Cannabis Use in Canada: Legislation and the Future

Crime refers to behaviors that are a violation of codified law. However, the exact definition of crime is complex and ever-changing, as it depends on social, political and economic factors. For example, what may be considered a crime one day, may be seen as legal the next (Law Commission, 2004). This concept is exemplified by the evolution of laws regarding the possession of cannabis that has occurred throughout the years in Canada. Ever since cannabis and its derivatives have been introduced in Canada years ago, government prohibition of it has been the subject of an ongoing debate of whether it should be legalized or not. Proponents of cannabis use argue that there are numerous medical benefits and that the drug is no more harmful than tobacco or alcohol (CAMH, 2014). Therefore, prohibiting cannabis intrudes on an individual’s fundamental freedoms. On the other hand, opponents argue that cannabis is too dangerous; its legalization would increase the chances of the drug falling into the hands of children and that cannabis use often progresses to the use of more dangerous drugs like heroin and cocaine (Evans, 2013). This paper analyzes the current approach to possession of cannabis in Canada, paying close attention to relevant laws and legal cases. This paper will further argue that from a variety of approaches to deal with cannabis, legalization is the most useful and effective method.

Background

Cannabis, primarily derived from the female plant, Cannabis sativa, is believed to have evolved on the steppes of Central Asia. The history of cannabis use goes back as far as 12,000 years, which places the plant among humanity’s oldest cultivated crops (CAMH, 2014). The first record of the drug’s medicinal use dates to 4000 B.C. where it was used as an anesthetic during surgery. From the 17th to the mid 20th century, standardized cannabis found their way into British and US pharmacopoeias and was widely used in western medicine, often considered a household drug used for treating various kinds of ailment ranging from headaches and toothaches to menstrual cramps (MacQueen, 2013). Cannabis eventually fell out of use in western medicine, and was banned in most countries as part of national and international drug control legislation that was originally designed to control traffic in opiates but was extended to include a broad range of other psychoactive agents. However, in the 1970’s, cannabis use rose dramatically and became a part of the youth culture due to its mood and perception altering properties, which made it a recreational drug of choice for many individuals (Blaszczak-Boxe, 2014).

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Throughout its long history, parts of the cannabis plant have been smoked, chewed, eaten, and even brewed for its effects on the human biochemistry. Marijuana- also called weed, pot, grass, reefer, and a vast number of other slang terms- comes primarily from the flower part of the cannabis plant and is one of the most abused drugs in the world (Evans, 2013). There are hundreds of compounds in marijuana, but the chemical responsible for the drugs’ psychoactive effects is tetrahydrocannbinol, or THC. Marijuana affects two main parts of the human body, the central nervous system and the cardiovascular system (CAMH, 2014). The central nervous system, which mainly controls thoughts and registers sensations throughout the body, can be impacted through varying doses of marijuana. For example, a low dose of marijuana results in a sense of well being and drowsiness/relaxation (Ponto et al., 2004). As the dose increases, other effects tend to come in, usually altered sense of time and sensory awareness. At much higher to extreme doses, paranoia, hallucinations, panic attacks and delusions have been reported to occur. The cardiovascular system can be affected by cannabis use through increased heart rate and dilation of eye blood vessels. There can also be difficulties in body movement and coordination as the dosage of cannabis increases (Ponto et al., 2004).

As with some other psychoactive drugs, the use of cannabis is not benign. Research has found both benefits and harms associated with cannabis use. Cannabis has therapeutic qualities and many people consume it for its psychoactive effects (Room et al., 2010). A number of the potentially useful effects have been well studied and confirmed scientifically in both experimental animals and human volunteers and patients. One of these is the moderately good analgesic action, principally against chronic musculoskeletal and neuropathic pain (Evans, 2013). Furthermore, only about ten percent of individuals who consume the drug become dependent, a rate that is extremely low in comparison to other illicit and legal drugs. In fact, tobacco, a drug that is considered legal in Canada, has a dependency rate of 32% (Health Canada, 2015).

