Cannabis Prohibition in Canada

Canada’s original drug laws were rooted in bigotry and disproportionately affected Indigenous, Black, Asian, Latinx and vulnerable communities. In line with modern prohibition and restrictive drug legislation, these laws continue to cause harm today.

Canada’s first attempt at outlawing alcohol was significantly influenced by the anti-Chinese racism that had spread in British Columbia during construction for the Canadian Pacific Railway. After the influx of Chinese immigrants who settled near Vancouver, many residents felt displaced.

The 1908 Opium and Drug Act made it a crime for Canadians to manufacture, sell, or import opiates and cocaine exterior of medical usage. The regulation primarily impacted Chinese Canadians as they experienced the majority of arrests and legal trouble.

The ensuing panic about illegal drug use spread quickly east across America, and early media reports similar to the “war on drugs” began to emerge, creating a social stigma around drug users.

In 1922, first female magistrate and suffragist Emily Murphy wrote The Black Candle, which perfectly reflected the general Canadian public’s beliefs about race and drug use at that time. It also notably defined addiction as a legal issue instead of seeing it as a public health concern. By publishing this book, Murphy aimed to persuade the general public to start pushing for stricter drug-related laws– an outcome that would eventually come true.

The 1908 Act established the foundations for future drug legislation, with cannabis being classified as a scheduled substance in 1923 when all drugs were grouped under one act. There is no remains of any discussion or debate about this Act in Parliament.

The Opium and Narcotic Act was established in 1929, which created harsh consequences for those caught using, owning or selling illegal substances. This legislation would be the base of Canada’s drug policy until 1969.

The Narcotic Control Act of 1961 made the possession of drugs like cannabis punishable by law, and increased the penalties for drug trafficking. This act was influential in shaping youth culture in the 60s, as recreational drug use became more prevalent.

TIn addition to the Single Convention on Narcotic Drugs, which Canada was a signatory of and later strengthened with legislation related to psychotropic substances such as MDMA and LSD, the Act also implemented certain aspects.

However, although there were an increasing number of Canadians with clean records getting arrested for possession of these drugs, the government launching Le Dain Commission helped examine this useage leniently and ultimately prevent any change in punishing those who break the law by possessing them.

The Narcotic Control Act of 1996 was eventually repealed and replaced by the Controlled Drug and Substances Act in order to lessen penalties for those caught with cannabis. Although this act has undergone multiple amendments, it is still technically in place today.

Indigenous cannabis remains in federal vs provincial law limbo

The Cannabis Act was supposed to legalize weed for all of Canada, but it neglected to consider Indigenous sovereignty.

Several groups were angry that they had no input in the development stage, and even more disgusted to see that the legislation provided zero protections for Indigenous people’s rights when it came to cannabis.

The National Indigenous Medical Cannabis Association (NIMCA) issued a harsh criticism of Bill C-45, accusing the government of developing the legal framework without consideration for the unique situation of Indigenous people.

“The present Liberal government guaranteed to esteem our Inherent, treaty and land rights and to respect us with a nation-to-nation association,” peruses the proclamation. “None of the guarantees have been kept and by far most of all, there has been an aggregate insufficient conference with Indigenous societies on numerous issues including maryjane and the advancement of the proposed Bill C-45.” This does not show regard for our sway or make them true accomplices in this union.

Since Canada legalized recreational marijuana, police have raided multiple unlicensed dispensaries located on Indigenous treaty and unceded lands in various provinces.

Terry Parker and the first medical cannabis exception

In 2000, R. v. Parker changed cannabis prohibition in Canada as the first step towards federal legalization, which many people viewed as a monumental case .

The event that set this chain of events in motion was the arrest of medical consumer Terry Parker in 1996. A sufferer of epilepsy, Parker found that cannabis helped to ease his seizures and chose to grow his own plants. However, he was arrested during a police raid on his home and charged with cultivating and possessing cannabis under the now-defunct Narcotics Control Act.

Parker stoutly refused to stop growing and distributing his crop with other patients, which resulted in more charges after a second police raid on his home yielded even more plants. Parker argued in court that consuming cannabis was a required element in the management of his illness. The charges were dropped, and Parker was excused from the law.

The Crown appealed Parker’s case, but the Ontario Court of Appeal ruled in Parker’s favor. The decision reads: “Liberty includes the right to make decisions of fundamental personal importance, including the choice of medication to alleviate the effects of an illness with life-threatening consequences.”

If a criminal is deprived of access to medical care that they reasonably require for a condition threatening their life or health, this also deprives them of security.

The case inspired the federal government to draft the Marihuana Medical Access Regulations in 2001, which granted patients who met specific conditions a legal excuse that allowed them to use and possess cannabis. It would take another seventeen years for legislation on adult-use cannabis to come into place.

