Table of Contents

TABLE OF CONTENTS......................................................................1
INTRODUCTION..............................................................................2
GENERAL BACKGROUND INFORMATION...........................................3
CANADIAN MARIJUANA BACKGROUND.............................................4
R. V. MALMO-LEVINE/R. V. CAINE....................................................4
GERMAN MARIJUANA BACKGROUND................................................9
THE CANNABIS CASE....................................................................10
DISTINCTIONS BETWEEN MALMO-LEVINE AND THE CANNABIS CASE 14
DISPARATE PROPORTIONALITY ANALYSIS......................................................................14
IMPORTANCE OF INTERNATIONAL OBLIGATIONS ...............................................................17
COMMONALITIES IN MALMO-LEVINE AND THE CANNABIS CASE .......19
MARIJUANA USE AS OUTSIDE THE CONSTITUTIONAL CORE.................................................19
DEFERENCE TO THE LEGISLATURE..............................................................................21
RESTRAINT IN ENFORCEMENT OF LAWS PROHIBITING MARIJUANA POSSESSION...........................23
PROTECTION OF VULNERABLE GROUPS........................................................................26
CONCLUSION...............................................................................28
APPENDIX....................................................................................30
BIBLIOGRAPHY.............................................................................32

1
Introduction
It has been said that “[n]o substance in the world has generated more controversy

and, perhaps, investigation in terms of impact on individual behaviour and society than

marijuana.”1 It is therefore unsurprising that this substance has been the subject of a great

deal of judicial scrutiny in various nations. This judicial analysis of marijuana possession

is particularly interesting in the current era, in which individual rights have significantly

developed and are, in many nations, protected by entrenched constitutional provisions

and powerful constitutional courts. The treatment of marijuana use by the Supreme Court

of Canada and the German Constitutional Court is the subject of the following

comparative analysis of the leading decisions on the issue in R. v. Malmo-Levine/R. v.

Caine2 and the Cannabis case3, respectively. The decisions contain certain important

distinguishing factors, including a varied approach to proportionality of the laws in

question by the two courts, and a greater emphasis on international obligations vis-à-vis

the legislation by the German Constitutional Court. Notwithstanding these dissimilarities,

both courts arrived at an essentially identical result, in part due to parallels in the

decisions. These similarities include the courts’ refusal to acknowledge marijuana use as

a core right, their emphasis on the importance of discretion of the legislature in dealing

with marijuana use, the importance of restraint in enforcement of the law, and the

emphasis on the impugned laws’ protection of vulnerable groups.

1
Richard Isralowitz, ed. Drug problems: cross-cultural policy and program development (Westport: Auburn House, 2002) at 12.
Marijuana is alternatively spelled “marihuana”, and it is also occasionally known simply as cannabis. Please note that the term is
occasionally capitalized in non-Canadian sources. For consistency, I will refer to it simply as marijuana.
2
R. v. Malmo-Levine/R. v. Caine, [2003] 3 S.C.R. 571, 2003 SCC 74 [Malmo-Levine].
3
Bundesverfassungsgericht (Federal Constitutional Court), Second Senate, decision of 9 March 1994, BVerfGE 90, 145 [Cannabis
case].

2
General Background Information
To provide appropriate context, it is necessary to set out some background on

marijuana, or Cannabis sativa indica4. Although frequently grouped with other illicit

substances such as cocaine or even heroin, marijuana is not worthy of the well-earned

reputation of such drugs5. It is widely accepted that marijuana is the mildest and least

dangerous of “drugs”6 and is, in fact, no more harmful than alcohol or tobacco, as was

acknowledged in the Canadian Report of the Senate Special Committee on Illegal Drugs7.

That Report, which was before the Court in Malmo-Levine, made it clear that, although

not harmless, marijuana is not nearly as dangerous as many 20th century portrayals

indicated. Significantly, the Report demonstrated the following: the stepping stone and

gateway theories, which classify marijuana as an almost inevitable precursor to more

harmful drugs have been widely discredited8; the existence of an “amotivational

syndrome” associated with marijuana is debatable9; studies do not suggest impairment of

brain function in most long-term users10; and marijuana has a low addictive potential11.

Studies indicate that the harm associated with an individual’s use of marijuana is

generally experienced only in conjunction with habitual heavy use, and may include

respiratory/bronchial illness and varying degrees of psychological dependence in a small

4
Canada. Parliament. Senate. Special Committee on Illegal Drugs, Cannabis: Report of the Senate Special Committee on Illegal
Drugs (Toronto: University of Toronto Press, 2003)[Report of the Senate Special Committee] at 31.
Please note that in the following paragraphs discussing background information with respect to marijuana, I have relied upon research
conducted for a paper written concurrently and entitled High Scorers: Regulation of Marijuana in Major North American Professional
Sports.
5
Vera Rubin, ed. Cannabis and Culture (The Hague: Adline, 1976) at 204.
6
Ibid.
7
Report of the Senate Special Committee, supra note 4 at xi.
It is notable that the upshot of the Special Committee’s findings was a recommendation that marijuana be legalized in Canada, and the
Liberal Government tabled decriminalization legislation in the form of Bill C-17 in 2004. Despite the fact that Bill C-17 did not pass
into law, it is, if nothing else, illustrative of the fact that Canadian attitudes on marijuana have become more liberal over time.
8
Ibid. at 63.
9
Ibid.
10
Ibid. at 76.
11
Ibid. at 80.

3
number of cases12.

Canadian Marijuana Background

It is also necessary, in the interest of providing context, to set out some additional

background with respect to marijuana use in Canada. It has been estimated that as many

as 1.5 million Canadians smoke marijuana recreationally, and 14% of Canadians polled

in a national Addiction Survey reported having used marijuana at some point in the

previous year13. Included within this number are approximately 50,000 “chronic” users14.

Moreover, marijuana use in Canada is reportedly higher per capita than in all European,

Latin American and Asian countries15. Given these figures, it is perhaps unsurprising that

as of 2003, as many as 600,000 Canadians had criminal records for marijuana-related

offences16.

