For those who know me, you know I’ve had some legal problems recently. You can read all about them here:
This isn’t the first time I have been to court. Back in 2003 I went to the Supreme Court of Canada self-represented on cannabis trafficking charges stemming from an operation called the “Harm Reduction Club”. You can read more about the HRC in the following links:
I think it’s a good time to look at what happened back in 2003, what I tried to do and what I learned from that attempt – especially since it appears that the Argentinian Supreme Court legalized possession of cannabis using arguments similar to the ones I used at the Canadian Supreme Court:
“The BBC reports that Argentine Supreme Court President Ricardo Lorenzetti said, “The state cannot establish morality,” and that private behavior is legal “as long as it doesn’t constitute clear danger.” ”
Below you will find 3 things: 1) my speech to the Supreme Court, 2) the tiny bit of back and forth in the final argument, and 3) my response to their decision. Hopefully other activists can learn from this experience.
1) ARGUMENT OF THE APPELLANT, David Malmo-Levine, Appearing in Person
MR. DAVID MALMO-LEVINE: Justices of the Supreme Court of Canada, my name is David Malmo-Levine. I consider myself a justice and freedom activist.
I’m part of a growing number of such activists, who view cannabis re-legalization as a key part of protecting human rights and our Mother Earth, while, at the same time, helping to end war and poverty.
As you can see, I’m not a lawyer. I am, however, a cannabis user and a researcher, and I would like very much to be a cannabis retailer and perhaps grow a few plants.
My case differs from the others in that I’m here primarily to articulate the rights of cannabis users and growers and retailers, under both s.7 and s.15, of the Constitution.
I wish to use the evidence of harm reduction, found in Caine and Malmo-Levine, to shift the debate from whether cannabis’ harms are trivial to whether cannabis’ harms are mitigatable, for lack of a better term.
I will keep my focus to the Court’s jurisdiction, to the unconstitutionality of decriminalization, to harm reduction and its relation to the harm principle, and to autonomy, the burden of proof, equality and monopoly.
But, first, a little bit about the Harm Reduction Club, the group of about 1,800 people in Vancouver who helped me to get here before you.
Turning to page 1, of my factum, under adjudicative facts, on page 1, you will see a brief description of the Harm Reduction Club, a club which was created to educate users and the general public about marijuana and to provide unadulterated marijuana to its users, at club cost.
Lower down on that page, you can see that, even Sergeant Dion, the police’s expert on marijuana, felt that we “offered methods to reduce the harm from any marijuana use” and that we were a “consumer-oriented venture”, following a “well-established cultural tradition” of cannabis smoking in Vancouver.
Notice how both of my parents and my apartment manager testified to their support of the club.
In my submission, the evidence of harm reduction methods, recognized as such by the police’s cannabis expert, aside from the evidence of cultural traditions and community support, is enough to warrant s.7 protection.
Turning now to page – page 3, of my factum, the jurisdiction argument, I note that Canadian politicians have backed away from promises to ease up on cannabis users since the LeDain Commission came out in 1973.
I’d like to spend a little time to put this statement into perspective, as I believe that the Crown is still attempting to argue that it is not the business of the Supreme Court to be active in the jurisdiction of Parliament.
In my submission, the history of the government’s chronic A motivation syndrome, with respect to easing up on us, the cannabis community, is a powerful argument against this Court passing the buck back to Parliament.
As you can see, from volume I, page 88, of this Appellant’s record, the history of this government’s broken cannabis promises reads like a dark comedy.
Let’s see. I mention fines as one of the replacement punishments that the government has in store for us, on page 6, of my factum. Decriminalization to Ottawa means replacing one punishment with another.
This is somewhat good news for those smokers who can afford to pay the fine, but most Canadians, including myself, will end up going to jail for unpaid fines. The U.S. ambassador has recently endorsed the proposed decriminalization because it increases the likelihood of punishment.
The current version of decriminalization being floated by the Prime Minister does nothing to ease up on pot growers and dealers. The duty to strike down a law is placed upon the Court when a government ignores a comprehensive and intelligent and unanimous Senate Report, calling for regulated sales. It is especially true after 33 years of broken promises of easing up.
Mr. Conroy, on page 15, of his factum, argues that making cannabis use legal, while dealing remained illegal, would be consistent with other Canadian laws, such as our approach to prostitution, but the Canadian approach to prostitution, selective enforcement and refusing to work with prostitutes to make reasonable recommendations together, still results in too many dead prostitutes, as Vancouver has recently rediscovered.
Like current Canadian laws that prevent a police-patrolled, red-light zone or any other model that minimizes the risk to the trade, any type of law against the proper use, cultivation and distribution of cannabis, including any fine, is a paternalistic, over-broad denial of autonomy that, in most cases, makes – makes mistakes, a risk to self as a harm to others, doing little, if anything, to address initial risk concerns, concerns creates and/or exacerbated by the prohibition, concerns that could be addressed in other ways.
Those who stand in the way of licensed brothels do not associate their own actions with prostitutes being dug up at a pig farm near Vancouver, but there is a cause/effect relationship there.
Those who fight back against cannabis cafés do not associate their position with the many black-market harms associated with cannabis, but the black market needs prohibition to survive, even if it is in the form of decriminalization.
Many of the European countries have rejected this paternalistic attitude, in favour of more realistic harm-reduction approaches, like cannabis cafés and regulated prostitution.
There are no pig farms full of des – dead prostitutes in Holland because they choose to address the risks, instead of ignoring them. The Dutch avoid a moralistic prohibition or a wink, wink, look the other way policy, favouring instead a few reasonable regulations.
John Stuart Mill would not have approved of the idea of fines or any other punishment for cannabis crimes. That can direct you to my book of authorities, tab 14, page 13. Mill said that he was not only against the compelling of someone to do something for their own good. Mill was also against “visiting him with any evil in case they do otherwise”.
In my submission, fines for harmless behaviours are exactly the type of evil that Mill was referring to. Found in Mill’s On Liberty specifically, the second half of page 15, at tab 14, of this Appellant’s book of authorities, exists a list of political rights found in our Constitution: thought, belief, opinion, expression, association, assembly.
In the very same paragraph, Mill spoke of our non-political rights, our rights to tastes and pursuits, the right to do any harmless activity, alone or in groups, in my submission, to be true to the liberty found in our Constitution, a liberty founded on Mill.
