One of - if not the - most beautiful thing of a legal system within a free and democratic society is the constant public debates over emerging issues. In Canada, we have been through this sometimes agonizing but so very essential process on numerous occasions and even long before the 1982 Charter of Rights and Freedoms.
In our democracy, we have decided to do away with the death penalty, to legalize abortion, to decriminalize prostitution, to name but a few of the more high-profile national decisions that have marked our recent history.
The issue of legalizing marijuana has been around at least as long as my post secondary school days, circa 1980. Pierre Trudeau, then Prime Minister, was on the campaign trail making big promises of decriminalizing marijuana. His circus visited my home town of Baie-Comeau and spoke at the local French college at which I was student. I took the microphone and asked him when, if ever, was this government going to legalize the possession and recreational use of marijuana? Trudeau smiled at the question and promised me publicly that it would be soon but when I had the gall to demand "Quand?" (when), he pointed in back of him and invited me to meet with the then federal Minister of Justice, Marc Lalonde, standing on the stage. I did so but the minister of justice simply told me that they were looking at it and had no fixed date in mind.
In 1981, in law school I wrote an article for the law school newspaper called Le Pigeon Dissident, entitled Le Pot et la Loi. Research at the time, which has likely not changed, indicated that 70% of university students had experienced marijuana even though the maximum sentence for possession of marijuana at that time was seven years in prison. This was a dramatic increase over statistics released in 1962 which showed that only 4% of university aged Canadians admitted to having consumed marijuana.
More recently, one American study showed that marijuana arrests have doubled in the United States between 1991 and 2008.1
According to medical sources, the attraction of marijuana is that it produces temporary apathy, loss of awareness and coordination, and a short-lived but almost instant euphoric focus on the consumer's present moment.
Smoked marijuana is believed to be five times more cancerous than tobacco - it contains five times more tar.
Even before the advent of the Charter, criminal courts are were actively sentencing marijuana users: a full 27,400 convictions for simple possession in 1979.
A Gallup opinion poll taken at that time indicated that the bare majority of Canadians continue to support the criminalization of possession.
This is one hot, juicy topic with as many facts and opinions as there are Canadians.
But one universal fact is that recreational marijuana consumption is mostly for the under-26 crowd. It is not widespread throughout society. Senior homes don't report problems with seniors pot smoking on the grounds.
The key question for most Canadians remains the same and the answer still found wanting: what or how would the legalization of marijuana contribute to Canadian society?
In spite of opportunistic and occasional promises by politicians to decriminalize, no such repeal statute has ever come from the hive of Canada's criminal law, Parliament. Yes, Virginia, there it still is, in black and white, the Controlled Drugs and Substances Act, §4(1):
"Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II or III."
Schedule II refers to virtually every possible variation of cannabis, aka marijuana.
The maximum penalty for possession is still five years in prison.
One of the great difficulties with the criminalization of marijuana and which has come particularly to the forefront in court cases with the advent of the Charter, is the medicinal benefits of marijuana in regards to certain ailments. Anxiety, migraines, multiple sclerosis, epilepsy are just some examples of medical conditions where marijuana has had a proven remedial effect.
After all, as advocates never fail to mention in court (as I have done myself), marijuana is a product of God, of nature.
The Charter at §7, 15 and 52(1) guarantees equality before the law, prohibits discrimination against the disabled and asserts the primacy of the Charter over any inconsistent statute. Although there have been many incarnations of Charter arguments, the most potent appears to be that the state's prohibition and commercialization of a substance with medicinal value, compromises the life (and health) of some Canadians.
Medicinal marijuana advocates argue that since marijuana alleviates their pain and discomfort or medical condition, to prohibit the use of medicinal marijuana is discriminatory towards the disabled.
And so we come to the present day where it is still illegal in Canada to possess, produce, or distribute marijuana. With one exception: the Marihuana Medical Access Regulations. Under that regime, if an individual obtained the written support of one or two doctors that marijuana would have additional value to the patient, the government of Canada would entertain an application to issue an exemption for the patient. The phenomenal aspect of this regulation was the implicit admission by the government of Canada that marijuana had medicinal benefits.
But the government's early attempts at medicinal decriminalization was awkward and piecemeal. For example, the first regulation did not address how the patient was supposed to obtain his or her marijuana? The only two options available were self-cultivation or purchase from a drug dealer. When the Court rules that this nonsensical approach was not constitutional, in Hitzig v Canada, the government amended the regulation to allow self cultivation and under limited circumstances, the production of marijuana by third parties to supply those who had exemptions.
