Recent Developments in Marijuana Possession Law

• Author: Kathleen McIntosh
• Pages: 40-55

40 AP PE AL  V OL UM E 10  2005

RECENT DEVELOPMENTS IN

MARIJUANA POSSESSION LAW

Kathleen McIntosh

Introduction

Marijuana possession is a contentious issue. For decades the

topic has been the subject of a raging national debate involving

the media, politicians, lawyers, and everyday citizens. Should

marijuana possession be criminal? Should it be decriminalized?

Should it be legal? Is the prohibition on marijuana possession

constitutional? Should ill Canadians be able to legally consume

marijuana?

Historically this debate involved significant discussion but very little

action. More recently, however, there has been a flurry of activity. In

less than five years, the issue has gone before several appellate courts,

including the Supreme Court of Canada. Regulations were developed

to allow seriously ill persons to legally possess and cultivate marijuana.

Furthermore, a marijuana decriminalization bill was put before the

House of Commons. These significant events, combined with a brief

discussion of the history of marijuana possession, are the focus of this

paper.

41 AP PE AL  V OL UM E 10  2005

A Brief Historical Overview

Marijuana was first criminalized in 1923 under the Opium and Narcotic

Drug Act.

1

The rationale for this event is not entirely certain. There

was no discussion in the House of Commons. The Honourable H.S.

Beland simply stated that “[t]here is a new drug in the Schedule.”

2

As

well, there were no cannabis-related problems at that time; opium was

the drug of choice.

Interestingly, the prohibition on marijuana took place one year after

The Black Candle

3

was published. The author of that book, Emily

Murphy, was a police magistrate and judge of the Juvenile Court in

Edmonton, Alberta. She devoted an entire chapter to marijuana,

which she called an “extraordinary menace.”

4

In that chapter she

reproduced portions of a sensationalist letter from the chief of police

in Los Angeles, California:

Persons using this narcotic, smoke the dried leaves of the plant,

which has the effect of driving them completely insane. The

addict loses all sense of moral responsibility. Addicts to this drug,

while under its influence, are immune to pain, and could be

severely injured without having any realization of their condition.

While in this condition they become raving maniacs and are liable

to kill or indulge in any form of violence to other persons, using

the most savage methods of cruelty…

5

Murphy further quoted the chief of police’s statement that excessive

consumption of marijuana “ends in the untimely death of its addict.”

6

It is possible that concern about these supposed side effects of

marijuana consumption influenced Parliament to take pre-emptive

action.

Despite the prohibition on marijuana, enforcement was almost non-

existent for several decades. The Dominion Bureau of Statistics

reported that only 25 marijuana offences were recorded across

1

S.C. 1923, c. 22.

2

House of Commons Debates 3 (23 April 1923) at 2124 (Hon. H.S. Beland).

3

E. F. Murphy, The Black Candle (Toronto: Thomas Allen, 1922).

4

Ibid. at 331.

5

Ibid. at 332-33.

6

Ibid. at 333.