CANNABIS CULTURE – “If we could change ourselves, the tendencies in the world would also change.”
– Gandhi, 1913 (1)
“What the world needs is not to turn one crowd out of concentration camps and put another crowd in, but to end the concentration camp idea.”
– Robert H. Jackson, May 14, 1945 (2)
We don’t need to escalate
You see, war is not the answer
For only love can conquer hate
You know we’ve got to find a way
To bring some loving here today
Picket lines and picket signs
Don’t punish me with brutality
Talk to me, so you can see
Oh, what’s going on
Marvin Gaye, “What’s Going On”, 1971
Disclaimer: This is not legal advice from a lawyer. This is a collection of arguments from a non-lawyer that may come in handy to the self-represented if they are lucky enough to encounter a sympathetic judge who intuitively knows the continued persecution of cannabis users, growers, dealers is wrong. This is a basic background in pot law and some arguments that the author intuitively feels may inform a merciful decision.
This is part 3 of a 3 part series on the goals and tactics of activists post-legalization. Part 1 focused on activist tactics. (3) Part 2 focused on policy goals. (4)
This article focuses on legal tactics – both arguments that are “lawyer recommended” . . . and the other kind.
We all hope legalization will be a smoker’s paradise – the “legalization for all” envisioned by our community since the late 1960’s. (5) We must hope for the best.
But we suspect they’re going to use it as an excuse to harm the harmless further. Already the raids have begun. On Sept. 14th, 2018, just over a month before “legalization”, the VPD raided the anti-opioid overdose dispensary on Hastings St. in Vancouver, saying “Selling cannabis in this manner is illegal now and will continue to be illegal after cannabis is decriminalized in October.” (6)
On October 12th, Halifax police raided two dispensaries. (7) On the day of legalization, October 17th, two dispensaries were raided in Port Alberni by the RCMP. (8) In the first week of “legalization”, the Toronto police have shut down 11 dispensaries. (9) On November 21st, three people were charged in Bedford, Nova Scotia after Halifax Regional Police raided a dispensary there. (10)
History backs that pattern of “fake-reform” up fairly regularly. We must prepare for the worst.
Not everyone is a great public speaker. If you don’t feel you can explain all this to a judge, but also don’t feel that the Cannabis Act is fair, and you can’t afford a lawyer but you still want to fight this thing, the thing to do is a “Hail Mary pass” (11) – just plead “not guilty”, give the Attorney General of your province and the Attorney General of Canada a head’s up (see below), and then read the following paragraph and finally hand a printout of the corresponding article called “Legal arguments to end the remaining war on cannabis”. If you CAN afford a lawyer or ARE a good speaker and student, then by all means, use this article as a springboard and learn about as much of this stuff as you possibly can – read the cases cited, and the cases cited in them etc. – and kick ass. But if you’re not up to that challenge, then this following paragraph offers you some hope. If this following paragraph reaches their hearts, the legalese required to act on it is found in the article below it and the judge-friendly version you will hand up. Maybe they will be swayed. Anything is possible.
If you do act as your own lawyer, you will need to establish an evidentiary basis in order to win. This means getting expert witnesses to enter into the record every bit of evidence you are going to rely on in your final argument. And if you’re going to use section 7 of the constitution, you will need to establish a threat to life, liberty or security of the person, which means you need to read R. v. Malmo-Levine (especially from paragraph 220 onward).
Argument summary – the following is the section you need to read to the Judge before passing him or her up a copy of the “Legal arguments” document:
Your honor, the Canadian Government is regulating cannabis like it is a hard drug and I feel it should be regulated like a soft drug. Cannabis is the co-evolutionary plant partner of humanity, and everyone needs access to cannabis medicine and the cannabis economy if we wish to continue to evolve and adapt as a species. If we as a society choose to provide near universal access to soft drugs such as cannabis as we currently do with organic fair trade coffee beans, the reward will be to restore a significant amount of ecological sustainability to our planet and economic and political justice to millions of Canadians, and serve as an example for the rest of the world on how to end the drug war and preserve human herbal medicine autonomy. The evidence surrounding the lack of 1) inherent impairment to higher functioning or driving a vehicle and 2) inherent harm to the developing minds of young people posed by proper cannabis use should be reviewed in an open, honest fashion. In the US, the young, the non-white and the poor are continuing to be arrested, sometimes in increased numbers, in states where cannabis has been legalized, while the old and the rich enjoy their new privileges. Meanwhile, no cannabis-use-related problems seem to show up in the general population statistics, yet many academics ignore this point, afraid to rock the boat. This is wrong and it should stop, and you have the power to stop it. Nobody should be arrested for any crimes that only involve cannabis, because cannabis isn’t inherently harmful – if it’s used properly it’s harmless and helpful, similar to coffee beans. This legal argument that I am about to hand you is the solution to the problem of the affront to human dignity that the Cannabis Act and the various provincial regulatory models present. The laws that treat this herbal medicine – cannabis – like it was a hard drug are arbitrary, overbroad, grossly disproportionately harmful compared to the harms they seek to prevent – not to mention an unfair monopoly – and Canadians are justified in breaking these despicable pot laws by necessity – to preserve human autonomy. These laws are written so broadly as to catch all-manner of harmless people in their net. Trudeau’s “semi-legalization” persecutes those who are guilty of having an intelligent preference to a less toxic herbal relaxant, antidepressant and performance enhancing drug – or who enjoy contributing to this community economically – but fall outside the definition of “legal”. Harmless people continue to be harmed by these laws, and that’s wrong. Breaking these drug laws in the face of continued persecution of the harmless and intelligent cannabis users is justified. Such persecution requires disobedience as a response, both to attempt to preserve such a valuable trait as human medical autonomy, and also to preserve cannabis culture, cannabis distribution networks and raise revenue to go towards preventing these actual crimes: A) violations of dignity B) forced labor and C) the destruction of certain characteristics within groups of harmless people – in whole or in part. We have the right to tastes and pursuits – it’s a right with as rich a history in law as any of the other recognized legal principle. We all have a right to choose our medicines and our jobs so long as they are harmless to others. This article I’m about to hand to you, your honor, explains where in the case law these rights, principles and arguments are found. I believe the burden of proof is on the accuser of the new crime – in this case the various governments of Canada represented by the crown prosecutor – accusing the accused– in this case the entire cannabis community of Canada including the young users and the less wealthy growers and dealers – of inherent harm rather than the accused themselves to prove inherent harmlessness. Without access the massive resources the state utilized to perpetuate the scapegoating in the first place, the scapegoat is at an unfair disadvantage. The government was wrong to criminalize cannabis in the first place. The government was proven wrong when hemp was made legal again. The government was proven wrong again when medical marijuana was made legal. The government was proven wrong a third time when recreational marijuana was made legal. Is it unreasonable to entertain the possibility that the government is again wrong about legalization for the same reasons that it was wrong before? The court has a chance to fix this broken system – this “semi-legalization” – offered to us by the Canadian government, and every farmer, gardener, ecologist, sick person and freedom-loving person on planet earth is hoping you see the new legalization for the cartel that it is – based entirely on the myth of cannabis as a hard drug – and take the necessary steps to include the entire cannabis community – especially young users and poor growers and dealers – at the legalization table.
Those are my submissions.
(Then you hand the judge the document called “Legal arguments to end the remaining war on cannabis”) To familiarize yourself with the facts and arguments to back up the above statement, please continue reading.
This article is an examination of three arguments that lawyers recommend you make:
- Gross Disproportionality
. . . and another four arguments lawyers have so far shied away from recommending:
- Anti-monopoly/captive market/cartel
- Revisiting Malmo-Levine
- Burden of proof
When you understand these legal arguments, you will understand how to defend the above statement from attack by lawyers.
Desperate times call for desperate measures
You may have heard that “they who are self-represented have a fool for a client”. Always keep in mind it was most likely a lawyer who first said that.
If you can afford a lawyer then show them this article and ask them what they think. But if you’re like me –and you can’t even afford the dentist, never mind a lawyer, you might want to consider self-representation. Self-representation, it seems to me, is a safer option for each of us than obedience and/or hoping legalization will fix itself.
What we need right now is to regulate pot like a soft drug. And to do that those who are brave and have a backbone might have to go on and treat it like a soft drug, get arrested for doing so, and then challenge that arrest in court. It sounds crazy, but it’s how the pot movement got to the point we’re at now – civil disobedience . . . and becoming the thing we wish to see in the world.
Unless the human race treats pot like a soft drug, I don’t give us much chance of survival. The red tape needs to be removed from industrial hemp NOW so we don’t all suffer from more oil wars, oil spills and climate destabilization. The tendency and capacity for humans to scapegoat must be challenged and eliminated NOW so we don’t lose ourselves in another genocidal war against scapegoats again like the world does every few generations (who will it be this time? Muslims? Perverts? The Jews, again?). The medicine and fuel economies need to be shared NOW before everyone faces the choice between wage slavery, starvation, or jail in this ever-nastier, cut-throat economy. I would be lying if I didn’t state for the record that – in 2018 – I honestly feel that civil disobedience and self-representation in court are everyone’s safest options.
Let’s add defending “human medical autonomy” to that list of reasons we need to act now. By punishing teens who choose to control their herbal-medicine related choices instead of waiting until they are told they can relax or feel happy once they have become adults, and by criminalizing adults who choose to make money in the herbal medicine economy outside the “captive market” cartel structure, we are conducting a massive eugenics experiment with humanity. We are discouraging that quality within humans that makes intelligent choices, and encouraging obedience and cartelism. We are breeding ourselves into becoming the “Ferengi” on Star Trek – greedy, obedient, easily controlled monsters.
Human autonomy is needed for human evolution, adaption and survival. Let’s not abandon it just because Trudeau told us to. I have yet to hear a good reason why humans should become more like domesticated animals . . . willingly.
It’s not like lawyers are some type of super-human. They could afford tuition. They know some Latin and the rules of how to argue things in front of a judge. There is no real mystery about it – if you can be convincing, you can win – even self-represented. Because “the law” is just the “official” version of what we all consider reasonable – “natural law” is just “reason” itself – and if you can be reasonable in a conversation or at a meeting, you can be reasonable in court. If you learn the rules, and you take advantage of all the knowledge the librarians in the law library have to offer you, you can be convincing.
As much as I am a believer in “justice” as an abstract and “Canadian Justice” as a thing that sometimes does prevail, every time I think back to the Supreme Court pretending to agree with my argument in person in R v. Malmo-Levine 2003 so they didn’t have to subject their decision to criticism in real time I think maybe it’s a rigged system, because intuitively, it seems to me that a judge or justice seeking the best decision possible would want to test their thoughts out, not hide behind pretending to be convinced.
I want to believe that the courts can end scapegoating – or just end this type of scapegoating, or even reform the worst parts of Trudeau’s failed legalization model, but even if they can’t or won’t do that, the very process of going to court educates your community and those around you and perhaps a reporter might take your argument and spread it around. And THAT might put more pressure on the judge to come up with a reasonable decision, because not only must justice be done, it must be seen to be done. Every little bit helps, and I’ll be damned if I accept the cannabis cartel and their captive market without a fight. I like looking in the mirror without shame. I’m disappointed in people who don’t care about stuff like that. I’m always surprised at how many there still are.
Justice must not only be done it must be seen to be done, and we can either make it work for us or expose it as a sham. Either of those options looks more attractive to me than admitting defeat and excluding forever the poor, the young and the non-white from legalization.
We all have to exhaust the legal system and see if there are any judges who don’t believe in Trudeau’s “reefer madness” 2.0 and his cannabis cartel and the “captive market” that was brought to light in Allard. All we need are a handful of judges on our side and we can take crappy legalization and turn it into good legalization.
There are thousands of judges in Canada. Surely at least a few of them don’t agree with the enslavement of the cannabis community and the abandonment of human medical autonomy. Starting October 17th, 2019, our job as pot activists is to keep breaking the pot laws (each and every last one of them, with the exception of quality control and labor laws, which actually address real harms) and if and when we get busted we start showing up in courtrooms challenging the legal basis of these laws until we find some judges who agree.
