Legal Weed: Part I – Coming out of prohibition
The cannabis industry in Canada is on the grow. If you are in the cannabis business and are looking for advisory, you’re in the right place.
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A Brief History of Prohibition in Canada
Canada will soon be the second nation in the world (make way Uruguay!) to fully legalize recreational cannabis after an official prohibition of marijuana since 1923. The word ‘prohibition’ evokes images of shady bootleggers running crates of whiskey into old-timey saloons for the townsfolk to swill, while hot jazz floats with the tobacco smoke in the underworld in the early 20th century.
While the story of cannabis prohibition is not often told, and is much less romanticized than its alcoholic counterpart, it is just as remarkable. Dispensaries have become the modern-day speakeasy, and the story of cannabis prohibition is about to get interesting.
The Cannabis Act recently reached royal assent cementing the legal, recreational use of marijuana by October 17, 2018. As advisors in the industry we are experiencing a greenrush –there have been unprecedented mergers and acquisitions, payments in the millions to acquire licensure and ideas –in short, we’ve seen the boom. We’re coming out of prohibition and we want to talk about it.
So, we thought it would be interesting to look back to the history of alcohol and cannabis prohibition in Canada in our first of a series of posts chronicling the legalization of marijuana.
Ban on Booze
Since the pre-confederation days, laws already dictated that municipalities and counties could prohibit alcohol by popular vote, so a lot of Canada was dry in the late 1800s.
After much hooting and hollering from a Temperance Movement led predominantly by Protestant Christians , Canada’s first federal referendum in 1989 asked the public:
“Are you in favour of the passing of an Act prohibiting the importation, manufacture or sale of spirits, wine, ale, beer, cider and all other alcoholic liquors for use as beverage?”
Shockingly, 51% of people said, “Yes”. But, our old friend from the five-dollar bill, Sir Wilfred Laurier, thought this was too close for comfort, and no federal law was passed.
Provincial alcohol bans were a wartime effort of World War I, and most ended when the war did, except in Prince Edward Island. Oddly enough, PEI had a provincial ban on alcohol until 1948, thereafter enforcing liquor permits for people who wanted to imbibe at home, and no bars were permitted until the mid 60s.
Alcohol was controversial in Canada for a long time. One shouldn’t be surprised that at a time when women’s rights were a joke, whiskey wasn’t helping the situation.
Canadians were much more religious, and alcohol was considered to cause ‘social and moral chaos.’ So, prohibition was partially reactionary to immoral behaviour, perceived to be caused by alcohol.\
Ban on Buds – The Early Years
The prohibition of marijuana was a different story. There was no referendum in the late 1800s asking Canadian if they wanted to ban the sale and use of cannabis. Why not? Because until closer to the middle of the 20th century, most Canadians had never heard of marijuana. That didn’t stop the government from adding cannabis to the schedule of banned substances in 1923. Rather than the reactionary prohibition of alcohol, the ban on cannabis seemed to be precautionary. When our representatives attended international drug policy discussions, they came away with the idea that weed could become a problem, and nipped it in the bud.
According to the history books, there was no parliamentary discussion; and, we’re not even sure who ordered that marijuana be added to the amendment to the Opium and Narcotic Drug Act.
It took nearly a decade for there to be a police seizure of marijuana, and 14 years for the first conviction of marijuana possession. By the 1940s, there were barely a dozen cannabis-related arrests per year in Canada.
Reefer Madness (1936) “If their stark reality will make you think, will make you aware that something must be done to wipe out this ghastly menace, then the picture will not have failed in its purpose… Because the dread Marihuana may be reaching forth next for your son or daughter… or yours… or YOURS!”
-Reefer Madness (1936)
It wasn’t exactly ‘Reefer Madness’ in Canada, but as marijuana gained popularity with the counterculture, so did anti-weed propaganda. Parents were warned that their children could become heroin addicts if they used marijuana.
Other accounts tell that by the 1960s parents were more concerned with the criminal justice system and its treatment of cannabis-related offences. At one point during that time, nearly half of those charged with possession of cannabis were incarcerated, until an option of only giving fines was added to the criminal code in 1969.
The criminal justice system lightened up on punishment, but the law was on the side of law enforcement to burden people with criminal records for simple possession.
Shake Down, 1971 – The Gastown Riots
By 1971, there were over 8000 reports of police incidents involving cannabis in the year. Author Susan Boyd remarks in the CBC Podcast On Drugs :
“Parents across Canada felt that their children were being treated unfairly. These are families that had never had encounters with criminal justice before. And it frightened them at that time that their child, for one joint or two joints of cannabis could be sent to prison and have a criminal record that would impact them for the rest of their life.”