We need our political liberties, but we also need our medical liberty and our personal autonomy, our orientations, our hobbies, our tastes and our pursuits. We need those liberties right now before Canada and the rest of the world turns into one big prison like the U. has – like the United States of America has become.
Jumping back to page 5, of this Appellant’s factum, you can see the one key factor, that came out of my trial, that the Appellant wishes to stress:
“There, in fact, are no harmful effects of marijuana on others or society that can’t be reduced in some way through reasonable regulation.”
That’s in my book of appeals, volume I, page 106 and page 186.
In my respectful submission, the fact that all harms are mitigatable is very, very important to recognize. This Appellant has been denied his right to call experts, in exchange for having that fact recognized.
This Court must not use the excuse that you can’t begin to discuss dealing until you’re done looking at possession, as the lower courts have done. To see the harm-reduction evidence ignored again and again, it feels like an unfair trial.
In my submission, evidence of cannabis harm reduction is ignored in Canadian courts in much the same way as medical marijuana is ignored in American courts because the moment that this Court recognizes the existence of harm – of cannabis harm reduction, then by virtue of the harm principle being a part of s.7 and, arguably, s.15 as well, the growing dealing and using of marijuana become protected activities because these activities are harmless when done properly.
There is plenty of evidence before this Court of cannabis harm reduction. Let us now review this evidence. Turning to pages 8 to 10, of this Appellant’s factum, in Stockdale v. Hansard, Lord Denman repeated the ancient Latin maxim:
“No valid conclusion as to the use of a thing can be drawn from its abuse.”
And, in On Liberty, John Stuart Mill wrote:
“– the class of dealers in strong drinks, though interested in their abuse, are indispensably required for the sake of their legitimate use.”
And I noticed that that last quote had tied the harm principle and dealing – dealing drinks, but dealing drugs – together.
Arab doctors of the 12th century advised that eating cannabis helps against sorrow if you eat a little.
The 16th century Chinese master herbalist, Li Shizhen, explained that:
“– ‘hallucinations and an unsteady gait’ come through the immoderate use of cannabis.”
And see also this Appellant’s book of authorities, volume I, tab 19, for the – one of those references. The others are in my factum.
Casanova once said
“In wise hands, poison is medicine. In foolish hands, medicine is poison.”
Now, this is true of – of cannabis, even more so than any other drug, because cannabis makes a lousy poison, very difficult, if not impossible, to kill yourself with through overdose.
More recently still, the 1997 World Health Organization Report on cannabis pointed to “dose”:
“– mode of administration, physiological and pharmacological differences, complexity of performance tasks, situational demands during testing, and the prior drug experience of the subject – ”
as factors involved in proper cannabis use.
As can be found in this Appellant’s speech to the trial judge, supplemental record, pages 87 and 88, I testified that harm reduction meant education, quality control and a safe point of sale.
I testified that education meant teaching about the hazards of prohibition, but also about smarter smoking methods and that smarter smoking meant focussing on the following factors: dose, mindset, setting, strain, quality, potency, smoke cooling, clean ignition and clean mode of administration.
We, at the Harm Reduction Club, taught users how to look for signs of chemical fertilizers and pesticides or mould or other contaminants that may cause – cause them respiratory illness.
Dr. Morgan, one of the experts in Caine, defines harm reduction as “helping drug users minimize the dangers to themselves without mandating that they stop using drugs.
In Caine, Dr. Beyerstein, Dr. Morgan and Dr. Connelly and Dr. Kalant all testified to the existence of cannabis harm reduction. Dr. Morgan, Dr. Connelly and Dr. Kalant testified that impairment was primarily dose related.
Dr. Beyerstein and Dr. Connelly both testified that risk from smoke can be mitigated in some way, with Dr. Morgan suggesting very wisely that smoking less volume of more potent cannabis, given the non-toxic nature of the cannabinoids and given the universal tendency to self-titrate, would result in less heated plant matter per dose than – and, as a result, less stress on lungs, not that there’s much to begin with.
These harm reduction bits of evidence are found at the trial transcripts in Caine. For Dr. Beyerstein, on November 27th, 1995; for Dr. Morgan , on January 27th, 1997; for Dr. Connelly, January 27th, 1997; and for Dr. Kalant, January 31st, 1997.
In her decision in Caine, her Honour Judge Howard wrote:
“Naive users should be careful of they choose to smoke and should do so with experienced users and in an appropriate setting.”
Justice Braidwood quotes Justice Howard, in Caine, where he pointed out that it is the prohibition of marijuana that creates an artificial “lack of government al control over the quality of the drug on the market”.
Justice Braidwood mentions the Ouimet Report and its recommendations that:
“– no conduct should be defined as criminal unless it represents a serious threat to society and unless the acts cannot be dealt with through other social or legal means.”
Justice Braidwood then quotes two other reports, the Law Reform Commission Report and the Criminal Law in Canada Soc – Canadian Society Report, which say more or less the same thing.
And, at – and, at this point, I’d like to direct you to Mr. Conroy’s arguments regarding state interest and overbreadth, as I believe that this is an extension of the Ouimet argument that these matters can be addressed through other means, these concerns – these legitimate concerns of soc – of society can be addressed in other ways.
Highlighting the role of education in cannabis harm reduction, the 1991 judgment of the German Regional Court, heretofore called the Loubec decision, stated:
“In view of the relatively limited dangers of cannabis products involved, a suitable program of education and interesting is sufficient to deal with them, and in a less drastic measure.”
In my submission, the above dozen or so quotes, regarding cannabis harm reduction, should be enough to convince any reasonable person of its existence. These quotes are enough evidence to end the debate over whether the harms that may come with cannabis are significant or trivial.
In my submission, the harms that may come with cannabis are anything mitigatable and they are mitigatable to well below the level of the trivial. If we choose to look at cannabis use without understanding the difference between black market use and a regulated market, we risk, once again, assessing cannabis harms incorrectly, basing our conclusions only on the effects of unregulated distribution and uneducated use. If re-legalized, cannabis could, once again, be re-regulated to mitigate harm.
According to Emily Murphy, Canada’s first prohibitionist, cannabis is like a flame, a flame from a black candle, and we are all moths undeniably drawn to it, destined to be burned by it.