Admittedly, the odds are stacked against the self-represented. Judges don’t want to make it seem like lawyers are unnecessary, because they all started out as lawyers themselves. But there are a few notable pro-se (self-represented) victories, including political activists of all types, so the odds are better than zero. (12)
And we have hundreds of excellent, articulate, reasonable pot activists in Canada. If everyone stands up for themselves, we’re going to find those reasonable judges eventually.
Keeping the pot lawyers busy
The world of the cannabis activist post-legalization is frightening for the civil disobedient side of the community. Many of the lawyers who were helpful to activists back in the pre-Licensed Producer days are now working for and/or with some of those LP’s. (13)
Because of their new jobs with the Licensed Producers, these pot lawyers are probably less available than before for “challenge the established order”-type cases.
However, we are fortunate to have the esteemed lawyer Kirk Tousaw volunteer to look over the work you are about to read. He doesn’t approve of this approach and didn’t “sign on” to it, but he did provide some insight into how to summarize the pot case law thus far, he suggested the assisted suicide case Carter (2015) might help with the “revisiting Malmo-Levine” argument, and suggested a disclaimer. Frankly, he wasn’t optimistic about this approach working, and warned it might even be counter-productive to someone’s well-being, as if to say that any lawyer-less resistance is unwise. Of course, the prisons are filled with people who decided to plea instead of fight – Kirk offered no timeline for when they could hope to finely feed dignified, or what the timeline or path to inclusive legalization would look like. Resistance, at the very least, offers the hope that the young and the poor need right now.
A summary of Canadian cannabis law so far:
In 1996 the Controlled Drugs and Substances Act (CDSA) came into effect. This law replaced the old Narcotic Control Act of 1961. (14) In spite of much new research regarding the safety and efficacy of cannabis, the CDSA continued to treat cannabis as if it was an extremely dangerous drug, worthy of prohibition.
In 1998 the Industrial Hemp Regulations came into effect. (15) The regulations were burdensome. Farmers could not supply themselves with seed – a major investment. Approved seed breeders needed ten years apprenticeship under another approved breeder plus a science degree. (16)
In R. v. Parker (July 31, 2000) the Ontario Court of Appeal confirmed the existence of a constitutional right to consume cannabis as medicine. The Court determined that the government must provide “reasonable access” to cannabis to medically qualified patients. The parts of the Controlled Drugs and Substances Act that prevented “reasonable access” were found to be invalid and unenforceable. Medicating with cannabis for serious illness was found to be a decision of fundamental personal importance, and the use of the criminal law power to prevent marijuana use violated the security of the person interest. (17)
In July 2001, the Marijuana Medical Access Regulations (MMARs) were introduced.
In Hitzig v. Canada (2003), the MMARs were found to be constitutionally defective because they “fail[ed]to provide individuals who have a serious medical need to use marijuana with a legal source and safe supply of their medicine.” (18)
In response to Hitzig, Health Canada introduced the Regulations Amending the Marihuana Medical Access Regulations (RAMMARs) (SOR/2003-261) and announced an interim policy under which authorized Canadians could purchase cannabis and cannabis seeds from Prairie Plant Systems, the first “licensed producer”, or “LP”. (19)
A unanimous Ontario Court of Appeal upheld Hitzig and declared invalid specific provisions of the MMARs. No suspension of the declaration was granted. The court determined that this remedy would immediately render “the MMAR as modified a constitutionally sound medical exemption”. (20)
At the same time, the same Ontario Court of Appeal decided R v. JP [67 O.R. (3d) 371]. JP was a non-medical case of simple cannabis possession. The court concluded that the prohibition of simple possession of cannabis did not exist when JP was charged, because Parker said that such a prohibition was invalid if there was no “reasonable access”, and Hitzig proved that the access wasn’t reasonable. Thousands of then-pending prosecutions for simple possession were stayed. The JP Court determined that Hitzig “fixed” the regulations and the prohibition was valid once more. (21)
The Supreme Court of Canada decided against R. v. Malmo-Levine; R. v. Caine in December 2003, a case involving the entire array of cannabis laws along with section 7, 12 and 15 of the Constitution. More on that case below.
Over the next decade, the MMARs became the subject of several other Charter decisions – Sfetkopoulos et.al. v. Attorney General of Canada, 2008 FC 33, Canada (Attorney General) v. Sfetkopoulos 2008 FCA 328, R v. Beren 2009 BCSC 429, R v. Smith, 2012 BCSC 544; 2014 BCCA 322; 2015 CSS 34 – finding them to be too restrictive and selectively striking down the offending portions. (22)
On June 11, 2015, in a per curiam (unanimous) decision, the Supreme Court of Canada in R. v. Smith  2 S.C.R. 602 found the requirement that medical cannabis patients be permitted to access only “dried marijuana” to be unconstitutional. The Court found the requirement that cannabis patients access their medication only by way of smoking dried marijuana flowers, instead of cannabis edibles or other derivative medicines, to be a breach of liberty and security of the person and not in accordance with the principles of fundamental justice. As a result, the Court declared sections 4 and 5 of the CDSA to be of no force and effect to the extent that they prevented patients from accessing cannabis derivative medicines. The Court also confirmed the principle from Parker that constitutionality of the CDSA prohibition is directly dependent on the constitutionality of the medical cannabis exemption scheme. (23)
In 2014 the government introduced the Marihuana for Medical Purposes Regulations SOR/2013-119 (MMPR), an exemption scheme that fundamentally altered the prior MMAR system by removing from patients the option of producing for themselves and requiring them, instead, to purchase cannabis from mail-order only commercial producers and retailers. Patients were required to purchase their cannabis from licensed producers which are the companies licensed by the federal government to grow and sell medical cannabis. Under the MMPRs, patients could not grow their own cannabis and could not purchase cannabis at a storefront dispensary. They were not allowed to attend at the licensed producer facilities to purchase cannabis – they were limited to receiving their cannabis by mail. Under the MMPRs the government prohibited the making and selling of anything other than dried marijuana. (24)
On February 24, 2016 in Allard v. HMTQ 2016 FC 236, Mr. Justice Phelan of the Federal Court found the MMPRs to be unconstitutional. The finding of invalidity was suspended for six months for the federal government to respond. (25)
The federal government did not appeal the ruling, instead, on August 24, 2016 the federal government replaced the MMPRs with the ACMPRs – the Access to Cannabis for Medical Purposes Regulations. Those ACMPRs were themselves replaced with “new regulations” tandem with the new recreational pot laws – the “Cannabis Act”. (26)
These “new regulations” seem to be without an acronym. They are simply known as the “Cannabis Regulations”. (27) The Cannabis Act also repealed the 1998 Industrial Hemp Regulations, and replaced them with the 2018 version. (28) It appears that the over-regulation that was present in 1998 – where the seed cartel was first created – has been carried over to the 2018 version. (29)
The legal arguments lawyers recommend you make: Overbreadth, Arbitrariness and Gross Disproportionality
When discussing with lawyers what possible legal challenges could be made by activists and citizens to challenge the unreasonable elements of the new pot law – the Cannabis Act (30) – or the various provincial acts that have been drawn up to accompany it (31) – three arguments came up: 1) overbreadth, 2) arbitrariness and 3) gross disproportionality
These are all “constitutional” arguments. They are made using the framework found in the Canadian Constitution – called the Canadian Charter of Rights and Freedoms – specifically Section 7, the “liberty” section. The, “True north strong and free” section. (32)
This means you will need to “File a Notice of Constitutional Question” at least 14 days prior to your court appearance with the Attorneys General of BC and of Canada. There are websites which can help to explain that process. (33)
Section 7 of the Charter states:
- Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. (34)
Three of those principles of fundamental justice that have been successfully applied in winning drug-peace activist cases have been the principles of “overbreadth”, “arbitrariness” and “gross disproportionality”. The following is a review of those arguments. Be sure to also read the “arguments lawyers don’t want to make” section, as the evidence mentioned in that section can also be used in this section.
Overbreadth is like when you use a sledgehammer to swat a fly – it’s a fancy way of saying “overkill”:
Legislation that is drafted more broadly than is necessary or permissible to attain the legislative objective with the result that it impinges unduly upon a protected right or freedom. . . . A principle of fundamental justice that is violated when a law infringes rights to life, liberty, or security of the person more than is necessary to achieve its objective. (35)
It was used successfully in the Allard case – the right to grow your own medicinal marijuana – in Canadian Federal Court. (36)
The word arbitrary – according to the Oxford dictionary and most other dictionaries – means “Based on random choice or personal whim, rather than any reason or system.”
In terms of Canadian Law, it means this:
It is a principle of fundamental justice that laws should not be arbitrary. That is, the state cannot limit an individual’s rights where “it bears no relation to, or is inconsistent with, the objective that lies behind [it]”. (37)
This argument was used successfully in Allard, and also in Smith at the Supreme Court of Canada. (38)
3) Gross Disproportionality
Disproportionate can mean “out of balance”, so disproportionality can be simply defined as “the punishment doesn’t fit the crime” and “gross disproportionality” can be defined as “the punishment REALLY doesn’t fit the crime”. The goalposts were shifted from “disproportionality” to “gross disproportionality” in the case of R. v. Malmo-Levine back in 2003:
143 In short, after it is determined that Parliament acted pursuant to a legitimate state interest, the question can still be posed under s. 7 whether the government’s legislative measures in response to the use of marihuana were, in the language of Suresh, “so extreme that they are per se disproportionate to any legitimate government interest” (para. 47 [emphasis added]). As we explain below, the applicable standard is one of gross disproportionality, the proof of which rests on the claimant. (39)
The Gross Disproportionality argument was used successfully to keep the Vancouver supervised injection site open. (40)
The State Interest
Basically, if you can identify the state interest in being about preventing cannabis abuse – not about preventing cannabis use – you can argue that the various prohibitions in the Cannabis Act against personal possession are overbroad. If you can argue that the tight regulations that prevent most Canadians from participation do nothing to prevent cannabis abuse, you can argue that the laws against growing or dealing cannabis are overbroad.
If you can argue that the state interest is to prevent cannabis abuse and that the various prohibitions in the Cannabis Act are not related to that state interest, you can argue that they are arbitrary.
And if you can argue that the harms that come with cannabis abuse are miniscule and inconsequential, and the harms that come with the punishments from the cannabis act or other cannabis prohibition-related laws are massive, you can argue that they are grossly disproportionate.
The state interest was identified in R. v. Malmo-Levine as “preventing harm” – not “preventing use”:
130 While we do not agree with the courts below that the “harm principle” is a principle of fundamental justice, there is nevertheless a state interest in the avoidance of harm to those subject to its laws which may justify parliamentary action.
131 In other words, avoidance of harm is a “state interest” within the rule against arbitrary or irrational state conduct mentioned in Rodriguez, supra, at p. 594, previously cited, that:
Where the deprivation of the right in question does little or nothing to enhance the state’s interest (whatever it may be), it seems to me that a breach of fundamental justice will be made out, as the individual’s rights will have been deprived for no valid purpose. [Emphasis added.] (41)
And the Supreme Court also argued in R. v. Malmo-Levine that all harms can be reduced with proper use – but then refused to apply that logic to vulnerable groups, evaluating the future possible harms without factoring the capacity for pregnant mothers, immature youth, chronic users or the mentally ill to learn how to use cannabis properly and/or effects of future “harm-reduction education”, of which currently there is none or next to none.
