December 2012 NORML Canada Newsletter

Greetings cannabis community,

We are nearing the end of 2012, and as it draws to a close, we wish to take a moment to reflect on the success many activists have had this year. This year cannabis has emerged as a bona fide political issue, and one, which politicians no longer feel the need to quickly back away from. However, while great strides were made in some areas, in others prohibition was reaffirmed as the cannabis policy of choice. That said, 2012 was still a landmark year for the reformation of cannabis laws and one which has renewed the passion of activists around the world.

This past January, the Liberal Party of Canada passed a resolution to make cannabis regulation part of the party’s next federal election platform. Though the resolution does not guarantee cannabis regulation will actually form part of the next Liberal Party of Canada platform, it was precedent setting for a major Canadian political party to support cannabis regulation so openly. As the Liberal Party of Canada competes for a leader in 2013, it will be interesting to see to what extent leadership hopefuls are willing to engage with the cannabis regulation discourse.

In British Columbia, two groups have been successful in their efforts to educate the public in hopes of change in the future. Sensible BC and Stop the Violence BC both draw attention to the harms of cannabis prohibition, and offer policy alternatives. Both campaigns have garnered great support both inside, and outside the province, and it will be interesting to watch these campaigns grow in 2013.

In November, two US States passed ballot initiatives instructing their lawmakers to create a regulated cannabis industry within each State. Colorado and Washington State will soon allow adults to purchase and consume limited amounts of cannabis. Additionally, a regulated system for the production, processing and sale of cannabis will be created.

While two states have taken a more forward moving approach, the Canadian government has moved in a less positive direction by passing legislation to increase the penalties for many cannabis offences. Bill C-10, passed into law earlier this year, and came into force in November. These provisions create mandatory minimum sentences for many cannabis offences, and further deny many cannabis offenders the chance of serving their sentence outside of a correctional institution. Please see our November Newsletter for more information.

There has also been action in the courts this year, as two key cases worked their way through the system. In May, the Ontario Court of Appeal heard R v Mernagh. In 2011 Mr. Mernagh and his lawyer, NORML Canada’s Ontario Regional Director Mr. Lewin, successfully persuaded a Superior Court judge to strike down The Marihuana Medical Access Regulations for being unconstitutional. The Court of Appeal is yet to release a decision. However, we are hopeful the efforts of Mernagh and Lewin will, once again, bring success and an incremental improvement in the Canadian medical cannabis program.

In another case, R v Smith, a British Columbian judge struck the word “dried” from the Marijuana Medical Access Regulations. Mr. Smith and his lawyer Mr. Tousaw successfully argued the restriction of cannabis to its dried form was arbitrary, as it denied medical patients the ability to work with cannabis to make more effective medicines. Unfortunately, despite his success, Mr Smith still risks criminal penalty for distributing cannabis medicines to patients in British Columbia.

We hope the successes of 2012 are encouraging, as this year demonstrates change is possible, and better cannabis laws can be a reality. However, there is still a lot of work still to be done in order for us to move past prohibition, and implement more sensible policies regarding cannabis.

In this month’s newsletter you will find:

The Seeds of Change: Successful change in cannabis laws caused by change in activists’ approach

On November 6, 2012 voters in both Colorado and Washington States made history by passing voter’s initiatives to give up prohibition and regulate the sale of cannabis. As a result, state lawmakers will create a regulated cannabis industry allowing individuals over 21 years of age to purchase, possess and use cannabis in a manner similar to alcohol.

The success in both states is due, in part, to a striking paradigm shift amongst cannabis activists. Both campaigns focused on issues such as bolstering state economies, reducing access to cannabis for minors and fighting organized crime. The latter objective was said to be achieved through a reduction in profits for criminal organizations combined with extra law enforcement resources to target such groups, which were previously spent enforcing cannabis prohibition.

