A CONSTITUTIONAL ASSESSMENT OF THE CLAY TRIAL AND RULING

Andrew D. Hathaway, Ph.D.

Centre for Addiction and Mental Health*
33 Russell Street, Toronto, Ontario
Canada, M5S 2S1

*The views expressed in this paper are those of the author and do not necessarily reflect those of the host institution.
I am grateful to Patricia Erickson for her comments on earlier drafts of this paper.

Abstract

In 75 years of cannabis prohibition in Canada, the latter third have been marked by considerable debate as to the propriety of invoking a criminal response to behaviour that is so prevalent and widely tolerated. The movement for reform of the laws prohibiting simple possession and use of the drug has intensified in recent years. Pragmatic adaptations on the part of Canadian legal institutions, aimed at mitigating the social and personal consequences of enforcing these sanctions, are applied routinely though selectively today. Nonetheless, actual policy reform seems far from inevitable, despite the increasing endorsement of factual evidence and widespread support for decriminalization. Given the legal-political impasse characterizing the cannabis controversy today, this paper examines the grounds on which prohibition may be viably opposed on the basis of respect for human rights. These moral grounds and remaining obstacles to legal reform are developed in view of the key contested arguments in R. v. Clay (1997), a landmark constitutional challenge as to the designation of cannabis as a prohibited substance in Canada.

Introduction

Building on Richards’ well-known liberal critique of prohibitionism and the overall trend of "overcriminalization" he saw in our society, today’s policy disputes over cannabis and other forms of illicit drug use are recognized as moral problems apt not to be judged against professional standards of rationality or harm. While he notes decriminalization arguments typically concede the immorality of prohibited conduct and then go on to discuss the excessive costs of preventing it, efficiency based arguments have had little success in reducing the scope of criminalized conduct in practice. Where moral judgements remain unchallenged, as with many types of illicit drug use, for example, movement toward decriminalization has been negligible.

Canada’s drug laws, I will argue, are viably opposable today on the basis of respect for human rights. These grounds are proposed as a rhetorical strategy invoking the spirit of liberalism as a means to promote social norms of tolerance and respect for individual autonomy. Advancing the drugs debate in Canada and other constitutional democracies may owe more to inherently normative interpretations of our legal rights than to assessments of harm based on strictly empirical arguments. The latter are clearly in need of a rhetorical foundation by which to denounce prohibition as a morally objectionable intervention in the private lives of individuals. Such a strategy may seem boldly out of step with the North American context of debate. A human rights view of drug use, however, is as ideologically viable in our culture as our ongoing concessions to the prohibitionist mentality, and the codification of this response as applied to some recreational drugs and their users.

The position is elaborated here with particular reference to R. v. Clay, as well as the recent appeal of that judgement. In each case analysis centres on the Courts’ factual versus constitutional assessments of the arguments presented. The outcomes are found to owe more to conventional normative standards than to the weight of empirical evidence, highlighting the importance of the Charter as a tool for engaging debate on progressive social values and drug policy. Further insights are derived through excerpts from interviews with two leading Canadian drug law scholars. A more general discussion of formative precepts in this paper, and alternative viewpoints opposing a human rights based conception of the problem, are taken up briefly beforehand below.

Arguing Human Rights Under Constitutional Democracy

A human rights based commitment to legal equality and fairness calls on traditional legal protections that put the onus on regulators to justify state intervention. Borrowing from J.S. Mill’s political philosophy On Liberty, a basic tenet of liberalism holds that only public defence justifies state intervention or coercion. Intervention is limited to actions threatening civil order or public security and repressive action is limited so as to minimize disruption of citizens rights. Despite Mill’s concern for protection of personal autonomy, however, the Anglo-American liberal tradition (opposing counterproductive use of scarce resources in the enforcement of laws governing private morality) has tended to rely on efficiency based anti-prohibition arguments.

The utilitarian critique of criminalizing ‘victimless crimes’ that stems from Mill’s original theses, follows a time-honoured liberal doctrine that has come to be known as the harm principle. In compliance with this principle, the scope of criminal law is limited such that acts may be made criminal only if they inflict concrete harm on assignable persons. Moreover, it is never proper to criminalize an act solely on the grounds of preventing harm to the agent or because the mere thought of the act is offensive to others. Whereas Mill valued rational autonomy as a means to encourage innovation (enabling people to realize more pleasure in their lives), however, his utilitarian calculus is lacking a moral foundation that would give individual autonomy decisive weight over concerns for group solidarity and security.