R. v. Malmo-Levine/R. v. Caine
The hallmark ruling by the Supreme Court of Canada on marijuana prohibition is

of great significance in light of the foregoing statistics. This ruling came in the twinned

decisions in R. v. Malmo-Levine and R. v. Caine (hereinafter, collectively referred to as

“Malmo-Levine”)17. R. v. Caine involved an appeal on conviction for simple possession

of a small amount of marijuana (0.5 grams) contrary to the governing provisions of the

12
Cannabis case, supra note 3 at 180, Malmo at paragraph 42
13
Khoo, supra note 13.
14
Malmo-Levine, supra note 2 at para. 48.
15
Canwest News Service, “Marijuana popular among educated, middle-class Canadians: study” Canwest News Service (May 15,
2008) <http://www.canada.com/topics/news/story.html?id=3e1b7647-05e9-4adb-ac75-533e74345e41> (Accessed December 4, 2010).
16
Malmo-Levine, supra note 2 at para. 22.
17
My comparative analysis will focus exclusively on the Supreme Court’s assessment of constitutional issues with respect to simple
possession, so I have not included a discussion of the facts in R. v. Malmo-Levine, which involved more complicated trafficking
issues.

4
former Narcotic Control Act, R.S.C. 1985, c. N-1 [hereinafter, the “NCA”]. The NCA

classified marijuana as a scheduled drug, and set out in s. 3(1) that “[e]xcept as

authorized by this Act or the regulations, no person shall have a narcotic in his

possession.” Conviction under this provision entailed “a maximum fine of $1,000 or

imprisonment for up to six months or both for a first offence and a maximum fine of

$2,000 or imprisonment for up to one year or both for a subsequent offence.”18.

The Appellants in this case advanced several constitutional arguments19 with

respect to the criminalization of marijuana, including a submission that the prohibition is

contrary to s. 15 of the Charter20. The Court’s response on this issue was that a taste for

marijuana is not a “personal characteristic” that would attract the protection of s. 15, but

rather a “lifestyle choice”21, so there was no infringement found under s. 15.

The bulk of the Court’s analysis was focused on various s. 7 Charter22 arguments

advanced by the Appellants with respect to the fact that imprisonment is one of the

available sanctions for simple possession of marijuana under NCA. The majority of the

Court, per Gonthier and Binnie JJ., stated that the availability of imprisonment for simple

possession was “sufficient to trigger s. 7 scrutiny.”23 The Appellants argued that one of

the principles of fundamental justice found within s. 7 is the “harm principle”, which

essentially indicates that the state can only proscribe the conduct of its citizens when that

conduct is harmful for other citizens within the state. The majority of the Court found that

18
Malmo-Levine, supra note 2 at para. 3.
19
My analysis will focus primarily on issues arising from ss. 7 and 15 of the Charter. Likewise, I will not engage with the division of
powers or s. 12 analysis of the Supreme Court. It suffices to say that the Court found that Parliament’s criminalization of marijuana is
within the criminal law power and that the availability of imprisonment did not violate s. 12 of the Charter as the potential for
imprisonment is not grossly disproportionate.
20
See Appendix.
21
Malmo-Levine, supra note 2 at para. 185.
22
Please see Appendix.
23
Malmo-Levine, supra note 2 at para. 84.

5
although the harm principle may guide the state in certain ways and that “there is…a state

interest in the avoidance of harm to those subject to its laws which may justify

parliamentary action.”24, it is not a principle of fundamental justice. The majority arrived

at this conclusion given their finding that there is a lack of consensus in Canada as to

whether or not “the harm principle is the sole justification for criminal prohibition.”25

Also, the Court noted that since there are various interpretations of the harm principle, it

is not a manageable standard vis-à-vis classification as a principle of fundamental

justice26.

The Appellants also advanced arguments with respect to the arbitrariness of the

marijuana prohibition, given that “[a] criminal law that is shown to be arbitrary or

irrational will infringe s. 7.”27 The Court found that in legislating with respect to simple

possession of marijuana Parliament did not act arbitrarily, given the rational connection

of the legislation to a “reasonable apprehension of harm” as that concept relates to several

vulnerable groups. Those vulnerable groups included those operating vehicles/heavy

machinery, young people, pregnant women, and individuals with a history

of/predisposition to drug abuse28. Additionally, the majority noted that the legislation is

no more arbitrary when considered in relation to a lack of such criminalization for

alcohol and tobacco, as Parliament does not lose its jurisdiction with respect to criminal

law simply because “there are other substances whose health and safety effects could

arguably justify similar legislative treatment.”29

24
Ibid. at para. 130 (emphasis in original).
25
Ibid. at para. 115.
26
Ibid. at para. 129.
27
Ibid. at 134.
28
Ibid. at para 136.
29
Ibid. at para 138.

6
 With respect to the Appellants’ claim of disproportionality of the criminalization

of marijuana, reference was made to the decision in Suresh v. Canada (Minister of

Citizenship and Immigration), [2002] 2 S.C.R. 3 which set out that some governmental

responses will be “so extreme that they are per se disproportionate to any legitimate

government interest”30 and will therefore offend the principles of fundamental justice

under s. 7. The Court noted that the applicable standard here is one of “gross

disproportionality”, which compares the public health and safety goals and the adverse

effects on those subject to the prohibition31. The majority of the Court noted here that the

relevant inquiry should be made as to “use of incarceration, not the availability of

incarceration.”32 The majority went on to emphasize that the NCA does not provide for

mandatory minimum sentences for marijuana possession33 and that imprisonment is

generally reserved for particularly exceptional cases of possession, typically involving

aggravating factors which can be determined in light of “well-established sentencing

principles.”34 The majority of the Court noted that “imprisonment would ordinarily be an

unfit sentence for a conviction on simple possession of marihuana,” but found that if this

were to occur it could be rectified by an ordinary sentence appeal35.

In her dissenting opinion, Madam Justice Arbour took a different approach to the

“harm principle” with respect to Caine, and found that a law that has the potential to

imprison an individual for conduct that causes little or no harm to others does indeed

30
Suresh v. Canada (Minister of Citizenship and Immigration), 1 S.C.R. 3, 2002 SCC 1 cited in Malmo-Levine, supra note 2 at para
142.
31
Malmo-Levine, supra note 2 at para. 145.
32
Ibid. at para. 150 (emphasis in original).
33
Ibid. at para 153.
34
Ibid. at paras. 154, 155 and 158.
35
Ibid. at para. 167.

7
offend the principles of fundamental justice and is therefore contrary to s. 736. She stated

that “the principle that stigma and punishment must be proportionate to the moral

blameworthiness of the offender stands only if there is a sufficiently blameworthiness

element in the actus reus itself”37 and that to meet that standard there must be harm to

others. She found that the harm associated with marijuana could not justify the use of

imprisonment as a sanction, noting that this harm is largely limited to health risks for the

user, which are minimal for all but chronic users. Moreover, she contended that the risk

that some more vulnerable groups may harm themselves with marijuana more than the

general population cannot justify incarceration for possession generally, given the

typically low risk of harm38. In this vein, she concurred with the reasoning of one of the

judges of first instance who found that even risks associated with impaired operation of

cars and heavy machinery or broader health and social costs are relatively minor39.

