By Jade Bardai
Arguing on whether to legalize or prohibit marijuana is one thing; finding the proper legalization model is a whole other story.
Marijuana, hash, cannabis, weed, pot, Mary Jane, and the list goes on.
Many different names have been used over time, yet speaking of the same substance. The earliest known uses of the cannabis plant date from approximately three millennia before Christ, long before being subject to legal restrictions. Initially used for its fiber, this plant now has various uses ranging from essential oils to recreational consumption. Today, it could be said that the era during which cannabis consumers risk being convicted and in which cultivation takes place in secret locations has begun to fade. Marijuana has been legalized for medical use in many countries across the world and is starting to be used legally for recreational purposes in countries including Czech Republic, Uruguay, Switzerland, a few American states and maybe soon in Canada. After years of arguing and reasoning, the answer to the international debate between prohibitionists and legalization militants seems to fall on the legalization side of the weighing scale.
Legalizers argue that cannabis should be legal in the name of personal and commercial freedom, considering that adults are able to make free and informed decisions. However, according to a recent report from the U.S. Drug Enforcement Administration (DEA), not only can smokers develop dependence, but most importantly, “adolescent marijuana users are more likely than adult users to develop marijuana dependence.” Although not every user becomes dependent, it is understandable that dependent users cannot make true free decisions about whether to consume or not. It is also important to note that decriminalizing and legalizing pot means expunging all criminal records related to the drug, as well as releasing prisoners currently serving time for marijuana-related offences.
On the other hand, legalization has an obvious socioeconomic upside, consisting of an increase in tax revenue and a sustained job growth. For instance, the state of Colorado has collected around $70 million in tax revenue only coming from the sale of marijuana in 2014, the first year of legalization. Having said that, arguing on whether to legalize or prohibit marijuana only represents one side of the story. One big question remains: what are the proper ways to implement and regulate legal consumption of cannabis? Various models and initiatives have been suggested or already implemented in certain countries or states, some of which could be applicable in Canada. The following list includes some of the mutually interdependent considerations to the legalization process, which represents one possible course of action, among many others, in the form of steps that are not necessarily sequential.
Decriminalize possession and personal cultivation of marijuana.
“The current approach is not protecting our kids. And whatever you say about pot being less harmful than alcohol or tobacco, it's still not good for the developing brain. We want to keep our kids safe. Adults can make their own choices, fine. But protecting our children from marijuana use is why I think controlling it and regulating it is going to do a better job of that,” announces Prime Minister Justin Trudeau. Since Mr. Trudeau has made it part of his agenda to legalize distribution, production, and consumption of cannabis, it would be logical to start by not arresting smokers and producers anymore. However, that does not mean drug dealers from the underground economy will be allowed to distribute legally, which leads to the next point.
Remove cannabis from the Controlled Drugs and Substances Act.
The Canadian Controlled Drugs and Substances Act currently establishes a list of controlled substances presented in eight schedules, as well as the laws and offenses associated with each one. Under that Act, the Governor-General, acting on advice of the federal cabinet, may add or delete any item or part of an item if he deems it necessary in the public interest. Cannabis production and consumption won’t be truly legal if still included in the Act.
Implement a regulatory structure taking collateral issues into account.
Prime Minister Trudeau has asked Canada’s newly appointed Minister of Justice and Attorney-General Jody Wilson-Raybould to “[work] with the Ministers of Public Safety and Emergency Preparedness and Health [to] create a federal-provincial-territorial process that will lead to the legalization and regulation of marijuana,” as stated in her mandate letter. To do so not only involves regulating cannabis smoking, but also other collateral issues like drug-impaired driving or edible marijuana, which could make legalization a more costly and time-consuming process. Drug-impaired driving, for instance, creates a complex law enforcement problem, since measuring a certain amount of the active ingredient in marijuana (Tetrahydrocannabinol, or THC) in a driver’s body does not necessarily mean he is impaired to drive. Although states where recreational use of marijuana has been legalized, such as Washington or Colorado, have implemented a threshold of five nanograms of THC per millilitre of blood, homologous to the .08 blood alcohol legal impairment limit, "that five hasn't been shown by science to be that one level where everyone is impaired," as explained by Brian Capron, a Washington state toxicology lab manager.
Follow the alcohol and tobacco models.
Should we prohibit prohibition? Recent history has shown that prohibition was a greatly impactful social experiment, as well as an important learning experience, yet not the best procedure for regulating the use of drugs. Alcohol prohibition that lasted from 1920 to 1933 in the U.S. has led to the rapid growth of organized crime, an increase in law enforcement corruption, and an overburden of the legal system, which is precisely why it was repealed. Legalization of alcohol in the U.S. following the prohibition closely correlates with the legalization of marijuana, since the economic pros and cons of both are quite similar. Just like alcohol, legal cannabis could mean on the one side sustained economic growth and decreased organized crime, and on the other side more arrests and healthcare costs.
In cannabis’ case, one alternative could be to make it fall under provincial jurisdiction since the responsibility for regulating alcohol and tobacco products is given to the thirteen provinces and territories, under the Constitution of Canada. However, treating cannabis the same way as alcohol does not resolve all problems, since no test for marijuana-caused drug-impaired driving has yet been universally accepted, in comparison with the alcohol breathalyzer. This is why legal limits are, with our current scientific knowledge, still difficult to implement. In Mr. Capron’s words, "an individual may be over five [nanograms] and not exhibiting any sign of impairment, and that's why the five is somewhat troublesome."
Establish strict controls and enforcement over the laws governing cannabis.
Since one of the main reasons why alcohol prohibition was not successful is weak enforcement, it would be important to implement strong regulations, not only regarding legal ways to distribute and collect taxes, but also relating to the punishment of black market actors. Another important point to consider when implementing tax regulations is that over taxation could eventually push some consumers to underground market providers, where prices could be more attractive. After establishing strict controls and strong enforcement laws, a logistical question arises: Would marijuana be sold over convenience store counters like cigarettes, or at provincial liquor stores? That is yet to be determined.
Legalizing a drug that has been prohibited since its inclusion in the Narcotics Drug Act Amendment Bill in 1923 might prove an arduous process, especially since it involves numerous legal, societal and political considerations. Would regulators stop considering cannabis as a controlled substance? Would conventional sales taxes be levied on the sale of marijuana or will there be a special tax for this purpose? Would a consumption limit be imposed on buyers? These are all questions that still need to be answered. The first step in the process is of course about discussing the implications and consequences of the two sides: legalization or prohibition. The fruit of this discussion should be a homogeneous compromise that takes into account both advantages and disadvantages of different alternatives. In that sense, the challenge will be to synthesize a conclusion in the midst of this panoply of considerations.
