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 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), 1999 BCCA 114, 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), 1996 NSCA 72, 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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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, —

92. 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](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act