Legal history of cannabis in Canada
The legal status of cannabis in Canada is under dispute. Superior and appellate courts in Ontario have repeatedly declared Canada's marijuana laws to be of no force and effect. However, challenges to marijuana 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. Police and prosecution services in other Canadian jurisdictions still pursue criminal charges for marijuana possession.
The cultivation of cannabis is currently illegal in Canada, with exceptions only for medical usage.
Several polls since 2003 have found that a majority of Canadians agreed with the statement, "The use of marijuana should be legalized", the latest being the 2009 Angus Reid poll, with 53% for legalization. However, the current government, the Conservatives, are attempting to pass an omnibus bill with "mandatory minimum" penalties and jail sentences for drug crimes; the bill does not have the support of the opposition, however the Conservative government is a majority. Cannabis users are specifically targeted.
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 that 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. 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
Cannabis refugees in Canada
There are cases of users of medical marijuana 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 marijuana 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 marijuana.
Failed decriminalization bills (2002, 2004)
On May 27, 2002, the Liberal Party of Canada introduced a bill that would have decriminalized 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 7 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 the United States Drug Enforcement Agency, as they had made various threats to Canadian politicians (such as closing the Canadian-American border so as to control the smuggling of cannabis). An identical bill was introduced in November 2004, which also died when the 2006 election was called. After the Conservative victory, the new government did not resurrect this bill.
Marc Emery extradition and trial (2005-2009)
The U.S. Drug Enforcement Administration extradited Marc Emery, a cannabis activist and former marijuana seed distributor from Vancouver 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, Prime Minister Stephen Harper announced a new national anti-drug strategy which was reannounced in February 2009. A proposed bill 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 marijuana 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.
Medical marijuana legislation
Health Canada permits marijuana for approved patients who can demonstrate a medical need for compassionate end-of-life care or debilitating symptoms.[when?] Chris Buors, a marijuana 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.
Lynn Harichy was also put through the criminal courts for creating awareness for medical marijuana. Lynn suffered from multiple sclerosis and died on December 25, 2003.
The Vancouver plan
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.
R. v. Parker 2000 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.
R. v. J.P., 2003 May 16 Ontario Superior Court of Justice
On 16 May 2003, a brief judgment rendered by Justice Steven Rogin of the Windsor Bench of the Ontario Superior Court found the accused party, "J.P.", not guilty. His acquittal was confirmed on appeal by Rogin J. on the same grounds. The appellant 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 judgment rendered at the OSC formed a binding precedent for that court and the ONCJ, in that if Parliament fails to re-enact a parliamentary statute after it has been declared invalid by a competent court, then that statute is no longer lawful (Read the decision HERE.)
R. v. J.P., 2003 October 7 Ontario Court of Appeal
On appeal by the Crown of the Ontario Superior Court decision of Rogin J, the court upheld the invalidity of s 4 of the CDSA as it applies to cannabis marihuana at 11: As we have held, the MMAR 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. Read decision HERE
R. v. Long 2007 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 August 23, 2007.
R. v. Bodnar/Hall/Spasic 2007 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 Drug and Substance 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."
Sfetkopoulos v. Canada 2008 Federal Court
As of January 10, 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:
- (1) Grown by that person.
- (2) Produced by a designated individual for that person, or
- (3) 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, which they argued was a violation of the Canadian Charter of Rights and Freedoms, section 7 on the grounds that it would force sufferers to go through illicit channels to obtain medical marijuana. As a result, the subsection 41(b.1) is considered of no force or effect.
This, however, does not concern the non-medical use of marijuana.
R. v. Mernagh 2011 Ontario Superior Court
On April 12th, 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 July 11th) to fill the void in those sections, or the possession and cultivation of Marijuana would become legal in all of Canada. This includes the non-medical use of the drug.
The mid-July deadline was recently extended when federal government lawyer Kevin Wilson successfully argued the need for the current cannabis laws and regulations to stay in place until Ontario’s highest court could hear the appeal which has been scheduled for March 5th and 6th 2012. In granting the deadline extension, Court of Appeal Justice Robert Blair noted that “The practical effect of the decision if the suspension were permitted to expire on July 14 would be to legalize marijuana production in Ontario, if not across Canada.” 
Positions of Canadian political parties
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, Bloc pot, Saskatchewan Marijuana Party, and the Marijuana Party of Nova Scotia.
The Green Party of Canada supports the legalization of cannabis.
The NDP previously supported the legalization of the cannabis until former leader Jack Layton reversed his position on the issue on March 16, 2009. Prior to this, he had been highly in favour of legalization and was even interviewed in Marc Emery's home, praising marijuana as a "wonderful substance". The official position of the NDP is in favour of decriminalization rather than legalization.
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