The potential for harm exists, particularly for people who consume it frequently or begin using in adolescence. These harms include impairment of learning, memory, alertness, reaction speed and judgment (Babor et al., 2010). Those who are dependent on cannabis have been documented to face both cardiovascular and respiratory issues such as chronic bronchitis. In addition, research suggests that high levels of cannabis use can be linked to lung and prostate cancer (Room et al., 2010). Despite the negative effects of high levels of cannabis use, it is crucial to acknowledge the fact that most individuals do not become dependent on the drug. Rather, most will experiment with cannabis use only a few times in their life (Room et al., 2010).

Canada has one of the highest rates of cannabis use in the world. Despite the existence of serious criminal penalties for possessing, producing, and selling cannabis, the 2013 Canadian Tobacco, Alcohol and Drugs Survey found that 40% of Canadians have used cannabis in their lifetime and about 10% report having used it in the past year (Health Canada, 2015). Additionally, the survey indicates that Canadian youth aged 15 to 19 are more likely to consume cannabis than adult Canadians. In fact, Canadian adolescents have among the highest rates of cannabis use compared to their peers in other developed countries (UNICEF Office of Research, 2013). According to the 2012 Canadian Community Health survey, 22.4% of youth aged 15 to19 reported past-year use of cannabis and in total, youth use cannabis at a rate 2.5 times higher than adults aged 25 and older (Statistics Canada, 2015). In view of these statistics, it is unsurprising that cannabis is widely available throughout Canada and that a well-established cannabis market exists in Canada.

Laws surrounding the possession of Cannabis in Canada

In Canada, cannabis use became illegal in 1923 after the Act to Prohibit the Improper Use of Opium and other Drugs added cannabis to the list of illicit substances. Cannabis then became an illegal substance under the same category of harder drugs such as cocaine and heroin, despite lack of scientific or criminal correlations to suggest such categorization (CAMH, 2014). An increase in illicit drug use in the 1960’s and 1970’s was met by greatly increased criminalization and the associated individual and social costs. The strain on the courts, and the rising numbers of otherwise law-abiding youth being sentenced for recreational use of cannabis created pressures for the liberalization of Canada’s drug laws. As a result, the Commission of Inquiry in the Non-Medical Use of Drugs in 1972 (commonly referred to as the Le Dain Commission) was formed to address the growing concern about drug use and appropriate responses. The Le Dain Commission concluded that drug prohibition, specifically cannabis use, results in high costs but relatively little benefit. The Le Dain Commission proposed that all criminal penalties associated with cannabis be removed, along with the development of less coercive and costly alternatives to punitive punishments, but was immediately rejected by the government at the time (Broughton, 2014).

By the mid-1980’s there was growing acknowledgement of the limitations of law enforcement in reducing the demand for drugs as the Canadian police forces were pursuing more cannabis arrests than ever before (Hathaway and Erickson 2003). As a result, in 1987, the Canadian federal government announced a harm reduction model approach to drug use to address substance use with both supply and demand reduction strategies. This model views drug use, particularly cannabis use, as an undeniable fact in society and seeks to reduce the harms caused by it rather than advocating abstinence (Hathaway and Erickson 2003). Despite this model, Canada’s approach to cannabis was still largely a model of criminal prohibition. For example, Dian Riley of the Canadian Foundation for Drug Policy argues that this model is an “ineffective and inappropriate drug policy that causes more harm than the drug itself” (Broughton, 2014, p.4). In fact, since the first three years after the implementation of the program, the proportion of drug offenders in Canada’s prison rose from 9 percent to 14 percent (Hathaway and Erickson 2003).

