by Michael Boudreau
Canada first criminalized drugs in 1908 when the federal government passed the Opium Act which made it an indictable offence to manufacture, possess, or sell opium for non-medical purposes. Marijuana was added to the list of illegal substances in 1923. These drugs were prohibited because it was felt that they were physically, morally, economically, and socially debilitating to individuals and to the nation itself. There was, in other words, a moral imperative behind the criminalization of drugs in Canada.
Under the Narcotic Control Act, which replaced the Opium Act, anyone convicted of possessing marijuana could face up to seven years in prison. Unlike alcohol, which by the end of the Second World War had gained widespread social and cultural acceptance, drugs were deemed to be a direct threat to the moral fibre of Canadian society. Moreover, drug users were depicted as deviants or “fiends” who could only be dealt with by a harsh legal response. In this sense, drugs have long been encased in a discourse of “moral panic” in Canada; a panic that reached its nadir in the 1920s when many of the country’s stringent drug laws were created, and then gradually subsided. But the fear, and the stigma, that was associated with drugs never entirely disappeared.
The debate in Canada over drug-use resurfaced in the 1960s with the rise of the counter-culture. This was a culture, embraced by many young Canadians, notably “hippies”, that publicly flouted, and mocked, conventional behaviour. And marijuana became a potent symbol of the counter-culture and the social rebellion that it encapsulated. The federal Minister of Health in the early 1970s declared that marijuana was representative of youth “alienation” across the country. Very few Canadians smoked “weed” prior to 1960, but from 1960 onwards, its popularity, and availability, increased, and so too did the call for its legalization. Those who advocated legalizing drugs, or at least reducing the penalties for possession, mainly young people, argued that marijuana was a harmless, recreational drug, similar to alcohol. They also felt that thousands of Canadians should not have to carry the burden of a criminal record for using a small amount of marijuana.
However, a majority of Canadians opposed drugs and their legalization. A public opinion survey in April of 1970 revealed that 77% of Canadians did not support the removal of criminal sanctions against marijuana. They believed that drugs posed a serious health risk and would lead to a breakdown in social order. These sentiments allowed the RCMP, and municipal police forces across the country, to continue their crackdown on drugs and drug users. Beginning in 1965, the number of arrests under the Narcotic Control Act for possession, cultivation, and trafficking cannabis, increased dramatically. One hundred and sixty-two people were charged that year, 398 the next year, and 1678 in 1967-1968. In contrast, in 1962-1963, only twenty Canadians faced similar charges. It would not be until 1969 that the penalties for possession were reduced, which meant that by 1972, 95% of those who were convicted of marijuana possession paid fines, instead of being sent to jail. Canada also signaled its commitment to combatting the drug trade when it joined the international Convention on Psychotropic Substances in 1971. Indeed, police efforts to rid Canadian society of drugs continued into the 1970s, as did the backlash against their actions and the demand for legalization.
In 2015 the federal government, in its Speech from the Throne, declared that it intended to “legalize, regulate, and restrict access” to cannabis. But Canada is not the first jurisdiction to move towards the legalization of cannabis. In 2013 Uruguay became the first country to enact legislation to legalize and regulate cannabis for non-medical purposes. In 2016 eight U.S. states (Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, and Washington, home to 75 million Americans) voted to legalize and regulate cannabis for non-medical purposes. Moreover, twenty-two countries have implemented some form of decriminalization.
The Canadian Tobacco, Alcohol and Drugs Survey in 2015 found that 10% of Canadians (25 years and older) reported having used marijuana at least once in the past year. And over one-third reported using cannabis at least once in their life-time. In addition, Canadian youth are “more likely” to consume marijuana than adults or their peers worldwide. Similarly, 21% of those youth aged 15-19 and 30% of those aged 20-24 have reported using cannabis.
While not ubiquitous, cannabis is generally available in Canada. It is the second most used recreational drug in the country after alcohol. An estimated 2.3 million Canadians use cannabis. It is also the most trafficked drug in the world. In Canada, the illegal trade in marijuana is estimated to generate $7 billion for organized crime. Legalization will not, however, remove the organized criminal element immediately (if at all). Criminalization is also expensive. Based on 2002 data, the Canadian Centre on Substance Abuse has estimated that the costs associated with the administration of justice for illegal drug use (police, courts, and prisons) is roughly $2.3 billion annually.
