Annamaria Enenajor
The colossal failure of Canada’s “war on drugs” is a key reason that the federal government has proposed to replace prohibition with legalizing and regulating the production, distribution and sale of cannabis (Bill C45 and Bill C-46). The previous approach was ineffective, irresponsible and often ran afoul of the Charter of Rights and Freedoms. Unfortunately, the proposed legislation still carries some of the problematic features of the failed “war on drugs” and introduces new features that might well be unconstitutional .
The “War on Drugs”
The “war on drugs” approach to cannabis stems from a moral opposition to drug use. It focuses entirely on prohibition and penalization. In Canada, this approach crystallized during the Harper years,[1] when the country adopted heavy-handed, tough-on-crime laws. Draconian punishment for drug offences included mandatory minimum sentences and increased sentence maximums.
The “war on drugs” is impervious to science. Decades of research in of epidemiology and criminology disproves the belief that criminalization has a deterrent effect on substance use. Prohibition has worsened public health and fueled illegal markets, violent crime, injuries and deaths. Because the “war on drugs” is opposed to all drug use on principle, it is irreconcilable with effective harm reduction strategies that focus on safe drug use such as needle exchanges and safe-injection sites. This myopic approach ignores the role of social determinants of drug use such as poverty, mental health, addiction and racism.
The “war on drugs” not only leads to bad policy but also to unconstitutional laws and government actions, several of which have been successfully challenged under the Charter of Rights and Freedoms. Tougher penalties for drug crimes instituted during the Harper years were found to have infringed s. 12 of the Charter. Mandatory minimum sentence for drug offences have been struck down by courts all across the country as “cruel and unusual punishment.”[2]. The Supreme Court of Canada held that the government’s opposition to safe injection sites contravened the principles of fundamental justice under the Charter.
The “war on drugs” placed a tremendous amount of pressure on the rights of all Canadians. But its most punishing effects have been felt by historically marginalized groups and vulnerable members of society— people with addictions and mental health concerns, racialized groups and Indigenous peoples.
The Proposed Cannabis Legislation: Some Good News
At first blush, the Liberal government’s proposed legislation on cannabis appears to be a step in the right direction. The new regime at least aspires to be evidence-informed. The proposed framework looks beyond prohibition to improving public health. It accepts that criminalization has been ineffective and has, in fact, lead to harmful social outcomes, not least saddling thousands of Canadians with criminal records for non-violent drug offences and overburdening the justice system.
The Proposed Cannabis Legislation: Some Bad News
The bad news is that the proposed legislation still features some of the characteristics that rendered the previous approach constitutionally non-compliant. While public health and safety are repeatedly mentioned as objectives, Bill C-45 is first and foremost a crime bill. One of its central objectives is “deter[ring] illicit activities in relation to cannabis through appropriate sanctions and enforcement measures”. This objective ignores the fact that crimes associated with drug offences are relatively minor and non-violent and do not warrant stronger sanctions. Under the new law, buying, selling and using marijuana outside the new rules will remain a serious criminal offence, with penalties of up to 14 years in prison for illegal distribution or sale, or for giving or selling marijuana to minors, even though there is no empirical support for the proposition that harsh penalties are effective in protecting youth, who are among the main consumers of marijuana at present. If marijuana is made available to those under the legal age by those just a bit older, then these new offences will still end up severely punishing young people.
Driving
Through Bill C-46, the Government has attempted to address some of the public safety concerns related to impaired driving due to marijuana legalization. The bill also creates enhanced police powers respecting impaired driving due to alcohol consumption. Some of the bill’s provisions appear to conflict with well-entrenched Charter principles which have long protected Canadians against unlawful government action. For example, the bill would empower the police to require roadside breath samples even in the absence of reasonable suspicion that a driver has alcohol in her body. These provisions will likely be challenged as unreasonable searches.
Disclosure of evidence
In addition to increasing penalties and the elimination of certain defenses to impaired driving, the Bill limits the Crown’s obligations to disclose evidence to the defense. It goes without saying that the federal government cannot legislate away the Crown’s constitutional obligations. Yet, this is what it appears to be attempting.
Better but Not Good Enough
The proposed legislation is certainly an improvement. However, the legislation adopts some of the features of the failed “war on drugs” and even introduces some measures that appear to conflict with well-established Charter principles. Many aspects of this regime may ultimately prove to be unconstitutional.
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Annamaria Enenajor is a lawyer and partner with Ruby, Shiller & Enenajor. She practices criminal and constitutional law. A longer version of this post is available here.
[1]The relevant period for evaluating Harper’s “war on drugs” legacy is his majority government from , which allowed him to pass substantial criminal reform legislation including the Safe Streets and Communities Act that introduced mandatory minimum sentences for drug crimes.
[2] See e.g., R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; R. v Boulton, 2016 ONSC 2979; R. v Duffus, 2017 ONSC 231; R. v. Serov, 2016 BCSC 2326; R. v. Tran, 2017 ONSC 651.
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