Anti-prohibition arguments typically concede the immorality of proscribed conduct and then go on to discuss the excessive costs of preventing it. In practice, however, efficiency based arguments have had little success in reducing the scope of criminal behaviour. Where decriminalization has occurred, as in the case of contraception, abortion, and consensual sexual relations between adults, for example, it has resulted from a shift in moral judgements rather than cost-efficiency assessments per se. Where existing moral judgements remain unchallenged, as with many forms of drug use, for example, movement toward decriminalization has been negligible.

Lacking adequate expression of personal autonomy as a moral value in itself, the utilitarian conception of the harm principle is vulnerable to attack from arguments justifying state paternalism and morality enforcement through law. These long contested positions of Mill, Hart and Devlin were duly restated in the report of Canada’s Le Dain Commission of Inquiry into the Non-Medical Use of Drugs and continue to shape the development of drug policy debates today. Below I revisit the range of views presented by the Commission as to the proper function of government in controlling personal drug use.

The Le Dain Commission Report: Reaching majority consensus on a wide range of observations and findings on cannabis, the Le Dain Commission Inquiry recommended repeal of the prohibition against simple possession. The majority report recommended combining treatment and punishment options, retaining the criminal status of drugs other than cannabis while providing for further assistance and treatment of ‘harder’ drug users. Because of its low toxicity, the Le Dain majority demanded that cannabis be decriminalized but not legalized, so as still to deter young people from the habits and harms they are apt to inflict on themselves.

The Le Dain majority report (endorsed by three of five appointed commissioners), subscribing to a view that was earlier put forward by Hart, states the criminal law has a paternalistic function that justifies restricting individual rights so as to preserve social order and protect persons from harms they may do to themselves. Thus the state has the right to restrict access to drugs, through forceful means if necessary, to prevent individuals from doing harm to themselves and society. Consistent with a wider range of views on social control needs versus the civil rights of drug users, however, the above argument for paternalism favoured by the Le Dain majority was offset by the sharply contrasting positions of two dissenting commissioners. The opposing minority reports of Commissioners Bertrand and Campbell represent a more liberal and more conservative conception of the problem, respectively.

The more conservative conception of drug control policy put forward by Commissioner Campbell maintains that not only does the state have a paternalistic function as guardian of public order, it is also a safeguard of social morality. Advancing a view held by Devlin, Campbell insisted the state is responsible for enforcing conventional morality on drug use regardless of actual harm. Thus he demanded the criminal penalties on cannabis use be upheld, as with any behaviour seen as a threat to established morality. The moral majority, he argues, "…may properly prohibit through the law conduct that is manifestly offensive or disturbing to them whether or not that conduct inflicts an injury on any particular person beyond the actor."

Since Canadian drug laws have not changed appreciably, even for cannabis, in spite of the Le Dain majority recommendations, they would seem to embody Campbell’s view in support of enforcing morality. Indeed, with Beauchesne one might argue, in the years following the Le Dain Commission report, state intervention justified in the name of paternalism and protection of social morality has moved towards even further repression and violation of the civil rights of drug users. The only position that would enable such repression to be avoided, notes the author, is one founded on respect for civil liberties. Such a sharply contrasting view of drug policy, following Mill’s liberal conception of the state as guardian of public order only, was presented in the second Le Dain minority report of Commissioner Bertrand.

Bertrand’s position called for limiting state intervention to the sale of adulterated drugs and other such demonstrable threats to public security, while suggesting any intervention at all in the case of private drug use is intolerable, as a clear violation of citizens’ rights. From a human rights view of drug use, the laws against cannabis are abusive of the powers bestowed on the state by the people. In this schema, not only are the drug laws unjustified as a means of enforcing morality, but they cannot be justified on paternalistic grounds either. For the law to have a pedagogical function, notes Beauchesne citing Bertrand, it must be consistent and proportional to the harm it seeks to prevent. Moreover, she wonders, in what way such a function is demonstrated for the many thousands of young people arrested in Canada each year for simple possession of cannabis.

