My Grounds for Appeal

Editor’s Note: David Malmo-Levine is a Vancouver marijuana activist incarcerated at the Fraser Regional Correctional Centre in Maple Ridge, BC, for his establishment of the Vancouver Herb School. David is considering an appeal of his sentence and lays out his reasoning below. He would love your feedback and thoughts. Please click here and here for more information on David’s case.

“All laws which can be violated without doing anyone any injury are laughed at.” – Spinoza(c.1660)

In my case there was no victim impact statement and no evidence of any harm done to anyone. There was even an admission by Judge Galati agreeing with the Canadian Supreme Court in paragraph 100 of their decision in R. v. Malmo-Levine-R. v. Caine of 2003 that cannabis, used properly, is harmless. A new test for incarceration should be introduced into sentencing guidelines…in any case where (1) there is no victim impact statement (2) no evidence of harm of the accused actions (3) no likely hood of harm arising from the accused actions, jail must not be an option.

Canadians would rather live in a civilly disobedient society than an uncivil obedient society. Canadians would prefer to have their ‘Henri David Thoreau-type’ tax protesters walking around free rather than such great spirits wasting away in jail. Canadians would prefer to have the Harriet Tubmans and the escaped slaves walking around free. Canadians would prefer their Suffragettes, their civil rights activists, their native rights activists, their social justice activists, their human rights activists, their anti-war activists and their environmental activists walking around free than wasting away in jail, as long as these activists conducted themselves civilly in their disobedience.

Arrest them if you must, fine them if you must, but jail is much too brutal of punishment to inflict upon the segment of society which most often serves as a conduit for the necessary changes our society must go through to evolve, changes that (for one reason or another) the other branches of government and the other segments of society are unable to make on their own. The desire to punish the victimless disobedient with jail comes from a sort of arrogance with viewing the legal system as self-correcting, at least self correcting enough as not to require the civil disobedient activists as a necessary component. History proves otherwise.

When it comes to drug policy, we have evidence of expert and public opinion on cannabis being ignored by all the major political parties, even the NDP have thwarted attempts to adopt the Le Dain Commission, the Senate Report and the latest Angus Read polls into law (or in the NDP’s case into a national resolution). On top of this evidence of government ineffectiveness, we have the examples of the effectiveness of civil disobedience. Examples of civil disobedience being effective in drug policy are (1) industrial hemp activists being disobedient in 1994 leading to industrial hemp being made legal in 1996 (2) medicinal cannabis activists being disobedient in 1995 leading to medicinal cannabis being recognized as being constitutional in 1999, and (3) the unofficial supervised injection site of 2002 leading to the official supervised injection site of 2003.

The Canadian power structure cannot shut down every legal channel for reform while at the same time jailing or threatening to jail all who choose the only effective channel for reform.

The harm principle exists in the world’s first constitution, rights #4 and #5 of the French Declaration of the Rights of Man and of Citizen. It exists in John Stewart Mill’s quote on liberty, where it was called the right of “tastes and pursuits”, and if it cannot be said the harm principle is found in section 7 of the Canadian charter, it cannot be argued that it is not also found in the principle of sentencing. But it makes a mockery of justice to negate the harm principle in favor of what can only be called the “obedience principle”. Recidivism can only be used to justify a jail sentence if there is evidence of significant harm or a reason to suspect significant harm eventually arising inherently from the actions of the accused.

To continue to incarcerate the harmless under the auspices of “encouraging a respect for the law” – especially since the Le Dain Commission and the Senate Report have identified the faulty cannabis law itself as the origin of the disrespect for the law – insures only that justice is not done, and in this age of information, not seen to be done.

It is an affront to natural law to hear the argument that those involved in civil disobedience and victimless crimes should be incarcerated if they are repeat offenders, as if repeated victimless conduct could somehow create harm out of mid air. Drawing such a distinction only creates confusion.

David Malmo-Levine
Fraser Regional Correctional
Maple Ridge, BC

Editors Note: David included a useful list for anyone who might be checking into the Big House for the first time. Enjoy!

David Malmo-Levine’s 10 Tips for the Newly Incarcerated

1) No whistling
2) No whining
3) Don’t touch anyone’s person or property
4) Don’t go outside your room without your shoes
5) Don’t drag your chair across the floor
6) Figure out what phone your allowed to use
7) A) Figure out the pecking order B) Figure out who assigns the tables C) Sit at the table assigned to you
8) Keep your TV volume down
9) Always get sentenced with money in your pocket or you will only be allowed collect calls – and cell phones don’t accept collect calls
10) Always take all of your belonging with you when you get moved around
11) Talk to the guards as little as possible, get most of your information from other prisoners

David Malmo-Levine



  1. Anonymous on

    If courts would work consistent and in regards of precedents… well, then this actually would work Ano 5:28

    But in reality they don’t work like that. No-one does!