Finding that s. 7 rights are indeed infringed by the availability of imprisonment for simple

possession of marijuana, Madam Justice Arbour noted that the onus is on the Respondent

to justify the rights infringement, and this onus was not met as no representations were

made with respect to s. 140.

Mr. Justice LeBel and Madam Justice Deschamps agreed with Madam Justice

Arbour’s disposition on the constitutional issue, although they did not concur with her

finding that the harm principle is one of fundamental justice. Mr. Justice LeBel noted that

the “law, as it stands, is indeed an arbitrary response to social problems”41 and held that in

36
Ibid. at para. 190.
37
Ibid. at para. 230.
38
Ibid. at para. 258.
39
Ibid. at para. 261.
40
Ibid. at para. 272.
41
Ibid. at para. 277.

8
assessing s .7 rights, “concerns about the harm done to society or some of its members or

even to the accused themselves must be weighed together with the consequences which

flow from the criminalization of simple possession.”42 He emphasized that a breach of

fundamental rights under s. 7 may be “made out if and when the response to a societal

problem may overreach in a way as to taint the particular legislative response with

arbitrariness.”43 He contended that this is the case with the legislation in question here,

given the “rather mild” harm caused by marijuana consumption versus the “plain and

important” problems associated with criminalization44.

Madame Justice Deschamps further added that it is a principle of fundamental

justice that liberty-limiting laws cannot be arbitrary, in part due to issues with respect to

maintenance of legitimacy and credibility of the justice system45. She suggested that the

arbitrariness of the legislation can be seen in the “nebulous” reasons for initially

criminalizing it, the fact that “moderate use of marihuana is harmless,”46 the availability

of other mechanisms of control, if necessary, for the so-called vulnerable groups47, and

the other proportionality issues discussed in the foregoing dissent commentary.

German Marijuana Background

The statistics and background with respect to marijuana in Germany are not

dissimilar from those available in Canada, although rates of use are somewhat lower in

Germany. Estimates of the number of German marijuana users at the time of the

42
Ibid. at para. 279.
43
Ibid. at para. 279.
44
Ibid. at para. 280.
45
Ibid. at paras. 290-291.
46
Ibid. at para. 295.
47
Ibid. at para. 298.

9
Cannabis case were between two and four million people, most of whom were occasional

consumers48. A study by the German Constitutional Court indicated that 56.7% of

marijuana users surveyed indicated that they had used the substance 1-5 times in the

previous year49. Since the end of the 1980s, marijuana use in Germany has been

increasing50 and a 2004 study indicated that 1/3 Germans aged 12-25 had experimented

with marijuana it at least once51.

The Cannabis case

Although a somewhat older ruling, the German Constitutional Court’s decision in

what has come to be known as the Cannabis Case52 also sheds interesting light on the

relationship between constitutionally entrenched rights and the criminalization of

marijuana possession53. This case was submitted to the Constitutional Court in 1994 by

the Lubeck Appellate Court, via Article 100 of the Basic Law, which enables courts to

inquire as to the constitutionality of statutes. As in Malmo-Levine, the German

Constitutional Court here assessed the constitutionality of the penal provisions of the Act

Concerning Dealings with Intoxicating Substances (Intoxicating Substances Act)

(hereinafter, the “ITA”), the legislation proscribing possession and trafficking of

marijuana, among other things. This application arose in the context of the conviction and

sentencing of the Applicant for ongoing trading in “not insignificant amounts of

48
Cannabis case, supra note 3 at 178.
49
Ibid.; Note: The available statistics are somewhat dated, as they arose from a study conducted in 1994. These are the statistics,
however, on which the German Constitutional Court based its analyses.
50
Karl-Heinz Reuband, “Evolution des modes de consommation des drogues et effets limites des politiques penales: les cas de
l’Allemagne” (2008) Déviance et Société 32 [translated by author] at 9.
51
Ibid.
52
AKA: the Hashish drugs case.
53
Please note that this case also addresses the constitutionality of the German criminalization of other offences pertaining to
marijuana, including trafficking. My analysis, however, focuses exclusively on issues pertaining to minor possession, as is the case in
the foregoing discussion of Malmo Levine.

10
Hashish.”54 At trial, the offender in question was sentenced to two years and six months’

imprisonment. The ITA in s. 29(1) provides for a fine or imprisonment of up to five years

for simple possession of marijuana, including hashish.

The Court assessed the constitutionality of criminalization of marijuana via

reference to Article 2 paragraph 1 of the Basic Law, the clause guaranteeing free

development of personality55. The majority of the Court found here that free development

of personality does not include a right to be intoxicated on illegal substances56.

Moreover with respect to the Article 2(2) of the Basic Law57 and rights related to

liberty, the Court stated that given the broad limiting language employed within Article 2,

legislation that is otherwise constitutional may legitimately limit the rights found in the

article with respect to liberty, assuming that the limitations involved are proportional. In

applying the proportionality analysis, the majority of the Court noted that “[l]iberty of the

person, which is described as ‘inviolable’, is a legal interest of such importance that it can

only be impinged upon on the authority of Article 2 para 2 sentence 3 if there are

particularly weighty reasons for doing so.”58 The Court then commented that the aim of

the legislature in drafting the provisions with respect to possession of marijuana in the

ITA is the protection of the “health both of the individual and of the population as a whole

against the dangers which flow from drugs.”59 In this vein, the Court noted that the “the

dangers to health which arise from the consumption of Cannabis products are

54
Cannabis case, supra note 3 at 198. Although the Constitutional Court made comments with respect to both marijuana and hashish,
a marijuana derivative, my analysis here is limited to the former, which is generally acknowledged to have milder effects than the
latter.
55
Please see Appendix.
56
Cannabis case, supra note 3 at 145.
57
Please see Appendix.
58
Ibid. at 172.
59
Ibid. at 174.

11
significant,”60 although it did allude to conflicting evidence with respect to these health

impacts61.

Additionally, the Court found that the ITA is also intended to prevent the

population, particularly young people, from becoming addicted to drugs, and relied on a

report indicating that “[i]t is highly probable that [marijuana] serves as a stepping stone”

to other illegal substances.62 The Court noted that possession poses a risk to individuals

beyond the particular possessor, given that it opens up “the possibility of the drug being

passed on to third parties without any control.”63 Finally, the majority of the Court

condemned possession given that buyers of marijuana support the illegal drug market64.

