davidmalmolevine
(superposter)
11/7/00 09:41 AM
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What I am trying to explain to the Supreme Court
[Post#: 62343
/ re: 60164
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This is the argument that I am trying to get across with the Harm Reduction Club's "Constitutional Challenge", a challenge begun in 96 when the club opened, a challenge that has been winding it's way through court ever since, a challenge ending sometime next year, when the Court must hear arguments on whether cannabis is "signifigantly" harmful, "trivially" harmful or other nonsense. I of course will try to bring up harm reduction at every opportunity, which will be often, considering the name of the club.......this is all the "harm reduction" argument (condensed) that I have yet to get permission to argue.......it was handed in on Halloween.
APPLICANT’S MEMORANDUM OF ARGUMENT
PART I - INTRODUCTION
1. This case raises an issue that our politicians have avoided dealing with since they shelved the LeDain Commission in 1973. The issue is not only of national importance, but of global importance. The “Adjudicative facts” are straightforward, and not in dispute. The main issue is the constitutionality of the prohibition against the possession of cannabis (marijuana) for the purpose of trafficking, contained in the former Narcotic Control Act, and now in the Controlled Drugs and Substances Act, in light of section 7 of the Canadian Charter of Rights and Freedoms.
2. Because the appellant was charged with an indictable offence, and because there was a dissent in the court of appeal below, he enjoys the right of appeal, pursuant to section 691(1)(a) of the Criminal Code of Canada. A notice of appeal was filed July 31st, 2000. He now seeks leave to appeal on other issues not arising from the dissent, that the court below erroneously declined to decide because it focused on cannabis possession and use without considering the reduction of the risk of harm to the user from properly regulated harm reduction, cultivation and distribution techniques.
3. Another issue that was argued but not dealt with below pertains to section 15 of the Charter, in relation the principle of equality and “substance orientation”. Can it be said that a natural preference or orientation to herbs (a "taste") over other, more toxic stimulants, relaxants and anti-depressants (due to a positive relationship with cannabis and legitimate concerns over it's risks compared to those of other drugs) result in the “substance orientation” of the individual being considered a personal characteristic not unlike an enumerated ground, such as "religion" - a "philosophical orientation", or, a recognised analogous ground, found to exist in Vriend (1998), namely “sexual orientation”? Given the relative harmlessness of the “substance orientation” characteristic, within the context of the harm principle, why shouldn't this orientation receive the equal protection and the equal benefit of the under section 15 of the Charter? Similarly, why shouldn't a person wishing to choose a vocation (a "pursuit") (such as a cannabis farmer or breeder, or a cannabis café owner) who wishes to compete on a fair playing field with other substance providers (such as the brewers of alcohol and spirits, tobacco farmers and distributors, and the importers of coffee beans), also receive section 15 protection - the "economic/vocation orientation"?
4. Some of today’s legislators view non-necessity medicinal use (for stress, depression, fatigue, loss of appetite, lack of sleep/motivation/focus) not as an intelligent preference or choice, but as a sickness, and they are busy creating punishments other than jail and a criminal record (such as “diversion” or free labour, mandatory fines, urinalysis and group therapy) for “recreational” cannabis users. Viewing recreational cannabis use as inherently harmful will prevent healthy people from getting safe access, and perhaps even entrench these new humiliating and unnecessary “demand reduction” rituals. It may also prevent poor people from being included in the economy, soon to be monopolised only by university educated and corporate financed “experts” – all due to the strict distribution regulations justified by the supposed inherent harms of the substance. Will section 7 and 15 liberty and equality protection result in cannabis users, growers and dealers avoiding all unjust punishments (including over-regulation and monopoly), or will it mean they simply avoid jail?
5. The answer to many other pressing issues of human moral evolution are touched on within the cannabis prohibition issue. For example: Human autonomy in the areas of health, lifestyle and vocation. A need to return to organic farming and herbal medicine. A final end to all scapegoating and concentration camps. The right of small farmers and independent café owners to participate in the emerging herbal healthcare system and tolerance-tourist industry. The pressing economical and ecological need to eliminate miles of red tape that’s killing the infant industrial hemp movement in the cradle. The dangers of artificially concentrated wealth and power. A new respect for the golden rule (the positive corollary of the "harm principle"). The vital occasion to question our entire approach to global drug prohibition – civil war in every country - the biggest war on earth. All of these issues are to be found within an inclusive, broad and bold “liberty and equality” resolution to the cannabis prohibition issue.
6. This issue goes to the core of both Canadian and global politics. Extreme yet realistic and practical solutions to problems resulting from the improper use of drugs continue to be raised by the young and the young at heart through music and film, comics and books, hemp stores, compassion clubs, cafés, demonstrations and rallies, radio programs and internet websites, and in the case of the Harm Reduction Club, mass civil disobedience. As with medical marijuana and industrial hemp, the right of poor people to grow and deal cannabis, and the right of healthy people to smoke it or any other herb, are issues which continue to be raised by regular people all over Canada. Considering the serious stakes, and considering also for the past thirty five years the sacrifice cannabis activists have made of their time, their security, their freedom, these issues demand resolution.
7. In this case, the Applicant can demonstrate the change of heart manifest in the reaction of various communities to his actions, the use of “harm-reduction” strategies and their effect on providing growers, dealers and users with section 7 liberty protection, while explaining the section 15 equality protection rights that we should quickly extend to any persecuted, harmless group of people that is being discriminated against on an enumerated or analogous ground. The Applicant bases his appeal on the assertion that Canada is a country that constitutionally protects as many harmless human "tastes and pursuits", cultures or nations as possible, not as few as possible.
