Greetings Cannabis Law Reform Community,
This month we are focusing on a few law reform campaigns currently working to change cannabis policies. For decades, it seems substantial reform of cannabis law has been just around the corner. Government reports blast cannabis prohibition for being ineffective; Policy makers, judges, law enforcement officials and celebrities all seem to agree the levy is about to break, yet, to date, no such change has materialized.
In a few cases, such as two American States and a few international jurisdictions, reform has successfully curtailed prohibition in favour of decriminalization or regulation of cannabis. In other jurisdictions, reformers have successfully ended prohibition, and gained reasonable access for medical cannabis users. Yet in Canada, we have not seen such progress.
At NORML Canada, we would like to see more active reform campaigns, both greater in number and greater in result. We feel, through concentrated political, legal and social action the change, which has been right around the corner for decades, may actually be realized.
To help us get there, we are taking a look at some of the reform movements happening today:
- The Sensible BC Society: working towards a referendum to end cannabis prohibition in the Province of British Columbia
- Legal Reform in Latin America: a growing number of national leaders are unwilling to suffer the costs of America’s war on drugs
- R v Mernagh: a set back in the legal challenge to increase access to medical cannabis
The Sensible BC Society: Moving Cannabis Policy Forward
Cannabis policy reform in British Columbia is ongoing. The Sensible BC Society, a provincial, non-profit society run by Dana Larsen, and our Kirk Tousaw, is among the groups leading the reform effort. Sensible BC has proposed a provincial initiative, aiming to stop provincial law enforcement from enforcing or investigating offenses of simple cannabis possession. This decriminalization would act a starting point. Sensible BC’s final goal is to create a legal, regulated cannabis industry in the Province.
The Sensible BC proposal is to enact the Sensible Policing Act. The Act has two main parts: the decriminalization of cannabis possession, and steps to move towards the legalization and regulation of cannabis.
Step 1: Decriminalization of Cannabis Possession for Adults
In British Columbia, the BC Police Act legislatively controls all policing. The Sensible Policing Act is an amendment to the BC Police Act, which prevents provincial law enforcement from expending resources to enforce the criminal prohibition against possession of cannabis. Specifically, the Sensible Policing Act will direct law enforcement to no longer waste resources, including member time, on investigations, searches, seizures, citations, arrests or detentions related solely to simple possession of cannabis.
In the case of minors caught possessing cannabis, Sensible BC feels they should be treated comparably to minors caught with alcohol. The Sensible Policing Act will also amend the BC Liquor Control Act to enforce under-age possession of cannabis in the same manner as alcohol, making the penalties identical. .
The Sensible Policing Act will have the effect of decriminalizing cannabis possession for adults in BC. The current federal legislation will still remain in force; it simply will not be enforced. Federal prohibitions on trafficking, producing, importing and exporting cannabis will still be enforced in British Columbia.
Step 2: Work Towards a Legal, Regulated Cannabis Regime in BC
The Sensible Policing Act will also call upon the Federal Government to remove cannabis from the Controlled Drugs and Substances Act. In the alternative, the Sensible Policing Act requests the Province of British Columbia be issued a “Section 56” exemption by the Health Minister. This would allow the Province to create and tax a regulated cannabis economy in a manner similar to alcohol.
The Sensible Policing Act also mandates the Government of British Columbia to launch a public commission into the regulation of cannabis. The Commission will be endowed with the power to hold hearings to study current and future cannabis use in the Province. The Commission would then make recommendations to the Government regarding rules, regulations and requirements, which ought to be included in a cannabis regulatory scheme.
How it Works & How you Can Help
The Sensible BC Society is pursing its reform through a ballot initiative. BC law allows individuals and organizations to have issues put on the ballot in provincial elections. However, the requirements to do so are difficult to meet. The Sensible BC Society must collect the signatures of 10% of the voters in each and every oneof BC’s 85 electoral districts. These signatures must be collected in a single 90-day period. Sensible BC will be collecting signatures in September and October 2013.
If successful, the Sensible BC Society ballot initiative will be included on BC’s 2014 electoral ballot. This will create a referendum in the Province of BC in which individuals will be able to vote for, or against calling on the BC Government to pass the Sensible Policing Act. Essentially, this is will be a referendum on the decriminalization and subsequent regulation of cannabis. This is a vote to end prohibition in BC!
If you are interested in helping, you can sign up to be a volunteer. Volunteers will be essential in meeting the requirement of obtaining over 400,000 signatures in 90-days. For those unable to help, at minimum make sure you are registered to vote and sign your name in support of the campaign this fall.
