Is Marijuana Illegal?

December 7, 2009

There is confusion amongst members of the public as to whether or not simple possession of marijuana is illegal. This confusion has been caused by various court decisions and a policy of discretionary enforcement by the police. Simple possession of marijuana, possession for the purpose of trafficking, and production of marijuana are illegal in Canada. The law as it relates to simple possession of cannabis (less than 30 grams for personal use) is contentious in some areas. It is important to note that, in 2007 Toronto Police spokesman Mark Pugash said that, despite some discrepancies in the law, nothing will change about how the police deal with marijuana for the time being. Thus, while this article provides a helpful summary of the evolution of the law with regards to marijuana in Canada, we suggest that you do not change your personal practices based on the information contained in this article. One should remember that although even the various police associations have recommended decriminalization, possession is still illegal, and a finding of guilt in relation to simple possession of marijuana can have far reaching consequences.

Medical Marijuana

In the 2000 decision, R. v. Parker, the Supreme Court of Canada declared that the law against possession of marijuana violated the Canadian Charter of Rights and Freedoms insofar as it failed to create an exception for medicinal marijuana use. The defendant, Terrance Parker, suffered from severe epilepsy. He tried to control his seizures through conventional medicine and surgery but found that neither improved his condition as much as smoking marijuana. He grew his own marijuana plants since there was no place where he could legally obtain the drug. Twice, the police raided his home, confiscated his marijuana and he was charged with production of marijuana. At trial, he argued that the law prohibiting marijuana possession infringed his s. 7 Charter of Rights right to “life, liberty, and security of the person”. The Ontario Court of Appeal considered both the harmful and therapeutic effects of marijuana and came to the conclusion that the law against possession of marijuana for therapeutic/ medical purposes was unconstitutional. The Court declared that Parker should be able to make choices about his medical treatment as those decisions would greatly affect his overall health. The law against possession interfered with Parker’s security of the person by depriving him of the ability to make decisions that would affect his physical and psychological integrity without fear of criminal prosecution. Moreover, the court found that the “blanket provision” on marijuana possession, without an exception for medical use, did not enhance the interests of the state and therefore there was no justification for interfering with Parker’s right to make decisions over his own healthcare. However, the Court also found that the prohibition on marijuana for recreational use did enhance state interests by preventing the harms associated with marijuana. The court concluded that s. 4 of the Controlled Drugs and Substances Act, the prohibition against possession of marijuana, was too broad in that it did not contain an exception for medicinal use of marijuana. The court declared the section invalid, but suspended the declaration of invalidity for one year to allow Parliament an opportunity to draft a new prohibition that included in it an exception for medicinal use.

The government of Canada responded swiftly to the decision in R. v. Parker. In July of 2001, Health Canada issued a set of regulations giving individuals access to marijuana for medical purposes. The Medical Marijuana Access Regulations, which went into effect July 31st, 2002, outlined two categories of individuals who may legally access marijuana prescribed by their doctor. Category 1 patients include:

  • Individuals suffering severe pain from multiple sclerosis, spinal cord injury, or spinal cord disease,
  • Individuals suffering severe pain, cachexia (loss of body mass that cannot be reversed nutritionally), anorexia, weight loss, and/or severe nausea from AIDS or cancer,
  • Individuals suffering severe pain from arthritis, and
  • Individuals suffering seizures from epilepsy.

Category 2 allows individuals suffering from debilitating symptoms from medical conditions (most commonly severe pain), other than those described in category 1, to apply to Health Canada for access to medicinal marijuana. Category 2 individuals must have the support of a medical practitioner. Individuals who have a condition described in category 1 or who are approved under category 2 can legally obtain medicinal marijuana distributed by the company CannaMed or can grow their own for personal consumption. It is also possible to become a licensed grower for others with medicinal need.

Thus, it is possible to have legal access to marijuana for medical purposes in Canada. More controversial is recent legal opinion on the legality of recreational use of marijuana.

Recreational Use

Ever since marijuana was criminalized in Canada in 1923 there has a strong opposition movement that continuously advocates for legalization or decriminalization of the drug. As early as 1972 Canada’s Le Dain Commission recommended the decriminalization of cannabis. Legalization advocates often point out that the drug is no more harmful than alcohol or tobacco and should therefore be regulated in a similar fashion.

Activists and litigants usually make one of two constitutional arguments in favor of cannabis legalization.  First, many marijuana activists claim that smoking marijuana is not really an act of a criminal nature and as such the federal government does not have the authority to ban it under the criminal law power. The Constitutional Act of 1867, divides law-making power between the federal government and the various provincial governments. The federal government has jurisdiction over all matters of criminal law, whereas the Provincial governments have law-making power over issues dealing with property and civil rights. Many marijuana activists claim that banning marijuana is not actually a matter of criminal law since smoking marijuana is neither harmful nor immoral. They further argue that regulating marijuana is rightly a property issue and that as such only the province has the power to regulate the use, distribution, and sale of marijuana. This argument would equate marijuana with alcohol, which is also regulated independently by the governments of each province.

Courts have, for the most part, rejected this argument and concentrated on the harmful effects of marijuana such as health effects for users, international effects of drug trafficking around the world, and issues with production and trafficking and their relationship to terrorism and organized crime both in and outside of Canada, to continue to view marijuana as a criminal issue.

