Rethinking the role of marijuana in Canadians’ lives is an exercise fraught with obstacles, including nearly a century of social and legal stigma and the confusing dual nature of marijuana use – marginally accepted medical use and still-criminal recreational use. It’s hard for anyone outside the 4:20 culture to sit back and get mellow about it.
And that includes the federal government. The governing Liberals made big waves with their election promise to legalize marijuana. But the CBA response to a discussion paper released this summer notes that legalization is not the same as decriminalization, and legalizing without decriminalizing will be problematic.
The CBA submission contains a considered exploration of various production, distribution, safety and protection options. But perhaps a key recommendation is that “the federal government (should) prioritize the goals it wishes to achieve and problems it wishes to address through the legalization of marijuana.”
The submission, prepared by the Criminal Justice, Municipal Law and Health Law Sections, starts off by noting the CBA has long been a proponent for the decriminalization of simple possession and cultivation of marijuana, and has supported a harm-reduction approach to dealing with all drugs so that users wouldn’t be necessarily subject to criminal sanctions.
While legalization “represents a fundamental change in the federal government’s approach to marijuana, which the CBA fully supports,” there’s no mention in the discussion paper of removing marijuana from the Controlled Drugs and Substances Act. That suggests criminal sanctions could still apply.
“This approach in the Discussion Paper might be called a step toward ‘decriminalization’ but in our view cannot accurately be referred to as ‘legalization’ as has been suggested to Canadians,” the Sections say. “It is problematic to proceed with a new system that maintains the current CDSA structure but allows marijuana activity to proceed by way of legally recognized exceptions.”
The Sections note a Senate study that relied on research suggesting that marijuana causes less harm than alcohol or tobacco and concluded it should be regulated by the state “much as we do for wine or beer.”
There are important distinctions, the Sections say, between marijuana, alcohol and tobacco, not least the highly profitable black market in marijuana which increases its cachet among some users. That said, “A regulatory scheme should cover the use, distribution and production of marijuana going forward. Just as the Excise Tax Act with tobacco, a scheme could include offences carrying appropriate fines and penalties, or other sanctions for those who choose to operate outside the scheme. … The CBA’s view is that the criminal law should not be engaged for marijuana production, use and distribution when a non-criminal law regulatory approach is adequate and appropriate.”
The Sections encourage the government to “disentangle” medical marijuana use from recreational use, acknowledging that recreational use will “have the most impact on variety of products available, economic benefits to users, reducing the illicit market and its enormous costs, and contributing to harm reduction.”
Dismantling the black-market infrastructure – including re-educating the workforce and replacing jobs that will be lost when illegal operations decline – must be a consideration when constructing a new regulatory framework, as will be the ability of provincial, territorial and municipal bodies to enforce any new regulations. The Sections recommend expanding the use of pardons, or even offering blanket amnesties for those convicted under previous legislation.
The Sections add that “any restrictions must not be so severe that they encourage development of another black market for marijuana. As one of the major advantages to legalization, this should be the bottom line that governs any restrictions.”