Legal history of cannabis in Canada
Although the personal use of cannabis will be legalized in 2017, Cannabis in Canada remains illegal for recreational use until legislation is enacted. Police and prosecution services in all Canadian jurisdictions are currently capable of pursuing criminal charges for cannabis (legal term marijuana) possession and for marketing without a license issued by Health Canada. The Superior and appellate courts in Ontario have repeatedly declared Canada's cannabis laws to be of no force and/or effect if a prescription is obtained. The recreational use of marijuana, however, has remained contrary to the Criminal Code.
Since 1997, public opinion polls have found that an increasing majority of Canadians agree with the statement, "Smoking marijuana should not be a criminal offence". A June 2016 national poll conducted by Nanos Research showed that 7 in 10 Canadians are in favour of legalization.
Challenges to marijuana laws at the federal level did not result in the deletion of the appropriate sections from the Controlled Drugs and Substances Act. Legalization for personal (non-medical) consumption would need to be legislated, and that is the plan of the Government of Canada, as confirmed in 2015 and more specifically in 2016. The enactment of that legislation will be the concluding point in a long history of attempts to legalize cannabis through the courts.
- 1 History
- 2 Developments since 2001
- 3 Key court decisions
- 3.1 2000: R. v. Parker (Ontario Court of Appeal)
- 3.2 2003: R. v. J.P. (Ontario Court of Appeal)
- 3.3 2007: R. v. Long (Ontario Court of Justice)
- 3.4 2007: R. v. Bodnar/Hall/Spasic (Ontario Court of Justice)
- 3.5 2008: Sfetkopoulos v. Canada (Federal Court of Canada)
- 3.6 2011: R. v. Mernagh (Ontario Superior Court)
- 3.7 2015: R v. Smith (Supreme Court of Canada)
- 3.8 2016: Allard et al v. Regina
- 4 The steps to legalization
- 5 Positions of Canadian political parties
- 6 See also
- 7 References
Early drug prohibition
Drug prohibition in Canada began with the Opium Act of 1908, which was introduced based on a report by then-Deputy Minister of Labour, Mackenzie King. Following the Asiatic Exclusion League riot of 1907, King went to Vancouver to investigate causes of the riots and claims for compensation. Some of the claims came from opium manufacturers seeking compensation for damage done to their production facilities by the mob that attacked Chinatown and Japantown. While in Vancouver, King interviewed members of a Chinese anti-opium league and came away in favour of suppressing the drug because "opium smoking was making headway, not only among white men and boys, but also among women and girls." In his report, King summarized the progress of the anti-opium movement in China, the United States, Britain, and Japan to make the point that Canada was lagging behind in this international movement. King's recommendations were the basis for the 1908 Opium Act, which prohibited the sale, manufacture, and importation of opium for other than medicinal use.:24 This was followed by the Opium and Drug Act of 1911, which outlawed the sale or possession of morphine, opium, or cocaine. Smoking opium became a separate offence, punishable by a maximum penalty of $50 and one month in jail.:24 King introduced the new legislation based on recommendations from the chief constable of the Vancouver police and to bring Canada's drug laws in line with resolutions passed at an American-led international anti-opium conference in Shanghai.:25 The name of the 1911 Act is significant because it separates opium, associated with Chinese users, from "white drugs," so labelled because of the colour of both the drugs themselves and the race of those presumed to be consuming them.
The next wave of legislation began with the Opium and Narcotic Drug Act of 1920, which was amended in 1921 and again in 1922 before being consolidated in 1923. Penalties became stiffer in the 1920s, with far more prison terms being handed out compared with the earlier period when fines were typically given.:25 Maximum prison sentences also increased from one to seven years and in 1922, possession and trafficking became a deportable offence.:25 The catalyst for these laws also differed from the earlier ones in that they were largely the result of the agitation of moral reformers, particularly those in Vancouver who had stirred up a full-blown moral panic over the drug issue in the early 1920s.:25 Race remained a persistent theme, and the drug prohibition movement was closely related to the move to totally exclude Chinese immigrants from Canada, which led to the 1923 Chinese Exclusion Act.:46
Cannabis was added to the Confidential Restricted List in 1923 under the Narcotics Drug Act Amendment Bill after a vague reference to a "new drug" during a late night session of the House of Commons on April 23, 1923. More specifically, the government introduced the Act to Prohibit the Improper Use of Opium and other Drugs; this was a consolidation of other legislation but now listed three new drugs, including marijuana.
