Right now, Canadian law makes possession, trafficking and production of cannabis a crime with exemptions for medical marijuana. Simple possession is rarely prosecuted. From your perspective, what are the main problems with this system?
It might be counterintuitive for some people, but most of the problems we have with cannabis arise from its prohibition, not its use.
NORML wants to encourage safe and moderate use of cannabis – for people who want to use cannabis – because, as with alcohol, the majority of users have no problem and experience only its benefits. Prohibition means we leave controlled substances to organized crime, rather than regulating them for safety and purity – although only a minority of cannabis production is controlled by what we would seriously call “organized crime.”
Simple possession is rarely prosecuted? If you’re a kid from a minority community in an inner-city neighborhood or on a reservation, you may have a different experience with the justice system. That’s one important reason to legalize: cannabis need not be the gateway to the criminal justice system that it is now.
If you talk with police – away from cameras and microphones – they will tell you that enforcement of cannabis prohibition is not a good use of their time and resources. And they’ve known this for a long time. It’s politicians, primarily, who have kept the fires burning under cannabis prohibition. In my conversations with law enforcement, they say they would have backed off years ago because, as police officers, they have much bigger problems with alcohol than with cannabis.
Do you see health or other risks in cannabis use?
Yes, there are risks, but these have to be compared with alternatives. People with a preexisting mental illness, or a family history of it, should avoid cannabis and all other psychotropic substances. People should not drive or operate heavy equipment under the influence of cannabis. The evidence about the effect of cannabis alone on driving is inconclusive, but we are against driving while impaired by anything. Alcohol and cannabis are a particularly bad mix. We can expect bad reactions to things like mould and pesticides – and we should pay close attention to prevalence and severity.
Most of the concern today turns on the neurodevelopment of the adolescent brain when exposed to regular high doses. No serious person argues against an age limit, and most scholars of cannabis science would prefer to delay initiation into the late teens or early twenties. What is less certain at this stage is the direction of the causal arrows between use of cannabis and poor school performance or learning outcomes. Does cannabis use at higher doses undermine school performance, or are children who are performing poorly at school drawn to self-medication? The end of prohibition will, among other things, enable a rigorous examination of causes and effects and other correlates among users and nonusers
But in any event, risks pale in comparison to the risk of being criminalized for possession, which has always been the greater threat to life prospects under prohibition. Moreover, we can do more to deal with the risks in a legalized system with evidence-based regulation than under prohibition. Despite almost 90 years of criminal prohibition, Canadian youth are among the highest cannabis users in the world. Regulated legal vendors could do better, as they have for tobacco.
In November, the Task Force on Marijuana Legalization and Regulation provided its report. What do you think was good and bad about that report?
On balance, the report got the fundamentals right. The devil will be in the details, and we have not yet seen those details, but I suspect most casual users – and antiprohibitionists, which is NORML’s historic constituency – are comfortable with the Task Force Report. The issue turns on how one undoes bad policy. That turns out to be a more complex challenge than anyone realized. Almost 100 years of racist, punitive social engineering, deeply shrouded in myth and misinformation, is receding, but not without a fight. We’re at that point now, as Gramsci put it, where “the old is dying but the new is not yet able to be born.” The report does acknowledge that people will – and should be able to – grow their own. NORML argued that cannabis should not fall under the exclusive control of corporations. We’re also glad that the Task Force says cannabis and alcohol should not be sold from the same storefronts.
The Trudeau government has now introduced Bill C-45, which would take cannabis out of the Controlled Drugs and Substances Act and create a new Cannabis Act. What do you think of that legislation?
The act gets the essentials right, but some of the details are wrong or just not known yet.
Keep in mind that, though it may not seem like it, we are in “early days” where this psychotropically complex plant is concerned. There is much to be learned about the full range of therapies and, to be honest, harms associated with it. We have yet to see the regulations, so that limits our ability to pass judgement. From what I can tell, the government took the advice of the state of Colorado to start with stronger legislation on the expectation that it will be possible to loosen regulations with time and experience. The biggest challenge, in my view, was to create a regime that is able to learn and to feed that learning back into the regime’s design in real time. I am optimistic that this bill can do that.
Provincial regulation of sale made sense in the context of our existing jurisprudence over the control of alcohol and tobacco. Simple path dependency just made sense given our constitutional division of responsibilities and history of legislating consumption of toxic substances.
NORML endorses restrictions on promotion similar to those for tobacco for public health reasons. We have never endorsed or condemned the use of cannabis for any person or reason. We do not seek to grow the rate of use nor to shrink it. We just want the criminal justice system out of the whole issue through the enactment of legislation informed by science and best practices rather than fearmongering and hysteria. This act moves toward that objective.
