The “marijuana cases” (R. v. Malmo-Levine; R. v. Caine) and the “spanking case” (Canadian Foundation for Children Youth and the Law v. Canada) provide contrasting circumstances for the application of J.S. Mill’s “harm principle” to the courts’ consideration of the liberty interests in section 7 of the Charter. The history of the harm principle demonstrates that it is not well suited to a diverse modern society concerned with the broad aspects of public good, social well-being and the balance of competing harms, reflected in underlying Charter values. To this point, the Supreme Court has relied, increasingly, on the harm principle to limit legislative discretion to define criminal conduct. an analysis of the mentioned cases illustrates why the harm principle may not be the appropriate standard for measuring the constitutionality of criminal law provisions.
Levine, Roslyn J. Q.C..
"In Harm’s Way: The Limits to Legislating Criminal Law."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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