Case Brief Wiki
Advertisement


Issue[]

Is John Stuart Mill's harm principle a principle of fundamental justice under s.7, and if so, do charges for possession of marijuana contravene s.7?

Rule[]

For a rule or principle to constitute a principle of fundamental justice for the purposes of s. 7, it must be a 1) a legal principle about which there is 2) significant societal consensus that it is fundamental to the way in which the 3) legal system ought fairly to operate, and it must be identified with 4) sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.

Application[]

The harm principle is not a principle of fundamental justice: 1) It is not really a legal principle, but rather, it's more like an important state interest. 2) There is no societal consensus that it is 3) fundamental to our legal system: Canada has plenty of criminal laws that do not follow it, like laws against sibling incest. 4) It is insufficiently precise to be used as a principle of fundamental justice, since some form of harm can be demonstrated in any situation, or likewise be contested. The principle is a gateway to discussion, but does not, by itself, tell us which harms ought to be taken seriously, or weighed above other harms.

Holding[]

Mill's harm principle is not a fundamental aspect of our justice system relevant under S. 7. The possession charges therefore do not contravene s. 7.

Advertisement