Legalization: A Homegrown Solution

Legalization: A Homegrown Solution 1. THE BENEFITS In 2002 the Report of the Senate Special Committee on Illegal Drugs recommended legalization and regulation of cannabis. According to the Oct.1, 2002 edition of the Sooke News Mirror (CN BC), "Scientific evidence overwhelmingly indicates that cannabis is substantially less harmful than alcohol and should be treated not as a criminal issue but as a social and public health issue," said Senator Nolin, who chaired the Senate Special Committee. Canadians should be allowed to "choose whether to consume or not in security." This report, according to Craig Jones, Ph.D., a Research Associate at Queen's Centre for Health Services and Policy Research, is "comprehensive in its command of the current international epidemiological, pharmacokinetic and sociological literature on drug use, thoroughly documented, honest about what we still do not know, clear in its mandate, decisive in its findings, and vastly informative. It replicates the conclusions of every other major study of its kind: that prohibition of cannabis is more harmful, both individually and socially, than the use of it and that the criminal prosecution of users ought to be abandoned." The Report of the Senate Special Committee on Illegal Drugs, like its predecessor, the LeDain Commission Study, currently sits on a shelf in a room somewhere in Ottawa. The fundamental idea behind the legalization of cannabis is to establish a public policy which "promotes and supports freedom for individuals and society as a whole ... based on the principles of autonomy and individual and societal responsibility" in order to provide the legal environment necessary for sale within the Canadian retail marketplace! Some will argue that such an idea is a 'pipedream' and 'a disaster in the making'; I contend that to continue along the path of prohibition only serves to further undermine the integrity, credibility and image of Canada while destroying countless lives needlessly. There are numerous reasons for ending cannabis prohibition; cost ranks right up there. Enforcement of cannabis prohibition is a reckless expense to the taxpayer in a time when the Canadian government should be looking at ways to impoverish organized crime in Canada, not enrich it. More of the same has already demonstrated itself to be an unmitigated failure, so why continue? 2. MIXED MESSAGES There is a concern regarding the kind of message that legalization of cannabis would send to youth. Yet, what about the kind of messages being sent to youth via the implementation of "forbidden fruit" policies that don't work. Reefer Madness-type messages that are more B-rated entertainment than message are a no-brainer. Cannabis prohibition has consistently failed to keep cannabis from falling into the hands of youth, whether on school property or not. This is no secret! Nor will it change as long as prohibition exists. Superficial justifications for a perpetual make work project complete with ever-increasing budgetary allotments is hardly sufficient grounds to bullshit youth; or anyone else, for that matter. 3. PROHIBITION: an accident waiting to happen If one were to consider how effective the cannabis prohibition strategy has been since 1966, the only obvious and rational conclusion to be drawn is that the prohibition of cannabis has been and continues to be a costly and dismal pretence that puts all at risk. On December of 2004 in Burlington, Ontario a "marijuana" grow operation was cited as the cause of a house fire in which three people were injured. Who knows where the next faulty grow-operation or oil extraction lab will crop up or how many more will be injured, or perhaps killed, before Parliament assume responsibility for situations that its' flawed legislation creates. The one thing that should be clearly understood is that DEMAND REQUIRES SUPPLY! Had cannabis been available at a Cannabis Control Outlet obtained from Authorized Growspaces this tragedy probably would not have occurred, as there would be little demand for questionable contraband from illegal sources. The establishment of Authorized Growspaces would virtually eliminate any need for clandestine cannabis production in 'residential' areas while providing a cross-section of highly developed strains that could be accessed by clinics for medicinal needs, clubs, centres and outlets for personal use, and institutions for research purposes. Most importantly, an industry where licenses, taxes, regulations, and quality control standards would be in place to ensure an enhanced standard. 4. WHAT'S WRONG WITH THIS PICTURE? While the process of relinquishing what could amount to potentially billions in tax and licensing revenues to the coffers of organised crime continues, tens of thousands of Canadians are left with criminal records and the taxpayer is required to foot the escalating costs of maintaining both cannabis prohibition and those incarcerated. Another much less discussed burden on the taxpayer is the amount of settlements paid out annually to those whom have been the victim of enforcement agents' errors. It would probably stagger the imagination if all the costs incurred to enforce cannabis prohibition -in Canada-, from its' inception were added up! And to what end has this grand venture, this noble intent, come to; higher-grade cannabis is more available now then its' ever been. Praise the Lord ... but I still say END PROHIBITION NOW! 5. PROHIBITION: plunder by design The proponents of cannabis prohibition claim cannabis poses numerous health risks, yet whenever pressed to state the sources of their "findings", they