Cannabis users no longer have to fear criminal prosecution. Consumers are now able to access their cannabis in a more safe and secure way, without being forced to immerse themselves in criminal activity, and put themselves in danger. Even the word “legalization” was replaced in most instances with the word “regulation.” A new type of cannabis reform campaign emerged: one designed to win over the non-cannabis using portion of the electorate.

Neither Initiative 502 nor Amendment 64 encouraged or endorsed cannabis use. Focus was on the failure of cannabis prohibition. If one were to glance quickly at http://www.newapproachwa.org/ or http://www.regulatemarijuana.org/ it might not even be initially apparent the website and related campaigns deal with cannabis at all. Supporters in both States were successful in distancing their campaigns from the stigma of cannabis use, which has been detrimental to many previous cannabis reform campaigns.

Finally, from the perspective of those pressing for cannabis reform elsewhere, one ought to recognize that both Colorado and Washington State will employ interim decriminalization while the regulations regarding cannabis are drafted and implemented. The decriminalization period is explicit in Initiative 502 and will begin on December 6, 2012. Decriminalization is not explicit in Amendment 64, but it is expected possession of up to 1-ounce will be decriminalized when the Governor ratifies the amendment in mid-December. In both cases, decriminalization and regulation are used together. This is a change from previous cannabis policy rhetoric where decriminalization and regulation were seen as mutually exclusive policy results.

Colorado State – Amendment 64

Amendment 64 proposes to regulate cannabis in a manner similar to alcohol. The Amendment mandates lawmakers to create a regulated cannabis market by July 2013. The Amendment will create a regulated market for the production, sale and consumption of cannabis for adults over 21 years of age. These same individuals will be permitted to legally grow up to six cannabis plants, provided certain security requirements are met. Furthermore, Amendment 64 explicitly regulates the production and sale of industrial hemp. The Amendment does not change laws regarding driving, anti-drug policies in the workplace or the medical marijuana regime.

The Amendment will allow the creation of a regulated cannabis industry replete with commercial production, processing, and storage and retail facilities. State lawmakers are now tasked with drafting a comprehensive regulation and taxation regime, expected to be completed and brought into effect in July 2013. There is not a lot of guidance in the Amendment as to exactly what Colorado’s regulated cannabis industry will look like or how the regulations will operate. However, Amendment 64 requires that the sales tax on non-medical cannabis not exceed 15%. Furthermore, the first $40 million of revenue generated by Amendment 64 has been earmarked for public education in the State.

Key to the success of the Amendment was the support of non-traditional cannabis supporters. This was achieved by focusing on cannabis regulation as a tool to reduce cannabis use amongst youth. While it may seem counter intuitive, proponents of Amendment 64 were able to convince many Colorado voters to vote yes on Amendment 64 for the purpose of making cannabis more difficult for youth to access. This is a somewhat novel plan for cannabis activism, though the research demonstrating teen use rates decline as cannabis illegality is reduced.

Furthermore, supporters demonstrated regulation would keep money out of the hands of organized crime, allowing it to be spent on public initiatives such as building schools. Finally, the support is focused on the massive economic benefit the State will receive on account of increased tax revenue and decreased law enforcement and penal spending.

Washington State – Initiative 502

Similar to Amendment 64, Washington State’s Initiative 502 will also function to create a regulated cannabis industry. The initiative enables the State Liquor Control Board to draft a regulatory scheme allowing individuals over the age of 21 to purchase and possess up to 1 ounce of dried cannabis, 16 ounces of cannabis infused edibles and 72 ounces of cannabis infused liquids such as lotions. The act also removes criminal penalties for cannabis paraphernalia, which had been illegal in the state. Although it is expected to take up to a year for the regulations to be implemented, the de-criminalization portions of the Initiative are to take effect on December 6, 2012.

Unlike Colorado, Washington State will not let individuals produce their own cannabis. All cannabis sold in the state must be produced, stored and sold at state-run stores, similar to provincial liquor stores seen in many Canadian provinces. This is said to reduce the chance of “leakage” of regulated cannabis into the black market of neighboring states where cannabis is still prohibited. Unfortunately, this means those who choose to produce even a few cannabis plants will be breaking the State’s criminal law.

