CLAY, CAINE, MALMO-LEVINE APPEAL DECISIONS

JCT: Always keep in mind that the Clay-Caine-Malmo-
Levine appeals rest on recreational need for laughing grass
while the Parker-Turmel appeals rest on medical need for
cannabis. Like all of Alan Young's cases, these are weak
straw horses that give the government the best chance of
winning. Which is why the government won.

So, though the Court has ruled that recreational use of
laughing grass does not sufficiently counterbalance the
Government's fundamental duty to protect us from "possible"
dangers from marijuana, these decisions have no impact on
whether the government's duty under fundamental justice
balances 10 dead epileptics a day though they may offer me
cards to bolster my hand.

It's easier for the government to ask that this "possibly"
dangerous substance be prohibited when it only violates the
right to recreation than when it violates the right to life?
And always keep in mind that we never raised the Hitzig S.7
right to secure supply that Lederman J. found so engaging. We
always raised the Parker S.7 right to life that Pitt J.
found so engaging but who was not overturned like Lederman
was.

So, I'm actually glad that Young's straw recreational horses
have been dismissed before Parker's medical iron horse gets
its day. Recreational use could only cloud the issue raised
by Terry Parker and his 10 preventable dead epileptics a
day.

Just like the Lederman decision on the Hitzig wild goose is
a lot of hot air on a off-goal issue, while avoiding the
Parker's on-target shots, this decision on the recreational
also is a long one, probably more hot air. But we have to
dig through to see if we can find any points to bolster our
medical appeals coming up.

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
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).

SCC: 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.

JCT: I wonder what harm they admitted? They've never been
able to prove one harm in our cases but here are guys on our
team conceding that there is some relevant harm?

SCC: 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 both with simple
possession of marihuana and with possession for the purpose
of trafficking. The former Narcotic Control Act states in s.
3(1) that "except 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. At
trial, M sought to call evidence in support of a
constitutional challenge but the trial judge refused to
admit the evidence. M was convicted of simple possession and
possession of marihuana for the purpose of trafficking. The
Court of Appeal, in a majority decision, dismissed his
appeal.

JCT: 300 grams. I'm fighting 3000 grams.

SCC: In the second case, 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
grams. He possessed the joint for his own use and not for
any other purpose. 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, dismissed his appeal.

JCT: Half a gram. Imagine. Busted for one joint.

SCC: Held (Arbour, LeBel and Deschamps JJ. dissenting in
part): M's appeal should be dismissed.

Held (Arbour, LeBel and Deschamps JJ. dissenting): C's
appeal 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".

JCT: I'd have fought for enhancement of mental function.
Accepting "alteration" doesn't distinguish if from the
alcoholic effects the judges know so well. Not fighting for
the positive permits the implication of the negative effects
of the only drug they have any first-hand experience with.
Once enhancement is accepted, then it's another weight to
counterbalance the Government's Section 1 fundamental power
to do anything unjust for the perceived good of the whole.

SCC: That, indeed, is the purpose for which the appellants
use it.

JCT: What purpose, to become a violent puking drunk or a
sleepy laughing stoner?

SCC: There are concurrent findings in the courts below of
"harm" that is neither insignificant nor trivial.

JCT: See. Just like alcohol, the harm is not trivial. No
mention of the good. Alan Young's straw horse helps the
government again.

SCC: 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.

JCT: Does they balance the more than 3600 dead epileptics a
year, in absolute terms?

SCC: 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.

JCT: Aha. These two canards. But how they got away with
"chronic users" as abuse I can't imagine. Because some
pregnant women are stupid enough to not do what their doctor
tells them, it must be banned. I'm sure many women drink
anyway but that's never been used as a reason to ban drink.
And because some schizophrenics are at risk of something, it
must be banned. Doesn't matter that 10 epileptics a day
croak, we must protect the stupid abusers first?

SCC: 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.

JCT: That these are self-induced dangers, much like
dangerous use of any fuels, chemicals, etc, is important. Or
we'd be banning candles because some people cause fires.

But they've judged Caine & Malmo-Levine's right to have fun
with it doesn't balance the need to protect the stupidly
vulnerable. I can't wait to see how they rule that
protecting the stupid will balance protecting 10 innocent
non-stupid epileptics a day.

SCC: 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.

JCT: Not if it alters the mental functions for the better.
But thanks the the lawyers, they've allowed the presumption
that any alteration is bad.

SCC: The use of marihuana is therefore a proper subject
matter for the exercise of the criminal law power.

JCT: Oh, without having established whether the alteration
is bad or not? Just on the presumption that any alteration
is bad? This is logical only if if the substance is proven
dangerous, not just that it be proven to alter consciousness
whichever way. Just as alcohol, the only non-prohibited drug
of choice for the judiciary, makes them all stupid,
cannabis, the prohibited drug of choice for The Engineer's
new millennium generation makes us smart.

SCC: 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.

JCT: So why isn't alcohol and any other substance that's bad
for pregnant women banned too? They always answer that this
omission has no bearing on whether marijuana should be
banned. It's the old "we failed to protect you from those,
we won't fail to protect you from this." Hypocrisy.

