Académique Documents
Professionnel Documents
Culture Documents
TABLE OF CONTENTS......................................................................1
INTRODUCTION..............................................................................2
GENERAL BACKGROUND INFORMATION...........................................3
CANADIAN MARIJUANA BACKGROUND.............................................4
R. V. MALMO-LEVINE/R. V. CAINE....................................................4
GERMAN MARIJUANA BACKGROUND................................................9
THE CANNABIS CASE....................................................................10
DISTINCTIONS BETWEEN MALMO-LEVINE AND THE CANNABIS CASE 14
DISPARATE PROPORTIONALITY ANALYSIS......................................................................14
IMPORTANCE OF INTERNATIONAL OBLIGATIONS ...............................................................17
COMMONALITIES IN MALMO-LEVINE AND THE CANNABIS CASE .......19
MARIJUANA USE AS OUTSIDE THE CONSTITUTIONAL CORE.................................................19
DEFERENCE TO THE LEGISLATURE..............................................................................21
RESTRAINT IN ENFORCEMENT OF LAWS PROHIBITING MARIJUANA POSSESSION...........................23
PROTECTION OF VULNERABLE GROUPS........................................................................26
CONCLUSION...............................................................................28
APPENDIX....................................................................................30
BIBLIOGRAPHY.............................................................................32
1
Introduction
It has been said that “[n]o substance in the world has generated more controversy
and, perhaps, investigation in terms of impact on individual behaviour and society than
marijuana.”1 It is therefore unsurprising that this substance has been the subject of a great
deal of judicial scrutiny in various nations. This judicial analysis of marijuana possession
is particularly interesting in the current era, in which individual rights have significantly
and powerful constitutional courts. The treatment of marijuana use by the Supreme Court
of Canada and the German Constitutional Court is the subject of the following
Caine2 and the Cannabis case3, respectively. The decisions contain certain important
question by the two courts, and a greater emphasis on international obligations vis-à-vis
both courts arrived at an essentially identical result, in part due to parallels in the
decisions. These similarities include the courts’ refusal to acknowledge marijuana use as
a core right, their emphasis on the importance of discretion of the legislature in dealing
with marijuana use, the importance of restraint in enforcement of the law, and the
1
Richard Isralowitz, ed. Drug problems: cross-cultural policy and program development (Westport: Auburn House, 2002) at 12.
Marijuana is alternatively spelled “marihuana”, and it is also occasionally known simply as cannabis. Please note that the term is
occasionally capitalized in non-Canadian sources. For consistency, I will refer to it simply as marijuana.
2
R. v. Malmo-Levine/R. v. Caine, [2003] 3 S.C.R. 571, 2003 SCC 74 [Malmo-Levine].
3
Bundesverfassungsgericht (Federal Constitutional Court), Second Senate, decision of 9 March 1994, BVerfGE 90, 145 [Cannabis
case].
2
General Background Information
To provide appropriate context, it is necessary to set out some background on
marijuana, or Cannabis sativa indica4. Although frequently grouped with other illicit
substances such as cocaine or even heroin, marijuana is not worthy of the well-earned
reputation of such drugs5. It is widely accepted that marijuana is the mildest and least
dangerous of “drugs”6 and is, in fact, no more harmful than alcohol or tobacco, as was
acknowledged in the Canadian Report of the Senate Special Committee on Illegal Drugs7.
That Report, which was before the Court in Malmo-Levine, made it clear that, although
not harmless, marijuana is not nearly as dangerous as many 20th century portrayals
indicated. Significantly, the Report demonstrated the following: the stepping stone and
brain function in most long-term users10; and marijuana has a low addictive potential11.
Studies indicate that the harm associated with an individual’s use of marijuana is
generally experienced only in conjunction with habitual heavy use, and may include
3
number of cases12.
background with respect to marijuana use in Canada. It has been estimated that as many
as 1.5 million Canadians smoke marijuana recreationally, and 14% of Canadians polled
in a national Addiction Survey reported having used marijuana at some point in the
previous year13. Included within this number are approximately 50,000 “chronic” users14.
Moreover, marijuana use in Canada is reportedly higher per capita than in all European,
Latin American and Asian countries15. Given these figures, it is perhaps unsurprising that
offences16.
R. v. Malmo-Levine/R. v. Caine
The hallmark ruling by the Supreme Court of Canada on marijuana prohibition is
of great significance in light of the foregoing statistics. This ruling came in the twinned
of a small amount of marijuana (0.5 grams) contrary to the governing provisions of the
12
Cannabis case, supra note 3 at 180, Malmo at paragraph 42
13
Khoo, supra note 13.
14
Malmo-Levine, supra note 2 at para. 48.
15
Canwest News Service, “Marijuana popular among educated, middle-class Canadians: study” Canwest News Service (May 15,
2008) <http://www.canada.com/topics/news/story.html?id=3e1b7647-05e9-4adb-ac75-533e74345e41> (Accessed December 4, 2010).
16
Malmo-Levine, supra note 2 at para. 22.