100 We wish to be clear that we do not accept Malmo-Levine’s argument that Parliament should proceed on the assumption that users will use marihuana “responsibly”. We accept his point that careful use can mitigate the harmful effects, but it is open to Parliament to proceed on the more reasonable assumption that psychoactive drugs will to some extent be misused. Indeed, the evidence indicates the existence of both use and misuse by chronic users and by vulnerable groups who cause harm to themselves. (42)
Of course, coffee, sugar, chocolate, masturbation, television, the internet – anything can be misused, even simple pleasures. The Supreme Court does not explain how deciding that “that which can be abused can be made illegal” protects from totalitarian encroachment on liberty. What is to guard against a future totalitarian scapegoater and or private prison CEO campaign contributor from writing more bad laws and encouraging the police to round up every user of coffee, sugar and chocolate – every masturbator, every watcher of TV or user of a computer on the pretext of its abuse potential? Surely the cut-off point must be “significant, inherent harm to other people from the action in question regardless of proper use” – otherwise the slippery slope is always a danger.
The legal arguments not recommended by lawyers: Necessity, Anti-Monopoly/Cartel/Captive market, Revisiting Malmo-Levine and The Burden of Proof
There are four further arguments you can make that I suspect most lawyers will advise you not to make. To sum them up we can call them 4) The Necessity Defense, 5) The Anti-Monopoly/Cartel/captive market defense, 6) the Revisiting Malmo-Levine defense and 7) the Burden Of Proof argument. The first defense – “Necessity” – is common law, so it doesn’t require a “notice of constitutional question”, but the Anti-Monopoly/Cartel argument is a section 7 argument, and Malmo-Levine 2003 was a Section 7 and 15 argument, and the Burden Of Proof argument is section 7 and 1, so filing a notice of constitutional question is appropriate (see above for instructions on how to do that).
Necessity is, essentially, the argument that “it’s OK to commit a small crime in order to prevent a big crime”. This defense has nothing to do with the Canadian Constitution, but rather, in the “common law”. What is the common law?
The common law—so named because it was “common” to all the king’s courts across England—originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. The British Empire spread its legal system to its historical colonies, many of which retain the common law system today. (43)
So when you are referring to the common law, the first thing you have to do is to point out where in Canadian law the common law exists. And the common law resides in section 8.3 of the Canadian Criminal Code. (44)
Now that we have located the common law in the Canadian Criminal Code, we can go on to use the necessity defense. What is the legal definition of necessity?
The “leading case” on the necessity defense is called “R. v. Perka”, which is a case involving the smuggling of marijuana and cocaine. Back when it was decided – in 1984 – the common law was located in section 7(3) – not 8(3) – of the criminal code. Perka defined necessity this way:
The defense of necessity is available in Canada and should be recognized as an excuse operating by virtue of s. 7(3) of the Criminal Code. The essential criteria for the operation of the defense is the moral involuntariness of the wrongful action measured on the basis of society’s expectation of appropriate and normal resistance to pressure. The defense only applies in circumstances of imminent risk where the action was taken to avoid a direct and immediate peril. The act in question may only be characterized as involuntary where it was inevitable, unavoidable, and where no reasonable opportunity for an alternative course of action, that did not involve a breach of the law, was available to the accused. As well, the harm inflicted by the violation of the law must be less than the harm the accused sought to avoid. Where it was contemplated or ought to have been contemplated by the accused that his actions would likely give rise to an emergency requiring the breach of the law it may not be open to him to claim his response was involuntary; mere negligence or involvement in criminal or immoral activity when the emergency arose, however, will not disentitle an accused from relying upon the defense. Finally, where sufficient evidence is placed before the Court to raise the issue of necessity the onus falls upon the Crown to meet the defense and prove beyond a reasonable doubt that the accused’s act was voluntary; the accused bears no burden of proof. (45)
So, in order to use this defense, one would have to prove that you were trying to prevent a big crime by committing a small crime, and the risk to you was “imminent” and the peril to you was “direct and immediate” and there was no legal way to solve the problem.
If you were to maintain that all the responsible agents at every level of government ignored the general population statistics and other statistics that proved that cannabis was a soft drug like caffeine, and you were involved with a criminal enterprise (such as a pot dispensary or café or other money-making enterprise) who spent significant profits on educating the public regarding the attempt by the politicians to eliminate human medical autonomy from the Canadian population through the various post-legalization cannabis laws on a Federal and/or provincial level, you could argue that the necessity defense applied to you.
The violation of the law you are attempting to avoid by your economic civil disobedient act is “genocide” and “forced labour” and a violation of “dignity”. These laws are international treaties and – arguably – some of the most important laws on the planet. The drug treaties and laws are – arguably – some of the least important (if not the least important) laws on the planet. The drug laws and drug treaties are so unimportant they should be removed immediately, so that these more important treaties can finally have a positive effect on society.
Let’s look at the relevant sections of these treaties more closely:
Convention on the Prevention and Punishment of the Crime of Genocide
Approved and proposed for signature and ratification or accession by General Assembly resolution 260 A (III) of 9 December 1948
The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law, which they undertake to prevent and to punish.
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group. (46)
Universal Declaration of Human Rights
10 December 1948
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. (47)
Convention concerning the Abolition of Forced Labour
(Entry into force: 17 Jan 1959)
Each Member of the International Labour Organization which ratifies this Convention undertakes to suppress and not to make use of any form of forced or compulsory labour . . .
(e) . . . as a means of racial, social, national or religious discrimination. (48)
That’s the chronological order they came into existence – the first two soon after World War 2, and the other one a decade later. Of the three, the Universal Declaration of Human Rights might be the easiest to apply – all one would have to prove is that the drug laws violate the dignity of the individual by attempting to force an individual to become a form of livestock – denying the dignity of human medical autonomy and/or vocational autonomy, or more specifically, human herbal medicine autonomy. This denial of autonomy is a direct violation of the “spirit of brotherhood” spoken of in Article 1.
The forced labor treaty and the genocide treaty, however, require one to prove that the cannabis users, growers and dealers are a nation, and that the creators of the new cannabis laws are trying to destroy – in whole or in part – characteristics of that nation.
In order to apply these laws to the defense of necessity, it will require an attempt to establish a number of definitions of terms that relate to the situation the Canadian cannabis community find themselves in, and then apply them to the particular section of Perka, or the treaty they are found within.
These terms are: A) “imminent risk”, B) “immediate peril”, C) “no reasonable opportunity for an alternative course of action that did not involve a breach of the law”, D) “herbal medicine autonomy”, E) “nation”, and F) “conditions calculated to bring about it’s physical destruction in whole or in part”. These are not the only terms in the case law and the treaties that might apply, but if these terms are explained fully, other elements may also be applied, such as “forcibly transferring children” etc.
- A) “Imminent risk”
Black’s Law Dictionary defines “imminent” as being:
“Near at hand; mediate rather than immediate; close rather than touching, impending on the point of happening; threatening; menacing; perilous. (49)
There is a legal precedent for “imminent danger” to include a risk of an armed force that one can assume will be attacking in the near future. This case differs from the one at bar in that it is used to justify aggression whereas the defendant only wishes to justify assertiveness. In Att.-Gen. For Northern Ireland’s Reference , it states;
“There is material upon which a jury might take the view that the accused had reasonable grounds for apprehension of imminent danger to himself and other members of the patrol if the deceased were allowed to get away and join armed fellow members of the Provisional IRA who might be lurking in the neighbourhood.” (50)
Black’s Law Dictionary defines “imminent danger” as being:
“In relation to homicide in self-defense, this term means immediate danger, such as must be instantly met, such as cannot be guarded against by calling for the assistance of others or the protection of the law.” (51)
Arguably, it is the Cannabis Act, along with the increase in police budgets (52), which puts every Canadian cannabis criminal in immediate danger that “cannot be guarded against by calling for the assistance of others or the protection of the law” because, of course, the law itself is the danger.
- B) “Immediate peril”
Black’s Law Dictionary defines “imminent peril” as being
“That position of danger to the plaintiff in which – if the existing circumstances remain unchanged – injury to him is reasonably certain.” (53)
In the R. v. Ruzic case , the Supreme Court of Canada has thrown out the strict “immediacy” criteria for the defense of duress, an “excuse” for breaking the law similar to necessity. Justice Lebel, writing for the court, pointed out the connection between duress and necessity in the English Common Law;
“Duress of circumstances, which is analogous to our defense of necessity, is available where an accused commits a crime to avert death or serious injury, but no person is demanding that he do so.” (54)
It’s important to note that Justice Lebel does not say, “to avert their own death or serious injury”. One might reasonably assume this means one should be able to act out of necessity to save others from serious injury. Denying one the right to tastes and pursuits is arguably a form of serious injury, as is breeding the capacity to exercise human medical autonomy – or vocational autonomy – out of the human species.
Justice Lebel goes on to write;
This review of the common law defense of duress confirms that, although the common law is not unanimous in the United States, a substantial consensus has grown in Canada, England and Australia to the effect that the strict criterion of immediacy is no longer a generally accepted component to the defense. A requirement that the threat be “imminent has been interpreted and applied in a more flexible manner. The English Court of Appeal held in Hudson that depending on the circumstances, threats of future harm are sufficient to invoke the defense. Hudson remained good law in England and has been adopted by the courts in three Australian states and one territory. However, it is clear from the English cases that there must be a close temporal link between the threat of harm and the commission of the offence. The operative test in the English and Australian cases is whether the threat was effective to overbear the accused’s will at the moment he committed the crime. Moreover, the safe avenue of escape test and the proportionality principle also appear to be key elements of the defense. (55)
Recently, in the coverage of the increased police budgets that accompany the roll-out of legalization, esteemed criminologist professor Neil Boyd was quoted in the newspapers as saying;
“I can certainly accept that there will be some need for policing, because part of the government’s agenda is to get rid of the black market, and that’s not going to happen overnight”. (56)
He also said;
“To sound alarms about how it’s actually going to require more policing, I don’t think it’s entirely logical, but it serves political purposes.” (57)
When esteemed professors of criminology are describing the “getting rid” of the black market for “political purposes”, it’s a good idea to stop and ask if the people being gotten rid of are humans suffering needlessly from government persecution as their representatives in their own community contend. It’s also a good idea to figure out if – rather than a bloody genocide, the state has figured out a bloodless genocide method, targeting only the characteristics of those humans that are being gotten rid of. If the answer to either of these questions indicates a genocide is about to take place, it is a good idea to use the law to prevent genocide rather than wait around until one can only use it in hindsight, to punish those who were complicit. Perhaps those characteristics can be called “human autonomy” or human “medical autonomy” or even “human herbal medicine autonomy” and are of value to human adaptability and human evolution.
- C) “No reasonable opportunity for an alternative course of action that did not involve a breach of the law”
The Justin Trudeau and the Canadian government have repeatedly made the claim that cannabis must be tightly regulated in order to protect the developing minds of young people from harm from cannabis. This “reefer madness” narrative has existed since the 1930’s and has been recently dusted off and justified through studies heavy with bias and which all ignore what’s happening in the cannabis/psychosis/I.Q. general population statistics. (58)
Trudeau claims to want his approach “grounded in science” but there is a lot of evidence that now exists that he and persons of responsibility at every other level of Canadian government and even most of Canada’s academics are unwilling to discuss the science.
