The saga continues: Canadian legislative attempts to reform cannabis law in the twenty-first century.

• Author: Hyshka, Elaine

In July 2003, an article in the Canadian Journal of Criminology and Criminal Justice suggested that Canada's long "saga of promise, hesitation, and retreat" in cannabis law reform was finally ending (Fischer, Ala-Leppilampi, Single, and Robins 2003: 266). (2) This characterization was apt. Beginning with the groundbreaking Le Dain Commission in the early 1970s, many health, addictions, and criminal justice experts have criticized cannabis laws as incommensurate to the amount of social and personal harm created by the use of cannabis, and numerous unsuccessful attempts have been made to reform Canadian cannabis control mechanisms. In 2003, this chorus of voices grew louder, with the accumulation of several higher-level court decisions questioning the Charter deficiencies of current cannabis laws and with the release of two reports by Parliamentary committees recommending reform (Fischer et al. 2003). In response to the mounting political and social pressure, the federal government tabled legislation on 27 May 2003 to decriminalize the possession of small amounts of cannabis. This legislation and its two later reincarnations, however, never passed into law.

This research note picks up where Fischer et al. (2003) left off, updating and reviewing developments in Canadian cannabis policy between 2003 and 2008. It begins by briefly outlining the social and political context from which Bill C-38 emerged. It offers a review of the provisions proposed by Bill C-38 and its successors, and delineates the positions of key interest groups regarding marijuana decriminalization. It concludes by reflecting on the contemporary period of cannabis law reform, illustrating how the "saga of promise, hesitation, and retreat" continues today.

The social and political context that preceded Bill C-38

The immediate context of Bill C-38 and what preceded it have been described in detail elsewhere (see Erickson, Hathaway, and Urquhart 2004; Erickson and Oscapella 1999; Fischer et al. 2003; Canada, Library of Parliament 2003). Thus, it will not be reviewed in detail here. But by 2003, several important factors had become aligned so that Canadian cannabis policy was ripe for reform. Specifically, Canada's Senate and House of Commons had just produced two high-profile committee reports on cannabis calling for legalization and decriminalization, respectively. Canadian courts had recently decided on a number of important cannabis cases involving both medical and recreational use, and some challenged "the constitutionality of the cannabis prohibition under Canada's Charter of Rights and Freedoms" (Erickson and Oscapella 1999: 13; Fischer et al. 2003). Public opinion polls showed that most Canadians supported some form of cannabis-law liberalization (Fischer et al. 2003; Khoo 2004). A large proportion of Canadians (3 million) had used cannabis in the past 12 months and 700,000 had a criminal record for cannabis possession (Canada, Senate 2002a: 15; Fischer et al. 2003: 274). Finally, the Department of Justice had evidence to suggest that cannabis prohibition was differentially enforced across the country, suggesting a need for legal reform to homogenize regional practices (Canada, Library of Parliament 2003). In summary, the context from which Bill C-38 emerged was very favourable to drug law reform, with policy makers, stakeholders, and citizens supporting some form of liberalization of cannabis laws.

The legislation: Bill C-38 and its successors

The following section outlines the series of legislative initiatives undertaken during Canada's latest attempt to liberalize cannabis-possession laws. See Figure 1 for a timeline of the various pieces of legislation involved (see Figure 1).

The most recent events in Canada's long "saga of promise, hesitation, and retreat" began with the tabling of private member's Bill C-344 in the House of Commons on 4 May 2001. Dr. Keith Martin, an MP from the right-wing Canadian Alliance Party, introduced the proposed legislation. It sought to amend the Controlled Drugs and Substances Act and the Contraventions Act to decriminalize the possession and trafficking of small amounts of cannabis. Instead these offences would be subject to a series of increasing fines for successive violations.

[FIGURE 1 OMITTED]

Bill C-344 went through two readings before the Liberal government used a procedural motion to effectively kill the bill in April 2002 (Gagnon 2002). Instead, the issue was referred to the House of Commons Special Committee on the Non-Medical Use of Drugs (Canada, House of Commons 2002). Then, before the committee could study the issue, Parliament was prorogued on 16 September 2002. When Parliament reconvened, the committee was given a new mandate to study all drugs, including cannabis. Their report, mentioned earlier, was the result of these events.

Bill C-38

On 27 May 2003, the Chretien government tabled the second piece of decriminalization legislation in this period. Unlike its predecessor, a private member's bill, Bill C-38: An Act to Amend the Contraventions Act and the Controlled Drug and Substances Act, did not deal with minor trafficking offences but only with possession. It proposed to decriminalize the possession of less than 15 grams of cannabis and less than 1 gram of hashish by making it a contravention under the Contraventions Act. Possession of small amounts of cannabis would remain illegal but would no longer constitute a criminal offence. Fines were to range from $100 to $400 (Canada, Library of Parliament 2006a). The penalties for possession of 15 or more grams of marijuana or one or more grams of hashish would remain the same (Fischer et al. 2003). In addition, Bill C-38 included provisions to toughen penalties for marijuana cultivation (Canada, Library of Parliament 2006a). Maximum sentences were increased and penalties were scaled so that they became progressively harsher with the seizure of larger quantities of marijuana plants (Fischer et al. 2003).

It should be noted that, although Bill C-38 proposed decriminalizing minor cannabis possession, the federal government intended the bill to increase enforcement against cannabis users (Canada, Library of Parliament 2004a). If minor possession were made a non-criminal, ticketable offence, the government expected that police officers would be more willing to reprimand users. Therefore, they anticipated the deterrent effect of cannabis laws would increase under the new legislation (Canada, House of Commons 2003c). Irrespective of the merits of this belief, it is clear that Bill C-38 did not represent a major change in how the federal government responded to drugs. Indeed, the federal government's intention that more people face legal sanctions for cannabis use demonstrated continued adherence to the view that drug use is primarily a matter of law enforcement rather than public health - which balances individual harm and community safety.

After its first reading, Bill C-38 was referred to the House of Commons Special Committee on the Non-Medical Use of Drugs on 21 October 2003. After several weeks of testimony, the committee returned the amended bill to Parliament on 5 November 2003. One amendment stands out. The committee sought to distinguish between production for personal use and production for trafficking by revising the bill so that persons producing cannabis from not more than three plants were to be punished on summary (criminal) conviction, with a maximum fine of...