Mitchell agrees that while freedom of drug choice should not depend upon proof of harmlessness, the drug laws are unethical because they unfairly distinguish between drugs and unfairly distinguish between drug use and other socially harmful behaviours. If psychoactive drug use were subject to a broadly uniform system of regulation based on equality, proportionality of harm, democratic choice and fairness, argues Mitchell, turning to a cost-benefit analysis within the constraints of justice, we would find general agreement between the two analytical frameworks. Therefore, relying too heavily on cost-benefit arguments may well be a strategic mistake of reformers.

Combining both radical and traditional messages, human rights based arguments are self-consciously political and make far more sense given that courts, judges, jurors, and legislators are accustomed to thinking in terms of rights. Demands for cannabis law reform centring on efficiency based arguments against moralistic paternalism are thereby ancillary to developing a "rights-centered" morality, upholding Canadians’ freedom to use drugs as a personal right worthy of protection by courts and legislatures.

Rights and Freedoms of Drug Users Under the Charter

The Canadian Charter of Rights and Freedoms (Part I of the 1982 Constitution Act herein referred to as the Charter) states that everyone has such "fundamental freedoms" as "freedom of conscience and religion" and "freedom of thought, belief, opinion and expression." No formula is provided, however, by which the selection of particular rights and exclusion of others might be explained. In this context, the right to use one’s drug of choice can be promoted in one of two ways: "First, such a right or freedom can simply be proclaimed as part of the basic rights package. If such a proclamation is lacking, the second possibility is to argue that a specified right, such as the ‘right to liberty’ guaranteed in section 7 of the Charter, extends far enough to cover the disputed action."

In the United States, argues Mitchell, due to strong court biases in drug matters and a general reluctance to overrule duly elected legislators, attempts to rule out drug prohibition on constitutional grounds have heretofore failed despite the empirical accuracy and logic of the arguments presented. Similarly in Canada, it is perhaps unrealistic to expect the Charter to resolve the many conflicts and inconsistencies in drug legislation. The precarious balance between the need for enforcement and the individual rights of drug users will no doubt continue for some time to come.

Nearly twenty years after the Charter was enacted in Canada, those who expected a sudden transformation in drug law enforcement are surely disappointed. Indeed, it has taken some time since the passage of the Charter and will take some time yet for interpretations and decisions from case law to accumulate, none of which can be deemed conclusive unless favourably arbitrated and delivered by the Supreme Court of Canada. Notwithstanding the conventional biases of courts, however, and regardless of the outcome, a Charter challenge focuses attention in open court on whether constitutional rights and freedoms have been violated.

Although it may still take more time to assess the full implication of the Charter on drug law, it has given courts the means to rigorously protect individual rights and freedoms. In particular, certain search powers and tactics used in drug enforcement have been struck down or limited by the Charter which provides, for the first time, a public forum wherein drug enforcement policies and practices can be openly discussed. In this context changes made by police and prosecutors in their practices to avoid constitutional challenges may actually do more to effect the safeguarding of rights than the successful court challenges themselves. Moreover, the Charter encourages us to fundamentally re-examine Canadian drug control policy, and may induce Parliament to more carefully consider the question of individual rights when drafting statutes.

To be consistent with current constitutional protections like freedom of religion and expression, autonomy and security of the person (as in the right to abortion), and "right to liberty" guaranteed under section 7 of the Charter, one might argue, any rational analysis of relative harm cannot justify criminalizing simple possession of a drug such as cannabis. But that would assume the debate around drugs is rational. University of Western Ontario law professor, Robert Solomon accordingly observes:

If the right to liberty in section 7 protects personal decision making (and it seems to me if the state wants to intervene, it should do so in a principled fashion), if they wanted to draw the barrier in terms of...life and death decisions and did it consistently, I could understand that, but it doesn’t…. I am overwhelmingly of the view that if section 7 allows you to die for your religious beliefs,...if a law prohibiting access to abortion interferes with your right to life, liberty, and security as a person, if the courts recognize a realm of private decision making in the area of health and autonomy, then there is no way you can justify our current laws criminalizing possession of many drugs which are now illicit.