Historians often point to the 1922 publication of Emily Murphy's The Black Candle (which was reprinted in 1973) as the inspiration for the addition of the three extra drugs. Murphy was a suffragist and police magistrate who wrote a series of articles in Maclean's magazine under the pen-name "Janey Canuck", which formed the basis of her book. She used numerous anecdotes culled mostly from anti-drug reformers and police to make her arguments, which make strong links between drugs and race and the threat this poses to white women. She claimed that a ring of immigrants from other countries, particularly China, would corrupt the white race.  "It is hardly credible that the average Chinese peddler has any definite idea in his mind of bringing about the downfall of the white race, his swaying motive being probably that of greed, but in the hands of his superiors, he may become a powerful instrument to that end."
Although Murphy's anti-drug screeds were widely read and helped spread the drug panic across the country, historian Catharine Carstairs disputes that the 7 page chapter, Marahuana -- a new menace in Murphy's book inspired the inclusion of cannabis on Canada's restricted substance list. Specifically, Murphy was not respected by the Division of Narcotic Control because of the creative liberties she took in presenting research they had assisted her with. According to Carstairs, "There were insinuations in the records that the bureaucrats at the division of narcotic control did not think very highly of Emily Murphy and did not pay attention to what she was writing about, and they didn't consider her a particularly accurate or valuable source."
More likely, cannabis was added to the list because of Canadian involvement in international conferences where it was discussed. According to one government official, cannabis was outlawed after the Director of the Federal Division of Narcotic Control returned from League of Nations meetings where the international control of the drug was broached.:49 Cannabis did not begin to attract official attention in Canada until the latter 1930s, and even then it was minimal.:51 The first seizure of cannabis by Canadian police was not until 1937.:48 Between 1946 and 1961, cannabis accounted for only 2% of all drug arrests in Canada.:112
While recreational use of cannabis in the Western hemisphere had been growing since the 1800s, it remained almost unheard of in Canada until the 1930s, and it was not until the 1960s that cannabis surged in popularity as a drug. Initially in the 1960s the drug was popular among middle-class college students, only later expanding to other demographics. The maximum penalty for possession of small quantities was six months in prison and a $1,000 fine for a first offence. Convictions for cannabis skyrocketed, from 25 convictions between 1930 and 1946, to 20 cases in 1962, to 2,300 cases in 1968, to 12,000 in 1972. The Narcotics Control Act of 1961 increased maximum penalties to 14 years to life imprisonment.
According to a report titled For The Senate Special Committee On Illegal Drugs, the increase in marijuana use during the 1960s was due to the "hippie psychedelic ethos", a counter culture that rejected traditional values, the growth of underground newspapers, and the increased discussion about the drug in the mass media. The report also suggests that increased travel to parts of the world such as the Far East, where hashish was readily available at moderate cost, contributed to the popularity of the drug culture.
In response to the increased popularization of marijuana and the increase in criminal charges against middle class citizens, the government formed the Royal Commission of Inquiry in the Non-Medical Use of Drugs, usually referred to as the Le Dain Commission in 1969 to investigate the non-medical cannabis use in Canada. The commission's 1972 report recommended removing criminal penalties for cannabis possession, though not legalization, per se. While the subsequent two federal governments discussed the recommendation, no steps were actually taken to change legislation.
During the 1980s, Gallup polls indicated that cannabis use was stabilizing; this may have been because of the penalties and the changing opinion of the public toward a less permissive attitude that objected more strenuously to the marijuana-based lifestyle. However, cannabis use increased significantly during the 1990s. For example, statistics for Ontario between 1996 and 2000 indicated that use among 18-29 year olds increased from 18% to 28%.
An October 2016 national poll by Forum suggests that about five million adult Canadians now use cannabis at least once a month; this was expected to increase by 19 percent after marijuana is legalized. Canaccord Genuity analysts Matt Bottomley and Neil Maruoka released a research note with a more moderate estimates as to the number of users. They predicted that approximately 3.8 million persons will be recreational users (presumably on a frequent basis) by 2021.