If you live outside of BC, you can help by garnering support for the campaign. Unfortunately, other Provinces currently do not allow for voter initiatives. However, reformers in other Provinces can use Sensible BC’s example to lobby for cannabis reform, or the enactment of voter initiative legislation. Furthermore, if successful, BC’s approach to cannabis could be used as a model for the rest of the country, and maybe the world.
A Growing Trend: Cannabis Reform in Latin America
As we look forward to 2013 with hopes for change here in Canada, reform initiatives in other countries are well under way. As other nations move towards cannabis reform, we can look to their successes and failures to help create better cannabis laws in Canada.
An early adopter of reform has been Guatemalan President Otto Perez Molina. For over a year, he has been calling for a drastic change in his country’s stance on cannabis. Despite Guatemala’s current enforcement of prohibition, drug violence continues to increase, which led the President to conclude, “Something about what we are doing is not working.” Perez Molina suggests a regulated cannabis market would reduce drug related violence, take money away from drug cartels and raise funds to provide services to Guatemalans.
In June 2012, Uruguayan President Jose Mujica introduced an “anti crime” bill to create a regulated cannabis marketin the country. The law would roughly follow the reform in Washington, whereby the State would have the exclusive ability to produce and sell cannabis, and individual adults would be able to purchase and consume those cannabis products. The bill is supported by arguments that it will reduce gang violence, limit access to marijuana by children and provide revenue for State coffers.
In November, Mexico’s opposition party introduced a bill to create a regulated cannabis market in a manner similar to Washington State. Additionally, at least one Mexican State has considered a referendum on cannabis prohibition. In Mexico, as with the United States, drug laws are controlled federally. Even the current president, who is opposed to ending prohibition, has suggested the reforms in the United States might lead Mexico to rethink its drug strategy.
All of these reform initiatives will be active in 2013. Additionally, there is hope reform will spread to neighbouring nations, which could cause cannabis reform to sweep through the region . Unfortunately, the success of these reform initiatives is far from certain. Drug reform is a taboo concept in many countries, and politicians often risk considerable political capital by advocating change. However, with each successful reform campaign, politicians everywhere see there is political support for cannabis reform.
As we watch to see what happens in Latin America, there are lessons, we can apply to our own struggle. For the most part, Latin American reform has been pursued in the legislature, not the courtroom. Activists and reformers have focused their attention on political campaigns to demonstrate the political support behind cannabis reforms. In a manner similar to those in Washington and Colorado, reformers in Latin America focus on the benefits of regulated cannabis: decreased violence, decreased access for youths and increased state revenues. While the final success of Latin American cannabis reform is still unknown, it is becoming clear there is a new approach to reforming cannabis laws – and it is working.
R v Mernagh: Ontario’s Top Court Finds the MMAR to be Constitutional
On February 1, 2013, the Court of Appeal for Ontario released its decision in R v Mernagh. The Court overturned the decision of Taliano J of the Ontario Superior Court, and remitted the matter back to trial for a new hearing.
The case focused on Mr. Mernagh, who was charged for unlawful production of cannabis. Mr. Mernagh alleges the plants were for medicinal purposes, but admits he did not have a license produce under the Marihuana Medical Access Regulations. However, Mr. Mernagh alleges the reason for not having a medical cannabis license has to do with institutional biases within the medical profession, and not his medical condition.
At trial, Mr. Mernagh successfully proved his constitutionally protected right to access medical cannabis was frustrated by a lack of participation from Canadian physicians. This made the MMAR, which is essentially a defence to the criminal prohibition of cannabis for qualifying patients, illusory and therefore, unconstitutional. However, on appeal this finding was overturned.
Primarily, the Court of Appeal for Ontario felt Mr. Mernagh failed to adduce sufficient evidence to prove his charter rights had been violated. Without such evidence, the Court was unwilling to find doctors systemically boycotted the MMAR system. Since the MMAR was argued to be unconstitutional in its effects, and not on its face, the failing to satisfy the court of the unconstitutional effect precluded a favourable outcome.
While the decision is a setback for patients seeking access to medical cannabis, this is not the end of the story. Mr. Mernagh will seek leave to appeal to the Supreme Court of Canada, according to his lawyer, our Mr. Paul Lewin. The issue of access to medical cannabis is a real issue, which affects many Canadians and many of our members. We wish Mr. Mernagh and Mr. Lewin the best of luck, and hope to see this issue before the Supreme Court of Canada in the near future.
A detailed analysis of the Court of Appeal for Ontario’s decision in R v Mernagh will be included in next month’s NORML Canada Newsletter.