But many others see cannabis differently, not as a crime or a vice or a sin. Even of you reject this Appellant’s evidence on tab 22, of his book of authorities, regarding the time slow performance enhancing effects, or Mr. Arvay’s evidence, mentioned on page 7, of the British Columbia CLA factum, that it is a medicine, used by healthy people for thousands of years, for heightened awareness, or Dr. Connelly’s testimony, given on the 27th of January, 1997, that cannabis is a performance enhancer for the young; you must admit, from all of the reports all over the world, including those mentioned at tab 19, of my book of – of authorities, that cannabis is a substance associated with relaxation and euphoria, and these are good things in and of themselves.
We are allowed to use other herbs, even prescription drugs, for these purposes. Why not cannabis? The cannabis plant is not sinful, not evil and, while it is not inherently harmless, neither is it inherently harmful or even relatively harmful. Like all plants, cannabis is a tool that we can all easily learn to use properly. As it is confirmed in the evidence found in all three challenges, cannabis is a tool for stress, depression and fatigue, loss of appetite, lack of sleep or motivation or inspiration or focus.
And, in my submission, it is time that the human race evolved to accommodate our innate, natural tendency to self-medicate with herbs for minor, day-to-day, preventative medicine and performance enhancement reasons.
We allow the same self-medication autonomy for another soft drug, caffeine. Why not cannabis? In Caine, Dr. Morgan testified that cannabis was less addicting than caffeine, pointing out that cannabis was considered among the safest, therapeutic agents known.
Dr. Morgan also described the cannabis cafés in Holland as “civilized and polite”. Dr. Peck pointed out that even heavy users of cannabis do not drain society of health care resources. And Dr. Kalant testified that cannabis products are so non-toxic that they have yet to kill anyone, even those who smuggle large amounts of concentrated extracts and have the baggies burst in their bodies. You can’t say that about anything else.
Those – those are again found – Dr. Peck, from the trial transcripts in Caine from March 8, 1996; Dr. Morgan, from January 29, 1997, Dr. Kalant, from January 31, 1997.
Impaired driving and impaired lungs are the two most often cited reasons for cannabis prohibition, and they are both addressed through harm reduction, as, again, you can find in Dr. Morgan, Dr. Connelly and Dr. Kalant’s evidence.
Some of these harm reduction regulations are already in place. Impaired driving is already against the law. That should be suffice – sufficient. Walk a straight line, touch your nose, all those things. In that way, people who are impaired will get stopped, no matter what substances they have in their body. People who aren’t impaired will be allowed to go free, no matter what substance they have in their body, as should be – as it should be.
The – the natural health care products, the Food & Drug Act and organic growing standards are also already in place in Canada, add – addressing many of these concerns, especially with regard to lung damage.
Credible education programs and other safe point-of-sale regulations exist in other countries that could red – reduce risks still further. We saved Holland from German new order. We can learn something from them. We could take advantage of their freedom that they’ve exercised.
Well, that’s the harm reduction side of the argument. Mr. Justices, Madam Justices, Madam Chief Justice, if there is any doubt to any of this argument, if you think I may have missed something, please express it now, or at any time before I leave, when the doubt has a fair chance of being addressed, rather than leave the doubt to your decision as the lower courts have done every time.
Now, I’d like to speak for a moment about the harm principle and autonomy in relation to the harm reduction evidence.
The following quote on autonomy is missing from the Appellant’s factum, but it’s worthy of reexamination. It’s found in Caine and – and, in my case, in the lower courts.
Our right to autonomy is most clearly articulated by Justice La Forest in B(R) v. Children’s Aid Society, in 1995, when, speaking for the majority, she(sic) wrote:
“The individual must be left room for personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance.”
In my submission, if they are, indeed, our own lives, it should not matter if the violation of autonomy is a prohibition of our important activities or of our less important activities. If they’re our own lives – they’re our own lives, period. That’s where it should end.
Referring now to pages 17 to 19, of this Appellant’s factum, in my submission, the harm principle is, indeed, a principle of fundamental justice. It is found in On Liberty and it’s also found in Within Rights – number 4 in rights and number 5 of the Declaration of Rights of Man and Citizen – the French Declaration of the Rights of Man and Citizen.
This principle was found to be a principle of fundamental justice, in the courts below. In the words of Justice Braidwood:
“You don’t go to jail unless there is a potential that your activities will cause harm to others.”
Justice Braidwood specified “harm to others” instead of just harm, recognizing that true freedom requires the right to risk harm to ourselves.
Turning to page 19, of this Appellant’s factum, Justice Stone said much the same thing when he wrote:
“History teaches us there have been but few infringements of personal liberty by the state which have not been justified in the name of righteousness and public good and few which have not been directed, as they are now, at politically helpless minorities.”
I’m not saying that cannabis users are politically helpless, but we certainly have certain – certain obstacles to overcome that other people don’t have to face.
Turning to pages 22 and 23 of this Appellant’s factum, in R v. M.(C.), involving consensual anal sex between young people, the Ontario Court of appeal struck down the offence as contrary to the Charter.
In the decision, it was argued that it is not enough for a government to assert an objective for limiting guaranteed rights under s.1. There must, in my view, also be an underlying, evidentiary basis to port – to support this assertion.
So the new test now, taking into account cannabis harm reduction, should be, in my submission, that you don’t go to jail unless your activities are inherently harmful to others. But on whose shoulders does the burden of proof rest?
Some of the following discussion on burden of proof is missing from my factum, but it relates to pages 17 to 22 and it grows from the – the discussion on the harm principle.
Dr. Neil Boyd testified, on November 28, 1995, in Caine, that there was no evidence of a public health problem in 1923 when cannabis was first criminalized. From the introduction to the – 1989 Cambridge edition of On Liberty, we have the following quote:
“His principle puts the burden of proof on those who propose to restrict the liberty of others.”
That’s from my book of authorities, volume 1, tab 14, page xvii. Mill recognized that there was, and there would be, constant attempts – constant attempts by the Legislative or the Executive of direct interference with private conduct and the controlling of “individuals, in the things in which they have not hitherto been accustomed to be controlled”. That’s from my book of authorities, volume 1, tab 14, page 12.
It has cost the cannabis community hundreds of thousands of dollars to prove that we are relatively harmless and the scapegoats of tomorrow may not be in possession of such resources.
