The New Cannabis Regime and the Legacy of Canada’s War on Drugs: Some Good and Bad News on Charter Compliance*

The colossal failure of Canada’s “war on drugs” is one of the key reasons that the federal government has proposed to replace the current regime of prohibition with one that legalizes and regulates the production, distribution and sale of cannabis.[1] The previous approach to legislating the consumption and distribution of controlled substances was ineffective, irresponsible and often ran afoul of the Charter of Rights and Freedoms. By legalizing the use of cannabis, the Liberal government’s proposed framework departs significantly from this destructive policy orientation. Unfortunately, the proposed legislation itself still carries forward some of the problematic features of the failed “war on drugs” approach and introduces new features which might prove to be unconstitutional if challenged under the Charter.

Hallmarks of the “War on Drugs” Framework

The “war on drugs” approach to cannabis stems from a moral opposition to drug use. It has several characteristic features which are relevant for the purpose of comparing it to alternative approaches. First, it focuses entirely on prohibition and penalization. In the Canadian context, this approach crystalized during the Harper years.[2] During this period, the country saw the adoption of heavy-handed, tough-on-crime laws focused on draconian punishment. This included the imposition of mandatory minimum sentences and increased sentence maximums for drug offences.

Second, the “war on drugs” framework is impervious and often hostile to science. The approach eschews decades of research in the field of epidemiology and criminology. The evidence from these disciplines disproves the assumption that criminalization has a deterrent effect on problematic substance use.[3] Indeed, it demonstrates that prohibition accelerates negative public health outcomes and creates an environment that fuels the growth of illegal markets, violent crime, violent injuries and the death of user and the police.[4] The “war on drugs” approach is not evidence-informed. Nor does it aspire to be.

Finally, because the “war on drugs” approach is opposed to all drug use on principle, it is irreconcilable with effective harm reduction strategies that focus on safe drug use such as needle exchanges and safe-injection sites. This myopic approach ignores the role of social determinants of drug consumption and distribution such as poverty, mental health, addiction and racism.[5]

The features of the “war on drugs” approach discussed above not only lead to bad policy; they lead to unconstitutional laws. In recent years, legislation and government actions undertaken in furtherance of the “war on drugs” have been regularly and successfully challenged under the Charter of Rights and Freedoms.[6] The tougher penalties for drug crimes instituted during the Harper years were routinely found to have infringed s. 12 of the Charter. Mandatory minimum sentence for drug offences have been struck down by courts all across the country as “cruel and unusual punishment.”[7] Similarly, the Harper government’s aversion to harm reduction strategies that save lives has been found to be grossly disproportionate to the objective of protecting health and public safety. In PHS Community Services Society,[8] the government’s moral opposition to drug use resulted in the revocation of a ministerial exemption which allowed a public health clinic to operate a safe injection site without violating the Controlled Drugs and Substances Act. In that case, the Supreme Court of Canada held that the government’s exercise of discretion was arbitrary and so contravened the principles of fundamental justice under s. 7 of the Charter. The Minister of Health’s decision had the effect of increasing the risk of death and disease among vulnerable drug users.

The “war on drugs” approach has placed a tremendous amount of pressure on the Charter rights of all Canadians. But its most punishing effects have been felt by historically marginalized groups and vulnerable members of society — people with addictions and mental health concerns, racialized groups and indigenous peoples.

The Proposed Cannabis Legislation: Some Good News

Against this backdrop, the Liberal government tabled legislation in April 2017 that seeks to replace the prohibition of cannabis with a regime that legalizes and regulates its production, distribution and sale. The Liberal government’s plan comes in the form of two pieces of legislation — Bill C-45[9] and Bill C-46.[10] Bill C-45 regulates the recreational use, sale and cultivation of marijuana while Bill C-46 targets impaired driving.