The Controlled Drugs and Substances Act

In 1997, there was the introduction of a new drug law that was meant to address some of the problems of past law and to adapt some of the positive experiences of other countries around the globe. The new law, Controlled Drugs and Substances Act (1996), is Canada’s federal drug control statute and establishes eight Schedules of controlled substances and two Classes of precursors. This act outlines penalties for possession, trafficking and production of the substances established as illegal, including cannabis (MacQueen, 2013). Under this act, cannabis and its derivatives are considered as schedule II drugs and possession of it is illegal (Controlled Drugs and Substances Act, 1996). However, due to R. v. Parker (2001), the Supreme Court of Canada declared that section 4 of the Controlled Drugs and Substances Act, which deals with the prohibition against possession of marijuana, was too broad insofar as it failed to create an exception for medical marijuana use. As such, in 2001 Health Canada issued a set of regulations giving individuals access to marijuana for medical purposes. The Medical Marihuana Access Regulations (2001), which went into effect in 2002, outlined two categories of individuals who may legally access marijuana prescribed by their doctor. These two categories mainly deal with individuals suffering from severe pain as a result of medical conditions. Individuals who have a medical condition described in category 1 or who are approved under category 2 can legally obtain medicinal marijuana distributed by the company CannaMed or can grow their own for personal consumption (Broughton, 2014). Thus, it is possible to have legal access to marijuana for medical purposes in Canada while recreational use of marijuana is still a criminal act.

Despite the tough penalties in place, the Controlled Drugs and Substances Act (1996)has been criticized for criminalizing drug users and its failure to reduce drug availability while at the same time the financial and human costs of criminating cannabis continue to rise. Additionally, analyses of current policy practices demonstrate a failure to achieve the set out goals of the Controlled Drugs and Substances Act (1996)in reducing the consumption of cannabis (Broughton, 2014). Instead, criminalization has created further social issues. For example, an increase in arrests under the Controlled Drugs and Substances Act (1996) has not led to a decrease in the use of marijuana, with around 60,000 Canadian arrested for simple possession every year. On the contrary, the number of distributors and consumers has only increased in recent years (Room et al., 2010, p.60). The experiences within Canadian courts also demonstrate the inefficiency of the current approach to cannabis. For example, the case of R. v. Malmo-Levine (2003) deals with the possession of marijuana. Malmo-Levine was charged with possession and trafficking of marijuana. He argued that the criminalization and punishment of possession of marijuana goes against his rights as stated in section 7 in the Canadian Charter of Rights and Freedoms. Section 7 of the Canadian Charter of Rights and Freedoms declares that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice” (Canadian Charter, 1982, s 7). Malmo-Lavine argued that, by attaching a criminal penalty of imprisonment for simple possession of marijuana the Controlled Drugs and Substances Act (1996)deprived him of liberty in a manner that is not in accordance with the principles of fundamental justice. Malmo-Lavine suggested that it is a principle of fundamental justice that the criminal law can only prohibit activities that cause some sort of harm, and the possession of marijuana does not constitute as harm to others(R. v. Malmo-Levine, 2003). Justice Arbour, in the dissenting opinion, stated that the criminalization of cannabis punishes those who pose little risk to society and limits their Charter rights. Nevertheless, the majority of the Supreme Court of Canada did not agree with Justice Arbour’s argument and instead ruled that the law against the recreational use of marijuana did not violate the Charter in any of the ways suggested by Malmo-Lavine (R. v. Malmo-Levine, 2003).

The cases of Readhead (2008) and Evers (2011), further exemplifies how the approaches outlined in the Controlled Drugs and Substances Act (1996) leads to unnecessary arrests and unfair targeting of individuals. In R. v. Readhead (2008), the accused was charged with the possession of marijuana and possession of marijuana for the purpose of trafficking and was sentenced to a term of imprisonment of two and one half years. Readhead argued that the sentencing judge erred in his decision and asked for a fairer sentence. The British Columbia Court of Appeal stated that the sentence prescribed by the sentencing judge is within the proper scope of his judgment, but still reduced the sentence to two years less a day. As pointed out by the British Columbia Court of Appeal, Readhead’s past experience with the law, in which he has three previous charges for trafficking marijuana, did not deter or rehabilitate him in any way( R. v. Readhead, 2008). In R. v. Evers (2011), the accused was charged with the offences of unlawfully producing a controlled substance and possessing this substance for the purposes of trafficking. However, despite Evers’s lack of remorse for producing marijuana and her explicitly stating that she intended to continue her grow operation, the trial judge did not impose any jail time. The trial judge stated that there was no point in imprisoning Evers as doing so would only make her a martyr for the legalization of marijuana (R. v. Evers, 2011). Both of these cases show the ineffectiveness of the current law in deterring individuals from possessing and using cannabis. The prohibition of cannabis and criminalization of its users does not deter people from consuming it. The evidence on this point is clear: tougher penalties do not lead to lower rates of cannabis use (Chandra, 2014). Perhaps it is time that there should be an examination of the actual effects of cannabis on Canadians rather than blindly prohibiting the possession of cannabis.

