本文是关于加拿大的论文范例，题目是“Effect of Cannabis Policies on the US and Canada's Relationship（大麻政策对美加关系的影响）”，在过去的十年里，美国和加拿大在大麻合法化方面的努力引起了人们对联邦法规和州/省自治之间冲突的关注。虽然两国在“毒品战争”上有着相似的历史，但两国目前的政治舞台在联邦政府层面上大麻合法化问题上的立场存在分歧自2013年以来，加拿大自由党继续在联邦一级对大麻合法化进行压缩修订在现任总理贾斯廷·特鲁多的领导下，这种努力得到了显著的扩展。美国的大麻合法化在奥巴马总统任期内经历了类似的进程，然而，在特朗普总统的内阁任期内，大麻的合法化和监管预示着一个令人困惑的未来在特朗普总统的领导下，大麻合法化和监管可能出现倒退，这可能会让大麻行业和已经合法化的州的消费者处于危险的境地。这两个国家对大麻改革的不同对待，助长了人们对美加关系未来的不确定猜测。
In the past decade, efforts in the United States and Canada towards cannabis legalization raise significant concerns about the conflict between federal regulation and state/province autonomy. While both countries share similar history on the “war on drugs,” the current political arena in each country is advancing diverging positions on the issues of cannabis legalization at the federal government level. Since 2013 the Canadian Liberal Party continues to provide compressive revisions to the legalization of cannabis at the federal level. Such efforts have seen a remarkable expansion under the present leadership of Prime Minister Justin Trudeau. Cannabis legalization in the United States witnessed somewhat of a similar progression under President Obama, however, under the tenure of President Trump’s his cabinet signals a perplexing future for legalization and regulation of cannabis. A possible regression in cannabis legalization and regulation under President Trump may put the cannabis industry and consumers in states where it has been legalized in a precarious position. The divergent treatment of the cannabis reform in these two nations, nurture uncertain speculations about the future of American-Canadian relationship.
Additionally, the two countries experience diametrical positions in case-law regarding cannabis regulation by the federal government. Each country focuses on different standards of enforcement and regulation. For example, the Canadian approach of prioritizing the right to security from unwarranted government intrusion and persecution when trying to obtain medical treatment. Within the past decade this prioritization of individual rights over (sometimes baseless) drug enforcement, demonstrates an astonishing response by the Canadian government in improving active problems inflicting their citizens. Contrary to Canada’s focus, much of the U.S. government remains silent on the such a question of individual rights when discussing cannabis legalization; rather, policy is prescribed under polices of drug regulation and crime prevention. As such, distinct contemporary approaches taken by Canada and the United States make it unclear how well the two countries will deal with an emerging cannabis global market.
The purpose of this note is to address how early resemblances of marijuana prohibition in the U.S. and Canada, and each country’s diverging positions towards marijuana reform, create an infertile ground for the future of their relationship. This note will discuss how recent changes in the politics of each nation will engender more instability and conflict between the two. Part II of this note speaks to how the initial focus of cannabis prohibition in both, was due to discriminatory and nationalistic attitudes that were essentially backed by the respective governments. Part III examines the prohibition effects vis-à-vis government action on marijuana reform; in the United States this was subject to state prerogatives while in Canada, the initiative was directly addressed by Parliament. Part IV analyzes the overwhelming consequences created as a result of government indecision and the lack of dialogue between both countries regarding cannabis policy, whilst proposing solutions to these issues.
History of Marijuana Prohibition In Canada and The United States
The regulatory regime around cannabis policy in the United States witnesses a continual inconsistent development since the conception of the nation. Many suggest the tenacious mêlée of cannabis prohibition was in part because of misaligned juxtapositions of immigrating minorities with crime and violence. Nevertheless, within the past decade, the legalization of marijuana at the state level attempts to ameliorate the sins of the past through comprehensive regulation and enforcement of legal medical and recreational cannabis. With an awareness of the potential benefits potentially bearing fruit from legalization, states are heeding the widespread approval by the American populous. For example, the 2016 election concluded with 29 states legalizing cannabis in some form. The trend towards marijuana legalization at the state level, continues to create significant disparities between federal and state regulation priorities. Additionally, one may wonder where the trajectory of the future of federal marijuana regulation and legalization may progress with the Donald Trump as President of the United States and Senator, Jeff Sessions as Sessions as Attorney General—a known challenger of cannabis legalization. Issues of federalism, coupled with the election of a republican majority government, may put the progression of marijuana legalization in limbo or regress, which can conceivably hinder US relations with a promising legal market in neighboring Canada.