Altogether, the Court found that the penal sentence available for marijuana possession

was a “suitable instrument to promote the aim of the Act.”65

At the second stage of the proportionality analysis, the Court noted that the

legislature “has repeatedly reconsidered its view and has repeatedly come to the

conclusion that to achieve the aims of the Act it is necessary to have a prohibition of

illegal dealings in Cannabis backed up by penalties.”66 It also underscored the discretion

of the legislature in choosing means available to achieve a particular end67 and noted that

criminalization of marijuana was necessary given that there are no “means other than

criminal penalties which would be equally effective in attaining the Act’s aims while

being less intrusive.”68

60
Ibid. at 175.
61
Ibid. at 177.
62
Ibid. at 176.
63
Ibid. at 187.
64
Ibid. at 187.
65
Ibid. at 182.
66
Ibid. at 182 (emphasis mine).
67
Ibid. at 183.
68
Ibid. at 182.

12
 Having established the suitable and necessary nature of the ITA provisions in

question, the Court went on to assess its proportionality in the narrower sense. At the

outset of this assessment, the Court again emphasized the goals of the legislature in

banning marijuana and implementing criminal penalties and noted that such public

interests are not counter-balanced by “interests in equal weight in favour of unbanning

dealings in the drug.”69

However, the Court went on to refer to the potential proportionality issue in the

following excerpt:

Depending on the characteristics and effects of the drug, the amount involved in the
specific case, the nature of the relevant infringement, and all other relevant facts, the
danger posed to the protected public interests may be so slight that the considerations of
general prevention which justify a general threat of criminal penalties may lose their force.
In such cases, having due regard to the right of the affected individual to freedom, the
individual guilt of the defendant and the related considerations of criminal policy which
aim at prevention in the case of the specific individual, the punishment constitutes a
disproportionate and therefore unconstitutional sanction.70

Similarly, the Court found that in a significant number of marijuana possession cases, the

“extent of individual culpability and the threat to other legal interests emanating from the

individual act may be petty.”71

Despite these reservations, the majority of the Court found that the constitutional

requirement of proportionality is not violated by the criminal penalties for possession of

marijuana. Of much significance in this vein is the reference made by the Court to the

ability of the authorities concerned to refuse to prosecute or impose penalties where the

wrongfulness or culpability suggest this may be appropriate. Section 29(5) of the ITA is

important here as it allows courts to

refrain from imposing a penalty under s 29 para 1 if the defendant cultivates,

manufactures, imports, exports, procures or in some other way obtains or possesses drugs
69
Ibid. at 184.
70
Ibid. at 184-185.
71
Ibid. at 187.

13
 or transports them through the country only for his personal consumption and only for his
personal use.72

Similarly, s. 31a of the ITA provides for the refusal to prosecute in similar circumstances.

At any rate it was stated that “[t]he decision of the legislature to take account of the

diminished wrongfulness and culpability of certain acts primarily by limiting the

obligation to prosecute is compatible with the constitution.”73

Distinctions Between Malmo-Levine and the Cannabis case

Disparate Proportionality Analysis

Given that Canada and the Federal Republic of Germany have distinct legal

systems and diverse constitutions, it is unsurprising that there are several key differences

between the Supreme Court of Canada’s decision in Malmo-Levine and the German

Constitutional Court’s decision in the Cannabis case. One of these differences is in the

approach that each court took to the proportionality assessment of marijuana laws. As

noted above, in Malmo-Levine the Supreme Court assessed the NCA in terms of gross

disproportionality under s. 7, but it did not engage in a proportionality analysis of the

impugned provisions in the fullest sense, given that the majority found that there was not

a Charter breach, and assessment under s .1 was therefore unnecessary. The assessment

that the majority did conduct under s. 7 was much more limited, as the majority stated

that “the range of interests to be taken into account under s. 1 is much broader than those

relevant to s. 7,”74 and that “[u]tilitarian arguments that urge a cost-benefit calculation of

alleged benefit to the many versus alleged harm to the few, to the extent that such

72
Ibid. at 189.
73
Ibid. at 190.
74
Malmo-Levine, supra note 2 at para. 97.

14
arguments are relevant under the Charter, belong in s. 1.”75 Arguably, and with all due

respect, the restrictive approach taken to s. 7 may have precluded a fulsome assessment

of whether the law in question is constitutional because it was not subjected to a full

scrutiny, notwithstanding the majority’s expressions of certain reservations with the

legislation.

The dissenting Justices in Malmo-Levine, conversely, would have subjected the

NCA provision to a s. 1 analysis, as proposed by Madame Justice Arbour who stated that

the impugned provision breached s. 7 given her finding that this criminal law was in

disaccord with the harm principle. She noted that imprisonment must only be available

for conduct which causes a “reasoned risk of harm to others”, and acknowledged that a

deeper assessment of societal interests may factor into this assessment76. In this respect

she stated that “[s]oceital interests in prohibiting conduct are evaluated by balancing the

harmful effects on society should the conduct in question not be prohibited by law against

the effects of prohibiting the conduct.”77 Her approach therefore entailed consideration of

the legitimacy of the impugned law in a broader context insofar as she engaged in a

deeper analysis of the benefits of the availability of imprisonment for simpliciter

possession of marijuana, as weighed against the detriments for users and society

generally, even outside of s. 1.

Similarly, Mr. Justice LeBel and Madam Justice Deschamps, in dissent, found the

impugned law to be arbitrary and irrational, and therefore in breach of s.7, and in so

doing considered a broader scope of interests. Mr. Justice LeBel noted that “[t]he process

of delineation of rights under s. 7 unavoidably involves balancing competing rights and

75
Ibid. at para. 101.
76
Ibid. at para. 246.
77
Ibid. at 11.

15
interests”78 and therefore that “concerns about the harm done to society or some of its

members or even to the accused themselves must be weighed together with the

consequences which flow from the criminalization of simple possession.”79 He

emphasized that what must be assessed under s. 7 here was whether “the response to a

societal problem may overreach in such a way as to taint the particular legislative

response with arbitrariness.”80 In assessing this he also engaged in a more involved

comparison between the harm associated with marijuana and the issues associated with

its criminalization.

