by Professor Neil Boyd, LLM

In 1971 in Vancouver’s Gastown the police used force against a group of marijuana activists. Almost 30 years later they watch carefully as new groups of activists set up stores and restaurants to protest marijuana’s continuing criminal status. For some onlookers these changes are a sign of moral decay, an abandonment of the rule of law.

But discretionary enforcement--weighing the need for enforcement with possible consequences--has always been a hallmark of good police work. With marijuana, the only abandonment of any moral consequence is the law itself. The federal Liberals have recently passed Bill C-8, The Controlled Drugs and Substances Act; the legislation has now been in force for almost a year. Described as routine “housekeeping” at the time of its passage, the law continues to criminalize any person who uses marijuana, providing a penalty of up to one year in jail for such behaviour.

This is not a reasonable use of the criminal sanction. The government currently criminalizes marijuana in order to protect the public health of Canadians; our legislators remain willing to continue using imprisonment to accomplish this objective. In recent court challenges to the constitutionality of the offence of marijuana possession, federal lawyers have argued that it is health, not morality, that is the basis for the law.

But this line of argument doesn’t have empirical support. Marijuana use is much less dangerous to one’s health than alcohol, tobacco, driving a car, eating too many sugars or fats, failing to exercise adequately, or taking on a particularly stressful task. More to the point, is the purpose of the criminal law to jail those Canadians who impose unconscionable risks on their health? And if this is the purpose, why would we start with cannabis?

Enforcement of marijuana possession costs taxpayers hundreds of millions annually. And there is a significant social cost: another generation of young people knows that they are being lied to by another generation of federal politicians. Former Justice Minister Allan Rock has said that he doesn’t want a “divisive debate” on cannabis; Jean Chretien has said that it “might not be such a good idea” to decriminalize the drug. Here in British Columbia Attorney-General Ujjal Dosanjh has expressed his opposition to decriminalization (though his views are contrary to the stated policy of the federal New Democrats).

But what is or ought to be unsettling is that our elected representatives in Ottawa were not even the originators of this legislation. Bill C-8 has a remarkable resemblance to Bill C-85, a similar initiative of the Mulroney Conservatives. In both instances the bill flowed from the workings of the federal bureaucracy; American justice officials will be happy to see that their concerns about search, seizure and forfeiture have been addressed by their Canadian counterparts.

What is the case against marijuana? Regular use certainly carries some health risks--smoking is harmful to the lungs, and the drug produces a sedative effect that can increase the risk of accident. Smoking the drug during the day is almost as inconsistent with social productivity as drinking alcohol during the day.

But what are we willing to tolerate? The consumption of marijuana in private among consenting adults seems a reasonable place to start. Are those of us who have indulged fairly regarded as enemies of the state, potentially deserving of a year in jail? If public use is the target of government action, fair enough. Those who do not use marijuana should not be involuntarily exposed to its effects--a civil fine for public use is, accordingly, an appropriate extension of the principles that underlie non-smokers’ rights.

In the past 30 years the police and the judiciary have fundamentally changed marijuana law. In 1966 more than half of all convicted by the judiciary went to jail for their crime of use; in 1998 less than five per cent go to jail; absolute and conditional discharges are more common. In 1966 the police would go to great lengths to make an arrest for marijuana possession; in 1998 we have wildly varying enforcement— some police officers turn a blind eye to use, others rarely charge, simply confiscating the drug, and still others charge routinely.

We need moral leadership from our politicians on this issue and we are not getting any. And so it goes. A generation from now a few grandparents will probably gather with their children and grandchildren in Vancouver’s Gastown to smoke a little marijuana and protest the continuing criminalization of the drug. The country will probably be celebrating its one-millionth marijuana possession conviction (we are now at more than 600,000). And in the House of Commons the universe will be unfolding, if not as it should, at least in accordance with the sensibilities of its occupants.

Professor Neil Boyd, LLM
School of Criminology, Simon Fraser University
Member of the International Centre for Criminal Law Reform
Member of the Criminal Justice Policy’s Board of Directors

This article was published in the April 1998 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2006, all rights reserved.