17
My comparative analysis will focus exclusively on the Supreme Court’s assessment of constitutional issues with respect to simple
possession, so I have not included a discussion of the facts in R. v. Malmo-Levine, which involved more complicated trafficking
issues.
4
former Narcotic Control Act, R.S.C. 1985, c. N-1 [hereinafter, the “NCA”]. The NCA
classified marijuana as a scheduled drug, and set out in s. 3(1) that “[e]xcept as
authorized by this Act or the regulations, no person shall have a narcotic in his
imprisonment for up to six months or both for a first offence and a maximum fine of
contrary to s. 15 of the Charter20. The Court’s response on this issue was that a taste for
marijuana is not a “personal characteristic” that would attract the protection of s. 15, but
The bulk of the Court’s analysis was focused on various s. 7 Charter22 arguments
advanced by the Appellants with respect to the fact that imprisonment is one of the
available sanctions for simple possession of marijuana under NCA. The majority of the
Court, per Gonthier and Binnie JJ., stated that the availability of imprisonment for simple
possession was “sufficient to trigger s. 7 scrutiny.”23 The Appellants argued that one of
the principles of fundamental justice found within s. 7 is the “harm principle”, which
essentially indicates that the state can only proscribe the conduct of its citizens when that
conduct is harmful for other citizens within the state. The majority of the Court found that
18
Malmo-Levine, supra note 2 at para. 3.
19
My analysis will focus primarily on issues arising from ss. 7 and 15 of the Charter. Likewise, I will not engage with the division of
powers or s. 12 analysis of the Supreme Court. It suffices to say that the Court found that Parliament’s criminalization of marijuana is
within the criminal law power and that the availability of imprisonment did not violate s. 12 of the Charter as the potential for
imprisonment is not grossly disproportionate.
20
See Appendix.
21
Malmo-Levine, supra note 2 at para. 185.
22
Please see Appendix.
23
Malmo-Levine, supra note 2 at para. 84.
5
although the harm principle may guide the state in certain ways and that “there is…a state
interest in the avoidance of harm to those subject to its laws which may justify
at this conclusion given their finding that there is a lack of consensus in Canada as to
whether or not “the harm principle is the sole justification for criminal prohibition.”25
Also, the Court noted that since there are various interpretations of the harm principle, it
justice26.
The Appellants also advanced arguments with respect to the arbitrariness of the
marijuana prohibition, given that “[a] criminal law that is shown to be arbitrary or
irrational will infringe s. 7.”27 The Court found that in legislating with respect to simple
possession of marijuana Parliament did not act arbitrarily, given the rational connection
of/predisposition to drug abuse28. Additionally, the majority noted that the legislation is
alcohol and tobacco, as Parliament does not lose its jurisdiction with respect to criminal
law simply because “there are other substances whose health and safety effects could
24
Ibid. at para. 130 (emphasis in original).
25
Ibid. at para. 115.
26
Ibid. at para. 129.
27
Ibid. at 134.
28
Ibid. at para 136.
29
Ibid. at para 138.
6
With respect to the Appellants’ claim of disproportionality of the criminalization
Citizenship and Immigration), [2002] 2 S.C.R. 3 which set out that some governmental
responses will be “so extreme that they are per se disproportionate to any legitimate
government interest”30 and will therefore offend the principles of fundamental justice
under s. 7. The Court noted that the applicable standard here is one of “gross
disproportionality”, which compares the public health and safety goals and the adverse
effects on those subject to the prohibition31. The majority of the Court noted here that the
incarceration.”32 The majority went on to emphasize that the NCA does not provide for
principles.”34 The majority of the Court noted that “imprisonment would ordinarily be an
unfit sentence for a conviction on simple possession of marihuana,” but found that if this
In her dissenting opinion, Madam Justice Arbour took a different approach to the
“harm principle” with respect to Caine, and found that a law that has the potential to
imprison an individual for conduct that causes little or no harm to others does indeed
30
Suresh v. Canada (Minister of Citizenship and Immigration), 1 S.C.R. 3, 2002 SCC 1 cited in Malmo-Levine, supra note 2 at para
142.
31
Malmo-Levine, supra note 2 at para. 145.
32
Ibid. at para. 150 (emphasis in original).
33
Ibid. at para 153.
34
Ibid. at paras. 154, 155 and 158.
35
Ibid. at para. 167.
7
offend the principles of fundamental justice and is therefore contrary to s. 736. She stated
that “the principle that stigma and punishment must be proportionate to the moral
element in the actus reus itself”37 and that to meet that standard there must be harm to
others. She found that the harm associated with marijuana could not justify the use of
imprisonment as a sanction, noting that this harm is largely limited to health risks for the
user, which are minimal for all but chronic users. Moreover, she contended that the risk
that some more vulnerable groups may harm themselves with marijuana more than the
general population cannot justify incarceration for possession generally, given the
typically low risk of harm38. In this vein, she concurred with the reasoning of one of the
judges of first instance who found that even risks associated with impaired operation of
cars and heavy machinery or broader health and social costs are relatively minor39.