The bill is still too punitive for what it does prohibit. We have pretty good evidence that punishment for cannabis crimes does not deter, and denouncement through criminal stigmatization is more harmful than use.
The worst thing is what the bill doesn’t do. It leaves in place the mandatory minimum penalties (MMPs) in the Controlled Drugs and Substances Act. Policymakers know – and will admit when away from cameras and microphones – that MMPs don’t deter and that certainty of punishment is more effective than severity. MMPs limit the discretion of judges – which is a feel-good measure – and sentence a “class” of crime rather than the individual offender. They’re a lazy means of appearing serious because they’re so easy to enact: a few changes to language. When former justice minister Rob Nicholson was in the Mulroney government, he opposed MMPs. Sooner or later some policymaker will say out loud what everyone knows: we should limit MMPs to the crimes for which the Law Reform Commission recommended it: murder and high treason.
Many critics have noted that the federal bill provides a legal age of 18, but the science suggests that cannabis use can damage developing brains.
There is no logical argument for setting a legal age different from that for alcohol and tobacco, given that both are more harmful and toxic substances. From a public health perspective later initiation is preferable, but it is hard to enforce as a practical matter because Canadian youth are already among the highest consumers of cannabis in the world and cannabis cultivation is no longer the province of nerdy horticulturalists but available to anyone with an internet connection. All public policy has to balance the public good against the practically enforceable. We are long past being able to enforce, as a practical matter, a strict legal age when the plant is so easy to grow.
Are there any amendments to Bill C-45 you think Parliament should consider?
No prison for pot! Mandatory minimums should be repealed immediately – not a year from now – and the availability of a “conditional sentence order” that enables sentences of imprisonment to be served in the community should be restored to at least prevent the serving of actual sentences of imprisonment pending legalization. All indictable offences should be abolished, leaving only summary conviction offences and a maximum of two years less a day imprisonment for serious matters until legalization.
NORML endorses the view that there should be no imprisonment for cannabis offences and the focus should be on monetary penalties for infractions and violations. We have lots of experience and evidence to support the claim that imprisonment does not produce the deterrent effect advertised for it.
The report seems to contemplate federal supply management of cannabis production. This would obviously lead to valuable rents to those producers who get inside the system. Do you have worries about that approach?
Not really because there exists a large and well-established cannabis culture dating back at least to the 1960s, which I predict will emerge out of the underground and assert its vitality and life force. That is, in effect, what is happening with the dispensaries now. Cannabis users will grow their own, trade and sell to one another as they have for decades, but without the threat of criminalization. Many people will prefer the federally sanctioned suppliers, and that’s fine, but at least as many will grow a handful of plants on their balconies or in their backyards or basements or purchase from friends.
What lessons does the regulation of tobacco and alcohol have for legalized cannabis?
The important lessons are derived from public health principles: no advertising to children is the big one because delaying age of initiation is desirable for all psychotropic substances. NORML wants to discourage use by people who operate heavy equipment or drive, the way we do with alcohol, but NORML also wants to discourage texting and other driving distractions. NORML would also like to see some of the tax revenues recycled into treatment and education to encourage safe and moderate use. NORML also feels strongly that permitting home production limits the incentives for corporations to “enhance” their products, perhaps to make them addictive on the tobacco model.
Do you think there are other “controlled drugs and substances” that could benefit from a similar approach to the one taken for marijuana? What would be the best next step?
Canadians should ask themselves, as a thought experiment, which drugs and controlled substances they would prefer to leave to the criminal underclass to have regulated for accessibility, safety and purity. I think we have to assume that we cannot eradicate demand, nor have we been able to eradicate supply. Given that, the best we can do is to employ a harm minimization strategy to both demand and supply. Prohibition, on the evidence and experience, turns out to be a harm maximization strategy. I think we can do better. The public health principles that will come to govern cannabis can be applied to all other controlled substances.
Demand creates its own supply. That supply is going to be controlled either by organized crime or by some government or quasigovernment institution – like a not-for-profit NGO – that is able to regulate for purity, access and quality and that is able to create a real workable gateway between suppliers and children. I echo the conclusion of The Economist’s editors that legalization is the “least bad option.”
Does NORML have any thoughts on how best to address the ongoing surge of opioid dependence and overdose?
There is early – but promising – evidence that opioid use, and associated overdose, seem to be lower in U.S. jurisdictions where cannabis is legal and easily available. We should pay close attention to this correlation because that confirms what many cannabis users suspect: cannabis is an adequate substitute for some of the conditions that opiates treat.