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Up in smoke? Canada's marijuana law and the debate over decriminalization
Lisa Khoo, CBC News Online | May 2001 | Updated Nov. 25, 2004

Ever since marijuana was first banned in Canada under the 1923 Opium and Drug Act, dissenters have called the criminal penalties set for possession of the drug too harsh.

Supreme Court: December 23, 2003
Jailing someone with small amounts is constitutional and any changes to the law must be made by Parliament, Canada's top court ruled on December 23, 2003.

"We conclude that it is within Parliament's legislative jurisdiction to criminalize the possession of marijuana, should it choose to do so," said the judgment co-written by justices Charles Gonthier and Ian Binnie.

"Equally, it is open to Parliament to decriminalize or otherwise modify any aspect of the marijuana laws that it no longer considers to be good public policy."

Court documents:
Since May 1997, illicit drugs such as marijuana have been covered by the Controlled Drugs and Substances Act, which a growing number of people in Canada want scrapped.

The Ontario Court of Appeal decided in July 2000 to strike down a federal law prohibiting the possession of less than 30 grams of marijuana. The court ruled that banning marijuana for medicinal purposes violates the Canadian Charter of Rights and Freedoms.

One year later, Canada became the first country to adopt a system regulating the medicinal use of marijuana. But the Marijuana Medical Access Regulations, which went into effect July 31, 2002, didn't address the issue of recreational use.

Then, in January 2003, an Ontario judge ruled that Canada's law on possession of small amounts of marijuana was no longer valid. Windsor Justice Douglas Phillips dismissed two drug charges against a 16-year-old local boy, saying Parliament had failed to address problems with Canada's marijuana laws.

"I think it's also satisfying to know that this particular law has been declared invalid, particularly given how burdensome it is in terms of criminalizing the behaviour that hundreds of thousands of Canadians engage in," said Brian McAllister, the teen's lawyer.

Pot possession returned to the headlines within months.

In a judgement issued on Oct. 7, 2003, the Ontario Court of Appeal wrote new rules to make it easier for people who are ill to get medicinal marijuana legally, but in the process, it reinstated laws making possession of pot for social or recreational use illegal.

The Supreme Court of Canada said in a decision on Dec. 23, 2003, that Canada's laws against possessing small amounts of marijuana do not violate the Charter of Right and Freedoms and its protection of life, liberty and security of person.

A bill to change Canada's marijuana laws died in November 2003 when meetings of the Parliament were temporarily discontinued for Martin's swearing in. A year later, the Liberals reintroduced it as Bill C-17.

If the bill passes, adults caught with less than 15 grams of pot could be fined up to $400, but wouldn't have a criminal record. But the bill doubles the length of prison sentences for marijuana growers and introduces four new offences for growers.

NDP House leader Libby Davies said her party thinks C-17 could lead to too much enforcement for simple possession. The NDP said it would also seek amnesty for the estimated 600,000 Canadian who have a criminal record for simple possession.

The Canadian Medical Association estimates that 1.5 million Canadians smoke marijuana recreationally. In November 2004, the Canadian Addiction Survey reported that 14 per cent of Canadians said they had used cannabis in the past year, about double the number from 1994.

The debate over recreational use rages on

Some people don't want any changes to the laws. Others are pushing for complete legalization. In between, there are people who favour what's known as decriminalization. They want to keep the rules but lower the penalties from criminal to a civil level, like getting a traffic ticket – no criminal record would be kept. That's currently the case in the Netherlands.

Two committees, one from the House of Commons and one from the Senate, have studied what – if any – changes should be made.

House of Commons committee

The most recent committee was established May 17, 2001 by an all-party agreement. The Special Committee on Non-Medical Use of Drugs studied "the factors underlying or relating to the non-medical use of drugs in Canada," which included debating the decriminalization of marijuana.

In its final report, the committee said that criminal penalties for possession of a small amount of cannabis for personal use are "disproportionate" to the potential harm associated with smoking pot. The committee said Canada should decriminalize the "possession and cultivation of not more than thirty grams of cannabis for personal use."

However, it also recommended that "the possession of cannabis continue to be illegal and that trafficking in any amount of cannabis remain a crime."

Senate committee

A long-standing special Senate Committee on Illegal Drugs, headed by Senator Pierre Claude Nolin, held hearings on the issue as well. In May 2002, the committee presented a "discussion paper," summarizing the scientific evidence and opinion on marijuana, including:

  • Marijuana is "not a gateway" to harder drugs, such as cocaine and heroin
  • Fewer than 10 per cent of users become addicted
  • A lot of public money is spent on law enforcement, even though public policies don't seem to discourage use of drug
In September 2002, the committee released its final report saying, in part, that marijuana is less harmful than alcohol and should be governed by the same sort of regulations.

"Scientific evidence overwhelmingly indicates that cannabis is substantially less harmful than alcohol and should be treated not as a criminal issue but as a social and public health issue," said Nolin.


Anne McLellan
On May 19, 2001, then-Justice Minister Anne McLellan said she is "quite open" to a debate on both decriminalization and legalization. And the federal health minister at the time, Allan Rock, also said it's time for "frank discussion" on whether the laws should be changed.

Liberalization: those in favour …

The liberalization movement got its first big boost in 1973 in a report by a federal government commission looking into the non-medical use of drugs. The LeDain Commission called for an end to charges for marijuana possession and cultivation.

In May 2001, Progressive Conservative party leader Joe Clark became the latest senior-level politician to take up the cause. He said young people caught with marijuana shouldn't have to carry the stigma of a criminal record for life. Both the NDP and Bloc Québécois favour decriminalization as well.

Several other groups call the penalties, which could include a jail term of up to five years, too harsh. The Canadian Medical Association backed that position in an editorial pointing out that a criminal record effectively bars young people from getting jobs and opportunities, including getting into medical school. It called the health effects of moderate use "minimal."

The Canadian Association of Chiefs of Police has also advocated decriminalization, saying prosecuting people for small amounts ties up scarce resources.


… and those against

But other police groups and anti-drug associations vehemently disagree with that assessment.

Among the most recent to speak out was the Canadian Police Association. During testimony to the Senate Special committee, Executive Director David Griffin said most first-time offenders don't get criminal records.

The association is concerned that decriminalization would also lead to increased use of hard drugs.

A May 2000 survey done by COMPAS for the National Post newspaper found that 65 per cent of people said the concept of decriminalizing marijuana is an excellent, very good, or good idea. Twenty-two per cent responded negatively.

Another poll done by University of Lethbridge professor Reginald Bibby said support for legalization has risen to 47 per cent among Canadians.






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The Marijuana Party of Canada

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Annual Report (2000) of the International Narcotics Control Board

Statistics Canada

Considerations for a 'Public Health' approach to Cannabis Use Control in Canada

The Origins of Canada's Cannabis Laws
Canadian Foundation for Drug Policy

Frank Discussion

Final report of the House of Commons Special Committee on Non-Medical Use of Drugs

Canadian Association of Chiefs of Police

Special Committee on Illegal Drugs

Medical Marijuana (from Health Canada)

Canadian Professional Police Association

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