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Cannabis in Canada—a puzzling policy
International Journal of Drug Policy 10 (1999) 313 – 318 www.elsevier.com/locate/drugpo
Review
Cannabis in Canada—a puzzling policy Patricia G. Erickson *, Eugene Oscapella Canadian Foundation for Drug Policy, Ottawa, ON, Canada
Canada was one of the first nations to criminalise cannabis when it added it to the schedule of prohibited ‘narcotics’ in 1923. Since cannabis use was virtually unknown in Canada then, or for decades afterwards, Giffen et al. (1991) correctly termed it a ‘solution without a problem’. A current, apt characterisation 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– 1973), and to consider major reform of its laws. Reform, of course, never occurred. An
This paper has been peer-reviewed. * Corresponding author. Present address: Addiction Research Foundation, 33 Russel St. c T418, Toronto, ON M5S 2S1, Canada.
other opportunity was lost during the construction of the new Controlled Drugs and Substances Act (1997). Canada seems committed to an approach that reaffirms an allegiance to criminalisation. Drug offence statistics confirm the central position of cannabis in Canada’s undeclared war on drugs. Statistics Canada recently reported that in 1997, cannabis offences accounted for 72% of all drug crimes, compared with 58% in 1991. Possession of cannabis alone accounted for almost half of all drug offences (The Daily, 1999). We 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. A third, potential decriminalisation option is also described. 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’, (Ontario Court of Justice, 1997) ‘Krieger’ (Alberta Provincial Court 1998) and ‘Caine’ (British Columbia Provincial Court, 1998) cases. In the Clay case, the proprietor of a London (Ontario)
0955-3959/99/$ - see front matter © 1999 Elsevier Science B.V. All rights reserved. PII: S 0 9 5 5 - 3 9 5 9 ( 9 9 ) 0 0 0 3 0 - 4
314
P.G. Erickson, E. Oscapella / International Journal of Drug Policy 10 (1999) 313–318
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, Clay constructed his own website to raise money for the case. 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 on the relative harmlessness of cannabis, in effect dismantling much of the demon drug mythology, and explicitly recognised cannabis’s 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, involving 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 activi-
ties, was recognised. Parker’s own lawyer has interpreted this 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 Department of Justice. The Clay and Parker cases were heard in Ontario, a province that historically has been somewhat more lenient in cannabis matters than Alberta, where the Krieger case was heard. Krieger, suffering from multiple sclerosis, was charged with possession for the purpose of trafficking. He had publicised his intention to go to an Alberta courthouse to offer marijuana to another multiple sclerosis sufferer, who was on trial for possession for the purpose of trafficking. When Krieger acted upon his declared intention, he was arrested, charged and convicted. However, before sentencing, the judge gave Krieger additional time to prepare evidence about the medicinal benefits of cannabis. The judge in the Krieger case noted the well settled principle in sentencing that trafficking in cannabis will attract a jail term, even for a first offender, except in exceptional circumstances. The judge considered Krieger’s case ‘exceptional,’ given the motivation behind Krieger’s actions, his belief that cannabis possesses healing powers, and sentenced Krieger to a $500 fine or 11 days in jail. This case has therefore set an important precedent. In ‘Caine’, a British Columbia case, the accused applied for a declaration that prohibition of the possession of marijuana for personal use was contrary to Section 7 of the Charter, which guarantees the right to ‘‘life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.’’ However, the judge rejected that argument, citing his duty to follow a British
P.G. Erickson, E. Oscapella / International Journal of Drug Policy 10 (1999) 313–318
Columbia Supreme Court decision (Supreme Court of British Columbia, 1998) that the prohibition of cannabis possession did not violate Section 7. Furthermore, the judge rejected request to reconsider whether Parliament had the constitutional jurisdiction to prohibit the possession of cannabis also failed. These four 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 a 1997 poll (The Globe and Mail, 1997) found that 83% of Canadians supported legitimising marijuana for medical purposes. A 1999 poll obtained overwhelming support on a similar issue: 78% of those polled said they supported the federal government’s recently announced plan (the plan announced by the Minister of Health, discussed in the next paragraph) to consider the use of marijuana as a possible treatment for various medicinal conditions (National Post, 1999). Indeed, there have been rumblings in Canada’s House of Commons about medicinal marijuana. In March 1999, debate started on a motion introduced in the House by a member of the opposition Bloc Que´becois party. The motion read, ‘‘That, in the opinion of this House, the government should undertake all necessary steps to legalise the use of marijuana for health and medical purposes.’’ The Member of Parliament who introduced the motion had apparently managed to obtain considerable support from within all parties. Debate on the motion was set to take place over the spring of 1999, with a vote planned for June. The day before this motion was introduced, Canada’s Minister of Health stated in