Alternatives to Cannabis Prohibition

As discussed above, all available evidence indicates that the criminalization of cannabis use is ineffective, costly, and constitutes poor public policy. Globally, there is growing debate about the efficacy of criminalizing drugs such as cannabis, in particular that the health, social, economic and criminal harms of this approach outweighs any intended benefits (Chandra, 2014). As such, there are three main alternatives to full cannabis prohibition: decriminalization, partial prohibition and legalization. Models of cannabis decriminalization vary greatly, but generally involve removing possession of small amounts of cannabis from the sphere of criminal law. Essentially, prohibition remains, but instead of incarceration the use of cannabis becomes civil violations punishable by fines (Babor et al., 2010). Removing criminal penalties for cannabis possession should result in a reduction in both the number of individuals involved in the criminal justice system and the cost of enforcement, thus reducing the burden to individuals and to the legal system. Moreover, evidence suggests that a decriminalization approach can reduce some of the adverse social impacts of criminalization (CAMH, 2014). An example of a country that follows a decriminalization model is Portugal. Since the implementation of this system, Portugal has seen declines in substance misuse and in drug‐related harm, a reduced burden on the criminal justice system, and a reduction in the use of illicit drugs by adolescents (Room et al., 2010). While it is not possible to conclusively attribute these trends in Portugal to a shift in decriminalization, these findings present strong support that at the very least, decriminalizing cannabis does not result in major problems.

Partial prohibition regimes of cannabis possession are brought about by two distinct approaches, namely either de facto legalization or de jure legalization. Within the model of de facto legislation, cannabis use is formally prohibited by criminal law, yet applicable laws are not enforced and thus not sanctioned by any punitive interventions (Babor et al., 2010). Netherlands famously takes a de facto legalization approach to cannabis. Although the drug is still deemed illegal, personal use of cannabis is tolerated and is made available through dispensaries called ‘coffee shops’. Cannabis use or sale outside of the regulated spaces of these coffee shops is followed by police warnings or fines (Babor et al., 2010). In other words, personal cannabis use and supply to the end consumer in the Netherlands is regulated similarly to alcohol or tobacco use in many jurisdictions. One of the major benefits cited for the legally tolerated dispensaries is that it helps consumers from being exposed to illegal markets where there may be availability of ‘harder drugs’ (Room et al., 2010). Evidence demonstrates that the Netherlands has a lower rate of cannabis use than in the United States which suggests that partial legalization of cannabis will not necessarily lead to an increase in use.

Within the model of de jure legalization, personal use quantities are allowed to be carried and consumed by citizens. Punishments of cannabis use are either explicitly written into the drug statute or the scope of the law does not include cannabis possession (Chandra, 2014). These reforms have so far predominantly been aimed at selected places (e.g. the home) or at specific populations (e.g. medical marijuana users) (Babor et al., 2010). An example of a country that follows a de jure model of legalization is Spain. In Spain, possession or use of cannabis is prohibited by the law, yet there is no punishment or enforcement when involving small amounts. In 2002, Cannabis Social Clubs appeared in the country. These are “non-commercial organizations of users who get together to cultivate and distribute enough cannabis to meet their personal needs without having to turn to the black market” (Alonso, 2011, p. 2). Since, 2002 it is estimated that Cannabis Social Clubs have enabled several thousand people to stop financing the black market and to know the quality and origin of what they are consuming, whilst creating jobs and tax revenue (Alonso, 2011).