“This is the kind of approach we need to take: one grounded in evidence, one grounded in science, one grounded in liberty and the freedom of people to make choices, but at the same time does a better job of protecting the developing brains of our young people,” Trudeau said. “But we don’t need to be all nanny state about it the way Stephen Harper is with his prohibition.” (59)
This “reefer madness 2.0” narrative is probably the most often-utilized excuse for hard-drug cannabis regulations of all the justifications. Along with the myth of “inherent impairment” – a supposed massive vehicular mayhem problem that would come with legalization which has also been disproven many times (potfacts.ca)– these two myths form the foundation of the justification for over-regulation of cannabis in 2018. From 2013 to 2018 it’s been the number 1 talking point when it comes to cannabis and legalization. (60)
Debunking the myth of “inherent harm to developing minds”
It’s a demonstrable fact that the “inherent harm to the developing minds” narrative is a false narrative. Cannabis use rates have increased dramatically, whereas psychosis rates have remained constant and IQ rates have increased nearly everywhere:
Further evidence against a simple causal explanation for associations between cannabis use and psychosocial harm relates to population patterns of the outcomes in question. For example, incidence of schizophrenia seems to be strongly associated with cannabis exposure over a fairly short period (four-fold to five-fold relative risks over follow-up of 10–30 years). Cannabis use appears to have increased substantially amongst young people over the past 30 years, from around 10% reporting ever use in 1969–70, to around 50% reporting ever use in 2001, in Britain and Sweden. If the relation between use and schizophrenia were truly causal and if the relative risk was around five-fold then the incidence of schizophrenia should have more than doubled since 1970. However population trends in schizophrenia incidence suggest that incidence has either been stable or slightly decreased over the relevant time period. (61)
Test score increases have been continuous and approximately linear from the earliest years of testing to the present. For the Raven’s Progressive Matrices test, a study published in the year 2009 found that British children’s average scores rose by 14 IQ points from 1942 to 2008. Similar gains have been observed in many other countries in which IQ testing has long been widely used, including other Western European countries, Japan, and South Korea. (62)
How our rulers avoid the facts shaping their opinions
It is a demonstrable fact that none of the institutions designed to evaluate this claim responded honestly to the general population statistics that proved that cannabis use was not resulting in increases in psychosis or decreases in IQ, that none could point to a causal relationship between cannabis and inherent harm, and that none subjected cannabis harms to a cost-benefit analysis.
In May of 2015, in private correspondence between cannabis activist David Malmo-Levine and Dr. Patty Daly, of Vancouver Coastal Health, the entity that was Vancouver Coastal Health proved itself to be complicit in promoting this “reefer madness” by Dr. Daly ignoring evidence of the general population statistics disproving her own public statements in the matter – she refused to comment on the subject. (See attachment number 1)
In the public hearings mentioned by Dr. Daly, Mr. Malmo-Levine provided evidence debunking the “inherent harm to developing minds” narrative. This was ignored by Vancouver City Council and no comments were made after Malmo-Levine’s presentation.
In June 11th, 2015, David Malmo-Levine debated cannabis prohibitionist Pamela McColl of Smart Approaches to Marijuana. McColl insists Canada has some of the “highest rates of schizophrenia in the world” but won’t discuss whether or not there’s been an increase in psychosis rates that tracks with the increased cannabis use rates. (63)
In April of 2016, I attempted to contact the newly elected Justice Minister, Jody Wilson-Raybould to discuss this matter with her, but was ignored by her office. (See attachment number 2)
Subsequently, Malmo-Levine contacted Dr. Susan Boyd of the Marijuana Task Force and wrote a report on the proper way to legalize cannabis. The report was originally written for the Justice Minister, but since Ms. Wilson-Raybould wasn’t interested in reading it copies were provided to each of the members of the task force. (64)
Included in that report was the information debunking the “developing minds of the young”. Mr. Malmo-Levine supplied each member of the Task Force a copy of the report through Dr. Boyd (see attachment number 3). Dr. Boyd later confided with Malmo-Levine in person that the data was ignored for “no good reason” when the following section of the report was written:
“Health risks associated with marijuana use during adolescence and young adulthood, when brains are still developing, can have greater long-term harm than use during adulthood. This can include the potential for addiction, long-lasting negative effects on proper cognitive and intellectual development, harms to mental health, poor educational outcomes, and reduced life satisfaction and achievement. There is good evidence that regular marijuana use that begins in early adolescence can harm scholastic achievement, and increase the risk of dropping out of school.” (65)
In 2017 Dr. Diane Macintosh was confronted with the general population statistics evidence. In response she claimed that the data isn’t available to evaluate whether or not there’s been an increase in psychosis in Canada and that cannabis use “may only cause psychosis in a small number of users.” (66)
Dr. Macintosh’s statement about the data not being available has subsequently been debunked by Zach Walsh, a UBC researcher specializing in cannabis:
According to Walsh, there appears to be a link between schizophrenia and other psychosis and marijuana use, but this could just be an association rather than causal. He notes that there’s been a dramatic increase in cannabis use in recent years, especially in Canada, but schizophrenia levels have stayed stagnant. (67)
A CBC panel discussion on cannabis and teens called “4:19” took place on April 19th, 2018 – a day before the high holiday of the cannabis community, April 20th. Assembled were all the experts CBC could round up to defend both the new proposed laws and the notion that cannabis harmed the developing mind. Cannabis activist David Malmo-Levine asked the following question:
“Why won’t you address the general population statistics or provide a realistic cost-benefit analysis of cannabis use – and I’ll explain what I mean by that. The general population statistics indicate that psychosis remains steady – at one or two percent – in western societies, and IQ’s go up every year – it’s called the Flynn Effect – but cannabis use rates have skyrocketed since the 1960s. If it actually made our kids stupid or crazy, you’d see IQ rates go down and psychosis rates go up – but we don’t see that. And when I talk about a cost-benefit analysis, I’m talking about: ‘Do you actually care what teens are dying from?’ Because it’s not pot – it’s nothing to do with pot. Teens are dying from suicides, car crashes, and alcohol and opioid overdoses. And cannabis – if it was like the Senate recommended in 2002 – if teens had access to safe places to smoke we could reduce those deaths. Why won’t you address that?” (68)
The CBC had the entire meeting videotaped and at one time it was posted it online. (69) Malmo-Levine’s question was at the point in the video where there was 19 minutes left in the event. It has since been taken down, but in that video you can see their experts try and focus on one aspect of what Mr. Malmo-Levine said – that pot use rates have skyrocketed since the 1960s – they then focus on the fact that use rates decreased a bit after the 1990s – but ignore the fact that use rates went up from the 1960s to the 1990s and they don’t talk about IQ rates or psychosis rates at all.
The reason our rulers don’t operate in good faith
It is clear that the government is not operating in good faith. No academic or politician in a position of responsibility surrounding the creation of these regulations at any level of government is willing to honestly look at the evidence that cannabis is a soft drug and should be regulated as such. The government is not negotiating these laws in good faith.
The reason that the government is not negotiating these laws in good faith is clear. In the CBC reporting on the Allard case, it was revealed that the Harper government had promised the Licensed Producers a “captive market”. (70) When the Harper government first announced the Licensed Producer system, they touted it as a “free market” – the opposite of a “captive market”. (71)
The reason that the Trudeau government has continued the Harper government policy of providing the Licensed Producers with a “captive market” is because many of the Liberal Party elite have invested in and/or control these Licensed Producer corporations. (72)
Similarly, when Trudeau ran for the Prime Minister’s office, he made many promises regarding what his legalization model would look like. He used words such as
“medical marijuana” and “properly licensed dispensaries” and “informed by the lessons learned in the United States” and “listening to partners, to folks in the medical marijuana industry” and “suits Canadians broadly” and “fresh approach” and “home growing” and “freedom”. Once he was elected, his only comments about cannabis regulations were “you can enforce the law”, and by “law” he meant the current prohibition. (73)
It is clear from the above evidence that the government is not operating according to the facts, but rather what is in the economic interests of elites. Activists are justified in doing whatever non-violent illegal activity in order to preserve autonomy and raise awareness of the myth of reefer madness, because the system by which facts should be taken into account when formulating the new law is broken, and there is currently “no reasonable opportunity for an alternative course of action that did not involve a breach of the law”.
Legal arguments in support of civil disobedience
The case law for activists in similar “no good faith” circumstances to utilize civil disobedience by necessity is not vast, but it does exist.
Firstly, there is Leviticus 19:16. In this passage of the Old Testament, God states to Moses;
“Thou shalt not go up and down as a talebearer among thy people: neither shalt thou stand aside when mischief befalls thy neighbour. I am the LORD.” (74)
A modern translation of Leviticus reads;
“Rebuke anyone who sins; don’t let him get away with it, or you will be equally guilty.” (75)
That explains why doing nothing is not an option – only sinners do nothing.
The philosopher Cicero points out that;
The philosopher Henry David Thoreau, in his 1849 book “On the Duty of Civil Disobedience”, wrote,
“As for adopting the ways which the State has provided for remedying the evil, I know not of such ways. They take too much time, and a man’s life will be gone.” (77)
The philosopher John Stuart Mill, in his 1859 book “On Liberty”, wrote,
“ . . . the only stimulus which can keep the ability of the body itself up to a high standard, is liability to the watchful criticism of equal ability outside the body. It is indispensable, therefore, that the means should exist, independently of the government, of forming such ability, and furnishing it with the opportunities and experience necessary for a correct judgment of great practical affairs.” (78)
The philosopher/activist Martin Luther King Jr., in his 1963 “Letter from Birmingham Jail” says much the same thing with these words;
You may well ask: “Why direct action? Why sit-ins, marches and so forth? Isn’t negotiation a better path?” You are quite right in calling for negotiation. Indeed, this is the very purpose of direct action. Nonviolent direct action seeks to create such a crisis and foster such a tension that a community, which has constantly refused to negotiate, is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored. My citing the creation of tension as part of the work of the nonviolent resister may sound rather shocking. But I must confess that I am not afraid of the word “tension.” I have earnestly opposed violent tension, but there is a type of constructive, nonviolent tension, which is necessary for growth. Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondage of myths and half truths to the unfettered realm of creative analysis and objective appraisal, so must we see the need for nonviolent gadflies to create the kind of tension in society that will help men rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood. The purpose of our direct action program is to create a situation so crisis packed that it will inevitably open the door to negotiation. I therefore concur with you in your call for negotiation. (79)
The wisdom of these philosophers and their skeptical view of the infallibility of the state is echoed in the dissenting opinion in US Supreme Court case Adderly v. Florida (1966). Justice Douglas, with Brennan and Fortas concurring, wrote,
“Conventional methods of petitioning may be, and often have been, shut off to large groups of citizens. Legislators may turn deaf ears; formal complaints may be routed endlessly through a bureaucratic maze; courts may let the wheels of justice grind very slowly. Those who cannot afford to advertise in newspapers or circulate elaborate pamphlets may have only a more limited type of access to public officials. Their methods should not be condemned as tactics of obstruction and harassment as long as the assembly and petition are peaceable, as these were.” (80)
In Regina v. Duffy , a British case where a sister came to the aid of her sibling when assaulted, it is written;
“ . . . apart from any special relations between the person attacked and the rescuer, there was a general liberty even as between strangers to prevent felony and that, the appellant’s basic defense being that in circumstances of necessity she had intervened with the sole object of restoring the peace by rescuing a person being attacked, it should have been left to the jury to decide whether, in view of her proved conduct, such a defense could be true . . . ” (81)
Civil Disobedience in Canadian Law
In Canadian law there are at least three places where civil disobedience may be found; In the testimony of high-ranking members of the RCMP, in the Criminal Code itself, and in the unreported and little-known case of H. M. Q. v. Langdon (1996).
During the RCMP Public Complaints Commission assembled after the anti-APEC protests of 1997, Mr. David Malmo-Levine (a protester at APEC) cross-examined Assistant Commissioner Wawryk of the RCMP. When asked if there was room for “conscientious obstruction” combined with “non-violence” in Canada, he answered:
“There’s room for it in Canada.” (82)
Section 37(1) of the Criminal Code, the “preventing assault” section, used to read:
“Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.” (83)
It was replaced with Bill C-26, the Citizen’s Arrest and Self-defence Act of 2012, which replaced sections 34 to 42. The important wording of this section reads:
34 (1) A person is not guilty of an offence if
- (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
- (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
- (c) the act committed is reasonable in the circumstances
34 (2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
- (a) the nature of the force or threat;
- (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
- (c) the person’s role in the incident;
- (d) whether any party to the incident used or threatened to use a weapon;
- (e) the size, age, gender and physical capabilities of the parties to the incident;
- (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
- (f.1) any history of interaction or communication between the parties to the incident;
- (g) the nature and proportionality of the person’s response to the use or threat of force; and
- (h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
34 (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully. (84)
The reason to believe the police are acting unlawfully can be found below in the “nation” and “conditions calculated to bring about its physical destruction in whole or in part” sections below.