While the majority of the German Constitutional Court in the Cannabis case

arrived at essentially the same result as the majority in Malmo-Levine, its proportionality

analysis was somewhat deeper. The majority in Malmo-Levine was reluctant to engage in

the more thorough balancing under s. 1, whereas the German Constitutional Court

effectively conducted an identical test to what is found under s. 1, as can be seen in the

following excerpt describing the proportionality assessment in the Cannabis case:

According to this principle, a statute which limits fundamental rights must be both suitable
for achieving the purpose to which it is directed and necessary to doing so. A statute is
suitable when with its help the desired result can be promoted. It is necessary if the legislator
could not have chosen a different means which would have been equally effective but which
would have infringed on fundamental rights to a lesser extent or not at all.”81

Additionally, the court noted that it must assess “proportionality in the narrower sense”,

which entails “weighing the seriousness of the infringement against the importance and

urgency of the factors which justify it” and necessitates a consideration of the “limits of

what can be demanded of individuals to whom the prohibition is addressed.”82 Given this

78
Ibid. at 278.
79
Ibid.
80
Ibid. at 279.
81
Cannabis case, supra note 3 at 172.
82
Ibid. at 173

16
framework, the German Constitutional Court engaged in a more thorough analysis of the

rights in question. Interestingly, the Court still arrived at the same result as the majority in

Malmo-Levine. This was perhaps in part due to a greater degree of apprehension as to the

health effects and other consequences associated with marijuana83, given the state of

available knowledge in 1994 when its decision was released, versus 2003 when the

Supreme Court of Canada rendered its decision.

Importance of International Obligations

Another notable distinction between the majority rulings in Malmo-Levine and the

Cannabis case is the pronounced emphasis on international obligations in the latter. The

majority in Malmo-Levine, conversely, did not discuss the legitimacy of the impugned

NCA provisions in light of Canada’s international drug enforcement commitments

beyond briefly mentioning the impact of international treaties on the historical

development of Canadian laws with respect to marijuana84.

Moreover, Madam Justice Arbour’s dissenting opinion in Malmo-Levine

emphasized the importance of internal legislative harmony with the Charter even at the

cost of compliance with international instruments, as is conveyed here:

…the treaty obligations Canada has undertaken in the war on drugs are subject to, inter
alia, Canada’s “constitutional limitations” (Single Convention on Narcotic Drugs, 1961,
Can. T.S. 1964 No. 30, Art. 36) and Canada’s “constitutional principles and the basic
concepts of its legal system” (Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, Can. T.S. 1990 No. 42, Art. 3(2)). The express subordination of
these treaties to the requirements of domestic constitutional law suggests that they would
not significantly assist an attempt to justify the s. 7 violation in s. 1.85

On the contrary, the German Constitutional Court emphasized international

83
By way of an example, at p. 174 of its decision, the German Constitutional Court acknowledged the “gateway” theory, which was
subsequently widely discredited, as acknowledged by the majority of the Supreme Court in at paragraph 46.
84
Malmo-Levine, supra note 2 at paras. 33 and 34.
85
Malmo-Levine, supra note 2 at para. 271.

17
obligations a great deal in ultimately upholding the constitutionality of the marijuana

possession provision in the ITA. This can be seen in the following excerpt from the

Cannabis case:

The European states, within whose borders hardly any drugs are produced, have thereby
undertaken primarily to combat the demand for drugs. The Federal Republic of Germany
has concurred in this evaluation of the dangers involved by passing the Intoxicating
Substances Convention Implementation Act and subsequently ratifying the convention, and
has made this evaluation the basis of its treaty obligation to combat dealings with drugs by
means of criminal penalties. In the light of this convention the Intoxicating Substances Act
is at the same time the contribution of the Federal Republic of Germany to the international
control of drugs and psychotropic substances and of dealings with these substances. It is
Germany's contribution to combating the illegal market in drugs and the criminal
organisations who participate in it. This is the common business of the community of states
joined together in the United Nations. It is their unanimous conviction that the only chance
of pursuing these goals with any success is for various states to co-operate.

In setting this objective the Intoxicating Substances Act serves communal interests which
are recognised by the constitution.86

The Court also noted that “[t]he international conventions, to which the Federal Republic

of Germany has acceded, rely increasingly heavily on the use of penal measures in

combating the abuse of drugs and illegal trade in drugs.”87 This international orientation

is influenced by the inclusion of a provision such as Article 25 in the Basic Law, which

states that “[t]he general rules of international law shall be an integral part of federal law.

They shall take precedence over the laws and directly create rights and duties for the

inhabitants of the federal territory.” Similarly, the reference in the Preamble to the Basic

Law to Germany “as an equal partner in a united Europe” may also suggest an

international orientation. At any rate, it is fairly apparent in light of the foregoing that the

German Constitutional Court’s decision was heavily influenced by international concerns

and obligations, while such factors were far from paramount in the Supreme Court of

Canada’s decision.

86
Cannabis case, supra note 3 at 175.
87
Ibid. at 183.

18
Commonalities in Malmo-Levine and the Cannabis case

Marijuana Use as Outside the Constitutional Core

While the differences in Malmo-Levine and the Cannabis case are certainly

significant, there were many commonalities between the two judgments that may have

led to the essentially identical results in the two cases. Various elements of the Canadian

and German courts’ analyses are theoretically comparable, including their treatment of

the constitutional significance of recreational use of marijuana, or more specifically, the

courts’ dealing with the existence of a “free-standing constitutional right to smoke ‘pot’

for recreational purposes.”88 The Supreme Court of Canada was unanimous in its finding

that s. 7 does not give rise to a “right to use marihuana in the privacy of one’s home (as) a

fundamental aspect of personal autonomy and dignity.”89 Likewise, as noted above, the

Court unanimously found that recreational users of marijuana could not find refuge in s.

15, as the Court unanimously found that use of the substance “is a lifestyle choice,” and

that “[i]t bears no analogy with the personal characteristics listed in s. 15, namely race,

national or ethnic origin, colour, religion, sex, age, or mental or physical disability.”90

The Court emphasized that including recreational use of marijuana in this list of protected

grounds could have the effect of trivializing equality rights under the Charter because

marijuana use is not conduct that is not immutable nor is it changeable only at a

significant cost to an individual91.

Correspondingly, the German Constitutional Court noted that the right to free

88
Malmo-Levine, supra note 2 at para. 87.
89
Ibid. at 221.
90
Ibid. at 185.
91
Ibid.

19
development of personality in the Basic Law protects “every form of human activity

without consideration of the importance of the activity for a person’s development,”92 but

the Court stressed that it is “only the inner core of the right to determine the course of

one’s own life” that is given absolute protection93. The Constitutional Court’s assessment

of recreational marijuana use emphasized that such use is not within this inner core and as

such was not worthy of protection, independent of other constitutional implications94.