The Beginning Years起始年份
The inception of cannabis prohibition in the United States began no more than a century ago. During the colonization of the free nation, the consumption, production, and sale of cannabis was legal due to high reliance on hemp at the time. By the close of the nineteenth century cannabis became, alongside tobacco and cotton, one of the leading crops produced in the Americas. During this time physicians often prescribed cannabis for medical, however, after a rise in opiate addiction following the Civil War, cannabis fell under the same fate as many other commonly stigmatized drugs such as heroin and cocaine. Moreover, early restrictions on cannabis are documented as being under the guise of federal drug regulatory objectives backed with discriminatory sentiments, which were immensely supported by states until the end of the 20th century. Scholars suggests xenophobic and racist opinions inundated early cannabis illegality because of the influx of Mexican and Chinese immigrants into the states
During the turn of the twentieth century, a common misconception of the use of cannabis was frequently associated with minority groups and crime, especially in Latino and Black communities. Although active legislation was instated to combat addiction, none made mention of a direct cannabis ban until Congress set out to regulate cannabis through a tax in 1937. Initial federal prohibition charmed the public through the backing of the polemic film, Reefer Madness (1936), “which depicted marijuana users as murderous fiends.” Prohibitionist and Federal Narcotics Bureau Commissioner, Harry J. Anslinger, used the film as exemplar of how cannabis was an “assassin of the youth” that induces violent behavior and with repercussion far more destructive than other drugs. The vilification of cannabis permitted Congressional introduction of the Marihuana Tax Act of 1937, “bann[ing] the unlicensed and non-medicinal use” of marijuana. The American Medical Association (AMA), as part of a vigorous opposition to the removal of cannabis from Federal Pharmacopeia, contended that the drug could have medical uses, and there was no legitimate evidence demonstrating that marijuana would provoke criminal conduct. Notwithstanding credible opposition, Congress approved the act and reclassified cannabis as a controlled substance. Though the Act did not declare cannabis per se illegal, the cumbersome tax on administrative and regulatory measures, made it impossible for any involvement in the cannabis industry.
Official illegality of cannabis began through the enactment of the Control Substance Act (CSA) in 1970, by providing “statutory framework through which the federal government regulates the lawful production, possession, and distribution of controlled substances.” By criminalizing cannabis, the purposes of the CSA was to “combat drug abuse, prevent the diversion of drugs from legitimate to illicit channels, and eliminate ‘[t]he illegal importation, manufacture, distribution, possession, and improper use of controlled substances.’”A multitude of substances are placed by the CSA into five distinct schedules based on each substance’s medical use, potential for abuse, and safety or dependency liability. Under the notion that cannabis has “no currently accepted medical use” and “high potential for abuse,” Congress listed cannabis as a Schedule 1 drug, thus placing it in the most restrictive category. Effectively, this made the cultivation, distribution, or possession of cannabis a federal crime. Serving as a standard for various state laws, the CSA brought on a new era of marijuana reform, and within a few years of its passing, cannabis was prohibited in all fifty states. Nevertheless, due to cannabis availability in black markets and the enforcement of laws proved to be racially disproportionate, reconsideration of the prohibition became a state focus. States began to embrace popular advocacy for not only the disparate criminalization between minorities and whites, but also commenced reexamining cannabis use vis-à-vis the potential medicinal benefits.
The Canadian Way-Eh
Early Developments Thanks to Opiates
Cannabis in Canada endures the similar fate of inconsistent methodologies to combat the issues as it has in the United States. Just like its southern neighbor, initial cultivation of cannabis in Canada predominately served the hemp industry, and its use was considered to have medicinal value. Likewise, Canada’s history is equally plagued with discriminatory and nationalistic ideologies in order to combat the war on drugs. The use of Chinese migrant workers for railroad construction and gold mining was as prevalent in Canada as in the United States, and both countries dealt with the opiate addiction allegedly be brought by the Chinese.
