The Regulation of Marijuana under Canadian Law

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(Disponible en français : La réglementation de la marijuana selon la loi canadienne)

Marijuana, otherwise known as cannabis, has been legally prohibited in Canada since 1923. The 2002 report of the Senate Special Committee on Illegal Drugs noted that there was little debate surrounding this addition to the criminal law at the time; as such, the precise motivation for doing so remains unclear.

Today, the prohibition of cannabis is found in the Controlled Drugs and Substances Act (CDSA), which makes it an offence to possess, traffic, import and export, or produce cannabis.

Penalties upon conviction for these offences range from a fine for the least serious possession offences to potential life imprisonment for the most serious trafficking offences. Sentences are more severe if the amount of cannabis involved is large.

Mandatory minimum sentences apply if certain factors are present, such as the threat or use of violence or a weapon in the commission of the offence. A mandatory sentence need not be applied if an offender successfully completes a drug treatment program.

Since 2001, Health Canada has granted access to marijuana for medical purposes to Canadians who have had the support of their physicians. The Marihuana for Medical Purposes Regulations create conditions for a commercial industry that is responsible for the production and distribution of marijuana for medical purposes. They are also intended to ensure that Canadians with a medical need can access quality-controlled marijuana grown under secure and sanitary conditions.

Alternatives to strict prohibition

In recent years, there has been much discussion about changing the way Canadian law deals with marijuana by potentially moving away from a strict prohibition model. One possible alternative model put forward is legalization of the possession of marijuana, which would have the effect of treating it like an article of commerce.

Legalization would likely be accompanied by regulations similar to those that apply to alcohol and tobacco, including restrictions on selling marijuana to minors.

A number of jurisdictions have taken this route in recent decades. In the American states of Colorado and Washington, the sale of marijuana has been conducted since 2014 by private businesses that have obtained licences to sell from the state government. Promotion of cannabis products is permitted and marijuana can be sold to out-of-state residents. Alaska and Oregon have also recently legalized marijuana.

In Uruguay, by contrast, all aspects of marijuana, including its price and the quantity available to individual users, are controlled by the government. In accordance with a law adopted in late 2013, promotion of cannabis products is banned and foreigners do not have the right to smoke or even buy marijuana in Uruguay.

A second alternative model of marijuana regulation is decriminalization. Under a decriminalization regime, non-criminal penalties, such as fines, are applied in cases of personal possession. Individuals who are fined do not generally receive a criminal record for drug possession. For example, in Portugal, the government made the possession or acquisition of all drugs a public order or administrative offence in 2001, as opposed to a criminal offence. People found possessing drugs, including marijuana, are sent to Commissions for the Dissuasion of Drug Addiction (CDTs).

The CDTs include one representative from each of the legal, social work and medical professions; their goal is to find the best route to rehabilitation. The Portuguese approach applies to all illicit drugs, not just marijuana. It is part of a drug action plan that also included significant health and social investments in outreach, treatment and awareness programs.

Perhaps the most well-known example of decriminalization is the coffee-shop model in the Netherlands, introduced in 1976. The purpose of the policy is to separate marijuana from “hard drugs,” which were perceived as posing a greater threat to users’ health. Under this model, individuals aged 18 and over can purchase it from regulated shops, although marijuana technically remains an illegal substance.

Transactions at these shops are limited to five grams each and each shop can have a maximum of 500 grams of marijuana in stock at any one time. These shops cannot sell other drugs, including alcohol, and cannot advertise. Unlike Uruguay, the Dutch government does not control production, packaging or price; nor is it able to legally tax cannabis products.

International obligations

The countries cited, as well as Canada, are all signatories to three United Nations Conventions concerning drugs, the most prominent of which is the 1961 Single Convention on Narcotic Drugs, which has been ratified by 185 states. Together, these three conventions oblige party states to limit the use of drugs to medical and scientific purposes.

Parties are also obliged to establish offences for the production, manufacture, preparation, distribution, sale, transport, importation or exportation of certain drugs, including marijuana. In this context, the International Narcotics Control Board, the monitoring body for implementing the UN’s international drug control conventions, has warned Uruguay and the United States that their policies on legalization of marijuana violate the conventions.

Special session of the UN General Assembly on the world drug problem

In April 2016, the United Nations General Assembly held a special session, known as UNGASS, on the drug problem. International drug control efforts are currently guided by the 2009 United Nations Political Declaration and Plan of Action on International Cooperation Towards an Integrated and Balanced Strategy to Counter the World Drug Problem and the three international drug control conventions.

The UNGASS provided an opportunity for the international community to identify achievements, challenges and priorities for future action on the way to 2019, the target date for actions established in the 2009 UN Political Declaration. 

There were five main topics of discussion at the UNGASS: (i) reducing demand; (ii) reducing supply; (iii) human rights; (iv) new challenges (including new psychoactive substances and other synthetic drugs); and (v) developing alternatives, for example, providing sustainable livelihoods to communities that cultivate illicit drug crops.

Related resources

The Regulation of Marijuana in Canada, Library of Parliament (forthcoming).

United Nations Office on Drugs and Crime, World Drug Report 2015

Canadian Centre on Substance Abuse, Cannabis Regulation: Lessons Learned in Colorado and Washington State, November 2015

Woodrow Wilson Center, Marijuana Legalization in Uruguay and Beyond

European Monitoring Centre for Drugs and Drug Addiction, Drug Policy Profiles: Portugal, 2011

Government of the Netherlands, Toleration policy regarding soft drugs and coffee shops

Author: Robin MacKay, Library of Parliament

Categories: Health, Law

Tags: , , ,

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