In H.M.Q. v. Langdon (et. al), Ontario Court (Provincial) 1996, a decision was made in the favor of activists who ran out of options. Having failed in all their non-violent efforts for many years to save the lives of the helpless Innu people, their supporters presented petitions to the British and Netherlands governments through their respective consuls general in Toronto, and then refused to leave until they received a reply. They were arrested, and for their defense pleaded necessity. The Judge ruled in their favour, upheld the necessity defense, called it “justifiable non-compliance” (arguably the same thing as civil disobedience) and dismissed their charges, stating:
“ . . . I find their refusal to leave the premises when directed, again, within certain limits, is justifiable non-compliance, where the concept of punishment will be incompatible with social justice.” (85)
The Judge presiding over H.M.Q. v. Langdon was Judge Phillips. He relied on R. v. Salvador, 1981, Nova Scotia Supreme Court, Appeal Division (a case similar to Perka in circumstance), Morgentaler v. The Queen (1975) and the Working Paper 29 of the Law Reform Commission of Canada, Criminal Law, the general part, Liabilities and Defences (1982). From the Working Paper 29, the Judge quoted, at. P. 93 of the paper;
“Essentially it involves two factors: one is the avoidance of greater harm or the pursuit of some greater good. The other is the difficulty of compliance with law in emergencies.” (86)
It is submitted that the young, poor and non-white members of the cannabis community, while being a somewhat larger population than the Innu, are a relatively harmless and peaceful people being destroyed by an uncaring and unresponsive government, in concert with other governments, without justification. It is submitted that cannabis activists have been ignored since the LeDain commission came out in 1973 – far longer than the Innu have tolerated their burden. It is submitted that these two cases are more alike than different, in that they both contain desperate, peaceful people at the end of their rope, engaging in civil disobedience – justifiable non-compliance – because everything else has failed.
- “Herbal medicine autonomy”
“Whose property is my body? Probably mine. I so regard it. If I experiment with it, who must be answerable? I, not the State. If I choose injudiciously, does the State die? Oh no.” – Mark Twain, “Osteropathy”, 1901 (87)
The legal concept of herbal medicine autonomy can be traced back to an English proclamation by King Henry the 8th. Known as “The Herbalist’s Charter” of 1543. The text states that those who use “herbs, roots and waters” “within any part of the Realm of England, or within any other the King’s Dominions” to treat any disease can do so without “penalty or lost of their goods”. This act has never been repealed.
Herbalist’s Charter of Henry the VIII
Annis Tircesimo Quarto and Tricesimo Quinto. Henry VIII Regis. Cap. VIII. An Act That Persons, Being No Common Surgeons, May Administer Outward Medicines
Were in the Parliament holden at Westminster in the third Year of the King’s most gracious reign, amongst other things, for the avoiding of Sorceries, Witchcrafts, and other Inconveniences, it was enacted, that no Person within the City of London, nor within Seven Miles of the same, should take upon him to exercise and occupy as Physician or Surgeon, except he be first examined, approved, and admitted by the Bishop of London and other, under and upon certain Pains and Penalties in the same Act mentioned: Sithence the making of which said Act, the Company and Fellowship of Surgeons of London, minding only their own Lucres, and nothing the Profit or ease of the Diseased or Patient, have sued, troubled, and vexed divers honest Persons, as well Men as Women, whom God hath endued with the Knowledge of the Nature, Kind and Operation of certain Herbs, Roots, and Waters, and the using and ministring of them to such as been pained with customable Diseases, as Women’s Breast’s being sore, a Pin and the Web in the Eye, Uncomes of Hands, Burnings, Scaldings, Sore Mouths, the Stone, Strangury, Saucelim, and Morphew, and such other like Diseases; and yet the said Persons have not taken anything for their Pains or Cunning, but have ministered the same to poor People only for Neighborhood and God’s sake, and of Pity and Charity: And it is now well known that the Surgeons admitted will do no Cure to any Person but where they shall be rewarded with a greater Sum or Reward that the Cure extendeth unto; for in case they would minister their Cunning unto sore People unrewarded, there should not so many rot and perish to death for Lack or Help of Surgery as daily do; but the greatest part of Surgeons admitted been much more to be blamed than those Persons that they troubled, for although the most Part of the Persons of the said Craft of Surgeons have small Cunning yet they will take great sums of Money, and do little therefore, and by Reason thereof they do oftentimes impair and hurt their Patients, rather than do them good. In consideration whereof, and for the Ease, Comfort, Succour, Help, Relief, and Health of the King’s poor Subjects, Inhabitants of this Realm, now pained or diseased: Be it ordained, established, and enacted by Authority of this present Parliament, That at all Time from henceforth it shall be lawful to every Person being the King’s subject, having Knowledge and Experience of the Nature of Herbs, Roots, and Waters, or of the Operation of the same, by Speculation or Practice, within any part of the Realm of England, or within any other the King’s Dominions, to practice, use, and minister in and to any outward Sore, Uncome Wound, Apostemations, outward Swelling or Disease, any Herb or Herbs, Ointments, Baths, Pultess, and Emplaisters, according to their Cunning, Experience, and Knowledge in any of the Diseases, Sores, and Maladies beforesaid, and all other like to the same, or Drinks for the Stone, Strangury, or Agues, without suit, vexation, trouble, penalty, or loss of their goods; the foresaid Statute in the foresaid Third Year of the King’s most gracious Reign, or any other Act, Ordinance, or Statutes to the contrary heretofore made in anywise, notwithstanding. (88)
Medical Autonomy rights
The right to medical autonomy manifests in various ways in our society, from the principle of “informed consent” to the Nuremburg Code that arose from abuses by Nazi doctors in World War 2, to the Morgenthaler Supreme Court of Canada decision (1988):
The right to “liberty” contained in s. 7 guarantees to every individual a degree of personal autonomy over important decisions intimately affecting his or her private life. Liberty in a free and democratic society does not require the state to approve such decisions but it does require the state to respect them. (89)
Our legal right to autonomy in Canada is most clearly articulated by Justice La Forest in B(R) v. Children’s Aid Society, in 1995, when, in a case involving the right of children to access medical attention regardless of the wishes of the parents, speaking for the majority, he 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.” (90)
Furthermore, according to Justices Cory, Iacobucci and Major, “an individual may refuse any medical procedures upon her own person…” (91)
The Supreme Court of Canada in Malmo-Levine (2003) quoted other parts of the B® v. Children’s Aid Society decision, but refused to enter into a discussion of the phrase “own life” and it’s implications in drug law, choosing instead to focus on the phrase “fundamental personal importance” (paragraph 85), as if persecuting harmless people for their unimportant characteristics is somehow less evil than persecuting them for their important characteristic. This provides a “loophole” for persecution that should not exist in any country that promises “liberty” to its citizens – or “dignity” for that matter.
When the Supreme Court argued (as they did in paragraph 86) that protecting all harmless lifestyles would make Canada “ungovernable”, one only needs to look at the Constitution of Holland, who protect human autonomy in it’s entirety in article 1 of it’s constitution:
All persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on the grounds of religion, belief, political opinion, race or sex or on any other grounds whatsoever shall not be permitted. (92)
The term “any other grounds whatsoever” in Article 1 of Holland’s Constitution is proof that the Supreme Court of Canada erred in fact. You can protect human autonomy fully, without exception, AND govern a country successfully.
The Supreme Court also erred in law, as Canada has obligated itself in international law to live up to the standard set by the Netherlands when it signed the Universal Declaration of Human Rights:
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (93)
The term “nation” appears in both the genocide and forced labor conventions. What is meant by the term “nation”, legally speaking?
“An independent body politic. A society of men united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength.” (94)
“People distinct from other people, USUALLY because of language or government.” (95)
I think the cannabis community qualifies using either definition. The cannabis community is distinct from others in their substance and vocation orientation, similar to how the gay community is distinct from others in their sexual orientation. If we would protect the gay community with the genocide treaty from another attempt at their genocide (as was attempted in WW2 by the Nazi regime) we should protect the cannabis users – and all drug heretics – for the same reason, using the same methods.
If a judge felt like making a sweeping gesture towards universal drug peace, the group being targeted could also be viewed as the “medically autonomous”, which would include all the other criminal users of illegal drugs. The courts should not shy away from the opportunity to end the entire drug war as a side effect of ending the war on the cannabis community, for it’s based upon as many lies as the war on cannabis is, with as much of a violation of dignity to the users of heroin, cocaine and other hard drugs as it is a violation of dignity to the cannabis community. If we don’t control our medicinal choices, the phrase “own life” is hollow.
If other inclusive definitions of nation are required in order to be convincing, they are available. (96)
- F) “Conditions calculated to bring about it’s physical destruction in whole or in part”.
The word “genocide” was coined by a Jewish-Polish lawyer named Raphael Lemkin. He had fought the Nazis as a member of the Polish Army in WWII then escaped to the USA to begin work constructing a new law to prevent the holocaust, or scapegoating similar to it, from occurring again.
His work lead to the creation of the Convention for the Prevention and Punishment of the Crime of Genocide (entered into force on 12 January 1951). One could tell he was interested in preventing not only the death camps and gas chambers, but all the steps that led up to such things, because his first draft of the treaty was to include ‘forced assimilation’ into the definition of genocide. (97)
The current official definition, found in the ratified-in-1951 treaty does include “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.” This is arguably a different way of saying “forced assimilation”, as if you forced some scapegoated group to assimilate you would be destroying what made them a distinct group – this would bring about their “physical destruction” without necessarily killing any of the individuals within the group. For example, let’s pretend bigoted Canadian politicians got elected and passed some laws against Jews and Muslims – the “Convert or Incarcerate” act of 2022. And let’s pretend they had a massive budget and threw everyone in jail and tore down all the places of worship. That’s genocide – they don’t have to kill a single person to do it, and that’s exactly what Lemkin wanted to guard against.
Another clue to genocide’s true meaning is to break it up and examine each morpheme individually. ‘Cide’ means to kill, as in homicide or suicide. “Genus” does not mean a large number, but a type or kind. (98) In other words, genocide literally means destroying a characteristic within a type or kind of people – removing the thing about them that makes them unique – rather than just killing large numbers of people. (99)
The problem with the genocide treaty is that nobody has ever attempted to use it to prevent a genocide that was not yet put in motion. In fact, it’s hardly been used at all to punish genocides that were acknowledged as such. (100) There have been at least a dozen instances of genocide since the genocide convention was put into effect in 1951, and only four of them have been brought to trial. (101)
Arguably, a more inclusive definition of genocide would benefit humanity, and may have the intended effect that the more exclusive definitions have failed to provide.
5) Anti-Monopoly/Cartel/Captive market
We all have a right to a job. In the 1985 case 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.” (102)
In the US law dictionary by John Bouvier, under the “liberty” section, number 6 is,
“Protection of individual property, which requires unrestrained action in producing and exchanging, the prohibition of unfair monopolies, commercial freedom . . .” (103)
As was pointed out above, in the CBC reporting on the Allard case, it was revealed that the Harper government had promised the Licensed Producers a “captive market”. (104) Under the dictionary definition of “captive market” it states;
There is no doubt that the Harper/Trudeau LP system is a monopoly/cartel, and given the fact that it’s based upon lies about cannabis making kids stupid and crazy, it’s arguably an unfair monopoly. And “keeping it out of the hands of children” is the excuse used to justify the “secure production” and “traceability” and “keeping it away from criminal elements” excuses for the monopoly:
“If you accept as a starting point that you should have secure production, traceability, and keeping it away from criminal elements and out of the hands of children, then you can’t have unregulated shops opening on street corners all over the country where the regulation is, basically, ‘Trust me,'” he said. (106)
The argument that cannabis is inherently harmful to young people has been addressed in the necessity section above. If cannabis was regulated like another popular herbal medicine – organic, fair trade coffee beans – quality control concerns and labor concerns could be addressed without any monopoly or cartel – thus proving the “captive market” is unnecessary and a product of greed, thus qualifying as an “unfair” monopoly.