    There is a whole lot of “own opinion” involved and a whole lot of screwed up reasoning beeing done on account of the judge and his “team” always.

    Basicly everyone is only doing thàt, were they can just and just get away with.

    Counts for most if not all of the people on this planet but then it goes like: Everone does what suits them best.

    You’ d be surprised how fucked up some judge’s “best” would sound like if you start reasoning like this judge.(e.g. get in his head and think like him/her.)

    It’s often no more clever “inner conversation” an average home wife exploits when making a dission about her disobedient children.

    With all due respect to avarage home wifes though.

    Shit always only goes like it goes 🙂


    Hang in there Dave, we love you man!

  2. Anonymous on

    Well if publicity was his goal he certainly achieved it. Now everyone knows that if they open a store to sell everything contained in the CDSA they will go to jail for 6 months. That means it’s safe to openly deal narcotics, hallucinogens etc in Vancouver. Technically it’s still illegal but who the hell cares about a 6 month sentence after they make thousands or millions from the drug store?

  3. Signe Knutson on

    It is important in these times not to see our comrades as enemies, if their only mistake is doing something that we would not ourselves do.

    David is taking a blow to his personal freedom in his struggle to effect change to the marijuana laws that run counter to human rights. Six months for trafficking is not much, but the public awareness generated by his incarceration is worth every second.

    It is incomprehensible to those of us who use herbal preparations (of many kinds, not just marijuana) that anyone can go to jail for being a provider and teacher about these substances, while the Canadian government has set up a vaudeville show of fear-mongering that has every law-abiding citizen clamouring for an untested vaccine/injection that supposedly wards off a potentially man-made virus (H1N1). Who is criminal here?

    David is definitely not shy of controversy, and is not looking to make his first million of investment capital illegally then starting some above ground business. He is intelligent enough that if being rich was his primary goal, rich he would be, and not in jail for it. The whole point of the storefront is indeed publicity. No one blinks at the existance of a liquor store, or cigarettes in every other store, but put clean cannabis up for sale? You’ve got to be crazy, or trying to get a point across.

    I hope for his sake they allow him his grapefruit seed extract. They should be giving it to everyone.

    For that matter, they should be giving it to everyone instead of the flu vaccine.

    I digress.

    David, if you read this, I am glad you are getting some games in. I’m sure you are a light in the big house, a little friendliness in a sea of anger and pain. Do they have scrabble?

    We miss you out here, at least some of us do, but we are glad that you are sticking to your guns like so few of us have the balls to.

    Stay strong.


  4. Leland Cole on

    It is becoming quite clear that an attack on a whole culture is happening right before our eyes! Free yourselves and all of North America of this continuing threat.

    Free David Malmo Levine
    Free Marc Emery
    Free Dana Beal’s People
    Free Marijuana, for once and for all!

    -Leland Cole,
    “Grand Spook of Lower Bohemia”
    William S. Burroughs 1989

  5. A Reader of CC on

    DML should certainly appeal his sentence, if only to atone for pleading guilty in the first place.

  6. Cannabis "criminal" on

    I have only recently become aware of DML via following this site and glancing at comments, but not familiar enough to pretend to know who he is personally.

    Even so, I am highly impressed with an individual who is intelligent and passionate in his own defense against a systemic and conspiratorial prohibitionist court that takes its cues from self-serving politicians pandering to special interests when directing policy, rather than representing the people’s will as dictated by their supposed mandate to arrive at decisions based on rational and scientific guidelines that cause the least amount of harm to the people.

    As a fellow cannabis “criminal” I compare as completely self-serving in that I never dared more than my own garden, and so didn’t offer aid to anybody other than a small customer base who could be confident they were getting it from somebody whose goal was clean flavour rather than weight at any cost.

    I can only imagine what a struggle it would be to be a target for prohibitionist forces on this scale, and hope that the time DML spends in prison causes as little harm as possible to his person, psyche, and will to continue this fight.

    So sick despite my sporadic reading of comments to see continued and repeated sass from people who seem to revel in telling us that the accused “deserves what he gets” for daring to be civilly disobedient in the face of laws we all despise as cannabis users and/or growers.

    Without this courage and sacrifice nothing unjust would ever be redeemed.

    Again, I don’t know this man. Maybe he’s a self-serving egomaniac bent on fame…but I don’t get that impression. I certainly wouldn’t mock anybody for being imprisoned for cannabis regardless.

  7. BlackKitty on

    I would like to have the complete mailing address so I can write DML. I guess I need the postal code, country code, whatever. Thanks.

  8. Danger Dan on

    different laws, different strategies..

    are you trying to get some ideas about changing the pot laws but are not especially smooth about asking ??