Finding that s. 7 rights are indeed infringed by the availability of imprisonment for simple
possession of marijuana, Madam Justice Arbour noted that the onus is on the Respondent
to justify the rights infringement, and this onus was not met as no representations were
Mr. Justice LeBel and Madam Justice Deschamps agreed with Madam Justice
Arbour’s disposition on the constitutional issue, although they did not concur with her
finding that the harm principle is one of fundamental justice. Mr. Justice LeBel noted that
the “law, as it stands, is indeed an arbitrary response to social problems”41 and held that in
36
Ibid. at para. 190.
37
Ibid. at para. 230.
38
Ibid. at para. 258.
39
Ibid. at para. 261.
40
Ibid. at para. 272.
41
Ibid. at para. 277.
8
assessing s .7 rights, “concerns about the harm done to society or some of its members or
even to the accused themselves must be weighed together with the consequences which
fundamental rights under s. 7 may be “made out if and when the response to a societal
problem may overreach in a way as to taint the particular legislative response with
arbitrariness.”43 He contended that this is the case with the legislation in question here,
given the “rather mild” harm caused by marijuana consumption versus the “plain and
justice that liberty-limiting laws cannot be arbitrary, in part due to issues with respect to
maintenance of legitimacy and credibility of the justice system45. She suggested that the
arbitrariness of the legislation can be seen in the “nebulous” reasons for initially
criminalizing it, the fact that “moderate use of marihuana is harmless,”46 the availability
of other mechanisms of control, if necessary, for the so-called vulnerable groups47, and
dissimilar from those available in Canada, although rates of use are somewhat lower in
Germany. Estimates of the number of German marijuana users at the time of the
42
Ibid. at para. 279.
43
Ibid. at para. 279.
44
Ibid. at para. 280.
45
Ibid. at paras. 290-291.
46
Ibid. at para. 295.
47
Ibid. at para. 298.
9
Cannabis case were between two and four million people, most of whom were occasional
marijuana users surveyed indicated that they had used the substance 1-5 times in the
previous year49. Since the end of the 1980s, marijuana use in Germany has been
increasing50 and a 2004 study indicated that 1/3 Germans aged 12-25 had experimented
what has come to be known as the Cannabis Case52 also sheds interesting light on the
marijuana possession53. This case was submitted to the Constitutional Court in 1994 by
the Lubeck Appellate Court, via Article 100 of the Basic Law, which enables courts to
Constitutional Court here assessed the constitutionality of the penal provisions of the Act
marijuana, among other things. This application arose in the context of the conviction and
48
Cannabis case, supra note 3 at 178.
49
Ibid.; Note: The available statistics are somewhat dated, as they arose from a study conducted in 1994. These are the statistics,
however, on which the German Constitutional Court based its analyses.
50
Karl-Heinz Reuband, “Evolution des modes de consommation des drogues et effets limites des politiques penales: les cas de
l’Allemagne” (2008) Déviance et Société 32 [translated by author] at 9.
51
Ibid.
52
AKA: the Hashish drugs case.
53
Please note that this case also addresses the constitutionality of the German criminalization of other offences pertaining to
marijuana, including trafficking. My analysis, however, focuses exclusively on issues pertaining to minor possession, as is the case in
the foregoing discussion of Malmo Levine.
10
Hashish.”54 At trial, the offender in question was sentenced to two years and six months’
imprisonment. The ITA in s. 29(1) provides for a fine or imprisonment of up to five years
reference to Article 2 paragraph 1 of the Basic Law, the clause guaranteeing free
development of personality55. The majority of the Court found here that free development
Moreover with respect to the Article 2(2) of the Basic Law57 and rights related to
liberty, the Court stated that given the broad limiting language employed within Article 2,
legislation that is otherwise constitutional may legitimately limit the rights found in the
article with respect to liberty, assuming that the limitations involved are proportional. In
applying the proportionality analysis, the majority of the Court noted that “[l]iberty of the
person, which is described as ‘inviolable’, is a legal interest of such importance that it can
only be impinged upon on the authority of Article 2 para 2 sentence 3 if there are
particularly weighty reasons for doing so.”58 The Court then commented that the aim of
the legislature in drafting the provisions with respect to possession of marijuana in the
ITA is the protection of the “health both of the individual and of the population as a whole
against the dangers which flow from drugs.”59 In this vein, the Court noted that the “the
dangers to health which arise from the consumption of Cannabis products are
54
Cannabis case, supra note 3 at 198. Although the Constitutional Court made comments with respect to both marijuana and hashish,
a marijuana derivative, my analysis here is limited to the former, which is generally acknowledged to have milder effects than the
latter.
55
Please see Appendix.
56
Cannabis case, supra note 3 at 145.
57
Please see Appendix.
58
Ibid. at 172.
59
Ibid. at 174.
11
significant,”60 although it did allude to conflicting evidence with respect to these health
impacts61.
