HIGH TIME TO STOP THE WAR ON MARIJUANA

By Professor Alan Young

With little fanfare, marijuana became a prohibited substance in 1923. Even
though it had been used for sacramental, medicinal and recreational
purposes for 10,000 years, when Parliament decided to criminalize marijuana
use in 1923, few members of Parliament had even heard of this drug. In
fact, in 1923, few Canadians were using it, and until the explosion of the
counterculture in the 1960 s, there were only a handful of recorded
convictions for the use or sale of marijuana. After 64 years of chasing
the cannabis criminal, we have seen consumption of marijuana skyrocket,
with an estimated two million Canadians indulging in this "vice" despite
the presence of the draconian criminal sanctions. The only legacy left
from this battle with marijuana consumers is the expenditure of billions of
dollars in pursuit of the cannabis criminal, and the saddling of some
600,000 Canadians with criminal records for possession of marijuana.

The prohibition on marijuana consumption is unlike any other prohibition
found in Western liberal democracies. In many, if not most, of the cases
before the courts we find lawabiding, productive citizens being
transformed into criminals by police, prosecutors and judges who might have
indulged in the very same "criminal" activity at some time in their lives.
As much as public officials protest that they never inhaled, the reality is
that the law has lost touch with the biblical wisdom: "Let he who is
without sin cast the first stone." Plainly and simply, the prohibition of
marijuana is an exercise in hypocrisy, duplicity and stupidity.

In order to justify inclusion of marijuana as a prohibited substance in the
1920 s, public officials and media representatives were required to
construct an outrageous "dope fiend mythology" to frighten the masses and
convince them that they should look to the government for protection.
Judge Emily Murphy, the first woman judge in Canada, wrote in her book, The
Black Candle (1922), that "persons using this narcotic lost all sense of
moral responsibility. While in this condition they become raving maniacs
and are liable to kill or indulge in any form of violence to other persons,
using the most savage methods of cruelty." Similarly, Maclean s magazine
reported in 1938 that marijuana will "send a large population of the
Dominion s population to the insane asylum."

Although their are few people in 1997 who believe this hyperbolic drivel,
there still remains a sense among Canadians that Parliament would not
retain the prohibition unless there existed some significant danger from
marijuana use. However, this evidence of significant danger simply does
not exist. The fabric of Canadian society is not now, nor had it ever
been, in peril as a result of many Canadians freely choosing to intoxicate
themselves with this mild psychoactive substance. We have far more to fear
from problem drinkers than we do from Cheech and Chong types who get high,
giggle and gyrate to rock music. Ultimately, there will be many Canadians
who frown on this form of intoxicating activity; however, we still would
like to believe that Canada is a free and democratic country, and the fact
that many Canadians frown upon rodeos or violence in hockey does not
provide a justification for banning all violent sports and forcing all
Canadians to play golf. Freedom of choice is a defining feature of
democratic political theory, and this freedom should not be limited save
and except for the most compelling of reasons.

There is no compelling reason for forcing Canadians to avoid using
marijuana by threats of imprisonment. Despite false claims by drug
warriors, there is no convincing evidence that marijuana use leads to
irreversible physical or psychological harm (although it must be recognized
that heavy smoking of any substance will lead to pulmonary problems).
There is no convincing evidence that marijuana is physically addictive or
is criminogenic. There is no evidence that marijuana is a gateway or
steppingstone to the use of more dangerous drugs. Of course, there are
some people who abuse marijuana, just as there are people who abuse the
multitude of junkfood products available on the free market, but this is
more a reflection of the reckless nature of certain consumers than of the
insidious properties of the drug. I would concede that there are studies
that point to various medical harms unique to marijuana. But one cannot
take seriously studies that employ the following methodology: force a
laboratory rat to smoke 100 joints a day, watch it slowly die and then
report that marijuana consumption was the cause of death. Using this same
methodology, I could very likely prove that bubble gum is a deadly, evil
substance. The few reported studies on human subjects who consume moderate
amounts of marijuana do not reveal any greater incidence of physical or
psychological problems then are found among nonsmokers.

The refusal to believe that marijuana is harmful is not a pipe dream of
spacedout and aging hippies (if they still exist.)