All of the previous quotes point to the fact that we should not let anyone in this country just point their finger, yell “criminal”, and then lock up, fine or otherwise punish thousands of people. We must heed the words of Justice Robert H. Jackson, of the Nuremberg War Trials, when he said:
“What the world needs now is not to turn one crowd out into the concentration camps and put another crowd in, but to end the concentration camp idea.”
That’s from a book, called “The Road to Nuremberg”, Bradley F. Smith, 1981.
In my submission, to end the concentration camp idea, we need a process that requires a heavy burden of proof of inherent harm to others placed upon the law-makers, not the recently criminalized.
To respect the principle of being presumed innocent until proven guilty, found in Article September 11th of the Universal Declaration of Human Rights and s.September 11th of this Charter, the new test should be that you don’t go to jail if the state has failed to provide evidence that heavily contested activities will cause significant harm to others, even when done properly.
And I’d like to state a bit on monopoly, jumping to page 26 to 28, of my factum. Bouvier’s Law Dictionary includes “The Prohibition of Unfair Monopolies” within its definition of liberty.
In my submission – this is at my book of authorities, tab 21 – in my submission, the anti-monopoly argument is part of the liberty found in s.7, unless you care to ignore Bouvier.
In the Margarine Reference case, the Court found that business had to be protected from monopoly or legislation that was for “protecting those engaged in the dairy industry”, legislation unrelated to “public peace, order, security, health or morality”.
That’s from this Appellant’s book of authorities, tab 10, page 48, immediately after the quote, and also the Respondent’s factum, paragraphs 157 and 161.
In 1946, natural cannabis tinctures were removed from the shelves of pharmacies, only two years after synthetic forms of cannabis were produced. That’s from this Appellant’s book of authorities, volume I, page 189.
In Singh, et al v. Minister of Employment & Immigration, the Court said:
“The right to security of the person means, not only protection of one’s physical integrity but also the provisions of necessaries for its support.”
John Stuart Mill wrote that civilized society should guarantee “the freedom to unite for any purpose not involving harm to others”, the persons combining being – supposed to be of full age and not forced or deceived. This could easily be said of the harm reduction club and most cannabis dealers.
Again, I direct you to this Appellant’s book of authorities, volume I, tab 14, page 16.
In my submission, the war on cannabis is a war on a viable agricultural economy, in effect, causing poverty by withdrawing wealth from a labour intensive agricultural industry and concentrating it in a capital intensitive(sic) chemical industry. Every beggar I pass by on the street reminds me of this reality.
If our rulers are truly serious about concerns over our health, they will allow us the chance to produce Mother Nature’s finest cash crop so that we can all finally put some good food in the pantry with a little vacation fund left over.
Now, finally, returning back to pages 22 to 26 of my factum, Issue of Equality, in my submission, the harm principle also applies to s.15, protecting groups of people whose common experience is not so much the disadvantage that they have suffered, nor is it that the characteristics are deeply held, it is that they are all not considered inherently harmful to others.
So, for example, you wouldn’t add pirates to the list because pirates are inherently a group of inherently harmful people, but any group of people who are not inherently harmful should be added to that list in s.15, as soon as – as soon as they – they request it. We want as long a list as possible, not as short a list as necessary, if we’re serious about – about avoiding persecution.
“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 upon race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”
In my submission, a natural preference to, or taste for, herbs is a substance orientation. Is this is not similar to an enumerated ground, such as religion, a philosophical orientation or a recognized, analogous ground, a sexual orientation as – as in Brant?
Similarly, why shouldn’t a person, wishing to choose a vocation – a pursuit, such as a cannabis farmer or cannabis breeder or cannabis café owner, who wishes to compete on a fair playing field with the other substance providers, such as the cultivators and distributors of alcohol, tobacco, pills or coffee products – why cannot the cannabis café operators receive a vocation orientation protection?
Equality, liberty, the right of intoxication, the right to relaxation and well-being and the usefulness of education to deal with the limited dangers of cannabis were all proudly proclaimed as arguments in favour of the re-legalization of personal amounts of cannabis in the Loubec decision.
Two years later, the higher Court threw out this decision by misidentifying the state interest, shifting the focus of the trial from abuse reduction to demand reduction, and then dismissed the effectiveness of education on use rates.
The Crown, in the cases before you, have also chosen to see the state interest as being concerned with the preventing use instead of preventing abuse.
I refer you to Caine miscellaneous authorities, tab 1, pages 8 to 10, 15 and 31; also R. v. Malmo-Levine, speech to the Court of Appeal, paragraph 46, and the Respondent’s factum, paragraphs 117 and 123.
In the Loubec decision, it was written that the laws against cannabis possession were:
“…a contravention of the principle of equality before the law on the grounds that alcohol and nicotine are not included in the schedule.”
The Court considers that it has been established that alcohol and nicotine are clearly more dangerous, that cannabis products – than – clearly more dangerous than cannabis products.
Although smoking cannabis can lead to lung damage, this is insignificant when compared to the real damage caused by smoking tobacco products. I direct you, again, to Caine miscellaneous authorities, tab 1, page 8.
In my submission, Loubec’s equality component also protects growers and dealers. If alcohol and tobacco dealers can be regulated, why can’t pot dealers be regulated also? In my submission, what is true for substance orientation is also true for sexual orientation.
While it is true that both cannabis use and anal sex may be moderately risky, they are also both acceptably risky and, if done properly, harmless. The connection between both groups of harmless, hedonistic deviants is made clear when the ruling, in R v. M.(C.) is read aloud. It could very well be about young people using cannabis.
“It strikes me as decidedly inappropriate to deal with health risks, at any age, by using the punitive force of the Criminal Code, but especially so for young people. Health risks ought to be dealt with by the health care system.”
That’s at this Appellant’s book of authorities, tab 8, pages 121 and 122.
Iacobucci – Justice Iacobucci and Justice Cory, in Brant, and, again, with Justice McLachlin and – Chief Justice McLachlin and Justice Iacobucci, in Corbière, outlined the standard for inclusion in sec – s.15 protection.
Apparently, the test is that one must be in possession of a “historical, social, political and economic disadvantage”, suff – suffered because one is in possession of a “deeply personal characteristic that it’s either unchangeable or changeable only at unacceptable, personal cost”.