315
the House of Commons that the government was ‘‘aware there are Canadians suffering, who have terminal illnesses, who believe that using medical marijuana can help ease their symptoms. We want to help.’’ The Minister announced that, as a result, he had asked his officials to develop a plan that will include clinical trials for medical marijuana, appropriate guidelines for its medical use and access to a safe supply of this drug. However, no details were provided as to how long this process would take, nor how such a program would operate. On June 9, 1999, Canada’s Minister of Health announced a clinical trials program for medicinal marijuana and a process for individuals who seek access to medicinal marijuana to apply to Canada’s federal health department for an exemption from the law. Saying ‘‘This is about showing compassion to people, often dying, suffering from grave and debilitating illness’’, he also announced immediate exemptions for two men, both with AIDS (Canada, 1999). That brought to a total of three (the other being Terry Parker, whose court case is discussed above) those in Canada with legal access to medicinal marijuana as of that date. The second topic, cannabis diversion, is the latest in a series of federal initiatives directed at mitigating the harmful individual consequences of criminalisation 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 (Erickson, 1980). The latest exam-
316
P.G. Erickson, E. Oscapella / International Journal of Drug Policy 10 (1999) 313–318
ple 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 fulfil an alternative requirement, such as performing a certain number of community service hours, and report back to court for the prosecutor to stay the charges. The federal Department of Justice has mandated neither the implementation nor the actual content of the diversion programs 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 6 months in the new law. Another federal law, the Contraventions Act, could serve as a vehicle to decriminalise the possession of cannabis, but has not yet been used for this purpose. The Act permits the Governor in Council (Cabinet) to make regulations designating as a contravention any offence except one that can be prosecuted only on indictment. Possession of cannabis is therefore eligible for this designation, which would change its status from a criminal offence to a contravention. Conviction of a contravention, unlike conviction under the current drug law, would not result in a criminal record, nor could it result in imprisonment. However, to date, the government has not promulgated a regulation to change possession of cannabis to a contravention. 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 les-
sons more about resistance to fundamental legal change than conditions for success in devising a regulatory model for cannabis. Further details on Canadian drug policy developments can be found at the Canadian Foundation for Drug Policy web site (www.cfdp.ca).
Appendix A. Excerpts from ‘R. versus Clay’ I heard from a most impressive number of experts, among whom there was a general consensus about effects of the consumption of marijuana. From an analysis of their evidence I am able to reach the following conclusions: 1. consumption of marijuana is relatively harmless compared to the so-called hard drugs and including tobacco and alcohol; 2. there exists no hard evidence demonstrating any irreversible organic or mental damage from the consumption of marijuana; 3. that cannabis does cause alteration of mental functions and as such, it would not be prudent to drive a car while intoxicated; 4. there is no hard evidence that cannabis consumption induces psychoses; 5. cannabis is not an addictive substance; 6. marijuana is not criminogenic in that there is no evidence of a causal relationship between cannabis use and criminality; 7. that the consumption of marijuana probably does not lead to ‘hard drug’ use for the vast majority of marijuana consumers, although there appears to be a statistical relationship between the use of marijuana and a variety of other psychoactive drugs;
P.G. Erickson, E. Oscapella / International Journal of Drug Policy 10 (1999) 313–318
8. marijuana does not make people more aggressive or violent; 9. there have been no recorded deaths from the consumption of marijuana; 10. there is no evidence that marijuana causes amotivational syndrome; 11. less than 1% of marijuana consumers are daily users; 12. consumption in so-called ‘de-criminalised states’ does not increase out of proportion to states where there is no de-criminalisation; and 13. health related costs of cannabis use are negligible when compared to the costs attributable to tobacco and alcohol consumption. A.1. Harmful effects of marijuana and the need for more research Having said all of this, there was also general consensus among the experts who testified that the consumption of marijuana is not completely harmless. While marijuana may not cause schizophrenia, it may trigger it. Bronchial pulmonary damage is at risk of occurring with heavy use. However, to be fair, there is also general agreement among the experts who testified that moderate use of marijuana causes no physical or psychological harm.