Since the final report of the Le Dain Commission inquiry over a quarter-century ago, a legal-political stalemate has arisen around cannabis, leaving policy reform advocates in limbo awaiting the next opportunity to press the issue back into the judicial or political forum. Steadfast resistance on the part of our law enforcement institutions has proven all the more resilient in view of the apparent ‘easy out’ option available to policy makers in passing the issue back and forth between the two forums. Although constitutional challenges are expensive to launch and would seem to stand little chance of success legally, however, Osgoode Hall law professor Alan Young underscores their importance in maintaining the media spotlight and public attention, "...because the press is very interested in the issue, and if the press is interested and the public is interested, the politicians may have to respond."

Citing recent international developments in progressive law reform and a general interest in society regarding recreational drug use, Professor Young characterizes the 1990’s revival of the cannabis reform movement as a "Renaissance period" wherein (following the repressive drug policy "dark ages" ushered in by Presidents Reagan and Bush in the US) public discussion and debate on the issue has been able to ensue once more. Since interest in drug consumption and policy ebbs and flows over time, he suggests the timing of challenges may be crucial, and that today’s socio-political climate presents a prime opportunity for law reformers to take advantage of favourable public opinion and press coverage. One such highly publicized effort backed by Young, the case of R. v. Clay (and subsequent appeal), is outlined below with the aim to extract key outcomes emerging from the landmark trial and ruling.

The Clay Trial and Ruling

In May of 1995, then hemp shop proprietor Chris Clay was arrested and charged with cultivation and possession for the purpose of trafficking after selling small cannabis plant cuttings, or ‘clones,’ in his London, Ontario store. Although he had operated Canada’s first ‘Hemporium,’ openly selling marijuana seeds, water pipes, and other paraphernalia for two years previously, local police finally decided he had pushed the limits of tolerance too far and laid a number of charges. After enlisting the counsel of constitutional lawyer Alan Young, who in 1994 fought successfully to strike down part of the Criminal Code prohibiting promotion or sale of illicit drug literature, Clay launched a new challenge of Canada’s drug laws.

Raising funds primarily through donations collected via his Hemp Nation website, Clay was able to raise the money required to bring in more than a dozen expert witnesses from across North America. For three weeks during the spring of 1997, the court heard testimony from experts representing an array of academic disciplines including pharmacology, sociology, criminology, psychiatry, and law among others. The main arguments and verdict from the final court ruling is assessed here with an eye to delineate noteworthy discrepancies between trial judge John McCart’s factual and constitutional assessments of the case. The ruling, I will argue, reveals certain limits to factual argumentation and the need to further develop and articulate the human rights based constitutional arguments for drug law reform available under the Charter.

The challenge launched by Clay before the Provincial Court of Ontario sought a stay of proceedings on the judgement of charges on the basis that they violated section 7 of the Charter. Section 7 provides that: "Everyone has the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice." Thus the matter to be deliberated, as stated by Justice McCart at the outset of his verdict, "...has there been a deprivation of one or more of these rights, and if so, was the deprivation contrary to the principles of fundamental justice?"

The burden of proof was accordingly placed on the applicants to demonstrate each of several constitutional issues raised by the challenge. Chief among these was whether it is a violation of the principles of fundamental justice for Parliament to prohibit, upon threat of criminal sanction, conduct which is relatively harmless, thereby interfering with an individual’s right to make autonomous decisions in the absence of compelling reasons for the interference. In his factual assessment of the arguments presented, agreeing with much of the evidence as to the "relative harmlessness" of cannabis, McCart concluded "...as it is commonly used, occasionally, cannabis presents only minor or subtle risks to the health of the individual."

While consumption of cannabis is not completely harmless, given the risk of pulmonary damage consequent to heavy use in particular, the trial judge accepted as valid the general consensus among experts that moderate use of the drug causes no physical or psychological harm and is unlikely to create serious harm for most users or society. Regarding the political implications of the evidence, on review of reforms taking place in western Europe and Australia, McCart observed: "The national governments of Canada and the United States appear to be somewhat out of step with most of the Western world." Citing a 1995 Health Canada report that found 27 percent of Canadians believe marijuana possession should be legal and 42.1 percent favour punishment by fine or non-jail sentence only, he further observed that 70 percent of Canadians would seem to support a change in the existing law.