8. The Applicant seeks leave to appeal his conviction and sentence under s. 40(1) the Supreme Court Act. The Applicant seeks leave to argue “harm reduction” and “protection for dealers” and “equality” arguments. The main reason why the Applicant became a dealer within a group called the “Harm Reduction Club” in the first place was primarily to defend dealers by educating people about the role they play in harm reduction. The Applicant submits that the argument should not now be limited to one regarding the harms that may come with cannabis use in a vacuum or in the black market. Further, the Applicant submits that it is unjust to not be allowed to explore the topic of equality between these different tastes and pursuits inside an institution within which coffee or cola beverages are freely available.
BACKGROUND FACTS
9. The Adjudicative facts are set out in the judgement below as follows:
[3] The appellant David Malmo-Levine described himself to the court as a “marijuana / freedom activist.” Beginning in October 1996, he helped operate an organization in East Vancouver known as the “Harm Reduction Club” which was a co-operative, non-profit association of its members. The stated object of the club was to educate its users and the general public about marijuana and provide unadulterated marijuana to its users at club cost. The club had approximately 1800 members.
[4] The club educates it’s members on a wide variety of “safe smoking habits” to minimize any harm from the use of marijuana. Members are required to sign a pledge not to operate motor vehicles or heavy equipment while under the influence of the substance.
[5] On 4 December 1996, police entered the premises of the Club and seized 316 grams of marijuana, much of it in the form of “joints”. Mr. Malmo-Levine is charged with possession of marijuana for the purpose of trafficking contrary to section 4 of the NCA.
10. In addition, Cst. S. Dion, was tendered by the Crown as an expert on
cannabis trafficking. He confirmed that, to some extent, the Club offered methods to reduce the harm from any marijuana use, and that the Club was a consumer-oriented venture, following a well established cultural tradition allowing the use of marijuana. Further, testimony from the Applicant’s mother, father and apartment manager demonstrated neighborhood, community and multi-generation support for the Club.
Finally, it should be noted that the Club’s membership card specified that members pledged not to drive while “impaired”, not merely while “under the influence”.
R. v. Malmo-Levine; R. v. Caine (2000) B.C.J. No 1095 (B.C.C.A.) at paras. 3-5
Transcript of Excerpts of Proceedings at Trial, February 9, 1998, C.L. Malmo at p. 1; February 19, 1998, J.R. Woodfine at p.3-14; and March 12, 1998, Cst. S. Dion at pp. 37-38.
Ex. 37 at trial, box including membership cards.
11. The “Legislative Facts” as found in Caine at trial are as set out in the judgment below at paragraphs 15-28. The appellant was tried before Curtis, J., in the Supreme Court of British Columbia. At the commencement of his trial, he asked the court to declare a voir dire in order that the appellant could call evidence with respect to the use of marijuana in a harm reduction context (including protections and benefits for growers and dealers who practice harm reduction). The court invited the appellant to file, in writing, what he considered his best facts. Consequently, the Appellant filed the "Applicant's List of Witnesses and Summary of Evidence (referred to above) and exhibits 1 through 4 consisting of the following:
1) Ex.1 - Statement of Adjudicative Facts;
2) Ex.2 – Addendum to Legislative Facts;
3) Ex.3 – Defence Submission in Support of Voir Dire with respect to
Constitutional Challenge;
4) Ex.4 – Appellant’s Statement of Facts.
R. v. Malmo-Levine; R. v. Caine (2000) supra, (B.C.C.A.) at paras15-28
Exhibit 1 - 4 supra – at trial and List of witnesses and Summary of Evidence
13. Exhibit 3 is essentially a reprint of the brief submitted in R. v. Caine at trial, modified to apply to the appellant’s case with some additions at the beginning and at its end. Exhibit 4 contains additional facts specific to cannabis harm reduction. The important fact arising out of that document that the appellant wishes to stress is:
“5. There in fact are no harmful effects of marijuana on others or society that can’t be reduced in some way through reasonable regulation (i.e. impairment testing).”
Exhibit 4 - at trial – Statement of Facts Submitted by the Applicant, para. 5
14. Curtis J., after lengthy argument, refused to hear this evidence, ruling that it was not relevant to the section 7 Charter analysis. The Court of Appeal restricted their consideration of the appellant’s arguments to section 7, and did not deal with the other charter arguments advanced in relation to section 15, nor did they go on to consider the appellant’s case involving a charge of “possession for the purpose of trafficking” in a “harm reduction” context. However, in upholding the prohibition against simple possession, the courts below, while finding no evidence of a risk of direct or indirect harm to another specifically, found a reasonable apprehension of a risk of harm to the public generally, and in so doing, relied upon conduct involving unregulated distribution. Regulated distribution would eliminate those risks. Instead of avoiding consideration of the “trafficking argument” until the “simple possession” argument is dealt with, this court should view “harmless use” as more probable through proper "harm reduction" dealing, therefore, the trafficking argument must be dealt with at the same time as the simple possession argument.
