Cannabis law reform in Canada: is the "saga of promise, hesitation and retreat" coming to an end? .

• Author: Fischer, Benedikt

Introduction

Since the summer of 2002 Federal Justice Minister Cauchon has repeatedly declared that his government will soon table legislation to decriminalize personal cannabis use in Canada. The issue of cannabis-use control (use is currently criminally prohibited under the Controlled Drugs and Substances Act [CDSA])--has generated much debate recently, and a variety of forces are contributing to the momentum for reform. Will the law, indeed, change soon? and How did we get to this point? This article reviews the history, in Canada, of cannabis control through the criminal law--a history reaching back to the early decades of the twentieth century--and outlines distinct phases in its evolution. In doing so, it describes the beginnings of cannabis criminalization in 1923 as a sudden political occurrence, without an apparent rationale, creating criminal status for a drug that would remain virtually unknown and irrelevant for almost three decades. The sudden upsurge in cannabis use and enforcement in the late 1960s led to social controversy and, subsequently, repeated calls for cannabis-control reform. However, no substantive revisions to the drug law ever materialized. Despite continuous public support for decriminalization, a window of opportunity for drug policy reform in the 1990s again resulted only in the reinforcement of cannabis-use criminalization (Savas 2001; Fischer 1999). The recent series of government promises of cannabis-control policy reform, issued against the backdrop of explicit policy reform impetus from high profile federal committees, key policy stakeholders, and public opinion, may echo the sentiments of previous decades in the "saga of promise, hesitation and retreat" (Giffen et al. 1991: 571). But while social pressure for cannabis law and policy reform is not new, prohibition is under unprecedented pressure from another source: a series of legal decisions has given fuel and legitimacy to the claim that the current, uniformly punitive cannabis law may violate constitutional rights--including those related to medicinal marijuana use. Recent developments in cannabis control in other countries are also briefly reviewed, and the paper concludes with a discussion of the prospects and options of cannabis-control reform in Canada.

1920s to 1960: "A solution without a problem"

The origins of cannabis prohibition in Canada are somewhat of a mystery. The context is the emergence of drug prohibition in the early years of the twentieth century, starting with the enactment of the Opium Act in 1908, which initially focused on the criminalization of opium and its predominantly Chinese users and suppliers. An extensive socio-historical literature has analysed the emergence of opium prohibition as the outcome of social conflict, resulting from the explosive dynamics of immigration, racism, economics, labour, and moral conflict, within the larger setting of the development of Western Canada (e.g., Cook 1969; Solomon and Madison 1977; Comack 1986; Carstairs 1999). Specifically focusing on the genesis of the Opium Act, the federal government utilized the tool of opium prohibition as a means of engineering social order in Western Canada, with the hope of containing Asian immigration and trade, labour-market imbalances, and moral upheaval. Thus, Canada's first anti-drug law was used as a means of wider class or social control, rather than as a policy tool specifically focused on substance use (Boyd 1991).

Giffen et al. have described the establishment of cannabis prohibition in Canada as a "solution without a problem" (1991: 182); that is, no evidence of cannabis-related problems can be detected that seem to have justified the criminalization of the drug. Rather, in the context of the gradual expansion of drug prohibition in Canada in the following years, cannabis was suddenly added to the schedule of the Opium and Drug Act by Order of Council, in 1923. Until now, researchers have failed to offer a conclusive explanation for this addition to the Act's schedule (Whitaker 1969; Giffen et al. 1991; Mosher 1999). Cannabis use, in the first quarter of the century, had been neither a prevalent nor a media-problematized phenomenon in Canada--unlike in the case of the media pretext that led to the criminalization of opium and cocaine (Smart 1983). A previous draft had not even included cannabis, and there was no discernable political pressure advocating its inclusion in the Opium and Drug Act of 1923 (Solomon and Green 1988; Giffen et al. 1991; Mosher 1999).

