''R v Malmo-Levine; R v Caine''
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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.
Background
The decision involves two cases. The first was where
David Malmo-Levine, a "marijuana/freedom activist", ran an organization in East
Vancouver
Vancouver ( ) is a major city in western Canada, located in the Lower Mainland region of British Columbia. As the List of cities in British Columbia, most populous city in the province, the 2021 Canadian census recorded 662,248 people in the ...
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 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
The Royal Canadian Mounted Police (RCMP; french: Gendarmerie royale du Canada; french: GRC, label=none), commonly known in English as the Mounties (and colloquially in French as ) is the federal and national police service of Canada. As poli ...
officers approached him. He was stopped and a 0.5 gram were found in his possession.
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
The ''Constitution Act, 1867'' (french: Loi constitutionnelle de 1867),''The Constitution Act, 1867'', 30 & 31 Victoria (U.K.), c. 3, http://canlii.ca/t/ldsw retrieved on 2019-03-14. originally enacted as the ''British North America Act, 186 ...
is limited to conduct that causes harm. He further argued that the "
harm principle
The harm principle holds that the actions of individuals should only be limited to prevent harm to other individuals. John Stuart Mill articulated this principle in ''On Liberty'', where he argued that "The only purpose for which power can be r ...
" should be a principle of
fundamental justice
In Canadian and New Zealand law, fundamental justice is the fairness underlying the administration of justice and its operation. The principles of fundamental justice are specific legal principles that command "significant societal consensus" as ...
under
section 7 of the
Canadian Charter of Rights and Freedoms
The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part ...
.
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
Parliament
In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: representing the electorate, making laws, and overseeing the government via hearings and inquiries. Th ...
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
In many Commonwealth jurisdictions, the phrase "peace, order, and good government" (POGG) is an expression used in law to express the legitimate objects of legislative powers conferred by statute. The phrase appears in many Imperial Acts of Par ...
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.
See also
*
List of Supreme Court of Canada cases (McLachlin Court)
This is a chronological list of notable cases decided by the Supreme Court of Canada from the appointment of Beverley McLachlin as Chief Justice of Canada
The chief justice of Canada (french: juge en chef du Canada) is the presiding judge of ...
External links
*
{{DEFAULTSORT:Malmo-Levine and Caine
Section Seven Charter case law
Canadian criminal case law
Supreme Court of Canada cases
2003 in Canadian case law
Cannabis law
Cannabis law reform in Canada