On the other hand, he noted, a significant majority of Canadians do not believe marijuana possession should be legal. Moreover, although penalties have been eased in certain other jurisdictions, simple possession of the drug remains against the law in most cases, and nowhere in the Western world has cultivation, trafficking, or possession for the purpose of trafficking been decriminalized. All of the so-called decriminalization initiatives in the Netherlands and elsewhere, notes McCart, were legislative initiatives, not court imposed. The applicants’ challenge of the laws against simple possession and cultivation of cannabis thus constituted "...an unwarranted intrusion into the legislative domain."

The Constitutional Assessment: Despite reaching a conclusion based on evidence that would seem to support the call for decriminalization, the Clay constitutional challenge was dismissed on the grounds that there is no "principle of fundamental justice" to warrant such an intrusion. Although invested with the power to rule on whether the laws pertaining to cannabis are constitutional or not, McCart maintained the easing of restrictions on simple possession and use rests firmly with the legislature. Judicial deference is appropriate, he argues, to guard against court interference where legislators have had to make difficult policy choices among conflicting alternatives. The principles of fundamental justice "...cannot be created for the occasion to reflect the court’s dislike or distaste of a particular statute."

Citing Alberta Supreme Court Justice McClung’s recent tirade against "ideologically driven...constitutionally hyperactive judges" usurping the proper function of democratically elected representatives of the people, McCart agreed that the principles of fundamental justice leave a great deal of scope for personal judgement. In attempting to establish the meaning of the term, these principles are held to be fundamental in the sense that they have general acceptance among reasonable people as being vital to our societal notion of justice. Discerning the principles of fundamental justice with which deprivation of life, liberty, or security of the person must accord in order to withstand constitutional scrutiny is no easy task, concedes McCart, for it requires a fair balance be struck between the interests of the person who claims his or her liberty has been violated and the protection of society at large.

Concerning the challenge before the court as to the designation of cannabis as a prohibited substance in Canada, he could find no prior authority for the proposition that illegal conduct need cause actual harm before legislated against by Parliament. Moreover, in a statement that is somewhat inconsistent with his earlier assessment, McCart declared, "...in any event...consumption of marijuana does cause harm, albeit and perhaps not as much harm as was first believed." On the basis of similar rulings in the US and Canada, continuing questions about the drug and its effects make the classification rational, he concludes, and legislative action must be upheld as long as a rational basis for the classification still exists.

With respect to the right to personal autonomy (the applicants’ claim that it is a violation of fundamental justice for Parliament to interfere with an individual’s right to make autonomous decisions in the absence of compelling reasons), McCart continues, individual freedom must be subjected to numerous constraints for the common good. Whereas, he notes, liberty grants the individual a degree of autonomy in making decisions of fundamental personal importance, as generally agreed among the experts who testified, "...marijuana is primarily used for occasional recreation." Thus, "One might legitimately ask whether this form of recreation qualifies as of ‘fundamental personal importance’ such as to attract Charter attention."

In line with a number of earlier North American court decisions, McCart argues: "Few would believe they have been deprived of something of critical importance if deprived of marijuana." The Charter, he continues, does not protect against such an insignificant or "trivial" limitation of rights. McCart’s factual assessment, based on consensus as to the relative harmlessness of the practice, was accordingly reversed on the basis that cannabis use is indeed sufficiently harmful to justify government intervention. And even if it were harmless, as a matter of policy, it is still up to Parliament, not the courts, to decide. With appeal to the "common good" that is generally accepted among reasonable people, a justification characteristic of support for enforcing morality through criminal sanctions, such an insignificant limitation of rights is surely too trivial to be deserving of legislative scrutiny.

McCart’s ruling sheds new light on the current state of inertia characterizing the cannabis issue in Canada and other constitutional democracies. Of particular note, rational reform arguments with their basis in the harm principle appear largely ancillary to establishing freedom of drug use as a personal right worthy of protection by courts and legislatures. In anticipation of the upcoming Clay appeal, defence lawyer Alan Young stated the case with dramatic simplicity (as did Mill in On Liberty), putting the onus on law makers to justify government intervention in the private lives of its citizens. When asked how he intended to establish the right to use cannabis as being of fundamental importance to warrant Charter attention, he replied:

I don’t think I have to establish that it’s of fundamental importance to warrant Charter attention…I’d like to see what would happen if tomorrow the federal government outlawed golf…. It’s about liberty, absolutely principally about liberty, not about whether it’s important…It’s just a question of whether or not the government should have a constitutional right to interfere in autonomous choices that Canadians should be able to make.… And if the Court of Appeal endorses some of McCart’s factual findings, again the public will be exposed to the hypocrisy of the law that we have this very punitive response to what seems to be very trivial, harmless activity…are we saying that courts are powerless to intervene? Then what’s the use of the Charter, quite frankly?