Additionally, the Court found that the ITA is also intended to prevent the
population, particularly young people, from becoming addicted to drugs, and relied on a
report indicating that “[i]t is highly probable that [marijuana] serves as a stepping stone”
to other illegal substances.62 The Court noted that possession poses a risk to individuals
beyond the particular possessor, given that it opens up “the possibility of the drug being
passed on to third parties without any control.”63 Finally, the majority of the Court
condemned possession given that buyers of marijuana support the illegal drug market64.
Altogether, the Court found that the penal sentence available for marijuana possession
At the second stage of the proportionality analysis, the Court noted that the
legislature “has repeatedly reconsidered its view and has repeatedly come to the
conclusion that to achieve the aims of the Act it is necessary to have a prohibition of
of the legislature in choosing means available to achieve a particular end67 and noted that
criminalization of marijuana was necessary given that there are no “means other than
criminal penalties which would be equally effective in attaining the Act’s aims while
12
Having established the suitable and necessary nature of the ITA provisions in
question, the Court went on to assess its proportionality in the narrower sense. At the
outset of this assessment, the Court again emphasized the goals of the legislature in
banning marijuana and implementing criminal penalties and noted that such public
However, the Court went on to refer to the potential proportionality issue in the
following excerpt:
Depending on the characteristics and effects of the drug, the amount involved in the
specific case, the nature of the relevant infringement, and all other relevant facts, the
danger posed to the protected public interests may be so slight that the considerations of
general prevention which justify a general threat of criminal penalties may lose their force.
In such cases, having due regard to the right of the affected individual to freedom, the
individual guilt of the defendant and the related considerations of criminal policy which
aim at prevention in the case of the specific individual, the punishment constitutes a
disproportionate and therefore unconstitutional sanction.70
Similarly, the Court found that in a significant number of marijuana possession cases, the
“extent of individual culpability and the threat to other legal interests emanating from the
Despite these reservations, the majority of the Court found that the constitutional
marijuana. Of much significance in this vein is the reference made by the Court to the
ability of the authorities concerned to refuse to prosecute or impose penalties where the
wrongfulness or culpability suggest this may be appropriate. Section 29(5) of the ITA is
13
or transports them through the country only for his personal consumption and only for his
personal use.72
Similarly, s. 31a of the ITA provides for the refusal to prosecute in similar circumstances.
At any rate it was stated that “[t]he decision of the legislature to take account of the
Given that Canada and the Federal Republic of Germany have distinct legal
systems and diverse constitutions, it is unsurprising that there are several key differences
between the Supreme Court of Canada’s decision in Malmo-Levine and the German
Constitutional Court’s decision in the Cannabis case. One of these differences is in the
approach that each court took to the proportionality assessment of marijuana laws. As
noted above, in Malmo-Levine the Supreme Court assessed the NCA in terms of gross
impugned provisions in the fullest sense, given that the majority found that there was not
a Charter breach, and assessment under s .1 was therefore unnecessary. The assessment
that the majority did conduct under s. 7 was much more limited, as the majority stated
that “the range of interests to be taken into account under s. 1 is much broader than those
relevant to s. 7,”74 and that “[u]tilitarian arguments that urge a cost-benefit calculation of
alleged benefit to the many versus alleged harm to the few, to the extent that such
72
Ibid. at 189.
73
Ibid. at 190.
74
Malmo-Levine, supra note 2 at para. 97.
14
arguments are relevant under the Charter, belong in s. 1.”75 Arguably, and with all due
respect, the restrictive approach taken to s. 7 may have precluded a fulsome assessment
of whether the law in question is constitutional because it was not subjected to a full
legislation.
NCA provision to a s. 1 analysis, as proposed by Madame Justice Arbour who stated that
the impugned provision breached s. 7 given her finding that this criminal law was in
disaccord with the harm principle. She noted that imprisonment must only be available
for conduct which causes a “reasoned risk of harm to others”, and acknowledged that a
deeper assessment of societal interests may factor into this assessment76. In this respect
she stated that “[s]oceital interests in prohibiting conduct are evaluated by balancing the
harmful effects on society should the conduct in question not be prohibited by law against
the effects of prohibiting the conduct.”77 Her approach therefore entailed consideration of
the legitimacy of the impugned law in a broader context insofar as she engaged in a
possession of marijuana, as weighed against the detriments for users and society
Similarly, Mr. Justice LeBel and Madam Justice Deschamps, in dissent, found the
impugned law to be arbitrary and irrational, and therefore in breach of s.7, and in so
doing considered a broader scope of interests. Mr. Justice LeBel noted that “[t]he process
15
interests”78 and therefore that “concerns about the harm done to society or some of its
members or even to the accused themselves must be weighed together with the
emphasized that what must be assessed under s. 7 here was whether “the response to a
societal problem may overreach in such a way as to taint the particular legislative
comparison between the harm associated with marijuana and the issues associated with
its criminalization.