Cannabis has become more socially acceptable and support for its legalization is growing. A 2014 Angus Reid poll revealed that 59% of Canadians were in favour of legalization; more recent polls have seen support rise to 70% of those surveyed. It is important to note that support for the legalization of cannabis comes in part from non-users. Their support is predicated on the belief that cannabis is a problem only because it is illegal and thus, ironically, unregulated. Legalization will result in a regulatory regime that if properly implemented and administered, will address many of the concerns that Canadians have about cannabis use and the criminal activity that surrounds it. Arguably it is high time for Canada to legalize cannabis.
The police have also been tempering their enforcement of cannabis laws. Police-reported rates of cannabis-related drug offences declined for the fifth consecutive year in 2016. Drug offences in Canada, such as possession, trafficking, importation, exportation, and production fall under the Controlled Drugs and Substances Act (CDSA) and are thus illegal. In 2016, there were 95,400 CDSA offences reported by police. Of these, more than half (58%) were cannabis-related offences.
The rate of possession of cannabis declined 12% from 2015 with all provinces and territories reporting declines, except Prince Edward Island (+15%) and New Brunswick (+7%). The largest declines in the rate of possession of cannabis were reported in the Territories, Alberta (-25%), Manitoba (-18%), Saskatchewan (-16%), and Ontario (-16%). National declines were also reported in incidents of trafficking of cannabis (-8%) and production of cannabis (-2%). Decreases in the rate of total cannabis-related offences were reported in almost all of the provinces and territories with the largest declines recorded in the Territories and Western provinces. Prince Edward Island (+20%) and New Brunswick (+5%) were the only jurisdictions to report increases in total cannabis-related offences.
Along with the decline in cannabis offences, the number of persons charged has declined. In 2016, the rate of persons charged with a cannabis related offence declined 16% from 2015. Of the 23,329 people charged with cannabis related offences in 2016, 17,733 (76%) were charged with possession of cannabis, about 3,600 less than in 2015. Declines in rates of persons charged with possession of cannabis were reported by almost all of the provinces and territories in 2016.
Newfoundland and Labrador (+28%) and Prince Edward Island (+10%) reported the only increases.
Despite an 11% increase, the rate of drug impaired driving (8.5 per 100,000 population) remained low compared with the rate of alcohol impaired driving (186 per 100,000 population). The low rate for drug impaired driving may be partly explained by the fact that determining and measuring the level of drug impairment is more difficult and less reliable than the measures used to detect alcohol impaired driving. According to the Canadian Centre for Justice Statistics, in incidents where the driver may be impaired by both alcohol and drugs, it is “easier” for police to lay charges for alcohol-impaired driving and thus the majority of cases are reported as such.
The combined rate of possession, trafficking, production and distribution of drugs other than cannabis (and cocaine) has increased since 2010. Between 2015 and 2016, the most notable increases were reported for possession of heroin (+32%); possession of methamphetamines (+22%); trafficking, production or distribution of heroin (+15%); and trafficking, production or distribution of methamphetamines (+10%). And there was a 7% increase in possession of “other drugs” such as prescription drugs (including Fentanyl), LSD, and “date rape” drugs. These statistics suggest that many police departments do not consider cannabis to be a serious threat to public safety. And legalization of cannabis may allow the police to continue to allocate more resources to detecting other drug offences and other types of crime generally.
On April 13, 2017, Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts (Cannabis Act) was introduced in the House of Commons. The Cannabis Act provides the legal framework which will legalize and regulate the production, distribution, sale, and possession of cannabis in Canada. In June of this year the Province of New Brunswick released the Report of the Working Group on the Legalization of Cannabis. It key recommendations are:
- The creation of a new Crown corporation to sell cannabis. This Crown corporation could be a subsidiary of NB Liquor.
- The minimum age for possessing and consuming marijuana should be set at 19 (the age of majority in New Brunswick).
- Set the personal possession limit at 30grams.
- Amend the Motor Vehicle Act to impose administrative penalties for cannabis-impaired driving identical to those penalties for alcohol.
These recommendations must be considered in the context of two important facts; first, legalization will occur and New Brunswick must be ready. If the province does not have a distribution model in place by July 1, 2018, residents may purchase recreational cannabis by mail order from another province. And if this occurs, the New Brunswick government will lose any potential revenue, while still being responsible for cannabis-related health and safety and their associated costs. Secondly, the Government of New Brunswick has identified the legalization of cannabis as a “significant” economic opportunity. This runs somewhat counter to the federal government’s public health approach to legalization; specifically, as stated in A Framework for the Legalization and Regulation of Cannabis in Canada, “revenue generation should be a secondary consideration for all governments, with the protection and promotion of public health and safety as the primary goals”.
