© 2001 Karen Selick
Not a Tokin' Freedom
An edited version of this article first appeared in the March 20, 2001 issue of The National Post.  If you wish to reproduce this article,click here for copyright info.


Not a Tokin' Freedom

A thorough discussion about the meaning of liberty—that’s just what this country needs.  If we’re lucky, we might even get one sometime soon.  The Supreme Court of Canada announced last week that it will hear appeals from three men convicted of possessing marijuana. 

In the topsy-turvy world of drug prohibition, the three appellants have the bad luck not to be afflicted with epilepsy, AIDS, multiple sclerosis, or cancer.  Had they been fortunate enough to have such conditions, the courts would probably have granted them medical exemptions from the law, as they did for epileptic Terry Parker.

But being merely recreational pot-smokers, these guys will have a much tougher task: convincing the court that when the Charter of Rights and Freedoms says:  "Everyone has the right to life, liberty, and security of the person," it really means it.

It could be an uphill battle.  Canadian courts have historically been rather Scrooge-like when it comes to liberty--reluctant to dole out the smallest jot of the stuff if they don’t absolutely have to.  Over the years, they’ve told us that liberty doesn’t include the right to do business whenever you wish, or freedom to make your own contracts, or the right to engage in a particular type of professional activity.  

These boundaries on the scope of liberty are strictly court-created.  You can search in vain through the Charter, but you won’t find any fine print saying we have liberty in our homes but not in our businesses, or that only sick people are entitled to it.  And there’s no footnote saying the courts are empowered to define entire spheres of human activity out of its reach. The word "liberty" in the Charter stands naked and unadorned.  One would think this calls for a broad interpretation, not a narrow one.

Christopher Clay, one of the three appellants, argued last year before the Ontario Court of Appeal that liberty should include the right to intoxicate oneself with marijuana in the privacy of one’s home.  After all, you can do it with alcohol.  But the appellate court wouldn’t buy this simple argument.  In fairness, it couldn’t.  It was hamstrung by previous pronouncements of the Supreme Court of Canada.

For instance, the Supreme Court had said, "In a free and democratic society, the individual must be left room for personal autonomy and to make decisions that are of fundamental personal importance [emphasis added]."

Elsewhere, now-Chief Justice Beverley McLaughlin told the country: "The Charter does not protect against insignificant or "trivial" limitations of rights."

Faced with this enigmatic guidance, the Ontario Court of Appeal declined to stick its neck out.  Until some higher authority determined whether recreational pot-smoking was or wasn’t the sort of trivia the Charter could safely ignore, it wasn’t prepared to extend the scope of liberty that far.  

The B.C. Court of Appeal had likewise ducked the issue.  Appellants Victor Caine and David Malmo-Levine were told that only the threat of imprisonment had brought them within the purview of Charter-granted liberty.  The notion of a "free-standing right to possess recreational drugs" wasn’t even worth considering. 

So the buck got passed to the top.  Soon we’ll learn whether the highest authorities among Canada’s legal scholars consider toking up in one’s living room to be a matter of fundamental personal importance or mere trivia unworthy of Charter protection.

However, I’m also hoping the Supreme Court will take this opportunity to reconsider some of the qualifiers and exceptions in which they’ve hitherto swaddled the naked beauty of liberty.   For instance:  do they really believe that the constitution was designed to guarantee us liberty for those rare, momentous decisions in our lives, but not for the day-to-day small stuff?

Suppose the state decides to prescribe how often we change our underwear, what time we go to bed at night, what colour we paint our walls, how we style our hair.  Are we still living in a free country?  How many trivial violations of liberty can be heaped upon us before the court would be forced to admit that this is suffocating authoritarianism, not freedom?

And maybe the court will also reconsider the logic of having different rules for decisions of fundamental importance versus decisions of trivial importance.  If citizens are so stupid or irresponsible that they can’t handle the little stuff without direction from the state, where will we suddenly acquire the wisdom and character to handle the big stuff? 

Stung by recent criticism over judicial activism, the court may be reluctant to upset the prohibition apple cart.  However, such a decision might well engender a huge sigh of relief in some unexpected quarters.  Even social conservatives, traditionally disposed to force their idea of virtue down others’ throats, are coming to understand that the harm a society might suffer from occasional individual imprudence pales in comparison with the harm it suffers when its members become accustomed to having the minutiae of their lives governed for them.

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July 31, 2001