The Legal History and Cultural Experience of Cannabis

Andrew Hathaway

Reprinted from "Cannabis" issue of Visions Journal, 2009, 5 (4), p. 12

The legal history of cannabis (marijuana) in Canada is a tale of ban, or prohibition of ‘the drug.’ For much of the past century, its use, for any reason, has been considered criminal under the law. Yet this is a plant that can be grown and prepared for use at home, with little risk or threat—apart from its illegal status.

Our country’s drug laws have created a hugely profitable ‘black market,’ inviting criminal involvement in selling cannabis. Social problems such as violence, unsafe street drugs and a declining respect for government and the police have also been linked to prohibition.

A recent survey of Canadians over age 14 found that 44% reported using cannabis at least once in their lifetime.1 Despite these high rates of use and growing public recognition of the many problems with the law, marijuana users are considered unconventional and looked upon as criminal or deviant. Whether we ourselves are ‘users’ or whether we’ve never smoked it, our relationship to cannabis is shaped by its status as a banned substance.

When the law is the problem

In 1923, when cannabis was outlawed in Canada, few people in this country had ever seen or heard of marijuana. Opium and cocaine had been outlawed some years before, and no further debate was needed to include cannabis among the banned narcotics. But nearly 10 years passed before the first arrests for cannabis possession were reported. Thus, this early legislation has been called by some observers: “the making of a law without a problem.”2

Until the 1960s, marijuana use was rarely encountered in the mainstream population. But then its popularity and use began to increase among educated, white youth of higher means and social status.

The law itself began to pose a problem. In the ’60s, the maximum penalty for possessing small amounts of cannabis was six months in prison and a $1,000 fine for a first offence.3 Criminal conviction was a serious consequence for otherwise conforming, law-abiding young Canadians.

Enforcing a law that was increasingly disregarded became a problem. So, a government inquiry was commissioned to examine the issue and put forward a solution. The Le Dain Commission of Inquiry did extensive research, consulted experts and held public hearings across the country over a three-year period. A report was published in 1972.4

The Le Dain Commission recommended removing criminal penalties for cannabis possession. However, despite the drug’s low toxicity and low potential for abuse, the commission did not propose that it be legalized. They still preferred measures that would discourage young people from taking up the habit.

A common form of ‘decriminalization’ now practised in some countries, such as the US, Australia and Europe, is using fines to punish users. This retains the presumed advantage of withholding state approval, while reducing social costs and the legal consequences of criminal convictions.

In Canada, the government rejected the Le Dain proposal to remove criminal penalties for cannabis possession. And, in the post-Le Dain years, there have been ongoing calls for law reform and growing popular support for relaxing penalties for cannabis possession. These appeals have also been rejected and neglected.3

Recent reform suggestions stalemated

Three decades after Le Dain, the pressure to change the legal status resulted in Parliament striking two committees to study the problem of illicit drugs in Canada. In 2002, the House of Commons Special Committee on Non-medical Use of Drugs and the Senate Special Committee on Illegal Drug Use both released reports. And both committees recommended reforming laws on cannabis possession and supply.5-6

In the spirit of Le Dain, the House Committee recommended decriminalizing the possession and cultivation of small amounts (up to 30 grams) of marijuana. The Senate went much further, suggesting that cannabis be legalized in Canada. The Senate recommended that the production and sale of marijuana be licensed, while keeping criminal penalties for export, trafficking and other activities outside the regulations.

The Senate’s view departs from that of the Le Dain and the House committees. The Senate recognizes both the social harms of prohibition and the violation of the user’s rights. That is, the law should not be used to restrict behaviours that do no harm to other people, as is the case with cannabis consumption.

Neither Parliament committee had the mandate to do more than research, consult and recommend solutions to ‘the problem.’ And so the legislative stalemate on the issue continues unresolved. Opportunity for reform has been denied, and cannabis use still has criminal consequences in Canada.

Marijuana as medicine—well, maybe...

The most significant new-century development may be the federal government’s begrudging recognition of the value of using cannabis for medical conditions. Since 2001, legal access has been granted to people with HIV/AIDS and other serious illness under the Medical Marihuana Access Regulations.7

The government’s commitment to this program, though, is suspect. Few medical exemptions have been granted (approximately 3,000), when there are several hundred thousand Canadians who self-medicate with cannabis. And for many people who apply for exemption, the application process has been onerous, confusing and not supported by physicians, and the program has failed to guarantee a safe, affordable supply.8-9

The future?

The legal history of cannabis over the next 100 years is a tale yet to be written in Canadian experience. But, without question, the experience of marijuana users needs to be acknowledged and respected. Actual and meaningful reform of harmful drug laws must be based on both scientific knowledge and concern for human rights, democracy and justice.

 
About the author
Andy is a sociologist who teaches in the area of crime and criminal justice at the University of Guelph. His research on cannabis, spanning more than a decade, examines use patterns, benefits, problems and their implications for social policy development 
Footnotes:
  1. Adlaf, E., Begin, P., & Sawka, E (Eds.). (2005). Canadian addiction survey (CAS): A national survey of Canadians’ use of alcohol and other drugs: Prevalence of use and related harms: Detailed report. Ottawa: Canadian Centre on Substance Abuse.

  2. Giffen, P.J., Endicott, S.J. & Lambert, S. (1991). Panic and indifference: The politics of Canada’s drug laws. Ottawa: Canadian Centre on Substance Abuse.

  3. Hathaway, A.D. & Erickson, P.G. (2003). Drug reform principles and policy debates: Harm reduction prospects for cannabis in Canada. Journal of Drug Issues, 33(3), 467-496.

  4. Le Dain, G. (1972). Cannabis: Report of the Canadian Government Commission of Inquiry into the Non-Medical Use of Drugs. Ottawa: Information Canada.

  5. House of Commons Report of the Special Committee on Non-Medical Use of Drugs. (2002). Policy for the new millennium: Working together to redefine Canada’s drug strategy. Ottawa: Information Canada.

  6. Senate Special Committee on Illegal Drugs. (2002). Cannabis: Our position for a Canadian public policy. Ottawa: Information Canada.

  7. Government of Canada. (2001). Controlled drugs and substances act: Medical marihuana access regulations. Canada Gazette (Part II), (135)14. http://gazette.gc.ca/archives/p2/2001/2001-07-04/html/sor-dors227-eng.html.

  8. Belle-Isle, L. & Hathaway, A.D. (2007). Barriers to access to medical cannabis for Canadians living with HIV/AIDS. AIDS Care, 19(4): 500-506.

  9. Lucas, P.G. (2008). Regulating compassion: An overview of Canada’s federal medical cannabis policy and practice. Harm Reduction Journal, 5:5.

 

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