Developments since 2001
Medical cannabis legislation
The regulation on access to cannabis for medical purposes, established by Health Canada in July 2001, defines two categories of patients eligible for access to medical cannabis. BC College of Physicians and Surgeons’ recommendation, as well as the CMPA position, is that physicians may prescribe cannabis if they feel comfortable with it. The MMPR (Marijuana for Medical Purposes Regulations) forms are a confidential document between Health Canada, the physician and the patient. The information is not shared with the College or with the RCMP. No doctor has ever gone to court or faced prosecution for filling out a form or for prescribing medical cannabis. Category 1 covers any symptoms treated within the context of providing compassionate end-of-life care or at least one of the symptoms associated with medical conditions listed below:
- Severe pain and/or persistent muscle spasms from multiple sclerosis, from a spinal cord injury, from spinal cord disease
- Severe pain, cachexia, anorexia, weight loss, and/or severe nausea from cancer or HIV/AIDS infection
- Severe pain from severe forms of arthritis
- Seizures from epilepsy
Category 2 is for applicants who have debilitating symptom(s) of medical condition(s), other than those described in Category 1. The application of eligible patients must be supported by a medical practitioner. Health Canada permits cannabis for approved patients who can demonstrate a medical need for compassionate end-of-life care or debilitating symptoms.[when?] Chris Buors, a cannabis activist, was sentenced to six months in jail in November 2004 after pleading guilty to cannabis distribution and marketing charges arising from his operation of the Manitoba Compassion Club which served patients suffering from a variety of illnesses.
In a survey conducted by the United Nations in 2011 it was revealed that 12.6% of the population, roughly 4.39 million adults, have used cannabis at least once in the past year, while the estimate for those aged between 15 and 24 was 26.3%. Considering the massive size of the cannabis market, it is clear that prohibition has harmed the Canadian government greatly, like others worldwide, from an expansive additional source of revenue at a time when cuts in benefits and investments are being used to balance the budget and come out of debt. However, the loss of tax revenues is not the only problem associated with the current cannabis use policies: prohibition has kept the drug industry illegal and, subsequently, deregulated. This makes for risk-premiums that create a monopolized market with high barriers to entry, which in turn, leads to increases in violence, organized crime and the diversion of limited government resources to prosecuting drug users (i.e. non-violent crimes).
In April 2014, the Medical Marijuana Access Program was replaced by the Marijuana for Medical Purposes Regulations (or MMPR) by Health Canada. Under the MMPR, legal medical cannabis production is authorized to licensed producers whom Health Canada maintains a public database of. Patients wishing to fulfill a medical cannabis prescription must register with and order from a licensed producer of their choice. To receive prescription for medical cannabis, a patient must obtain a medical document from a healthcare practitioner and obtain Authorization to Possess from Health Canada. Individuals with an Authorization to Possess valid on March 21, 2014 fall under a grandfather clause and may hold a maximum quantity of dried herbal cannabis as specified by their Authorization to Possess or 150 grams, whichever is less.
In June 2015, the Supreme Court of Canada expanded the definition of medical cannabis to include any form of the drug, including but not limited to brownies, teas, or oils.
While marijuana is legal for medical use, Toronto Police executed Project Claudia in 2016, seizing 279 kg of marijuana from multiple dispensaries regardless of their adherence to the Marihuana for Medical Purposes Regulations. 186 charges were laid, many related to the sale of food. The interrupted service prompted medical marijuana patients to protest at TPS headquarters.
Cannabis refugees in Canada
There are cases of users of medical cannabis in the United States who, on being persecuted in their own country, have fled across the border to Canada, where they have sought asylum under the United Nations refugee convention. This began occurring in the early part of the 2000s when the U.S. Attorney General, John Ashcroft, ordered a clampdown on the use of medical cannabis in the United States. Some of those who have fled are wanted by the U.S. federal government on charges related to their use of cannabis.
