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Group F: R v Malmo Levine, 2003 SCC 74 

Case Overviews

Marijuana activist David Malmo-Levine at a protest outside the Vancouver Art Gallery. David faces prison time for his role in the Vancouver Herb School, where he was arrested and charged with possession of illegal herbs for the purposes of trafficking. (Photo by Jeremiah Vandermeer)

This article will be discussing various applications of legal theories as they apply to the cases of R. v. Malmo Levine and R. v. Caine (2003 SCC 74).

Malmo-Levine: Facts

Malmo-Levine was a marijuana activist who ran a harm reduction club where he educated the club members on how to reduce the harm associated with marijuana. At those clubs, marijuana would be present, and he would distribute the narcotic to the attending members. Malmo-Levine was eventually arrested after an investigation into his club.

Relevant law and analysis

Malmo-Levine challenged the validity of the Narcotic Control Act (NCA) claiming that it was a violation of several Charter provisions. First, he challenged the Act under section 15 of the Charter. He argued that smoking marijuana was a lifestyle choice that should be protected on the grounds of discrimination. The majority quickly dimissed this argument and stated that a marijuana lifestyle was not a  “personal characteristic” like the other section 15 enumerated and analogous grounds (set out in Andrews v Law Society of BC).

Malmo-Levine also challenged various provisions of the NCA on section 7 grounds, saying that the harm principle (which we will discuss at length) was a principle of fundamental justice (POFJ). Section 7 of the Charter was triggered because of an infringement on liberty (imprisonment as an available sentence). As a result, the court had to analyse whether it was in accordance with the POFJ. To do this they had to determine what the POFJ were and whether the harm principle was a POFJ. They found that the harm principle was not a POFJ; however they spent a great deal time on the analysis to demonstrate that marijuana uses resulted in harm to others, especially vulnerable groups such as pregnant women and schizophrenics.

Caine: Facts

In the case of R v Caine, the accused was arrested while in a van that was stopped by police officers who subsequently found half a gram of marijuana in his possession. The charge against Caine was strictly for possession. His counsel argued that the availability of a prison sentence for marijuana possession was a violation of both sections 7 and 12 of the Charter.

Relevant law and analysis

The court discussed that the standard that a sentence must reach before violating section 7 was gross disproportionality. Eventually, the court decided that the mere availability of a prison sentence did not render it grossly disproportionate because the judges in possession cases could use discretion and only impose a sentence for the most serious of cases.

In the discussion of the harm principle, both the majority and dissent agreed that it was not a POFJ, but a significant amount of the judgment did address the harm that was caused by marijuana to vulnerable groups (particularly pregnant women, schizosphrenics etc). This case demonstrates that the courts will spend a considerable amount of time to demonstrate harm in cases that relate to criminal charges, even though the final conclusion was that the harm principle is not a POFJ. The harm that is found in this case appears to be an indirect form of harm, and we’ll talk later to this fact in our application.

Holdings from the cases

The majority disagreed with Malmo-Levine that a prohibition of marijuana triggered section 7 but found in Caine that merely having incarceration as a sentencing option triggered the liberty interest in section 7

Natural law

Be sober, be vigilant; because your adversary the devil walks about like a roaring lion, seeking whom he may devour (I Peter 5:8).

Natural law history

According to Thomas Aquinas, a proponent of natural law theory, morality and law are not separate concepts. Natural law is believed to be derived from a higher, non-human source (e.g. God or the natural order); knowledge of which is implanted within us and is discoverable only through the use of reason. Law exists so that it can create order in the society necessary for enabling people to satisfy their physical and social needs. Since natural law is morally good and human law is derived from natural law, law must aim at morally just ends.

Aquinas states that for a human law to be valid four conditions must be satisfied: a) law must be directed toward the common good and be aimed at morally just aims; b) law must follow practical reason; c) law must be made by a valid law maker (a person or persons who are in charge of taking care of the community); d) law must be promulgated.


Application of natural law theory to Malmo-Levine case

1. Must be directed toward the common good.

Thomas Aquinas may argue that the principle of not harming one’s self and others is an example of a universal and unchanging principle outside of human creation. This higher law exhibits itself in different ways depending on the place and time in which it is situated. In Canada, this principle is manifested as a prohibition on marijuana. Aquinas may consider, as did the majority judges in the case, that the human-made law is justified as the drug is able to alter the mental function of individuals and thus “raises issues of public health and safety for both users and for those in broader society” (R v Malmo-Levine). Additionally, the impairment and the alteration of mental functioning that is caused by marijuana use may inhibit individuals from exercising their spiritual and intellectual capacities to the fullest extent possible. This is especially true of those who are chronic users. Lastly, many potential negative effects can result to the social order if marijuana were legalized. Specifically, legalization would result in a reduction of price and an increase of social acceptance resulting in more individuals using the substance. This would only increase current findings of health risks and harm to third parties. It may also lead individuals to further vices, including experimenting with harder drugs. On the other hand, Aquinas may agree with the dissenting judge that “prohibition of simple possession attempts to prevent low quantum of harm to society at a very high cost,” (R v Malmo-Levine) particularly as it pertains to the maintenance of the social order. By keeping marijuana legalized we may inadvertently allow dangerous and violent drug cartel organizations to gain a monopoly of sale over the product and earn power and large profits as a result. Furthermore, if legalization of marijuana was permitted, law enforcement, judicial and correctional personnel may be better able to their attention towards combating “true” high crime issues and other social dysfunctions.