Similar baseless myths were used to make margarine illegal in Canada. This case is a Supreme Court case known as the “Reference Re Validity of Section 5(a) of the Dairy Industry Act” (1949), also known as the “Margarine Reference”;
In this case, Parliament had legislated against the production and trade of margarine, in order to give dairy businesses assurances that margarine would not threaten their existence. This legislation actually dated back to 1886, and it was claimed in the law that the real purpose was to target a product that was “injurious to health.” If true, that would have made margarine a fair target for criminal law, but the federal government admitted before the courts that the assessment was simply false. … Rand J, in his concurring opinion for the majority, struck down the prohibition on production of margarine on the grounds that it was not valid criminal law.
Two requirements must be met for a law to be criminal in nature:
- The law must be a prohibition with a penal sanction.
- The law must be directed towards a public purpose.
Rand also listed a few objectives that would qualify as legitimate public purposes, namely “Public peace, order, security, health, morality.” . . . At the Privy Council: The Supreme Court ruling was upheld by the Board, which responded to the points appealed thus:
- The criminal law power is not unlimited, in agreeing with Rand J’s observation:
The public interest in this regulation lies obviously in the trade effects: it is annexed to the legislative subject matter and follows the latter in its allocation to the one or other legislature. But to use it as a support for the legislation in the aspect of criminal law would mean that the Dominion under its authority in that field, by forbidding the manufacture or sale of particular products, could, in what it considered a sound trade policy, not only interdict a substantial part of the economic life of one section of Canada but do so for the benefit of that of another. Whatever the scope of the regulation of interprovincial trade, it is hard to conceive a more insidious form of encroachment on a complementary jurisdiction. (107)
“Non-Licensed Producer cannabis” is to “Licensed Producer Cannabis” what margarine is to butter – a scapegoated product.
The fact is that there has only been one head-to-head quality control test between Licensed Producer cannabis and black market cannabis – and the black market cannabis came out cleaner and of higher quality in every category. (108)
The fact is that Licensed Producer cannabis is said to be “cleaner” than black market cannabis, but the very system that is set up to ensure quality is broken. Organic standards – or even limits on heavy metals – could be easily instituted by Health Canada – but they are avoided to save the Licensed Producers on fertilizer costs. (109)
Test results do not have to be made public (or even available to those on an Licensed Producer advisory board) and Health Canada has been proven complicit in helping the licensed producers hiding test results from the public. (110) It is the Licensed Producer cannabis that is “injurious to health”, not the black market cannabis.
Setting organic standards for growing would address these quality control issues. This solution was brought up by activists and ignored by the government. (111)
6) Revisiting Malmo-Levine
The landmark US Supreme Court case Roe v. Wade was about women’s autonomy – specifically that “women could only participate freely and equally in society if they have the right to make autonomous decisions about pregnancy.” (112) There is now talk of this famous case in favour of medical autonomy being “revisited” – that is to say, providing anti-abortion activists the opportunity to repeal it. (113)
The other case that is being discussed within the context of Judge Kavanaugh’s appointment to the US Supreme court is United States v. Nixon – a case that “forced President Richard Nixon to turn over the Watergate tapes, leading to the end of his presidency”. “But maybe Nixon was wrongly decided — heresy though it is to say so . . .” Kavanaugh stated in a discussion that was published in the January-February 1999 issue of the Washington Lawyer. (114)
It is respectfully submitted that – if the United States – the land of the free and the home of the brave – is revisiting Supreme Court cases which defend autonomy and limit the powers of tyrants – then it should also be OK if Canada – the true north strong and free – revisits Supreme Court cases which deny autonomy and empower tyrants. Our freedom-touting North American countries cannot claim that only progressive, pro-liberty cases can be revisited – justice would not be seen to be done in such a one-sided situation. The courts would be seen as a tool of tyrants in such a situation.
If the rules about revisiting Canadian Supreme Court cases involve either a change in the Chief Justice (115) or a change in the rules in question, (116) then R. v. Malmo-Levine qualifies as “revisitable” either way.
The issue of the “revisitation” of a law at the Supreme Court level was recently addressed in Carter v Canada (AG), 2015 SCC 5. (117)
Let’s assume the Stare decisis ruling in Carter applies to Malmo-Levine. What would the argument be?
When speaking about the errors of judges, a particular language is deemed acceptable. The judge either erred in law, or erred in fact. The word “err” is the root of “error”, “erratic” and “erroneous” and means, literally, to “stray”.
An “err in law” is, according to Black’s Law Dictionary, “a mistake that is made by the court when applies the law to the case in hand.” (118) An “err in fact” is “the error made when a court gives a judgment or verdict and doesn’t know of a fact.” (119)
Err in Law
For example, it was an err in law that the Supreme Court of Canada in R. v. Malmo-Levine said that (in paragraphs 104 and 111) the harm principle was not a principle of fundamental justice:
104 We think it right to state at the outset that we do not agree that the “harm principle” plays the essential role assigned to it by the appellants in testing the criminal law against the requirements of the Charter . Further, with respect to our colleague’s focus on the availability (if not the imposition) of imprisonment for the simple possession of marihuana, we think the punishment debate is more appropriately addressed under s. 12 of the Charter (“cruel and unusual treatment or punishment”), rather than under s. 7 , although clearly it has implications for both s. 7 and s. 1 , as will shortly be discussed.
111 We agree that there is a form of “double threshold”, in that the Charter imposes requirements that are separate from those imposed by ss. 91 and 92 of the Constitution Act, 1867 . However, we do not agree with the attempted elevation of the harm principle to a principle of fundamental justice. That is, in our view the harm principle is not the constitutional standard for what conduct may or may not be the subject of the criminal law for the purposes of s. 7 . (120)
They didn’t explain how such a “non-principle” was found in most if not all of the major constitutions and human rights works that informed the creation of the Canadian Constitution.
The Harm Principle is found in article 5 of the first English-language constitution from 1647:
“That the laws ought to be equal, so they must be good and not evidently destructive to the safety and well-being of the people.” (121)
The Harm Principle is found in articles 4 and 5 of the first French constitution (and first nationally-adopted constitution) from 1789:
“Liberty consists in being able to do anything that does not harm others: thus, the exercise of the natural rights of every man has no bounds other than those that ensure to the other members of society the enjoyment of these same rights. These bounds may be determined only by Law. The Law has the right to forbid only those actions that are injurious to society. Nothing that is not forbidden by Law may be hindered, and no one may be compelled to do what the Law does not ordain.” (122)
The harm principle is not only found in John Stuart Mill’s “On Liberty”, but in the very next sentence immediately following the list of political rights that Pierre Trudeau copied nearly word for word for the Canadian Constitution. The Supreme Court erred in not recognizing the importance of that proximity of context – that Mill’s list of liberty-related rights was left incomplete by excluding “tastes and pursuits” being mentioned by name in the Canadian Constitution, leaving the state with a “scapegoating loophole” which allowed the persecution of the harmless as an option of Canadian statecraft. This element was not discussed at all by the Supreme Court, but should have been;
“This, then, is the appropriate region of human liberty. It comprises, first, the inward domain of consciousness; demanding liberty of conscience, in the most comprehensive sense; liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological. The liberty of expressing and publishing opinions may seem to fall under a different principle, since it belongs to that part of the conduct of an individual which concerns other people; but, being almost of as much importance as the liberty of thought itself, and resting in great part on the same reasons, is practically inseparable from it. Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow; without impediment from our fellow-creatures, so long as what we do does not harm them even though they should think our conduct foolish, perverse, or wrong. Thirdly, from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; 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. No society in which these liberties are not, on the whole, respected, is free, whatever may be its form of government; and none is completely free in which they do not exist absolute and unqualified. The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental or spiritual.” (123)
One might rightly argue that the “pursuit of happiness” mentioned in the US Declaration of Independence was one of the “tastes and pursuits” that Mill had in mind:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness . . .” (124)
The Harm Principle is even found in recent US case law – in the case of the People v. Alvarez, from the Supreme Court of California, in May, 2002;
 In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself — i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. (125)
The Harm Principle even found it’s way into the drug laws, in 1994, and again in 2009:
In July 2009, the Supreme Court of Justice reconfirmed the 1994 ruling of the Constitutional Court by determining that the possession of drugs for personal use “cannot be the object of any punishment,” when the incident occurred “in the exercise of his personal and private rights, [and]the accused did not harm others.” (126)
The Supreme Court of Canada did not explain how the harm principle was both 1) not a principle of fundamental justice, and 2) found in all these sources of fundamental justice.
Err in Fact
Or, for another example, the Supreme Court of Canada erred in fact in R. v. Malmo-Levine when it compared the harms that came with cannabis use and cannabis growing and dealing with the harms that came with animal abuse (paragraph 109 and 117), pimping (paragraph 109), cannibalism (paragraph 117), bestiality (paragraph 117), and the incestuous (paragraph 119). (127)
Had they thought to bring up these concerns in court instead of pretending to be convinced by the appellants, Malmo-Levine and the other appellants could have easily pointed out how the harms that came with cruelty to sentient beings, the exploitation of the vulnerable, the desecration of corpses and denials of basic familial sexual sanctuary were so inherently understood that no activist groups – certainly no popular activist groups – have arisen in any of the mentioned communities, whereas the justification for the cannabis laws continue to be understood as such hogwash that these laws continue to be violated by tens of thousands of people who gather for the expressed purpose of civil disobedience, and do so all over the world, sometimes at great risk of arrest. There is no “cannibal culture” magazine. Cannibals do not hold picnics. Cannibals don’t open restaurants.
In paragraph 115 of their decision in Malmo-Levine, the Supreme Court enshrined both scapegoating and paternalism in one horrible sentence, when they wrote;
“ The state may sometimes be justified in criminalizing conduct that is neither not harmful . . . or that causes harm only to the accused.” (128)
The Supreme Court should be asked whether or not the abuses of scapegoating and paternalism are not more difficult to deal with than teaching proper cannabis use, growing and dealing to the “vulnerable groups” (the pregnant, the immature youth, chronic users and the mentally ill) that they mentioned dozens of times throughout their decision. (129)
The Supreme Court erred in law when it refused to provide Section 15 (equality) protection to both “substance orientation” and “vocation orientation”, for the reasons mentioned in the “autonomy” section above.
There were many errors of law and of fact to be found in R. v. Malmo-Levine – too many to mention here – but the errors have been collected and are available for all to see if a spirited and comprehensive attack is required. (130)
7) The Burden of Proof
Every time one mentions a fact in court, it must be “proven” to be true. Many of the facts presented here are “inadmissible” in court unless one of two things happens. Either there is a “voir dire” (131) – a “trial within a trial” – where the Judge hears what facts you would be relying on before you attempt to prove them and then assumes them to be true (the judge may not want to or choose to do this), or else you need “expert witnesses” to properly place the facts before the court:
It is a time-honored rule of common law (and civil law) jurisdictions that witnesses ought only to relate their personal observations of events. They are not to attempt to enter their opinions into evidence in a court of law. The major exception to this is the expert witness who, because of their knowledge or experience in a specific area, is allowed to give opinion evidence. Generally, the rationale behind this is that judges can’t possibly be knowledgeable in all areas of human activity and in any event, many cases before the courts turn on a scientific issue or upon special knowledge. Examples abound but the whole realm of medicine and especially cases where medical malpractice is alleged, can only be resolved through referral to expert evidence. (132)
Sometimes, experts can file a written report, or testify by telephone. (133) The big question is, whose responsibility is it to gather up the expert witnesses and prove the case? Should it be on the potential scapegoat to make the effort? Or should it be on the party who is creating the criminals in the first place?
