David vs. Goliath

Marijuana activist David Malmo-Levine at a protest outside the Vancouver Art Gallery. David faces prison time for his role in the Vancouver Herb School, where he was arrested and charged with possession of illegal herbs for the purposes of trafficking. (Photo by Jeremiah Vandermeer)Marijuana activist David Malmo-Levine at a protest outside the Vancouver Art Gallery. David faces prison time for his role in the Vancouver Herb School, where he was arrested and charged with possession of illegal herbs for the purposes of trafficking. (Photo by Jeremiah Vandermeer)David Malmo-Levine has been fighting a giant.

For three days at the beginning of October, the prominent Vancouver pot activist waged a valiant battle at his sentencing hearing in a B.C. Provincial Courtroom against Crown prosecutors who would like to see him behind bars. The long arm of Canadian law tried to put David in a sleeper hold – with prosecutors asking the judge to sentence him to one year in prison for the crime of possessing illegal herbs for the purposes of trafficking.

David’s charges stem from the operation of an activist organization called The Vancouver School of Drugwar History and Organic Cultivation, better known as the Herb School. The organization started in 2005 as a provider of educational Drug War History Walking Tours in downtown Vancouver, and eventually became a place to purchase high-quality herbs in a safe and clean environment. The School was located at 123A East Hastings St., next door to Insite, North America’s first legal supervised injection site.

On February 20, 2008, police raided the Herb School and arrested David and four of his coworkers, seizing $42,500 worth of marijuana and hashish (about 4.5 kilos), 196 grams of magic mushrooms, 7 grams of opium, and $5000 in cash. David agreed to plead guilty to the charges, in part to allow his co-accused to have their charges stayed.

Though David is facing real jail time, he did not apologize for his actions and beg the court for mercy. He didn’t tell the judge he was a changed man, and plead for forgiveness. He refused to cower at the feet of the giant, and instead puffed-up his chest and took aim at his adversary.

At first, as I sat in the Courtroom and watched him fight, I wasn’t sure exactly who his enemy was. But what became clear over the course of the three-day hearing was that David’s beastly foe wasn’t the government prosecution team, the judge, the police, or even the pending jail term. The true target of the activist’s unrelenting barrage of detailed factual evidence and historical information was Drug Prohibition itself.

The Hearing

Crown prosecutors used most of the morning of Wednesday, September 30 attempting to paint David Malmo-Levine as a reckless drug dealer with little respect for the safety of his customers or the community.

Government attorney Peter Eckels told Judge Joseph Galati that David’s actions in the operation of his “ongoing commercial enterprise” were “motivated by profit”. Eckels said David had been “breaking the law daily for years and years”, and questioned the activist nature of the Herb school. “It’s questionable how educational it could have been,” he said.

The Crown laid out the basis of their case against David, and described how police officers began collecting information about the Herb School in early 2008. The court learned undercover police officers watching the Herb School in the days before the raid counted 346 customers entering and leaving over a three-day period. According to police, one customer got into his car after exiting the School and rolled a joint before driving away smoking, and another customer was a mother who brought her small child into the school in a stroller – two points Eckels highlighted in an effort to characterize the Herb School as “dangerous”. “The possibility for violence of someone stealing was certainly there,” he told the judge.

Eckels told the court the government was asking for a one-year sentence. He claimed the high-volume business at the School “must have been very lucrative”, and said, “David’s own disregard for the law and intention to continue to disregard the law” were aggravating factors in the case. He brought up David’s three prior convictions for marijuana possession with the intention of trafficking, and said that David would be very likely to re-offend. Asking for the forfeiture of all items seized in the raid, Eckels said The Crown felt a “general deterrence and denunciation is needed in this case”.

One piece of evidence submitted by The Crown seemed to indicate that there was something more to this story that didn’t quite fall in line with the government’s interpretation of events. Undercover police officers dressed as construction workers who attempted to purchase marijuana from the Herb School indicated they were turned away after refusing to go on the Drug War Walking Tour. Evidently, taking The Tour was a prerequisite for acceptance as a customer – those who couldn’t answer a few trivia questions about information presented on The Tour were not allowed to buy herbs.

“It proved that our focus was not on making money,” David told me when I interviewed him about the hearing for Cannabis Culture. “If our focus was about making money we wouldn’t have forced people to take a one-hour tour out of their busy lives, and turn customers away who were ready to give us money for cannabis. Something was more important than the money.”

David eloquently explained these facts to Judge Galati, and described how all of the profits made from the business were spent on employee wages, renovations and maintenance of the School – and the rest on activism.