2. Must follow practical reason.

According to Aquinas, practical reason must set out the reasonable steps necessary to lead us to the achievement of the common good. Although most people strive to live their lives in a way that is compatible with the common good, Aquinas considers the threat of coercion (the availability of imprisonment in this case) to be an effective deterrent, inducing individuals to overcome their inclination to sin and develop the virtue of obedience. Nevertheless, he may question the law’s validity since many individuals in society are in active disobedience of it (which is in of itself a source of disorder), and courts rarely are willing to impose imprisonment, the fullest extent of punishment, except in situations where aggravating circumstances are present (R. v Malmo-Levine). This would suggest that the law is not functioning as a genuine law and does not need to be followed (dull knife argument). While this may be a valid consideration, a limitation exists with consideration of the third requirement.

3. Made by a valid lawmaker.

Due to the natural ordering relationship of the ruler(s) and the ruled there are limitations to disobedience of laws because the lawmaker, who is endowed with divine authorization knows what is in the best interests of the society. Therefore, Aquinas may agree with the majority that since cannabis legalization falls within the legislative competence of Parliament, the natural ruler, it is “open to parliament to decriminalize or otherwise modify any aspects of the law it no longer considers being good public policy”(R v. Malmo Levine). He may agree that, Parliament’s role is not to appease public clamor, rather to create a set of laws that will untimely lead Canadian society to the common good. As a result of this third requirement, arguments that may arise due to the “ineffectiveness” of the prohibition of marijuana would likely not excuse refusal to obey the sovereign’s command.

4. Must be promulgated.

The last condition of a valid law is that it requires promulgation, hence that the law be codified and known to citizenry. In Canada, the availability of imprisonment with respect to the charge of possession of marijuana is codified in the Narcotic Control Act and the prohibition of marijuana is known to all individuals of our society, thus this requirement would not be a contentious issue.

To conclude it is likely that Thomas Aquinas would be in favour of this judgment.

Legal positivism


In stark contrast to the natural law theorists, legal positivists separate law and morality. Simply because a rule is immoral does not exempt it from being a law and just because a rule is moral does not make it a law. Legal positivists think of law as a social construct created by humans and not sourced from a higher being outside of human society, as Thomas Aquinas asserts. Unlike natural law theory, legal positivism does not consider law normatively; instead law is distinguished from what it actually is and what it should be. Within the legal positivist field there are some theoretical variations as evidenced by John Austin, Jeremy Bentham, Joseph Raz, and H.L.A. Hart.

John Austin: Theory

According to John Austin, in order for a law to be valid it must be in the form of a command handed down by a superior intellectual being (whom the majority is in the habit of obeying) to inferior subordinates and backed by the threat of punishment.

John Austin: Application

Malmo-Levine challenged the validity of the criminalization of marijuana by the NCA. This legislation was a directive to be obeyed, made by Parliament, the political superior whom Canadians are in the habit of obeying. It was made to all Canadian residents who are subordinate to Parliament in legislative power. The prohibition against acts associated with marijuana was accompanied by the threat of punishment under section 3(2) ranging from fines to incarceration (para.12, Malmo-Levine). The NCA would be valid law under John Austin’s criteria.

Jeremy Bentham: Theory

Like John Austin, Jeremy Bentham argued for a separation of law and morality and thought of law as a command. According to Bentham, the validity of a law depends on whether or not it maximises utility. Essentially, one asks whether a law brings about the greatest amount of utility or happiness for the greatest amount of people. This approach to determining the validity of the law can be contrasted to Aquinas’ and Austin’ approaches, which were not dependent on the interests of the majority of populace, just the will of the valid ruler.

Jeremy Bentham: Application

Malmo-Levine attempted to put forward a utilitarian argument that Parliament should not criminalise conduct that brings pleasure to a majority of people on the basis of the vulnerability of a small group of people (para.101, Malmo-Levine). The court refused to consider this line of reasoning under a violation of section 7 analysis and deferred it to the justification analysis under section 1 of the Charter (p. 31, Malmo-Levine. However, since the law was not found to violate a Charter right, the courts did not continue to the section 1 analysis.

If one were to consider whether the law is valid based upon its utility maximisation one can put forward the argument to support this law saying that although the individual harm may be negligible, if marijuana is legalized, society’s collective utility may decrease as increased use by the population could result in more harm to the vulnerable groups and third parties (such as work accidents and accidents caused by driving while under influence of marijuana). Moreover, legalization of marijuana may adversely affect the healthcare and welfare systems by increasing costs (para. 49, Malmo-Levine).