Over the years, enlarging the medicinal breach of the criminalization of marijuana has been very gradual and rarely endorsed by the government; often hotly contested in courts of law. One attempt was made, in R v Malmo-Levine, to declare the entire criminalization scheme in regards to recreational use of marijuana in Canada as unconstitutional. But that backfired when the Supreme Court of Canada confirmed that the prohibition against recreational use was constitutional.
Still, step-by-step, incrementally and through attrition, the breach has grown in size, almost as if the doctrine of desuetude is being applied incrementally rather than in one-fell swoop. For example, in one decision in April of 2012, a justice of the Supreme Court of British Columbia ruled that Health Canada's insistence that medicinal marijuana be offered only in smokeable format (dried marijuana), and not in more readily consume formats such as within baked goods, is unconstitutional.2
As the issue runs hot and cold, courts are struggling with the development of law in this area. Judges are experts at resolving private disputes but when it comes to lawmaking, even with Charter in hand, they tread awkwardly and reluctantly on the constitutional jurisdiction of the elected legislative assemblies. A half-baked and confusing state of the law is the result.
And now, if the federal Official Opposition gets its way and forms a government, there is an interesting approach policy of the Liberal party which suggests this:
"Millions of Canadians today regularly consume marijuana (and the) failed prohibition of marijuana has exhausted countless billions of dollars spent on ineffective or incomplete enforcement and has resulted in unnecessarily dangerous and expensive congestion in our judicial system.... A new Liberal government will legalize marijuana...."
The real question behind public policy must be whether the conduct prohibited is actually or potentially harmful in any way - not whether a particular proposal will attract votes.
The prospect of legalizing the cultivation and the sale of marijuana raises a number of significant issues:
- Legalizing marijuana means enhanced access to the narcotic by minors. How will ubiquitous and legal marijuana affect education and the rate of motor vehicle accidents?
- The reality is that very few individuals convicted of simple possession ever do any jail time - about 1%. The vast majority of people the police find in possession of small amounts of marijuana are never charged.
- The conviction rate in regards to marijuana possession is misleading because many criminals plea bargain and are convicted on a lesser offense even though in fact, they may well of been guilty of trafficking. Other marijuana possession convictions are secured concurrently with conviction of violent crimes associated with the marijuana charge.
- The free and legal use of one drug will of course facilitate and intrigue the users into trying other drugs which will remain illegal such as cocaine or heroin.
- Who will produce the marijuana? Will it be the government and if so, will they be competitive enough to wipe out the illegal black market?
- The drug trade, which will likely be significant players in the provision of marijuana, not play nicely but instead engage in violence, money laundering and organized crime.
- If there are any savings in terms of court time and law enforcement officers no longer having to worry about marijuana crimes, those savings will not go back to the taxpayer but will simply be diverted to the enforcement of other criminal laws.
- Marijuana, which has minimal addictive qualities, might still encourage economically disfavoured users to commit petty property crime to purchase their marijuana.
And one other fact. Between 1990 and 2002, the city of New York implemented an aggressive campaign against the use of marijuana. The unexpected but undeniable result: the City enjoyed a dramatic decline in serious and violent crime, one third greater than the decrease in other major American cities during the same time.1
Marijuana is a narcotic and no one who has seen the ravages of drunk driving can say with a straight face that the end of the alcohol prohibition in 1931 altered in no way public safety.
As the country carefully, cautiously and slowly evaluates and assesses the role recreational marijuana should have in our law books, if any, there should be no knee-jerk reaction and certainly not one which is predicated upon the oblique desire to attract votes.
- The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11
- Controlled Drugs and Substances Act, SC 1996, c 19
- Hitzig v. Canada, 171 C.C.C. (3d) 18 (2003)
- Marihuana Medical Access Regulations, SOR/2001-227
- R. v. Malmo-Levine,  3 S.C.R. 571
- R. v. Parker, 146 C.C.C. (3d) 193 (2000, ONCA)
- R v Smith, 2012 BCSC 544 - NOTE 2
- Weisberg, Robert, Approaches to Assessing the Effects of Marijuana Criminal Law Repealing California, 43 McGeorge L. Rev. 1 (2012) NOTE 1