Both courts were reluctant to extend constitutional protection to conduct that,

although of great importance to some individuals, is generally not fundamental to life in

the same sense as other characteristics/activity that receive constitutional protection. That

said, it is interesting that the German Constitutional Court’s refusal to provide protection

for recreational use of marijuana was subtly different from the Canadian approach, in that

the former court emphasized the “numerous direct and indirect consequences for

society”95 in refusing to provide constitutional protection. The German Constitutional

Court went a step further than the Supreme Court of Canada and noted that the right to

free development of personality will not protect activity which gives rise to certain

“direct and indirect consequences for society.”96 This extra step of analysis may have

been necessary for the German Court, as Article 2(1) of the Basic Law has occasionally

been read in a very broad manner by the Court, which has even gone as far as to provide

protection to activities such as horseback riding through the forest and pigeon feeding97.

On the other hand, the Supreme Court of Canada may not have found it necessary

92
Cannabis case, supra note 3 at 171.
93
Ibid. at 171.
94
Ibid.
95
Ibid.
96
Ibid.
97
Cornelius Nestler, “Constitutional Principles, Criminal Law Principles and German Drug Law” (1998) 1 Buff. Crim. L. Rev. 661 at
666.

20
to assess such consequences for society under s. 15, as it has traditionally not been as

generous as the German Constitutional Court in its constitutional protection of various

conduct. This is conveyed in the excerpt below from the majority judgment in Malmo-

Levine:

While we accept Malmo-Levine’s statement that smoking marihuana is central to his

lifestyle, the Constitution cannot be stretched to afford protection to whatever activity an
individual chooses to define as central to his or her lifestyle. One individual chooses to
smoke marihuana; another has an obsessive interest in golf; a third is addicted to gambling.
The appellant Caine invokes a taste for fatty foods. A society that extended constitutional
protection to any and all such lifestyles would be ungovernable. Lifestyle choices of this
order are not, we think, “basic choices going to the core of what it means to enjoy
individual dignity and independence” (Godbout, supra, at para. 66).98

Given this more restrictive reading of activity protected by the Charter it was

unnecessary for the Supreme Court to add the extra layer to its analysis here, as the

German Constitutional Court did. It is interesting to note that the Supreme Court of

Canada almost glibly dismisses the notion of protecting activities such as using marijuana

or playing golf, while the German Constitutional Court has protected pastimes such as

horseback riding and pigeon feeding. Despite the distinction in the mode of analysis of

the two courts, their approach to the question of an individual’s constitutional right to use

marijuana was similar and contributed to the ultimately comparable rulings.

Deference to the Legislature

Another parallel between the decisions in Malmo-Levine and the Cannabis case is

the importance that the majority judgments placed on courts’ deference to the legislature

in developing legislation generally. The majority of both courts noted that insofar as the

impugned legislation is constitutional but possibly unwise, the legislatures were still

owed deference. This is conveyed in the following excerpts, the first from the decision in

98
Malmo-Levine, supra note 2 at para. 86.

21
Malmo-Levine and the second from the Cannabis case:

It is not the courts’ function to reassess the wisdom of validly enacted legislation. As
L’Heureux-Dubé J. said in Hinchey, supra, at para. 34, “the judiciary should not rewrite
[legislation] to suit its own particular conception of what type of conduct can be considered
criminal”. And further, at para. 36: “If Parliament chooses to criminalize conduct which,
notwithstanding Charter scrutiny, appears to be outside of what a judge considers
‘criminal’, there must be a sense of deference to the legislated authority which has
specifically written in these elements.”99

It is essentially for the legislature to determine what sorts of behaviour are to be punishable
in specific cases after due consideration of the specific situation. The Federal Constitutional
Court cannot consider whether the legislature's decision was the very most suitable,
reasonable or just way of solving the problem in issue. The court's role is merely to check
that the substance of the penal provision is compatible with the provisions of the
constitution and accords with the fundamental values of the Basic Law and the unwritten
principles which underlie the constitution (see BVerfGE 80, 244 at 255 which provides
further references on this point).100

It is notable that despite both courts’ emphasis on the importance of deference to

legislature, the majority in each case appeared to exercise that deference in a somewhat

tentative manner. The majorities in both courts acknowledged problems with the

legislation which date back to the initial criminalization, which include a lack of debate

with respect to the criminalization of marijuana101, and the enactment of the law on the

basis of “reckless assertions of fact”102 in a “climate of irrational fear,”103 which led to an

exaggeration of certain harms associated with the substance104. Therefore, the majorities

in both courts express the desire for further research and debate on the criminalization of

marijuana, at the very least, as is illustrated in the following excerpts from Malmo-

Levine:

The Senate and House of Commons Committee Reports are consistent with the conclusions
reached by the courts in British Columbia that, while marihuana is not a “harmless” drug,
nevertheless the degree and extent of harm associated with its use is subject to continuing

99
Ibid. at 211.
100
Cannabis case, supra note 3 at 183.
101
Malmo-Levine, supra note 2 at para. 31.
102
Ibid. at para. 32.
103
Ibid. at para. 32.
104
Cannabis case, supra note 3 at 177.

22
 controversy, as is the wisdom of the present legislative scheme.105

We agree that the effects on an accused person of the criminalization of marihuana

possession are serious. They are the legitimate subject of public controversy. They will
undoubtedly be addressed in parliamentary debate.106

Similarly, the German Constitutional Court made the following comment in the

Cannabis case which suggests that it was not entirely convinced by the legislative

scheme in place:

In the light of the open nature of the debate, both from the perspective of criminal policy
and of scientific research, about the dangers presented by the consumption of Cannabis and
the correct way of combating them (see above under I.2.c and 4), the legislature has a duty
to monitor and check the effects of the laws currently in force, having due regard to
experiences in other countries (see BVerfGE 50, 290 at 335; BVerfGE 56, 54 at 78;
BVerfGE 65, 1 at 55 and following; BVerfGE 88, 203 at 309 and following).107

These excerpts illustrate that despite the majorities in both courts’ deference to the

legislatures there were still some reservations with respect to the wisdom of the

legislation, beyond the constitutional questions in play.

Restraint in Enforcement of Laws Prohibiting Marijuana Possession

In much the same manner that the Canadian and German courts emphasized the

importance of the judgment of their respective legislatures in dealing with marijuana

legislation, both courts also emphasized the significance of relying on the appropriate

exercise of restraint by government prosecutors and courts in enforcing the marijuana

prohibition. In cases in which “the extent of individual culpability and the threat to other

legal interests emanating from the individual act may be petty,”108 such as possession of

small amounts of marijuana for personal use, both courts comment that prosecutions and

sentences must not be excessive. The majority in both courts relied on this restraint to

105
Malmo-Levine, supra note 2 at para. 60.
106
Ibid. at para. 173.
107
Cannabis case, supra note 3 at 194.
108
Cannabis case, supra note 3 at 187.

