Wednesday, 2 March 2016

Constitutional Liberty and Marijuana

     I have recently been pondering the obstacles in the path to legalization of marijuana, and in particular the fact that Canada and the United States are both signatories to international treaties such as the Single Convention on Narcotic Drugs, 1961 which oblige them to treat cannabis as proscribed substances. In other words, it's not simply a matter of repealing national laws; countries are also bound by international law, which isn't subject to a simple vote in Parliament or Congress.

     An argument occurred to me the other day, though: what if it turns out that the laws criminalizing marijuana are themselves unconstitutional? Can international treaties override national constitutions? I reflected for only a moment before realizing: no, of course they can't. The authority of Canada's government derives entirely from the Constitution Act; the government cannot be obliged by treaty to exercise a power it does not have.
     (But the Single Convention on Narcotic Drugs predates the Canadian Charter of Rights and Freedoms by 21 years; at the time of the Convention, did Parliament have the authority to enact these laws, you may ask? Well, sure. But plenty of laws which were perfectly constitutional when they were passed have been struck down or modified by the appearance of the Charter, so that's not necessarily an issue. It might be a bit more of a problem internationally, if it is felt that any time a country wants out of a treaty it can just amend its constitution, but not all countries can easily do that; both Canada and the U.S. have enormous political and procedural obstacles to any amendment.)

     So I went to look it up. Not surprisingly, the constitutionality of marijuana laws has been addressed by Canadian courts, most directly in a pair of related Supreme Court cases called R. v. Malmo-Levine; R. v. Caine. And I have to say, I'm actually rather disappointed in the court's discussion of the s.7 Charter right to liberty, because they come so very close to getting it right.
     They talk about the sort of thing that s.7 is meant to protect, and end up speaking of "the right to an irreduceable sphere of personal autonomy wherein individuals may make inherently private choices free from state interference." And I think this is a fine way to speak of liberty, except that they then go on to say "the Constitution cannot be stretched to afford protection to whatever activity an individual chooses to defined as central to his or her lifestyle".

     But I suggest that this is exactly what liberty is all about: the autonomy to define for oneself what  activities or choices matter. The precise minutiae of what one chooses are not the subject of liberty; liberty exists when one is free to choose. In concluding that "[t]here is no free-standing constitutional right to smoke pot for recreational purposes", the court echoes the American case of Bowers v. Hardwick in which Justice Byron White infamously denied "a fundamental right to engage in homosexual sodomy".
     Of course there is no such specific right. There is also no constitutional right to eat ice cream or mow your lawn or pick your nose or to wear a sombrero while taking a shower. Very, very few of the specific ways we can exercise our liberty are articulated as specific rights, and those usually show up elsewhere in the Charter or the U.S. Bill of Rights: Freedom of speech, the press, religion, assembly, etc. But this is just what liberty means: that you are the one who decides how you spend your limited time on this planet.
     I often say that the Canadian Charter of Rights and Freedoms is an improvement over the U.S. Bill of Rights in some ways, which it ought to be since we've had a couple of centuries to watch how the latter gets into trouble. In particular, I think that the unambiguous and absolutist text of the Bill of Rights creates unnecessary conflict. The 1st Amendment states that Congress shall make no law abridging freedom of speech, which sounds terrific until you realize that Congress kind of has to be able to abridge some freedom of speech. But in the U.S. they tend to get around this by pretending that some forms of speech aren't really speech. Fighting words, for example, or obscenity, are excluded by a kind of fiction that real speech says something "worthwhile". In Canada, however, we have s.1 of the Charter, which guarantees the rights of the Charter "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." So, instead of pretending that, for example, a law against uttering death threats doesn't violate "real" speech, we just admit it: Yeah, you bet we're going to violate your freedom of speech, but we have to if we're going to maintain a free and democratic society. And we have the Oakes test, a four-part inquiry that courts use to decide whether or not a violation of a Charter right is in fact justified in a free and democratic society. (This is why I was disappointed with the Court's finding that there is no charter right to recreational marijuana; such an answer might have been appropriate in the U.S., where they don't have an equivalent to our s.1, but here there's really no excuse.)
     Perhaps the court fears that if it were to recognize that every law infringes on liberty, every law anyone found inconvenient would suddenly be challenged as unconstitutional.  I do not believe this is likely, because there already exist legal principles to exclude most such litigation. Most statutes and regulations, after all, are not the wholesale imposition of limits on our freedom generally, but rather policy choices on which way our freedom (which would be unavoidably limited in any event) is to be limited. For example, in practice, even in the absence of official state regulation, a convention would almost certainly emerge as to which side of the road people would habitually drive, so as to avoid collisions; passing a law that formalizes a standard and makes it universal is not so much The Man telling us what we can and can't do, but Parliament codifying what is essentially a private tort right. Along similar lines, the Crown is obliged to make rules governing the effective stewardship of our collectively owned and managed assets; it is clear that our individual liberty to manage some of these things would be impractical to the point of impossibility if we were to try to subdivide them, so any complaints about an infringement of liberty by such laws can be dismissed by pointing to the fact that one still has a democratic (and arguably more effective) way to exercise the liberty that is putatively infringed.