He then laid-out in great detail his belief that the prohibition of drugs is more harmful than drugs themselves, when used responsibly. David told the judge how a “mis-education campaign” and blatant racism initially led to the prohibition of herbs, and how government and private enterprise have sustained a savage war on the public, while ignoring all common sense and scientific evidence on the subject.

As he took the Judge on a virtual Walking Tour and explained the significance of each location, he exposed the immense hypocrisy of the Drug War and displayed his near-encyclopedic knowledge of prohibition, herbs, and the history of Vancouver. In a brilliant performance, David explained how the Herb School was reducing harm by helping people obtain good quality herbs at a fair price to deal with their stress, depression, and fatigue while encouraging people to stay away from more toxic drugs such as alcohol, tobacco, cocaine, heroin, and caffeine. The School was a re-education campaign to teach the public about the benefits and healing properties of herbs, a necessary act of civil disobedience used as a last resort after all other methods of activism had failed.

In 2003, David went to the Supreme Court of Canada with a constitutional challenge of the criminalization of marijuana. At the heart of the case was another organization started by David called The Harm Reduction Club, which openly sold marijuana to customers who took a pledge to use the herb responsibly.

“I used the same argument that recently won in the Argentina Supreme Court” David told me. “That is, if you use cannabis properly you’re not harming anybody, and if you grow it and deal it properly you’re not harming anybody – and harmless people should be protected. It worked in Argentina, but it didn’t work in the Supreme Court of Canada. […] The court agreed that a harm-reduction principle exists for cannabis, but that cannabis users are similar to cannibals, people who abuse animals, pimps and people who partake in incest – not quite harmful, not quite harmless, still up for debate and therefore left up to parliament. ”

David thought this explanation went against all logic and failed to answer his questions put to the court.

“I felt cheated, and I thought giving up would be giving them a victory they didn’t earn”, David told me. “So I decided to set up a historical educational campaign: The Drug War History Walking Tour. The Herb School started as a storage area to put my filing cabinets and a place up a little display on the walls to illustrate what I was talking about on the tour – and that got to be very popular. In order to pay the rent and finance the tour, I started selling weed on the side. I didn’t see any problem with selling weed as the Supreme Court hadn’t bothered to explain what was wrong with it, even though I begged them to do so.”

David also explained how the government of Canada had for too long ignored important studies like the Le Dain Commission and the 2002 Report from the Senate Special Commitee on Illegal Drugs, which call for the legalization of cannabis.

The judge heard about David’s life as a marijuana activist in Edmonton, and how he was brought to Vancouver by Prince of Pot Marc Emery, becoming an employee of Cannabis Culture and Pot-TV, as well as publishing his own magazine called Potshot. He also heard how on the day of the Herb School raid, The Herb Party had just been granted official party status by the government. David also presented a letter of support from Conservative Senator Pierre Claud Nolen.

“I wanted to offer my community some hope, and I couldn’t do that by telling people to write more letters,” David told the judge. We were tired of the black market violence. […] The greater of the risks was to do nothing and wait for our rulers to free us.”

David defended his actions at The Herb School, describing how he gave much-needed jobs to unemployed members of the community and made sure that only people 18-years and older could become customers, unless they had written and face-to-face consent of a parent.

Throughout the first day, the judge seemed to respond positively to David, asking him to elaborate on several points and giving him ample time to explain himself in full.

On the second day of the hearing, David and his attorney Natalie Dunbar called expert witness Dr. Lester Grinspoon, Associate Professor Emeritus of Psychiatry at Harvard Medical School. Grinspoon is the author of several books about drugs, including Marijuana Reconsidered and Psychedelic Drugs Reconsidered, and provided information on just about every aspect of cannabis imaginable: it’s history of use in western medicine, its medical dangers (of which there are very few), a history of propaganda associated with cannabis and pharmaceutical companies, dosage levels, comparisons to other cannabis medications, effect while driving, effect on sexual experience and much more.

Grinspoon made note that there are no recorded overdose deaths from marijuana, saying, “[cannabis is]less toxic than most of the things we get over the counter.”

By the end of Grinspoon’s testimony, it was clear that Judge Galati was enjoying himself. He had laughed several times at jokes made by David and Dr. Grinspoon, and seemed to be listening intently to the large amount of information provided.

As the second day come to a close, crown prosecutor Eckels seemed to slightly annoy the judge as he repeatedly compared cannabis users to members of the North American Man/Boy Love Association. Eckels called David a “zealot” and reiterated the Crown’s recommendation of a year-long sentence before the Judge adjourned for the day.

