Cannabis in Canada

  • June 01, 2018
  • John W. Conroy, QC

Background Overview and Links
The Past and the Present

Cannabis (or marijuana) was added to the schedule to the Canadian Opium and Drug Act (1911) in 1923 based on “Reefer Madness” across the US individual states between 1915 and 1937, initially because of the Mexican influence and then a fear it would become the “new menace” as a substitution for alcohol.

There was no “cannabis problem” in Canada at the time and no debate in Parliament when it was added. In 1929, that act provided for a minimum sentence of six months imprisonment and a $200 fine for simple possession. That continued until 1961. The court had the discretion to also impose whipping and/or hard labour, which was removed in 1954. In 1956, there was one conviction for possession, 21 in 1960, 112 by 1965 and 447 by 1966, followed by 817 in 1968. In 1972, it jumped to 10,695, and by 1977, it was 50,168. In 1980, there were 54,000. That number dropped down to 27,000 in 1990 and then climbed back up to 45,000 in 2000 and to 59,000 in 2013.

The skyrocketing interest in cannabis by white middle-class young people in the 60s led to the hybridization of the possession offense, enabling the Crown to proceed summarily or by indictment. These two factors led to an increase in the number of charges and a corresponding decrease in the number of people going to prison.

In 1972, the LeDain Commission of Inquiry into the Non-medical Use of Drugs recommended, among other things, the repeal of the simple possession offence, and the hybridization of trafficking offences with a maximum penalty of five years imprisonment on indictment and 18 months on summary conviction. Sharing a “joint” would not be an offence.

Every political party in Canada promised some form of “decriminalization.” Prime Minister Pierre Trudeau introduced the sentencing option of absolute and conditional discharges to ameliorate the consequences of a criminal record for simple possession. Various other promises and bills were introduced between 1972 and 1993 by various governments, but were never passed.

The current Controlled Drugs and Substances Act (“CDSA”) came into force on May 14, 1997.

In 2012, the Conservative government amended the Act to provide for mandatory minimum sentences of imprisonment for production from six months to two years, depending upon the number of plants and if for the purpose of trafficking, and increased the maximum penalty from seven years to 14. Mandatory minimums of one to two years for trafficking offences in certain specified circumstances were also added. The 14-year maximum had the effect of removing eligibility and thus the availability of absolute and conditional discharges (s.730 CC) to a sentencing court, as well as Conditional Sentence Orders (CSO’s s.742.1 CC) as the last step before actual imprisonment.

Challenge to Cannabis Prohibition in Canada

R. v. Malmo-Levine; R. v. Caine [2003] 3 SCR 571 from British Columbia and a companion case from Ontario R v. Clay [2003] 3 SCR 735 were heard together by the Supreme Court of Canada. The court upheld Parliament’s power to prohibit cannabis under its “criminal law” power and found that it did not violate s.7 of the Charter. While “liberty” was engaged in that people were charged with criminal offences, they were not deprived thereof in violation of a “principle of fundamental justice” as the “Harm Principle” (John Stuart Mill) was not such a “principle” and the matter was for Parliament and not the courts. R. v. Malmo-Levine; R. v. Caine | R v. Clay

Challenges regarding medical use and reasonable access to cannabis

The BC Compassion Club Society emerged in 1997 to supply “medically approved patients” (authorized by a “practitioner” under s. 53 of the Narcotic Control Regulations). In Ontario, the medical access issue proceeded in the courts. On July 31, 2000, the Ontario Court of Appeal, in R v. Parker [2000] O.J. No. 2787 ruled that our laws prohibiting the possession of cannabis (marijuana) were unconstitutional to the extent that they did not provide for reasonable access by medically approved patients requiring cannabis for their health. R. v. Parker

The federal government did not appeal that decision and initially “medically approved patients” were granted exemptions pursuant to s. 56 of the CDSA. Then the Medical Marijuana Access Regulations (“MMAR”) were promulgated allowing such patients to produce for themselves or have a designated grower do so for them but with no government source of supply. Ultimately, due to further litigation in Ontario and BC, the government was compelled to turn its research supply, being produced in a mine in Flin Flon, Manitoba, as the medical source. The Conservative Harper government then promulgated the Marijuana for Medical Purposes Regulations (“MMPR”), repealing the MMAR and the right to produce for oneself or have a designated grower do so and compelling all patients to be supplied by “Licensed Producers.” That development led to further litigation in the Federal Court Trial Division.

First, in Allard et al. v. Canada, 2014 FC 280 on March 21, 2014, an injunction was granted grandfathering some 28,000 MMAR permit holders whose permits to produce were valid on September 30, 2013 and to possess on March 21, 2014, pending trial. Allard et al. v. Canada

While the trial in Allard took place between February and May of 2015, the final decision was delayed because the case of Owen Smith, the baker for the Cannabis Buyers Club in Victoria, BC, who was charged with trafficking, challenged the limitation in the MMAR to “dried marijuana” and was heard in the Supreme Court of Canada March 20, 2015. That case was decided June 11, 2015, and held that the limitation was unreasonable and that patients can possess cannabis in any of its forms immediately. R. v. Smith [2015] 2 SCR 602 (SCC)

Further submissions were then made in Allard and a final decision was rendered February 24th, 2016 finding and declaring the MMPR to be unconstitutional as unreasonably restricting patient access and giving the government six months, to August 25, 2016, to fix things up. That led to the creation of the current Access to Cannabis for Medical Purposes Regulations (“ACMPR”) and the injunction was ordered to continue “until this court orders otherwise,” and continues to date. Allard v. Her Majesty the Queen 2016 FC 236 (FCTD)

Access to Cannabis for Medical Purposes Regulations. The current medical regulations under the CDSA that will become regulations under the proposed Cannabis Act as the continuing medical process. Access to Cannabis for Medical Purposes Regulations

THE FUTURE: FEDERALLY

In the Canadian Senate, the Cannabis Act after “2nd Reading” in March 2018, is now at the Committee stage where submissions will be made with respect to potential amendments. It then goes to “3rd Reading,” with a vote on June 7, 2018. It then goes back to Parliament to be enacted into law by July 1, 2018, but will then take several months to implement in conjunction with the provincial/territorial legislation. The Cannabis Act will “legalize” the production of four plants per household, with no limits on storage and a 30g possession limit when out and about, and will “decriminalize” minor violations. Bill C-45: Third Reading

The Proposed Approach to the Regulation of Cannabis – Discussion Paper for Consultation Purposes regarding federal regulations

A summary of the results of the Consultation with respect to the Proposed Regulations

THE FUTURE: THE PROVINCES AND THE TERRITORIES

Each province and territory will be enacting its own provincial or territorial Cannabis Act and regulations governing distribution, subject to some provisions in the federal Cannabis Act with respect to promotion and advertising like tobacco and alcohol regulations.

What is going on in each province and territory, as of April 2018

BC Cannabis Regulation – The Cannabis Private Retail Licensing Guide

The BC Liquor Distribution Branch establishes retail brand for non-medical cannabis

Proposed BC Legislation: Progress of Bills | News release: BC reaches milestone with introduction of provincial cannabis legislation


John W. Conroy, QC (johnconroy.com) was called to the Bar in 1972 and is now semi-retired as an International Cannabis Consultant. He has been involved in cannabis cases of all kinds at all levels of courts, including Caine and as Co-Counsel in Smith in the Supreme Court of Canada and as lead counsel in Allard v Canada referred to in the article.