23
legitimize the legislation in their respective states, as is conveyed in the following excerpt

from the majority’s decision in Malmo-Levine:

In practice, most first offenders are given a conditional discharge. Imprisonment is

generally reserved for situations that also involve trafficking or hard drugs. Except in very
exceptional circumstances, imprisonment for simple possession of marihuana would
constitute a demonstrably unfit sentence and, if imposed, would rightly be set aside on
appeal. Availability of imprisonment in a statute that deals with a wide variety of drugs
from opium and heroin to crack and cocaine is not unconstitutional, and its rare imposition
for marihuana offences (as a scheduled drug) can and should be dealt with under ordinary
sentencing principles.109

Correspondingly, the German Constitutional Court emphasized the importance of

the discretion of prosecutors and courts in affirming the constitutionality of the impugned

ITA provisions. A slight distinction can be drawn here, though, in that the principle of

restraint with respect to prosecutions and sentencing for minor marijuana offences in

Germany is actually written into the ITA in ss. 29(1) and 31a, as outlined above. With

respect to these provisions, the German Constitutional Court remarked that “the decision

of the legislature to take account of the diminished wrongfulness and culpability of

certain acts primarily by limiting the obligation to prosecute is compatible with the

constitution.”110

Once again, the dissenting opinions in Malmo-Levine are noteworthy and equally

applicable to the reasoning in the Cannabis case, in terms of issues arising from the

reliance on the properly exercised discretion of prosecutors and judges. In his dissent, Mr.

Justice LeBel acknowledged the factual scenario referenced by the majority above with

respect to prosecutions, but follows through in his analysis to particular implications of

this rationale with respect to constitutionality, as conveyed in the following excerpt:

Few people appear to be jailed for simple possession but the law remains on the books.
The reluctance to enforce it to the extent of actually jailing people for the offence of
simple possession seems consistent with the perception that the law, as it stands, amounts
109
Malmo-Levine, supra note 2 at para. 10.
110
Cannabis case, supra note 3 at 191.

24
 to some sort of legislative overreach to the apprehended problems associated with
marihuana consumption. Moreover, besides the availability of jail as a punishment, the
enforcement of the law has tarred hundreds of thousands of Canadians with the stigma of a
criminal record. They have had to bear the burden of the consequences of such criminal
records as Arbour J. points out. The fundamental liberty interest has been infringed by the
adoption and implementation of a legislative response which is disproportionate to the
societal problems at issue. It is thus arbitrary and in breach of s. 7 of the Charter.111

Furthermore, the dissenting opinion of Madam Justice Deschamps discussed the

argument (which is, again, equally applicable to both Canada and Germany) that the

reluctance to enforce the law in many cases may be problematic given the message that it

may send to the individuals. She notes that, given the issues outlined by Mr. Justice

LeBel above, there are issues with respect to the legitimacy of the law, and by enforcing

it the state may lose credibility112. Moreover, she states that the consequence of this is that

“[c]itizens become inclined not to take the criminal justice system seriously and lose

confidence in the administration of justice.”113

Additionally, it is notable that this inclination on behalf of some citizens to lose

faith in the criminal justice system may be exacerbated by the inconsistent application of

the law. Although not acknowledged in Malmo-Levine, it has been noted that there is a

great deal of unpredictability in the enforcement of the marijuana provisions in the NCA.

This is highlighted in the following statement by a former communications director for

the Canadian Ministry of Justice: “There has been a huge inconsistency in the application

of the law – whether you’re caught with a joint in a small rural community or downtown

Vancouver, you’ll get [a different] reaction from the police.”114 Similarly, the German

Constitutional Court acknowledged potential problems with respect to the inconsistency

of the application of the impugned legislation in the following excerpt:

111
Malmo-Levine, supra note 2 at para. 280.
112
Ibid. at para 290.
113
Ibid.
114
Becky Branford, “Canada’s growing marijuana problem” BBC News (March 20, 2006)
<http://news.bbc.co.uk/2/hi/americas/4620272.stm> (Accessed: November 28, 2010).

25
 …it would be a cause for concern if, after the introduction of s 31a, the widely divergent
attitudes to discontinuation of proceedings in the different States of the Federation which
were identified in the report of the Federal Government for the years 1985 to 1987
[reference omitted] should persist. Differing approaches have been noted, particularly with
respect to the decision as to what constitutes a "small amount" of the drug.115

It can be seen, then, that in both Canada and Germany there are certain issues associated

with the reliance on reasonable exercise of discretion by those tasked with enforcing the

marijuana possession provisions in the NCA and ITA, respectively. Despite these issues,

however, discretion in the enforcement of the legislative provisions is a fundamental

element of the decisions by the majority in both Courts.

Protection of Vulnerable Groups

In addition to the similar approach taken by the Canadian and German courts with

respect to marijuana use vis-à-vis core rights, deference to the legislature, and the

exercise of restraint in enforcing the law, both courts also emphasized the centrality in the

impugned legislation of protection of vulnerable groups. In Malmo-Levine, the majority

of the Supreme Court emphasized that the “psychoactive and health effects can be

harmful”116 in particular for vulnerable individuals such as pregnant women, adolescents

with a history of poor school performance, and individuals with certain pre-existing

conditions such as respiratory diseases and schizophrenia117. The majority of the Court

noted that the protection of such individuals who are more susceptible to harm from

marijuana is within the “broad legislative scope conferred on Parliament,”118 even if the

115
Cannabis case, supra note 3 at 190.
116
Malmo-Levine, supra note 2 at para. 61.
117
Ibid. at para. 135.
118
Ibid. at para. 3.

26
majority of Canadians are not confronted with the same potential for harm. Likewise, the

German Constitutional Court emphasized the importance in the criminalization of

marijuana for protecting those who are “particularly vulnerable to drug-taking because of

their psychological tendencies”119 as well as the young and chronic users120.