cannot. When they do, they cite from sources discredited and discarded decades ago; sources with no credible scientific basis or rationale application. Bunk science, if you will. The majority of prohibitionists are woefully and wilfully ignorant of the vast amount of accessible and credible scientific documentation regarding cannabis that is available. Still, various agency heads within the government just don't get it, they never consider the consequences of prohibition or it's agenda. Or do they? Could it be that leading proponents of cannabis prohibition have vested interests which would be threatened by the implementation of meaningful policy change aimed at seriously keeping cannabis out of the hands of youth while providing environments conducive to research, medicinal needs and, personal use? I think so! Health Canada's idea of a medicinal cannabis policy, MMAR (Marihuana Medical Access Regulations), is a clear-cut example of a deliberately intended obstacle course meant to frustrate attempts of the afflicted from obtaining legal cannabis. This is a practice one might expect in a Dachau-like environment, not in a supposedly compassionate democracy. People have died while waiting for exemptions while the Canadian government attempts to justify the unjustifiable. The medicinal use - possession and production - of cannabis has been recognized BY THE COURTS and ORDERED TO BE WRITTEN INTO THE CDSA via the Parker ruling. TO THIS DAY THAT ORDER HAS NEVER BEEN FULLY HONOURED! When one considers what one can buy off the shelf in any pharmacy or convenience store anywhere in Canada that can be abused and/or is fatal, the prohibition of cannabis, whether it be on the medicinal or recreational front, would be clearly laughable if not for the legal consequence. 6. IN THE BEGINNING: nurturing racism Cannabis became illegal during the 1920's (1923 to be exact) and for the first 14 years or so there wasn't a single arrest! Aside from, but not discounting, the manner in which the proposed legislation was passed into law, the immediate question that comes to mind is WHY was cannabis made illegal at all? It was not a national security threat, nor was it considered -at the time- a health issue. It was, however, swept up in the Temperance movement that was fashionable at the time. Ultimately cannabis became a component in fashioning expedient racial slanders against any that basically did not meet the White Anglo Saxon Protestant profile. In Canada Emily Murphy wrote a series of inflammatory fictions as Janie Canuk for MacLean's; she was the major force motivating the government of the days' action. In his 1997 judgment of R. v. Clay, Justice J. F. McCart cited the origins of the law governing marijuana: "Although there was no evidence of a problem of marijuana use in Canada in 1923, its inclusion in the Opium and Drug Act may have been influenced by the writings of Emily Murphy, a crusading Edmonton, Alberta magistrate. In 1920, she published a series of sensational and racist articles in Maclean's magazine on the horrible effects of drug use and the deliberate debauching of the young by evil, often alien, traffickers. The articles were later expanded into a book, The Black Candle, published in 1922." Justice McCart gave a sample of her prose that led, a year after the publication of her book, to the inclusion of marijuana under the same strictures as opium: "Persons using this narcotic [marijuana] smoke the dried leaves of the plant, which has the effect of driving them completely insane. The addict loses all sense of moral responsibility. Addicts to this drug, while under its influence, are immune to pain, and could be injured without having any realization of their condition. 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 without, as said before, any sense of moral responsibility. ... If this drug is indulged in to any great extent, it ends in the untimely death of its addict." Judge McCart then added: "There was absolutely no truth to any of those wild and outlandish claims. It was in this climate of irrational fear that the criminal sanctions against marijuana were enacted." 7. CANADA: a sovereign nation or corporate annex Since that time there has been two commissioned studies, the LeDain Commission Report and Senator Nolin's Commissioned Study of 2002. Both favoured ending cannabis prohibition, the later even presented viable alternatives. Both were summarily rejected. WHY? Apparently, any proactive cannabis policy reform in Canada would have an adverse effect on U.S efforts at eradication and enforcement, or so we are told. That's not to say, however, that there aren't Canadian interests that are equally opposed to any policy reform unless those reforms were more punitive. Clearly, that climate of irrational fear based on wild and outlandish claims that Justice McCart spoke of is alive and thriving in 2005. Another excuse bandied about for some time now is the notion of treaty obligations preventing legalization. Think about it, countries back out of, or contravene treaties all the time with little or no fallout. The U.S is a clear example of this. Many may find this astonishing but the simple truth is Canadian legislators clearly fear American reprisal. In 2004 the government initiated plans to "decriminalize" cannabis but before that paper would be presented to Parliament it was presented to the Americans for approval. They rejected it out of hand. The consequence of this is that the policy paper never made it to the floor of Parliament. So much for Canadian sovereignty, eh! One of the concerns regarding any Canadian decision to soften its cannabis laws is that