R. v. Malmo-Levine; R. v. Caine (supra) at paras. 12 – 13, 161-162, 187
PART II
STATEMENT OF POINTS IN ISSUE
Public Importance
15. The appellant was charged with the indictable offence of possession for the purposes of trafficking, contrary to section 4(2) of the Narcotic Control Act (now CDSA section 5(2)). Because of the dissent in the Court of Appeal below, he enjoys a right of appeal under section 691(1)(a) and a notice of appeal was filed accordingly, on July 31st, 2000. The appellant seeks leave to appeal on these additional points in issue not dealt with in the dissent, that the appellant says are not only of national public importance, but essential to the entire question of cannabis prohibition;
1) The Court of Appeal erred when they characterised the harms that may come with cannabis use as inherent, instead of a product of mis-cultivation, mis-distribution and mis-use. By focusing solely on cannabis use by itself, and by failing to differentiate between use and misuse, the Court estimated increased health costs based upon the present day prohibition system of distribution, without factoring in the effects of legal harm-reduction cultivation and distribution techniques on the health of the legal user. In other words, cannabis harms were estimated based upon black-market risks, rather than evaluated on it’s level of risk in a more ideal framework which would be possible under a legal and regulated system;
2) The Court of Appeal also failed to address the issue of whether or not the harm principle applies to growers and dealers of cannabis (such as the Applicant and others within the “Harm Reduction Club”) who (by following a strategy of organics, quality control and consumer education) play an essential role in cannabis harm reduction;
3) The Court of Appeal erred in not considering the principle of equality found in sec. 15 of the Charter as it applies to “substance orientation”, following the principle underlying its decision in Vriend v. Alberta [1998] 1 S.C.R. 493; and erred in not applying equality to every producer and distributor of stimulants and relaxants – bean, grape, herb or otherwise;
4) The learned trial judge erred in declining to declare a voir dire and to allow the appellant to call evidence in support of his constitutional challenge. The Court of Appeal erred in holding that the result would not have been different if the evidence had been admitted;
5) Such further and other grounds as Counsel may advise.
PART III
ARGUMENT
Harm Reduction: Education, Quality Control and Safe Point-Of-Sale
16. Cannabis misuse does cause some harm. This harm is avoidable. In R. v. Caine, Her Honor Judge Howard wrote;
“…naïve users should be careful and if they chose to smoke, should do so with experienced users and in an appropriate setting.
R. v. Caine, [1998] B.C.J. No 885 para. 44
17. Braidwood J.A. quotes Howard P.C.J in R. v. Caine where she pointed out that it is the prohibition of marijuana that creates an artificial “lack of governmental control over the quality of the drug on the market”. All of the potential harms or the risk thereof that cannabis offers can be addressed by a greater awareness of proper dose levels and strain selection, while at the same time focusing on setting, mindset and especially quality - as wisely suggested by Howard, P.C.J.
R. v. Malmo-Levine; R. v. Caine (supra) at para. 28
18. Braidwood J.A. mentions the “Ouimet Report” (1969), and it’s recommendations that “no conduct should be defined as criminal unless it represents a serious threat to society, and unless the acts cannot be dealt with through other social or legal means. (Applicant’s emphasis) Braidwood J.A. then quoted two other reports – the Law Reform Commission report (1976) and the Criminal Law in Canadian Society report (1982) which say more or less the same thing.
R. v. Malmo-Levine; R. v. Caine (supra) at paras. 112-116
19. Exhibit 4 at trial below presents the set of facts that Curtis J. determined “not relevant” to the constitutional question. Within these facts is to be found the following key statement;
5. There in fact are no harmful effects of marijuana on others or society that can’t be reduced in some way through reasonable regulation (ie impairment testing). The harmful effects on the individual are minor, mitigatible, and only affect less than 1% of the population who are chronic users in any event.
Exhibit 4 - at trial – Statement of Facts Submitted by the Applicant, para. 5
20. Each of the following “inherent harms” is actually a risk that can be reduced to "caffeine risk levels" through proper cultivation, distribution and mode of delivery;
a) the “use or abuse of marijuana” “provokes erratic behavior in the user or abusive user.” R. v. Hamon (1993), 85 C.C.C. (3d) 490 (Que. C.A.) at pp 492-494
Prohibition removes awareness of dose levels, strain selection, mindset, proper setting, purity etc, etc, which then leads to erratic behavior. Erratic behavior is not an inherent result of cannabis use.
b) “marijuana does cause harm” although “not as much harm as first believed”. R. v. Clay [1997] O.J. No. 3333 at para. 21
Marijuana causes harm in the same way that caffeine causes harm – through misuse. Prohibition exacerbates misuse.
c)“accidents involving complex machinery” could occur R. v. Caine [1998] B.C.J. No. 885 (B.C. Prov. Crt.) at para. 122
Prohibition removes awareness of dose levels, strain selection, mindset, setting, purity etc, etc, which then leads to accidents. Accidents are not an inherent result of cannabis use.
d) a “vulnerable person” such as an adolescent, may become a chronic user and hurt themselves from the “act of smoking”. Caine, supra at para. 125
Both adolescent users and chronic users may hurt themselves from smoking excessive amounts of low-potency, chemically fertilized cannabis through an aluminum can pipe, but there is no evidence anywhere to suggest that organic, high-potency cannabis, smoked in moderation through a glass water-bong during high pleasure, low pressure activities has harmed anyone – be they chronic, adolescent, pregnant or mentally ill.
e) “There is a risk that, with legalization, user rates will increase and so will these costs”. Caine, supra at para. 126
There is evidence to suggest that re-regulating cannabis will increase use rates but decrease misuse rates, decrease health costs (Affidavit of Eric Single in R. v. Clay) and law enforcement costs (Neil Boyd, personal communication with the appellant, Nov. 1995), while adding billions in tax revenue.