That’s at this Appellant’s book of authorities, tab 13, page 424, and the Respondent’s factum, page 51.
If one was inclined to meet this test, one might point out that the fact that, in 1991, THC receptors were located in the brain. This might lead us to believe that THC control is a form of self control and that what is seen as inherently pathological addiction is, in fact, attraction, attraction to using our minds and our bodies more effectively. Prohibiting Canadians from using our own THC receptors is an unacceptable personal cost. I direct you to this Appellant’s record, volume I, page 70.
In my submission, the Court has set the standard for s.15 inclusion too high. If it’s a harmless choice, then it doesn’t matter how changeable it is. A line must be drawn and, in my submission, it’s better to protect all the harmless people rather than just the unchangeable ones.
One of the reasons used by the Alberta Cabinet and Legislature members, when declining to protect the sexual orientation of Brant, was the assertion that sexual orientation was a marginal ground. Now, how is this any different from saying that cannabis orientation or preference is changeable or trivial? In every case, the authorities are arguing that the targeted characteristic of the scapegoat is too unimportant to protect.
That, again, I refer you to this Appellant’s book of authorities, tab 13, page 395 and the Respondent’s factum, paragraphs 60, 64 and 100.
If an Appellant argues that a taste or a pursuit is important, as this Appellant has argued, with cannabis use and cannabis growing and cannabis dealing, this should be enough to establish it as important. You should just take our word for it. It’s important, okay. But, even if it is not important, if it’s harmless it should be constitutionally protected.
To conclude, this Appellant asks this Court to strike down all the cannabis laws. In my submission, they are our greatest shame, and being the first country to remove them entirely will be this country’s greatest source of pride for centuries to come.
You may expect some flak from doing this. You might from certain powerful sections of society, but, for the vast majority of people all over the world, who have an innate feeling deep down inside that they should have the right to self-medicate and control their own lives, you will be heroes to these people and you will have support from many strong and powerful sectors of society as well.
This Appellant feels confident that any remaining doubts that you may have can be addressed; for example, the treaty arguments or any of the other arguments that the Crown has. In my submission, this issue is too important to leave any lingering doubts regarding the unconstitutional – unconstitutionality of cannabis prohibition.
And I am sure that myself, or my co-Appellants, can address any of the dozens of excuses that the Crown has, without delay, as soon as possible, to speed up the end of – of the attack on autonomy all over the world, to speed up the end of the mass executions in China and the – the dumping of – of chemicals on Colombia.
At the soonest possible opportunity, this Court must hand down a decision that eliminates the black market harms, associated with black market cannabis use, in growing and dealing. And this Court must protect human autonomy which is, in essence, the freedom to pick and choose our own tastes and pursuits.
Now, unless there are any questions, or any remaining doubts, again, I stress: Don’t leave them for your decision. Please hammer away at me right now, right here, when I have a decent chance and a fair chance of addressing them.
These are my respectful submissions.
CHIEF JUSTICE McLACHLIN: Thank you, Mr. Malmo-Levine.
The Court will rise for its morning recess.
2) REPLY OF THE APPELLANT, David Malmo-Levine, Appearing in Person
MR. DAVID MALMO-LEVINE: Well, I said, at the onset of today, that my
purpose here was to try to shift the debate from whether the harms are
trivial, insignificant, to whether the harms are mitigatable and reducible.
And, apart from perhaps Mr. Conroy, I feel that I have failed in that task.
Nobody here has asked me any questions about harm reduction, either to
verify their existence or to challenge their existence and –
– (voice over voice – off mike) –
CHIEF JUSTICE McLACHLIN: Perhaps we’re all convinced.
MR. DAVID MALMO-LEVINE: Well, I hope so. I really do.
– (laughter) –
Mr. Frankel, though, has a responsibility, and that is that he – he should
not mis-characterize my argument as: there’s not enough harm. It’s not a
matter of enough or – or amount of harm. It’s whether the harms are
inherent or whether they are mitigatable. And that applies to those
vulnerable groups, as well.
I think that Mr. Conroy made an error when he said that I would prohibit
these groups from my club. I wouldn’t and I didn’t. I suggest that the
vulnerable groups, the chronic users, the mentally ill, the pregnant
mothers, and the immature youth, are the ones that need harm reduction the
They need to be protected by the black market harms more than any other
people. And we can address all the concerns that you might have about these
vulnerable groups through harm reduction strategies, harm reduction methods,
and the evidence that – that you heard today.
For example, I started smoking pot when I was fourteen. The black
market was what threatened me. Getting knifed or – or meeting people
who were selling other things. All that. The separation of the hard and
soft drug –
I’m sorry, do you have a question?
CHIEF JUSTICE McLACHLIN: What is your point?
MR. DAVID MALMO-LEVINE: Oh, I’m sorry.
The separation of the hard and soft drug market is what the Dutch claim as
their glaring success. And that is the kinds of harms I wish to protect
vulnerable groups, especially youths in Canada, from.
And – and I believe that a parental permission policy would address all the
concerns that parents and police might have and – and would encourage
dialogue and discussion between parents and youths and the homework
would get done, the lawns would be mowed if some sort of – and,
again, this could fall into s.1. Or – or, say, the mentally ill.
Now, it is my understanding that the schizophrenics and other people at
the compassion club have discovered that, with proper strain selection,
specifically avoiding setivas and focussing mainly on indicas and hashish,
they can avoid some of the unpleasant experiences that have been
characterized as inherent with schizophrenics using cannabis.
A lot of these studies and a lot of the evidence, that they’re basing this
on, is based on marinol, which is just THC and, like I said, the setivas,
which are mostly THC, tend to wing you out, make you a little bit flighty
and – and not good for schizophrenia, but the indicas and the hashish are.
And a lot of schizophrenics and a lot of other people, who are using
cannabis for mental health or mental illness, are dependent upon cannabis
and, if they’re using it properly, there’s no evidence of any harm to them.
Or the pregnant mothers. Do you know that cannabis has been used, from time
immemorial, for nausea, lack of appetite and sleep, relaxation, and
relaxation of the birth canal muscles so there’s no tearing? And perhaps
cannabis is the number one medicine because of its lack of toxicity for
pregnant mothers. So that should be considered.