  9. Anonymous on

    some people think that prison is fun, yay society is paying for my food and shelter

    they don’t know how rape is, or gangs and violence

    any rape or sexual harassment in there dave ?

  10. J Cowley on

    All right then Dan you seem to have a strong opinion that DML will be going to prison because he deserves to.

    My question to you is how would you go about changing a law you believed was unjust? I’m sure were all ready to listen if you hold the key to change.

  11. Anonymous on

    I am sad because I now have the right to destroy those who seek to destroy innocent lives because of cannabis prohibition (something that is currently being grown to clean up Chernobyl). I believe in doing unto others as I would myself and therefore if I was harming people illogically (like the cops and the law with cannabis prohibition) then I would myself want to be destroyed –because no monster that actively hurts people deserves to live –thus do unto others. That means every police officer, judge, and DA who practices the destruction of the innocent would not mind me or you destroying them to protect the rights of myself, them (deceased or not), others, their children, their neighbors, their family and their country. Sadly we have to destroy all cannabis prohibition participating law enforcement officers out of fear that they one day will arrest one for a Bible, a Star of David, a Koran, a Conservative or Liberal ideology etc . . . we cannot afford to allow individuals to live whom are merely doing their job when said job is destructive and debilitating the community . . . killing the police will prove less destructive than all those wrongfully punished by them and because eventually they will say no more to arresting and destroying the innocent because they themselves do not want to all die. If they chose to continue and keep on ‘only doing their job’ then it is up to us to stop them by any means necessary –I don’t think a cop would enjoy knowing that they are going to be dying for a drug until said time that they chose to stop enforcing it: that means those who are willing to do such a thing need to be methodical about the death and disposal of their bodies so the innocent and necessary vigilante doesn’t get a bogus murder charge when it is nothing less or more than self defense. We have to kill them unless they are willing or we are capable of placing them in a make-shift prison. We know that a bad law is not a real law and those who practice the enforcement of a bad law are bad people and are no longer real police and that means if our government doesn’t recognize the right of the cops (whom many are not real if they practice prohibiton) to be punished by imprisonment –then we know that real courts, real laws and real correctional facilities do not yet exist and we can bomb said building and people for the overall safety of the world –just like we were allowed to bomb the Nazi government because they were not real and thus a threat when they chose not to end ‘the doing of their job’. Nazis eventually stopped ‘doing their legal job or fake legal job’ once too many of them lost their lives. In a few years this should be planned out and practiced so we can save our countries whom might one day use cops to their advantage (based on the precedent) when controlling a state that we –the people fear and not like. But then again –they are only doing their job –like the Nazis. The difference is that the cops don’t have the job yet of killing their prisoners like the Nazis did –only incarcerating. This is not a slippery slope argument cause of the historical facts behind such illogical and inhumane law enforcement whom are ‘only doing their jobs’. We also need to let the law know why we are imprisoning or killing them so it is clear that it is proper and suitable punishment that they have every right to have inflicted on them by the people and not merely as revenge because revenge is MINE THUS SAYETH THE LORD. This will help the police by reestablishing the link of ‘Protecting and Serving’ the people. And this is why police want to be police and therefore they accept cleansing to save their very own souls and freedom in the long run.

  12. Danger Dan on

    “….Sometimes Freethinkers happen to turn out that way….”

    key word here is “: sometimes ”
    not often enough
    to make much difference

    “…I can’t figure out why ppl are so deterred by a couple of days away from home…”

    maybe 60 -1825 days away from home in idyllic Butfttuck Estates is something you sort of look forward to.


  13. jeremiah on

    Everything written here will be passed on to David.

    He’s hoping for lots of feedback – thanks to everyone for the comments!

  14. Anonymous on

    Man’s got to do what a man’s got to do.

    Happily not everyone is shitting 20 different colours in their pants if someone threatens them with jail.

    Still waiting for the outcome of my own hearing but if I’m not gonna be REAL pleased about it it ‘ll be “appeal ” too.

    I can’t figure out why ppl are so deterred by a couple of days away from home.

    Like as if that’s the end of it all.

    It’s only life man, it´s only life!

    You know why I m telling myself on occasion that it’s good to be me ?

    Cuzz I am fearless if it comes to juridical crap.

    Sometimes Freethinkers happen to turn out that way.

    And D:M-L is a Freethinker, I know, so I know why he’s not acting out like a piece of chicken shit.

    Tnx for doing our part of the job there at your place Dave.

    Just think like in reality, the whole prison complex belongs to you and you’re only testing if you are pleased with your creation 🙂

    Know who’s boss for real 😉

    By G.G.