f) “schizophrenia” (it “may”“trigger” it); R. v. Clay [2000] O.J. No. 2788 (Ont. C.A.) at para. 10
There is no evidence that cannabis (especially the sativa strain, taken in the right dose and setting) has any more negative impact on schizophrenics than non-schizophrenics.
g) “Bronchial pulmonary damage” (with heavy use); Clay, supra at para. 10
Evidence of cannabis related lung damage has yet to take into account the effects of chemical fertilizer (most or all of which is radioactive) as a factor. There is no evidence whatsoever to suggest that moderate amount of organic cannabis, smoked through a water filter does any damage whatsoever – even when smoked “chronically” (two to three grams per day). There is evidence to suggest that most tobacco-related cancer is fertilizer-related.
h) “probably harmful effect of cannabis on the maturing process in adolescence”; Clay, supra at para. 10
There is no evidence of this whatsoever. The applicant himself has been smoking since the age of fourteen.
i) “the implications for safe driving arising from impairment of cognitive functions and psycho motor abilities”; Clay, supra at para. 10
Again, the impairment is a circumstance of familiarity, dose level, strain, diet, other drugs, amount of sleep and other factors, and not an inherent result of using the drug.
j) “from the additive interaction of cannabis and alcohol”; Clay, supra at para. 10
This is true – alcohol is a very dangerous drug and should not be mixed with any other drugs.
k) “from the difficulties of recognizing or detecting cannabis intoxication”; Clay, supra at para. 10
This is only a problem if one wishes to identify non-impaired cannabis users – there is no legitimate reason to do so, only scapegoating reasons.
l)“the possibility, suggested by reports in other countries and clinical observations on this continent, that the long-term, heavy use of cannabis may result in a significant amount of mental deterioration and disorder”; Clay, supra at para. 10
The word “may” is not a scientific word. Determining if this is a result of “heavy use”, “heavy mis-use”, poverty, poor diet or some other factor or combination of factors may prove difficult or impossible.
m)“the role played by cannabis in the development and spread of multi-drug use by stimulating a desire for drug experience and lowering inhibitions about drug experimentation.” Clay, supra at para. 10
The desire to use other drugs properly is not a harmful desire. When we as a society come to understand that there are no bad drugs, just bad relationships with drugs, we will all be a lot better off. It is not up to society to ban or discourage all drug use, but rather to educate against drug mis-use and regulate points of sale to address safety and health concerns. All drugs may be misused, and all may be used properly and to the user’s advantage.
n)“It is almost certainly harmful to some extent in high doses”. Clay, supra at para. 10
The same can be said of caffeine, Asprin, vitamins, and raw potatoes. The threshold for prohibiting an entire culture cannot be so low.
21. Within the literary origin of the harm principle - “On Liberty” by John Stuart Mill – one can also find the origin of "Harm Reduction". In “On Liberty”, Mill outlines what is to be protected by a “civilized community” – all activities harmless to others. Unimportant activities, and activities harmful to oneself, do not warrant force as a method of education or correction. Instead, Mill suggests “remonstration”.
The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, both physical and moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because in the opinion of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. . . In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.
“On Liberty”, J.S. Mill, John W. Parker and Son, West Strand, London, 1859, from p. 13 of the Cambridge, 1989 edition.
22. In “On Liberty”, Mill specifically explains what “liberty” rights must be protected. He firsts lists the “important” rights – our political rights – now found in our Constitution. He then lists the “less important” rights:
Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of our lives 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 indivduals. No society in which these liberties are not, on the whole, respected, is free, whatever may be it’s 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 try and deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental and spiritual.
“On Liberty”, J.S. Mill, John W. Parker and Son, West Strand, London, 1859, from p. 15 of the Cambridge, 1989 edition.
23. The first line of the above quote goes a long way to explaining how this “fundamental principle” can apply to the most “trivial” of tastes or pursuits. The last line of this quote can be applied to the argument that cultivators and distributors of cannabis can benefit from the harm principle as much as users can.
In R. v. Malmo-Levine, the Crown, in its factum, at p.6 para. 14, argued that;
If the liberty contemplated in s.7 is to have any meaning as a constitutionally protected value, then it cannot be interpreted to protect every aspect of individual behavior simply because the person asserting the right claims that behavior is an aspect of “character”, “mannerisms” or “tastes”. Such an approach would trivialize the protections afforded by the Charter.
24. But this is exactly contrary to what John Stuart Mill asserted – protected “tastes” – so long as these tastes do not harm others. Mill goes on to point out a good reason to value freedom – in encourages independent thought and an intelligent citizenry. Mill states that “Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.” (p. 15-16), that “The mental and the moral, like the muscular powers, are improved only by being used.” (p. 59) and that;
If there was nothing new to be done, would human intellect cease to be necessary? Would it be a reason why those who do the old things should forget why they are done, and do them like cattle, not like human beings? . . .If a person possesses any tolerable amount of common sense and experience, his own mode of laying out his existence is the best, not because it is the best in himself, but because it is his own mode. Human beings are not like sheep; and even sheep are not indistinguishably alike.
“On Liberty”, J.S. Mill, John W. Parker and Son, West Strand, London, 1859, from p.65 and 67 of the Cambridge, 1989 edition.