On the other hand it can be argued that this law creates problems that decrease utility maximisation. Disagreement over the law breeds disobedience. Supporters may distrust health and education providers who are believed to have disseminated false information on marijuana use, children and elders are not able to openly talk about marijuana with each other, it forces users to place themselves at risk when they interact with chronic drug users and criminals. In addition, government is not able to regulate the quality of marijuana, it creates “a lawless sub-culture”, creates policing costs associated with enforcement of this law, and prevents people from conducting “meaningful research into the properties, effects and dangers of the drug, because possession of the drug is unlawful” (para. 28, quoted at para. 180, Malmo-Levine).

Joseph Raz: Theory

Joseph Raz has a “service conception” of law, where the authority claimed by the law is justified only when it achieves a service for subordinates enabling them to behave better, where this behaviour would not be possible without this law (Professor Hall). This theory is similar to Bentham’s theory because both consider effects on the subjects. It is also similar to Aquinas’ theory that seeks to enable people to behave better so as to achieve the common good. However, unlike Aquina’s and Austin’s theory, the validity of law is not dependent on the lawmaker who issued it.

Joseph Raz: Application

If this law were to be abolished and marijuana were to be legalized, there is a high probability that marijuana usage would increase along with “the absolute number of chronic users” (para. 48, Malmo-Levine). One can, therefore, argue that this law does enable people to behave better and choose not use drugs.

Conversely, if there is widespread use of marijuana and disobedience is increasingly common (para. 22, Malmo-Levine), one could assert that this law does not actually help people to act better. Instead it “encourages disrespect for the law” (para. 22, Malmo-Levine).

However, this law would be accepted as valid law by Raz because on a balance it does provide a service for the population by giving people a reason and incentive to refrain from using marijuana.

HLA Hart: Theory

Law as a union of primary and secondary rules

According to HLA Hart, law is a “system of social rules” based on two types of rules: primary and secondary rules. Primary rules, also called “rules of obligations,” are those laws that govern our conduct by prohibiting actions and omissions or bestowing rights. Secondary rules supplement primary rules. There are three types of secondary rules:

  1. rules of change,
  2. rules of adjudication, and
  3. rules recognition.

Rules of change enable people to modify their private rights and obligations, and describe how new primary rules can be made and modified. According to Hart’s pedigree test, in order for a law to be valid it has to have been passed according to the rules of the legal system. The second type of secondary rule, rule of adjudication, governs the judiciary, authorizing and setting out procedures for them to determine whether a law has been broken. Thirdly, the rule of recognition serves as standard for officials working in the legal system to determine whether a law is valid. It allows people to conclusively identify what the primary rules of obligation are.

The penumbra

Hart posits that laws are usually articulated in general terms and so while containing a ‘core’ area of “settled meanings”, some of the terms may be vague and unclear, thereby, falling in the unsettled area of meaning called the penumbra. The role of the judiciary then is to determine the meaning of the terms falling in the penumbra. Cases that involve gaps in law that judges have to fill in are called hard cases and in such cases judges take on the role of legislators. Additionally, judges have to evaluate the validity of a law by comparing it against other standards.

The separation thesis

Similar to Austin and Bentham, Hart separates law and morality. For Hart, law and morality are separate “rule-governed practices” but he concedes that there may be overlap between the two systems. Hart argues that having law and morality separated allows one to use moral standards to control and gauge conduct. Unlike Austin and similar to Aquinas, Hart argues that we do not have an obligation to follow immoral laws; in the face of conflicting legal and moral obligations, a person may choose to not follow the law and may even feel morally obligated to disobey the law (p. 185, Dimock). Additionally, Hart argues that the social acceptance of a law is a requirement as to its validity (p. 192, Dimock).

Primary and secondary rules

The NCA, criminalising marijuana, is a primary rule of obligation. It is supplemented by secondary rules of change, recognition and adjudication.

Rules of adjudication

The Canadian judiciary is responsible for determining whether a law has been broken and for handing down punishment. In the Malmo-Levine case, although it was determined at the trial level that the accused had broken the law, the judges had to proceed to examine whether the law itself was valid in order to validate a compliance with this law (Malmo-Levine).

Rules of change and the pedigree test

Parliamentary procedures and the Canadian Constitution, including the Charter, are secondary rules of change that lay out the rules by which legislation can be created and modified. Malmo-Levine challenged the NCA on federalism and Charter grounds. For a law to be valid in Canada, it has to be made by the correct legislative branch of government and it has to abide by the Charter. The NCA must have been passed by the federal legislative branch in accordance with their Parliamentary procedures. The court decided that the law was valid on federalism grounds because it satisfied the elements of criminal law, which is a subject matter that can be legislated by the federal government (para.72-79, Malmo-Levine).

For a law to be valid under the Charter, it must not violate any of the Charter rights, and in the event that it does, the infringement must be justified under section 1 or the Charter. Malmo-Levine argued that the criminalization of marijuana by the NCA infringed his section 7 Charter right (para 12 and 81, Malmo-Levine). The court found there was no violation of his Charter rights. The law had been created correctly according to the legal requirements.

