David Malmo-Levine lives by a motto: “Better a world full of civil disobedience than one full of uncivil obedience.” In 1996, his work with the Harm Reduction Club, a Vancouver non-profit marijuana educator and provider, landed him a charge of possession of marijuana for the purposes of trafficking. Jump forward a few appeals and you may recognize his name from R v Malmo-Levine (2003), a Supreme Court of Canada case identifying the criteria that make up a principle of fundamental justice for the purposes of the Charter’s section 7.
The SCC denied Malmo-Levine's proposition of a “harm principle”: the idea that criminal law should only punish behaviour that is harmful to others. He lost this battle, but Malmo-Levine continues to wage war, engaging in frequent pot activism. He was happy to answer a few of my questions about his experience with the law and civil disobedience.
What is it like to be charged and take it all the way to the Supreme Court?
DML: Disappointing, given the fact that the Supremes were challenged four times by me to come up with holes in my argument and present them to me while I was there so I could address them, were silent three times, and the last time Chief Justice Beverly McLachlin said – to my face – "perhaps we're all convinced" . . . and then gave me what is now known as "the cannibal defense" in her decision:
[117] Several instances of crimes that do not cause harm to others are found in the Criminal Code, R.S.C. 1985, c. C-46. Cannibalism is an offence (s. 182) that does not harm another sentient being, but that is nevertheless prohibited on the basis of fundamental social and ethical considerations. Bestiality (s. 160) and cruelty to animals (s. 446) are examples of crimes that rest on their offensiveness to deeply held social values rather than on Mill’s “harm principle”.¹
Do you still swear by the no-harm principle that you argued? Should the Criminal Code do away with offences that aren't directly harmful?
DML: I feel the harmless should not be harmed. This is what could be considered a "negative corollary" of the Golden Rule. The reform needed is not to simply identify all the victimless crimes in the Criminal Code and have them removed, but more importantly, to create a new test for criminality itself: "You should not punish people in any way or interfere with their liberty unless the person accusing these people of harm can prove significant inherent harm – a harm that cannot be mitigated in any way other than a denial of liberty. The burden of proof of harm is on the accuser, not the accused." Any honest look at the creation of the drug laws reveals that the burden was never on the accuser. This new test is needed to avoid future scapegoating. Scapegoating is an activity with limitless negative consequences.
Have you seen the criminal justice system affect marijuana users in ways that people may find surprising?
DML: Users, growers and dealers. Not only the criminal justice system, but the political system that creates the justice system. For example, the Cannabis Act is a total fraud from top to bottom.² At least two people die every year in North America (and many more in other countries) from low level pot law enforcement, including at least two examples in Canada.³
The way the current Cannabis laws are enforced – with privileged, wealthy, mostly white Licensed Producers and Licensed Retailers gaining exclusivity over the legal market while at the same time lobbying the government to increase the number of raids on Indigenous-owned dispensaries and growers is a form of white supremacy and genocide of the herbally autonomous.⁴ Justification for the tight regulations on cannabis growing and selling and access is largely based upon the fraud of cannabis psychosis, which does not meet the test outlined in my answer to question #2.⁵
What do you recommend to people who feel that the law is treating them or others unjustly?
DML: MLK Jr. said, "One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws." Of course, it's safer to be civilly disobedient in public, with as many participants as possible, with the media present, and lawyers too if one's budget allows. Civil disobedience is the poor person's press conference. You sacrifice your liberty for attention. But even if you're the only person participating, it beats feeling regret that you said nothing when you could have (or should have) said something:
Many people, especially ignorant people, want to punish you for speaking the truth, for being correct, for being you. Never apologize for being correct, or for being years ahead of your time. If you’re right and you know it, speak your mind. Speak your mind. Even if you are a minority of one, the truth is still the truth. (Mahatma Gandhi)
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Malmo-Levine elaborates further on his issues with the SCC decision in Vansterdam Comix, a 420-page comic book published in 2018.
1 R v Malmo-Levine; R v Caine, 2003 SCC 74 at para 117.
2 David Malmo-Levine, “The Cannabis Act Is A Fraud”, Cannabis Culture (18 April 2021), online: <cannabisculture.com/content/2021/04/18/the-cannabis-act-is-a-fraud/>.
3 David Malmo-Levine, “Killed Over Pot”, Cannabis Culture (18 May 2021), online: <cannabisculture.com/content/2021/05/18/killed-over-pot/>.
4 David Malmo-Levine, “Traditional Medicine”, Cannabis Culture (9 June 2022), online: <cannabisculture.com/content/2022/06/09/traditional-medicine/>; David Malmo-Levine, “The Raid Lobby”, Cannabis Culture (25 September 2022), online: <cannabisculture.com/content/2022/09/25/the-raid-lobby/>.
5 David Malmo-Levine, “New Series: Reefer Madness – 1895 to the Present – Introduction”, Cannabis Culture (3 September 2024), online: <https://www.cannabisculture.com/content/2024/09/03/new-series-reefer-madness-1895-to-the-present-introduction/>; David Malmo-Levine, “Reefer Madness: 2023 Edition”, Cannabis Culture (24 July 2023), online: <cannabisculture.com/content/2023/07/24/reefer-madness-2023-edition/>.
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