Canada's Countdown to Cannabis Legalization

 Canada

After nine years of Conservative rule, Canada's Liberal Party had a momentous election night on Oct. 19, gaining a majority of seats in Parliament and a new prime minister in Justin Trudeau. The handsome and charismatic son of Canada's most formative prime minister, Trudeau had worked as a school teacher in Vancouver before becoming a parliamentarian representing Quebec. He promised a new beginning in Canadian politics—and a break with the increasingly right-wing policies of his predecessor, Stephen Harper. It remains to be seen if he will able to follow through on his ambitious promises—including to legalize cannabis.

Pleasing the progressives
Trudeau has won accolades, first and foremost, with his pledge to reboot Canada's relationship with First Nations, as native peoples are known there. Speaking to the Assembly of First Nations shortly after his election, Trudeau said to applause: "It is time for a renewed, nation-to-nation relationship with First Nations peoples, one that understands that the constitutionally guaranteed rights of First Nations in Canada are not an inconvenience but rather a sacred obligation." He promised a "complete review" of all Harper-era legislation on First Nations and to overturn any laws that violate Section 35 of the Constitution respecting aboriginal and treaty rights. And the 2% cap on funding for First Nations programs instated by the Harper government will be lifted, he said.

The election also saw a record 10 First Nation candidates elected to Parliament, indicating that Native voters were mobilized by Trudeau's campaign.

In mid-December, a Truth and Reconciliation Commission released its findings on the systematic abuse of generations of First Nations youth at residential schools in Canada, where children were forcibly separated from their families, beaten for speaking their native tongues, and often subject to sexual exploitation. Prime Minister Trudeau owned up to this ugly legacy, and said he will seek a formal apology from Pope Francis for the Catholic Church's role in running the schools.

Trudeau has also pleased progressives by dramatically breaking with Harper’s demonization of Muslim immigrants in an ugly play for the xenophobic vote. Trudeau pledged to resettle 25,000 Syrian refugees in the coming months, and used his Christmas address to urge fellow Canadians to welcome the refugees.

He even personally greeted the first group of refugees to arrive at the Toronto airport aboard a military transport plane. But his government soon later acknowledged that it may not reach its target of resettling that many refugees on schedule—an admission that lofty goals are often tempered by political realities.

Which brings us to what may be the stickiest question of all—Trudeau's audacious campaign promise to legalize cannabis.

This came at a September campaign stop in British Columbia, where Trudeau said: "The Liberal party is committed to legalizing and regulating marijuana… We are going to get started on that right away." But when pressed by reporters as to what "right away" means, he hedged: "We don't yet know exactly what rate we're going to be taxing it, how we're going to control it, or whether it will happen in the first months, within the first year, or whether it's going to take a year or two to kick in."

Justin had long personally advocated legalization. He even admitted in 2013 that he had toked since becoming an MP five years earlier. He also revealed that his late brother, Michel Trudeau, was facing cannabis possession charges before his death in an avalanche in 1998, and that the experience influenced his position.

Family legacy
Indeed, Trudeau's family background gives this trajectory a sense of inevitability. His father was the celebrious Pierre Trudeau—seen by many as the father of modern Canada. As prime minister almost continuously between 1968 and 1984—when Canada's unity was threatened by the emergence of a Quebecois separatist movement—he forged a new social contract that arguably saved the country. He oversaw formal independence from the British parliament, and the drafting of a new constitution with a Charter of Rights and Freedoms. He astutely instated official English-French "bilingualism" to quiet the Quebec separatists (while taking a firm hand with their underground armed wing).

And he shook up what had been a very conservative society with libertine social attitudes. As justice minister in 1967, he introduced a bill to lift penalties on gay sex, famously declaring: "What's done in private between adults doesn't concern the Criminal Code." Radical words for the day.

His open-minded attitudes extended to the herb. As prime minister in 1969, he launched a royal commission to determine if there was sufficient evidence to justify the prohibition on cannabis. The LeDain Commission sought testimony from figures including John Lennon and Yoko Ono after their famous Montreal "Bed-In for Peace." In 1972, it brought back findings that called for repealing the prohibition of simple possession—although the political conditions were not in place for Trudeau to follow through.

Ironically, convictions for simple possession exploded in these same years: from 431 in 1967 to 8,389 in 1971. But this was primarily due to fast-growing use among Canadian youth.