Appendix B. Excerpts from ‘R. versus Parker’ ‘Security of the person’ within the meaning of Section 7 of the Charter must include a right of access to medical treatment for a condition representing a danger to life or health without fear of criminal sanction.... Mr Parker stands a daily risk of being deprived of his right to life, liberty and security. The Court now moves to consider whether
317
legislation which puts a person in such a position can be in accord with the principles of fundamental justice. …Health is fundamental to life and the security of each person… The control of his epileptic seizures is of critical personal importance to him and in the interest of the greater community of which he is a part, the same community who pay his health care costs. I find he has established that this control is best achieved through a combination of prescribed medications and the smoking of marihuana. For this Applicant/Accused to be deprived of his smokable marihuana is to be deprived of something of fundamental personal importance. …It is overbroad not to provide by legislation a procedural process for an individual in these circumstances to be exempt from prosecution when personal possession and cultivation is for legitimate medical use. It does not accord with fundamental justice to criminalise a person suffering a serious chronic medical disability for possessing a vitally helpful substance not legally available to him in Canada. …Article 14(2) of the (United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances) reads: Each Party shall take appropriate measures to prevent illicit cultivation of and to eradicate plants containing narcotic or psychotropic substances, such as opium poppy, coca bush and cannabis plants, cultivated illicitly in its territory. The measures adopted shall respect fundamental human rights and shall take due account of traditional licit uses, where there is historic evidence of such use, as well as the protection of the environment. Life, liberty and security of the person are just such fundamental human rights which Canada is obligated to respect under this article. Therefore, a finding that the Appli-
318
P.G. Erickson, E. Oscapella / International Journal of Drug Policy 10 (1999) 313–318
cant/Accused’s rights under Section 7 of the Charter have been violated fully rebuts the proposition that impugned legislation enhances Canada’s interest by appearing to adhere to the Convention. …This Charter application must, for the above reasons, succeed. The violation of the fundamental principles of justice which underlies this community’s sense of fair play and decency require this result.
References Alberta Provincial Court. R. v. Krieger, (1998) A.J. No. 1119 (Alberta Provincial Court, Criminal Division, October 19, 1998, Davie Prov. Ct. J). British Columbia Provincial Court. R. v. Caine, (1998) B.C.J. No. 885, (British Columbia Provincial Court, Howard Prov. Ct. J., April 20, 1998). Canada 1999. House of Commons, Debates, Wednesday, June 9, 1999.
.
The Daily. Latest News from Statistics Canada. Tuesday, March 9, 1999. The statistics came from a Statistics Canada publication, ‘Juristat’, which contains a detailed analysis of criminal drug offences reported by Canadian police forces. Erickson PG. Cannabis Criminals: The Social Effects of Punishment on Drug Users. Toronto: ARF Books, 1980. Giffen PJ, Endicott S, Lambert S. Panic and Indifference: The Politics of Canada’s Drug Laws. Ottawa: Canadian Centre on Substance Abuse, 1991. The Globe and Mail. Possession of pot no crime, poll told. Tuesday, November 4, 1997. National Post. Canadians Favour the Use of Medical Marijuana. Wednesday, April 7, 1999. Ontario Court of Justice. R. v. Clay, (1997) O.J. No. 3333, (Ontario Court of Justice (General Division), McCart J., August 14, 1997), R. v. Parker, (1997) O.J. No. 4923 (Ontario Court of Justice (Provincial Division), Sheppard Prov. J., December 10, 1997). Supreme Court of British Columbia. R. v. MalmoLevine, (1998) B.C.J. No. 1025 (Supreme Court of British Columbia, Curtis, J., February 18, 1998).