Completion of many of these projects by Canadian companies, lead to the unnecessary need of further Chinese labor, resulting in thousands of these workers being left homeless and thereby creating a serious immigrant crisis. In its attempt to control the crisis, the Canadian government moved to enact the Opium Narcotic Act of 1908; prohibiting the import, manufacture and sale of non-medicinal opiates. Albeit that the Act was designed by the Canadian government to “eliminate an undesired element of the labor pool” (the Chinese) the act is currently the basis for all government dealings with illicit drugs. However, issues of enforcement emerged and the development of Chinese opium smuggling networks prompted the government to revitalize the Act of 1908 into the Opium and Drug Act, which was promulgated in 1911. The Act not only covered opiates, but the government expanded the list to other prohibited drugs. Furthermore, an amplification of minority criminalization of drug possession and use in the States, prompted comparable approaches in Canada coupled with the support of the MacLean’s Magazine, which published a series of articles regarding illicit drugs in Canada.Analogous to the American demonization of cannabis use with the association of minority groups and crime, these articles written by Judge Emily Murphy, professed a white only Canada by claiming:
“Addicts to this drug, while under its influence, are immune to pain, and could be severely injured without having any realization of their condition. While in this condition they become raving maniacs and are liable to kill or indulge in any form of violence to other persons, using the most savage methods of cruelty without … any sense of moral responsibility. When coming from under the influence of this narcotic, these victims present the most horrible condition imaginable. They are dispossessed of their natural and normal will power, and their mentality is that of idiots. If this drug is indulged to any great extent, it ends in the untimely death of its addict.”
Murphy’s stance on marijuana prohibition derives from discriminatory sentiments akin to Narcotics Commissioner, Harry J. Anslinger, in claiming marijuana as a “menace to society” with references of use in minorities making them violent and insane, particularly Mexicans. These articles later compiled into a book entitled “The Black Candle,” were used by prohibitionists “for the express purpose of arousing public demand for stricter drug legislation.” Indeed, Murphy’s contentions potentially incited the Canadian government in extending the Opium and Drug Act to include cannabis as a prohibited drug in 1923.
Canadian use of cannabis escalated in the 1960s and 1970s, prompting extreme amounts of drug convictions and arrests throughout the country. In 1972, talks of a liberalization of Canadian drug policy, whilst the persistent negative perception of marijuana, ensued by the Commission of Inquiry into the Non-Medical Use of Drugs, also referred to as Le Dain Commission. The commission recommended a repeal of cannabis prohibition based on extensive research findings that “the social cost . . . did not justify the nation’s current drug policies.” However, like the American Medical Association’s recommendations to Congress, negative perception of cannabis use provided for the government to discount the assertions to reclassify cannabis under the Narcotic Control Act. Aside from an amendment to the Act allowing prosecutors to proceed with cases under lesser offenses, the Le Dain provoked the formation of Non-Medical Use of Drugs Directorate (NMUDD). In response, pivoting focus on health considerations instead of criminal sanctions.
加拿大的大麻使用在20世纪60年代和70年代逐步升级，导致全国各地的毒品定罪和逮捕人数达到了极端水平1972年，谈到了加拿大毒品政策的自由化，同时对大麻的持续负面看法，随后出现了药物非医疗使用调查委员会，也被称为Le Dain委员会。基于广泛的研究发现，委员会建议废除大麻禁令，因为“社会成本……并不能证明国家现行的毒品政策是合理的。"然而，就像美国医学会向国会提出的建议一样，对大麻使用的负面看法使政府对根据《麻醉药品控制法》将大麻重新分类的说法不以为然。除了对该法案的一项修正案，允许检察官对罪行较轻的案件进行审理外，Le Dain还促使成立了非医疗使用药物理事会作为回应，将重点放在健康考虑上，而不是刑事制裁上
Likewise pressures from the Reagan Administration its infleunce global drug policy, pushed Canada to enact the Drug Strategy in 1987 in order to enforce, treat, and prevent drug use. However, the program became a failure once funding ended, and in 1997 Parliament instated the Controlled Drugs and Substance Act, replacing the Narcotic Control Act. Nevertheless, Parliament rescheduled cannabis from Schedule 1 to Schedule 2, where penalties for possession, distribution, and production were lessened; particularly for personal medicinal use. The CSDA defines any substances “that can alter consciousness as a controlled substance,” and brought to Canada the American-driven strategies towards the “war on drugs,” which later found to be as unworkable as in the states, calling for provincial and federal government intrusion. Dispute active regulation and enforcement, marijuana use and distribution increased significantly, as reported by the Royal Canadian Mounted Police (RCMP), stating “marijuana production activities will continue to increase” because of the popular use among individuals and pervasiveness of black markets making marijuana available.
While Parliament’s determined contention of the dangers of cannabis use, advocates against prohibition pushed for reform of marijuana policy arguing the basis for the draconian law as “idiotic, unfounded, and inaccurate.” Advocates claimed the government maintained the prohibition of marijuana by the dissemination of propaganda and the use of medical studies that are outdated and discredited by the scientific community.” Particularly, these advocates denounced the American influence on the war on drugs in Canada, calling for Canadian independence on the matter and eventual marijuana reform “would put tremendous pressure on U.S. lawmakers to do the same.” Realizing these conflicting methodologies continued to be undermined by black market and popular opinion regarding legalization, Canada since moved to significantly alter laws regarding medical marijuana access, and presently the government is considering full legalization of recreational marijuana to alleviate these persisting conundrums.