Let us now return to a very important historical quote – one that began the article you are almost finished reading. It came from Justice Robert Jackson – the only man to both sit on the US Supreme Court and act as a prosecutor at the Nuremberg War Crimes Trials. He wrote;
“What the world needs is not to turn one crowd out of concentration camps and put another crowd in, but to end the concentration camp idea.” (134)
Arguably, Jackson was the point man of the civilized world’s struggle against fascism and had a position of great insight into understanding what lessons needed to be learned from World War 2. Jackson understood fully what the world needed – which was to “end the concentration camp idea” – i.e. end scapegoating forever.
If we as a human race are interested in ending the concentration camp idea, we should not burden present or future scapegoats with the material obstacles involved in gathering up witnesses required to prove their harmlessness. Most scapegoats couldn’t even muster the resources or the free time necessary to make the argument, let alone provide all the witnesses required to launch a convincing argument. This author knows that fact first hand.
Instead, we should always insist that the scapegoater prove an inherent harm – a harm intrinsic to the accused community in question – one that could be subject to the questions, the research and the counter-evidence gathered by the accused community, thus making it much more difficult to fill a concentration camp with millions of harmless people.
The point is that if you know there’s an injustice out there, resist it. Resist it as peacefully and assertively as possible. We only have one life to live on planet earth. Cannabis is our co-evolutionary plant partner – any honest review of the history attests to that fact. (135) Legalizing it for everyone to benefit from will help propel us into a sustainable species – economically, ecologically, and politically. We must now recognize the importance of maximizing our relationship with cannabis by treating it like coffee beans (136) – for nearly everyone to grow, sell or use – rather than like a potentially lethal drug, provided by the few, with little in regards to labor rights or a working quality control process that guarantees purity and quality or profit sharing, community heritage, sustainability . . . or the problems that come with the exploitative, suffering-laden and shoddy business plans that result in great concentrations of wealth. The gardeners and farmers and sick and intelligent and free people of the world are relying on you to sacrifice your time and energy and risk your money and your freedom in order to attempt to find a few good judges – or at the very least expose the justice system as complicit in the genocide of the medically autonomous. If you can afford a lawyer, get one, because judges like everything presented in the proper format. But if you can’t afford a lawyer, just do it yourself. If the judge wants to help you, presentation won’t matter as much as having the truth on your side, and if the judge wants to ignore you, having a lawyer won’t help too much either. Be brave. Look everyone in the eye. Explain there’s no inherent harm to proper cannabis use, and you have the same right to dignity as the user of any other soft drug or herbal medicine. It’s your best chance of becoming what you want to see in the world, if what you want to see is humans living free and in harmony with each other and the planet.
(1) 1964, The Collected Works of Mahatma Gandhi, Volume XII, April 1913 to December 1914, Chapter: General Knowledge About Health XXXII: Accidents Snake-Bite, (From Gujarati, Indian Opinion, 9-8-1913), Start Page 156, Quote Page 158, The Publications Division, Ministry of Information and Broadcasting, Government of India. (Collected Works of Mahatma Gandhi at gandhiheritageportal.org)
(18) (para 8) https://www.icmag.com/ic/showthread.php?t=95181
(20) (Paras 111, 161, 165, 166, 175) https://www.canlii.org/en/on/onca/doc/2003/2003canlii30796/2003canlii30796.html
(29) plant breeder means an individual who is recognized by the Canadian Seed Growers’ Association as a plant breeder, under the Canadian Regulations and Procedures for Breeder Seed Crop Production, published by the Canadian Seed Growers’ Association, as amended from time to time. (sélectionneur de plantes)
To be granted recognition as a fully qualified Plant Breeder an individual must meet the following criteria:
- Ph.D. in plant breeding plus 1 year independent plant breeding experience in a country participating in the OECD Seed Schemes;
M.Sc. in plant breeding plus 3 years independent plant breeding experience in a country participating in the OECD Seed Schemes;
B.Sc.A. plus 10 years on-the-job training (5 years in a country participating in the OECD Seed Schemes) plus release of a recognized variety.
Ph.D or M.Sc. in a closely related field/discipline plus seven years on-the-job training, including at least one year training in a country participating in the OECD Seed Schemes. The number of years of training may be reduced depending on the amount and relevancy of formal training in plant breeding.
Ph.D, M.Sc., or B.Sc. in an unrelated field/discipline plus qualification as an Associate Plant Breeder plus successful completion of graduate level course work or equivalent in plant breeding.
(36)  Carter states the following on overbreadth:
 The overbreadth inquiry asks whether a law that takes away rights in a way that generally supports the object of the law, goes too far by denying the rights of some individuals in a way that bears no relation to the object: Bedford, at paras. 101 and 112-13. Like the other principles of fundamental justice under s. 7, overbreadth is not concerned with competing social interests or ancillary benefits to the general population. A law that is drawn broadly to target conduct that bears no relation to its purpose “in order to make enforcement more practical” may therefore be overbroad (see Bedford, at para. 113). The question is not whether Parliament has chosen the least restrictive means, but whether the chosen means infringe life, liberty or security of the person in a way that has no connection with the mischief contemplated by the legislature. The focus is not on broad social impacts, but on the impact of the measure on the individuals whose life, liberty or security of the person is trammelled.
 The Supreme Court in Bedford provided helpful guidance on this principle:
 Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part. At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts. For instance, the law at issue in Demers required unfit accused to attend repeated review board hearings. The law was only disconnected from its purpose insofar as it applied to permanently unfit accused; for temporarily unfit accused, the effects were related to the purpose.
 Overbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others. Despite this recognition of the scope of the law as a whole, the focus remains on the individual and whether the effect on the individual is rationally connected to the law’s purpose. For example, where a law is drawn broadly and targets some conduct that bears no relation to its purpose in order to make enforcement more practical, there is still no connection between the purpose of the law and its effect on the specific individual. Enforcement practicality may be a justification for an overbroad law, to be analyzed under s. 1 of the Charter.
 An ancillary question, which applies to both arbitrariness and overbreadth, concerns how significant the lack of correspondence between the objective of the infringing provision and its effects must be. Questions have arisen as to whether a law is arbitrary or overbroad when its effects are inconsistent with its objective, or whether, more broadly, a law is arbitrary or overbroad whenever its effects are unnecessary for its objective (see, e.g., Chaoulli, at paras. 233-34).
 As noted above, the root question is whether the law is inherently bad because there is no connection, in whole or in part, between its effects and its purpose. This standard is not easily met. The evidence may, as in Morgentaler, show that the effect actually undermines the objective and is therefore “inconsistent” with the objective. Or the evidence may, as in Chaoulli, show that there is simply no connection on the facts between the effect and the objective, and the effect is therefore “unnecessary”. Regardless of how the judge describes this lack of connection, the ultimate question remains whether the evidence establishes that the law violates basic norms because there is no connection between its effect and its purpose. This is a matter to be determined on a case-by-case basis, in light of the evidence.
Allard v. Canada, 
 It is necessary to determine the object of the prohibition, since a law is only arbitrary if it imposes limits on liberty or security of the person that have no connection to its purpose: Canada (Attorney General) v. Bedford, 2013 SCC 72 (CanLII),  3 S.C.R. 1101, at para. 98.
 The Crown does not challenge the Court of Appeal’s conclusion that the object of the prohibition on non-dried forms of medical marihuana is the protection of health and safety. However, it goes further, arguing that the restriction protects health and safety by ensuring that drugs offered for therapeutic purposes comply with the safety, quality and efficacy requirements set out in the Food and Drugs Act, R.S.C. 1985, c. F-27, and its regulations. This qualification does not alter the object of the prohibition; it simply describes one of the means by which the government seeks to protect public health and safety. Moreover, the MMARs do not purport to subject dried marihuana to these safety, quality and efficacy requirements, belying the Crown’s assertion that this is the object of the prohibition. We therefore conclude that the object of the restriction to dried marihuana is simply the protection of health and safety.  The question is whether there is a connection between the prohibition on non-dried forms of medical marihuana and the health and safety of the patients who qualify for legal access to medical marihuana. The trial judge concluded that for some patients, alternate forms of administration using cannabis derivatives are more effective than inhaling marihuana. He also concluded that the prohibition forces people with a legitimate, legally recognized need to use marihuana to accept the risk of harm to health that may arise from chronic smoking of marihuana. It follows from these findings that the prohibition on non-dried medical marihuana undermines the health and safety of medical marihuana users by diminishing the quality of their medical care. The effects of the prohibition contradict its objective, rendering it arbitrary: see Bedford, at paras. 98-100.
(40) “[S]tate actions or legislative responses to a problem that are so extreme as to be disproportionate to any legitimate government interest.” (Canada (Attorney General) v. P.H.S. Community Services Society,  3 S.C.R. 134 at para. 133.)
The Supreme Court of Canada orders the Federal Minister of Health to grant a safe injection clinic an exemption to the prohibition on possession of illegal drugs. Denying the services of the clinic to the population it serves is “..grossly disproportionate to any benefits that Canada might derive from presenting a uniform stance on the possession of narcotics.”
(44) Common law principles continued
(3) Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament.
(45) Perka v. The Queen (1984) Supreme Court of Canada
The Declaration continues to be widely cited by governments, academics, advocates, and constitutional courts, and by individuals who appeal to its principles for the protection of their recognized human rights.
(49) Black’s Law Dictionary, 6th Edition, p. 750
(50) Att.-Gen. For Northern Ireland’s Reference  AC at p.138B
(51) Black’s Law Dictionary, 6th Edition, p. 750
(53) Black’s Law Dictionary, 6th Edition, p. 750-751
(54) Label, J., R. v Ruzic , SCC 24. File No.: 26930, at paragraph 68
(55) Ibid, at paragraph 86
(56) “Canadian police are calling for more funding to enforce cannabis laws after legalization. Why?” Solomon Israel – 01/11/2018
(59) Trudeau Slams Harper’s ‘Nanny State’ Stance On Marijuana (VIDEO) 10/10/2013 Michael Bolen The Huffington Post https://www.huffingtonpost.ca/2013/10/10/trudeau-harper-marijuana-video_n_4077491.html
(60) “Research has shown the negative impact of marijuana on developing minds. As a child psychiatrist, I have seen firsthand the tragic consequences on young Canadians. We need to do more, and the Canadian Medical Association encourages a public health approach that includes a nationwide marijuana cessation campaign to ensure our youth are aware of the real risks and harms associated with marijuana usage.”
Dr. Gail Beck, Member, Canadian Medical Association Board of Directors
Health Canada Highlights Dangers of Marijuana Use for Youth OTTAWA, April 30, 2014
“But the fact is we want to keep marijuana out of the hands of the developing brains of our teenagers.”
Justin Trudeau defends marijuana stance, says he won’t let Tory attack ads knock him off course, August 17, 2014 https://nationalpost.com/news/politics/justin-trudeau-defends-marijuana-stance-says-he-wont-let-tory-attack-ads-knock-him-off-course
“There’s no evidence that (legalization and regulation) won’t impact youth, but there’s also no evidence that it will,” said Rebecca Jesseman, a policy analyst with the Health Canada-funded Canadian Centre on Substance Abuse. She said a well-regulated regime — which banned advertising and marketing, gave young Canadians information on the effects of cannabis on developing brains, and used taxes to keep prices relatively high — has the potential to prevent an increase in youth consumption.
The pot challenge: Legalize while keeping kids safe
PETER O’NEIL, VANCOUVER SUN AUGUST 21, 2014
“He said Canadians want a debate based on logic and evidence when it comes to marijuana laws in the country. Current marijuana laws are failing to protect teens from the dangers of the drug and are fuelling criminal enterprises by keeping it illegal, he said.”
Justin Trudeau: Health Canada Anti-Pot Ads Not Wise Use Of Taxpayer Cash, The Canadian Press 08/14/2014 https://www.huffingtonpost.ca/2014/08/14/justin-trudeau-pot-attack-ads_n_5680566.html
“Austin said Trudeau started by saying that marijuana was dangerous for young people, because their minds are still developing, but that he believes regulating pot will make it safer for children.”