And I myself am a chronic user. I fall under the definition of chronic
user found in the Senate, over a gram a day. But I think that the
quality of the cannabis, the organics, or whether it’s chemically
fertilized or organically fertilized, and the dose levels, the setting,
these are all factors that differentiate chronic abuse from just chronic
use, like, say, a chronic caffeine user might properly use coffee, but use
it every day.
And – and all of these things that they blame cannabis for, point their
fingers at cannabis harms, would be true for coffee if it was made suddenly
illegal. If – if it was dealt by dark-skinned people a hundred years
ago, perhaps it would be illegal today.
Because, really, that’s the only thing I can see that the opiates in
cannabis and coca have in common. Not that they were more dangerous than
the pharmaceuticals or tobacco or alcohol a hundred years ago. They were
distributed by dark-skinned people and there is some evidence of racism in
the creation and loss.
Now, Justice Curtis originally said: Show us what you’ve got. And I –
I – we did, which was all harms are mitigatable, which is, again, found in
the appeal book, at 106 and 186.
But the lower court ignored this evidence by claiming that there was no
harm principle. The British Columbia Court of Appeal ignored this evidence
by claiming: Well, you can’t deal with dealing unless you first deal with
So, again, I beg this Court: Don’t invent excuses to ignore this huge pile
of evidence on harm reduction. Incorporate the harm reduction evidence into
your decisions on harm and – and – and realize that we’re not –
Okay, I guess my time is up, but we’re not asking, or at least this
Appellant is not asking, for the right of intoxication or the right to smoke
This Appellant is asking for the right to do any harmless activity, any
harm – any activity that the state has been given lots of opportunity to
provide evidence of inherent harm and has failed, year after year, decade
after decade, generation after generation. That’s what we’re arguing for,
the right to do any harmless activities.
CHIEF JUSTICE McLACHLIN: Thank you.
– (voice over voice – off mike) –
MR. JUSTICE BINNIE: Could you just tell me, in your earlier submission,
you made of number of references to the Loubec decision. I don’t find what
you’re referring to.
MR. DAVID MALMO-LEVINE: Yes, it’s in the Caine’s book of miscellaneous
authorities. I do believe that I gave a citation for it. I’ll find it
again for you. The Loubec decision is very important because,
MR. JUSTICE BINNIE: No, no –
MR. DAVID MALMO-LEVINE: – both the harm principle and equality –
MR. JUSTICE BINNIE: – I heard the submissions.
MR. DAVID MALMO-LEVINE: Alright.
MR. JUSTICE BINNIE: I just wanted to find it.
MR. DAVID MALMO-LEVINE: I’ll find you – I’ll find you the citation, sure.
MR. JUSTICE BINNIE: Well, it’s in Caine’s book of authorities, isn’t it?
MR. DAVID MALMO-LEVINE: One moment, please.
CHIEF JUSTICE McLACHLIN: We can find it, if it is –
MR. JUSTICE BINNIE: We will find it if it’s in Caine’s book.
MR. DAVID MALMO-LEVINE: It is in the Caine miscellaneous reports. I did
mention the exact place that it was found. Loubec, Loubec. John, do you
have it handy?
MR. JUSTICE BINNIE: It’s alright. You’ve told us where it is, so I’ll find
MR. DAVID MALMO-LEVINE: It will just take one second. Here we go. Oh,
here. Caine, miscellaneous authorities, tab 1, pages 8 to 10, 15 and 31.
I do again want to stress that it was thrown out at a higher court for the
wrong reasons, a misidentification of state interests.
We’re not concerned in Canada with reducing use levels. We’re only concerned
with reducing abuse levels and I believe that education could probably –
even if use levels go up, abuse levels might go down, if we educate.
CHIEF JUSTICE McLACHLIN: Thank you, Mr. Malmo-Levine.
REPLY OF THE APPELLANT, Victor Eugene Caine, John W. Conroy, Q.C.
MR. JOHN W. CONROY: No mental deterioration there, in my submission.
Chronic user, living, breathing example.
Part of a transcript of Appeal Hearing in Supreme Court of Canada May 6th, 2003 (Word document)
3) David Malmo-Levine’s response to the Supreme Court decision of Dec. 2003
Laws do not persuade just because they threaten. – Seneca, A.D. 65
We, the unpersuaded…
A message to the Supreme Court of Canada, Canadian reporters and Canadian Citizens from Canada’s pot-activist community.
This information was written by David Malmo-Levine, and signed by he and his fellow cannabis activists.
To the Supreme Court of Canada:
We, the unpersuaded cannabis activists of Canada, who have been working part time or full time for over ten years to push Canada towards a more humane and sane cannabis policy, are extremely disappointed in the majority opinion in Caine, Malmo-Levine and Clay. We feel the decision was unpersuasive, unreasonable, and unfair. There are many reasons to feel this way. Here are some major ones in point form:
-It’s easy to dismiss the challenge as a “right to get stoned” or a “lifestyle choice”- which the majority of the Supreme Court did – but it’s harder to dismiss the right to have harmless “tastes and pursuits”. Not once was “tastes and pursuits” mentioned in their decision, despite being the focus of much of the argument.
-Section 7 of the constitution, the section with our “Liberty” or “freedom” rights, was not seen by the Court to protect harmless people. The philosopher most responsible for our constitutional freedoms – John Stuart Mill – was ignored when it came to his suggestion to enshrine “tastes and pursuits” as fundamental to liberty. Mill even argued alcohol “dealers” should be protected by the harm principle, so long as they encourage “legitimate use” and discourage “abuse”. If we got our list of political rights – thought, belief, opinion, expression, association, assembly – from Mill, is our freedom not “incomplete’ if it does not also include his “tastes and pursuits”?
-The majority failed to differentiate between use and abuse. (para. 73)
-The majority put caffeine, chocolate and sugar at risk of prohibition when it wrote that “the control of a ‘psychoactive drug’ that ’causes alteration of mental function’ clearly raises issues of public health and safety”. (para. 77) No effort was made to differentiate between drugs with great risk of harm and those with little risk of harm.
-The majority ruled that a nation with a constitution that protected all harmless “lifestyles” would be “ungovernable” (para.86) – ignoring successful nations such as Holland – which protects all people from discrimination for any reason – in Article 1 of it’s own Constitution.