The rule of recognition

Police officers have a wide range of discretion when deciding whether or not to arrest someone for simple possession. They may arrest someone for simple possession and at other times let the person off with a mere warning. Additionally, the police officers don’t arrest anyone for marijuana possession at the annual 420 event where a large group of people get together in Vancouver and smoke marijuana. This is a demonstration of a deliberate disobedience to the law by the people. It also demonstrates inconsistent enforcement of the law and that the police officers clearly do not think that prevention of possession and consumption of marijuana is an important enforcement objective. The marijuana laws are not consistently applied, nor are they consistently followed. Moreover, the legislators and judges themselves often have differing views about whether marijuana should be legalized. This demonstrates the lack of consensus and acceptance at all levels of the legal, political, and social community and leads one to questions the validity of the prohibition against marijuana possession and consumption.

The penumbra

The harm principle, as articulated by J.S. Mill, states that “the only reason for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others” (quoted at para. 106, Malmo-Levine). Malmo-Levine asserted that marijuana use did not harm others (para.102, Malmo-Levine). He argued that since the NCA was not in accordance with the harm principle, which according to him was a principle of fundamental justice, it violated his Charter right (para 102, Malmo-Levine). Although some principles such as the rule of law clearly fell within the ‘core of settled meanings’, the harm principle fell in the penumbra because it was not clear whether it was a principle of fundamental justice. This question before the court represented a hard case. The court filled in the gaps and moved the law forward by deciding that the harm principle was not a principle of fundamental justice (para. 110-129, Malmo-Levine).

The separation thesis

If we separate law from morality, we understand that the NCA is a means of social control by the Canadian Parliament to prevent or decrease the consumption and trafficking of marijuana. Smoking marijuana is not a moral obligation. In fact, in some religions it would be forbidden. Using this moral standard we can infer that the NCA is not an immoral law and in this situation since there is no conflict between legal and moral obligations, the people are not forced to choose which obligation to carry out.


As a primary rule of obligation the NCA was created in accordance with the relevant legal rules of the system and has the necessary secondary rules in place that will allow it to be modified if necessary. However, the NCA would dail the rule of reconigition requirement and therefore, may not be regarded as valid law.

Ronald Dworkin: Law as a system of rights


Dworkin spends considerable time in his thesis rejecting the positivist notion of legal positivism insofar as it is presented by Hart. According to Hart, law is a set of rules that are all governed by some sort of master rule that is not connected to the content. In addition, if there is no specific legal rule set out to cover a particular situation, Hart believed that a judge’s role in the legal system was to exercise his or her discretion to determine the appropriate outcome. In applying this judicial discretion, Hart believes that judges are in fact creating the law for that particular situation, and that until that judicial decision had been made, neither party in the dispute had any legal right to succeed in the case. For Dworkin, these propositions are inconsistent with how the law works in society. Dworkin asserts that all legal disputes have a correct outcome, and that there is something more fundamental than legal rules that allows judges to decide, and lawyers to predict, the correct outcome. Underlying all legal rules, according to Dworkin, are legal principles. For Dworkin, these legal principles exist in parallell with rules, and are used by judges to make incremental changes to legal rules in order to maintain rules that are consistent with society’s view of justice.

Dworkin states that there are three devices at play in law, and that they all work together to determine the appropriate outcome in a particular case: principles, policies and rules. Policies are social goals which are pursued, normally by the elected officials of the society. Dworkin believes that policy decisions should be left to the legislature, but recognizes that new policy decisions by the legislature may affect underlying legal principles, and in turn the application or evolution of legal rules.

For Dworkin, since there is always a correct answer to a legal question, principles must be used by judges to help judges answer “hard cases” (those cases which Hart would describe as being in the penumbra). For Dworkin, legal principles are not “all or nothing” factual requirements like rules. They are the principles that undeline our judicial system, and in Canada they may be things such as the rule of law, the right to be presumed innocent, and judicial sentencing. In a post-Charter era, which we live in now, it could be argued that the principles underlined in the Charter of Rights and Freedoms are legal principles which are used by judges to appropriately use the all-or-nothing rules enumerated by both common law and statute.


Sentencing of Caine
In R v. Caine, one of the primary questions for the court was whether the availability of a prison sentence for marijuana possession was consistent with the principle enumerated in S12 of the Charter - protection against “cruel and unusual treatment or punishment”. Caine contends that by allowing judges the discretion to sentence people to imprisonment for the possession of the narcotic, it is a violation of section 12 and of the sentencing principles that have been outlined in our common law. One of Canada’s sentencing principles is to ensure that, where appropriate, incarceration is only used when necessary to protect the public from the offender. Caine contends that the availability of incarceration, regardless of whether or not it is used, is a violation of this principle and that it should in turn render the rule (section 3(1) of the NCA) invalid. For Dworkin, this would be considered a hard case where the judges would need to balance the principles against the legal rule. This appears to be exactly what the judges in this case did. The standard for the principle in section 12 is articulated as being that there will be an infringement on this right if there is “gross disproportionality” between the crime and teh sentence. This means that so long as the rule does not set out a sentence which is grossly disproportionate with the offence, then it is not going to be in conflict with the underlying principle. In this case, the judges are balancing two different principles (sentencing principles and the Charter principles in section 12) and determining if the rule set out in the NCA is consistent with those principles. 

