R. v. Malmo-Levine; R. v. Caine
Encyclopedia
R. v. Malmo-Levine; R. v. Caine [2003] 3 S.C.R. 571, 2003 SCC 74, is a leading constitutional decision of the Supreme Court of Canada
. The Court rejected a constitutional challenge of the criminalization of marijuana.
called the "Harm Reduction Club", which attempts to reduce the harm associated with marijuana use by educating users and the public about the drug and provide the drug at cost. In December of 1996 the police raided the Harm Reduction Club and seized 316 grams of marijuana charging Malmo-Levine with possession for the purpose of trafficking.
The second case involved the 1993 arrest of Victor Caine for possession of marijuana. Caine was in his van by the ocean when two RCMP
officers approached him. He was stopped and a roach (0.5 gram) was found on him.
Both Caine and Malmo-Levine challenged the constitutionality of the criminalization of marijuana under the Narcotics Control Act.
Malmo-Levine's argument focused on whether there should be a requirement of harm for criminal law
. He argued that the constitutional power to enact criminal law under section 91(27) of the Constitution Act, 1867
is limited to conduct that causes harm. He further argued that the "harm principle" should be a principle of fundamental justice
under section 7
of the Canadian Charter of Rights and Freedoms
.
need not establish harm but only a reasonable apprehension of harm.
Gonthier and Binnie looked towards R. v. Hauser
, which held that narcotics were a new matter not considered in 1867 and so falls under the peace, order and good government
power. They suggest that this case was likely wrong as narcotics is clearly a matter of criminal law.
The criminal law power, they state, includes the protection of vulnerable groups. Thus the government is able to control activities for the protection of drug users and society.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
. The Court rejected a constitutional challenge of the criminalization of marijuana.
Background
The decision involves two cases. The first was where David Malmo-Levine, a "marijuana/freedom activist", ran an organization in East VancouverVancouver
Vancouver is a coastal seaport city on the mainland of British Columbia, Canada. It is the hub of Greater Vancouver, which, with over 2.3 million residents, is the third most populous metropolitan area in the country,...
called the "Harm Reduction Club", which attempts to reduce the harm associated with marijuana use by educating users and the public about the drug and provide the drug at cost. In December of 1996 the police raided the Harm Reduction Club and seized 316 grams of marijuana charging Malmo-Levine with possession for the purpose of trafficking.
The second case involved the 1993 arrest of Victor Caine for possession of marijuana. Caine was in his van by the ocean when two RCMP
Royal Canadian Mounted Police
The Royal Canadian Mounted Police , literally ‘Royal Gendarmerie of Canada’; colloquially known as The Mounties, and internally as ‘The Force’) is the national police force of Canada, and one of the most recognized of its kind in the world. It is unique in the world as a national, federal,...
officers approached him. He was stopped and a roach (0.5 gram) was found on him.
Both Caine and Malmo-Levine challenged the constitutionality of the criminalization of marijuana under the Narcotics Control Act.
Malmo-Levine's argument focused on whether there should be a requirement of harm for criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
. He argued that the constitutional power to enact criminal law under section 91(27) of the Constitution Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
is limited to conduct that causes harm. He further argued that the "harm principle" should be a principle of fundamental justice
Fundamental justice
Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the...
under section 7
Section Seven of the Canadian Charter of Rights and Freedoms
Section Seven of the Canadian Charter of Rights and Freedoms is a constitutional provision that protects an individual's autonomy and personal legal rights from actions of the government in Canada. There are three types of protection within the section, namely the right to life, liberty, and...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
.
Opinion of the Court
Gonthier and Binnie JJ., writing the majority, rejected all the arguments for the requirements of harm under section 91(27) of the Constitution Act, 1867 and section 7 of the Charter. They held that ParliamentParliament of Canada
The Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...
need not establish harm but only a reasonable apprehension of harm.
Gonthier and Binnie looked towards R. v. Hauser
R. v. Hauser
R. v. Hauser, [1979] 1 S.C.R. 984 is a leading Constitutional decision of the Supreme Court of Canada, where, In a four to three decision, the Court upheld the federal Narcotic Control Act as constitutional under the peace, order and good government power...
, which held that narcotics were a new matter not considered in 1867 and so falls under the peace, order and good government
Peace, order and good government
In many Commonwealth jurisdictions, the phrase "peace, order and good government" is an expression used in law to express the legitimate objects of legislative powers conferred by statute...
power. They suggest that this case was likely wrong as narcotics is clearly a matter of criminal law.
The criminal law power, they state, includes the protection of vulnerable groups. Thus the government is able to control activities for the protection of drug users and society.