MacKay claims outrage over Trudeau’s discussing marijuana legalization with school pupils, NOVEMBER 14, 2013
“A reporter later confirmed that in fact, Trudeau’s response was that marijuana was dangerous for young people because their minds were still developing and that regulating pot would reduce their access to it.”
Vancouver MP claims Liberal party promoting marijuana to kids
CBC News · Jun 20, 2014
“Some brains are more vulnerable than others. Trouble is, we don’t always know who has a vulnerable brain. As an adult, using pot is a personal decision, but when advising our children, we must consider what they stand to lose and what the pot-seller/user has to gain by attempting to discredit the science. It’s a no-brainer: the evidence overwhelmingly supports the need to protect developing brains.”
“You Can’t Deny Marijuana Is Dangerous For Developing Minds”, Dr. Diane McIntosh, Psychiatrist and clinical assistant professor at the University of British Columbia 04/08/2016 https://www.huffingtonpost.ca/diane-mcintosh/marijuana-developing-brain_b_9643654.html
“The CMA said in the submission that ideally the legal limit would be 25, because the brain is still developing until about that age. But the group said a lower legal age is needed to keep youth from turning to criminals to buy pot.”
CMA recommends minimum age of 21 to smoke pot – Doctors’ group wants limits on distribution and marketing of marijuana products
Catherine Cullen · CBC News · Sep 07, 2016
“Bill C-45 would make it legal for young drivers 18 years and older to smoke a joint, or a number of joints, and to possess 30 grams legally. The Canadian Medical Association is saying that it is dangerous, we should not do that, and that people should be at least 21. At age 25 and older, developing minds will not be affected as severely. It is recommending 25 as the ideal legal age, but would agree with 21. The government ignored the scientific evidence and has gone ahead with the age of 18.”
Mr. Mark Warawa (Langley—Aldergrove, CPC): 42ND PARLIAMENT, 1ST SESSION EDITED HANSARD • NUMBER 182 MONDAY, MAY 29, 2017
“I have travelled across the country and talked to parents who are concerned about their kids and they are worried about three things basically. They are worried about the health of their kids. They are worried about the effects that cannabis can have on their health and on their developing minds, and they want to restrict their access to it.”
Bill Blair Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Debates of May 30th, 2017, House of Commons Hansard #183 of the 42nd Parliament, 1st Session.
“Why would we allow these youth, with these developing minds, to continue to use this dangerous drug?”
Mark Warawa Langley—Aldergrove, BC, Debates of May 30th, 2017, House of Commons Hansard #183 of the 42nd Parliament, 1st Session.
Asked if he felt pressured over the July deadline, Bill, a former police chief, said: “I feel pressured to get it right,” citing “evidence” and scientific research as important for consultation. He added: “Evidence supports the idea [marijuana]it is not a benign drug and can be dangerous for young.” Canadian Prime Minister Justine Trudeau himself admitted that marijuana can be “problematic” for the “developing minds,” as its THC component can interfere with brain functions for growing teenagers.
Canadian MP Tasked on Cannabis Consultation Prioritizes “Evidence” over Deadlines Dina Al-Shibeeb. January 24, 2018 https://www.puffpuffpost.com/canadian-mp-tasked-on-cannabis-consultation-prioritizes-evidence-not-deadlines/
Connelly said one of the main goals the government has articulated about legalization is to ensure marijuana stays out of the hands of young people. She said that’s an important goal, because the drug has a significant impact on developing minds. “There are health effects for youth particularly,” she said.
OPH urges parents to stash pot away from kids – Agency worried kids could get access to pot through home grow-ops CBC News · Posted: Feb 06, 2018 https://www.cbc.ca/news/canada/ottawa/ottawa-public-health-marijuana-1.4521542
“From 14 to 18 or 19, there’s a huge amount of important development going on, and what’s happening is the brain is learning how to manage social situations, stress situations, disappointment, loss, all of those kinds of things,” Teed said. “Those are very important processes that are supposed to happen with people. Kids who start to use substances, short circuit that process.”
How marijuana legalization could impact youth By Marney Blunt Global News February 16, 2018 https://globalnews.ca/news/4031372/how-marijuana-legalization-could-impact-youth/
Former professor Naheed Nenshi expressed concerns about the effects of marijuana on developing minds, stating that he’d prefer if dispensaries and “cannabis lounges” didn’t appear in universities.
Cannabis will be legal in Canada on Oct. 17, says PM Trudeau
John Macleod, Rachel Oakes, Alex Copello, Ilana Crome, Matthias Egger, Mathew Hickman, Thomas Oppenkowski, Helen Stokes-Lampard, George Davey Smith, THE LANCET • Vol 363 • May 15, 2004 • p. 158
(62) Baker, David P.; Eslinger, Paul J.; Benavides, Martin; Peters, Ellen; Dieckmann, Nathan F.; Leon, Juan (March 2015). “The cognitive impact of the education revolution: A possible cause of the Flynn Effect on population IQ”. Intelligence. 49: 144–158. doi:10.1016/j.intell.2015.01.003. ISSN 0160-2896.
Flynn, James R. (2009-3). “Requiem for nutrition as the cause of IQ gains: Raven’s gains in Britain 1938-2008”. Economics and Human Biology. 7 (1): 18–27. doi:10.1016/j.ehb.2009.01.009. ISSN 1873-6130. PMID 19251490.
(65) A Framework For The Legalization And Regulation of Cannabis in Canada, December 2016, p. 69
(67) 4/19 pot panel wants to clear the air regarding cannabis and youth
Bronwyn Beairsto / Vancouver Courier, APRIL 17, 2018
(70) At the 1:40 mark of the video:
(74) “The Tora”, H Tisch, ed., 1977, Koren Publisher, Jerusalem, quoted in “The Human Rights Reader”, M. Ishay, ed;, 1997, Routledge, London
(75) “The Living Bible”, Paraphrased, Tyndale House Publishers, 1974
(76) De Re Publica [Of The Republic], Book III Section 22; As translated by Clinton W. Keyes (1928) https://en.wikiquote.org/wiki/Cicero
(78) On Liberty, J.S. Mill, John W. Parker and Son, West Strand, London, 1859, from p. 113 of the Cambridge, 1989 edition.
(80) Adderly v. Florida, (1966), 385 US 39, 17 L ed 2d 149, 87 S Ct 242, reh den 385 US 1020, 17 Led 2d 559 87 S Ct 698
(81) R. v Duffy,  1QB 63, p. 64
(82) RCMP Public Complaints Commission, Feb. 24, 2000, Vancouver, BC
(83) Martin’s Annual Criminal Code, 1996, Student Edition
(85) H.M.Q. v. Langdon (et. all), Ontario Court (Provincial), 1996, pp. 9, 12 (see attachment number 4)
(87) “Osteopathy” (1901), in Mark Twain’s Speeches, p. 253
(89) R. v. Morgentaler,  1 SCR 30, 1988 CanLII 90 (SCC)
(91) Ibid, p. 319
(94) Bovier’s Law Dictionary, 3rd Edition, 1984
(95) Pocket Dictionary of Canadian Law, 2nd Edition, 1995
(96) “The simplest statement that can be made about a nation is that it is a body of people who feel that they are a nation; and it may be that when all the fine spun analysis is concluded, this will be the ultimate statement as well.”
– Rupert Emerson: From Empire to Nation – The Rise to Self-Assertion of Asian and African Peoples, 1960
“All that I can find to say is that a nation exists when a significant number of people in a community consider themselves to form a nation, or behave as if they formed one. It is not necessary that the whole of the population should so feel, or so behave, and it is not possible to lay down dogmatically a minimum percentage of a population which must be so affected. When a significant group holds this belief, it possesses ‘national consciousness’.”
Hugh Seton-Watson, Professor of Russian History at the School of Slavonic and East European Studies, University of London:* Nations & States – Methuen, London 1977
“But what is a nation? Many great thinkers have applied their minds to this. Many answers have been given, often conflicting, and usually confusing. One of the truest and most moving descriptions I know was contained in a short essay by a little known professor of Ohio University. About 40 years ago Professor Taylor wrote: Where and what is a nation ? Is there such a thing ? You would answer that the nation exists only in the minds and hearts of men. It is an idea. It is therefore more real than its courts and armies; more real than its cities, its mines, its cattle; more real than you and I are, for it existed in our fathers and will exist in our children. It is an idea, it is an imagination, it is a spirit, it is human art. Who will deny that the nation lives?”
Achmed Sukarno : Address to The National Press Club – 1956 Department of State Bulletin
“A portion of mankind may be said to constitute a nationality, if they are united among themselves by common sympathies, which do not exist between them and any others – which make them cooperate with each other more willingly than with other people, desire to be under the same government …This feeling of nationality may have been generated by various causes. Sometimes it is the effect of identity of race and descent. Community of language, and community of religion greatly contribute to it. Geographical limits are one of its causes. But the strongest of all is identity of political antecedents; the possession of a national history, and consequent community of recollections; collective pride and humiliation, pleasure and regret, connected with the same incidents in the past.”
John Stuart Mill: Considerations on Representative Government. London 1872
(103) “Law Dictionary, adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union: with references to the civil and other systems of Foreign Law” by John Bouvier, Vol. 2, J.B. Lippincott & Co. 1885, p. 85
(104) At the 1:40 mark of the video:
(106) Medical pot growers lobby Ottawa to shut down pot dispensaries
Daniel Leblanc, Globe and Mail, JANUARY 21, 2016
(109) The document says that the problem could be remedied by changing to another type of fertilizer but that is “probably a valid but expensive point.”
(112) Roe v. Wade. Revisiting the fundamentals.
(117) The Court found that the trial judge was not bound by the Supreme Court’s 1993 decision in Rodriguez v British Columbia (AG), instead holding that stare decisis is “not a straitjacket that condemns the law to stasis”. The Court expanded on their discussion of the issue in Canada (AG) v Bedford by ruling trial judges may reconsider the decisions of higher courts if there is a new legal issue at bar, and if circumstances or evidence have “fundamentally shift[ed]the parameters of the debate”. The Court found that the section 7 legal issues raised in the case at bar differed from those in Rodriguez, noting in particular the development of the overbreadth and gross disproportionality principles since 1993. The court also determined that the trial judge was entitled to consider the different “matrix of legislative and social facts” that had arisen since Rodriguez.
(121) Article 5, An agreement of the People for a firm and present peace, &c., E. 412, 21. October 28, 1647.
(123) ON LIBERTY, John Stuart Mill, (1859) CHAPTER I INTRODUCTORY
(124) Declaration of Independence, Congress, July 4, 1776
(133) Rule 11-6 — Expert Reports
Requirements for report
(1)An expert’s report that is to be tendered as evidence at the trial must be signed by the expert, must include the certification required under Rule 11-2 (2) and must set out the following:
(a)the expert’s name, address and area of expertise;
(b)the expert’s qualifications and employment and educational experience in his or her area of expertise;
(c)the instructions provided to the expert in relation to the proceeding;
(d)the nature of the opinion being sought and the issues in the proceeding to which the opinion relates;
(e)the expert’s opinion respecting those issues;
(f)the expert’s reasons for his or her opinion, including
(i)a description of the factual assumptions on which the opinion is based,
(ii)a description of any research conducted by the expert that led him or her to form the opinion, and
(iii)a list of every document, if any, relied on by the expert in forming the opinion.
[am. B.C. Reg. 119/2010, Sch. A, s. 24.]
Rule 23-5 — Sittings and Hearings
Hearing by communication medium
(3)In case of urgency, or if the court or a registrar considers it appropriate to do so, the court or the registrar, as the case may be, may conduct a hearing and make an order or decision by telephone, video conference or other communication medium.
[en. B.C. Reg. 65/2013, Sch. A, s. 3 (a).]
(134) – Robert H. Jackson, May 14, 1945