Canadian Supreme Court Ruling Canadian Supreme Court Rules Marijuana Criminal Laws are Constitutional 12/23/03 The federal law making possession of small amounts of marijuana illegal does not violate the Charter of Rights and Freedoms, Canada's top court says. The Supreme Court of Canada ruled 6-3 Tuesday that jailing someone with small amounts is constitutional. This means that marijuana policy reform is going to be up to the government, which has batted around various plans for decriminalization for some time (over the vocal objections of the United States Minister of Drug Policy Disinformation John Walters). It all boils down to debates over what amount consists of decriminalized small possession (5-10-15 grams) and how much they're going to jack up the penalties for dealers and growers to "balance" the decriminalization - a far cry from the Senate's original call for legalization. From a dissent in the ruling by J. Deschamps (text of decisions available here). 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. Background briefing courtesy of The Drug War Chronicle: This decision came from a trio of linked cases. All three challenged Canada's pot laws as infringing on their rights under Canada's Charter of Rights and Freedoms. David Malmo-Levine, Chris Clay, and Victor Caine argued that marijuana use or possession does not rise to the level of social or personal harm to be a crime under the Charter. Legal Background: Similar to the US Bill of Rights, the Canadian Charter of Rights guarantees "the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Section 7, which is the basis for the constitutional claim against the marijuana laws, reads: "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." What was at stake was whether the "principles of fundamental justice," as developed in Canadian constitutional law, allow a person to be deprived of the rights mentioned above for a marijuana offense. Determining what is fundamentally just is a balancing act, wrote one Canadian jurist, "a determination of the balance to be struck between individual rights and the interests of society." That is where the question of marijuana's harmfulness comes into play. Caine, Clay and Malmo-Levine argued that in determining the principles of fundamental justice, the court must use the "harm principle" as a standard. Derived from 19th Century British political philosopher John Stuart Mill, an appeal court hearing two of the cases described it as arguing "that the State has no right to interfere with the personal freedom and liberty of an individual unless that individual causes harm to other persons or to society in general. Therefore, the State has no right to imprison individuals for activities that only cause harm to themselves. The appellants argue that possessing or smoking marihuana may in some cases have harmful effects on the smoker, but it does not harm others. Imprisoning a person for possessing marihuana would thereby violate the "harm principle" in the same way as imprisoning somebody for consuming caffeine or fatty foods." The decision does not come in a legal vacuum. In 2001, Ontario's highest court declared the marijuana possession laws invalid because they did not provide for medical marijuana users. The court gave parliament one year to change the law; instead, Health Canada issued administrative guidelines that many patients complained were impossible to work with. As a result of further legal action, courts in Ontario, Nova Scotia, and Prince Edward Island ruled the marijuana possession law null and void for a few months this summer. But Health Canada has since been more responsive, and Canada now has a working -- if problematic -- medical marijuana program.