3 min

Presumed dangerous

If our top judges don't like pot, they won't like sex either

Credit: Xtra files

Just before Christmas the Supreme Court Of Canada ruled that this country’s marijuana laws are just fine, thank you very much. In a 6-3 split decision, the court said Parliament is entitled under the Canadian Charter Of Rights And Freedoms to criminalize the trafficking and use of drugs.

As disappointing as the ruling is for legions of pot smokers, the judgment also gives us a taste of how the court will deal with sex issues, if a bathhouse, swingers’ club or prostitution case were to come before it.

That taste, sad to say, is a bitter one. If the court looks like a welcoming friend when it comes to equality issues like same-sex marriage, it’s not showing any interest at all in increasing our civil liberties. As much as we’d like to think that sex and drugs have become issues of personal choice and health, they’re still moral issues in the minds of most of Canada’s top judges. And the government still has the power to force that morality upon us.

Not only did the court majority declare that marijuana is harmful to society, it also ruled that it doesn’t matter whether it’s harmful. If you thought the law was in place to protect Canadians from harm, you’re wrong.

“Several instances of crimes that do not cause harm to others are found in the Criminal Code,” wrote the majority. “Cannibalism is an offence that does not harm another sentient being, but that is nevertheless prohibited on the basis of fundamental social and ethical considerations. Bestiality and cruelty to animals are examples of crimes that rest on their offensiveness to deeply held social values” rather than the principle of harm. (Please don’t tell your pet that the Supreme Court doesn’t consider setting dear kitty on fire to be harmful.)

Incest, consensual duelling and assisted suicide are also given as examples of activities that are not necessarily harmful, but properly forbidden.

Instead of harm, the court relies on the vaguer notion of societal consensus and societal interest. As long as most Canadians believe something to be bad, it can be prohibited, even if most Canadians are ill-informed and prejudiced.

Gay and lesbian people have won many court battles in the last couple of decades, not because courts have sanctioned our sexual and romantic behaviour, but because courts have classified homosexuality as a kind of ethnicity under the Charter. We’re protected from discrimination not because we have gay and lesbian sex, but because we are gay and lesbian people. To give us that basic equality doesn’t require societal consensus.

But equality is not freedom, a distinction the Supreme Court makes perfectly clear in the pot ruling.

“[T]he 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 marijuana; another has an obsessive interest in golf; a third is addicted to gambling,” wrote the court. “A society that extended constitutional protection to any and all such lifestyles would be ungovernable.”

If a test of harm is applied, the judges here sound like hysteric Cassandras. The obsessive golfer would presumably be punished for hitting his balls through others’ windows, but if he can afford to golf 24/7, we let him. Why not the midnight toker or the orgy-goer? As our society already successfully juggles a panoply of values, it seems the Supreme Court majority has a distaste only for new or marginal ones.

Now that gay and lesbian people have for the most part been given legal equality, it looks increasingly unlikely the courts will respect the values gay men and lesbians develop and bring to society through leading open lives. The value of not being ashamed of sex. The value of sexual exploration. The value of intense friendships that can exceed family bonds. Are these merely lifestyle choices like incest, dope-smoking and cannibalism? If the Goliath bathhouse raid makes it to the Supreme Court, we might find that gay promiscuity isn’t much different from consensual duelling – because there is no societal consensus affirming it.

Or perhaps our previous experience before the Supreme Court on other queer issues will have taught the justices that the person and the lifestyle are not so easily separated.

Too bad the potheads didn’t have all the courtroom practice we’ve had.

* Paul Gallant is Xtra’s managing editor.