Cannabis In Canada - A Persistent Paradox

Canada was one of the first nations to criminalize cannabis when it was added to the schedule of prohibited "narcotics" in 1923. Since cannabis use was virtually unknown in Canada then, or for decades afterwards, P. James Giffen and colleagues correctly termed it as a "solution without a problem". A current, apt characterization of our policy might be making the problem fit the solution, as the existing law and apparatus of enforcement continually seek to shape the image and effects of cannabis use as a serious threat that justifies ongoing, harsh and determined punishment. There is a paradox here. Canada has a strong public health tradition and has tended to reduce social conflicts through fairly equal access to health care, education and social services. Canada was also one of the first countries to subject the appropriateness of the modern cannabis prohibition to intense scrutiny, in the Le Dain Commission (1969-73), and to consider major reform of its laws. This of course did not occur. Another opportunity was lost during the construction of the new Controlled Drugs and Substances Act (1997). Rather, Canada seems committed to an approach that reaffirms an allegiance to criminalization.

The report from the CCSA working group on policy has presented the main features of the law and details of current use and enforcement patterns. I will provide an update on two issues -- court challenges addressing both recreational and medical marijuana and diversion of cannabis possession cases to avoid criminal records.

Some important cases have come before the courts that challenge the constitutionality of the cannabis prohibition under Canada's Charter of Rights and Freedoms. These are the Clay, Parker and Krieger cases. In the Clay case, the proprietor of a London (Ontario) hemp products store was charged with cultivation and trafficking of cannabis seedlings. Clay refused to plea bargain down to simple possession; his case received a lot of media attention, as well as having its own web site to raise money. Further, the defendant was very articulate, middle class, and supported by his respectable, conventional family. The basis for the defence was a Charter challenge to the (then) Narcotic Control Act as an excessive and inappropriate response to the behaviour involved in cannabis consumption. Although Clay was convicted of trafficking and placed on probation, the judge's ruling is seen as significant because he accepted the expert witness testimony about the relative harmlessness of cannabis, in effect dismantling much of the demon drug mythology, and explicitly recognized its potential medical benefits. The judge referred the matter back to Parliament's law making role.

When the Parker case was tried a few months later, on charges of possession and trafficking in cannabis, the defence hinged on Parker's own medical condition of epilepsy. Here the judge not only referred to the Clay case, but also accepted the testimony of other expert witnesses, and Parker himself, that smoking marijuana was the only effective remedy for his severe, frequent seizures. The judge ruled that to deprive the defendant of a legal source of marijuana contravened his primary Charter right to health and protection of life. Therefore, the judge acquitted Parker of possession and ordered the police to return the seized plants to him (however, since he had admitted to the police that he gave cannabis to others who needed help, the judge said he had no choice but to convict him on that charge and impose probation). The importance of this ruling is that Parker's right to obtain a legal source of marijuana, through his own growing activities, was recognized. This case has been interpreted by Parker's own lawyer as a special case, not extending at this time to others claiming medical necessity, i.e. such individuals are still subject to arrest and prosecution. Both the Clay and Parker cases are under appeal by the federal drug prosecutors' office in Justice Canada..

Both the Clay and Parker cases were heard in Ontario, a province which historically has been somewhat more lenient in cannabis matters than Alberta, where the Krieger case is currently before the courts awaiting sentencing. This man, suffering from multiple sclerosis, was charged with possession for the purpose of trafficking, in relation to other's not his own use of marijuana. While Krieger has been convicted, the judge has given him additional time to prepare evidence about the medicinal benefits of cannabis. While such a conviction would usually draw a sentence of incarceration, the judge appears to be providing an opportunity for a non jail option such as fine or probation. This too would be an important precedent. These three cases, and others pending (e.g. a civil suit in which an AIDS patient is suing the federal government to force it to supply him with cannabis for his condition.), have all given a high profile to cannabis issues and provided new and important information to the public through the media coverage. Perhaps this partly explains why an 1997 poll found that 83% of Canadians supported legitimizing marijuana for medical purposes.

The second topic, cannabis diversion, is the latest in a series of federal initiatives directed at mitigating the harmful individual consequences of criminalization while maintaining the possession offence. An earlier one was the 1969 "fine only" option in the Narcotic Control Act, which allowed fines of up to $1000 for a first offence; this provision of course remains in the "new" Controlled Drugs and Substances Act. A second one was the 1972 discharge provision in the general Criminal Code, which imposes a finding of guilt and a criminal record, but not a conviction. The absolute discharge is the most lenient sentence available, but is not applied as widely to simple possession across Canada as the small fine. The latest example is the federal diversion policy, introduced in October 1997, and applicable to cannabis possession offenders in certain circumstances. It goes a step beyond the discharge and allows those charged who admit their guilt to avoid a criminal record. To do so, they must commit themselves to fulfill an alternative requirement, such as performing a certain number of community service hours, and report back in court for the prosecutor to stay the charges. Neither the implementation nor the actual content of the diversion programs has been mandated by the federal Department of Justice, and at this time, cannabis diversion seems to have been introduced in only a few jurisdictions. One of these is Toronto, where some preliminary research is underway to gauge its impact on those appearing on possession charges. This diversion experiment does at least reflect a step towards greater leniency for simple possession, despite the retention of penalties including imprisonment for up to six months in the new law.

Thus, Canada remains a puzzle, a nation that might be expected to have done more to reform its drug policy. Yet it remains wedded to the criminal justice approach, offering lessons more about the obstacles to change than conditions for success in devising a regulatory model.