And it was something of an open secret that Pierre's flamboyant and controversial wife Margaret—later to be diagnosed with "bipolar disorder"—was toking behind the backs of her RCMP bodyguards.

The medical program
The first significant breakthrough for cannabis in Canada was the establishment of the medical marijuana program after the 2002 landmark decision Regina v. Parker, concerning Toronto-area epilepsy sufferer Terrance Parker. The Ontario Court of Justice found that the Narcotics Control Act violated Canada’s Charter of Rights and Freedoms by denying Parker's right to medicine.

The medical market, though growing fast, still remains small, at just 30,000 registered patients today. And the program has been tightly controlled by the federal government.

Initially, Prairie Plant Systems of Saskatoon had the sole government contract to grow medical marijuana. Then, in April 2009, Canada's Supreme Court let stand a lower court ruling against the federal government's power to maintain a monopoly over medical marijuana. But the opening that followed this decision—allowing, at least, for small-scale private cultivation—didn't last long.

Vancouver became the first Canadian city to regulate medical marijuana dispensaries—but they remained officially barred under federal law, despite the 2009 Supreme Court ruling. The city now has about 80 such operations—and Harper's government last year had the RCMP send many of them threatening letters warning of imminent raids if they did not close their doors. Police raids in 2010 shut down the five major "compassion centers" in Montreal and Quebec City.

And the official federal program got tighter under Harper—with some court rulings lubricating the clampdown. Ontario’s high court in February 2013 upheld Canada’s general ban on cannabis, overturning a lower court decision that found the nation's marijuana laws unconstitutional. The case concerned Matthew Mernagh of Toronto, an activist and fibromyalgia sufferer who was charged with growing his own cannabis after failure to obtain a medical exemption. The high court found that even serious illness did not give rise to “an automatic right to use marijuana.”

In June 2013, Ottawa overturned its Marihuana Medical Access Regulations (MMAR), revoking the right of patients to grow their own cannabis or designate a grower. The new system, the Marihuana for Medical Purposes Regulations (MMPR), mandates that patients purchase mail-order dried cannabis from large-scale operations known as Licensed Producers.

A case challenging the new regs, Allard vs. Her Majesty the Queen, won an injunction halting the ban on patient cultivation days before the planned switch on April 1, 2014. But that case—brought on behalf of Neil Allard, a neuro-immune disorder sufferer in British Columbia—only applied to the 45,000 patients under the former MMAR system, who will be able to keep growing their own. And in July, the courts turned down a bid to modify the injunction to overturn such restrictions as the ban on changing the location of personal cultivation.

These Licensed Producers—such as Prairie Plant Systems and CanniMed Ltd, also of Saskatoon, and Tweed (for "therapeutic weed"), operating out of a converted Hershey's chocolate factory outside Ottawa—are listed on the stock-market, and are now anticipating an expansion into a regulated recreational cannabis market. These expectations raise both the question of how soon this will really come to pass, and whether there will be a place for small operators in a legalized market.

Push for legalization —and Tory intransigence
About the same time the medical program was being launched, there was push to lift the pressure on recreational use. Since 2002, when the Coalition of Progressive Electors gained a majority on the city council, Vancouver has had a tolerant drug policy based on a "harm reduction" model that de-emphasizes enforcement—allowing for emergence of Amsterdam-style "coffee-shops."

In 2003, three cases challenged Canada's cannabis prohibition law on constitutional grounds, Regina v. Caine and Regina v. Malmo-Levine, launched in British Columbia, and Regina v. Clay, in Ontario. Courts found in favor of the litigants in all three—seeming to render Canada's entire prohibition regime null and void. But the two BC cases were merged as the Crown appealed to Canada's Supreme Court—which that December overturned the lower court decisions, finding that only Parliament has the power to determine cannabis’ legal status. That same month, the high court ruled the same way in the Ontario case.

Vancouver Mayor Gregor Robertson and four former mayors of British Columbia's first city in November 2011 issued a call for legalization of cannabis. Harper quickly replied: "No, it will not happen. We are strongly opposed to the legalization of drugs and very concerned about the threat of drugs to our country."

Over these years, activists supported federal legisaltion that was introduced in Ottawa to decrminalize cannabis—to no avail.

