Canadian Court Upholds Marijuana Law; Dissenting Justice Finds Jail Sentences Violate Canadian Charter Of Rights

In a major legal challenge to Canada’s marijuana laws, a British Columbia Court of Appeals panel ruled 2-1 last Friday that simple possession of marijuana does not pose a serious or substantial risk, but said legalization should come from Parliament, not the courts.
In the majority decision, Justice Tom Braidwood wrote that “I agree that the evidence shows that the risk posed by marijuana is not large…I do not feel it is the role of the court to strike down the prohibition on the non-medical use of marijuana possession at this time. In the end, I have decided that such matters are best left to Parliament.”
The two appellants, David Malmo-Levine and Randy Caine, were both convicted on marijuana charges. Malmo-Levine was arrested on Dec. 4, 1996 when police found 316 grams of marijuana at his harm reduction club in East Vancouver. Caine was arrested when he was caught smoking a joint with a friend in a parking lot by Royal Canadian Mounted Police on June 13, 1993.
Justice Jo-Anne Prowse, in her dissenting opinion, found the provisions of the Narcotic Control Act infringed on the appellants’ rights to life, liberty, or security under Section 7 of the Canadian Charter of Rights and Freedoms. Acknowledging that marijuana may have negative health consequences for the smoker, but does not harm others, the appellants raised a “harm principle” issue which states society can only punish people for activities that harm others.
“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,” Prowse wrote.
“We may all go to the Supreme Court of Canada to seek leave to appeal at the same time,” said NORML Legal Committee member John Conroy, Q.C., who represents Malmo-Levine and Caine. “The issue for the Supreme Court of Canada is which camp is right. It’s a good judgement because they clearly all say that the possession and use of marijuana doesn’t create a serious or substantial risk of harm.”
For more information, please contact John Conroy, Q.C., at (604) 852-5110 or Tom Dean, Esq., NORML Foundation Litigation Director at (202) 483-8751.