Source: Ottawa Citizen Contact: Pubdate: Fri, 31 Oct 1997 Section: Argument & Observation, Page A19 Author: Professor Alan Young Cannabis should be decriminalized now Toronto lawyer Alan Young challenges ministers Alan Rock and Anne McLellan in an open letter on marijuana policy Dear Honourable Ministers of the Crown: This past summer I acted as trial counsel in a constitutional challenge to the designation of the plant, cannabis sativa, as a prohibited substance. In this case, R. v Clay, in the Ontario Court (General Division), August 14, 1997, the learned trial judge, Mr. Justice McCart, concluded that "as it is commonly used, occasionally, cannabis presents only minor or subtle risks to the health of the individual." In addition, the learned trial judge found as a fact that cannabis sativa does not induce psychoses, that it is not addictive, that it is not criminogenic and that it does not cause amotivational syndrome. In other words, after hearing three weeks of evidence from numerous renowned experts, an esteemed judge has reached the same conclusion reached in 1972 by your own Royal Commission – the conclusion being that consumption of cannabis sativa causes little harm to the individual consumer, and more importantly, causes little or no harm to society at large. Despite reaching a conclusion which strongly supports the call for decriminalization, the judge dismissed the constitutional challenge on the basis that there did not exist a "principle of fundamental justice" under s.7 of the Charter of Rights that would permit the court to launch into an "unwarranted intrusion into the legislative domain." This ruling is under appeal and therefore I am not able to engage in any discussion of the merits of the learned trial judge’s legal and constitutional conclusions. Instead, as the judge suggested, I am now attempting to raise this issue in the "legislative domain." On behalf of the estimated 2.5 million Canadians who engage in this relatively harmless habit, I am asking this government to explain to the Canadian public why we are spending so much time and money manufacturing criminals out of lawabiding and productive citizens whose only sin is that they choose to intoxicate themselves with a substance which is far less dangerous than alcohol or tobacco. It is time for this government to find the courage to respond to the following incontrovertible facts: 1) Cannabis sativa is a relatively harmless substance. Despite hysterical claims made in the past, the only documented and confirmed risk of harm is pulmonary damage from the ingestion of smoke. Is it not a trivialization of the majesty of the criminal law to employ the criminal sanction to prevent Canadians from becoming a nation of coughers and wheezers? 2) In the 1970’s, Royal Commissions of Inquiry in Canada, United States, Britain, Australia, Holland and Germany recommended decriminalization or legalization of cannabis sativa. 3) Subsequent to this recommendation from the Canadian Royal Commission (the LeDain Commission) in 1972, the Liberal party, the Conservative Party and the New Democratic Party pledged to take action in the direction of decriminalization. In fact, your party in the 1980 Throne Speech promised to take action in the direction of decriminalization. 4) There have been no compelling scientific studies of any weight in the 1980s and 1990s which have called into question the conclusions and recommendations of these various Royal Commissions of Inquiry. In fact, the Canadian government has failed to spend one penny on medical research to inquire into the alleged medical benefits of cannabis sativa. The government has simply ignored the findings of its own independent Commission of Inquiry which spent millions of dollars over four years to study the issue. 5) Other free and democratic regimes have realized the folly of maintaining this criminal prohibition and we now can find formal and informal decriminalization measures in Holland, Germany, Spain, Italy and Australia. The greater availability of cannabis sativa in these enlightened jurisdictions has not led to an increase in consumption and/or an increase in medical and societal costs. 6) In 1996, the Senate Standing Committee on Legal and Constitutional Affairs recommended that this government revisit the LeDain Commission’s findings and "explore the health effects of cannabis use and consider whether decriminalization of cannabis would lead to increased use and abuse." Once again, this recommendation was disregarded. 7) In every survey, including government surveys conducted by this government, it is clear that a strong majority of Canadians want to see a change in the law. In the 1995 Health Canada survey, 27 per cent of Canadians agreed that possession of marijuana should be legal and 42.1 per cent agreed that this offence should not be punished by a term of incarceration. In other words, over twothirds of Canadians (69.1 per cent) support a change in the law. These facts are only the tip of the iceberg and far more can be said in defence of decriminalization. However, in light of the facts presented above, I am asking the Honourable Ministers to explain to Canadians why there appears to have been a failure in the democratic process. Canadians have expressed the desire for law reform and the government has never adequately explained why it has ignored the will of the electorate in such a cavalier fashion. Even if you believe that consumption of marijuana is a trivial recreational habit which is not deserving of much legislative scrutiny, it is simply a disgrace that the wishes of Canadians can be ignored by their elected representatives. If a referendum were held, I have no doubt that the laws would have been changed long ago and we could have started to focus our limited criminal justice resources on crimes that strike fear and insecurity in the hearts of Canadians. Not only is this government acting in an antidemocratic fashion, it is wasting enormous resources in pursuit of the cannabis criminal. I have made my own cost estimates based upon the costs of investigation, apprehension, prosecution and the administration of sentencing, and conclude that we are spending at least $1 billion every year in our failing effort to make Canada a marijuanafree zone. At a time when many Canadians are saddened by the constant cuts to social programs and health care, this government is squandering valuable resources for no apparent reason. The question I pose on behalf of the 2.5 million cannabis smokers and the estimated 10 million Canadians who support a change in the law is simply this: Does the government have any serious intent to initiate law reform in this area, and if not, how does this government justify the status quo? We can no longer ignore the reality that the issue of decriminalization of cannabis decriminalization engages a larger issue concerning the abject failure of principles of democracy. At the risk of losing faith in the concept of responsible and responsive government I invite you to explain to Canadians why their wishes are being summarily dismissed. Alan N. Young is a professor of law at Osgoode Hall, York University.