The Clay Appeal: In October of 1999, Clay’s case went before Ontario’s Court of Appeal. Ruling for a unanimous Court, Justice Rosenberg (in a statement released July 31, 2000) dismissed the constitutional challenge on the basis of agreement with trial judge McCart’s findings, of both fact and law, arrived at on review of the evidence presented. As a point of fact it was reiterated that while not completely free from potential harm, marijuana is relatively harmless compared to many other drugs (including tobacco and alcohol). And while further research is still needed on the actual and potential harm associated with its use, marijuana is unlikely to create serious harm for most individual users or society at large. The appellants’ contention that section 7 of the Charter precludes Parliament from interfering with personal liberty without a reasonable basis for interference, however, was again deemed inadequate to serve as a principle of fundamental justice.

While the harm principle provides a good basis for legislative policy, and is important as a guide for judges when exercising discretion in sentencing, reads the judgement, "…it is a difficult principle to translate into a means for measuring the constitutionality of legislation. For example, how much harm is sufficient to warrant legislative action? And, can the harm principle be applied outside the mens rea area in a manner that yields an understandable result?" Backing a recent decision by the British Columbia Court of Appeal, its continued prohibition is held to be consistent with the principles of fundamental justice on the basis that cannabis presents a "reasoned apprehension of harm" to other individuals or society. The state interest in protecting society, based on the reasonable assumption that harm will result, does not demand actual proof of that harm—that the prohibited substance "creates a risk of harm to society" is sufficient for Parliament to warrant prohibition.

The Ontario Court of Appeal further accepted the majority view of their BC colleagues (R. v. Malmo-Levine) in finding that the degree of harm required to uphold the prohibition "must be neither insignificant nor trivial." Interestingly, however, the minority dissenting opinion in that case, stating "that the harm must be of a serious, significant or substantial nature," was rejected on the basis that this "higher test" of the law "could lead to an unjustifiable intrusion into the legislative sphere." Notwithstanding the semantic discrepancy implied by this assertion, and its denigration of an overactive judiciary usurping parliamentary concerns, the substitution of risk or "reasoned apprehension of harm" for harm itself is a noteworthy outcome of this ruling.

The outcome of the Clay appeal reinforces that of the original trial, providing further support for Harcourt’s contention that claims of non-trivial harm (or risk of harm) are now so pervasive that the harm principle has become meaningless. Over the last two decades, proponents of legal enforcement have increasingly deployed the rhetoric of harm, as opposed to legal moralism, to the extent that the harm principle has undergone a distinct ideological shift from its initially progressive origins. This shift has significantly altered the structure of debate over the legal enforcement of morality, such that conservatives today seek to justify laws against drug use and other ‘crimes without victims’ on the basis of harm to others. The result is an entirely different structure of competing harm claims with no internal mechanism by which to resolve them.

To cite an example of particular relevance, in the contemporary context of drug policy debates, Harcourt notes that the claims of harm reduction advocates shift the focus away from conservative harm arguments to the harms caused by prohibitive drug policies. The response by drug law enforcement proponents has been to argue even greater harm. Thus while conservatives and progressives alike are making harm arguments, the harm principle offers no assistance in these matters, for it does not address the comparative importance of harms. To find guidance on questions concerning the legal enforcement of morals, we must ultimately look beyond the harm principle to larger normative debates in law and politics, "…debates about power, autonomy, identity, human flourishing, equality, freedom and other interests and values that give meaning to the claim that an identifiable harm matters."

