In R. V. Malmo Levine; R. V. Caine, The Court Held That The Harm Principle Is Not A Principle Of Fundamental Justice For The Purposes Of Section 7 Of The Charter..

2454 words - 10 pages

In R. v. Malmo-Levine; R. v. Caine, the court held that the harm principle is not a principle of fundamental justice for the purposes of Section 7 of the Charter. Explain the harm principle and the court's reasons for rejecting it. Did the court reach the right decision in holding that the authority of the Canadian state is not limited by the harm principle? Why or why not?In his essay "On Liberty", John Stuart Mill explains the importance of one's liberty and gives his opinion on how society and individuals should be governed. According to Mill's ideas, the individual is accountable for his or her own actions and the government has no right to interfere unless the individual's actions threaten to harm others. This concept is known as the "harm principle". The cases of R. v. Malmo-Levine and R. v. Caine deal with the possession of marihuana and the appellants argue that criminalization and punishment of possession of marihuana goes against their rights as stated by section 7 in the Canadian Charter of Rights and Freedoms. The appellants rely on the harm principle as a principle of fundamental justice and suggest that such criminalization is a violation towards that fundamental principle. The court reached a decision that the authority of the Canadian state is not limited by the harm principle which is not found to be a principle of fundamental justice. This paper will examine in depth the two cases, as well as the different positions that were taken and will also present my argumentation as to why the court reached the right decision in rejecting the appellant's claims.Mill begins his essay by expressing a concern with the amount of control that society can exert over an individual's liberty. Mill is afraid of the "the tyranny of the majority"1 and suggests that one should protect himself not only from the tyranny of the state itself, but also from the prevailing opinions of the majority. He says that the opinions of the majority become the rules and laws of the land and it becomes unacceptable to do any different than what the majority think is right. Mill states that the important thing that ought to be taken into consideration is a person's protection and that is the only time when power can be exerted over individuals to prevent harm to others. Mill's theory is that "the only part of the conduct of any one, for which he is amenable to society, is that which concerns others"2. The harm principle that Mill advocates ensures that if anyone does a hurtful act to others, there will be a case for punishing him by law.In order to understand how Mill's harm principle can be applied in the R. v. Malmo-Levine and R. v. Caine cases, one must first understand the background information that motivated the appellants to refer to such a principle. The appellant David Malmo-Levine operates an organization called the Harm Reduction Club which is a non-profit association that seeks to reduce the potential harm which is produced from the use marihuana.3 The...

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