A third alternative that has been widely supported is legalization of cannabis with health-focused regulation. Legalization removes the social harms and costs associated with prohibition. In effect, legalization endorses marijuana as socially acceptable. It eliminates criminal penalties, reducing prices, increasing availability, and de-stigmatizing use (Broughton, 2014). Moreover, it is estimated that removing criminal and civil penalties for possession of cannabis would eliminate more than $ 1 billion dollars that is spent annually in Canada to enforce these ineffective laws (Evans, 2013). Advocates of legalization of cannabis point out that cannabis is no more harmful than alcohol or tobacco and should therefore be regulated in a similar fashion. In the same way that alcohol prohibition in Canada was an abject failure which promoted crime and actually loosened the federal government’s control over the importation and production of the substance, cannabis can also be seen as leading down the same path (CAMH, 2014). Moreover, advocates in favor of cannabis legalization claim that cannabis use is not an act of criminal nature and thus the federal government does not have the authority to ban it. They further argue that cannabis is neither harmful nor immoral and thus only the province has the power to regulate the use, distribution, and sale of marijuana (CAMH, 2014). This argument would equate marijuana with alcohol, which is also regulated independently by the governments of each province. Like all drugs, cannabis use has negative outcomes (Evans, 2013). However, the evidence shows that this does not justify the prohibition of the drug. For example, legal substances such as alcohol and tobacco can be far more dangerous and addicting than cannabis can ever be capable of, but these substances are still considered legal in Canada. Instead of focusing on the evidence, the mere prohibition of cannabis use only leads to further harm for users.

Some opponents of legalization fear that it would send the ‘wrong’ message about the risks of cannabis. But current rates of cannabis use in Canada already suggest that youth are not getting the ‘right’ message (MacQueen, 2013). For instance, despite prohibition, 23% of Ontario’s high school students and 40% of young adults use cannabis. A 2013 UNICEF study of 29 Wealthy nations found that Canadian youth rank first in cannabis use, but third from last in tobacco use -even though cannabis is illegal while tobacco is legal (MacQueen, 2013). Moreover, an examination of public opinion polls over the last few decades shows a steady increase in the proportion of Canadians who support the legalization of marijuana, rising from only 19 percent in 1977 to 57 percent in 2012 (Grenier, 2013). Lorne Bozinoff of Forum Research Inc says that given these statistics, “the public no longer favors devoting time and resources required to restrict marijuana use and possession,” instead favoring a legalize and tax strategy (Grenier, 2013, p.4).

It is also important to note that legalization alone does not reduce the health risk and harms of cannabis. Instead legalization presents the government with the opportunity to regulate cannabis to mitigate those risks – something that cannot be effectively done under decriminalization or prohibition (CAMH, 2014). Legalization under a health-focused model is based on the fundamental principles of harm reduction. Harm reduction is a pragmatic approach to reducing individual and social harms associated with drug use. This approach accepts that certain interventions focused on diminishing the harmfulness of a substance, even if they increase the extent of substance use, may be able to reduce the total adverse consequences on the individual, as well as society (Pates & Riley, 2012). In regards to cannabis use, harm reduction approaches acknowledge that there are no known effective solutions for completely eliminating drug-use or drug-related problems in the public. Therefore, the main characteristic of harm reduction is that it focuses on the reduction of harm as its primary goal, rather than reduction of drug use per se (CAMH, 2014). It is important to note that harm reduction principles are not meant to promote drug use, but instead recognizes the reality of drug use and measures success in terms of quality of life improvements for the individual (Broughton, 2014). For example, legalization of cannabis would attempt to reduce the harmfulness of cannabis use, without necessarily stopping drug use altogether. To reduce harm, legalization of cannabis is a necessary – but definitely not a sufficient- condition. It must include effective control on availability and regulation that steers users towards less harmful practices.

Conclusion

Prohibition of cannabis use has not succeeded in preventing cannabis use or mitigating its harms. On the contrary, it has exacerbated the health harms of cannabis and created costly social ones as well. Legalizing and strictly regulating cannabis allows for more control over the risk factors associated with cannabis-related harm and is a better alternative to the current approach (Broughton, 2014). It is important to realize that the Canada of 1997 when the Controlled Drugs and Substances Act (1996) was first established bears almost no resemblance to Canada of today. This explains why since its inception, the Criminal Code has changed many ambiguous laws to legalize and decriminalize certain actions (e.g., prostitution, assisted suicide, etc). Essentially, the laws have needed to evolve in order to better accommodate societal needs and advancing scientific research. Similarly, based on current research showing that criminalizing cannabis has not been an effective policy, perhaps it is time to re-examine our approach to cannabis use and advocated for legalization.

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