On the third day, David presented his impassioned final remarks (available in-full below), proposing three different sentencing options and discuss their predictable outcomes.

1. The ‘Crown Option’ – one year in jail: “If someone sincerely believes that it is a greater risk to do nothing or get stuck doing ineffective things than to use the time-honored and effective weapon of civil disobedience to change things, jail sentences will not alter their behavior,” David said. “You CAN alter the behavior of such a person with facts that prove that person is wrong … but so far no Crown Council and no Judge has attempted to engage this defendant and prove this defendant wrong despite being given many opportunities to do so. In reality, this defendant is going to continue to do whatever the defendant feels is most effective to fight this injustice of cannabis prohibition.”

2. The ‘Malmo-Levine Option’: “This option would be to not ignore public opinion, not ignore Senator Nolen or the Senate Report of 2002, not ignore the testimony of Dr. Grinspoon, not ignore the nearly criminal negligence of every Canadian Government since 1972 in ignoring expert opinion recommending legalization and instead choosing to do something that almost no Canadian in a position of power and responsibility is willing or able to do – send out a message of drug peace and give the defendant a suspended sentence.”

3. The ‘Dunbar Option’: “This option is the conditional sentence option, perhaps combined with some form of community service, perhaps museum-related or drugwar walking tour related or harm-reduction education related. This option is what the defendant’s council has advised he ask for.”

After David’s remarks, the judge thanked him for making the last three days “interesting”. Judge Galati will reveal his sentencing decision on October 28, 2009.

I spoke with David’s lawyer, Natalie Dunbar, shortly after the hearing adjourned on the third day, and she was mostly positive about the outcome.

“I think things ended fairly well,” she said. “I think the judge acknowledged that this was a unique situation. David did a very good job at showing the judge he’s an otherwise law-abiding, intelligent individual who has chosen to act because he has no other choice. The judge is really, really going to have to think now about what he wants to do.”

David also felt positive about the hearing and is hoping for the best.

“A good precedent could be set here,” he said. “The Judge could find that cannabis is medicine for the healthy. The Judge could find that the prohibition of cannabis does more harm than using cannabis. If we do get one of those good decisions were going to point to it and say other people should use it in their trials and sentencing hearings – if we get a bad decision, we will appeal it.”

Watch David’s Pot-TV show High Society about the Herb School: Part 1 | Part 2 | Part 3 | Part 4 | Part 5


David Malmo-Levine’s Final Remarks

Speaking to sentence – October 2, 2009 – Judge Joseph Galati – Vancouver Provincial Court – 222 Main St., Vancouver, BC, Canada

Your Honor,

The defendant would first like to thank you for giving him the three days instead of the usual one day, and allowing him to cross examine his witness, allowing Dr. Grinspoon’s magic mushroom evidence to be entered, allowing the defendant the time to say what he needs to say, and allowing him the time to get his thoughts in order for today. By giving him the opportunity to speak his truth you do justice a great service. You have been very flexible and I thank you for it.

Secondly I would like to provide for you the correct quote and the correct source of that quote I mentioned earlier:
“Laws do not persuade just because they threaten.” — Seneca, roman philosopher, statesman and dramatist who was a contemporary of Jesus Christ.

I would like to now propose three different sentencing options and discuss the predictable outcomes of those options.
The first option is what I will call the “Crown option”. This option involves jail.

If you choose this first option you will choose to believe what the Crown said, which is that the defendant is a greedy zealot, pretending to be interested in education but who is actually primarily interested in money, who believes without facts or reason that dealing herbs properly is relatively harmless and who rejects everything that doesn’t conform to his world view, that the defendant doesn’t understand that civil disobedience is unnecessary to make progress with drug law reform, that the defendant doesn’t understand the difference between the mitigation of harm and the elimination of harm or the difference between a storefront and a Compassion Club, and that to allow the defendant to escape punishment is to invite NAMBLA to use this case as a springboard for their agenda.

So if you choose to believe all that and choose to jail the defendant, let us all stop for one moment and meditate on what effect that would that have on the defendant and on the movement and on society in general.

Is a jail sentence likely to alter the defendant’s behavior? The defendant sincerely believes that the survival of the human race is threatened by three major problems: 1) an ever-increasing reduction of civil liberties combined with a slow advancement of a police-state combined with a forced assimilation of those who prefer herbs and/or those who value medicinal autonomy – a forced assimilation of all people on earth into a race of obedient, unquestioning livestock, 2) an environmental and oil-war related crisis brought about mainly by the use of fossil fuels instead of bio-fuels including hemp ethanol which the defendant believes is the best and cheapest crop for replacing gasoline, and 3) the poverty that comes with a medicinal economy geared towards monopoly and patentable medicines rather than wealth-sharing from a free market in cheaper, safer and more effective herbs.

