Justice Louise Arbour:
266 If there remained any doubt as to whether the harms associated with
marihuana use justified 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, cannot be said to amount to
more than little or no reasoned risk of harm to society. I thus conclude
that s. 3(1) and (2) of the Narcotic Control Act, as it prohibits the
possession of marihuana for personal use under threat of imprisonment,
violates the right of the appellants to liberty in a manner that is not in
accordance with the harm principle, a principle of fundamental justice,
contrary to s. 7 of the Charter.
276 The constitutional questions in the Caine appeal should be answered
(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?
Justice Louis LeBel:
280 In my mind, it cannot be denied that marihuana can cause problems of
varying nature and severity to some people or to groups of them.
Nevertheless, the harm its consumption may cause seems rather mild on the
evidence we have. In contrast, 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. They have had to bear the burden of the consequences of such
criminal records as Arbour J. points out. The fundamental liberty interest
has been infringed by the adoption and implementation of a legislative
response which is disproportionate to the societal problems at issue. It is
thus arbitrary and in breach of s. 7 of the Charter. For these reasons, I
agree with Arbour J. that fundamental rights are at stake, that they were
breached, and that this Court must intervene as part of its duty under the
Constitution to uphold the fundamental principles of our constitutional
Justice Marie Deschamps:
284 I agree with the majority of this Court on the arguments relating to
the protection of lifestyle and the shifting purpose of the Act. I will
limit my comments to the arguments concerning the harm principle and the
arbitrary nature of the legislation. The latter argument leads me to
conclude that the inclusion of cannabis in the schedule to the Narcotic
Control Act, R.S.C. 1985, c. N--1 (rep. & repl. S.C. 1996, c. 19, s. 94)
infringes the appellants' right to liberty.
289 The criminal law is one of the most aggressive weapons the state has
to enforce its dictates. This weapon must be wielded with great care. The
courts must intervene when an enactment violates constitutional guarantees.
More specifically, and without repeating the detailed comments of my
colleagues, the courts must act when the right to liberty is infringed
without regard for the principles of fundamental justice. In the present
case, I believe Parliament has exercised its power arbitrarily.
290 When the state prohibits socially neutral conduct, that is, conduct
that causes no harm, that is not immoral and upon which there is no societal
consensus as to its blameworthiness, it cannot do so without raising a
problem of legitimacy and, consequently, losing credibility. Citizens become
inclined not to take the criminal justice system seriously and lose
confidence in the administration of justice. Judges become reluctant to
impose the sanctions attached to such laws.
291 There are several basic tenets of criminal law that can be used
to measure the arbitrariness of a prohibition. I shall rely on three of
these principles here: the need for the state to protect society from harm,
the availability of tools other than criminal law that could adequately
control the conduct and the proportionality of the measure to the problem in
293 As mentioned by the majority, the reasons for adding marihuana to
the schedule to the Narcotic Control Act are nebulous, at best. The
historical background outlined by the trial judge in the case of the
appellant Caine clearly shows that Parliament's decision was made at a time
when a climate of irrational fear predominated, owing to a campaign led by
Edmonton magistrate Emily Murphy, who claimed that marihuana caused users to
lose their minds, along with all sense of moral responsibility, becoming
maniacs capable of murder and many other acts of cruelty.
294 Fortunately, the consequences of marihuana use are nothing like
those described at that time. Although I do not accept the harm principle as
an independent principle, I believe that the need for the state to protect
society from harm plays an active role in any assessment of the
arbitrariness of legislation.
295 The inherent risks of marihuana use, apart from those related to
the operation of vehicles and the impact on public health care and social
assistance systems, affect only the users themselves. These risks can be
situated on a spectrum, ranging from no risk for occasional users to more
significant risks for frequent users and vulnerable groups. On the whole,
with a few exceptions, moderate use of marihuana is harmless. Thus, 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.
297 The minimal harm caused by marihuana does not fit squarely
within the categories of conduct usually kept in check by the criminal law.
298 Only three groups are traditionally identified as requiring state
intervention for their protection: young persons, pregnant women and certain
people with medical conditions. This line of reasoning does not have to be
pushed very far before it becomes obvious that criminal law is not society's
preferred means of controlling the conduct of these groups. The use of
imprisonment and all the other aspects of the criminal justice system,
including the imposition of a criminal record, to suppress 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 and seems to
me out of keeping with Canadian society's standards of justice.
299 This brings me to the third factor, proportionality. The harmful
effects of marihuana use have already been discussed and are highly
debatable. The harm caused by its prohibition, however, is clear and
significant. For the details, I refer back once again to the effects listed
by Arbour J. (para. 200). A balancing of these two factors yields the result
that the harm caused by prohibiting marihuana is fundamentally
disproportionate to the problems created by its use that the state seeks to
301 The harm caused by using the criminal law to punish the simple use
of marihuana far outweighs the benefits that its prohibition can bring.
LeBel J. notes that the fact that jail sentences are rarely imposed
illustrates the perception of judges that imprisonment is not a sanction
that befits the inherent dangers of using marihuana. In the case of the
appellant Caine, Howard J. also observed that the prohibition had brought
the law into disrepute in the eyes of over one million people. These are
exactly the kinds of reactions that are indicative of the arbitrariness of
the impugned provisions. As I have already mentioned, and as Howard J.
observed, when the state prohibits socially neutral conduct, it exposes
itself to the risk of eroding its credibility.
302 Canadian society is changing. Its knowledge base is growing, and its
morals are evolving. Even if it was once the case, and in my view it never
was, the prohibition against cannabis is no longer defensible. My analysis
leads me to conclude that the little harm caused by marihuana casts doubt on
the appropriateness of state intervention in this case. When I weigh the
prohibition against, first, other available methods for countering the harm
that marihuana use presents and, second, the problems caused by marihuana
use, I must conclude that the legislation is inconsistent with the
constitutional guarantee in s. 7 of the Charter.