Virtually every commission of inquiry in the Western world has reached this
conclusion. Starting with the 1893 Indian Hemp Commission, every time a
government establishes a commission of inquiry to study the issue, the
commission concludes that the marijuana problem is a tempest in a teapot
and that marijuana use should not be considered a criminal activity. This
consensus emerged in the 1944 LaGuardia Report (U.S.), the 1967
Presidential Commission on Law Enforcement (U.S.), the 1968 Report by the
Advisory Committee on Drug Dependence (British), the 1972 President s
Commission on Marijuana and Drug Abuse (U.S.), the 1972 Inquiry into the
NonMedical Use of Drugs (the Canadian LeDain Commission) and the 1979
Report on the NonMedical Use of Drugs (Australia). Not only do these
educated and informed commissioners conclude that the marijuana prohibition
is without a justifiable foundation, but, in addition, recent (1995) public
opinion polls in Canada indicate that 70 per cent of Canadians favor a
change in drug policy with a movement toward decriminalization of marijuana
.

Displaying utter contempt for democratic principle, the Canadian government
(and its mentor, the U.S. government) simply shelved these reports,
allowing them to collect dust while hundreds of thousands of North
Americans are still being persecuted simply because they prefer to
intoxicate themselves with marijuana and not just with alcohol, tobacco or
caffeine. It is a strange world indeed when one s choice of intoxicant
becomes the dividing line between lawabiding and criminal activity in a
world in which the consumption of intoxicating substances, for better or
worse, has become an ordinary fact of life.

People begrudgingly accept some erosion of democratic principle and some
curtailment of legal rights during an emergency situation or during war.
So it should come as no surprise that politicians have employed the
metaphor of a "war on drugs" to justify disregarding the popular will of
the people and the conclusions of informed scholars and scientists. When
Nixon, Reagan and Mulroney issued their declarations of the war on drugs,
it was not because marijuana was truly perceived to be an enemy of the
people. It was a signal that the government was willing to resort to
propaganda to sustain the highly intrusive and powerful law enforcement
agencies which were set up to combat marijuana use. Without conducting any
reputable scientific research, the Canadian and American governments
continued to assert that marijuana consumption would lead to social harms
far worse than the 10 horrific biblical plagues. Drug users are blamed for
every social ill and every manifestation of urban decay. Violence,
indolence, ignorance and all manner of physical and psychological injuries
were and still are attributed to marijuana use despite the fact that
many marijuana users are now highly respected leaders in the worlds of
business, law and medicine.

North America is becoming increasingly isolated in its punitive response to
marijuana use. The Netherlands, Germany, Italy, Spain, South Australia and
the Australian Capital Territory have all moved toward decriminalization in
recognition that the war on marijuana consumers is both a failure and an
injustice. While other Western liberal democracies have seen fit to
rethink their approach to softdrug use, North American drug policy still
lingers in the afterglow of the Reagan "just say no" approach to the issue,
and, as with many other issues of public policy, Canada cannot sever the
umbilical cord that connects us to American folly. When Nancy Reagan
coined the expression "just say no," North America took one giant step
backward in the development of a rational approach to social problems. The
"just say no" approach to drug use is as sensible and sophisticated as
having psychiatrists deal with patients suffering from clinical depression
by telling them to "just cheer up."

The sad reality is that the war on marijuana consumption has created far
more harm for society than the consumption ever did. By saddling marijuana
consumers with criminal records, we have left many lawabiding and decent
Canadians with a mark of Cain that can prevent them from pursuing economic
opportunities and can only serve to marginalize and ostracize people who
would most likely become productive members of society. Furthermore, the
false labeling of marijuana as a dangerous narcotic has prevented many
cancer and AIDS patients from securing marijuana for medicinal purposes. It
has become readily apparent that marijuana is a valuable antiemetic that
reduces the nausea of chemotherapy; however, our government prefers to see
AIDS patients suffer through their last days rather than admit that
marijuana has therapeutic value.