The defendant sincerely feels that the re-legalization of cannabis is a key solution to all three of these problems. It is his life goal to help re-legalize cannabis, end the war on drugs and re-introduce the proper cultivation and use of all herbs – including cannabis, coca leaves and opium poppies – in order to preserve human autonomy, end the oil and drug wars globally and spread the riches of the fuel and medicine economies around to tens of millions of farmers and gardeners and herbalists and dispensaries and pot cafes all over the world.

You can’t alter the behavior of a person who believes all that with a jail sentence. You can’t even alter the behavior of a person who believes that with a death sentence. Somebody with a sincere belief that forced assimilation and police states and oil wars and climate change and poverty and being poisoned by pharmaceuticals are all more dangerous than jail will not be deterred by any punishment. If someone sincerely believes that it is a greater risk to do nothing or get stuck doing ineffective things than to use the time-honored and effective weapon of civil disobedience to change things, jail sentences will not alter their behavior. You CAN alter the behavior of such a person with facts that prove that person is wrong … but so far no Crown Council and no Judge has attempted to engage this defendant and prove this defendant wrong despite being given many opportunities to do so. In reality, this defendant is going to continue to do whatever the defendant feels is most effective to fight this injustice of cannabis prohibition.

How do we know for sure cannabis prohibition is an injustice? The crown contends that there are experts on both sides of the issue. That’s true. Given an unlimited budget and enough days in court both the Crown and the defendant could find dozens of experts to say all sorts of things about whether or not cannabis harms are a function of the drug itself or whether they are prohibition and ignorance related, whether they are inherent or whether they are mitigatable to sub-caffeine abuse levels. That’s why we have Royal Commissions and Senate Reports – to wade through all the experts and weigh all the facts and come to some sort of conclusion as a society, and the LeDain Commission and the Senate Report are the two best examples of that happening and they both say that we need to legalize cannabis. It was in the Senator’s statement that these reports were the most comprehensive reports on the subject in Canadian history and they were both completely ignored without any reason given whatsoever. The Crown has nothing to say about these reports or the Senator’s statement. For that reason we can safely say that cannabis prohibition is an injustice.

The defendant will draw the court’s attention to Rielle Capler’s statement regarding the Senate Report on page two of tab one of the defendant’s materials. According to Dr. Kalant – the Crown’s expert witness – there are cases of caffeine overdose on record but no cases of cannabis overdose. For that reason we can safely say that cannabis prohibition is an injustice.

The defendant will draw the court’s attention to paragraph 7 of Senator Nolen’s statement, where the Senator points out that cannabis prohibition causes many harms: 1) use and abuse are confused, 2) effective programs to minimize problematic use are shunned in favor of unrealistic programs that focus on abstinence only, 3) health costs rise due to ignorance of cannabis harm-reduction techniques and of an absence of quality control, 4) users are forced to deal with criminal networks, 5) the human rights of Canadians – mainly young Canadians – are infringed, 6) the price of cannabis is artificially increased, 7) criminals are offered billions of dollars – tax free, 8) the law is disrespected, 9) black market violence occurs, and 10) billions of dollars are wasted on enforcement.

The Crown is silent when it comes to these ten concerns of the Senator. For these ten reasons we can safely say that cannabis prohibition is an injustice.

If this court buys into the Crown’s position and jails Mr. Malmo-Levine for opposing this injustice then it can be said – in a way – that this court becomes complicit in that injustice.

Incidentally, public opinion on cannabis – despite the Crown’s argument – is not confused by misleading poll questions or disreputable polling organizations. If one types “Angus Reid” “cannabis” and “legalization” into Google one will find that every single source says the same thing – 53% of Canadians favor legalization and 64% of British Columbians favor legalization. Angus Reid is the most respected polling firm in Canada and the word they used in their question was “legalization”, not “decriminalization”.

By jailing the defendant, the court is sending the message to the community that the court doesn’t care about public opinion, that the courts don’t care that the government has been ignoring LeDain for 37 years, the court doesn’t care that the Senate Rerport has been ignored for 7 years, the court doesn’t care about all the harms that cannabis prohibition causes or that the Crown’s own expert says that the cannabis overdoses are unheard of but caffeine overdoses exist. The defendant believes that jailing the defendant sends the wrong message to the Canadian community.