While the majority of the German Constitutional Court in the Cannabis case
arrived at essentially the same result as the majority in Malmo-Levine, its proportionality
analysis was somewhat deeper. The majority in Malmo-Levine was reluctant to engage in
the more thorough balancing under s. 1, whereas the German Constitutional Court
effectively conducted an identical test to what is found under s. 1, as can be seen in the
According to this principle, a statute which limits fundamental rights must be both suitable
for achieving the purpose to which it is directed and necessary to doing so. A statute is
suitable when with its help the desired result can be promoted. It is necessary if the legislator
could not have chosen a different means which would have been equally effective but which
would have infringed on fundamental rights to a lesser extent or not at all.”81
Additionally, the court noted that it must assess “proportionality in the narrower sense”,
which entails “weighing the seriousness of the infringement against the importance and
urgency of the factors which justify it” and necessitates a consideration of the “limits of
what can be demanded of individuals to whom the prohibition is addressed.”82 Given this
78
Ibid. at 278.
79
Ibid.
80
Ibid. at 279.
81
Cannabis case, supra note 3 at 172.
82
Ibid. at 173
16
framework, the German Constitutional Court engaged in a more thorough analysis of the
rights in question. Interestingly, the Court still arrived at the same result as the majority in
Malmo-Levine. This was perhaps in part due to a greater degree of apprehension as to the
health effects and other consequences associated with marijuana83, given the state of
available knowledge in 1994 when its decision was released, versus 2003 when the
Another notable distinction between the majority rulings in Malmo-Levine and the
Cannabis case is the pronounced emphasis on international obligations in the latter. The
majority in Malmo-Levine, conversely, did not discuss the legitimacy of the impugned
emphasized the importance of internal legislative harmony with the Charter even at the
…the treaty obligations Canada has undertaken in the war on drugs are subject to, inter
alia, Canada’s “constitutional limitations” (Single Convention on Narcotic Drugs, 1961,
Can. T.S. 1964 No. 30, Art. 36) and Canada’s “constitutional principles and the basic
concepts of its legal system” (Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, Can. T.S. 1990 No. 42, Art. 3(2)). The express subordination of
these treaties to the requirements of domestic constitutional law suggests that they would
not significantly assist an attempt to justify the s. 7 violation in s. 1.85
83
By way of an example, at p. 174 of its decision, the German Constitutional Court acknowledged the “gateway” theory, which was
subsequently widely discredited, as acknowledged by the majority of the Supreme Court in at paragraph 46.
84
Malmo-Levine, supra note 2 at paras. 33 and 34.
85
Malmo-Levine, supra note 2 at para. 271.
17
obligations a great deal in ultimately upholding the constitutionality of the marijuana
possession provision in the ITA. This can be seen in the following excerpt from the
Cannabis case:
The European states, within whose borders hardly any drugs are produced, have thereby
undertaken primarily to combat the demand for drugs. The Federal Republic of Germany
has concurred in this evaluation of the dangers involved by passing the Intoxicating
Substances Convention Implementation Act and subsequently ratifying the convention, and
has made this evaluation the basis of its treaty obligation to combat dealings with drugs by
means of criminal penalties. In the light of this convention the Intoxicating Substances Act
is at the same time the contribution of the Federal Republic of Germany to the international
control of drugs and psychotropic substances and of dealings with these substances. It is
Germany's contribution to combating the illegal market in drugs and the criminal
organisations who participate in it. This is the common business of the community of states
joined together in the United Nations. It is their unanimous conviction that the only chance
of pursuing these goals with any success is for various states to co-operate.
In setting this objective the Intoxicating Substances Act serves communal interests which
are recognised by the constitution.86
The Court also noted that “[t]he international conventions, to which the Federal Republic
of Germany has acceded, rely increasingly heavily on the use of penal measures in
combating the abuse of drugs and illegal trade in drugs.”87 This international orientation
is influenced by the inclusion of a provision such as Article 25 in the Basic Law, which
states that “[t]he general rules of international law shall be an integral part of federal law.
They shall take precedence over the laws and directly create rights and duties for the
inhabitants of the federal territory.” Similarly, the reference in the Preamble to the Basic
Law to Germany “as an equal partner in a united Europe” may also suggest an
international orientation. At any rate, it is fairly apparent in light of the foregoing that the
and obligations, while such factors were far from paramount in the Supreme Court of
Canada’s decision.
86
Cannabis case, supra note 3 at 175.
87
Ibid. at 183.
18
Commonalities in Malmo-Levine and the Cannabis case
While the differences in Malmo-Levine and the Cannabis case are certainly
significant, there were many commonalities between the two judgments that may have
led to the essentially identical results in the two cases. Various elements of the Canadian
and German courts’ analyses are theoretically comparable, including their treatment of
courts’ dealing with the existence of a “free-standing constitutional right to smoke ‘pot’
for recreational purposes.”88 The Supreme Court of Canada was unanimous in its finding
that s. 7 does not give rise to a “right to use marihuana in the privacy of one’s home (as) a
fundamental aspect of personal autonomy and dignity.”89 Likewise, as noted above, the
Court unanimously found that recreational users of marijuana could not find refuge in s.