-The majority ruled that the harm principle was not a principle of fundamental justice, (para. 104) despite being found in Article 4 and 5 of the French “Declaration of the Rights of Man and of Citizen” – the world’s first national Constitution. The Court argued there was no “consensus that the harm principle was the sole justification for criminal prohibition” and that “the state may sometimes be justified in criminalizing conduct that is either not harmful … or that causes harm only to the accused” (para. 115) enshrining both scapegoating and paternalism as constitutional principles in one sentence.
-The majority has put at risk of cultural genocide any group that politicians consider harmful – no proof of harmfulness is required. This puts at risk many popular scapegoats, including the homosexual community, who have recently been accused of leading a “harmful” lifestyle by right wing Canadian politicians – with as little evidence as was produced against the cannabis community. In order to prevent scapegoating and genocide from ever contaminating Canadian soil, we need a constitutional amendment specifically protecting groups “recently criminalized” people and people “under threat of criminalization” from having to prove that they are harmless.
-The call for equality for users, growers and dealers was completely ignored by all judges, apparently because being of a certain religion or sexuality is seen as having an “immutable personal characteristic”, whereas being a “cannabis user” is not considered “immutable” but rather a “lifestyle choice”. (intro. p.7) The call to protect dealers with the harm principle was ignored without comment (intro. p.11) – even by the dissenting judge – even when the judges found that “vulnerable groups” could be protected by dealers who practice harm reduction!
-The most often heard argument in the dissent – the “proportionality” argument (that the benefits of the law are outweighed by it’s drawbacks) was unfairly ignored by the majority. Proportionality was the question that silenced the crown council – even after the Court gave him an unprecedented ten minutes to think about it. The majority then “moved the goal-posts” when they changed the test from “disproportionate” to “gross disproportionate”. All three dissenting Judges hinted at the unfairness of the majority decision as they all pointed to the “disproportionate” benefits to harms of prohibition. Justice Arbour said as much when she wrote “The record shows, and the trial judges found, that the prohibition of simple possession of marijuana attempts to prevent a low quantum of harm to society at a very high cost.” (intro. p.11)
-The majority compared cannabis users to animal abusers and pimps (para. 109) cannibals (para. 117) and those who commit incest (118). Unlike animal abusers, exploiters of vulnerable people and those who desecrate corpses, cannabis users are a large minority of people who produce no identifiable harm. Clearly, the Supreme Court had it out to get us from the beginning. Why else did they ignore comparisons with homosexuals and alcohol dealers in favor of comparisons with those who eat dead people?
There were some small concessions to activists. There were three dissenting opinions:
-In Justice Arbour’s dissent, the principle of paternalism was attacked, as “harm to others” was identified as the problem, whereas “harm to self” was not seen to “satisfy the constitutional requirements” allowing the state to “resort to imprisonment”. Justice Arbour, in essence, argued that Canadians have the right to risk harm to ourselves for non-medical necessity reasons. (intro. p. 9) She wrote “Canadians do not expect to face the prospect of imprisonment whenever they embark on some adventure which involves a possibility of injury to themselves.”(intro. p.10)
-Justice Arbour also recognized “impaired driving” as a separate offense, and the harms from cannabis abuse as “remote and minor”. She found that “Sending vulnerable people to jail to protect them from self-inflicted harm does not respect the harm principle” and that “The state cannot prevent the general population … 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.” (intro, p.10)
-Justice LeBel found that the law was “arbitrary” and “a legislative over-reach”, calling the “consumption” harms “mild” and the “criminalization” harms “plain and important”. (intro, p. 11-12)
-Justice Deschamps found the law arbitrary, over-broad and found “the harm caused by prohibiting marijuana … fundamentally disproportionate to the problems the state seeks to suppress. This harm far outweighs the benefits that prohibition can bring.”
Some good also came out of the majority decision.
-The majority did agree that “careful use can mitigate harmful effects”. This is a major admission that we can protect “vulnerable users” with harm-reduction strategies. They then dismissed this wonderful finding with the words “it is open to parliament to proceed on the grounds that psychoactive drugs will to some extent be misused”. (para. 100) In other words, we may eliminate 99% of all cannabis misuse with education and reasonable regulations, but because some people might still misuse it, we gotta keep it illegal. Should we do this with caffeine, chocolate and sugar? Anything fun and attractive to people is also, occasionally, misused. There is a slippery slope here. We are in danger of criminalizing all “risk to self”. The court ignored the ancient legal principle “No valid conclusion to the use of a thing can be drawn from it’s abuse.”
-The majority of the Supreme Court did in fact agree with the Senate when they found that the international treaties did not limit our politicians options to a punishment scheme. This makes it easier to argue against those (especially the current Liberal government) who still say the “international obligations” “tie our hands”. The majority wrote that “it is open to Parliament to decriminalize or otherwise modify any aspect of the marijuana laws that it no longer considers to be good policy.” (intro. p.3) (see also para. 136)
-The majority left open the possibility of a “medical necessity” case winning with the necessity defense. (para. 88)
Canadian activists can now only hope that the information in this decision can somehow be used by anti-prohibitionist politicians, or political activists in other countries. French activists could use 1) it’s long history with the harm principle and 2) the findings of fact regarding harm (and harm reduction) in this case (para. 100) and the 1991 German “Lubeck” decision – to gain constitutional protection.
In the mean time, for those who wish to see cannabis cafes and pot menus, the battlefield has shifted away from the courts and over to the political arena – the media, elections, cannabis entrepreneurship, compassionate health institutions and marching in the streets – at least until a few of the more intolerant members of the Supreme Court move on.
To Canadian Reporters:
We thank the many reporters who have got it “right”, and we beg the few remaining reporters who are skeptics of drug peace to hear what we have to say.
The drug war is indeed a war. Not with “drugs”, but with those who chose certain drugs. When the drug war began about a hundred years ago, it was the drugs that were 1) botanically based, 2) effective and 3) distributed by dark-skinned people that were banned. Later on, it came to include everything “not recommended by a doctor”.
Decrim or “descrim”?
Now we are about to decide to have a “real” drug war. Canada may decide – by adopting the new “decriminalization” bill Bill C-10 – to have an all-out war on cannabis users. Essentially the bill is designed to destroy our culture with fines handed out everywhere – including all the new “Bring Your Own Bud” cafes which have recently sprouted up everywhere.