25. The reason why the freedom to make mistakes over our own lives and to hurt ourselves is twofold. The first reason - outlined in the above quotations - is that the freedom to make mistakes and take risks concerning our own lives helps us become smarter – and less like livestock.
26. The other reason why freedom is important is because, when it is protected, it prevents tyrants from preying on weak scapegoats. In the words of US Justice Harlan F. Stone;
History teaches us that there have been few infringements of personal liberty by the state which have not been justified, . . . in the name of righteousness and the public good, and few which have not been directed, as they are now, at politically helpless minorities.
Minersville School Dist. V. Gobitis, 310 U.S. 586, 604 (1940)
27. The argument that “marijuana is inherently harmful-to-others” respects the harm principle, and can be attempted by prohibitionists. If they possess evidence of such things, let us evaluate this evidence, and determine if it is 1) cross-referenced, and 2) an actual inherent harm and not a result of a biased experiment. The argument that “cannabis is too unimportant to protect” must be dropped, as, according to (the grandfather of the Canadian Constitution) J.S. Mill, all harmless-to-others “tastes and pursuits”, each attempt at “pursuing our own good in our own way” is to be allowed – absolutely and “unqualified” - apart from the "harm principle".
“On Liberty”, J.S. Mill, John W. Parker and Son, West Strand, London, 1859, from p. 15 of the Cambridge, 1989 edition.
28. A popular myth that has yet to really be challenged is that the state can somehow deal with drug abuse by abandoning a regulatory framework and demand total abstinence of a popular pastime. The failures of Canadian and American alcohol prohibition should not be overlooked at this point. They mimic the failure of cannabis prohibition, a failure first outlined in R. v. Caine (para 63), and mentioned at para. 28 of the most recent R. v. Malmo-Levine ruling;
[1] countless Canadians, mostly adolescents and young adults, are being prosecuted in the "criminal" courts, subjected to the threat of (if not actual)imprisonment, and branded with criminal records for engaging [in] an activity that is remarkably benign (estimates suggest that over 600,000 Canadians now have criminal records for cannabis related offences); meanwhile others are free to consume society's drugs of choice, alcohol and tobacco, even though these drugs are known killers;
[2] disrespect for the law by upwards of one million persons who are prepared to engage in this activity, notwithstanding the legal prohibition;
[3] distrust, by users, of health and educational authorities who, in the past, have promoted false and exaggerated allegations about marihuana; the risk is that marihuana users, especially the young, will no longer listen, even to the truth;
[4] lack of open communication between young persons and their elders about their use of the drug or any problems they are experiencing with it, given that it is illegal;
[5] the risk that our young people will be associating with actual criminals and hard drug users who are the primary suppliers of the drug;
[6] the lack of governmental control over the quality of the drug on the market, given that it is available only on the black market;
[7] the creation of a lawless sub-culture whose only reason for being is to grow, import and distribute a drug which is not available through lawful means;
[8] the enormous financial costs associated with enforcement of the law; and
[9] the inability to engage in meaningful research into the properties, effects and dangers of the drug because possession of the drug is unlawful.
R. v. Caine [1998] B.C.J. No. 885 (B.C. Prov. Crt.) at para 63,
R. v. Malmo-Levine; R. v. Caine (supra) at paras 28
29. The same could be said of alcohol prohibition, coca prohibition, heroin prohibition, and most assuredly, if we were foolish enough to legislate against them, tobacco, caffeine and chocolate prohibition as well.
30. Is there a limit to the government's ability to interfere with the individual? Drug war researcher and author Ethan Nadelmann says;
…if you believe the ultimate objective of the government is to maximize your life-span to the ultimate, then our public policy objective should be to make sure that the average life-span of the average Canadian or American is one hundred years, then there in fact is no reasonable limit … it’s the public health system taken to it’s totalitarian extreme. If you see no natural limits based upon individual autonomy or civil liberties or privacy or whatever words you want to use there – there is no limit on how far we can go. I think we need to draw the line.
“Rethinking the Global War on Drugs” (video), University of British Columbia, Faculty of Law, April 22, 1994
31. The Applicant, too, submits that there is a need to draw the line. The line that should be drawn is: only such acts or omissions that present a reasoned apprehension of a risk of harm to others or society as a whole may be subject to regulation. Those posing a greater risk – a serious, substantial or significant risk – may be subject to prohibition via the criminal law or peace, order and good government (POGG) powers. If the potential harm is actually a risk, a risk to the risk taker only, then society’s role is that of educator and regulator, not prohibitor.
32. Casanova once said “In wise hands, poison is medicine. In foolish hands, medicine is poison.” This is true of cannabis as much as every other drug – except a little less, as cannabis is the only popular recreational drug – unlike caffeine and opiates – with which “one cannot take an overdose that will cause death.”
