Monday, June 05, 2000 Prison time for smoking pot violates Charter: B.C. judge
Dissenting ruling rejected by appeal court
Paul Waldie
National Post
A British Columbia judge says giving jail sentences to people caught smoking marijuana is a violation of the Charter of Rights.
The harmful effects of dope "are not sufficiently serious to justify the imposition of criminal law sanctions, including imprisonment," Justice Jo-Ann Prowse of the B.C. Court of Appeal said in a dissenting decision last week.
Judge Prowse said current laws violate sections of the Charter that guarantee Canadians the right to life, liberty and security of person.
"In my view the evidence does not establish that simple possession of marijuana presents a reasoned risk of serious, substantial or significant harm to either the individual or society or others," she said. "As a consequence of this finding, I conclude that the appellants have established that they have been deprived of their right to life, liberty and security of the person in a manner which is not in accordance with the principles of fundamental justice."
The case involved two men, David Malmo-Levine and Victor Caine, who ran a Vancouver club called the Harm Reduction Club, which sold pot at cost and was dedicated to reforming marijuana laws.
Mr. Caine, 46, was arrested in 1993 for smoking a joint with a friend. He was convicted by a lower court and given an absolute discharge.
Mr. Malmo-Levine was arrested in 1996 for possession and trafficking after police found 316 grams of marijuana in the club. He received a one-year conditional sentence.
Both men appealed, and in a two-to-one decision released on Friday, the Court of Appeal upheld the lower rulings.
During the appeal, the men argued that all laws must be guided by the "harm principle," which says that society can only punish people for activity that harms others. Smoking marijuana may have negative health consequences for the smoker, but it does not harm other people, they said.
"Imprisoning a person for possessing marijuana would thereby violate the 'harm principle' in the same way as imprisoning somebody for consuming caffeine or fatty foods," they argued.
In its ruling, the court provided an overview of Canada's marijuana laws, which date back to 1923, when weed was first outlawed in part because of hysteria at the time that said dope users become "raving maniacs and are liable to kill or indulge in any form of violence to other persons, using the most savage methods of cruelty."
The judges also listed several studies on marijuana use that said the drug causes fewer social problems than alcohol. However, the majority opinion said there are enough harmful effects associated with marijuana to justify current laws. Nearly two-thirds of Canadians believe that possession of marijuana should not be a criminal offence, according to a recent National Post poll.
RELATED SITES:
(Each link opens a new window)
B.C. Court of Appeal
The decision and dissenting opinion in R. v. Malmo-Levine. Court goes the unorthodox route, identifying the illegal substance as "marihuana."
Controlled Drugs and Substances Act
Act C-38, passed by Parliament in 1996. Click here for the list of banned substances.
Addiction Research Foundation
Home page for the well-respected institute based in Toronto.
Office of Alcohol, Drugs and Dependency Issues
A series of publications outlining Canada's drug policies and strategies. You'll need a PDF reader for some of the longer documents.
Canadian HIV/AIDS Legal Network
An impassioned argument for changing Canada's drug policy.
United Nations Treaties on Narcotic Drugs and Psychotropic Substances
A century's worth of treaties reaching back to the International Opium Convention. You'll find texts for the three most influential treaties here.
RCMP
Canada's chief drug enforcement agency.
Busted: America's war on marijuana
A large, level-headed PBS special.
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