Review
Cannabis in Canada—a puzzling policy Patricia G. Erickson *, Eugene Oscapella Canadian Foundation for Drug Policy, Ottawa, ON, Canada
Canada was one of the first nations to criminalise cannabis when it added it to the schedule of prohibited ‘narcotics’ in 1923. Since cannabis use was virtually unknown in Canada then, or for decades afterwards, Giffen et al. (1991) correctly termed it a ‘solution without a problem’. A current, apt characterisation 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– 1973), and to consider major reform of its laws. Reform, of course, never occurred. An
This paper has been peer-reviewed. * Corresponding author. Present address: Addiction Research Foundation, 33 Russel St. c T418, Toronto, ON M5S 2S1, Canada.
other opportunity was lost during the construction of the new Controlled Drugs and Substances Act (1997). Canada seems committed to an approach that reaffirms an allegiance to criminalisation. Drug offence statistics confirm the central position of cannabis in Canada’s undeclared war on drugs. Statistics Canada recently reported that in 1997, cannabis offences accounted for 72% of all drug crimes, compared with 58% in 1991. Possession of cannabis alone accounted for almost half of all drug offences (The Daily, 1999). We 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. A third, potential decriminalisation option is also described. 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’, (Ontario Court of Justice, 1997) ‘Krieger’ (Alberta Provincial Court 1998) and ‘Caine’ (British Columbia Provincial Court, 1998) cases. In the Clay case, the proprietor of a London (Ontario)
0955-3959/99/$ - see front matter © 1999 Elsevier Science B.V. All rights reserved. PII: S 0 9 5 5 - 3 9 5 9 ( 9 9 ) 0 0 0 3 0 - 4
314
P.G. Erickson, E. Oscapella / International Journal of Drug Policy 10 (1999) 313–318
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, Clay constructed his own website to raise money for the case. 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 on the relative harmlessness of cannabis, in effect dismantling much of the demon drug mythology, and explicitly recognised cannabis’s 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, involving 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 activi-
ties, was recognised. Parker’s own lawyer has interpreted this 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 Department of Justice. The Clay and Parker cases were heard in Ontario, a province that historically has been somewhat more lenient in cannabis matters than Alberta, where the Krieger case was heard. Krieger, suffering from multiple sclerosis, was charged with possession for the purpose of trafficking. He had publicised his intention to go to an Alberta courthouse to offer marijuana to another multiple sclerosis sufferer, who was on trial for possession for the purpose of trafficking. When Krieger acted upon his declared intention, he was arrested, charged and convicted. However, before sentencing, the judge gave Krieger additional time to prepare evidence about the medicinal benefits of cannabis. The judge in the Krieger case noted the well settled principle in sentencing that trafficking in cannabis will attract a jail term, even for a first offender, except in exceptional circumstances. The judge considered Krieger’s case ‘exceptional,’ given the motivation behind Krieger’s actions, his belief that cannabis possesses healing powers, and sentenced Krieger to a $500 fine or 11 days in jail. This case has therefore set an important precedent. In ‘Caine’, a British Columbia case, the accused applied for a declaration that prohibition of the possession of marijuana for personal use was contrary to Section 7 of the Charter, which guarantees the right to ‘‘life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.’’ However, the judge rejected that argument, citing his duty to follow a British
P.G. Erickson, E. Oscapella / International Journal of Drug Policy 10 (1999) 313–318
Columbia Supreme Court decision (Supreme Court of British Columbia, 1998) that the prohibition of cannabis possession did not violate Section 7. Furthermore, the judge rejected request to reconsider whether Parliament had the constitutional jurisdiction to prohibit the possession of cannabis also failed. These four 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 a 1997 poll (The Globe and Mail, 1997) found that 83% of Canadians supported legitimising marijuana for medical purposes. A 1999 poll obtained overwhelming support on a similar issue: 78% of those polled said they supported the federal government’s recently announced plan (the plan announced by the Minister of Health, discussed in the next paragraph) to consider the use of marijuana as a possible treatment for various medicinal conditions (National Post, 1999). Indeed, there have been rumblings in Canada’s House of Commons about medicinal marijuana. In March 1999, debate started on a motion introduced in the House by a member of the opposition Bloc Que´becois party. The motion read, ‘‘That, in the opinion of this House, the government should undertake all necessary steps to legalise the use of marijuana for health and medical purposes.’’ The Member of Parliament who introduced the motion had apparently managed to obtain considerable support from within all parties. Debate on the motion was set to take place over the spring of 1999, with a vote planned for June. The day before this motion was introduced, Canada’s Minister of Health stated in