Nonetheless, there has been some support from government sources for the view that marijuana is not harmful and should be treated on par with tobacco and alcohol, rather than under the matrix of the Controlled Drugs and Substances Act. For example, in September of 2002, the Special Senate Committee on Illegal Drugs reviewed Canada’s anti-drug law and concluded that marijuana is not a gateway drug and should be treated more like tobacco or alcohol than harder drugs such as cocaine or heroin.  Their report stated that, “the continued prohibition of cannabis jeopardizes the health and well-being of Canadians much more than does the substance itself.” In response, the House of Commons Special Committee on the Non-Medical Use of Drugs did an overall audit of Canada’s drug strategy and concluded that though marijuana is unhealthy, the criminal penalties for possession and use of small amounts of cannabis at the time were disproportionately harsh. The Committee recommended that the Canadian Minister of Justice and Minister of Health create a strategy to decriminalize possession and cultivation of a specified amount of marijuana (less than 30 grams for personal use).

Following the Committee’s recommendations, the Chrétien government introduced several versions of a bill to decriminalize simple possession of marijuana from 2002 to 2003. This effort was originally geared towards decriminalization, but as time moved on, the focus shifted to prescribing alternative penalties; fines rather than criminal charges would be prescribed when individuals were found with small amounts of marijuana. To date, the federal government has not followed through with Bill C-17. The current Harper administration has instead proposed Bill C-15, which proposes to create mandatory minimum sentences for production of marijuana. If Bill C-15 passes into law, individuals convicted of growing even one marijuana plant would face a mandatory minimum of six months imprisonment. Bill C-15 has been passed in the House of Commons and is currently under review in the Senate. Bill C-15 seems to indicate a sharp change in the Canadian government’s attitude towards small-scale marijuana use.

The second common argument legalization activists make is that the law against simple possession of marijuana violates the Canadian Charter of Rights and Freedoms in some way. During the last 5-10 years, there have been judicial decision decisions both affirming and rejecting the argument that the law against recreational use of marijuana violates the Charter. This has led to some confusion over the legal status of marijuana.

In January 2003, an Ontario provincial court judge, Justice Douglas Phillips, declared in R. v. J.P. that, based on the ruling in R. v. Parker, s. 4 of the Controlled Drugs and Substances Act [CDSA] dealing with simple possession of marijuana was invalid. As mentioned above, in the Parker case, the Ontario Court of Appeal declared that s. 4 of the CDSA was invalid in that it did not create an exception for medicinal marijuana. The court then suspended the declaration of invalidity for one year to give the government a chance to draft an alternative provision. In response to Parker, the Canadian government enacted the Medicinal Marijuana Access Regulations; however, it never enacted an amended version of s. 4. Justice Phillips concluded that, as of July 31st, 2001 – when the one-year suspension on the declaration of invalidity ended – s. 4 was officially declared invalid and therefore no longer had any legal effect. Just nine months later in October 2003, the Ontario Court of Appeal reversed Justice Phillips decision in R. v. J.P. The court said that, while the medicinal marijuana regime needed to be improved, the law against recreational marijuana was constitutional despite the defendant’s argument that it violated s. 7 of the Charter.

In December 2003 the s. 7 question finally came before the Supreme Court of Canada in R. v. Malmo-Levine. Section 7 of the Charter of Rights declares that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. The defence argued that, by attaching a criminal penalty of imprisonment to simple possession of marijuana, s. 4 of the CDSA deprived him of liberty in a manner that is not in accordance with the principles of fundamental justice. The defence suggested that it is a principle of fundamental justice that the criminal law can only prohibit activities that cause some sort of harm. The court disagreed, concluding that while the “harm principle” may be one consideration legislators take into account when enacting laws, it does not constitute a “principle of fundamental justice”. Moreover, the court said that while arbitrary or irrational laws could be quashed under s. 7, the prohibition against simple possession of marijuana was neither irrational nor arbitrary. Malmo-Levine also failed to convince the court that the penalties associated with marijuana were unconstitutional pursuant to s. 12 of the Charter (the prohibition against “cruel and unusual punishment”) or s. 15 of the Charter (the equality provision). The court unanimously ruled that the law against recreational use of marijuana did not violate the Charter in any of the ways suggested by the defence in Malmo-Levine.

Barely four years later, in 2007, the constitutionality of the law against simple possession came before the court again in R. v. Long. A judge of the Ontario Provincial Court found that the law against simple possession was unconstitutional in that it did not contain a specific exemption for medicinal marijuana. Like in R. v. J.P., the judge in Long believed that the policy remedies introduced by the government through the Medical Marijuana Access Regulations, the Interim Supply Policy, and the Policy on the Supply of Marihuana Seeds and Dry Marihuana, did not address the specific problems in the wording of s. 4 of the CDSA. However, in 2008, the Ontario Superior Court of Justice reversed the decision saying that the circumstances resulting in s. 4 being found unconstitutional in Parker had been remedied by the Regulations and Policies mentioned above.  As a result, the Court held, the current s. 4 provision is constitutional.

Thus, the law against simple possession seems to be continuously evolving. Different judges have different interpretations of the law and criminal defence lawyers are constantly advancing new and creative arguments attacking the constitutionality of the law. Nonetheless, for the time being, simple possession of marijuana remains illegal.

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