Minderheitsmeinungen des Obersten Gerichtshofs von Kanada

Minderheitsmeinung von drei der neun Richter des Obersten Gerichtshofs von Kanada zur Verfassungsmäßigkeit des Cannabisverbots (23.12.2003):

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 as follows:

(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?

Answer: Yes.

(2)If the answer to Question 1 is in the affirmative, is the infringement justified under s. 1 of the Charter?

Answer: No.

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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 order.

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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 question.

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 suppress.

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.