315
the House of Commons that the government was ‘‘aware there are Canadians suffering, who have terminal illnesses, who believe that using medical marijuana can help ease their symptoms. We want to help.’’ The Minister announced that, as a result, he had asked his officials to develop a plan that will include clinical trials for medical marijuana, appropriate guidelines for its medical use and access to a safe supply of this drug. However, no details were provided as to how long this process would take, nor how such a program would operate. On June 9, 1999, Canada’s Minister of Health announced a clinical trials program for medicinal marijuana and a process for individuals who seek access to medicinal marijuana to apply to Canada’s federal health department for an exemption from the law. Saying ‘‘This is about showing compassion to people, often dying, suffering from grave and debilitating illness’’, he also announced immediate exemptions for two men, both with AIDS (Canada, 1999). That brought to a total of three (the other being Terry Parker, whose court case is discussed above) those in Canada with legal access to medicinal marijuana as of that date. The second topic, cannabis diversion, is the latest in a series of federal initiatives directed at mitigating the harmful individual consequences of criminalisation 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 (Erickson, 1980). The latest exam-
316
P.G. Erickson, E. Oscapella / International Journal of Drug Policy 10 (1999) 313–318
ple 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 fulfil an alternative requirement, such as performing a certain number of community service hours, and report back to court for the prosecutor to stay the charges. The federal Department of Justice has mandated neither the implementation nor the actual content of the diversion programs 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 6 months in the new law. Another federal law, the Contraventions Act, could serve as a vehicle to decriminalise the possession of cannabis, but has not yet been used for this purpose. The Act permits the Governor in Council (Cabinet) to make regulations designating as a contravention any offence except one that can be prosecuted only on indictment. Possession of cannabis is therefore eligible for this designation, which would change its status from a criminal offence to a contravention. Conviction of a contravention, unlike conviction under the current drug law, would not result in a criminal record, nor could it result in imprisonment. However, to date, the government has not promulgated a regulation to change possession of cannabis to a contravention. 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 les-
sons more about resistance to fundamental legal change than conditions for success in devising a regulatory model for cannabis. Further details on Canadian drug policy developments can be found at the Canadian Foundation for Drug Policy web site (www.cfdp.ca).
Appendix A. Excerpts from ‘R. versus Clay’ I heard from a most impressive number of experts, among whom there was a general consensus about effects of the consumption of marijuana. From an analysis of their evidence I am able to reach the following conclusions: 1. consumption of marijuana is relatively harmless compared to the so-called hard drugs and including tobacco and alcohol; 2. there exists no hard evidence demonstrating any irreversible organic or mental damage from the consumption of marijuana; 3. that cannabis does cause alteration of mental functions and as such, it would not be prudent to drive a car while intoxicated; 4. there is no hard evidence that cannabis consumption induces psychoses; 5. cannabis is not an addictive substance; 6. marijuana is not criminogenic in that there is no evidence of a causal relationship between cannabis use and criminality; 7. that the consumption of marijuana probably does not lead to ‘hard drug’ use for the vast majority of marijuana consumers, although there appears to be a statistical relationship between the use of marijuana and a variety of other psychoactive drugs;
P.G. Erickson, E. Oscapella / International Journal of Drug Policy 10 (1999) 313–318
8. marijuana does not make people more aggressive or violent; 9. there have been no recorded deaths from the consumption of marijuana; 10. there is no evidence that marijuana causes amotivational syndrome; 11. less than 1% of marijuana consumers are daily users; 12. consumption in so-called ‘de-criminalised states’ does not increase out of proportion to states where there is no de-criminalisation; and 13. health related costs of cannabis use are negligible when compared to the costs attributable to tobacco and alcohol consumption. A.1. Harmful effects of marijuana and the need for more research Having said all of this, there was also general consensus among the experts who testified that the consumption of marijuana is not completely harmless. While marijuana may not cause schizophrenia, it may trigger it. Bronchial pulmonary damage is at risk of occurring with heavy use. However, to be fair, there is also general agreement among the experts who testified that moderate use of marijuana causes no physical or psychological harm.
