[What a dumb pun.]
So the Supreme Court spoke this morning in the case R. v. Clay and marijuana smoking is not a constitutional right - but only on a 6-3 split. Apart from the reassurance that the brewers and distillers of Canada were looking for, there is some very interesting language:
Reliance is placed by the appellant on the observations of La Forest J. that "privacy is at the heart of liberty in a modern state"... and that "the right to liberty enshrined in s. 7 of the Charter protects within its ambit the right to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference". However this "privacy" aspect of s. 7 relates to "inherently private choices" of fundamental personal importance... What stands out from these references, we think, is that the liberty right within s. 7 is thought to touch the core of what it means to be an autonomous human being blessed with dignity and independence in "matters that can properly be characterized as fundamentally or inherently personal"So... no right to do it as a matter of personal autonomy because it is not big enough, not a matter central enough to be a matter of personal integrity. This is a bit weird. If we are autonomous from the state, can't we choose to be slackers? Are we not allowed to dedicate the core of our lives to the life of choice, even if the choice made is not the profound? If we are not granted each our own choice, we are not then each so much uniquely individual but individual as measured against some idealized standard of generic individuality. I bet if we looked into the brain of the judges the ideal standard might look a lot like the life they chose for themselves. Oddly, in many other areas of constitutional law, the individual is allowed to define him or herself - it is a subjective right. It looks like the subjective right to be slack is not good enough.With respect, there is nothing "inherently personal" or "inherently private" about smoking marihuana for recreation. The appellant says that users almost always smoke in the privacy of their homes, but that is a function of lifestyle preference and is not "inherent" in the activity of smoking itself. Indeed, as the appellant together with Malmo-Levine and Caine set out in their Joint Statement of Legislative Facts, cannabis "is used predominantly as a social activity engaged in with friends and partners during evenings, weekends, and other leisure time" (para. 18). The trial judge was impressed by the view expressed by the defence expert, Dr. J. P. Morgan, that marihuana is largely used for occasional recreation. Reference might also be made on this point to a case under the European Convention on Human Rights decided recently by the English courts under the Human Rights Act 1998 (U.K.). In R. v. Morgan... the English Court of Criminal Appeal observed, at para. 11, that:
A right to private life did not involve or include a right to self intoxication, nor the right to possession or cultivation of cannabis, whether for personal consumption within one's home or otherwise.
Comments
Nabob Marley - December 23, 2003 3:04 PM
I agree, Al, this is a bizarre bit of reasoning, notably:
"With respect, there is nothing "inherently personal" or "inherently private" about smoking marihuana for recreation."
Tell that to the Rastafarians. But really, according to that reasoning, there's nothing inherently personal about anything. Or only about the things that a bunch of stodgy failed politicians and academics think are inherently personal.
Truly, the Supreme Court demonstrates habitual cowardliness and elitism.
Alan - December 23, 2003 4:14 PM
Take heart, Nabob. Have a look at the minority ruling by Justice Arbour in the companion cases R. v. Malmo-Levine; R. v. Caine starting at paragraph 189 and going to 276 who writes beautifully on the right to liberty from incarceration where no harm to another can be shown, even quoting from John Stuart Mills at paragraph 237:<blockquote class="smalltext">That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.</blockquote>
Nabob M. - December 23, 2003 4:22 PM
So eloquent. Its use is a thrill of hope that the minority now will be the majority soon.
Alan - July 1, 2004 11:49 AM
I am hoping to consider this case on liberty and autonomy above with yesterday's ruling on the freedom of religion, Syndicat Northcrest v. Amselem in which the court states that: <blockquote class="smalltext">Freedom of religion under the Quebec (and the Canadian) Charter consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials. This understanding is consistent with a personal or subjective understanding of freedom of religion. As such, a claimant need not show some sort of objective religious obligation, requirement or precept to invoke freedom of religion. It is the religious or spiritual essence of an action, not any mandatory or perceived-as-mandatory nature of its observance, that attracts protection. The State is in no position to be, nor should it become, the arbiter of religious dogma. Although a court is not qualified to judicially interpret and determine the content of a subjective understanding of a religious requirement, it is qualified to inquire into the sincerity of a claimant's belief, where sincerity is in fact at issue. Sincerity of belief simply implies an honesty of belief and the court's role is to ensure that a presently asserted belief is in good faith, neither fictitious nor capricious, and that it is not an artifice. Assessment of sincerity is a question of fact that can be based on criteria including the credibility of a claimant's testimony, as well as an analysis of whether the alleged belief is consistent with his or her other current religious practices. Since the focus of the inquiry is not on what others view the claimant's religious obligations as being, but what the claimant views these personal religious "obligations" to be, it is inappropriate to require expert opinions. A court's inquiry into sincerity should focus on a person's belief at the time of the alleged interference with his or her religious freedom. It is inappropriate for courts rigorously to study and focus on the past practices of claimants in order to determine whether their current beliefs are sincerely held. Because of the vacillating nature of religious belief, a court's inquiry into sincerity, if anything, should focus not on past practice or past belief but on a person's belief at the time of the alleged interference with his or her religious freedom.</blockquote>I do not understand how the exercise of one right, religion, only requires the establishment of sincerity while another, autonomy of personal decision making, allows the court to determine the validity of the decision as opposed to its sincerity. If I choose to be a layabout and sincerly want to do it, why is that different from wanting to be a Presbyterian and sincerely wanting to do it? Apparently the state values individuals who are ardent in a traditional manner than in a individual one. Respect for all sincerity would be nice from my state.
Alan - April 4, 2006 4:59 PM
I continue to scratch my head at this logic 2 and a half years later and expecially in light of what is written at section 84 of the Supreme Court of Canada's November 2005 ruling in <i>Montréal (City)</i> v. <i>2952-1366 Québec Inc.</i>, [2005] 3 S.C.R. 141, 2005 SCC 62:<blockquote class="smalltext">The electronically amplified noise at issue here encouraged passers-by to engage in the leisure activity of attending one of the performances held at the club. Generally speaking, engaging in lawful leisure activities promotes such values as individual self-fulfillment and human flourishing. The disputed value of particular expressions of self-fulfillment, like exotic dancing, does not negate this general proposition: R. v. Butler, [1992] 1 S.C.R. 452, at p. 489. It follows that the By-law has the effect of restricting expression which promotes one of the values underlying s. 2(b) of the Canadian Charter.</blockquote>Even though the law was upheld on the issue of the volume of street noise on the basis that "the citizens of a city, even a city the size of Montréal, are entitled to a healthy environment. Noise control is unquestionably part of what must be done to improve the quality of this environment" it is still odd to see that individual self-fulfillment and the making of choices to engaging in different forms of individual self-fulfillment is OK for the Supreme Court of Canada with a strip joint but not another sort of joint. No real distinction I can see.