The Ontario Court of Appeal made headlines, and rightly so, when it decided at the end of July that epileptic Terry Parker has a constitutional right to use marijuana as medicine.  While this was a big step forward for Canada, it was unfortunately undermined by the simultaneous taking of two steps back.

What most news reports barely mentioned was that on the same day it released its decision in R. v. Parker, the court released another decision called R. v. Clay, with a dismayingly different outcome.   The court held that the ban on pot violated the Charter guarantees of liberty and security of the person for Mr. Parker, a medical marijuana user, but not for Mr. Clay, a recreational user.  Less than two months earlier, the B.C. Court of Appeal had reached a similar conclusion regarding recreational users in a case called R. v. Malmo-Levine.

I have long been puzzled by the peculiar interpretation that Canadian courts have placed on the word "liberty" in section 7 of the Charter of Rights and Freedoms.  Among other things, they have said that "[liberty does not extend] to an unconstrained right to transact business whenever one wishes."

They’ve said, "There is no Charter-protected right to freedom of contract."
And again:  "…the rights protected by s. 7…do not include a right to engage in a particular type of professional activity…."

Why the devil not?  The word "liberty" stands naked and unadorned in the Charter.  It’s not embellished by qualifiers or exceptions.  There’s no footnote saying that only epileptics or cancer patients are entitled to it.  It doesn’t say we have liberty in our homes but not in our businesses.  It doesn’t say we have the liberty of making wise decisions but not foolish ones.  It just says liberty—plain, vanilla liberty.  Why is that word so hard for our politicians and judges to understand?

Christopher Clay argued that the Charter right to liberty must surely include the right to intoxicate oneself with marijuana in the privacy of one’s own home.  Sounds pretty logical to me.  However, this argument drove him smack into the brick wall of previous Supreme Court of Canada judgments.

According to the SCC, "In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance" [emphasis added].  

Elsewhere, the SCC has said, "The Charter does not protect against insignificant or ‘trivial’ limitations of rights."   

The conclusions drawn by the Ontario and B.C. Courts of Appeal after considering these passages were that the non-medicinal use of marijuana is not a decision of fundamental importance, that the criminalization of pot for recreational purposes is an insignificant or trivial limitation on liberty, and that toking up is not the sort of thing the Charter guarantee of liberty was designed to protect.  

These conclusions are all highly subjective and therefore quite debatable.  Maybe they’ll be overturned on some future appeal to the Supreme Court.  However, I’m not optimistic.  Not much can be expected from jurists whose mindset is that the constitution guarantees us liberty for those rare, momentous decisions in our lives, but not for the day-to-day small stuff.   

Does this mean that if the state decides to prescribe what time we must rise in the morning, what colour our clothing must be, how many times we must chew our food before we swallow, and how often we must clip our toenails, we’re still living in a free country?  How many trivial violations of liberty can they heap on us before we’re forced to admit that this is stifling authoritarianism, not freedom?

Besides, what’s the logic of having different rules for decisions of fundamental importance and decisions of trivial importance?  If citizens are so stupid or irresponsible that we 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?   In fact, if we never get any practice exercising our liberty on minor issues, isn’t it all the more likely that we’ll screw up when something important comes along?

Both courts attempted to do a balancing act, weighing the harm to the recreational pot user of keeping marijuana illegal against the harm to "society" of legalizing it.  But they omitted one item from the equation—the harm a society suffers when its members become so used to having the minutiae of their lives governed for them that they consider it right and normal.  We’re already at that stage, judging by the judicial rhetoric I’ve quoted above. 

Nevertheless, the Ontario Court of Appeal has handed the federal government a golden opportunity to turn things around.  Thanks to Mr. Parker’s epilepsy, the prohibition on possessing marijuana has been struck down entirely, starting next August.  The government must now decide whether to appeal the ruling, or to re-enact legislation outlawing marijuana but exempting medicinal use, or do nothing and effectively legalize pot.  Although I’ve never touched the stuff in my life and don’t plan to even if they legalize it, I’m voting for option three.  Every little bit of liberty helps.