Exhibit 3 Defendant’s Submissions in Support of Voir Dire - at trial - para. 14
Equality
33. In R. v. M. (C.), involving consensual anal sex between young people, the Ontario Court of Appeal struck down the offence as contrary to the charter. While it is true that both cannabis use and anal sex may be “moderately risky”, they are also both “acceptably risky” and, if done properly, harmless. The comparison between the need to protect both groups of hedonistic deviants is made clear when the ruling is read out loud – it could very well be about young people using cannabis;
It strikes me as decidedly inappropriate to deal with health risks at any age by using the punitive force of the Criminal Code, but especially so for young people…health risks ought to be dealt with by the health care system…It is not enough for a government to assert an objective for limiting guaranteed rights under s. 1; there must, in my view, also be an underlying evidentiary basis to support the assertion. (Applicant’s emphasis)
R. v. M. (C.) (1995) 30 C.R.R. (2d) 112 at 121-123 (Ont. C. A.)
34. Contrast this decision with the famous obscenity decision, R. v. Butler,
mentioned in the court below (p.73) as a reason why evidence of harm is not necessary to make some act illegal;
... The impugned provision is designed to catch material that creates a risk of harm to society. It might be suggested that proof of actual harm should be required. It is apparent from what I have said above that it is sufficient in this regard for Parliament to have a reasonable basis for concluding that harm will result and this requirement does not demand actual proof of harm.
R. v. Butler (1992), 70 C.C.C. (3d) 129 at 165 per Sopinka, J. (S.C.C.)
35. The obvious question is, would “a reasonable basis for concluding that
harm will result” be sufficient for a ban on homosexuality? The answer has to be no, if we are to count our society as civil. The difference between child pornographers, on the one hand, and homosexuals and cannabis users/growers/dealers on the other, is that the child pornographer is a tiny fraction of the population, who’s violation of privacy (and other crimes) are identifiable, inherent harmful in every case, and of the “harm-to-others” type of harms, and cannabis users and homosexuals are deviants from social norms who indulge in pleasurable risks for a variety of reasons, risks that, quite frankly, can be managed quite easily, and, with the exception of some minor social costs and possible impaired use of heavy machinery (which can be legislated against separately), not of the “harmful to others” types of harm. If we are serious about the prevention of future cultural genocide, it is the criteria found in R. v. M.(C), not that found in R. v. Butler, which must be used in any case where any group of people have been accused of presenting a risk of or causing harm to the public.
37. The harm principle manifests itself in Section 7, implicitly as a "principle of fundamental justice", and also in Section 15, implicitly as a main characteristic of groups which may claim protection from discrimination. It also appears explicitly in Germany's constitution, where it was used successfully in the defense of cannabis possession.
R. v. Malmo-Levine, speech to the Court of Appeal, para. 46
38. The common thread between the characteristics of humanity set out in section 15 of the Charter is that they are all characteristics of people who a) have experienced persecution at some time in the past, and b) are not, as in the case of pirates, for instance, inherently harmful to society. It is submitted that cannabis users qualify. The case law to suggest cannabis use is analogous to these other characteristics is Vriend v. A.G. Alta (1998), where Iacobucci J. and Cory J. outline the criteria for inclusion in section 15 protection;
. . . the omission of sexual orientation from the IRPA was deliberate and not the result of an oversight. The reasons given for declining to take this action include the assertions that sexual orientation is a marginal ground . . . By reason of it's underinclusiveness, the IRPA creates a distinction which results in the denial of the equal benefit and protection of the law on the basis of sexual orientation, a personal characteristic which is analogous to those enumerated in s. 15(1). This, in itself, is sufficient to conclude that discrimination is present and that there is a violation of s. 15. (Applicant’s emphasis)
Vriend v. Alberta, [1998] 1S.C.R. 493 at pp. 497-498 (S.C.C.)
39. Perhaps “marginal” is to the homophobe what “trivial” is to the euphoriphobe. Perhaps "orientation" is just a four-syllable word for "taste". Can it be said that cannabis users really have an "orientation" to cannabis? In 1991, THC receptors were located in the brain - in the hippocampus (memory), cerebral cortex (higher thought processes) and basal ganglion (movement). In 1993, the body's natural THC, anandamide, (ananda is Sanskrit for internal bliss) was discovered.
Exhibit 3 – at trial – Defendant’s Submission in Support of Voir Dire, para. 13
40. This means that the body produces it's own form of THC, ostensibly for providing its own naturally occurring moments of time-slow, euphoria, relaxation and stimulation. Humans are naturally oriented towards exerting control over our own bodies ability to perform these functions – controlling our bodies in this way is part of controlling our lives and deciding for ourselves what state of mind is best for this or that occasion. But whether it is natural, or just desirable to be a cannabis user is as immaterial to whether or not to grant them constitutional protection as is the question of whether it is natural or just desirable to be a homosexual. It is submitted that the only real criteria is the lack of significant risk of “harm to others”.
Monopoly – Dealers and grower’s right to protection under sect. 7 and 15
41. John Stuart Mill said that civilized society should guarantee the "freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived." (On Liberty – Introduction). He also said;
. . . the class of dealers in strong drinks, though interested in their abuse, are indispensably required for the sake of their legitimate use. The interest, however, of these dealers in prompting intemperance is a real evil, and justifies the State in imposing restrictions and requiring guarantees which, but for that justification, would be infringements of legitimate liberty.
“On Liberty”, J.S. Mill, John W. Parker and Son, West Strand, London, 1859, from p. 100 of the Cambridge, 1989 edition.
42. It is submitted that a restriction on false advertising, perhaps by a surtax on promotion equal to the cost of production that would go to directly to consumer advocate groups to ensure accuracy, would be a way to mitigate the problems with over-promotion or sub-quality production of substances such as alcohol, tobacco, caffeine, and within any future cannabis market. If tobacco was organic, and if alcohol wasn’t sold as an aphrodisiac, perhaps other harms could be reduced.