And what message does jailing the defendant send to the cannabis community? According to Health Canada 43.9% of Canadians have tried cannabis and 11.4% have used it in the past year. According to the Center for Addiction Research of BC, 52% of those in BC have used cannabis in their lifetimes, and 17% have used cannabis in the past year. Jailing the defendant sends the message to the millions of Cannabis Canadians that there is no hope. It’s a message that says the government isn’t going to help you, the courts are not going to help you, you should ignore the science, Forget about LeDain and the Senate Report and just … just give up smoking cannabis and start drinking alcohol instead, or trade in your intelligent preference for cannabis for something more lethal like caffeine. Or if you can’t do that, just wait until the police get around to arresting you.

It seems self evident to the defendant that unless someone in a position of power does something that reflects the science or public opinion and does it soon, the drug war is going to become worse and worse. Jailing the defendant will embolden the Conservative Party members who wish to push through the mandatory minimums and the Liberal Party members who wish to “widen the net” with a system of fines called “decriminalization”. Jailing the defendant will embolden the conservative elements within the progressive parties such as the NDP and the Green that wish to slow the momentum within those parties to work towards drug-law reform. The police will get better at finding growers or more powers to search the public. Employers and schools will get more power to conduct urine tests. Slowly but surely, the drug war will get worse and worse until everyone who grows and retails cannabis will be in jail and everyone who uses it will be fined out of using it or if they continue to use it they will be forced into treatment or if they refuse treatment will be thrown in jail too. The defendant sees a time in the not too distant future when the only legal cannabis products will be sold by big pharmaceutical companies and all the compassion clubs will be shut down because of the smoke-a-phobia which is a by-product of the drug war. The defendant even sees a time when the United Nations develops some sort of biological fungus that attacks cannabis plants and/or poppy plants and/or coca plants and manages to eradicate these herbs from planet earth. Operation “Herbicide” on a global scale.

That’s what the police called the raid on the Herb School – “Operation Herbicide” – as if they didn’t notice the irony of attacking non-toxic, non-carcinogenic herbs with such a toxic, carcinogenic metaphor.

If one Googles the words “United Nations” and “Drug Free World” one will arrive at the plans of the United Nations herbal prohibitionists to wipe the coca, opium and cannabis community off the face of the earth. If one Google’s the 1951 Convention on Genocide one can find out that one of the symptoms of genocide that allows for protection under the treaty is if there is any evidence of “Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;” – that’s exactly what the UN plans to do with the cannabis, poppy and coca communities.

There’s even reason to believe that institutions like the Codex Alimentarius will one day criminalize all medicinal herbs, even the Grape Fruit Seed Extract that Your Honor’s wife recommends for Your Honor’s colds, sore throats and sniffles. If Your Honor doesn’t stand up and do something on behalf of the herbal activists, Your Honor may one day wake up and find out he too is now a herbal criminal.

But the defendant doesn’t believe that this court wants to go down that road. The defendant doesn’t believe that the court will go down that road. The defendant doesn’t believe this court finds the Crown’s arguments very convincing.

For example, the court can choose to give little weight to the opinion of the Crown regarding the supposed “greed” of the defendant in light of the facts of the matter: The defendant told prospective customers including the undercover police officers to take a hike if they were not prepared to take the drugwar history walking tour. The defendant worked with and employed 14 full time and 22 part time employees. The defendant kept no money for himself other than what he needed to live. The defendant sunk all the profits back into the movement. The Crown doesn’t dispute this information and just calls the defendant “greedy” without even attempting to prove the point. There are lawyers in this room that make far more money than any of those who worked at the Herb School. The truly greedy people in this situation are the big pharmaceutical corporations who use their money, power and influence to warp the science – as Dr. Grinspoon testified – so that they can make hundreds of billions of dollars selling ineffective, expensive and dangerous pills instead of having to compete with cheap, safe and effective herbs.

The court can also choose to give little weight to the opinion of the Crown regarding the supposed zealotry of the defendant in light of the facts. The definition of “zealot” is a violent religious fanatic who possesses so much zeal that they are irrational. The defendant admits to possessing zeal but that does not make him a zealot. The defendant isn’t violent. The defendant isn’t religious. The defendant isn’t irrational or fanatical in his approach to debate – the undisputed evidence is that the defendant invites debate but is never engaged – not by the supreme court or even by the Crown, who failed to challenge the defendant on any of his herbal or drugwar related beliefs and chose instead to focus on the supposed greed of the defendant. In fact, given the Crown’s desire to keep bringing up the NAMBLA comparison even after the Court has deemed it irrelevant indicates it is the Crown, not the defendant, who exhibits irrationality.