SCC: 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 is sufficient to trigger scrutiny under s. 7 of
the Charter.

JCT: And luckily for them, the availability of life for the
offence of simple possession is also sufficient to trigger
scrutiny under s.7 of the Charter; not the right to "liberty"
but the right to "life".

SCC: However, M's desire to build a lifestyle around the
recreational use of marihuana does not attract Charter
protection.

JCT: How about whether Terry Parker's desire to build a life
around the medicinal use attracts Charter protection?

SCC: 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.

JCT: Right to recreation vs. right to life in the balance.

SCC: 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 appellants
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.

JCT: Wow. They say that the absence of proven harm is no
barrier to busting.

SCC: Nor is there any consensus that the distinction between
harm to others and harm to self is of controlling
importance.

JCT: No consensus. Among lawyers, who else. Most people see
quite a distinction between the two harms. Without making
the distinction, protecting the idiots from harm is reason
to prohibit just as protecting non-idiots from harm. Pretty
silly, actually, but the rational they base this on.

SCC: Finally, the harm principle is not a manageable
standard against which to measure deprivation of life,
liberty or security of the person.

JCT: Wrong. It needs to be raised when other more important
harms, like death of epileptics, comes into the balance. As
long as it's only "for fun" in the balance, there's not much
harm that needs to be alleged.

SCC: 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 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.

JCT: Notice that the harm from prohibition isn't taken into
account. Only the harm to the idiots. Even if harm to the
epileptics is obvious, they say harm to the idiots need not
be shown to be serious. It should boil down to how many
idiots disobey their doctors warnings if permission versus
how many lives are destroyed by prohibition?

SCC: 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.

JCT: "In light of avoiding harm to idiots, it's not
irrational." Doesn't matter that 3600 epileptics are dying
every year? They've divorced that harm from their thinking.
Lawyers have been trained to do that. Sadly, high-tech
science degrees are a rarity on benches full of low-tech law
degrees. Notice how many times they keep repeating their
lousy King, the harm to the idiots, as their only reason for
prohibition, much like banning driving because some idiots
speed.

SCC: 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.

JCT: And of course, we've learned from the Australian
driving statistics that they actually become more careful
and more adept. Ask any truck driver or any musician whether
cannabis adversely affects their mastery over complex
machinery. So the court's pushing a lie.

SCC: Chronic users may suffer serious health problems.

JCT: And after 80 years of trying to find one serious health
problem, they're still stuck at the proposition that it
"may".

SCC: Vulnerable groups are at particular risk, including
adolescents with a history of poor school performance,

JCT: Adolescents with poor school performance are at
particular risk?

SCC: pregnant women and persons with pre-existing conditions
such as cardiovascular diseases, respiratory diseases,
schizophrenia or other drug dependencies.

JCT: Wow, where'd they find cardiovascular and respiratory
dangers. Hasn't marijuana shown to be good for people with
respiratory diseases? Doesn't it help asthmatics? How'd the
judges get this backwards? I guess some lawyers helped.

SCC: 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.

JCT: Notice that the harm to the idiots by legalisation is
treated alone with no consideration of the harm to the
epileptics by prohibition.

SCC: 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.

JCT: Disproportionality between the harm to idiots and what?
Too bad they didn't finish the sentence.

SCC: 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.

JCT: It is irrational when they go after the harmless one
while leaving the harmful ones alone. That's pretty
irrational. Of course, the recreationals didn't have any
dead epileptics to raise in the harm counterbalance.

SCC: 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.

JCT: I think 3600 epileptics whose lives are saved each year
is grossly disproportional to the few idiots saved from a
bad experience at worse.

SCC: 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.

JCT: Wow. Because judges don't have to enforce an oppressive
prohibition makes that oppression okay.

SCC: The "availability" of imprisonment in respect of the
scheduled drugs under the 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.

JCT: Maybe the effects on these recreational defendants are
not so grossly disproportionate but the effect of dying on
Terry Parker is so grossly disproportionate that it renders
the prohibition on marijuana possession contrary to s.7 of
the Charter, or so said Rosenberg in the unchallenged Parker
decision (2000).

SCC: The consequences complained of by the appellants are
largely the product of deliberate disobedience to the law of
the land.

JCT: So what? The fatal consequence complained of by the
Appellant Parker too.

SCC: 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.

JCT: I'd like to stop here. Sure, the straw horses lose. The
straw horses are beaten by the government's case. From now
on, I'll stop pointing out that the defeats for our side
won't happen with Parker's iron horse.

SCC: 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.

JCT: But they've had to use S.1 to defend against Parker's
S.7 right to life. No ducking "life" stronger than
"recreation."

SCC: 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, however, 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.


--
Abolitionist Slave Leader John C."The Banking Systems Engineer" Turmel
for UNILETS interest-free time-based currency in U.N. resolution C6
to Governments in the http://www.un.org/millennium/declaration.htm
http://www.cyberclass.net/turmel 519-753-0645 USENET: can.politics