In Malmo-Levine v. R.; Caine v. R., Supreme Court of Canada (“the Court” in the following) is required to examine whether the criminalisation of marihuana possession violates Section Seven of Canadian Charter of Rights and Freedoms (“the Charter” in the following) that guarantees “[e]veryone 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. (Government of Canada 2)” (Supreme Court of Canada 326-336).
They resort to the “harm principle” proposed by philosopher John Stuart Mill: the only justifiable reason to restrict individual liberty is the prevention of harm to others This principle rejects paternalistic (for the individual’s own good) and moral (for it is morally right) reasons to restrict individual liberty (375-385). The appellants think that the possession of marihuana does not involve any “significant or non-trivial” harm to others, therefore according to the harm principle, its criminalisation is a violation of their Section Seven Charter right (Supreme Court of Canada 326-336).
However, the Court does not see the harm principle as a principle of fundamental justice. Therefore the appellants’ accusation is invalid for them (326-336). Specifically, the Court argues that while harm-inducing behaviours are to be criminalised, the absence of harm for other behaviours does not eliminate the possibility to criminalise them (330). For example, Canada continues to have paternalistic laws such as the requirements to wear vehicle seatbelts and motorcycle helmets and moral laws such as the prohibitions of cannibalism and bestiality (Supreme Court of Canada 333). The fact that these examples are seldom challenged suggests that the harm principle is not unanimously accepted.
The Court goes further to explain why the harm principle should not be accepted as a principle of fundamental justice: according to the Court, in order for a principle to be a principle of fundamental justice:
“[it] must be capable of being identified with some [precision,] applied to situations in a manner which [yields an understandable result]… [and shares] significant societal [consensus]…” (emphasis mine) (Supreme Court of Canada 331-332).
Clearly, the harm principle fails these criteria: since there is no consensus of the definition of harm, it is imprecise and cannot yield an understandable result (Supreme Court of Canada 333-334). That is to say, people of diverse views could potentially argue forever on what consists of harm. For the Court as a practical institution which is obligated to make legal decisions regularly, there is simply no way of incorporating a principle that could potentially delay decision-making forever. I agree with the Court’s justification and my reason is as follows:
From the Court’s perspective, the law in principle is designed to prevent the threat:
“…[collective safety or integrity of society] through the infliction of direct damage or the undermining of…values or interests necessary [for social life to be carried on and for the maintenance of the kind of society cherished by Canadians]” (Government of Canada 45),
or in short, the threat to social stability (which consists of the protection of social safety and social values). I argue that the court would always prioritises the prevention of the threat to social stability before anything else including the harm principle.
It is in the court’s best interest to promote social stability that allows the society to “carry on” (to borrow from their own words) (Government of Canada 45) and minimise anything adverse to this goal. On the other hand, if the Court accepts the harm principle, it automatically disables those paternalistic and moral laws that almost always facilitate social stability. This is another reason why the harm principle is so problematic for the Court.
To illustrate, I examine the laws exemplified by the Court that do not meet the harm principle. The requirements to wear vehicle seatbelt and motorcycle helmets fall under the protection of social safety: a society will never be stable, if its member does not feel safe in it; the prohibitions of cannibalism and bestiality fall under the protection of social values: a society will be less stable, if the majority values are not guaranteed by the law.
Legislators stipulate laws against cannibalism and bestiality not necessarily because they think it is morally right, as suggested and opposed by the harm principle. To look at an extreme situation, even if the legislators are morally-perverted cannibalists and people who practice bestiality, when they sit together and discuss about law legislation, they will nevertheless still legislate laws against their own tastes, because it would create tremendous social instability if they do otherwise. Thus seen, at face value, moral laws may seem to deserve Mill’s criticism of the imposition of the majority values (“the tyranny of the majority” (376)), but in fact have nothing to do with the legislators’ own morals but with the maintenance of social stability.
In Malmo-Levine v. R.; Caine v. R specifically, the appellants may be right that the recreational use of marihuana in responsible manners does not cause immediate harm to others or themselves, but before the legalisation of marihuana in Canada, people acquire marihuana through illegal channels such as smugglers and black markets. Therefore, if the possession of marihuana is legalised at that time, it promotes the illegal channels which brood a series of problems threatening social stability.
Besides, the case was in 2003 when the public opinion on marihuana was somewhat vague, and the legalisation of marihuana at that time might create controversies (a threat that could divide social integrity). In recent years however, because the public opinion has united on the pro-marihuana side, if the legislators kept its criminalisation, the potential threat to social stability would be greater than otherwise. Thus seen, many legislative decisions are the result of weighing which decision is the best to promote social stability at the time of decision-making.
In Malmo-Levine v. R.; Caine v. R, The Court decides to reject the appellants’ defense on the grounds of Mill’s harm principle which refuse any reason to restrict individual liberty other than the prevention of harm to others, by offering examples of existing laws that clearly violate such principles. Moreover, they put forward a criteria to decide whether a principle could be adopted as a principle of fundamental justice which the harm principle fails to pass. From a different angel, I defend the Court’s decision: since the harm principle rule out any paternalistic and moral laws that are potentially conducive to the legislators’ priority concern, i.e. social stability, there is no way for the Court to ever accept such principle. Also, I have proven not only the laws exemplified by the Court but also the law of criminalisation of marihuana possession in this case promote social stability despite failing the harm principle.
Work Cited
Government of Canada. Canadian Charter of Rights and Freedoms, pp. 1-4, https://www.edu.gov.mb.ca/k12/cur/socstud/foundation_gr9/blms/9-1-3f.pdf
Government of Canada. “Proper Scope of the Criminal Law” (Inside: “Chapter Four: Scope, Purpose and Principles”). The Criminal Law in Canadian Society, Ottawa, August, 1982, pp. 41-45, http://johnhoward.ca/wp-content/uploads/2016/12/1982-KE-8809-C7-1982-Chretien.pdf
Mill, John Stuart. “On Liberty” (Inside: “Chapter Sixteen: In Defense of Liberty, Part Four: Law and Liberty”). Classic Readings in the Philosophy of Law, Edited by Susan Dimock, Routledge, 2016, pp. 375-385.
Supreme Court of Canada. “R. v. Malmo-Levine; R. v. Caine [2003] 3 SCR 571”. Law and Morality: Readings in Legal Philosophy, Edited by David Dyzenhaus, Moreau Sophia Reibetanz and Arthur Ripstein, University of Toronto Press, 2007, pp. 326-336