15, as the Court unanimously found that use of the substance “is a lifestyle choice,” and
that “[i]t bears no analogy with the personal characteristics listed in s. 15, namely race,
national or ethnic origin, colour, religion, sex, age, or mental or physical disability.”90
The Court emphasized that including recreational use of marijuana in this list of protected
grounds could have the effect of trivializing equality rights under the Charter because
marijuana use is not conduct that is not immutable nor is it changeable only at a
Correspondingly, the German Constitutional Court noted that the right to free
88
Malmo-Levine, supra note 2 at para. 87.
89
Ibid. at 221.
90
Ibid. at 185.
91
Ibid.
19
development of personality in the Basic Law protects “every form of human activity
without consideration of the importance of the activity for a person’s development,”92 but
the Court stressed that it is “only the inner core of the right to determine the course of
one’s own life” that is given absolute protection93. The Constitutional Court’s assessment
of recreational marijuana use emphasized that such use is not within this inner core and as
the same sense as other characteristics/activity that receive constitutional protection. That
said, it is interesting that the German Constitutional Court’s refusal to provide protection
for recreational use of marijuana was subtly different from the Canadian approach, in that
the former court emphasized the “numerous direct and indirect consequences for
Court went a step further than the Supreme Court of Canada and noted that the right to
free development of personality will not protect activity which gives rise to certain
“direct and indirect consequences for society.”96 This extra step of analysis may have
been necessary for the German Court, as Article 2(1) of the Basic Law has occasionally
been read in a very broad manner by the Court, which has even gone as far as to provide
protection to activities such as horseback riding through the forest and pigeon feeding97.
On the other hand, the Supreme Court of Canada may not have found it necessary
92
Cannabis case, supra note 3 at 171.
93
Ibid. at 171.
94
Ibid.
95
Ibid.
96
Ibid.
97
Cornelius Nestler, “Constitutional Principles, Criminal Law Principles and German Drug Law” (1998) 1 Buff. Crim. L. Rev. 661 at
666.
20
to assess such consequences for society under s. 15, as it has traditionally not been as
conduct. This is conveyed in the excerpt below from the majority judgment in Malmo-
Levine:
Given this more restrictive reading of activity protected by the Charter it was
unnecessary for the Supreme Court to add the extra layer to its analysis here, as the
German Constitutional Court did. It is interesting to note that the Supreme Court of
Canada almost glibly dismisses the notion of protecting activities such as using marijuana
or playing golf, while the German Constitutional Court has protected pastimes such as
horseback riding and pigeon feeding. Despite the distinction in the mode of analysis of
the two courts, their approach to the question of an individual’s constitutional right to use
Another parallel between the decisions in Malmo-Levine and the Cannabis case is
the importance that the majority judgments placed on courts’ deference to the legislature
in developing legislation generally. The majority of both courts noted that insofar as the
impugned legislation is constitutional but possibly unwise, the legislatures were still
owed deference. This is conveyed in the following excerpts, the first from the decision in
98
Malmo-Levine, supra note 2 at para. 86.
21
Malmo-Levine and the second from the Cannabis case:
It is not the courts’ function to reassess the wisdom of validly enacted legislation. As
L’Heureux-Dubé J. said in Hinchey, supra, at para. 34, “the judiciary should not rewrite
[legislation] to suit its own particular conception of what type of conduct can be considered
criminal”. And further, at para. 36: “If Parliament chooses to criminalize conduct which,
notwithstanding Charter scrutiny, appears to be outside of what a judge considers
‘criminal’, there must be a sense of deference to the legislated authority which has
specifically written in these elements.”99
It is essentially for the legislature to determine what sorts of behaviour are to be punishable
in specific cases after due consideration of the specific situation. The Federal Constitutional
Court cannot consider whether the legislature's decision was the very most suitable,
reasonable or just way of solving the problem in issue. The court's role is merely to check
that the substance of the penal provision is compatible with the provisions of the
constitution and accords with the fundamental values of the Basic Law and the unwritten
principles which underlie the constitution (see BVerfGE 80, 244 at 255 which provides
further references on this point).100
legislature, the majority in each case appeared to exercise that deference in a somewhat
tentative manner. The majorities in both courts acknowledged problems with the
legislation which date back to the initial criminalization, which include a lack of debate
with respect to the criminalization of marijuana101, and the enactment of the law on the
exaggeration of certain harms associated with the substance104. Therefore, the majorities
in both courts express the desire for further research and debate on the criminalization of
marijuana, at the very least, as is illustrated in the following excerpts from Malmo-
Levine:
The Senate and House of Commons Committee Reports are consistent with the conclusions
reached by the courts in British Columbia that, while marihuana is not a “harmless” drug,
nevertheless the degree and extent of harm associated with its use is subject to continuing
99
Ibid. at 211.
100
Cannabis case, supra note 3 at 183.
101
Malmo-Levine, supra note 2 at para. 31.
102
Ibid. at para. 32.
103
Ibid. at para. 32.
104
Cannabis case, supra note 3 at 177.