In the future, we may see policy considerations intersecting with the principles and rules that the judges considered in this case. Laws concerning drug control and marijuana is something that is heavily influenced by policy. In Canadian history, we have seen various changes to policies with regards to certain substances such as alcohol, and those policy considerations have an effect on both the legal rules and the principles which govern them. There is already notable political support for marijuana use being legalized, evidenced in part by the Green Party, and in time, we may see those policy considerations having an effect on the development of the rules and principles considered in this case.

The morality of the Law

Lon L. Fuller focuses his argument on attacking HLA Hart’s separation thesis on three main points:

  1. Hart believed that in order for law to be good law there must be a fundamental acceptance that the people and process with the authority to make law are competent. When lawmakers recognize that they are obligated to enforce specific laws this, forces everyone else to obey those laws.
    Fuller, on the other hand, argued that this social acceptance is based on the belief that the people and process with the authority to make laws are morally good; they are not only trying to achieve a just order, but a morally good order to govern society. Fuller argues that lawmakers' recognition to uphold and enforce the law is grounded in morality, which comes from “a moral standard independent of and prior to the law.”
  2. Fuller believes there is an inner morality to law that cannot be separated. The purpose of law is to produce order, and in order to do that there must be requirements (morals) that legislators must conform to in order to make good law. Fuller argues that law is more than a label due to its intrinsic morality, which creates coherent, rational and consistent legal systems.
  3. Finally, Fuller refutes one of Hart’s main arguments for supporting positivism by claiming that his separation thesis fails to explain why there is a general obligation to obey the law. Fuller argues that Hart cannot explain the reasoning behind moral conflicts faced by people in situations such as Nazi Germany. Hart’s answer to this is that some laws are so immoral that they breach an arbitrary threshold and can at that point be ignored.    

Positivists are unable to explain the pull one feels debating whether to follow the law or their morals. They believe that the law is the law and this kind of attitude allows serious immoral laws to exist with no explanation as to why judges or the people as a collective should fight against them. Fuller argues that because the law is inherently moral there is an explanation for the general obligation to obey the law. 

Fuller also criticizes Hart’s idea of the core and penumbra because he believes that there is no core of settled meaning when it comes to the law. For that reason, he contends that there are no penumbras. He sees judges' role as interpreters of the law and suggests that they have a duty to make sure that they are operating to achieve the moral good that the law was intended to create. Fuller recognizes law as a collective effort working towards the goal of moral law and judges aid this process by interpreting laws as what they ought to be. “When men are compelled to explain and justify their decisions, the effect will be to pull those decisions towards goodness.”

Fuller also argued that countries (Nazi Germany) that embraced the positivists theory facilitated a smoother transition to dictatorships due the fact that they had embraced the idea that immoral laws are still laws and that one must still obey them.   

Fuller believed that a legal system that embraced the principles of inner morality would be successful but also set out eight routes of failure for any legal systems that would cause incoherence:

  1. The lack of rule of law, which leads to ad-hoc (on the spot arbitrary decision) and inconsistent adjudication (different rulings for same cases);
  2. Failure to publicize or make known the rules of law;   
  3. Unclear or obscure legislation that is impossible to understand;
  4. Retroactive (law that change consequences of past event) legislation;
  5. Contradictions in the law;
  6. Demands that are beyond the power of the subjects and the ruled;
  7. Unstable legislation (ex. daily revisions of laws);
  8. Divergence between adjudication/administration and legislation.


In this case, it could be argued that 3 of the 8 principles of inner morality have been breached and this risks the failure of our legal system.

1. Ad-hoc (arbitrary) and inconsistent adjudication

The court is making an arbitrary decision to make an example of Malmo as a marihuana freedom activist by imposing severe penalties on him for a crime where there is notoriously inconsistent implementation of sentencing principles.

This appears very arbitrary and inconsistent with societies acceptance of marihuana use and our legal system’s continuous softening on marijuana charges and their adjudication. In the case of Caine, it is unfair to try to make an example out of an arbitrary person by  imposing larger penalties in an effort to deter other marijuana users.

7. Unstable legislation

This legislation has been challenged continuously since its creation. It could be argued that marijuana is not a narcotic and it was added to the legislation’s schedule arbitrarily in order to make it easier for parliament to not have to distinguish it from harder drugs. For this reason, a wide range of penalties are provided to judges as options to impose on drug charges when perhaps marihuana should not be in a drug category at all.

Divergence between adjudication, administration and legislation

Society, the courts and the police officers would rather use their resources to stop more harmful crimes, which is why there is a very large divergence from the legislation and the adjudication of marihuana charges. For example, every year in downtown Vancouver on April 20th (colloquially known as 420) the police surround the art gallery and allow hundreds of marihuana enthusiasts to break the law and suffer no penalties.

J.S. Mills, on liberty – utilitarian 


J. S. Mill was a champion of liberty and working from a presumption of liberty he would state that the only time an individual's liberty can be interfered with is to prevent harm to others. This is the harm principle. It is appropriate to change people's mind, educate, and persuade them about their "vice" or inability to regulate themselves, but unless others are harmed, coercive force should not be applied. The harm principle does not apply to those who are of “nonage”, which includes children and “backward states of society” – non-Caucasian racial groups. It is only when people are in possession of their mature faculties, that is those who are capable of learning from discussion, that liberty holds; otherwise people must be taken care of. If an individual, however, breaches a public duty than his freedom should suffer (examples include hurting third parties, hurting those that depend on them, diminishing community resources est.)