The Harper government was having better luck toughening up the law. The very same day voters in Colorado and Washington state approved cannabis legalization in November 2013, the Safe Streets and Communities Act took effect in Canada. The new law provides a mandatory six-month term for growing as few as six cannabis plants—twice the term for some forms of child abuse, critics pointed out. It should be noted that while Justin Trudeau voted against the act, he supported a precursor that would have imposed mandatory minimums for cannabis offenses in 2009—before becoming a legalization proponent.

And on the campaign trail in 2015, when Justin Trudeau unveiled his "right away" pledge, Harper responded (irrationally): "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." His party mocked Liberal calls for legalization in TV "attack ads."

Regulating for recreational
But this bluster did not avail Harper in the end. His re-election bid was soundly defeated by Trudeau and the Liberals. Now we'll see how (or, more pessimistically, if) Trudeau will be able to follow through, with the Conservatives still holding a substantial minority of Parliament seats—99 to the Liberals’ 184.

The new Liberal platform encouragingly states: "We will legalize, regulate, and restrict access to marijuana" (meaning to youth). But among Canada's parties, the Conservatives, with the second biggest parliamentary bloc, have the harshest position on cannabis by far.

The third biggest bloc, with 44 seats, belongs to the New Democratic Party (NDP)—which positions itself to the left of the Liberals, but actually takes a more conservative position on cannabis, calling for decriminalization rather than legalization. Then there are 10 seats held by the Bloc Québécois (pro-decrim) and one for the Green Party (pro-legalization).

With a substantial majority, legalization could pass if the Liberal MPs maintain party discipline. But not all of them are as open-minded as their leader. Trudeau is now trying to bring the skeptics into line, emphasizing that the modest revenues expected from legal cannabis should go to addiction and recovery programs—and warning against a private-enterprise windfall. "It was never about a money-maker," he told the Canadian Press after taking office. "It was always about public health, public safety."

He even implied that he’d be willing to sacrifice revenues in the interest of keeping cannabis under tight regulation. "The fact is that, if you tax it too much as we saw with cigarettes, you end up with driving things towards a black market, which will not keep Canadians safe—particularly young Canadians." And he emphasized consensus-building: "We are going to get this right in a way that suits Canadians broadly, and specifically in their communities."

Meanwhile, Canadians with criminal records for marijuana crimes are eagerly waiting to see if Trudeau will offer pardons when the stuff is legalized. Tens of thousands are still charged with possession every year in Canada.

This is just one contingency that is going to be pushing for a more expansive legalization, even as the old guard fights for a more restrictive one—or none.

International dimension
One challenge will be how to finesse Canada’s obligations under the 1961 Single Convention on Narcotic Drugs and related UN treaties to which it is a party. A Trudeau administration briefing note on the matter, obtained by the Canadian Press through the Access to Information Act in January, notes the Single Convention as well as the 1971 Convention on Psychotropic Substances and the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

"All three require the criminalization of possession and production of cannabis," said the briefing memo. "As part of examining legalization of cannabis possession and production, Canada will need to explore how to inform the international community and will have to take the steps needed to adjust its obligations under these conventions."

The memo noted an upcoming discussion of drug policy at UN General Assembly meeting in April, and invoked the possibility of Canada forming a bloc with other countries in the Americas to challenge the global prohibition regime: "At the meeting, several South American countries as well as Mexico wish to discuss what they perceive as more effective policy approaches to respond to the current realities of the drug problem, which could include decriminalization/legalization of illicit drugs, harm reduction, and/or a call to renegotiate the international drug control conventions."

The three relevant treaties are enforced by the UN International Narcotics Control Board—but it actually has has limited powers. The INCB is currently in a dialogue with Uruguay, on how that country can maintain its commitments to combat the illicit drug trade despite having legalized cannabis internally.

Canada can expect a similar demand for accountability from the INCB upon legalization. But the INCB’s potential punitive measures, even under a worst-case outcome, amount to little more than formal censure. And if Canada joins with Uruguay, Colombia, Mexico and other nations seeking a new approach to drug control, it could change the nature of the dialogue. Rather than the UN pressuring member states to uphold the treaties, the international body could itself come under pressure from governments to change the terms of the conventions.

One thing is for sure: Justin Trudeau’s vision and courage have made Canada the place for cannabis advocates worldwide to watch in 2016.

First published in the January-February issue of Freedom Leaf

Photo: Green Rush Daily


 

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