A Partial Ceasefire in Canada’s War on Drugs? Reflections on the Impending Legalization of Marijuana
Banned Substances, Marijuana, Legalization of Marijuana, Drug Prohibition, War on Drugs, Canada, Liberal Party
Canada appears to be at a turning point in its relentless prosecution of our version of the War on Drugs with its rethinking of the reliance on criminal law to suppress one of the myriad of banned substances. The Liberal Party of Canada ran on an election platform which included a promise to "legalize, regulate, and restrict access to marijuana."' The new Government published the Minister's Mandate Letter directing her to "create a Federal-provincial/territorial process that will lead to the legalization and regulation of marijuana." The Throne Speech repeated the platform undertaking, the Prime Minister announced the appointment of a parliamentary secretary to shepherd the issue through the ensuing process, and the Minister of Health later made a commitment before the United Nations to "introduce legislation in Spring 2017 that ensures we keep marijuana out of the hands of children and profits out of the hands of criminals." These apparent guarantees suggest that the Government is finally poised to declare a partial ceasefire. Nonetheless, such intentions could still be thwarted as Parliament faces the numerous policy choices inherent in this limited shift towards legalizations against a background of over one hundred years of reflexive reliance on the criminal law to control an ever wider range of non-medically authorized drugs.
In this article, I will examine Canada's historic dependence on criminal prohibitions in which it has marched alongside other nations, but where there are now some discernable rifts in the enforcement phalanx. Having explained the past and present domestic and international allegiances to the war, I will set out some of the huge costs imposed by this legacy. My intentions are to explain the lingering range of conceptual and policy barriers to the expeditious creation of a fresh approach in what may be the dying days of prohibition and to suggest that Canada must remain mindful of the need to confront its past as it reforms the law. I will then delineate some of the novel dilemmas that Parliament faces as it attempts to modernize its response to the current illicitness of Schedule II (Cannabis) of the Controlled Drug and Substances Act while recognizing some of the harms associated with marijuana. The route to legalization will be meandering and complicated, with the risk that the project will be abandoned or diverted before it reaches its goal. On the other hand, our inherited drug policy has been so overextended and self-defeating that there are powerful incentives to move on from the failures of the 1900s. Having provided some guidance to this legislative minefield, I will survey a few examples of jurisdictions that have taken steps that Canada might consider. These are early days and we may not reach the promised land of legalization of marijuana but we are closer than ever before. The lessons learned here may provide a springboard to equally necessary initiatives regarding other substances, if Canada sees value in its retreat on marijuana, although there is as yet no indication that there will be any comparable surcease in the other campaigns of the war.
H. Archibald Kaiser, "A Partial Ceasefire in Canada’s War on Drugs? Reflections on the Impending Legalization of Marijuana" (2016) 63:3 Crim L Q 367.