Mill would state that Malmo-Levine and Caine have a right to the lifestyle choice of using marijuana. For Mill, the NCA,is problematic because it prohibits marijuana use and also creates a potential for imprisonment, which is an infringement on the liberty of an individual. 

Contrary to Mill's theory, the majority in this case do not find that proof of harm is required to inhibit an individual's liberty. They assert “although the harm principle is a legal principle, it is not vital or fundamental to the criminal justice. While the presence of harm does justify legislative action, the absence proof of harm does not create an unqualified s. 7 barrier to legislative action."
The dissent judge’s reasoning is more in line with that of Mill’s. He states, that “the fact that some vulnerable groups may harm themselves from use of marijuana is not a good reason to send other members of the population to jail... they cannot be threatened with imprisonment from conduct that is harmless to themselves and others.”

The prohibition on marijuana was also justified by the majority on the basis that harm would be caused to third parties as a result of drug affected individuals driving, flying, and engaging in work with complex machinery. Although Mill may agree that these breaches of public duty are sufficient to warrant state intervention, however he may favor the position of the dissenting judge. He notes that yes, individual’s should be punished if they breach a public duty and hurt third parties, but, contends that we already have laws that respond to harms caused to third parties.” Dangerous driving, for example, is dealt with under the Criminal Code because of its risks of“harm to third parties as well as society as a whole.” 

Mill is strongly against interference because he feels that when society tries to intervene, they usually do so wrongly. The dissenting judge posits that the majority is trying to justify the use of imprisonment by saying that the vulnerable groups are not at risk of receiving a sentence because it is given only in cases where there are “aggravating circumstances.” He finds this inappropriate because imprisonment is not being given to people who are not part of the group of users who are harming themselves, nor are they imposing a threat to others. Mill would not agree with the NCA’s criminalization of marijuana but would prefer legislation against the actual harm to others instead. For example, he may be more in favour of having a law that prohibits driving while under the influence of marijuana than the use of marijuana. 

Mill would argue that there needs to be serious harm to others before a restriction of liberty can be justified and the majority is really stretching the non-serious effects of marijuana use to show that there is harm. That said, Mill may be in favour of having marijuana laws that apply to minors and non-Caucasians. He would be agreeable to having laws similar to tobacco and alcohol that would prohibit minors from using marijuana. He would add non-Caucasians to the prohibited groups list.


Application to R v Malmo- Levine (trafficking); R v Caine (personal use of marijuana):

Gerald Dworkin argued against Mills strict prohibition of paternalism. He believed that states are able to justifiably interfere with individuals’ liberty to make their own decisions if the consequences of those individual’s decisions are “far-reaching, potentially dangerous and irreversible.” These paternalistic laws save people from themselves such as seatbelt laws. In Canada, “There is no consensus that this sort of legislation offends our societal notions of justice.”

In Malmo-Levine and Caine, they both challenged the constitutionality of the NCA. The defendants believed that their rights were being infringed due to its criminalization of marijuana. They believed that their actions were not harmful to anyone but themselves and part of embracing a lifestyle they have the right to choose.

Dworkin stressed that paternalism was especially applicable in cases where the consequences of these potential actions would most likely impair people’s ability to make rational decisions. The illegalization of mind alternating substances such as marijuana seems to be supported by this opinion. For that reason, we believe that Dworkin would have agreed with the judge’s final decision. He would have argued that the government has the right to impose penalties with a range including imprisonment in order to deter marijuana users and sellers. In making their decision, the court acknowledged that the Parliaments has the broad legislative power to legislate on criminal law (which includes narcotics).

This power also includes the right to make laws to protect vulnerable groups (such as the recognized groups: pregnant women, schizophrenics, adolescents with a history of poor school performance, people who suffer from cardiovascular diseases, respiratory diseases, drug users and society). This power is very paternalistic. However, it could be argued that there is a disconnect between the paternalistic application of the law and its effectiveness in protecting these vulnerable groups. Particularly in Caine, where it was asserted by the appellant that the sentencing provisions were grossly disproportionate to the crime; there may be an argument that the availability of a jail sentence is not congruent with the paternalistic goal of protecting the vulnerable groups. For example, there was not any evidence advanced in the case, which spoke specifically to how an average person smoking marijuana affected people in these vulnerable groups. It could be inferred, then, that the availability of a jail sentence could also be applied to a member of a vulnerable group (such as a pregnant woman or a schizophrenic). From a paternalistic stand-point, it remains unclear how this type of sentence would actually protect the vulnerable group in a justified manner so as to not infringe section 7 and 12 of the Charter.

The court also acknowledges that it is open to the Parliament to decriminalize or avoid any marihuana laws that it no longer considers to be good public policy. The judges in Caine stress the potential danger of driving, flying and doing other complex activities while high as a justification for the interference by the government on individual’s liberty. However, extremely similar situations were faced and solved with both alcohol and tobacco regulations.