22
controversy, as is the wisdom of the present legislative scheme.105
Similarly, the German Constitutional Court made the following comment in the
Cannabis case which suggests that it was not entirely convinced by the legislative
scheme in place:
In the light of the open nature of the debate, both from the perspective of criminal policy
and of scientific research, about the dangers presented by the consumption of Cannabis and
the correct way of combating them (see above under I.2.c and 4), the legislature has a duty
to monitor and check the effects of the laws currently in force, having due regard to
experiences in other countries (see BVerfGE 50, 290 at 335; BVerfGE 56, 54 at 78;
BVerfGE 65, 1 at 55 and following; BVerfGE 88, 203 at 309 and following).107
These excerpts illustrate that despite the majorities in both courts’ deference to the
legislatures there were still some reservations with respect to the wisdom of the
In much the same manner that the Canadian and German courts emphasized the
legislation, both courts also emphasized the significance of relying on the appropriate
prohibition. In cases in which “the extent of individual culpability and the threat to other
legal interests emanating from the individual act may be petty,”108 such as possession of
small amounts of marijuana for personal use, both courts comment that prosecutions and
sentences must not be excessive. The majority in both courts relied on this restraint to
105
Malmo-Levine, supra note 2 at para. 60.
106
Ibid. at para. 173.
107
Cannabis case, supra note 3 at 194.
108
Cannabis case, supra note 3 at 187.
23
legitimize the legislation in their respective states, as is conveyed in the following excerpt
the discretion of prosecutors and courts in affirming the constitutionality of the impugned
ITA provisions. A slight distinction can be drawn here, though, in that the principle of
restraint with respect to prosecutions and sentencing for minor marijuana offences in
Germany is actually written into the ITA in ss. 29(1) and 31a, as outlined above. With
respect to these provisions, the German Constitutional Court remarked that “the decision
certain acts primarily by limiting the obligation to prosecute is compatible with the
constitution.”110
Once again, the dissenting opinions in Malmo-Levine are noteworthy and equally
applicable to the reasoning in the Cannabis case, in terms of issues arising from the
reliance on the properly exercised discretion of prosecutors and judges. In his dissent, Mr.
Justice LeBel acknowledged the factual scenario referenced by the majority above with
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
109
Malmo-Levine, supra note 2 at para. 10.
110
Cannabis case, supra note 3 at 191.
24
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.111
argument (which is, again, equally applicable to both Canada and Germany) that the
reluctance to enforce the law in many cases may be problematic given the message that it
may send to the individuals. She notes that, given the issues outlined by Mr. Justice
LeBel above, there are issues with respect to the legitimacy of the law, and by enforcing
it the state may lose credibility112. Moreover, she states that the consequence of this is that
“[c]itizens become inclined not to take the criminal justice system seriously and lose
faith in the criminal justice system may be exacerbated by the inconsistent application of
the law. Although not acknowledged in Malmo-Levine, it has been noted that there is a
great deal of unpredictability in the enforcement of the marijuana provisions in the NCA.
the Canadian Ministry of Justice: “There has been a huge inconsistency in the application
of the law – whether you’re caught with a joint in a small rural community or downtown
Vancouver, you’ll get [a different] reaction from the police.”114 Similarly, the German
25
…it would be a cause for concern if, after the introduction of s 31a, the widely divergent
attitudes to discontinuation of proceedings in the different States of the Federation which
were identified in the report of the Federal Government for the years 1985 to 1987
[reference omitted] should persist. Differing approaches have been noted, particularly with
respect to the decision as to what constitutes a "small amount" of the drug.115
It can be seen, then, that in both Canada and Germany there are certain issues associated
with the reliance on reasonable exercise of discretion by those tasked with enforcing the
marijuana possession provisions in the NCA and ITA, respectively. Despite these issues,
In addition to the similar approach taken by the Canadian and German courts with
respect to marijuana use vis-à-vis core rights, deference to the legislature, and the
exercise of restraint in enforcing the law, both courts also emphasized the centrality in the
of the Supreme Court emphasized that the “psychoactive and health effects can be
with a history of poor school performance, and individuals with certain pre-existing
conditions such as respiratory diseases and schizophrenia117. The majority of the Court
noted that the protection of such individuals who are more susceptible to harm from
marijuana is within the “broad legislative scope conferred on Parliament,”118 even if the
115
Cannabis case, supra note 3 at 190.
116
Malmo-Levine, supra note 2 at para. 61.
117
Ibid. at para. 135.
118
Ibid. at para. 3.
26
majority of Canadians are not confronted with the same potential for harm. Likewise, the
marijuana for protecting those who are “particularly vulnerable to drug-taking because of
laudable goal, the implications for the rest of the population are controversial. The
controversy in this approach was effectively captured and criticized in a strong dissent by
Madam Justice Arbour in Malmo-Levine. Her comments in the following excerpt are
…the fact that some vulnerable people may harm themselves by using marihuana is not a
sufficient justification to send other members of the population to jail for engaging in that
activity. In other words, the state cannot prevent the general population, under threat of
imprisonment, from engaging in conduct that is harmless to them, on the basis that other,
more vulnerable persons may harm themselves if they engage in it, particularly if one
accepts that imprisonment would be inappropriate for the targeted vulnerable groups. I
agree with Packer that to justify imprisonment of both vulnerable persons and other
members of the population on that basis would create a society in which “all are safe but
none is free” (Packer, supra, at p. 65).121
The majority in Malmo-Levine dismissed this argument as “too broadly stated”122 and the
German Constitutional Court’s ruling suggests it would likely have done the same, but it
seems a fairly thought provoking contention and is, therefore, worthy of note.
the comments by Aharon Barak, the former President of the Supreme Court of Israel,
during the intensive sessions for Constitutional Courts and Constitutional Rights.