43. The number of cases that would support the "right to deal" is not large, but it does exist. Bouvier's law dictionary includes "the prohibition of unfair monopolies" within its definition of liberty. In case law, there is “The Margarine Reference”, which protects business from legislation that is unrelated to “Public peace, order, security, health, or morality” and to protect against “trade protection” or monopoly.
The Reference as to the Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1, affd [1951] A.C. 179
Exhibit 3 – Defendant’s Submission in Support of Voir Dire, para. 137-138
44. There is the principle, found in the Universal Declaration of Human Rights (1948) that says that;
Every one has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing, and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability widowhood, old age, or other lack of livelihood in circumstances beyond his control.
Universal Declaration of Human Rights, 1948, Article 25, paragraph 1
45. In Singh, et al. v. Minister of Employment and Immigration (1985), the Court said;
“The right to security of the person means not only protection of one's physical integrity, but the provisions of necessaries for its support.
In Singh, et al. v. Minister of Employment and Immigration; [1985] 1 S.C.R. 177
46. In R. v. Morgentaler, Wilson J. wrote that "…the state will respect choices made by individuals and, to the greatest extent possible, will avoid subordinating these choices to any one conception of the good life". The experiments in Holland (and now some places in Germany and Denmark) with the open sales of cannabis demonstrate what is "possible". These other countries have proven that one can reduce the crime rate, the drug abuse rate, the unemployment rate and increase tourism allowing these jobs to exist, available to anyone who can adhere to reasonable regulation.
R. v. Morgentaler, [1988], 1 S.C.R. 30 per Wilson, J. at p. 166, (S.C.C.)
Exhibit 3 – Defendant’s Submission in Support of Voir Dire, para. 27
CONCLUSION
48. To conclude, the issues of “cannabis harm reduction”, “responsible cultivation and distribution”, “equality for the users and producers of all substances”, should now be dealt with by this court and our country should set a new course for greater freedom and tolerance – with other countries soon following suit. We should take steps to avoid becoming one big prison, like the United States has become. We should set another good example for the US, as we have on the issues of slavery, women's right to vote, alcohol prohibition, Cuba, Vietnam, and the death penalty.
49. It is conceded, there may be a downside to cannabis re-legalization. Red eyes, sore throats, lost car keys - all possible results of increased use before "harm reduction" education takes hold. Regarding the “indirect costs”, we give the last word to Mill;
But with regard to the merely contingent, or, as it may be called, constructive injury which a person causes to society, by conduct which neither violates any specific duty to the public, nor occasions perceptible hurt to any assignable individual except himself; the inconvenience is one which society can afford to bear, for the sake of the greater good of human freedom.
“On Liberty”, J.S. Mill, John W. Parker and Son, West Strand, London, 1859, from p. 82 of the Cambridge, 1989 edition.
PART IV
THE NATURE OF THE ORDER REQUESTED
50. The Applicant seeks an order granting his application for leave to appeal.
All of which is respectfully submitted.
Dated this 29th day of October, 2000. ______________________________
David Malmo-Levine
Appearing in person
C/o Conroy & Company
2459 Pauline Street
Abbotsford, B.C. V2S 3S1
Telephone: (604) 852-5110
Facsimile: (604) 859-3361
"I have struggled against tyranny. I didn't do that in order to substitute another." Desmond Tutu
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funglewood
(old hand)
11/8/00 07:47 AM
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Re: What I am trying to explain to the Supreme Court
[Post#: 75607
/ re: 62343
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any idea yet as to when your case is up? i'll be there, with or without bells and whistles...
fungle p. wood, esq.
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davidmalmolevine
(superposter)
11/9/00 00:22 AM
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Re: What I am trying to explain to the Supreme Court
[Post#: 75719
/ re: 75607
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Nope.....I guess the judges will tell us in a month who gets to go....when, and on what arguments.
"I have struggled against tyranny. I didn't do that in order to substitute another." Desmond Tutu
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funglewood
(old hand)
11/9/00 12:36 PM
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Re: What I am trying to explain to the Supreme Court
[Post#: 75764
/ re: 75719
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dude, it's pretty twisted that one of the debators gets to choose the entirety of the subject matter for the debate...
talk about limiting the available choices, in order to be able to oppress, while maintaining the illusion of freedom! sheesh!
keep us posted, eh?
(btw - the spell-checker doesn't recognize "debator." stupid machine.)
fungle p. wood, esq.
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TaxPayer
(member)
11/11/00 12:21 PM
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Re: What I am trying to explain to the Supreme Court
[Post#: 76022
/ re: 75764
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Thanks for the info. It's challenges like this that will someday free the plant. I now have a new P.C. term, "substance orientation".
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davidmalmolevine
(superposter)
3/10/01 11:24 AM
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Re: What I am trying to explain to the Supreme Court
[Post#: 103880
/ re: 76022
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Substance Orientation is not "correct" so much as a fact of life - just like sexual preference.
People have been asking me about this so I'm bumping it to the front page.
I am confirmed, but as of this date Caine and Clay have not. John Conroy is hopeful everyone will get in.
