It was in October 2018 when Canada became the second country in the world (after, Uruguay in 2013) to legalize marijuana for recreational use. The Trudeau Liberal government promised, in the leadup to the 2015 election, to prioritize the legalization of marijuana as a means to “fix a failed system” and to help “remove the criminal element” linked to the drug.
Legalization took longer than expected, but increased use and the expansion of the cannabis market have more than compensated for the slower start. A study published in Drug and Alcohol Review in April 2021 indicated that the number of retail stores selling marijuana in Canada increased by a factor of ten over a two-year period following legalization. Government statistics from 2020 show that recreational marijuana use was up 25 per cent from 2017, prior to the coming into force of the Cannabis Act. The legal market for marijuana grew 215 per cent between 2018 and 2020, while the illicit market was estimated by Statistics Canada to have declined in size by 21 per cent over the same period.
WHAT DID THE CANNABIS ACT CHANGE?
The Act, for the first time since marijuana possession was criminalized in Canada in 1923, made it legal for Canadians of legal age (which varies provincially and territorially) to buy, possess and use cannabis. Adults were given the right to possess up to 30 grams of marijuana in public, and to grow no more than four marijuana plants per household (not per adult).
Retail licences to sell marijuana and related products are provincially issued. In Ontario, the Cannabis Licence Act, 2018 governs the issuance of licences to stores.
To produce cannabis for sale, individuals and businesses are required to be licensed by Health Canada.
Regulations enacted under the Act specified that medicinal marijuana users, already permitted to have either 150 grams or a 30-day supply of marijuana for medicinal purposes if in possession of government-issued medicinal marijuana authorization documentation, could also possess an additional 30 grams in public for recreational use. The system for obtaining a licence to buy, possess and use marijuana for medicinal purposes changed little under the new legislation, with most existing medicinal users being seamlessly transitioned to the new system.
Within a year of the law’s enactment, edible cannabis, cannabis extracts and cannabis topicals became legal for sale. Products such as gummy candies, cookies and other baked goods, cannabis patches, and body lotions took longer to reach the legal market in Canada than marijuana products that are consumed by smoking because of their greater attractiveness for underage users and their different intoxicating effects. Considering the experience of Colorado, a U.S. state which legalized marijuana and edibles in 2012 with little regulation and which saw hospitals dealing with unexpected numbers of high children following legalization, Canada was slower to permit these products to come to market. Controls on the amount of product sold, the THC levels of such products, and their labelling were put into place in an attempt to curb their appeal to the young.
DE-CRIMINALIZING RECREATIONAL USERS: LEGAL IMPLICATIONS
Among the primary arguments for legalization in Canada was the burden of simple possession charges placed on an already taxed legal system. It was reported by the Senate in the early 2000s that Canada was spending between $300 and $500 million annually on enforcement of laws relating to cannabis, amounts that the report’s authors considered “disproportionately high given the drug’s social and health consequences”.
In the years since legalization, charges relating to the possession and sale of marijuana and its derivatives have significantly fallen in Canada. Particularly for young people, disproportionately represented among those charged with simple possession, charges were cut in half almost immediately.
Individuals with marijuana-related convictions that pre-dated the coming into force of the Act were offered relief in the form of record suspensions, by way of Bill C-45, An Act to provide a no-cost expedited record suspension process for simple possession of cannabis. This legislation was supposed to benefit those with convictions for simple possession of marijuana only. Critics of its implementation note the small number of individuals (less than 400) who received pardons in over 20 months since Bill C-45 received Royal Assent. The government cited slowdowns in processing applications due to the COVID-19 pandemic as one reason why more pardons have yet to be granted.
HEALTH IMPACTS: ADULTS AND CHILDREN
Advocates for legalization have long argued that the health risks associated with marijuana consumption are much lower than for alcohol and tobacco. Although our government and other proponents of legalization admit that health harms can result from marijuana use, there is evidence to suggest that responsible use may be less risky for generally healthy people than drinking alcohol (for example, this recent study suggests that alcohol is more dangerous for brain health).
However, longer-term studies of the health impacts of legalization on general population health have yet to yield clear and measurable results, but a report from 2022 indicates that the risks of harm to children have increased. The study of hospitalizations in one Ontario region revealed a 900% increase in child poisonings resulting from the ingestion of cannabis over the years since legalization, the most drastic increase occurring after edibles joined the legal market. The study’s lead author commented:
Canada’s approach to legalization was intended to prevent increases in child cannabis poisonings through policies limiting the strength of cannabis edibles, requiring child-resistant packaging and education for parents and caregivers. Unfortunately, the rates we saw in our study suggest the approach has not met that goal.
THE MOVE TO LEGALIZE MORE DRUGS
With more than three years having passed since marijuana became legal for purchase, sale, and recreational use in Canada, many wonder if legalization of other illicit substances is on the horizon. The opioid crisis, which has been substantially exacerbated by the COVID-19 pandemic across the country, is cited as an argument both for and against the decriminalization of other currently illegal substances. Opponents of legalization suggest that use and abuse will undoubtedly increase, while others argue that criminalizing drugs forces those who use them into unsafe situations and places the most vulnerable at greater risk of harm. As noted in a recent article about Canada’s changing attitudes towards drug criminalization:
“The war on drugs has not only been ineffective but in many ways amplified some of the problems around substance use that it is presumably meant to address, by criminalizing users,” said Andrew Hathaway, a professor of sociology at the University of Guelph.
“If you recognize the drug problems are a matter of addiction, are a matter of dependence, things that are typically framed within a public health or a medical framework — it really makes no sense to keep up the war on drugs measures.”
CONTACT THE CRIMINAL DEFENCE LAWYERS AT AFFLECK & BARRISON LLP IN OSHAWA IF YOU HAVE BEEN CHARGED WITH A DRUG-RELATED OFFENCE
The criminal defence lawyers at Affleck and Barrison LLP are dedicated to staying current on the legal developments that impact our clients and our communities. We can provide you with professional, confidential advice, whether you have been charged with an offence or have questions about the criminal justice system. We have extensive experience defending all types of drug charges including charges for the production of drugs and possession & trafficking. Call our 24-hour line at 905-404-1947 or reach out online to schedule a consultation.