Canadian cannabis will start freely flowing across the border into America. In a post-911 environment, with heightened border security, this argument is a no-brainer of the red-herring variety. International distribution is clearly not the intent. Nevertheless it amply demonstrates the American way of doing business. In spite of all the blubber about decency, family values, etc, American policy clearly illustrates its' "priorities". The ramifications of this are felt daily within all aspects of Canadian society. If, as Canada moves into the 21st century, this country is to be seen as anything more than answerable to American administrative and corporate dictates, Canadian legislators should look within Canada to find solutions. We don't have to ask America's permission to do so! 8. MARIJUANA LAWS INTERFERE WITH LIBERTY On December 13, 2000 the Calgary Herald published a version of an article by Belleville, Ontario lawyer and a columnist for Canadian Lawyer magazine, Karen Selick, entitled, "Marijuana laws interfere with liberty." Here is that version: "Courts in Alberta and Ontario have recently made headlines by striking down portions of federal law that prohibit the cultivating or use of marijuana for medical purposes. In Calgary on Monday, Justice Darlene Acton of Alberta's Court of Queen's Bench said it was absurd for the federal government to exempt medicinal users when there is no legal supply of marijuana available. In so ruling, she stayed charges against Calgarian Grant Krieger for growing and cultivating cannabis. She hoped that within a year, the federal government would have addressed these legal inconsistencies. The Ontario Court of Appeal also made headlines when it decided recently that epileptic Terry Parker has a constitutional right to use marijuana as medicine. What most news reports barely mentioned was that on the same day it released its decision in R v. Parker, the court released another decision, R. v. Clay, with a dismayingly different outcome. The court held that the ban on pot violated the Charter guarantees of liberty and security of the person for Mr. Parker, a medical marijuana user, but not for Mr. Clay, a recreational user. Less than two months earlier, the B.C. Court of Appeal had reached a similar conclusion regarding recreational users in the case R. V. Malmo-Levine. I have long been puzzled by the peculiar interpretation that Canadian courts have placed on the word "liberty" in Section 7 of the Charter of Rights and Freedoms. Among other things, they have said, "(liberty does not extend) to an unconstrained right to transact business whenever one wishes." They've said, "There is no Charter-protected right to freedom of contract." And again: "...the rights protected by Section 7...do not include a right to engage in a particular type of professional activity...." Why the devil not? Here's precisely what Section 7 of the Charter says: "Everyone has the right to life, liberty and security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." The word "liberty" stands naked and unadorned. Qualifiers or exceptions do not embellish it. There's no footnote saying only epileptics or cancer patients are entitled to it. It doesn't say we have liberty in our homes but not in our businesses. It doesn't say we have the liberty of making wise decisions but not foolish ones. It just says liberty - plain vanilla liberty. Why is that word so hard for our politicians and judges to understand? Christopher Clay argued that the Charter right to liberty must surely include the right to intoxicate oneself with marijuana in the privacy of one's own home. Sounds logical to me. However, this argument drove him smack into the brick wall of previous Supreme Court of Canada judgements. According to the SCOC, "In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance." Elsewhere, the SCOC has said, "The Charter does not protect against insignificant or "trivial" limitations of rights" The conclusions drawn by the Ontario and B.C. Courts of Appeal after considering these passages were that the non-medicinal use of marijuana is not a decision of fundamental importance, that the criminalisation of pot for recreational purposes is an insignificant or trivial limitation on liberty, and that toking up is not the sort of thing the Charter guarantee of liberty was designed to protect. These conclusions are all highly subjective and therefore quite debatable. Maybe they'll be overturned on some future appeal to the Supreme Court. However, I'm not optimistic. Not much can be expected from jurists whose mind-set is that the constitution guarantees us liberty for those rare, momentous decisions in our lives, but not for the day-to-day small stuff. Does this mean that if the state decides to prescribe what time we must rise in the morning, what colour our clothing must be and how many times we must chew our food before we swallow, we're still living in a free country? How many trivial violations of liberty can they heap on us before we're forced to admit that this is stifling authoritarianism, not freedom? Besides, what's the logic of having different rules for decisions of fundamental importance and decisions of trivial importance? If citizens are so stupid or irresponsible that we can't handle the little stuff without direction from the state, where will we suddenly acquire the wisdom and character to handle the big stuff? Both courts attempted to do a balancing act, weighing the harm to the recreational pot user of keeping marijuana illegal against the harm to "society" of legalizing it. But they omitted one item from the equation - the harm a society suffers when its members become so used to having the minutiae of their lives governed for them that they consider it right and normal. The government must now decide whether to re-enact legislation outlawing marijuana but exempting medicinal use, or do nothing and effectively legalize pot. Although I've never touched the stuff in my life and don't plan to even if they legalize it, I'm voting for option two. Every little bit of liberty helps." 