Month: December 2003

[What a dumb pun.]

So the Supreme Court spoke this morning in the case R. v. Clay and marijuana smoking is not a constitutional right – but only on a 6-3 split. Apart from the reassurance that the brewers and distillers of Canada were looking for, there is some very interesting language:

Reliance is placed by the appellant on the observations of La Forest J. that “privacy is at the heart of liberty in a modern state”… and that “the right to liberty enshrined in s. 7 of the Charter protects within its ambit the right to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference”. However this “privacy” aspect of s. 7 relates to “inherently private choices” of fundamental personal importance… What stands out from these references, we think, is that the liberty right within s. 7 is thought to touch the core of what it means to be an autonomous human being blessed with dignity and independence in “matters that can properly be characterized as fundamentally or inherently personal”

With respect, there is nothing “inherently personal” or “inherently private” about smoking marihuana for recreation. The appellant says that users almost always smoke in the privacy of their homes, but that is a function of lifestyle preference and is not “inherent” in the activity of smoking itself. Indeed, as the appellant together with Malmo-Levine and Caine set out in their Joint Statement of Legislative Facts, cannabis “is used predominantly as a social activity engaged in with friends and partners during evenings, weekends, and other leisure time” (para. 18). The trial judge was impressed by the view expressed by the defence expert, Dr. J. P. Morgan, that marihuana is largely used for occasional recreation. Reference might also be made on this point to a case under the European Convention on Human Rights decided recently by the English courts under the Human Rights Act 1998 (U.K.). In R. v. Morgan… the English Court of Criminal Appeal observed, at para. 11, that:

A right to private life did not involve or include a right to self intoxication, nor the right to possession or cultivation of cannabis, whether for personal consumption within one’s home or otherwise.

So… no right to do it as a matter of personal autonomy because it is not big enough, not a matter central enough to be a matter of personal integrity. This is a bit weird. If we are autonomous from the state, can’t we choose to be slackers? Are we not allowed to dedicate the core of our lives to the life of choice, even if the choice made is not the profound? If we are not granted each our own choice, we are not then each so much uniquely individual but individual as measured against some idealized standard of generic individuality. I bet if we looked into the brain of the judges the ideal standard might look a lot like the life they chose for themselves. Oddly, in many other areas of constitutional law, the individual is allowed to define him or herself – it is a subjective right. It looks like the subjective right to be slack is not good enough.