At first blush, the Liberal government’s legislative agenda appears to be a step in the right direction. Unlike the “war on drugs” approach which is presently the law of the land, the new regime at least aspires to be evidence-informed.[11] The proposed framework looks beyond prohibition, which, in theory, would allow it to co-exist with strategies aimed at broader objectives such as improving public health outcomes and reducing social harms.[12] This proposed framework accepts that criminalization has been largely ineffective in achieving these objectives and has, in fact, lead to harmful social outcomes. Moreover, in its final report, the government Task Force on Cannabis Legalization and Regulation acknowledged that saddling thousands of Canadians with criminal records for non-violent drug offences each year has unacceptably overburdened the justice system.[13] Indeed, one of the express purposes of Bill C-45, listed in s.7(e) of the proposed legislation, is to reduce the burden on the criminal justice system in relation to cannabis.

The Proposed Cannabis Legislation: Some Bad News

Bill C-45

While the proposed legislative framework is a departure from a strict “war on drugs” approach, it features some of the same characteristics that rendered aspects of the previous approach constitutionally non-compliant. While public health and safety are repeatedly mentioned as objectives of the Liberal government’s legislative reorientation respecting cannabis, Bill C-45 is not public health legislation; it is first and foremost a crime bill. In s. 7(d), Bill C-45 identifies one of its central objectives as “deter[ing] illicit activities in relation to cannabis through appropriate sanctions and enforcement measures”. This objective appears to ignore the fact that statistics over the last ten years have shown that crimes associated with drug offences are relatively minor and non-violent.[14] This phenomenon does not warrant stronger sanctions and enforcement measures. Under Bill C-45, buying, selling and using marijuana outside the regulatory regime will remain a serious criminal offence subject to stiff penalties. The new legislation provides for ticketing for possession that exceeds the personal limit by small amounts, or up to 14 years in prison for illegal distribution or sale.

Another central objective of Bill C-45 is the protection of young people (those under 18) from the harmful effects of cannabis. In furtherance of that objective, the bill imposes tough new penalties of up to 14 years in prison for giving or selling marijuana to minors. A new offence with a penalty of up to 14 years in prison will also be created for using a youth to commit a cannabis-related offence.

This approach is troubling because there is no empirical support for the proposition that the imposition of harsh penalties is effective in protecting youth. As discussed above, deterrence through sanctions and enforcement is ineffective in curbing drug use and drug-related illicit activity. While protection of young people is a legitimate and admirable objective, the imposition of harsher sentences for sale to those under the age of 18 could ultimately be counterproductive. It is a policy approach implemented in the absence of any insight into who is committing these offences. If marijuana is made available to those under the age of 18 primarily by 18 to 20 year olds, then the effect of the creation of these new offences is the heavy-handed penalization of low-level distributors who are barely out of youth themselves.

Bill C-46

Through Bill C-46, the Government of Canada has attempted to address some of the public safety concerns related to impaired driving which it predicts will emerge from the increased availability of marijuana due to its legalization. The bill also creates enhanced police powers respecting impaired driving due to alcohol consumption. Some of the bill’s provisions, however, appear to conflict with well-entrenched Charter principles which have long protected Canadians against unlawful government action.

Under s. 8 of the Charter, Canadians have a right to be secure from unreasonable search and seizure. Bill C-46 introduces many provisions directed at cracking down on alcohol-impaired drivers, including provisions which empower the police to automatically require roadside breath samples, even in the absence of reasonable suspicion that a driver has alcohol in her body, so long as the roadside stop was legal. These provisions will likely be challenged as unreasonable searches.

Under s. 7 of the Charter, Canadians have a right to full answer and defence. In the landmark Stinchcombe[15] decision, the Supreme Court held that this right requires the Crown to disclose all materials it its possession that are relevant to a potential defence. In addition to increasing penalties and the elimination of certain defences to impaired driving, Bill C-46 seeks to limits the Crown’s Stinchcombe disclosure obligations with respect to proving the accused’s blood alcohol concentration. Under this new regime, only material specified to be “scientifically relevant,” such as the results of calibration checks and any messages produced by the instrument used in testing must be disclosed. Records which at present are often requested by defence as part of disclosure in impaired driving cases, such as those relating to the maintenance of the testing instrument used to determine blood alcohol content, would not need to be disclosed to the defence. It goes without saying that the federal government cannot legislate away the Crown’s constitutional obligations under Stinchcombe. Yet, this is what it appears to be attempting.