A final point with regards to paternalism lies in the government's decision to remove suicide from the criminal code, as they felt that it was more appropriate that suicidal members of society should receive counseling and treatment rather than incarceration and punishment. That was clearly a paternalistic endeavor by the legislature, and another argument could be advanced that a similar approach could and should be made with respect to marijuana possession and usage, particularly if the user or possessor was a member of a vulnerable group.

Law and economics


The law and economics theory is different from naturalism in that it is not concerned with the moral aspects related to the law. At the core of this theory is the achievement of efficiency in society.  When analyzing a law under this theory, the primary goal is to achieve wealth maximization. In this context, we are not merely concerned with financial wealth; rather, the discussion considers all measurable satisfactions to members of society. 

Two important concepts in a law and economics theory is pareto superiority and pareto optimal states of affairs. In a pareto superiority state of affairs, one situation (S2) is considered better than another (S1) since at least one person is better-off in S2 than in S1. Alternatively, one person may prefer S2, and nobody prefers S1. Eventually a pareto optimal state will be achieved where there is no state of affairs which is superior and no further changes would maximize wealth for anybody without negatively affecting others. Legal rules in a law and economics theory will typically strive to optimize the state of affairs for society with respect to overall satisfaction. 


In Caine’s case, the law could be questioned from the perspective of economic theory. Since Caine was being charged with simple possession, he could argue that the law prohibiting possession of marijuana is bad law because it is not pareto-efficient. In fact, from an economic perspective it could be argued that regulating marijuana sales, possession, and use would lead to greater measurable satisfaction for society. From a financial stand-point the government could experience significant tax savings. Dr Jeffrey Miron from Harvard University has estimated that regulating marijuana like alcohol in the US could lead to combined savings and tax revenues between ten and fourteen billion dollars. The changes that the government made to alcohol regulation since prohibition in the1920s demonstrates the desire to achieve pareto-optimal states of affairs. Although alcohol may be dangerous for some groups (as marijuana was indicated to be in Malmo-Levine), many would argue that the regulations have reached a state where no further changes would maximize wealth without any negative affects for any other members of society. An economics theorist would likely believe that the criminalization of possession is bad law that needs changes similar to those which were enacted with respect to alcohol in order to achieve pareto-efficiency.

The case presented by Malmo-Levine is more difficult to reconcile positively with an economics theory. The court rejected Malmo-Levine’s claim that his harm reduction clubs were a lifestyle that should be protected under section 15 of the Charter. In considering the economic benefit of allowing such a right, we need to consider the aforementioned regulation suggestion with respect to Caine’s possession case. Inevitably, allowing individuals to traffic marijuana under the guise of a lifestyle choice would affect the effectiveness of a government regulation scheme. Additionally, there are recognized harms associated with a state of affairs where drugs are controlled by criminals in society. It is likely that an economic theorist would prefer a government regulation approach to marijuana sales and education, while maintining the criminalization of private trafficking. The ultimate affect of such a change to the law would likely be that a club like Malmo-Levine’s would no longer be necessary, as he would have the ability to educate through his harm reduction clubs without the need to distribute a banned substance.

Critical legal studies and critical race theories

The application of critical race theory to the cases of Malmo-Levine and Caine has little relevance unless it could be argueed that a particular race is being discriminated against by allowing imprisonment as a sentencing option for marijuana charges. However, this was not discussed in either case. They focused more on the vulnerable groups that could be affected by marijuana such as pregnant women and schizophrenics, which would include all races. 

In applying critical legal studies to Malmo-Levine and Caine, we must look to the impact of the traditionally accepted domination and influence by certain classes in our legal institutions.  Old Caucasian men have historically been in control of the government and the courts in Canada and as a result of this they have had a severe impact on shaping the law according to their morals and beliefs. For this reason, they have been the ones with the discretionary powers to decide whether or not imprisonment for possession or trafficking marijuana is too severe.  This perpetuates similar intepretations and decisions on behalf of the legislature and the judiciary.They were also the ones who chose to arbitrarily include marijuana with the much more severe drugs when drafti.  It does not appear that our government is representing the general publics embracement of marijuana use today due to political and personal influences. Although it is within their power to maintain marijuana as an illegal drug it seems clear that society would be in favor of eliminating imprisonment as a sentencing option due to its severity.

Critical legal studies is a collection of many ideas that several theorists have explored. One of the main uniting ideas they discuss is that statutes and cases are not absolutely determinative to the decisions that courts make on the legal disputes brought before them. This is very troublesome for a lot of theorists. For that reason they argue that judges have a large amount of discretionary power to come to decisions based on other motivating factors such as politics and their personal beliefs.

As unelected appointed official judges are supposed to be part of the independent judiciary branch of government; however, if they have these discretionary powers they may be influenced to decide in favour of the people that gave them this position of power. The accusation of political decisions is severe and completely contradictory to the independent branches of government system Canada is suppose to be operating under.

Another common argument addressed by critical legal theorists is that this traditional dominant class in our legal institutions have used the law as a tool of oppression for the wealthy and powerful against the lesser classes. However, critical legal theorists believe that law does not have to be used as tool of oppression causing social injustice. Unfortunately the types of reforms that would be necessary in order to correct the unfair way our legal institutions operate today are severe and drastic; but without such reforms people in the lower classes will never have an influence on decisions of how and which laws should be implemented. 