Finally, and perhaps most troubling, Initiative 502 includes an amendment to State Driving laws. The new law regarding driving under the influence of THC will make it an offence to drive while having a blood THC concentration over 5nano-grams/ml. This is a “per say” DUI, similar to rules for alcohol, so actual impairment is not relevant. This will require heavy cannabis users, specifically medical patients, to abstain from ingesting cannabis for extended periods of time if they wish to drive. Initiative 502’s research suggests this will be at least four hours for smoked cannabis. However, for non-smoked cannabis such as edibles or salves, the duration could be much longer. Though this is problematic, Initiative 502 ear-marks annual funding to study the effects of THC on driving, hopefully to create a more equitable DUI standard for cannabis.

Conflict with Federal Law

The success in each State comes with a large caveat: cannabis is still a Schedule-1 controlled substance. Since federal laws trump state laws, someone legally participating in their State’s regulated cannabis industry could face federal prosecution. Furthermore, the individual would be unable to point out they were participating in a legal activity where they live, as a defence to allegations of being an illegal drug user, producer or dealer.

Unfortunately, the federal Department of Justice is yet to comment on its reaction to the ballot initiatives in Colorado and Washington State. Many fear federal prosecution will target the new regulated cannabis markets, in a way similar to how the Department of Justice has prosecuted state-legal medical marijuana dispensaries. While many are hopeful they will respect the wishes of State voters, this is far from certain.

Going Forward: The Impact of Amendment 64 and Initiative 502

In the wake of the success in Colorado and Washington State, other States are seeing an opportunity to reform their cannabis policies. Lawmakers in Rhode Island and Maine are set to introduce bills to regulate cannabis. Iowa has also suggested change is in the works, however, the proposed Bill would simply decriminalize possession with no explicit plans for regulation.

Elsewhere, activists should view the successful ballot initiatives as a reminder that reforming cannabis laws is an achievable goal. However, the initiatives also demonstrate a new kind of activism. Instead of antagonizing lawmakers and law enforcement for continuing prohibition, activists worked with lawmakers and law enforcement to draft working regulatory proposals. These proposals were more palatable to the average voter in each state, particularly parents and non-cannabis users.

While the change will not be for everyone, for some, this could present a new way to pursue better cannabis laws.

Cannabis Eradication and the Media: How the media supports Canada’s Annual Eradication Expenditures

Each fall, Canadian law enforcement agencies wage war on cannabis production. This practice costs taxpayers millions of dollars, but the benefits to taxpayers are questionable. In many cases, fall eradication efforts are massive law enforcement projects, engaging multiple law enforcement agencies at the municipal, provincial and federal levels. These coalitions include not only traditional policing agencies, but also the Canadian Border Services and Department of National Defence. In addition to mobilizing large numbers of law enforcement officers, these coalitions often employ state of the art technology such as helicopter mounted infrared sensors.

Law enforcement justifies such expensive eradication efforts by suggesting that each plant eradicated, results in an equivalent reduction in cannabis supply for the Canadian market. For example, the RCMP justifies its recent eradication efforts by stating, unequivocally, that the bust of some 6,000 cannabis plants will result in less cannabis being available for sale in local communities, and therefore, reduced access for youths and diminished profits for organized crime.

While such justifications appease common sense, a second assessment reveals the flawed reasoning. No information is provided to demonstrate eradicating cannabis plants actually results in cannabis being less available in Canadian communities, or that any decrease in supply is not offset by an increase in price to maintain the profits for those who produce and sell cannabis. Although it is possible to tally the cost of annual eradication efforts, the benefits of such projects are uncertain.

Despite unclear benefits, this practice continues year-after-year. As stated in the Canadian Senate Report on Cannabis: it is time to recognize what is patently obvious: our policies [on cannabis] have been ineffective, because they are poor policies.”

