To many, if not most, of us, it would seem like “common sense that you do not go to jail unless there is a potential that your activities will cause harm to others....” It has certainly long been accepted that government should not resort to the criminal law to control behaviour unless that behaviour creates a real risk of harm. But what if the government thought otherwise? What if the government decided to criminalize recreational activities that posed a neglible risk of harm to society? What if the government decided to criminalize conduct which, for the vast majority of the public who engage in that conduct, poses no real risk of harm? Does the Charter offer any protection against unnecessary criminal laws? Does section 7 of the Charter include a “harm principle” that restricts the imposition of criminal prohibitions to conduct that causes at least some measurable harm to society? in the recent trilogy of cases dealing with a section 7 Charter challenge to the criminal prohibition on marijuana, a majority of the Supreme Court of Canada decided that the “harm principle” was not a principle of fundamental justice. Despite the historical and widespread support for recognition of a “harm principle”, the majority’s decision wisely prevented the creation of a double-edged sword. In other words, constitutionalization of a “harm principle” could equally have led to challenges by public interest groups demanding that the government criminalize conduct that the group considers potentially injurious to society. Did we even need a “harm principle” to be enshrined within section 7 of the Charter? Ironically, prior to the majority’s decision in the trilogy of marijuana cases, the general balancing approach which the Supreme Court of Canada had recognized and applied, would have been reasonably well-suited to the task. Unfortunately, in the course of losing the battle to establish a firm footing for the “harm principle”, the appellants in the marijuana cases seem to also have severely narrowed the scope of substantive review afforded by previously decided cases.
"What’s the Harm in Having a “Harm Principle” Enshrined in Section 7 of the Charter?."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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