The court can choose to give little weight to the opinion of the Crown that civil disobedience is not necessary to be effective at drug law reform and instead focus on the uncontested facts of the matter – the fact that the Senator pointed to the government’s ignoring the science for 37 years and ignoring the Senate’s recommendations to legalize cannabis sales for the last 7 years, or the fact that Mr. Dana Larsen had first hand personal experience with the irrationality found within all major political parties in Canada. Consider also the fact that the only examples of progress in the battle for drug peace are 1) the legalization of industrial hemp, 2) the Canadian court’s recognition of medicinal marijuana and 3) the Supervised Injection Site – all of which came into reality as a direct result of acts of civil disobedience. There would be no legal hemp industry if it wasn’t for Brian Taylor growing it without permission in 1994 and then getting voted in as Mayor. There would be no medicinal marijuana program in 1999 if it wasn’t for the Compassion Clubs opening up in 1995. And the official Insite program would not exist today if it wasn’t for the unofficial supervised injection site. If obedience results in no significant gains and disobedience is the only thing that works, what does the court expect re-legalization activists to attempt in the future?
Contrary to the Crown’s assertion that the defendant doesn’t understand the difference between harm mitigation and harm elimination, the defendant believes he testified that he could not eliminate all harm from cannabis abuse through teaching proper use but rather reduce cannabis abuse harms to a tolerable level – a level similar to the caffeine abuse levels currently tolerated in Canada today.

Contrary to the Crown’s assertions that the defendant doesn’t understand the difference between a Compassion Club and a pot store – the defendant maintains that he does: the difference is that a Compassion Club is a civilly disobedient cannabis retail organization which focuses on the issue of medical necessity and the Herb School was a civilly disobedient cannabis retail organization which focuses on the issue of medicinal choice for healthy people and harm reduction for those who wish to avoid hard drugs and black-market problems. Some native North American Indian people define medicine as “things that are good” – the defendant agrees and would draw the court’s attention to the many advantages of having a definition of medicine that is not so narrow as to exclude something that may help the patient get well or stay well. The Webster definition of “recreation” is “to restore to health” – perhaps the court could consider that recreation is a subset of medicine – recreation could be another word for a type of “preventive medicine”.

On the topic of magic mushrooms it appears to the defendant that the Crown and the defendant are in agreement. The greatest danger to those who desire to use magic mushrooms is to go out looking for the mushrooms themselves, getting the wrong mushroom and dying as a result. This reality is all the more reason to have a legal place to go to buy mushrooms that one can reasonably expect to be the non-lethal kind – such as the mushrooms found at the Herb School. Dr. Grinspoon testified that the psilocybin mushrooms found at the Herb School were non-toxic and not lethal and beneficial in that they assisted the user to become one with the universe – is this a tool that we should risk eliminating from human experience?

The Crown maintains that the defendant didn’t need to sell illegal herbs to be a herbal activist. The defendant responds that there was no better way to demonstrate the advantages of strain selection and quality control and a safe point of sale than to engage in direct action. According to the Crown the first time the police became involved with the Herb School was January of 2008. That means that the Herb School operated without any police-worthy problems for over 3 years. One could only prove that dealing herbs is not a problem by demonstrating the fact.

Finally, the Crown keeps bringing up NAMBLA as if the court agreeing with some or all of the defendant’s argument would result in legalized child molestation the very next day. As the defendant pointed out before, unlike the cannabis community which is a large minority of well respected people, and unlike the cannabis related crimes which are not considered crimes by a majority of Canadians, the sanctuary of childhood is respected and actively defended by all but a handful of loathsome people, at least in the Western world. And when you go beyond the absurdity of the comparison and stop and think about it for a second, which situation provides more of an opportunity to molest children – a licensed cannabis café or herb school that requires face to face and written permission to sell to teens, or the back-alley or crack-house style cannabis marketplace that comes with the black market?

The defendant strongly believes that the rest of the Crown’s arguments were about as persuasive as the NAMBLA argument.
The second sentencing option is what the defendant calls the “Malmo-Levine” option. This option would be to not ignore public opinion, not ignore Senator Nolen or the Senate Report of 2002, not ignore the testimony of Dr. Grinspoon, not ignore the nearly criminal negligence of every Canadian Government since 1972 in ignoring expert opinion recommending legalization and instead choosing to do something that almost no Canadian in a position of power and responsibility is willing or able to do – send out a message of drug peace and give the defendant a suspended sentence.