At the moment, there does not appear to be a clear consensus amongst New Brunswickers about how the legalization and distribution of cannabis will work. The Select Committee on Cannabis released its Final Report on September 1, 2017. This Committee was tasked with holding public consultations in light of the Working Group’s Report and to provide to the Legislature a summary of these consultations. The main focus of these consultations was to assess New Brunswickers’ views about the legalization and distribution model that was proposed by the Working Group. In forming this Committee, the Province has acknowledged that it must strike a balance between legalizing cannabis for recreational use, while not at the same time promoting its consumption. The Federal Government must also strike this balance.
A few highlights from the Select Committee’s Report include:
- The need for a “robust” educational campaign to ensure that potential users can make an informed decision about cannabis.
- The need for clear laws and consistent enforcement.
- No clear consensus on the best distribution model (Private vs. Public).
- General agreement that the minimum age for possessing and consuming marijuana be set at 19.
- “[W]idespread” agreement that cannabis should not be consumed in public. (The Province has enacted amendments to include cannabis under the Smoke Free Places Act).
There are a number of challenges ahead for New Brunswick in terms of implementing a legislative framework for the legalization of cannabis. In particular, the Province needs to co-ordinate regulations with the federal government and other provincial governments (especially Nova Scotia and Prince Edward Island). Police officers will need to receive training as Drug Recognition Experts in order to determine if individuals are operating a vehicle while under the influence of cannabis. Education will also be key, notably about the legal restrictions that remain on cannabis and how legalization actually works (including who may consume cannabis, in what forms it may be consumed – inhaled or ingested – , and where it may be used). And the Province will need to determine a stream-lined distribution system for legal cannabis, especially if it is sold by privately-run operations that may not wish to locate in many of the rural communities that are scattered throughout the province.
Ultimately, the legalization of cannabis may be seen as an opportunity to remove the criminal and moral stigma from marijuana and to end the losing cause of policing weed in Canada.
Michael Boudreau is Professor in the Department of Criminology & Criminal Justice at St. Thomas University. He is the author of City of Order: Crime & Society in Halifax, 1918-1935 (UBC Press, 2012) which was short-listed in 2013 for the Sir. John A. Macdonald Prize, awarded by the Canadian Historical Association to the book “judged to have made the most significant contribution to the understanding of the Canadian past.” He is currently researching executions in New Brunswick from 1869 to 1957.
 Dan Malleck, When Good Drugs Go Bad: Opium, Medicine, and the Origins of Canada’s Drug Laws (Vancouver: UBC Press, 2015), 245.
 For more on Canada’s “counter-culture” see Doug Owram, Born at the Right Time: A History of the Baby Boom Generation (Toronto: University of Toronto Press, 1996), Chapter 8; Bryan D. Palmer, Canada’s 1960s: The Ironies of Identity in a Rebellious Era (Toronto: University of Toronto Press, 2009), and Greg Marquis, “Confederation’s Causalities: The ‘Maritimer’ as a Problem in 1960s Toronto”, Acadiensis XXXIX, no. 1 (Winter/Spring 2010): 83-107.
 For more on the crackdown on marijuana users and the call for the legalization of cannabis see Michael Boudreau, “`The Struggle for a Different World’: The 1971 Gastown Riot in Vancouver”, in Debating Dissent: Canada and the Sixties, Lara Campbell, Dominique Clement, and Gregory S. Kealey, eds. (Toronto: University of Toronto Press, 2012), 117-133 and Greg Marquis, “Constructing an Urban Drug Ecology in 1970s Canada”, Urban History Review XLII, 1 (Fall 2013): 27-40.
 In the context of decriminalization, cannabis remains illegal, but criminal sanctions have been replaced by fines or other forms of penalties that do not result in a criminal record. Framework for the Legalization and Regulation of Cannabis in Canada: The Final Report of the Task Force on Cannabis Legalization and Regulation (Ottawa: Government of Canada, 2016), 10 and 71.
 Ibid, 9.
 Ibid, 69.
 James McIntosh, “End Reefer Madness: What Canadians really want from the new marijuana laws”, Literary Review of Canada 25, 2 (March 2017): 28-30.
 Despite reporting increases, Newfoundland and Labrador and Prince Edward Island reported the lowest rates of persons charged with possession of cannabis among the provinces and territories (22 and 20 per 100,000, respectively). These statistics, the calculation of rates of persons charged with drug-related offences, and the analysis of the data are contained in Canadian Centre for Justice Statistics, “Police-reported crime statistics in Canada, 2016” (Ottawa: Statistics Canada, 2017), 26-28.
 Framework for the Legalization and Regulation of Cannabis in Canada, 12.