Lecture 9 – March 23, 2011
A. R v. Malmo-Levine; R vs. Caine
1. Background and case facts
2. Majority: Should the harm principle be recognized as a P.F.J? No.
3. Dissent: Should the principle “The law cannot imprison someone who has done nothing
wrong” be a PFJ? Yes.
B. Equality – what is it, and why value it?
1. Why do we care about it?
2. Charles Taylor
- Politics of equal dignity
- Politics of difference
Issue: whether parliament can legitimately criminalize the mere possession of marijuana and attach a
penalty of imprisonment (strictly about drug trafficking)
-It violates Canadian charter rights under section 7
-Levine freedom fighter of marijuana possession and Caine both convicted for marijuana
-It says possible imprisonment Caine argued that it violated his section 7 rights and Levine
argued that the criminalization of something that is central to his chosen lifestyle was violated
-Section 7: idea is that you have a right not to be deprived of your liberty and security of a
person, but if that deprivation is in accordance with the fundamental justice – it is acceptable.
Limitation is built in – whatever the court deems to be fundamental justice
-Section 1 means is that when we talk about rights in Section 7, they are never absolute
-The fact that section 7 has such internal limits provided by the principles of fundamental justice
-Caines’ argument: harm principle is a principle of fundamental justice under section 7, if that is
true, since personal use of marijuana does not harm others – attaching a penalty of
imprisonment makes it a violation of my fundamental justice.
-Malmo-Levine’s argument: concentration on personal lifestyle choice – the issue is
imprisonment we are thinking of negative freedom – he was trying to use Mill’s appeals to
positive liberty. His smoking of marijuana was not just a recreational thing to do, it was his way
of living an autonomous life and central to it.
-The court does not rule out the idea that section 7 protects positive liberty – pg 328. There may
be fundamental choices that people choose but not this one.
-Levine is trying to argue that this is central to his ‘alternative’ life style – his part of being a
marijuana freedom fighter. The point is not whether you think that is ridiculous, that his idea of
what makes a good life.
2. Majority: should the harm principle be recognized as a P.F.J? No
Majority of the court first appealed to criteria for recognizing the principle of fundamental
justice is supposed to be
They address this by appealing to other cases such as the Motor Vehicle Case p 331
Justice Sapinka – a mere common law does not constitute for fundamental justice, principles for
which they is some consensus that they are vital for our societal fundamental justice – will be
One, we need some kind of consensus on something if it is to be counted as a P.F.J – generally
accepted in the legal system or reasonable people in Canadian society
Two, it has to be capable of being identified and capable of being applied in a concise way
Majority says the neither of the criteria are satisfied by the harm principle
No consensus that the harm principle is part of our society the courts play is ambiguous
At some points, the majority looks like it is not positivist in nature but more like a Dworkinian
judge that help us see it in the best light the question is not so much that is there factual
consensus but rather, should REASONABLE people think that the harm principle be part of