Much like the United States, cannabis prohibition in Canada has racist roots

Canada’s history of prohibiting drugs like cannabis is based on racist ideologies, and this prejudice continues today through unequal treatment in the justice system. People of color, especially Black, Indigenous, Asian, and Latinx folks are arrested more often for possessing small amounts of cannabis even though hard data regarding race-based crime is difficult to come by in Canada.

The Ontario Human Rights Commission’s 2020 study discovered that before cannabis was legalized, Black people in Toronto composed 34.4% of those accused of single-charge cannabis possession cases, though they only made up 8.8% of the population. Therefore, this suggests that Black people were 3.9 times more likely to be involved in a single-charge cannabis possession case than other racial minority groups – who were underrepresented in these kinds of cases..

In 2021, the International Journal of Drug Policy analyzed five major Canadian cities and found that with only one exception, Black and Indigenous people were more likely to be arrested for cannabis possession than their white counterparts.

The University of Toronto found this to be a common trend not only in Canada, but across the entire justice system. The authors discovered that police were twice as likely to stop black youth compared to their white counterparts. Even when taking criminal history and age into account, black people were 50% more likely than any other race to be taken processing post-arrest Black people are incarcerated at nearly four times the rate of their population size, while Indigenous peoples are jailed at nearly five times the rate.

Data from recent years follow similar trends to those found in older documents, such as the 1995 Report of the Commission on Systemic Racism in the Ontario Criminal Justice System and 1991’s Report on the Aboriginal Justice Inquiry of Manitoba. These reports uncovered patterns of discrimination against BIPOC individuals within Canada’s justice system.

Weed won but the work isn’t done: Mitigating the damage of prohibition

Many Canadians still suffer from the repercussions of cannabis prohibition, even though it ended in October 2018.An estimated 500,000 people were convicted of simple possession before 2018. In 2017, over half of all reported Controlled Drugs and Substances Act offences related to cannabis according to the Department of Justice–and 74% percentof those charges were for mere possession.

The Canadian government’s Cannabis Record Suspension program was released to much criticism due to its lack of reach and complexity. Instead of issuing a pardon, those wanting a suspension have to submit an application that will be reviewed by the Parole Board of Canada. The only people who are able to apply are those charged with simple possession.

As of October 2021, the Parole Board of Canada reported that only 484 applications had been received for a record suspension since the program’s launch in 2019. This is despite the government’s initial estimate that 10,000 Canadians would be eligible.

Although the damage caused by prohibition cannot be completely undone, advocacy groups like NORML Canada, Medical Cannabis of Canada, and Cannabis Amnesty are working to lessen the harm done by the thousands of criminal convictions for non-violent cannabis offences across the country.

Not only are advocacy groups pushing for legislative changes, but they’re also campaigning for the removal of the cannabis excise tax for medical consumers, the legalization of consumption lounges, and provincial rights to grow cannabis at home.

Did the Cannabis Act legalize weed for everyone?

Despite the fact that cannabis is legal in Canada, many consumers still have difficulty accessing and using it. For example, most provinces have regulations that enable landlords to ban or restrict consumption through smoking or vaping. This means only people who own their residences (i.e., wealthier consumers) are guaranteed the right amount of privacy to use cannabis at home how they want to consume it..

Most provinces have a smoking ban that prohibits or restricts smoking and vaping in public places, including sidewalks, streets, and local parks. As a result of this ban, people who are homeless, renters, and medical cannabis users (especially those with limited mobility) often face penalties for consuming the drug.

Even buying cannabis from a licensed retailer can come with complications. Unlike in stores that sell alcohol, where minors are permitted to enter with their parents while they shop, solo parents have no such option at dispensaries; only those of legal age are allowed inside. This forces them to seek out other options for purchasing weed products outside the legal market.

Homegrown cannabis is cheaper and, therefore, more affordable than buying it; however, as of now residents in Quebec and Manitoba are unable to legally grow the four plants at home that residents in other provinces are entitled to.

In September 2022, the Supreme Court heard the ongoing legal battle over home growing in Quebec and a decision has not yet been made. If the justices rule in favour of allowing home cultivation though, those who rent their homes may still be restricted from growing cannabis as provincial legislation allows landlords (and some condo associations) to ban it in rental units.

Advocacy is just as important now as it was pre-legalization

It’s been four years since legalization, and we mustn’t forget that it’ll take more than a few short years to reverse the effects of nearly one hundred years of prohibition. Systematic barriers are huge obstacles that can’t be easily or quickly demolished. That’s why Health Canada is reaching out for consumer engagement from anyone who has something to say about how they believe the Cannabis Act could be improved. If you want eaten areas like consumption lounges, medical access, pardons, and creating an equitable industry have a voice, now is your chance.