Cannabis should be decriminalized now

Toronto lawyer Alan Young challenges ministers Alan Rock and Anne McLellan
in an open letter on marijuana policy

Dear Honourable Ministers of the Crown:

This past summer I acted as trial counsel in a constitutional challenge to
the designation of the plant, cannabis sativa, as a prohibited substance.
In this case, R. v Clay, in the Ontario Court (General Division), August
14, 1997, the learned trial judge, Mr. Justice McCart, concluded that "as
it is commonly used, occasionally, cannabis presents only minor or subtle
risks to the health of the individual."

In addition, the learned trial judge found as a fact that cannabis sativa
does not induce psychoses, that it is not addictive, that it is not
criminogenic and that it does not cause amotivational syndrome. In other
words, after hearing three weeks of evidence from numerous renowned
experts, an esteemed judge has reached the same conclusion reached in 1972
by your own Royal Commission – the conclusion being that consumption of
cannabis sativa causes little harm to the individual consumer, and more
importantly, causes little or no harm to society at large.

Despite reaching a conclusion which strongly supports the call for
decriminalization, the judge dismissed the constitutional challenge on the
basis that there did not exist a "principle of fundamental justice" under
s.7 of the Charter of Rights that would permit the court to launch into an
"unwarranted intrusion into the legislative domain."

This ruling is under appeal and therefore I am not able to engage in any
discussion of the merits of the learned trial judge’s legal and
constitutional conclusions. Instead, as the judge suggested, I am now
attempting to raise this issue in the "legislative domain." On behalf of
the estimated 2.5 million Canadians who engage in this relatively harmless
habit, I am asking this government to explain to the Canadian public why we
are spending so much time and money manufacturing criminals out of
lawabiding and productive citizens whose only sin is that they choose to
intoxicate themselves with a substance which is far less dangerous than
alcohol or tobacco.

It is time for this government to find the courage to respond to the
following incontrovertible facts:

1) Cannabis sativa is a relatively harmless substance. Despite hysterical
claims made in the past, the only documented and confirmed risk of harm is
pulmonary damage from the ingestion of smoke. Is it not a trivialization
of the majesty of the criminal law to employ the criminal sanction to
prevent Canadians from becoming a nation of coughers and wheezers?

2) In the 1970’s, Royal Commissions of Inquiry in Canada, United States,
Britain, Australia, Holland and Germany recommended decriminalization or
legalization of cannabis sativa.

3) Subsequent to this recommendation from the Canadian Royal Commission
(the LeDain Commission) in 1972, the Liberal party, the Conservative Party
and the New Democratic Party pledged to take action in the direction of
decriminalization. In fact, your party in the 1980 Throne Speech promised
to take action in the direction of decriminalization.

4) There have been no compelling scientific studies of any weight in the
1980s and 1990s which have called into question the conclusions and
recommendations of these various Royal Commissions of Inquiry.

In fact, the Canadian government has failed to spend one penny on medical
research to inquire into the alleged medical benefits of cannabis sativa.
The government has simply ignored the findings of its own independent
Commission of Inquiry which spent millions of dollars over four years to
study the issue.

5) Other free and democratic regimes have realized the folly of maintaining
this criminal prohibition and we now can find formal and informal
decriminalization measures in Holland, Germany, Spain, Italy and Australia.
The greater availability of cannabis sativa in these enlightened
jurisdictions has not led to an increase in consumption and/or an increase
in medical and societal costs.

6) In 1996, the Senate Standing Committee on Legal and Constitutional
Affairs recommended that this government revisit the LeDain Commission’s
findings and "explore the health effects of cannabis use and consider
whether decriminalization of cannabis would lead to increased use and
abuse." Once again, this recommendation was disregarded.

7) In every survey, including government surveys conducted by this
government, it is clear that a strong majority of Canadians want to see a
change in the law. In the 1995 Health Canada survey, 27 per cent of
Canadians agreed that possession of marijuana should be legal and 42.1 per
cent agreed that this offence should not be punished by a term of
incarceration.

In other words, over twothirds of Canadians (69.1 per cent) support a
change in the law.

These facts are only the tip of the iceberg and far more can be said in
defence of decriminalization. However, in light of the facts presented
above, I am asking the Honourable Ministers to explain to Canadians why
there appears to have been a failure in the democratic process.

Canadians have expressed the desire for law reform and the government has
never adequately explained why it has ignored the will of the electorate in
such a cavalier fashion. Even if you believe that consumption of marijuana
is a trivial recreational habit which is not deserving of much legislative
scrutiny, it is simply a disgrace that the wishes of Canadians can be
ignored by their elected representatives.

If a referendum were held, I have no doubt that the laws would have been
changed long ago and we could have started to focus our limited criminal
justice resources on crimes that strike fear and insecurity in the hearts
of Canadians.

Not only is this government acting in an antidemocratic fashion, it is
wasting enormous resources in pursuit of the cannabis criminal. I have
made my own cost estimates based upon the costs of investigation,
apprehension, prosecution and the administration of sentencing, and
conclude that we are spending at least $1 billion every year in our failing
effort to make Canada a marijuanafree zone. At a time when many Canadians
are saddened by the constant cuts to social programs and health care, this
government is squandering valuable resources for no apparent reason.

The question I pose on behalf of the 2.5 million cannabis smokers and the
estimated 10 million Canadians who support a change in the law is simply
this: Does the government have any serious intent to initiate law reform in
this area, and if not, how does this government justify the status quo?

We can no longer ignore the reality that the issue of decriminalization of
cannabis decriminalization engages a larger issue concerning the abject
failure of principles of democracy.

At the risk of losing faith in the concept of responsible and responsive
government I invite you to explain to Canadians why their wishes are being
summarily dismissed.

Alan N. Young is a professor of law at Osgoode Hall, York University.