     But yes, there will be some laws that actually are challenged on precisely this liberty basis, laws like the prohibition on recreational marijuana, or indeed on homosexual acts. And to that I say, that is exactly the sort of case in which infringements on liberty ought to be justified under s.1. If you pass a law that infringes someone's liberty to engage in some activity or other for no apparent reason other than that a majority of the population disapproves of it, well, then, yes you do need to provide your s.1 justification! That's kind of the whole point.
     Now, in Malmo-Levine, the court only went so far as to establish that, since some people are harmed by the use of marijuana, it is open to Parliament to decide how to deal with that harm, and prohibiting its possession for recreational use is a valid option. That's not necessarily wrong, so far as it goes. But I do rather wish that, instead of simply concluding that there is no s.7 liberty interest at stake, they recognized that yeah, the law actually does violate liberty, and proceeded to the s.1 analysis.

     I'm not going to do a full application of the Oakes test here, just a cursory run-through to give you the idea of how it works. If it were actually before a real court, they might well weight factors differently and have different evidence, so this is not an actual legal opinion on whether or not the Canadian prohibition on recreational marijuana is unconstitutional. Disclaimers apply.

     The Oakes test asks first: Is the impugned law aimed at a pressing and substantial objective? That is, if you're going to violate a Charter right, you'd better have a pretty good reason, and not just any reason will do. Remember that s.1 requires that an infringment be justified in the context of a free and democratic society, so that pressing and substantial objective should be understood in that context. In Malmo-Levine, the court assumed that the purpose of marijuana laws was to prevent harm to both users of marijuana and innocent passers-by who might be put at risk by stoners losing control. Admittedly, our perceptions of what marijuana does to people have changed a lot since Reefer Madness, but arguably protecting people from dangerous drugs would qualify as a pressing and substantial objective.
     The next step is to ask if there is a rational connection between the impugned law and the objective. It's not enough to scream "Dear God, won't someone think of the children!" if you can't establish that your law might somehow plausibly actually protect the children. On the face of it, banning a dangerous drug does seem rationally connected to the goal of protecting people from it, so the law might well pass this step, too. Except, of course, that our perceptions of the effects of marijuana have changed considerably, to the point where we might meaningfully ask "Yeah, I agree we need to protect people from dangerous drugs, but how does banning a non-dangerous drug like marijuana actually help with this?"
     The third step of the Oakes test is mimimal intrusiveness: Okay, given that we may actually need to violate a Charter right to achieve the pressing and substantial objective, does the law here violate that right more than it has to? Is there an obvious way we could reduce the infringement and still achieve the objective? In the case of marijuana, we might notice that the people at greatest risk of harm from the drug are adolescents and young adults, whose brains are still developing, and argue that we could protect such people just as effectively by putting age limits on the prohibition, rather than just banning it wholesale. We do this with alcohol already. So perhaps the current law might not actually pass the minimal intrusiveness test.
     Finally, the last step is the proportionality test: Even if we're rationally trying to address a pressing and substantial objective by the least intrusive means possible, are we still doing more harm than good? That is, is the amount of harm we're preventing by the impugned law worth the sacrifice in liberty? And here, I think, is where not just marijuana laws but the entire War on Drugs runs into profound difficulty, because the harm done there is staggering, in part because it suffers from its own addictive feedback loop.

     Still, my purpose in this post isn't really to argue that marijuana should be decriminalized. It's rather to suggest that the courts ought to take seriously this idea that s.7 protects liberty generally, and it is not for the courts to decide which exercise of personal autonomy counts as important enough to warrant protection; the mere fact that a law cuts off an option that a person would otherwise have been able to exercise should be enough to engage the Charter right to liberty. In most cases, the law will easily survive the s.1 analysis, but if it doesn't, shouldn't it actually be struck down anyway?

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