Most significantly, the endless pursuit of the cannabis criminal diverts
valuable justice resources away from the pursuit of real predatory
criminals. Victimization surveys indicate that 27 per cent of Canadians
are afraid to walk the streets at night, and this is surely not a product
of fearing confrontation with a marijuana user. Billions of dollars are
being spent on this war on marijuana, and even if one objects to marijuana
use on moral grounds, it must be recognized that justice is a finite
commodity. We cannot afford to waste valuable resources investigating and
prosecuting minor criminal activity while violent crime has increased by
300 per cent since 1962. Criminal justice is a blunt instrument that must
be used with restraint. Restraint means that social nuisances and other
petty criminals should be dealt with outside the criminal justice system,
in order to leave sufficient resources for criminal justice to attend to
the crime problems that leave Canadians fearful and insecure in the streets
and in their homes. The limited resources available for law enforcement
should be used to apprehend and prosecute dangerous criminals, not to
manufacture criminals who pose no threat to the wellbeing of the community
.

Canada will never be a drugfree zone, and we should abandon the naEFve
aspiration to eradicate drug use by threat of imprisonment. The goal
should be to facilitate responsible use of substances that are relatively
harmless. Responsible drug use can never be attained while the government
clings to exaggerated and misinformed propaganda employed to scare young
people into thinking that marijuana will leave permanent scars on their
physical and psychological development. When the curious teenager smokes
his/her first joint and the world does not collapse at his/her feet, this
same teenager will probably ignore government warnings about the harms of
hard drug use. Given the right information, most young people will make
responsible choices, and government should facilitate responsible and
informed choice. In the many jurisdictions that have decriminalized
marijuana use, studies have conclusively demonstrated that consumption of
marijuana among young people does not skyrocket because of lenient policy.
In the Netherlands, one can walk into a local cafE9 and purchase marijuana
.
But the rate of consumption of marijuana by young people remains stable at
none per cent whereas in Canada, with the threat of criminal prosecution
looming in the shadows, the rate of consumption hovers between 31 per cent
(1979) and 23 per cent (1996).

I am deeply saddened by the political inertia that has left the 1972 LeDain
Commission Report recommendation for decriminalization an unfulfilled
promise. Knowing that millions of Canadians have smoked marijuana, I am
bewildered by this government s refusal to take action based upon the
conclusions reached by virtually every government inquiry established to
study the issue. While the academic debate rages on, we still find people
engaged in the marijuana trade serving longer sentences than predatory
criminals such as Karla Homolka. For the criminal, the cost of taking a
human life in an act of homicidal rage is far less than the cost of
distributing a relatively safe psychoactive substance to individuals who
have made an informed choice to partake in this activity. I have seen
marijuana traffickers and importers sentenced in excess of 15 years, and I
have seen convicted rapists receiving a twoyear slap on the wrist. Our
priorities are all askew, and it is no surprise that surveys conducted by
the Department of Justice reveal that the vast majority of Canadians
believe that the criminal justice system is a "joke" that is often
"ineffective or impotent."

Criminal justice should serve to protect the life, liberty and security of
Canadians. We are consumers of security, and government bears a heavy
burden in providing this service. The time has come for Canadians to
demand that their governments be responsive to the needs of ordinary
citizens. Such responsiveness requires a refocusing of the "criminal
justice industrial complex" on the real concerns of Canadians. We should
no longer accept the current state of affairs in which most municipal
police budgets allocate more money for morality concerns (i.e. drugs,
gambling and prostitution) than they do for the investigation of sexual
assault. In order to bring the criminal justice system into proper focus,
it will be necessary for the hundreds of thousands of law abiding and
productive baby boomers who have smoked marijuana to abandon the hypocrisy
of claiming never to have inhaled and to admit that they have never
exhaled. Marijuana has been consumed for 10,000 years and civilization has
not fallen as a result. But waging this 64year war on marijuana might
well bring the criminal justice system to the brink of collapse.

Alan Young is a professor of law at Osgoode Hall Law School. On April 28,
he will start a criminal trial in which he will be challenging the
constitutionality of marijuana prohibition.

_____________________________________________
Hemp Nation * http://www.hempnation.com/
Chris Clay * Email chris.clay@hempnation.com
Constitutional challenge begins April 28th