Conclusion:

Without a doubt, the federal government’s proposed legislation respecting the legalization and regulation of cannabis is an improvement over the current prohibition regime. This, however, does not mean the legislation is entirely Charter compliant. In many ways, it adopts some of the features of the failed “war on drugs” approach and even introduces some measures that appear to conflict with well-established Charter principles. Many aspects of this regime may ultimately prove to be unconstitutional.

*This paper was first presented at the Ontario Bar Association’s 16th Annual Charter, “Constitutional, Civil Liberties and Human Rights Law” Conference on Monday, October 2, 2017.

[1] See W.A. Bogart’s paper submitted for this conference panel, at p. 67 (“The current approach to marijuana prohibition is not working.”).

[2] Although Stephen Harper was Prime Minister of Canada from 2006 to 2015, the relevant period for evaluating his “war on drugs” legacy is 2011–2015. The 2011 election resulted in a majority Conservative government which allowed Harper to pass substantial criminal reform legislation including Bill c-10, the Safe Streets and Communities Act (S.C. 2012, c. 1). Bill c-10 was an omnibus crime bill that amended several statutes including the Controlled Drugs and Substances Act, and introduced mandatory minimum sentences for drug crimes.

[3] Room R, Fischer B, Hall W, Lenton S, Reuter P (2010). “Cannabis Policy: Moving Beyond Stalemate. “”Oxford: Oxford University Press, cited in CAMH (October 2014). “Cannabis Policy Framework.” Online: < https://www.camh.ca/en/hospital/about_camh/influencing_public_policy/documents/camhcannabispolicyframework.pdf> (last accessed 25 September 2017).

[4] Vogel, Lauren. “Decriminalize drugs and use public health.” CMAJ. July 8, 2014. Vol. 186. №10.

[5] Chief Medical Officers of Health of Canada & Urban Public Health Network (26 September 2017). “Public Health Perspectives on Cannabis Policy and Regulation.” Online: http://uphn.ca/wp-content/uploads/2016/10/Chief-MOH-UPHN-Cannabis-Perspectives-Final-Sept-26-2016.pdf (last accessed 25 September 2017).

[6] Canadian Charter of Rights and Freedoms, s. 2, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[7] See e.g., R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R. v Boulton, 2016 ONSC 2979; R. v Duffus, 2017 ONSC 231; R. v. Serov, 2016 BCSC 2326; R. v. Tran, 2017 ONSC 651.

[8] Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134.

[9] Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, 1st Sess, 42nd Parl, 13 April 2017.

[10] Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, 1st Sess, 42nd Parl, 13 April 2017.

[11] Government of Canada, “A Framework for the Legalization and Regulation of Cannabis in Canada: The Final Report of the Task Force on Cannabis Legalization and Regulation.” Online: <http://healthycanadians.gc.ca/task-force-marijuana-groupe-etude/framework-cadre/alt/framework-cadre-eng.pdf>, pg. 2 [Task Force Report].

[12] Bill C-45, s. 7. See Harris, Kathleen, “Liberals table bills to legalize pot, clamp down on impaired driving,” CBC News. April 13, 2017. Online: http://www.cbc.ca/news/politics/marijuana-legal-bill-1.4069178 (last accessed 25 September 2017).

[13] Task Force Report, pg. 67.

[14] Dauvergne, Mia. “Trends in police-reported drug offences in Canada.” Statistics Canada. Online: < https://www.statcan.gc.ca/pub/85-002-x/2009002/article/10847-eng.htm#a5> (last accessed 25 September 2017).

[15] R. v. Stinchcombe, [1991] 3 S.C.R. 326.