9. FREEDOM OF CHOICE: relinquishing control The cornerstone of market economy is supposedly freedom of choice, yet here is a clear-cut instance of how, when freedom of choice gets legislatively circumvented, legitimate free enterprise is undermined and, a void in the marketplace is created. Because no void can exist in any market economy, once government relinquishes control it takes no imagination to see which forces within society step up to meet consumer demand. Legalization, on the other hand, would become the catalyst for job creation in a myriad of occupations that serve as the bedrock of prosperous communities. Ian Mulgrew's Bud Inc.: Inside Canada's Marajuana Industry estimates that the wholesale cannabis industry is worth $5.7 billion dollars (Cdn) and notes (on page 2) that the Canadian cattle industry compares in dollar value at $5. 2 billion. The high-end retail pricing of the cannabis industry is assumed to run upwards of $20 billion annually. 10. THE PROBLEM OF PROHIBITION The legalization of cannabis has, at its' most fundamental purpose, the betterment of the community in mind. Not only would tens of thousands be spared the insult and indignity of incarceration and/or criminal records, medicinal users would cease from having their medical conditions exasperated because Health Canada has them jumping thru so many "requirements" that compliance becomes virtually impossible. The toll that that compliance takes, just in the stress it creates, is immeasurable. Every year billions of taxpayer dollars are spent on enforcement and eradication efforts while organized crime continues to reap profits providing cannabis to whomever wants it. One would think that in a post-911 environment government would have rethought its priorities and rather then allowing organized crime to continue profiting, would move toward a sensible regulation and taxation scheme for the benefit of all Canadians. At the time of this writing, that has not been the case. Politically, cannabis remains a "hot potato" issue. Government cannot take all the heat though; after all, government is but the voice the people, right. Many cannabis users are themselves at fault by consistently failing, for at least the last four decades, to stand up en masse to this flawed policy. It seems that many would rather remain anonymous and deal with any personal legal consequences, when and if they occur. 11. DO AS I SAY... The government's agenda, which was recently upheld in the highest court of the land, clearly demonstrates not only the degree of hypocrisy, corruption, and deceit that people in esteemed positions are capable of but also, how entrenched that prohibition actually is. On Dec. 23, 2003 the Supreme Court of Canada rendered a decision in Malmo-Levine, Caine and Clay Vs The Queen. John W. Conroy Q.C., Counsel to the Appellant Caine, writes, in Cannabis Health, "what in my opinion, is not only the most disappointing judgement of the Court that I have read in a long time, but the most political and the most inconsistent with some of its prior decisions..." "In all of the court's prior interpretations of s.7 and it's relationship to s. 1. the test has been enunciated to be one of "proportionality". This time the Court decided that the threshold would be too low, when the onus is on the citizen with few resources, and when government is the party in possession of the evidence upon which it relies to assert potential harm and justify restricting our liberties. In effect, they 'changed the goalposts', on us by raising the standard to the degree of "gross disproportionality". Implicit in the decision of the majority is that they too found the law to be "disproportionate" like the minority, but decided that the test was now higher 6 to 3. Under the law that existed at the time the case was started in 1993, and at the time of the argument in the Supreme Court of Canada in 2003, some ten years later, it should have been 9 to 0 for the free citizens." 12. AN AFTERTHOUGHT Prohibition of cannabis undermines both the individual and democracy; that is most apparent when one looks at the United States. The enforcement of cannabis prohibition in the United States of America can get you killed. Judicial refusal to recognize any defence against cannabis offences and unduly harsh prison terms are the norm. Medicinal usage is, for the most part, disregarded. Confiscation, whether authorized or not, is also the norm. Convicted cannabis offenders are routinely deprived of education and employment opportunities. Cannabis offenders are exposed not only to hard-core criminal elements but also to horrendous communicable disease. The consequence of cannabis prohibition in the U.S. has been the creation of a class of individual that is 'without privilege'. Is that what is wanted in Canada? Wayne Phillips June 21, 2005 edited 23/06/2005, 12/05/2006 Wayne Phillips is an artist/activist, member of the Church of the Universe, and Speakers Bureau Co-ordinator for Law Enforcement Against Prohibition (LEAP) http://www.leap.cc residing in Hamilton, Ontario
Permission to Reprint: This article is licensed under a modified Creative Commons Attribution license.
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