Failed decriminalization bills (2003, 2004)
On May 27, 2003, the Liberal government of Jean Chrétien introduced a bill that would have decriminalized the possession for personal use of small amounts of cannabis. Possession of 15 grams or less would have been punishable only with a fine, and those possessing between 15 and 30 grams would be either ticketed or arrested for criminal charges at the officer's discretion. Personal cultivation of up to seven plants would have also become a summary offence, while the punishment for cultivation in larger amounts would have been more severe. The bill looked likely to pass into law, but it died when Parliament prorogued. The bill's death was largely due to pressure from the American government's Drug Enforcement Administration, which had threatened to slow down border-crossings along the Canada–United States border with increased searches for cannabis.
An identical bill was introduced in November 2004 by the minority Liberal government of Paul Martin, but it too died, when Martin's government was defeated in a confidence vote. After the Conservative victory in the 2006 election, the new government did not resurrect this bill.
The Vancouver plan (2005)
This is a draft by the city authorities in Vancouver called Preventing Harm from Psychoactive Drug Use dated November 2005, that aims to regulate the sale of cannabis. The principle is "when A Framework for Action: A Four Pillar Approach to Drug Problems in Vancouver was adopted by City Council in 2001, Vancouver committed to developing a comprehensive strategy based on the best evidence available to address harmful drug use in the city. In public meetings across the city, citizens called for a more focused, coordinated and sustained approach to addressing drug related issues. Since that time, our understanding of the issue has grown. This plan highlights both the complexity and centrality of prevention in any discussion of a comprehensive Four Pillar approach to harmful drug use." A Four Pillar Approach to Drug Problems that was founded by Donald Macpherson consists of the equal involvement of facilities that deal with Prevention, Treatment, Enforcement and Harm Reduction strategies in a commonly shared goal to manage the negative impacts of severe drug use and dependence on the community and the individual.
Marc Emery extradition and trial (2005–2009)
Marc Emery, a cannabis activist and former cannabis seed distributor from Vancouver, was extradited to the United States, where he was sentenced to 5 years in prison for "distribution of marijuana" seeds. Though accused of laundering seed money from 1998 until his arrest in 2005, Emery paid provincial and federal taxes as a "marijuana seed vendor" totalling nearly $600,000.
Anti-drug strategy (2007)
In October 2007, while in his first term in office, Prime Minister Stephen Harper announced a new national anti-drug strategy. Following the Conservative victory in the 2008 election, the government reannounced the policy in February 2009. The proposed legislation would have dealers facing one-year mandatory prison sentences if they are operating for organized crime purposes, or if violence is involved. Dealers would also face a two-year mandatory jail sentence if they are selling to youth, or dealing drugs near a school or an area normally frequented by youth. Additionally, people in Canada who run a large cannabis grow operation of at least 500 plants would risk facing a mandatory two-year jail term. Maximum penalties for producing cannabis would increase from 7 to 14 years.
Bill C-15/S-10: mandatory minimums for cannabis (2009)
Legislation submitted by the Conservative minority government moved in a new direction on cannabis towards increasing penalties on cannabis trafficking by introducing mandatory minimum sentencing. The legislation passed the House of Commons with the support of the Liberal Party of Canada, while both the NDP and Bloc Québécois opposed the legislation.
The Senate sent the bill back to the house. Parliament was prorogued at the end of 2009 so the bill died, but it was reintroduced as Bill S-10. Bill S-10 died in March 2011 as parliament was dissolved after a non-confidence vote.
Key court decisions
All of these decisions have invalidated the prohibition of cannabis based on the insufficiency of the exemptions provided for legitimate medical users of the drug. However, the laws have been and will probably continue to be modified in order to adapt them to constitutional requirements. As such, there is the possibility that a judge will uphold as valid a newer revision of the law. This also does not stop prosecutors from pursuing charges against cannabis users. Therefore, cannabis users cannot be assured that they will not be prosecuted for their use of the drug.
2000: R. v. Parker (Ontario Court of Appeal)
R. v. Parker was the landmark decision that first invalidated the cannabis prohibition. However the declaration of invalidity was suspended for one year. It concerned the case of an epileptic who could only alleviate his suffering by recourse to cannabis. The Court found that the prohibition on cannabis was unconstitutional as it did not contain any exemption for medical use.