Although the protection of the individuals classified as vulnerable is certainly a

laudable goal, the implications for the rest of the population are controversial. The

controversy in this approach was effectively captured and criticized in a strong dissent by

Madam Justice Arbour in Malmo-Levine. Her comments in the following excerpt are

apposite to the issue:

…the fact that some vulnerable people may harm themselves by using marihuana is not a
sufficient justification to send other members of the population to jail for engaging in that
activity. In other words, the state cannot prevent the general population, under threat of
imprisonment, from engaging in conduct that is harmless to them, on the basis that other,
more vulnerable persons may harm themselves if they engage in it, particularly if one
accepts that imprisonment would be inappropriate for the targeted vulnerable groups. I
agree with Packer that to justify imprisonment of both vulnerable persons and other
members of the population on that basis would create a society in which “all are safe but
none is free” (Packer, supra, at p. 65).121

The majority in Malmo-Levine dismissed this argument as “too broadly stated”122 and the

German Constitutional Court’s ruling suggests it would likely have done the same, but it

seems a fairly thought provoking contention and is, therefore, worthy of note.

Moreover, Madam Justice Arbour’s observations also inspired reminiscence on

the comments by Aharon Barak, the former President of the Supreme Court of Israel,

during the intensive sessions for Constitutional Courts and Constitutional Rights.

Although the foregoing analysis is a comparison between Canada and Germany

exclusively, President Barak’s comment may be too appropriate to exclude. In discussing

119
Cannabis case, supra note 3 at 176.
120
Ibid. at 186.
121
Malmo-Levine, supra note 2 at para. 258.
122
Ibid. at para. 166.

27
the state’s limitation of the liberties of its citizens in order to protect a vulnerable group,

President Barak referred to the ability of a state to reduce highway speed limits to a

particularly low number, such as 10 km/hour. Of course, the likely effect of this would be

to greatly decrease motor vehicle fatalities by accommodating for those who are poor

drivers or those who drive at excessive speeds. He emphasized, however, that in a liberal

democracy such as Israel, such legislation would be repugnant, given its consequences

for the liberty of citizens. This logic is applicable to the legislation in question in Canada

and Germany given that both of these states are liberal democracies like Israel. Moreover,

the argument is applicable given that the laws canvassed in Malmo-Levine and the

Cannabis case are apparently aimed at protecting relatively small vulnerable groups but

they have consequences for the liberty of the populations more generally.

Conclusion
In Malmo-Levine and the Cannabis case, the Supreme Court of Canada and the

German Constitutional Court, respectively, analyzed controversial constitutional issues

related to the criminalization of marijuana possession. The two decisions can be

distinguished in a number of ways, including the varied application of the proportionality

analysis by the Canadian and German Courts, as well as the emphasis that the latter

placed on international commitments in assessing the constitutionality of the impugned

legislation. A number of commonalities can be found in both decisions, though, including

the majorities’ treatment of marijuana use as an activity which falls outside the sphere of

constitutional protection, the importance placed by both courts on deference of the

legislature and restraint with respect to enforcement of the legislation in question, and the

28
centrality of the laws’ protection of vulnerable groups. These similarities contributed to

the essentially identical rulings in both Malmo-Levine and the Cannabis case. The insight

that can be drawn from an assessment of both these similarities and the differences in the

Canadian and German courts’ rulings are illustrative of the beneficial nature of

comparative constitutional law, in that it allows a better reflection on the domestic state

of affairs. In this case, as is clearly implied above, this contemplation has led to a critical

perspective on the domestic marijuana legislation and a certain degree of optimism that

the legislation may still change. After all, the prohibition of marijuana has evolved

considerably, from a time when hard labour and whipping were potential punishments123

for simple possession, to the current state of affairs and there is arguably room for much

further improvement.

123
Ibid. at para. 35.

29
APPENDIX
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982 c. 11.

Section 1

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out
in it subject only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.

Section 7

Everyone has the right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental justice.

Section 15(1)

Every individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour, religion, sex, age or
mental or physical disability.

Basic Law for the Federal Republic of Germany, 23 May 1949, (Federal Law Gazette,
p. 1)(BGBl III 100-1)

Article 2 [Personal freedoms]

(1) Every person shall have the right to free development of his personality insofar as he
does not violate the rights of others or offend against the constitutional order or the moral
law.

(2) Every person shall have the right to life and physical integrity. Freedom of the person
shall be inviolable. These rights may be interfered with only pursuant to a law.

Article 3 [Equality before the law]

(1) All persons shall be equal before the law.

(2) Men and women shall have equal rights. The state shall promote the actual
implementation of equal rights for women and men and take steps to eliminate
disadvantages that now exist.

30
(3) No person shall be favored or disfavored because of sex, parentage, race, language,
homeland and origin, faith, or religious or political opinions. No person shall be
disfavored because of disability.

Article 25 [International law and federal law]

The general rules of international law shall be an integral part of federal law. They shall
take precedence over the laws and directly create rights and duties for the inhabitants of
the federal territory.

31
BIBLIOGRAPHY

JURISPRUDENCE

Bundesverfassungsgericht (Federal Constitutional Court), Second Senate, decision of 9

March 1994, BVerfGE 90, 145 [the Cannabis case], Translation Accessed at:
<http://www.iuscomp.org/gla/judgments/bverfg/v940309.htm>.

R. v. Malmo-Levine/R. v. Caine, [2003] 3 S.C.R. 571, 2003 SCC 74.

Suresh v. Canada (Minister of Citizenship and Immigration), 1 S.C.R. 3, 2002 SCC 1.

LEGISLATION/CONSTITUTIONAL DOCUMENTS

Canadian Charter of Rights and Freedoms, s. 15, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11.

Basic Law for the Federal Republic of Germany (Grundgesetz, GG) 23 May 1949,
(Federal Law Gazette, p. 1)(BGBl III 100-1)

SECONDARY SOURCES

Branford, Becky “Canada’s growing marijuana problem” BBC News (March 20, 2006)
<http://news.bbc.co.uk/2/hi/americas/4620272.stm> (Accessed: November 28,
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the Senate Special Committee on Illegal Drugs (Toronto: University of Toronto
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<http://www.canada.com/topics/news/story.html?id=3e1b7647-05e9-4adb-ac75-
533e74345e41> (Accessed December 4, 2010).

Isralowitz, Richard, ed. Drug problems: cross-cultural policy and program development
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Khoo, Lisa “Up in Smoke? Canada’s marijuana law and the debate over
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32
Kommers, Donald P. The Constitutional Jurisprudence of the Federal Republic of
Germany, Second Edition (London: Duke University Press, 1997).

Nestler, Cornelius “Constitutional Principles, Criminal Law Principles and German Drug
Law” (1998) 1 Buff. Crim. L. Rev. 661.

Reuband, Karl-Heinz “Evolution des modes de consommation des drogues et effets

limites des politiques penales: les cas de l’Allemagne” (2008) Déviance et Société
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Rubin, Vera ed. Cannabis and Culture (The Hague: Adine, 1976).

33