Later on, their STATED plan is to introduce jail for unpaid fines, mandatory treatment for repeat offenses and mandatory minimums for growers and dealers.
The Liberal version of “decrim” was designed to create a “drug free Canada” – not to “ease up” on anyone. In order for C-10 to be of any benefit, one must lie to a customs agent – a criminal offense in itself!
The New Democrats – the only choice for cannabis lovers.
Alternatively, Canada may decide – through supporting admitted “occasional user” and NDP head Jack Layton for Prime Minister in the next election. Mr. Layton has expressed a desire to see “pot cafes” – a place people can distribute cannabis relatively unmolested (as some people have – with few problems – for over 30 years in some European communities).
We face a stark choice: Singapore or Amsterdam? The choice is very real, and it’s about to be made.
Canada’s leadership history
Canada is at the crossroads – drug war or drug peace forever. And the whole world is watching. Everybody seems to take their cue from us – especially the United States. The U.S.A. learned from Canada’s example with ending overt slavery, giving women the vote and ending alcohol prohibition. Why should it be any different with cannabis?
This is the everyday mental reality of the Canadian cannabis community. Our lives are on the edge … will we all become fully dignified – like the caffeine junkies, chocolate addicts and sugar alcoholics that surround us? Or are we the next scapegoats of the new “drug free” world order?
We, like our fellow puffers around the world, face imminent cultural genocide, directed at us from out-of-control, unelected, corporate drug-pushing, secret-handshaking, psychopathic morons. But rather than “give up and give in” in the face of an unresponsive and money-warped political system and an unreasonable legal system, we choose instead to fight on, putting our faith in ourselves, our community and our herb, rather than our rulers. We fight using the one potent weapon available to the “relaxed” and the “meek” – the truth.
There’s something that you reporters – the fifth estate – can do for us harmless, imaginative and helpful cannabis folk. You can start asking the right questions, and putting a more sane spin on stories. For example, if you always remember to differentiate between drug use and drug abuse, drug problems and drug-prohibition problems, decrim that’s “punishment free” versus decrim that’s “punishment heavy” – you will have at least represented “both sides”.
You’re the only estate we have left – please don’t fail us.
The following is what we cannabis activists have in store for you to report on this year – aside from the election, of course… To cannabis lovers in particular and the Canadian public in general:
The final battle:
The powers-that-be have forced us to make our final stand. Our hope lies not with the politicians or the law. Our true hope lies with the few good reporters remaining in the mainstream press, the alternative press, and the “age of information” – so that everyone knows that the laws that were written to destroy us were not defensible in real life. Perhaps that means something to those who oppose us. Perhaps it has softened their resolve.
History is full of mutiny – and the drug war is a perfect candidate for mutiny. Cannabis users are most everyone’s favorite movie stars, musicians, comedians and artists. Even the soldiers would be sad to see us all go. Look into the eyes of the next police officer you get a chance to meet, and ask if his or her heart is really into the battle against the cannabis community.
New legal arguments
Prohibitionists have backed us into a corner, and even though the Supreme Court is not on the side of the those who would protect harmless-to-others “tastes and pursuits”, we still have common law based on the principle known as “necessity”, and we still have the dignity and liberty and equality promised us in the international human rights laws – laws which supposedly trump the international “drug-control” treaties.
The “necessity defense” is found in section 8 (3) of the Criminal Code of Canada. It is an old defense, that is: “you have the right to commit a small crime in order to prevent a big crime”. Keeping cannabis plants, cannabis genetics, the cannabis economy and culture alive – otherwise known as cannabis crimes – can be said to be the smallest of crimes. Cultural genocide is one of the largest crimes – if not THE largest. It is necessary to fight for and maintain human autonomy in all health choices. It is necessary that all cannabis laws must be challenged in every way possible – including breaking them out in the open.
Keep in mind the international laws: The “dignity” and “liberty” and “equality” found in Articles 1 and 3 of the 1948 Universal Declaration of Human Rights. Keep in mind also Article 11 of this document – the “innocent until proved guilty” part – no one has yet proven we cannabis growers and dealers are harming anyone! Creating “institutions similar to slavery” is also prohibited in this document. This historic document was the end result of World War 2 – millions fought and died for these rights. There are other international treaties to pay attention to besides the hypocritical racist monopolistic anti-drug treaties our Liberal “representatives” keep telling us we have no choice but to obey.
Using these arguments to defend our unique methods of protest, this is what we have planned for this year’s round of pot activism:
-The Global Marijuana March will be on Saturday, May 1st. There are already over 120 cities signed up – there may be as many as 200 by the time May rolls around. In Vancouver, there will be a 2PM rally at the Art Gallery and then a march over to Hedy Fry’s office (106-1030 Denman Street). Hedy suggested “treatment” – piss tests, group therapy, forced labor – for repeat offenders under the new “decrim” bill. We plan to chalk up the sidewalk surrounding her office – to let her know how we feel about “treatment”. Then we will have the first “open air marijuana marketplace” protest in the history of pot activism. Bring a few bucks – all your favorite buds will be there.
-In Vancouver, there’s a one day seminar ‘ What would Legal Marijuana Look Like’ on May 8th at the Wosk Centre.
-The BC Marijuana Party has endorsed the NDP in the next federal election – slated for this May. The National Marijuana Party has decided to stay in the race and “keep the NDP honest”.
-The BC Marijuana Party intends to run 79 candidates in the May 2005 BC provincial election. It is likely that Marc Emery will run in Solicitor General Rich Coleman’s riding.
-In Ottawa, the “Fill The Hill” Demonstration of June 5 will draw attention to the cannabis debate as it relates to federal politics.
-Marc Emery is currently on a nationwide speaking tour in March of universities and campuses (including UBC and UVIC) to condemn Bill C-10 and explain cooperating with the NDP. On March 27 Marc will address a conference of BC Probation Officers in Chilliwack, BC.
Individual activists will still continue to write letters, phone into talk-shows, put up posters, conduct rallies and workshops, create art and music – all in the interest of greater cannabis understanding and cannabis freedom.
Activists will continue to open up new “bring your own bud” cafes, compassion clubs and other organizations, explaining themselves and eliminating stigma with every new name, neon sign, sandwich board and business card. The fight for true freedom and dignity is on, and we have just begun.
Sincerely, David Malmo-Levine