Summary and Conclusion

Drawing on insights from sociological theory, the foregoing analysis of the Clay trial and appeal supports the idea that law reform claims based on rational arguments are rhetorically limiting insofar as they lack an established "beachhead of accepted principles" from which to manoeuvre in legal-political forums. Whereas evidence-based argumentation may have its advantages in today’s context of ostensibly rational debate, the underlying issue of drug use entitlement, irrespective of relative harm or endangerment, is nonetheless central to the cannabis controversy. As a matter of strategy, I have thereby expounded a morally grounded approach to the problem, whereby the rights of the person to pursue his or her own ends without undue interference take on primary significance.

In Canadian law and society, as in other Western industrial nations, the attempt to delineate some vague set of principles of fundamental justice are just where the debates within liberalism begin. Arguing for the human rights of drug users in Canada appeals to fundamental rights and freedoms, the right to liberty and security of the person in particular, guaranteed by the Charter. As illustrated in the case of R. v. Clay, apart from current case law presuming the right to use cannabis is not fundamental in the sense of being generally accepted among reasonable people (a political stance that would seem to invite the tyranny of majoritarian convention feared by Mill), there is apparently little else to support prohibition on rational terms.

The contention that drug use experience should not be protected by constitutional principles of tolerance is not an argument, but rather the expression of a long-standing tradition of public morality—one that, failing to observe constitutional constraints on the kind of harm that may be the object of criminal penalties, is inconsistent with deeper constitutional values. To say that a person has a human right to use drugs is not to assert such a right should be exercised. To assert the existence of such a right is rather to make a legal-political claim that the conduct must be protected from coercive prohibition by the state. Respect for the right to use drugs preserves individual experience from a cultural hegemony rooted in an absolutist conception of public morality.

Insofar as this moral conservatism fails to take seriously modern Western ideals of human rights and freedoms (those promoting social tolerance amid a plurality of perspectives), more progressive democratic values are easily trivialized into simplistic subservience to drug law enforcement bureaucracy. Resting on principles of justice that are generally accepted among reasonable people, North American courts have heretofore failed to uphold the right to use cannabis as a freedom of fundamental personal importance sufficient to warrant constitutional protection. Such a conclusion, implying there is a common sense of public morality shared by all members of society, supports a classic overarching distinction between positive and negative liberty, with the former invoking the freedom to participate in ruling and in being ruled in common pursuit of ‘the good.’

Rights-centred, ‘negative liberties’ by comparison—the illicit use of cannabis and other recreational drugs, for example—do not fall within the agreed upon range of protected actions. And so, despite its apparent inconsistency with the respect for human rights and toleration embodied in the Constitution of Canada and other Western nations, the status quo argument is fully backed by the weight of legal-political convention behind the prevailing drug law establishment. The presumption that if such a right is not already protected, it must surely be too trivial to warrant our attention effectively rules out all but nominal changes in policy.

Effectively challenging the intransigent, protectionist tendencies curbing evolution of Canada’s prohibitionist drug control policies is thereby contingent on advancing the human rights argument by way of a morally and rationally integrated ‘appeal to the people.’ Such an appeal rightly questions the taken-for-granted commonality of the good for all persons, allowing for a more liberal interpretation of the rights and freedoms provided in the Charter of Canada and other constitutional democracies. The bringing together of moral and rational warrants for change draws attention to the underlying issues, pointing out what is common to opposing sides, refocusing disputes, and evolving traditions as theory in practice with greater potential for supplanting outmoded principles that are resistant to change.

Invoking the spirit of liberalism as a living tradition cannot provide ready-made solutions to ‘the drug problem’ or any other moral problem. It rather facilitates a continuous process of reinterpretation, further articulation, and refinement, assuming the authority to be publicly pursued as a common project. Such problems are only problems in the sense that they are essentially contested. They give rise to endless disputes sustained on both sides by perfectly respectable arguments and evidence, and will continue to be debated as long as there are societies of free-willed individuals to debate them, not because they are in any sense resolvable.

Whereas the culture of bureaucracy is based on formal rationality, freedom is founded on substantive rationality rooted in values. Thus I have sought to advance the debates over cannabis and other drug law reform largely in terms of "humanist reason." This standpoint strives for the synthesis of rationality and moral community, evolving rights and freedoms in accordance with pragmatic social planning and policy. As illustrated here in the case of R. v. Clay, there is a particular need for ideology in this schema, insofar as ideology "...links the present to the future, engenders commitment, and motivates action in a way that objective science cannot."