The Media’s Blind Eye towards Eradication “Efforts”

One reason this practice persists is the media rarely challenges the status quo by questioning both the costs and benefits of cannabis eradication. Law enforcement agencies are often given a free ride by Canadian journalists, who print stories consisting of little more than quotes from official news releases and photographs of law enforcement officials in front of vast piles of felled cannabis plants. These reports focus on the number of plants eradicated and the inflated “street value” those plants are said to be worth. Such news stories often assume a link to organized crime and make moral judgments against those who produce cannabis. Furthermore, the eradication efforts are praised for keeping vast quantities of cannabis out of the black market, but the actual impact on cannabis supply is not evaluated.

Many reports are no more than re-publications of police press releases regarding recent arrests, containing little more than a name, a location and a rough description of the offence. While this may serve some “reporting” function within the local community, this hardly counts as “journalism” as the author does more than republish information disseminated by law enforcement. This vacates the function of independent journalism, which is meant to assess and critique the statements of government officials, rather than simply repeating official statements without comment.

The result is a symbiotic relationship, whereby law enforcement agencies spend millions each year to eradicate cannabis crops, and the practice is supported by media reports, which highlight the “successes” of eradication without evaluating cost of efficacy.

Daisy Eradication in Lethbridge

A bust this summer in Lethbridge, Alberta is illustrative of this problem. In July, Alberta’s top drug enforcement team, ALERT CFSEU was lauded in the media for shutting down a large-scale cannabis grow op, and uprooting 1,624 cannabis plants. Reports at the time praised local law enforcement for shutting down such a large production operation and removing $800,000.00 from the hands of organized crime.

In November, many media outlets had a new story: the 1,624 uprooted cannabis plants turned out to be late-flowering daisies. These stories attempted to justify the decision to spend taxpayer dollars to eradicate 1,624 daisies. The Calgary Sun quoted one officer as saying: the decision was made on the “best information available at the time” in the interest of public safety. Nowhere in the article does the author hold local law enforcement accountable for wasting time and money on this eradication effort, nor does the author ever investigate the price tag of the operation. The author simply turned a blind eye, and overlooked this important piece of information, instead, justifying the wasteful actions of ALERT CFSEU.

Furthermore, and perhaps most shockingly, the article makes the massive error made by local law enforcement seem like a joke. The article makes passing reference to how this bust has ruined the reputation of the man wrongly accused of being a large-scale drug producer, but then concludes the article with a serious of jokes to make light of the situation. Furthermore, no reference was made as to the amount of public funds wasted by both municipal and provincial law enforcement officials in order to uproot and destroy 1,624 daisies.

This is but one example of the wasted effort that is Canada’s cannabis eradication, and how complicit journalists support it. To compound the issue, even when the problems of cannabis eradication are exposed, it seems journalists let law enforcement off easy. This is unacceptable.

What can you do?

The best way to help stop the annual eradication campaigns is to let your voice be heard. Contact your local government officials: your M.P, M.P.P, City Counselor or local Police Chief, and tell them you do not approve of wasting millions of dollars each year to eradicate outdoor cannabis. Furthermore, write letters to the editor of your local newspapers telling them to cease supporting eradication efforts by re-publishing official news releases. Encourage responsible journalism, which investigates the cost of cannabis eradication and objectively evaluates the stated benefit of eradication programs. Fair coverage may result in more accurate reporting, and fewer occasions of media overlooking what is truly important.

Quebec Lawyers Challenge Minimum Mandatory Sentencing

The Barreau du Quebec (Quebec Bar Association) have filed a motion in the Quebec Superior Court challenging the constitutionality of the Harper government’s new mandatory minimum sentences. The Barreau du Quebec say the new laws do not contribute to the protection of citizens, they undermine the independence of the courts and are an unconstitutional interference with the judicial branch by the executive branch. The Barreau du Quebec’s mandate is to protect the public.

Please stay tuned for our next newsletter where we will take a closer look at Barreau du Quebec’s challenge.