2003: R. v. J.P. (Ontario Court of Appeal)
On May 16, 2003, the Ontario Superior Court found the accused party, "J.P.", not guilty. The appellate court ruled that the Medical Marihuana program's rules do not form a basis for the prosecution of J.P., as they do not themselves contain any effective prohibitions.
The Crown appealed the decision of the Ontario Superior Court to the Ontario Court of Appeals. But in October 2003, the Court of Appeals upheld the invalidity of section four of the Controlled Drugs and Substances Act as it applies to cannabis, on the same grounds as those given by the lower court. The court stated in its ruling:
As we have held, the MMAR [Medical Marihuana Access Regulations] did not create a constitutionally acceptable medical exemption. In Parker, this court made it clear that the criminal prohibition against possession of marihuana, absent a constitutionally acceptable medical exemption, was of no force and effect. As of April 12, 2002, there was no constitutionally acceptable medical exemption. It follows that as of that date the offence of possession of marihuana in s. 4 of the CDSA was of no force and effect. The respondent could not be prosecuted.[this quote needs a citation]
2007: R. v. Long (Ontario Court of Justice)
The Ontario Court of Justice held in R. v. Long that the prohibition in the Controlled Drugs and Substance Act against the possession of cannabis were unconstitutional in the absence of an accompanying constitutionally acceptable exemption for medical cannabis. The current exemption depended on the government supplying cannabis, which it was only doing as a result of the policy. However, the policy did not impose a legal obligation upon the government to supply cannabis to those who needed it for medical purposes. The court held that without such an obligation, the exemption was constitutionally unacceptable, as access to marijuana depended on the implementation of a policy rather than the application of a law. If the government wanted to control the supply of cannabis, it had to impose an obligation upon itself to supply marijuana to eligible persons. The court held that if the government was obliged by law to supply cannabis in accordance with the policy, the exemption would be constitutionally acceptable.
A notice of appeal was filed by the Crown on 23 August 2007.
2007: R. v. Bodnar/Hall/Spasic (Ontario Court of Justice)
In R. v. Bodnar/Hall/Spasic, the Ontario Court of Justice followed the Long decision, holding that the prohibition against possession of cannabis in the Controlled Drugs and Substances Act is invalid and of no force or effect. Hon. Justice Edmonson stated in his ruling that "there is no offence known to law that the accused have committed."
2008: Sfetkopoulos v. Canada (Federal Court of Canada)
As of 10 January 2008, Justice Barry Strayer of the Federal Court of Canada struck down the federal regulations concerning the growing of medical cannabis by licensed producers. Prior to the case, a producer was prohibited from growing for more than one person. The Marijuana Medical Access Regulations require all medical cannabis users to obtain their prescription from a limited number of sources:
- Personally grown
- Produced by a designated individual for that person
- From a licensed dealer
At the time, there was only a single licensed dealer in Canada, which grew in Manitoba and processed in Saskatchewan, making it difficult to access. A multitude of users requested a single designate, of which all applications were denied except for one. This regulatory structure was, they argued, a violation of the Section 7 of the Canadian Charter of Rights and Freedoms, because it forced sufferers to go through illicit channels to obtain medical cannabis, to which they were legally entitled. Thus, they were being forced to break the law in order to ensure their constitutionally-protected right to "security of the person."
The court agreed with this reasoning and struck down subsection 41(b.1) as being of no force or effect.
This, however, does not concern the non-medical use of cannabis.
2011: R. v. Mernagh (Ontario Superior Court)
On April 12, 2011, Justice Donald Taliano found that Canada's Marijuana Medical Access Regulations (MMAR) and "the prohibitions against the possession and production of cannabis contained in sections 4 and 7 respectively of the Controlled Drugs and Substances Act" are "constitutionally invalid and of no force and effect". The government was given 90 days (until 11 July) to fill the void in those sections, or the possession and cultivation of cannabis would become legal in all of Ontario. This includes the non-medical use of the drug.
