Criminal Law and The War on Drugs
"These records of wars, intrigues, factions, and revolutions, are so many collections of experiments, by which the politician or moral philosopher fixes the principles of his science, in the same manner as the physician or natural philosopher becomes acquainted with the nature of plants, minerals, and other external objects, by the experiments which he forms concerning them." (David Hume.)2
"Our long armed and hairy ancestors had no idea of redress beyond vengeance, or of justice beyond mere individual reprisal."3
To determine what constitutes criminal law, is, as one learned judge has opined, "a work of art, it is something that may be easier to recognize than define ..."4 I shall venture to say, that, when a person commits a crime that person commits a breach of faith with the community in which that person lives. In such an event the community, as a collective whole, in a self protective act, will assert itself against the criminal.5 Criminal law is a method of enabling men to live together in a community in spite of the possibility that their desires may conflict. Historically, punishment has been the manner by which the community attempts to deter crime;6 and, generally, the criminal offense has been, throughout history, gauged and matched to a suitable punishment. As to what individual acts the community has considered to be a crime and as to what punishment it has meted out, makes for an interesting historical study, which I do not now have the time to carry out.7
Of course, it is no longer the sovereign who defines crime, that is now the function of our democratically elected assemblies. However, such an assembly cannot make an act into a crime, as our Supreme Court here in Canada has stated, unless "we can properly look for some evil or injurious or undesirable effect upon the public against which the law is directed. That effect may be in relation to social, economic or political interests; and the legislature has had in mind to suppress the evil or to safeguard the interest threatened."8
And further, it cannot be "neither a static catalogue of offences nor order of sanctions. The evolving and transforming types and patterns of social and economic activities are constantly calling for new penal controls and limitations and that new modes of enforcement and punishment adapted to the changing conditions are not to be taken as being equally within the ambit of parliamentary power is, in my opinion, not seriously arguable."9
In the relatively recent case of RJR - Macdonald v. Canada (1995), the Supreme Court of Canada, it was determined that the exercise of the power to make an act a criminal one, a test is to be applied; one "of substance, not form."10 To be fully fledged criminal law, the act prohibited "must pose a significant, grave and serious risk of harm to public health, morality, safety or security ..."
And, so, how does...