It is likely, however, that these events were significantly influenced by developments in the United States, where drug prohibition had also begun with a focus on opium and its Chinese importers and users (Musto 1987). In the 1920s marijuana had just begun to appear in Hispanic labour and urban populations in the U.S.; by 1923 14 states had established prohibition laws (see Musto 1987; DiChiari and Galliher 1994). However, the massive American marijuana scare culminating in the proverbial epoch of "reefer madness" did not occur until the 1930s, when the Federal Bureau of Narcotics (under the lead of "drug czar" Harry Anslinger) saw federal support for drug prohibition waning and systematically constructed marijuana as the new drug menace, which required federal legislation and massively expanded resources for drug enforcement (Galliher and Walker 1977; Dickson 1968). The main outcome of these efforts was the 1937 Marijuana Tax Act, making marijuana a federally prohibited drug across the U.S.

An influential factor fuelling the early prohibition of cannabis in Canada was the writing of moral conservative Emily Murphy, including her book The Black Candle. This book, which contained a chapter called "Marijuana--The New Menace," was published a year (1922) prior to the inclusion of marijuana in the prohibition law (Boyd 1991; Solomon and Green 1988). The book relied heavily on American propaganda about the dangerous and evil effects of marijuana, which, it asserted, turned its users into "raving maniacs ... liable to kill or indulge in violence" and with a "mentality ... of idiots" and led to the "ultimate-death of its addicts" (quoted in Giffen et al. 1991: 180). So far, speculation has been that Murphy's writing powerfully influenced key government officials and led to the ad hoc addition of marijuana to the schedule of prohibited drugs (Solomon and Madison 1977; Solomon and Green 1988). While this may have been viewed at the time as a small bureaucratic step, "little did they know what they had wrought" (Whitaker 1969: 67). This move would become the legal foundation of cannabis prohibition in Canada for the century to come.

Contrary to Canada's pioneering efforts in making marijuana part of the prohibition law in 1923, there was initially little concern about the enforcement of cannabis' criminal status or even awareness about it in social or political circles. When international efforts were made to make cannabis subject to the international drug control agreements at the 1925 Geneva Convention, Canadian officials did not even report that their country had already criminalized the drug. A 1928 article in the Canadian Medical Association Journal called for the criminal control of marijuana, and numerous members of the House of Commons were apparently completely unaware of the existence of marijuana prohibition in a 1932 debate (Giffen et al. 1991; Whitaker 1969).

Triggered primarily by the American "reefer madness" campaign starting in the mid-1930s, Canadian politicians and media began devoting more attention to cannabis (Giffen et al. 1991; Whittaker 1969). However, news reports largely focused on the marijuana scare as it evolved in the U.S. Cannabis was not seen as a major problem in Canada and the expanding Canadian drug enforcement apparatus showed little interest in cannabis during the first half of the twentieth century. Only 25 marijuana offences were recorded across Canada between 1930 and 1946 (Green and Miller 1975). Up to the mid-1930s criminal enforcement of laws against illegal drug use concentrated largely on Chinese opium users; with the emergence of the "junkie" scene, consisting predominantly of illicit opiate users, enforcement attention shifted to users of morphine and heroin (Giffen et al. 1991; Fischer 1999). These substances were the centre of attention for Canadian drug law enforcement in the 1940s and 1950s; cannabis use was largely neglected.

1960 to 1980: Controversy, "promise, hesitation and retreat"

The status of cannabis as a rather neglected drug within Canada's prohibition apparatus changed radically in the 1960s. The framework of repressive control centrally anchored in a punitive drug law was reinforced with the enactment of the revised Narcotic Control Act in 1961, which featured cannabis in its Schedule 1, entailing a maximum sentence of seven years' imprisonment for the offence of simple possession (tried by indictment) and life imprisonment for most supply offences (Solomon and Usprich 1991; Solomon and Green 1988). Coincidentally, cannabis became a very popular drug with large parts of the population (Smart 1983; Green and Miller 1975). It became prevalent, symbolically and fashionably, amidst the emerging counter-culture, liberation, and anti-authoritarian movements in that period. In contrast to previous stereotypes of illicit drug user populations, most cannabis users were not at the margins of society; they were quite visible and explicit about their drug use (Boyd 1991; Giffen et al. 1991). At the same time, a new wave of "addiction science" was exploring the potential harms of cannabis, with suggestions that cannabis use might produce adverse effects on personality, psychological well-being, and productivity, as well as lead to crime and other drug use. Such suggestions were picked up by the media, as well as by the law enforcement sector, and underlay claims about the substantial dangers of cannabis...