Feminist theory


Although feminism consists of a diverse set of views, at its core, all feminists accept two central ideas. First, the world is structured by patriarchy which perpetuates the systemic domination of women, pervades all aspects of social life, while presenting itself as "natural". Secondly, patriarchy is bad for women, morally inexcusable, and it should be eliminated. Patriarchy is the concept of a male-dominated society centered on the father as the authority figure. Given the historic disadvantage, subordination, and silencing of women, feminists like Catherine MacKinnon, seek to represent law from women’s persective. Different branches of feminist theories posit different ideas as to how we should understand patriarchy, and what the best way is to dismantle it.

Liberal feminism

The liberal feminists posit that since men and women are equal, they should be treated equally. The primary concern of the liberal feminist's view is women's powerlessness in political and economic life. To remedy this oppression, liberals traditional focus of removing formal barriers to their participation in "social, political and economic life,” and more contemporarily, the reorganization and restructuring of family life and state institutions. 

Radical feminism

Radical feminists believe that patriarchy is so deeply rooted in society that it requires fundamental changes to its basic structures. The solution to reverse the oppression of women is to recognize and respond to institutional structures of domination, promote the reconstruction of gender, and share women’s responsibility of childbearing/rearing. Unlike liberal feminists who want to change the system, that is work within that system, radical feminists are more revolutionist – they want to overthrow the patriarchal system, to make a break with it.

Marxist and socialist feminists

Marxist and Socialist Feminists disagree that the construction of gender is the primary issue. They believe inequality for women is rooted in the oppression of women as workers. Equality for women is not possible in a capitalist system that divides and devalues women’s noneconomic domestic work in the private sphere (ibid).  A change of the capitalist economic system to socialist one is said to remedy the oppression of women.

Post-modern/ french feminists

Post-modern feminists challenge preceding feminist theorists by denying the utility of a single theory. Each woman is unique and it is futile (not to mention a typically male technique) to explain all women with one theory. They reject the idea of a single solution to women's problems. There is no "universal meta-theory- idea of essential truths about categories of human beings," rather, multiple solutions must tailor to the lives of women.

Relational/ care-focused feminists

Relational feminists explore why certain things are either relegated to masculine or feminine spheres. They embrace the differences resulting from the socialization of the two sexes. In contrast to liberal feminsts, relational feminists question the assumption that women and men are similar and should therefore, be treated similarly. They assert that women are different from men, both undergo different developments and therefore, women require special treatment not same treatment. Women theoretically have greater competence to care, and the ethics of care should be privileged over an ethics of justice (which currently holds sway). Instead of attempting to carve a space for women in a patriarchal society, the structure of society ought to be reformed to accommodate women and values customarily linked with the feminine such as interdependence and sympathy.Rather than fitting into the patriarchal system and male standards, they seek to change the institutions to incorporate the ethics and virtues of women.

Catherine MacKinnon

MacKinnon claims that the male standpoint in patriarchal societies dominates the civil society. This results in this form of social power being incorporated into the governing law. The law becomes disguised as a legitimate rather than a force used to confer benefit to those most power powerful in society. Women have been largely excluded from participating in the design of these governing institutions and laws. They have had little to no impact on constitutions, governmental policies and regulations. Moreover, MacKinnon acknowledges that although there are generally no laws that impose social inequality of over women, only “positive law” or affirmative action can correct the societal oppression women face. She suggests that to cause social change (1) women must face their situation and name their collective condition; and (2) women must recognize male power over women embodied in the form of individual rights in law.


The male point of view has dominated and shaped public discourse throughout history. As a result the norms of social power are incorporated into the governing law, resulting in women's interest's being determined and dominated by men. The NCA can be viewed in this context.  In addition to deconstructing the legitimacy of the NCA under the criminal law power, feminists may seek to analyse the discourse that is expressed in Malmo-Levine, and discern the impact of the court’s allowance of punitive measures.

In Malmo-Levine, the Supreme Court states that the protection of vulnerable groups who are at risk from marijuana use constituted a valid federal objective for exercising the power of criminal law. Feminists may see this as an example of how the legal reasoning is used to legitimate the government’s willingness to control private actions of the individual. The use of marijuana was said to harm “vulnerable groups”, identified to be young people, pregnant women and people with medical conditions. Pregnant women in addition to the other members of this group are characterised as disempowered, helpless, and passive individuals whose agency should be coercively limited by the state.

The judgement can also be critiqued for failing to consider the social and institutional underpinnings that may cause members of the identified group and others beyond that group susceptible to the use of narcotics. The feminist view may suggest that social factors including community, housing, income, and lack of treatment deserve recognition. Although the marijuana use occurs irrespective of socioeconomic class, the imposition of state power has been correlated with race, sex and class. As such, feminists would suggest that the use of imprisonment and other measures for marijuana use warrants close scrutiny.

The criminal law power may be seen as an inadequate remedy to protecting vulnerable groups from self-harm. As Arbour J. notes, " 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”. Feminist’s may agree that public policy that supports alternatives to punitive measures will do more for the groups Parliament seeks to protect.