The mid-July deadline was extended when federal government lawyers argued that current cannabis laws and regulations should stay in place until Ontario's highest court could hear the appeal, which took place over the 7th and 8 May 2012. In granting the deadline extension, the Court of Appeal noted that "The practical effect of the decision if the suspension were permitted to expire on 14 July would be to legalize cannabis production in Ontario, if not across Canada." The decision released February 1, 2013 states that the Ontario's Appeals Court has upheld current cannabis laws in Canada, overturning the decision made by the lower court judge in 2011. In the decision, the appeals court ruled that the lower court judge had made several errors in striking down Canada's cannabis laws, citing an absence of a constitutional right to use medical cannabis. The court also stated that Mernagh failed to provide evidence from a doctor that he met the criteria for the use of medical marijuana. The decision was met with criticism and disappointment from many in Canada, including the Canadian HIV/AIDS Legal Network. After the ruling, they restated Mernagh's (and many other medical marijuana users in Canada) issue with the current cannabis rules: "Allowing the current regulations to stand unchanged will leave many people with serious health conditions without effective access to legal authorization to use cannabis as medicine."
2015: R v. Smith (Supreme Court of Canada)
The Supreme Court ruled in this case that the restriction to dried marijuana under the MMAR and the MMPR were unconstitutional.
2016: Allard et al v. Regina
Injunctive relief granted by Judge Manson to those previously licensed under MMAR within certain dates. MMPR declared unconstitutional by BC Superior Court, declaration suspended for 6 months to allow government time to respond to ruling and reincorporate personal production.
The steps to legalization
After the Liberal party formed a majority government after the Canadian federal election, 2015, Prime Minister Justin Trudeau announced that a federal-provincial-territorial process was being created to discuss a jointly suitable process for decriminalizing Cannabis in Canada for personal use. The plan is to remove cannabis consumption and incidental possession from the Criminal Code. In November 2015, Justice Minister Jody Wilson-Raybould said that she and the ministers of Health and Public Safety were working on specifics as to the legislation. During an annual celebration of cannabis culture in April 2016, Health Minister Jane Philpott announced the government's plan to introduce new legislation to the House of Commons the following spring.
Since that time, some people with minor convictions for cannabis possession are asking whether the Government of Canada plans to give them pardons that would allow them to travel to the United States and to get employment in certain fields. As of 22 December 2015, a decision had not yet been made in this regard. Wilson-Raybould said that conversations with various levels of government will be required before making a decision on this issue.
While the legislation is expected to be enacted in 2017, making Cannabis in Canada legal for all intents and purposes. Sales for recreational use will probably not commence until January 2018 according to Canada's Parliamentary Budget Officer. Until legislation is enacted, marijuana remains illegal (except with a physician's prescription, for medical purposes).
Naturally, the substance will be taxed, producing revenues of $618 million per year initially and eventually, billions, according to a report by Canada's Parliamentary Budget Officer (PBO). (A recent government estimate indicates that the illegal marijuana industry is worth $7-billion per year.)
Positions of Canadian political parties
The Liberal Party of Canada supports the legalization and regulation of cannabis for recreational use. Prime Minister Justin Trudeau supports ending the prohibition of marijuana and has defended his and the party's stance multiple times since announcing his candidacy for party leader. Since the Liberals won a majority of the seats in the House of Commons during the Canadian federal election, 2015, the Trudeau government will have no difficulty passing legislation to make cannabis legal particularly with the expected support of all Members of the opposition parties in Parliament.
The Conservative Party of Canada favours decriminalization of cannabis. Former Prime Minister of Canada and CPC leader Stephen Harper is quoted as saying, "Tobacco is a product that does a lot of damage. Marijuana is infinitely worse and it's something that we do not want to encourage." Current CPC interim leader Rona Ambrose has on multiple occasions reiterated Mr. Harper's position, but has also stated that she wants Mr. Trudeau's government to "get a move on" with their plan.
The New Democratic Party supported the legalization and regulation of cannabis as of the federal election of 2015. The NDP have promised to immediately decriminalize cannabis should they form government. The NDP party leader Thomas Mulcair publicly clarified his support for decriminalization in 2012.
- Cannabis in Canada
- Legality of cannabis
- Drug liberalization / Drug prohibition
- Effects of cannabis
- Medical cannabis
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