119
Cannabis case, supra note 3 at 176.
120
Ibid. at 186.
121
Malmo-Levine, supra note 2 at para. 258.
122
Ibid. at para. 166.
27
the state’s limitation of the liberties of its citizens in order to protect a vulnerable group,
President Barak referred to the ability of a state to reduce highway speed limits to a
particularly low number, such as 10 km/hour. Of course, the likely effect of this would be
to greatly decrease motor vehicle fatalities by accommodating for those who are poor
drivers or those who drive at excessive speeds. He emphasized, however, that in a liberal
democracy such as Israel, such legislation would be repugnant, given its consequences
for the liberty of citizens. This logic is applicable to the legislation in question in Canada
and Germany given that both of these states are liberal democracies like Israel. Moreover,
the argument is applicable given that the laws canvassed in Malmo-Levine and the
Cannabis case are apparently aimed at protecting relatively small vulnerable groups but
they have consequences for the liberty of the populations more generally.
Conclusion
In Malmo-Levine and the Cannabis case, the Supreme Court of Canada and the
analysis by the Canadian and German Courts, as well as the emphasis that the latter
the majorities’ treatment of marijuana use as an activity which falls outside the sphere of
legislature and restraint with respect to enforcement of the legislation in question, and the
28
centrality of the laws’ protection of vulnerable groups. These similarities contributed to
the essentially identical rulings in both Malmo-Levine and the Cannabis case. The insight
that can be drawn from an assessment of both these similarities and the differences in the
Canadian and German courts’ rulings are illustrative of the beneficial nature of
comparative constitutional law, in that it allows a better reflection on the domestic state
of affairs. In this case, as is clearly implied above, this contemplation has led to a critical
perspective on the domestic marijuana legislation and a certain degree of optimism that
the legislation may still change. After all, the prohibition of marijuana has evolved
considerably, from a time when hard labour and whipping were potential punishments123
for simple possession, to the current state of affairs and there is arguably room for much
further improvement.
123
Ibid. at para. 35.
29
APPENDIX
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982 c. 11.
Section 1
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out
in it subject only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
Section 7
Everyone has the right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental justice.
Section 15(1)
Every individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour, religion, sex, age or
mental or physical disability.
Basic Law for the Federal Republic of Germany, 23 May 1949, (Federal Law Gazette,
p. 1)(BGBl III 100-1)
(1) Every person shall have the right to free development of his personality insofar as he
does not violate the rights of others or offend against the constitutional order or the moral
law.
(2) Every person shall have the right to life and physical integrity. Freedom of the person
shall be inviolable. These rights may be interfered with only pursuant to a law.
(2) Men and women shall have equal rights. The state shall promote the actual
implementation of equal rights for women and men and take steps to eliminate
disadvantages that now exist.
30
(3) No person shall be favored or disfavored because of sex, parentage, race, language,
homeland and origin, faith, or religious or political opinions. No person shall be
disfavored because of disability.
The general rules of international law shall be an integral part of federal law. They shall
take precedence over the laws and directly create rights and duties for the inhabitants of
the federal territory.
31
BIBLIOGRAPHY
JURISPRUDENCE
LEGISLATION/CONSTITUTIONAL DOCUMENTS
Canadian Charter of Rights and Freedoms, s. 15, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11.
Basic Law for the Federal Republic of Germany (Grundgesetz, GG) 23 May 1949,
(Federal Law Gazette, p. 1)(BGBl III 100-1)
SECONDARY SOURCES
Branford, Becky “Canada’s growing marijuana problem” BBC News (March 20, 2006)
<http://news.bbc.co.uk/2/hi/americas/4620272.stm> (Accessed: November 28,
2010).
Isralowitz, Richard, ed. Drug problems: cross-cultural policy and program development
(Westport: Auburn House, 2002).
Khoo, Lisa “Up in Smoke? Canada’s marijuana law and the debate over
decriminalization” CBC News (November 25, 2004)
<http://www.cbc.ca/news/background/marijuana/marijuana_legalize.html>
(Accessed November 1, 2010).
32
Kommers, Donald P. The Constitutional Jurisprudence of the Federal Republic of
Germany, Second Edition (London: Duke University Press, 1997).
Nestler, Cornelius “Constitutional Principles, Criminal Law Principles and German Drug
Law” (1998) 1 Buff. Crim. L. Rev. 661.
Rubin, Vera ed. Cannabis and Culture (The Hague: Adine, 1976).
33