ILLEGALITY OF MARIJUANA POSSESSION UPHELD

Simple possession of marijuana does not pose a serious or substantial risk
of harm to society but the law prohibiting possession is not
unconstitutional, the B.C. Court of Appeal ruled Friday in a 2-1 decision.

"I agree that the evidence shows that the risk posed by marijuana is not
large," Justice Tom Braidwood wrote in a 107-page decision, with Justice
Anne Rowles agreeing.

But he added: "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."

But in dissenting reasons, Justice Jo-Anne Prowse found the provisions of
the Narcotic Control Act prohibiting marijuana possession violate Section 7
rights of the Canadian Charter of Rights and Freedoms.

"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.

The appeal looked at the history of the marijuana prohibition law and the
"harm principle" applied in creating laws to protect the security and
well-being of society.

Marijuana was included in the Narcotic Control Act in 1923. Since then, more
than 600,000 Canadians have received criminal records for simple possession
of pot, the court noted.

The court also looked at the findings of the 1973 LeDain Commission report,
which found that the harm done by marijuana was so low that possession
should not be considered a crime worthy of imprisonment. The commission
recommended decriminalizing marijuana.

The two appellants -- Vancouver marijuana activist David Malmo-Levine and
Randy Caine of Langley -- will likely appeal to the Supreme Court of Canada.

"I'm quite pleased with it," Caine said Friday of the decision. "The two
judges seemed to be on the fence when balancing harm and they deferred to
Parliament."

Caine's lawyer, John Conroy, said he will seek leave to appeal to the
nation's highest court, but may wait for an impending decision of the
Ontario appeal court, which considered the same issue last October in two
cases involving appellants Chris Clay and Terry Parker.

"We may all go to the Supreme Court of Canada to seek leave to appeal at the
same time," said Conroy, an Abbotsford lawyer who in 1978 was the first
president of NORML -- the National Organization to Reform Marijuana Laws.

The B.C. appeal court decision is important in that it narrows the legal
issue, he said. "The issue for the Supreme Court of Canada is which camp is
right," he said, referring to the majority and dissenting judgments of the
B.C. appeal court.

"It's a good judgment, because they clearly all say that the possession and
use of marijuana doesn't create a serious or substantial risk of harm.

Conroy argued the law, which carries a maximum sentence of seven years in
prison, infringed the appellants' rights to life, liberty or security of
person under Sec. 7 of the Charter.

Caine, 46, was smoking a joint with a friend in a parking lot at the beach
in White Rock when he was busted by two patrolling RCMP officers on June 13,
1993. He was given an absolute discharge.

Malmo-Levine was arrested Dec. 4, 1996 when police found 316 grams of
marijuana -- much of it in "joints" -- at his Harm Reduction Club in east
Vancouver. The club had 1,800 members, sold pot at cost and promoted the
safe smoking of marijuana.

Although he was convicted of possession for the purpose of trafficking and
given a one-year conditional sentence, his appeal was restricted to the part
of the charge relating to possession.