their Zig Zag rolling papers and baggies
of dope, can be forgiven, I suppose, for not reading beyond the
headlines. Unstoned people who write newspaper editorials, however,
are less easily forgiven for not going beyond the obvious.

The Vancouver Sun editorial ("It's up to Parliament to fix Canada's
pot laws," Dec. 30, 2003) cited the court's "no free-standing
constitutional right to smoke pot" remark and didn't go much further
than exhaling. "The court showed admirable judicial restraint," said
the editorial with a sigh of relief, and quoted with approval the
court's recognition that the outcome of the marijuana debate "is not
for the courts to determine."

For those opposed to so-called "judicial activism," the court's
decision was the occasion to light up a big celebratory, er, cigar.
But for people who read all 91 pages of the court's 6-3 ruling, the
big surprise is that the judgment isn't so much about pot as it is
about a much deeper question, namely, What is a crime?

What Justices Charles Gonthier and Ian Binnie, who wrote the majority
decision, have to say about defining crime, the legal notion of
"harm," and our constitutional right to liberty is extremely
worrisome. You have to read all the way to Justice Louise Arbour's
dissenting opinion to understand why there's a good case for thinking
that the majority got it wrong.

Arbour's argument goes something like this: conduct that we define as
a crime has to be an act that intentionally causes direct, measurable
harm to other persons or their property. In such cases, society,
through its government, has the right to punish those acts. However,
the harm caused has to be more than trivial, and it has to be harm to
others not to oneself. That is especially the case if the punishment
includes the possibility of a jail sentence, one of our severest
restrictions of liberty.

The big idea about liberty and harm goes back to 19th century
philosopher John Stuart Mill, who wrote in his classic On Liberty,
"The sole end for which mankind are warranted. in interfering with the
liberty of action of any of their number, is self-protection. 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." That "very simple principle," as Mill calls it, is enshrined
in the highest law in the land, Section 7 of the Canadian
Constitution's Charter of Rights and Freedoms, which protects "life,
liberty and security of person." Constitutional law, remember, trumps
statutory law, such as the Criminal Code's prohibition against
possession of marijuana.

The media focus on whether or not Parliament has the power to make pot
laws is misleading. Of course Parliament has the right to make such
laws. What Parliament doesn't have the right to do is criminalise
conduct that doesn't cause direct harm to others, or to make laws that
violate constitutional rights, such as our right to liberty.

The much-cited "no free-standing constitutional right to smoke pot" is
also misleading. Of course it doesn't say in the Constitution, "Every
Canadian has the right to toke up." But what the Constitution does
say, in effect, is: You have the right to do anything you want, as
long as you don't cause harm to others.

What makes the court's recent decision more than a matter of what goes
up in smoke is that the principle of harm and the protections of the
Constitution apply to a wide range of conduct that extends from
freedom of speech and belief to intimate sexual activities. For the
majority of us, who don't smoke marijuana, it is the dubious thinking
of both the law and the court's vindication of that thinking that gets
our attention.

So, the relevant question is: Does smoking pot cause harm to others?
Even the Supreme Court majority couldn't find any direct harm to
others, even though it examined the evidence with a fine-tooth comb.
The truth of the matter is that pot, at worse, only harms the lungs of
those who puff it.

Instead, the court's majority relied on a subsidiary, much-
harder-to-pin-down notion of harm to society. Even there, the harms to
society that the court identified were murky at best. Marijuana harms
vulnerable groups, such as pot-smoking adolescents, pregnant women,
and schizophrenics. And stoned people who drive cars are a danger.

But, as Justice Arbour says, "The fact that some vulnerable people may
harm themselves by using marijuana 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
people may harm themselves if they engage in it." To do so is like
saying that we can't allow people to watch movies about bank robberies
and car chases because it may lead some people to rob banks and drive
recklessly. And anyway, we already have a law to prevent drunk or
stoned people from operating motor vehicles.

Arbour concluded, "The evidence does not support a conclusion that
marijuana use causes a reasoned risk of harm to others or society that
is not insignificant or trivial." In the end, she decided that the
existing marijuana law "violates the right of [individuals] to liberty
in a manner that is not in accordance with the harm principle, a
principle of fundamental justice, contrary to Section 7 of the Charter."

The dissenting justices, I think, got it right. The rest of the court
let the smoke get in their eyes.
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