"I have struggled against tyranny. I didn't do that in order to substitute another." Desmond Tutu
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capricorn13
(stranger
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3/10/01 08:08 PM
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Re: What I am trying to explain to the Supreme Court
[Post#: 103977
/ re: 103880
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Best of Luck Dave,
It's a shame that we as rational thinking persons have to go to such far reaching extremes to make a case that is so blatantly obvious. I hope you win your case; it would represent a giant step forward, toward true freedom, and away from the bigoted, hypocritical insanity that has gripped the minds of most people for most of the last century. I used to be so frustrated that people could think the way they do and what's worse, be led around by the nose by the a--hole politicians who would have the masses believing that shit was manna from heaven if they possibly could. As time has passed I am now convinced that the majority of humans are essentially non-thinking cattle like beings that can be easily herded and trained to jump through most any hoop so long as they are they are fed with the slop of the day and allowed to rut to their hearts content. And don't forget to sprinkle in a little self-righteous god-fearing my-way or the highway morality for good measure.
Where along the line of growing from childhood to an adult do most people sacrifice themselves to the "machine mind" of the corrupted society and let go of the innate common sense that they were born with and reasoned with as a child? I have one theory that what we are seeing here at this point in human evolution is the emergence of a higher form of homo sapien, one that thinks clearer, has an innate regard for the well being of his fellow beings and the earth, and has a greater longing to fulfill the potential of a meaningful life on earth, as well as our existence beyond this life. Further I believe that for the most part we are surrounded by evolutionary throwbacks, deadends, if you will, in the human species. There is a gulf, a chasm between us that for most cannot be crossed. We live and work among these people every day, but we might as well be light years apart. How can you bring enlightenment to a stone? We must continue moving forward on our journey, strengthening ourselves, and leaving the detritus of human kind to dissipate into the ether; they are of little consequence and have deliberately chosen their path into oblivion.
Peace
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Scurvy
(enthusiast)
3/12/01 05:44 AM
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Re: What I am trying to explain to the Supreme Court
[Post#: 104380
/ re: 103977
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You're so right, capricorn13, humans are mostly herd animals, like so many lemmings or sheep.
You asked: "Where along the line of growing from childhood
to an adult do most people sacrifice themselves to the
"machine mind" of the corrupted society and let go of the
innate common sense that they were born with and reasoned
with as a child?"
I think I can answer that. I personally think it's high-school. Anyone not doing what everyone else is doing is disruptive and bad, and so is sent to the principal's office. They don't actually teach you anything useful for higher education, since everything I've heard and seen about universities tells me that they complain every year about the lack of preparation new high school graduates actually have. You learn about the caste system we have, with the "in" crowd, the "jock", and every other distinction, one of which you MUST belong to and everyone in that caste gets treated the same way.
I hope you're right about a new, higher homo sampeins (pun definately intended  ) evolving before our eyes, I just hope the non-evolved don't kill us all in fear, which is what they're trying to do.
--
Change the world!
http://www.lore.com/~scriven/Drugs/Cannabis/Letter_to_MP_2001
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MrOms
(member)
3/14/01 09:49 AM
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Re: What I am trying to explain to the Supreme Court
[Post#: 105123
/ re: 103880
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David, could you argue(or is it somewhere already) that because it has been recorded in previous rulings on the subject of Marijuana, plus the LeDain findings, that they must put some burden of proof against the admissions of the court and the crown to the "benign nature" of marijuana and its effect on society. ****Man, I just smoked a fat gift from BC and wrote that, and now I forget what it was suppose to say****
Basically, previous rulings and transcripts indicate that Judges believe that Marijuana is not harmful and should not be a crime. If you have used these cases to support your own, shouldn't they have to discredit the information, much the same as an attorney would a witness?
Am I making sense? Woah! I feel great now!
Sorry David!
Damn, the reasonableness of your argument is so clear to me and I would think a lot of us here. It is hard to estimate the influence of personal opinion on these decisions!
Can I claim that as a buddhist I am not represented by the constitution that recognizes "...the Supremacy of God" above law?
Ooops! Brain farting hear. Sorry if I am being a bit goofy here folks, I just thought it might make sense.
If you don't like my fire,
Then don't come around,
'cause I'm gonna burn one down!
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davidmalmolevine
(superposter)
3/15/01 10:44 AM
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Re: What I am trying to explain to the Supreme Court
[Post#: 105480
/ re: 105123
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"David, could you argue(or is it somewhere already) that because it has been recorded in previous
rulings on the subject of Marijuana, plus the LeDain findings, that they must put some burden of
proof against the admissions of the court and the crown to the "benign nature" of marijuana and
its effect on society."
Burden of Proof is one of John Conroy's pet projects......but most of the evidence given in Caine and Clay was the "latest and greatest" - only slightly biased by ignorance of cannabis harm-reduction techniques.....however - experts testified and Judge's recognised the existence of cannabis harm reduction.
"Basically, previous rulings and transcripts indicate that Judges believe that Marijuana is not
harmful and should not be a crime."
Basically, but they (LeDain, Shaffer etc) left room for doubt in lung damage and short-term impairment areas - without understanding cannabis harm-reduction fully, one might think those harms are inherent - and blow them out of proportion, as they have done.
" If you have used these cases to support your own, shouldn't
they have to discredit the information, much the same as an attorney would a witness?"
It all centers around cannabis harm reduction......if it exists - the constitution has already proven to protect harmless people.
" Damn, the reasonableness of your argument is so clear to me and I would think a lot of us here. It
is hard to estimate the influence of personal opinion on these decisions!"
The Judges? I wonder what factors come in to play myself.
"Can I claim that as a buddhist I am not represented by the constitution that recognizes "...the
Supremacy of God" above law?"
I'm not the resident authority on the Constitution and religion.....I would try to locate Ian Hunter for that one.
"I have struggled against tyranny. I didn't do that in order to substitute another." Desmond Tutu
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