Legal history of cannabis in Canada

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Police and prosecution services in all Canadian jurisdictions are capable of pursuing criminal charges for cannabis possession. Despite this, there is a lack of consensus on the legal status of cannabis in Canada. 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. However, challenges to cannabis laws at the federal level have not resulted in the deletion of the appropriate articles from the Criminal Code of Canada and the Controlled Drugs and Substances Act.

The cultivation of the hemp plant of the genus Cannabis (family Cannabaceae) is currently legal in Canada for seed, grain and fibre production only under licenses issued by Health Canada.

Several polls since 2003 have found the majority of Canadians agree with the statement, "The use of marijuana should be decriminalized". A 2014 poll conducted by Angus Reid Global shows 59% of Canadians support marijuana legalization, with the strongest support in British Columbia.

History of drug prohibition in Canada

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 prohibition

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 23 April 1923.

Historians usually point to the 1922 publication of Emily Murphy’s The Black Candle as the inspiration for the addition. 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 uses 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. One chapter is entitled "Marahuana – A New Menace", and makes the claim that the only ways out of cannabis addiction are insanity, death, or abandonment.

Although her anti-drug screeds were widely read and helped spread the drug panic across the country, historian Catharine Carstairs disputes that the short chapter in Murphy’s book on cannabis inspired the drug’s inclusion 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.:31 n 24, 49

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

Early 21st century developments

Medical marijuana 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 MMAR 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 marijuana for approved patients who can demonstrate a medical need for compassionate end-of-life care or debilitating symptoms.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.

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 (2002, 2004)

On 27 May 2002, 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 Canadian-American 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.

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, during 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.

The Vancouver plan

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.

Bill C-15/S-10: Mandatory Minimums for Cannabis (2009)

Legislation submitted by the Conservative minority government has 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. Stephen Harper prorogued parliament at the end of 2009 so the bill died, but it has been reintroduced as Bill S-10. Bill S-10 died in March 2011 as parliament was dissolved in a non-confidence vote.

Key court decisions

All of these decisions have invalidated the prohibition of marijuana 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 marijuana users. Therefore, marijuana 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 marijuana 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 marijuana. The Court found that the prohibition on marijuana was unconstitutional as it did not contain any exemption for medical use.

2003: R. v. J.P. (Ontario Court of Appeal)

On 16 May 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 s 4 of the Controlled Drugs and Substances Act (CDSA) as it applies to cannabis, on the same grounds as those given by the lower court. The court stated, at paragraph 11 of 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.}}

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 marijuana were unconstitutional in the absence of an accompanying constitutionally acceptable exemption for medical marijuana. The current exemption depended on the government supplying marijuana, 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 marijuana 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 marijuana, 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 marijuana 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 marijuana 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 marijuana 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 marijuana, 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 marijuana.

2011: R. v. Mernagh (Ontario Superior Court)

On 12 April 2011, Justice Donald Taliano found that Canada's Marijuana Medical Access Regulations (MMAR) and "the prohibitions against the possession and production of cannabis (marijuana) 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 Marijuana 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 on 7 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 marijuana production in Ontario, if not across Canada.". The decision released 1 February 2013 states that the Ontario's Appeals Court has upheld current marijuana laws in Canada, overturning the decision made by the lower court judge in 2011.[40] In the decision, the appeals court ruled that the lower court judge had made several errors in striking down Canada's marijuana laws, citing an absence of a constitutional right to use medical marijuana. 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 marijuana 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".

Positions of Canadian political parties

The Conservative Party of Canada opposes the decriminalization of marijuana.

The Liberal Party of Canada supports the legalization and regulation of marijuana after voting in support of a resolution to this effect at their biennial policy convention in January 2012. Party leader Justin Trudeau supports ending the prohibition of marijuana and has defended his and the party's stance multiple times since announcing his candidacy.

The New Democratic Party supports the decriminalization, but not legalization, of marijuana. Party member and Sensible BC campaign founder Dana Larsen is a cannabis legalization activist.

At a federal level, the Marijuana Party of Canada is leading the campaign for cannabis legalization. In the January 2006 federal election, the party received 9,275 votes (0.06% of the national popular vote). Provincial parties also exist, including the British Columbia Marijuana Party and Bloc pot.

The Libertarian Party of Canada supports the legalization of cannabis.

The Green Party of Canada supports regulation and taxation of cannabis.

The Bloc Québécois supports the decriminalization of marijuana.

See also

Legal issues of cannabis

Legality of cannabis