Malmo-Levine was charged with possession and trafficking of marijuana. He ran a non-profit helping people reduce the harms associated with marijuana and teaching them "safe practices". His clinic was searched and a large amount of marijuana was found. He tries to challenge the prohibition's constitutional validity, focusing on using the "harm principle" as his main argument for why the prohibition is not constitutionally valid.
- Do all crimes have to adhere to the "harm principle"?
- Are the prohibitions on the personal use of marijuana constitutionally valid?
- Whether s.7 of the Canadian Charter of Rights and Freedoms nevertheless prohibits Parliament from criminalizing this conduct?
Malmo-Levine argued that all crimes must adhere to the "harm principle" from the philsophical writings of John Stuart Mill. This theory essentially states that the only reason that the state can intervene in one's actions is that they are causing harm to others. He argued that because the possession of marijuana for personal use does not cause harm to others it cannot be prohibited. Gonthier and Binne, writing for the majority, decide that this claim is ungrounded as there is no principle stating that all laws must adhere to the "harm principle" and further that there are several crimes in the Code that do not harm others (such as cannibalism or sexual conduct between consanguinous adults). They decide that the "harm principle" is not a fundamental aspect of our justice system, and therefore its violation does not lead to the prohibitions being unconstitutional.
They also reject the argument that other things that are more harmful – cigarettes and alcohol – are not prohibited. They say that despite this, the legislature was not outside their boundaries in prohibiting marijuana because it has different effects than those other substances.
The "harm principle" is not a fundamental aspect of our justice system and is not needed to be included in crimes for them to be constitutionally valid.