Pubdate: Mon, 05 Jun 2000
Source: National Post (Canada)
Copyright: 2000 Southam Inc.
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Author: Paul Waldie, National Post

PRISON TIME FOR SMOKING POT VIOLATES CHARTER 

B.C. judge Dissenting ruling rejected by appeal court

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. 
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