When you ignore how utterly outrageous this request appears to be on the surface and examine it in light of the principles of sentencing, it’s not so radical. The principles of sentencing are proportionality, parity and restraint.

Proportionality means that “the punishment should fit the crime”. Proportionality is found in section 718.1 of the Criminal Code, where it says that “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” The term “gravity” encompasses three concepts: harm, potential harm and degree of culpability.

The Crown has failed to provide even a shred of evidence that the crime was one with a victim. Everything in his affidavit of Dr. Kalant involved a problem of cannabis that was ignorance-related or prohibition-related rather than an inherent problem of proper cannabis use. Nothing in the affidavit of Dr. Kalant suggests any harms that are greater than the harms tolerated by Canadian society caused by the use of caffeine. Dr. Kalant even suggests that caffeine risks are greater than cannabis risks, so the defendant need not be punished any more than a manager of a Starbucks need be punished. Dr. Grinspoon felt that a pot café was the right distribution system for cannabis so long as there were restrictions regarding teenagers, and the defendant created a distribution model with age restrictions in place. The Crown was challenged to provide convincing evidence of harm in this matter and has failed in that respect.

“Culpability” is defined as “blameworthiness”. In one sense the defendant is totally to blame for his actions. He understood that there were legal arguments for and against what he was doing. He understood that there were consequences. He understood that while there were risks that came with doing nothing and risks that came with doing things totally proven to be ineffective, there were also risks that came with inventing new methods of civil disobedience. And the defendant is prepared to take the blame.

What the defendant did not understand was that the defense of necessity is not open to someone who has pled guilty. It seems rational on the surface that one could say “I’m guilty of what you accuse me of” and then say “I was forced to commit that crime because I had no reasonable alternative” and for those two statements to not to contradict each other. If there is case law on the subject of how necessity cannot be applied to the principles of sentencing the defendant would appreciate the court putting that in it’s decision. If there is no case law governing necessity during sentencing the defendant would appreciate the court setting a precident in favor of allowing such an argument, or at the very least considering the Senator’s statement and Mr. Larsen’s statement and the defendant’s testimony regarding the origins of the supervised injection site as a mitigating circumstance on the defendants culpability.

Parity is the principle of comparing this case to other cases. I know of no other place similar to the Herb School, it was totally unique. The defendant knows of no other cannabis dealers who opened up an educational organization that sold illegal herbs and allowed them to be consumed in a safe atmosphere next to a supervised injection site that allowed illegal drugs to be consumed in a safe atmosphere.

The principle of restraint declares that “an offender should not be deprived of liberty if less restrictive alternatives may be appropriate in the circumstances”. There has been little talk of a fear of harm to the community in the defendant’s case, instead the discussion has focused upon “recidivism” – the likelihood that the defendant will commit the same offence again.

The defendant is unwilling to renounce civil disobedience itself due to the glaring fact that it seems like the only tool the public has available to put pressure on the government to do the right thing. Civil disobedience was a component of almost every major advancement of human evolution for the past 150 years, be it the abolitionists or the suffragettes or the civil rights or anti war or environmental or the modern day human rights and social justice movements. The reason so many turn to civil disobedience is that often nothing else works. When effective legal means of righting wrongs are finally introduced into society, the defendant has no doubt that civil disobedience will be voluntarily abandoned and the defendant will be among the first to do so.

However, the defendant is willing to provide the court with some assurance that the defendant will not open up another Herb School. When the defendant opened up the Harm Reduction Club in 1996, he did so believing that the totally open “in your face” approach should at least be attempted by someone with regards to cannabis retail activism for the use of cannabis medicine by healthy people. As soon as a judge ordered him to stop dealing cannabis the defendant did stop (on the occasion of the second – not the first – of the two trafficking offences), and did not breach either of his conditional sentences. While he was working his way up to the Supreme Court of Canada many people – including some members of government and police officers – had indicated that a subtle approach would be better received by the community. The defendant noticed the successes of the supervised injection site activists and the cannabis seed sellers who took a less “in your face” approach to civil disobedience, he came to the conclusion that the subtle approach may succeed where the blatant approach failed. The defendant set up the Harm Reduction Club as a blatant approach. The defendant set up the Herb School as a subtle approach. Now he sees that neither approach has been particularly effective.

