Put down that legal joint and put your hands up

By: on November 25, 2018 |

It should have been easy to legalize marijuana. The default position in our supposedly free society is that people can own, trade and sell plants, and things produced from plants. If the cultivation and/or use of a particular plant has been outlawed, then legalizing it should simply have meant repealing whatever law previously proscribed it.

But the Cannabis Act, which received Royal Assent in June, contains 226 sections (some with multiple subsections) and six schedules. It also amends 15 other federal statutes. Clearly, it is not a simple law. In the bill form that was placed before Parliament, its Summary section contains ten items explaining what the Act is supposed to achieve. The first states that it “establishes criminal prohibitions such as the unlawful sale or distribution of cannabis…and the unlawful possession, production, importation and exportation of cannabis [emphasis added].” The fourth item describes new prohibitions on promotion, packaging and labelling of cannabis.

Then there’s the corresponding provincial legislation. Ontario’s new Cannabis Control Act, for example, starts out by saying that its purpose is “to establish prohibitions relating to the sale, distribution, purchase, possession, cultivation, propagation and harvesting of cannabis…”

Whoa! Wasn’t this legislation supposed to legalize something? Instead, it enacts a raft of new prohibitions, each of which will spawn its own crop of violators and generate its own costs of enforcement. Going by their structure and wording, the new federal and provincial laws’ purpose seems to be something other than simply freeing Canadians to grow, use and engage in commerce in cannabis. The result, as we’ve been reading in the news, has been chaos and frustration among producers, distributors and consumers in a marketplace that previously managed to handle an estimated $6.2 billion worth of product per year  – nearly the size of Canada’s market in wine – with relatively stable prices (indicating that supply and demand were in equilibrium) and, we can assume, widespread customer satisfaction.

But the new legislation triggered immediate problems: shortages of legal recreational cannabis, shortages of seeds for those who want to grow their own, and shortages of product for those who use medical marijuana. Meanwhile, new regulations in Quebec forced stores to abruptly empty their shelves of pot-related paraphernalia whose only flaw is that its logo or “get-up” features a marijuana leaf. This design feature has suddenly been arrogated to the exclusive use of the provincial government. Merchandisers are planning a legal challenge based on freedom of expression.

Since cannabis became legal in Canada on Oct. 17, there have been chronic shortages of the product at outlets across the country.

We can also expect additional problems – and constitutional challenges – from the “drugged driving” clauses added to the Criminal Code. Among the concerns experienced in jurisdictions which preceded Canada in legalizing cannabis are the slowness and inaccuracy of roadside testing equipment, which uses mouth swabs. False-positive results have occurred as often as 14.5 percent of the time. These then trigger more invasive blood tests at the police station, but most stations currently lack personnel who can legally draw blood. And scientists are still debating whether there is any reliable numerical limit for blood tests, since some people can show signs of THC (the active ingredient for intoxication) ingested on a previous day without being genuinely impaired.

In a logical and just world, the people who spent decades of their lives fighting for the right to engage in free trade with consenting adults would now be receiving compensation for the many financial hardships and losses of liberty inflicted upon them by the state under its former misguided policies. Take Marc Emery, for example, widely known among Canadians as the “Prince of Pot”. As an advocate of free markets, an energetic entrepreneur, and an aficionado of pot, Emery for decades conducted himself in a manner most people would have considered admirable had his product been, say, olive oil. He strove to improve the quality of his product (marijuana seeds), to satisfy his customers, and to expand his business. He provided employment to many and paid almost $600,000 cumulatively in income tax.

For his pains, Emery’s businesses were raided repeatedly, resulting in loss of inventory and disruption to commerce, not to mention thousands of dollars in fines. He was even hauled off to jail in Canada on several occasions. But the worst price he paid was five years spent in a U.S. prison after Canada extradited him to face charges there. I’ve known Marc personally for more than 40 years, and while I don’t share his taste for recreational drugs, I’ve always admired his ingenuity and tenacity in the face of obstacles that would almost certainly have defeated me. Yet from a government that has paid out $4.7 billion in compensation to former aboriginal attendees of residential schools, the most we’ve heard is of a possibility that individuals who have criminal records as a result of laws we now recognize as unjust might – just might – be given amnesty.

I’m not advocating that compensation be paid out of government coffers. That would only shift the injustice to a new group of innocents, namely current Canadian taxpayers, many of whom undoubtedly opposed the old law. In a logical and just world, the individuals who made or enforced the former policy outlawing pot – the politicians and law enforcement officials who voted for, advocated, or implemented the continual criminalization of voluntary transactions between consenting adults – would be the ones to pay compensation to those they victimized.

But in our topsy-turvy world, some of the most adamant opponents of legalizing pot are now earning their living from it, or trying to. There’s a long list of people who were politicians, political aides, bureaucrats, or top-ranking law enforcement officials during the marijuana prohibition years, who are now officers or directors of prominent new cannabis companies. The plethora of industry mergers and acquisitions makes it hard to keep the list current, but among those who have at least dipped their toe into the industry – even if it’s no longer there – are a former prime minister, a former provincial premier, several former cabinet ministers, and a former head of the RCMP.

Perhaps the most striking example is Julian Fantino, who has been Toronto’s police chief, Commissioner of the Ontario Provincial Police, and a federal cabinet minister. After news broke last year that Fantino was involved in a medical marijuana business, he was interviewed on the CBC show As It Happens. Host Carol Off quoted Fantino as having said in 2015 that he was “completely opposed to the legalization of marijuana,” that it was “simply wrong” and would “[put] the health and safety of our children and our communities at risk.” Yet there he was, two years later, opening the flagship office of Aleafia Medical Cannabis Care, where he remains on the board today along with director Raf Souccar, whose 34 years in law enforcement culminated as deputy commissioner of the RCMP.

Fantino’s explanation of his dramatic shift: it was a “different era” in which “there was no talk of legalization”, he said of his former – but not very distant – attitudes, dismissing Off’s questions. I’d be very surprised if the idea of compensating those who suffered under the old regime was a serious consideration for Fantino. No, that idea is merely a fantasy of mine.

Canada outlawed cannabis in 1923, apparently with no debate in Parliament, merely by adding this plant to an existing schedule of illegal drugs. At that time, cannabis wasn’t commonly used. The injustices and adverse social consequences that ensued from this cavalier enactment – as well as the ongoing chaos that we can expect as a result of the so-called legalization – should serve as an example of why such legislation should never again be so lightly undertaken.


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About Karen Selick

Karen Selick is a retired lawyer and freelance writer who has never consumed cannabis products but has advocated their legalization for decades.