Appendix B. Excerpts from ‘R. versus Parker’ ‘Security of the person’ within the meaning of Section 7 of the Charter must include a right of access to medical treatment for a condition representing a danger to life or health without fear of criminal sanction.... Mr Parker stands a daily risk of being deprived of his right to life, liberty and security. The Court now moves to consider whether
317
legislation which puts a person in such a position can be in accord with the principles of fundamental justice. …Health is fundamental to life and the security of each person… The control of his epileptic seizures is of critical personal importance to him and in the interest of the greater community of which he is a part, the same community who pay his health care costs. I find he has established that this control is best achieved through a combination of prescribed medications and the smoking of marihuana. For this Applicant/Accused to be deprived of his smokable marihuana is to be deprived of something of fundamental personal importance. …It is overbroad not to provide by legislation a procedural process for an individual in these circumstances to be exempt from prosecution when personal possession and cultivation is for legitimate medical use. It does not accord with fundamental justice to criminalise a person suffering a serious chronic medical disability for possessing a vitally helpful substance not legally available to him in Canada. …Article 14(2) of the (United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances) reads: Each Party shall take appropriate measures to prevent illicit cultivation of and to eradicate plants containing narcotic or psychotropic substances, such as opium poppy, coca bush and cannabis plants, cultivated illicitly in its territory. The measures adopted shall respect fundamental human rights and shall take due account of traditional licit uses, where there is historic evidence of such use, as well as the protection of the environment. Life, liberty and security of the person are just such fundamental human rights which Canada is obligated to respect under this article. Therefore, a finding that the Appli-
318
P.G. Erickson, E. Oscapella / International Journal of Drug Policy 10 (1999) 313–318
cant/Accused’s rights under Section 7 of the Charter have been violated fully rebuts the proposition that impugned legislation enhances Canada’s interest by appearing to adhere to the Convention. …This Charter application must, for the above reasons, succeed. The violation of the fundamental principles of justice which underlies this community’s sense of fair play and decency require this result.
References Alberta Provincial Court. R. v. Krieger, (1998) A.J. No. 1119 (Alberta Provincial Court, Criminal Division, October 19, 1998, Davie Prov. Ct. J). British Columbia Provincial Court. R. v. Caine, (1998) B.C.J. No. 885, (British Columbia Provincial Court, Howard Prov. Ct. J., April 20, 1998). Canada 1999. House of Commons, Debates, Wednesday, June 9, 1999.
.
The Daily. Latest News from Statistics Canada. Tuesday, March 9, 1999. The statistics came from a Statistics Canada publication, ‘Juristat’, which contains a detailed analysis of criminal drug offences reported by Canadian police forces. Erickson PG. Cannabis Criminals: The Social Effects of Punishment on Drug Users. Toronto: ARF Books, 1980. Giffen PJ, Endicott S, Lambert S. Panic and Indifference: The Politics of Canada’s Drug Laws. Ottawa: Canadian Centre on Substance Abuse, 1991. The Globe and Mail. Possession of pot no crime, poll told. Tuesday, November 4, 1997. National Post. Canadians Favour the Use of Medical Marijuana. Wednesday, April 7, 1999. Ontario Court of Justice. R. v. Clay, (1997) O.J. No. 3333, (Ontario Court of Justice (General Division), McCart J., August 14, 1997), R. v. Parker, (1997) O.J. No. 4923 (Ontario Court of Justice (Provincial Division), Sheppard Prov. J., December 10, 1997). Supreme Court of British Columbia. R. v. MalmoLevine, (1998) B.C.J. No. 1025 (Supreme Court of British Columbia, Curtis, J., February 18, 1998).