Vancouver was central to the legalization movement. Most notably, after the Vancouver Police Department’s 1971 string of undercover drug raids, dubbed Operation Dustpan, prompted counter-culture media to speak out. There was a call to organize and demonstrate via a ‘smoke-in’ in Gastown’s Maple Tree Square. With these sentiments, support from both non-users who felt the criminal justice system built around cannabis was a failure, and users who wanted it torn down entirely, the fight for legalization reached a boiling point with what became known as the Gastown Riots.
Over 2,000 demonstrators gathered. And, what was meant to be a peaceful protest quickly devolved into a violent clash between VPD officers – some galloping in on horses – and the protestors.
There were 79 arrests resulting in 38 charges. After the order from the attorney general, BC Supreme Court judge Thomas Dohm headed a 10 day inquiry into the cause of the riots, and found that the VPD used “unnecessary, unwarranted and excessive force.”
Yet, the mayor, police, and Dohm himself placed the blame for the riots on Kenneth Lester and Eric Sommer, then writers for the Georgia Straight, for inciting the crowd through their promotion of the protest. Dohm said their motivation was simply “to challenge authority in any way possible.”
Battered and bruised, Canada’s first notable demonstration against cannabis prohibition ended in police brutality, and the blame placed on the organizers. But, the seeds were planted for the future growth of a pro-cannabis Canada.
The Le Dain Commission
During the time of the Gastown Riots, the Commission of Inquiry into the Non-Medical Use of Drugs, better known as the Le Dain Commission was finishing up its report for the federal government. Completed in 1972, the report produced was lauded for its thorough research and balanced details.
The recommendations supported the prohibition of both the regulated sale and the illegal trafficking of marijuana; yet, they clearly outlined support for the decriminalization of personal use and cultivation, as long as it were not for the purpose of selling, citing the punishment didn’t fit the crime, and the costs of prohibition weren’t worth the resources.
It would seem we had this all figured out 50 years ago! Yet, the report was given a gold star, filed under ‘maybe later’, and gathered dust thereafter.
Medical Marijuana and the Compassion Club
As attitudes towards cannabis became much gentler in Canada, and twenty years had passed since the Gastown Riots, people were becoming more accepting of marijuana use, especially for medicinal purposes.
Led by Hilary Black, The Compassion Club – Canada’s first medical dispensary– opened its doors in Vancouver in 1997. Now one of Canada’s most widely-known advocates for medical cannabis patients, Black started her crusade helping the HIV/AIDS community get access to cannabis while still in her late teens.
She recalls the experience that sparked her passion for helping people through medical cannabis to Geoff Turner, host of On Drugs. It was the first time she provided cannabis to someone as therapy. The woman, bedridden from severe arthritis, had immediate positive results and was deeply angered that this substance that was so helpful was not made available to her, while the drugs she was provided had terrible side-effects.
This led to the organization operating illegally in Vancouver, but reportedly with support from some local police who Black said “had bigger fish to fry”. Black and her Compassion Club soon garnered attention from David Suzuki, and his show The Nature of Things featured Black in an episode about cannabis.
The leniency from police coupled with media attention allowed the idea of medical cannabis to shed some of its negative stigma, and word spread about its therapeutic benefits.
The Millenium of Marijuana
Once Hilary Black helped introduce Canadians to medical marijuana in the most meaningful way yet, things started happening quickly.
In 2000, the Ontario Court of Appeal ruled that cannabis prohibition was unconstitutional after a man named Terrance Parker fought trafficking and possession charges when caught growing marijuana which he said was used to help control his epilepsy.
In 2001 the Canadian government enacted the Marihuana for Medical Access Regulation, which allowed registered patients to grow or access cannabis from licensed growers.
Then, in a one-step-forward, two-steps-back fashion, the subsequent years saw both the Chretien and Martin governments attempt to reduce simple possession to a civil fine, but both bills were defeated. And in 2007, Stephen Harper announced relatively draconian measures with the ‘Plan to Strengthen the National Anti-Drug Strategy’, leading to the passing of Bill C-10.
The Safe Streets and Communities Act introduced mandatory minimum sentences for the growing of marijuana, attempting to enforce that anyone caught with over 500 plants, or between 6 and 500 plants for the purposes of trafficking would face 36 month and 6 months, respectively. These mandatory minimums were rejected by provincial courts, and later struck down by the Supreme Court of Canada as unconstitutional as cruel and unusual punishment.
Yet, the years that followed would see legislation that made cannabis more accessible for medicinal purposes. Court decisions found the restriction of alteration of cannabis for medicinal use (edibles and oils) was also unconstitutional.
In less than a decade, we’ve gone from cracking down on those selling marijuana, to green-lighting the recreational market; and, such a swift move doesn’t come without its complications. Governments and businesses are scrambling to get up to speed in this exciting new space.
At Metrics, we’ve positioned ourselves to help cannabis businesses be successful. We’re excited to see the resulting boom after legalization, and can’t wait to work alongside the trailblazers of a new industry.
In our next post, we’re going to talk about the medical cannabis regulations to offer context and insight on the emerging recreational space.