  15. Danger Dan on

    David Malmo Levine can’t see any of these responses or comment on them becuase he is in jail..this blog post here was cobbled together by a CC editor based on a single phoncall David made from lock up.Add Davids photo and voila! – he appears to be on staff.

    he will not be attending the CC Staff Christmas party..
    Santa considers him as having been somewhat bad this year

    ( Update: Santa Claus is part of the illuminati conspiracy
    that took down the World Trade Towers and oppresses drug worshippers
    and and his reindeer of doom are a key factor in global warming
    the Elves are all ex Nazis that worked for Farben Bayer Inc. funded by GW Bush & orchestrated by …. Boy George )

  16. Anonymous on

    natural law is something like ” gravity” , not dave the dick on dope
    you obtuse sphincter meister
    lemme guess, you live in BC, home of the cornhole 500 ass car races

  17. Dan-o on

    What does your attorney think of an appeal? In my limited opinion on this matter, you will be taking a gamble by appealing what the state sees as an already light sentence. Either way, I wish you all the best.

  18. plink on

    Obviously neither of you can comprehend the following sentence.

    “But it makes a mockery of justice to negate the harm principle in favor of what can only be called the “obedience principle”. ”

    You’ve mistaken ‘natural law’ with getting arse-fucked by authority figures.

  19. Danger Dan on

    at an appeal. its a game of start all over again if the appeal courts see your point you walk. but if they see you are in the wrong and are just doing a drama pitch–they are not obliged to restore your 6 month sentence-
    They can re sentence you to a lot more than six months..according to the law as it is written .

    Fact is you do have enough crap on your blotter from the past and this take down at your sham educational institute ‘ aka Darin’ Daves’ Organic Dope Supermarket – the cops pinched you with a considerable haul of controlled substances .. a mound of cash in your basic traffickers den of psychoactive iniquities. Trafficking drugs is what was going on there- you were not a compassion club– At one point in the proceedings you offered to cease your drug vending activities as a gesture of rational behavior- Now, you are appealing and that is basically yelling you had your fingers crossed. Your judge warned you NOT to appear in court again on similar charges if you did you would receive a stronger sentence–and here you are. volunteering to appear in court, poking the lion of justice with your dick on a stick

    Its your free, adult life you are toying with Mr DML.If anybody deserved two + years for belligerent serial drug trafficking, it might be you. Next door to a questionable legal heroin injection safe site. ….

    The courts & the government in 2009 are demonstrably sick & tired of all this overgrow _them sass you old school rebels are always on about . So far they have been respectfully cool and not socked it to you — this time they might well sock it to you, big time- and that will be that. No whistling for a decade

  20. Anonymous on

    Six months is the lowest prison sentence for anything in the CDSA, for a first offense. This is actually your second offense, if I’m not mistaken. How can you argue that it’s an unfair sentence? You could get that for simple possession. You had 10 pounds of weed and hash, a bunch of mushrooms and some opium (I know the opium wasn’t included in the charges) and you were selling them. Do you seriously think they should have just let you off with a fine? You had $5000 in cash laying around. Why would a fine bother you? Be thankful they gave you the lowest possible sentence instead of the life sentence they could have given you. If the amount was less than 3 kg they could only have given you a maximum of 5 years less a day. Even trafficking a Schedule 4 substance has a possible sentence of 1-3 years.

    Spending the winter inside isn’t all that bad anyway. Think of all those suckers out there who have to shovel snow and scrape frost so they can go to work to pay for rent and food. Now the taxpayers are paying for your living expenses. Pretty sweet way to kill a winter. By spring you’ll be pumped up from the weight room and ready to hit the beach. You survived an encounter with the dragon (Canadian justice system) and came away barely scathed. I would consider that a victory. Now that you have been in prison you will have more street cred too.

    Next time sell your drugs in a more creative way. Storefronts are just too easy a target for the authorities. I know they’re dumb but there are limitations to even their dumbness. Do it by mail order only. Budmail did it for quite a long time with no legal problems and Budbuddy is still doing it successfully. Start formulating your scheme for establishing Budmail 2, or perhaps Herbmail. Make your million and then quit. It may be less interesting than running a physical store, but it has a much better profit/risk profile. And for godsakes don’t give it away. Use it to start a legal business and then give some of those profits away if you feel compelled to do so. You don’t give away your hard earned investment capital. That would be insane.

  21. david dickinson on

    The main problem with marijuana proceedings is the lack of victim impact statements. In R. V. Gillan, Const. Gillan, an off duty drunken West Van cop, beat up a person of colour, and was given only a one month community-based sentence. In R.v. Monteith, Mr. Monteith, a high school teacher, was given only 45 days in jail for sexually exploiting three students. In both proceedings, alcohol was involved and there were victims and victim impact statements.

    Conclusion, the way to get a soft sentence is to commit a violent crime while drunk and to ensure victim impact statements have been put before the alcoholic judge.

    Malmo-Levine made the mishtake of committing a non-violent crime and not being drunk when he did it. Because there were no victim impact shtatements, he musht do jail time. Hiccup!