Another reason to believe there will be no recidivism on top of the “tried it once and it wasn’t effective” argument is that, so far, no other person has been physically harmed or convicted of a crime as a result of the defendant’s actions, and the defendant wants to keep it that way. The defendant is determined not to hurt others in his efforts to prevent the drugwar from hurting others – and that includes recklessly subjecting others to a situation where they would be likely arrested. The defendant has demonstrated that one can operate a store selling cannabis, mushrooms, botanical DMT and small amounts of opium for over three years without causing harm or attracting police attention and doesn’t feel the need to demonstrate that again.

The last reason for suspecting there will be no recidivism is that conducting such an operation is very, very expensive. The defendant is in debt as a result of the raid and will be for quite some time – probably four of five years. His financial backers are unlikely to invest such money in any similar projects in the future. The defendant has a herb museum and an art gallery and wants to attempt to make them viable businesses without any lawbreaking connected with it that might threaten their existence. While unable to make comments to the court that could be construed as renouncing civil disobedience, the defendant is willing to admit that the arrest, confiscation of the herbs and money and the threat of the confiscation of the museum and art gallery make it highly unlikely that the defendant will be back before the courts any time in the future. Perhaps being a herb museum curator will allow the defendant to make enough of a difference in altering the collective conscience so that future disobedience is unnecessary. The defendant is willing to give that approach an honest try.

The defendant understands what amazing luck he has had to be in front of Your Honor. The defendant has read about other cases that have been in front of Your Honor, for example the 11 month sentence for manslaughter given out to Xiao Zhang in 2007 or the 10 years in prison given to Donald Bakker for sexual assault and child sex tourism. The defendant agrees with Your Honor in those cases, and is struck by your wording in the Bakker case, that “Right-thinking members of society must be outraged.” To connect reason and justice in that way speaks of a respect for natural justice, which is where one needs to go for inspiration in unique circumstances such as the ones before Your Honor today.

The defendant believes that right-thinking members of society were not outraged at the Herb School – it couldn’t have lasted for over three years without being brought to the attention of the police if it were otherwise. It is therefore also safe to assume right-thinking members of society would not be outraged at a suspended sentence in this case. If Your Honor is as offended as the defendant in the irresponsibility of the various Canadian governments and the parliamentary process in responding to the LeDain Commission or the Senate Report, it is within the court’s power to even make a finding of fact that activists could use in other cases such as the fact that all cannabis use has a medicinal element – even the use by healthy people, and that the harms that come with cannabis prohibition are so severe and the harms that come with proper cannabis use are so minimal that civil disobedience – under certain circumstances – is warranted. Given the fact that the Crown has requested the money seized by the police becomes forfeited, it seems that it is within the court’s power to deny that request and return the defendant’s stolen property – the stolen money and perhaps even the stolen herbs – to him. The defendant understands it’s a long-shot but believes it never hurts to ask. There are millions of cannabis users in Canada and hundreds of millions of users around the world who need some hope. They see their homes forfeited and their lives destroyed and their leaders extradited and their spokespeople jailed. They need someone – anyone – in a position of power to care about them and speak up for them and send a signal that they are not totally and completely abandoned by all that wield authority. The defendant is getting old and isn’t very healthy anymore and is unlikely to provide the court with an opportunity to send such a message again – but the court could definitely choose to do such a thing in this case.

The third and final option before the court is called the Dunbar option, named after my learned colleague. This option is the conditional sentence option, perhaps combined with some form of community service, perhaps museum-related or drugwar walking tour related or harm-reduction education related. This option is what the defendant’s council has advised he ask for – the half-way between the incarceration of the Crown option and the suspended sentence and favorable findings and “returned money and herbs” of the Malmo-Levine option. While not creating a lot of hope, it does leave a little bit of hope left – maybe just enough for the movement to survive and reinvent itself again. The defendant would be most appreciative to the court for finding a solution that did not involve something relatively harmful in response to something relatively harmless. If the harm principle cannot exist officially, maybe it can exist unofficially, hidden within the mercy, the proportionality, the parity and the restraint that are the principles of sentencing.

Unless there are any questions – and please Your Honor, if you still have any questions, concerns or doubts please don’t do what the Supreme Court did and withhold them until you return with your decision, please provide them now where the defendant has a fair and just opportunity to address them – unless you have any questions, concerns or doubts, those are my respectful submissions.

Comments

3 Comments

  1. BG on

    I wouldn’t expect much from the court…. but , wow. If the judge chooses to disregard reason , sense and science , he will only make an ass of himself and everyone above him.

  2. Anonymous on

    I have become cynical, myself. David’s unwaivering hope and idealism makes me misty-eyed.

  3. museummouse on

    Brilliant piece Jeremiah, David’s argument is going to be hard for the judge to ignore, its air-tight!