Effects of Prohibition and the Road to (Potential) Legalization: A Story Of Different Approaches
Since the passing of controlled substances acts, Canada and the United States instituted diverging views on the management of cannabis policy. Attributing to such opposite approaches is the rise of liberal and progressive moments in Canada at the start of the millennium, while a rise of conservative and right-wing inclinations prompted more enforcement and control in the United States. Furthermore, the Canadian government’s progression of legalization focuses on a balance in crime prevention and an individual right to use marijuana for medicinal purposes, while the American approach is silent of individual rights, crime and drug prevention are at the forefront of American federal policy. This next section will outline the legalization process in each country, as well as discuss the effects on prohibition on such a process.
State Disobedience: Policies Puzzling the Future In The United States
Notwithstanding the federal ban, since 1996 states have implemented legislation allowing the use, production, and distribution of medical cannabis, citing to the potential health and economic benefits. Ironically, California, one of the first states to criminalize cannabis, became the first state to legalize medical cannabis, sparked by political and popular support for marijuana use for terminally-ill patients. California’s Proposition 215 became the longstanding model for reform at the state level, with the condition that legal use of medical cannabis is possible when recommended and prescribed by a medical physician for treating a medical condition. Presently, either through ballot initiative or state legislative process, twenty-nine states and District of Columbia, have enacted laws modeling the California initiative of legalizing medical cannabis, and including within this list, along with the D.C., eight states have legalized marijuana for recreational use.
Moreover, certain provisions of state medical and recreational cannabis laws are designed to shield individuals, doctors, and others in the industry from state criminal prosecution. States where recreational marijuana is permitted “impose state controls akin to the more restrictive state laws regulating the sale of alcoholic beverages.” While state legalization of both medical and recreational cannabis are in force, this violates the Federal CSA ban on marijuana. With other states following suit, lingering constitutional questions on the constraints of the relationship of federal and state law, will foster instability and ambiguity in “states that are pioneering new approaches to marijuana control.” The cannabis market in United States and Canada are growing at an extraordinary rate that is purported that the market will surpass the gains of the dot-com era by a projected growth of 25% per year. This exploding market calls for federal reassessment in potential initiatives towards establishing a legitimate market, particularly with the pendency of Canadian recreational legalization of marijuana due in 2017.
Federal Indecision Exacerbating the Uncertain联邦政府的犹豫不决加剧了不确定性
As states move for legalization of cannabis either for medical or recreational use, conflict in federal and state law places the use, production, and distribution of cannabis in a dual state of compliance and violation. Marijuana policy in the United States witnessed an acute progression under President Barack Obama, chartering an end to the Bush administration’s frequent raids of medical marijuana distributors and the inconsistent application of federal and state law. In an informal policy, President Obama announced that the federal government has “bigger fishes to fry,” and the focus on drug enforcement should be geared towards the black market and not the legitimate state market.
Likewise, Deputy Attorney General David Ogden in 2009 issued a memorandum providing guidance and clarification regarding federal prosecution in state which have legalized medical cannabis. The memorandum specifically declares the “pursuit of [federal] priorities should not focus federal resources in  States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” The memorandum, although useful for some clarification on state compliance, nevertheless, leaves states in limbo when facing federal “investigation or prosecution even where there is clear and unambiguous compliance with existing state law . . . where investigation or prosecution otherwise serves important federal interest.” Even with such cautionary language, the post-memorandum effect demonstrated an optimistic future for a “hands-off policy to enforcing federal marijuana laws in states authorizing marijuana under state law.” However, an upsurge in the “commercial cultivation, sale distribution, and use of marijuana for purported medical purpose,” provoked DOJ response in a 2009 memorandum by Deputy Attorney General James M. Cole. Responding to state authorization “of large-scale, privately operated industrial marijuana cultivations centers,” the Cole Memorandum clarified the scope of the Ogden memorandum declaring the government “never intended to shield such actives from federal enforcement action and prosecution, even where those activities purport to comply with state law.” Therefore, those “who are in the business of cultivating, selling, or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the [CSA] regardless of state law.” Since the issuing of the memorandum, state and federal prosecution of those involved in the marijuana industry skyrocketed, causing many states to hold off on legislation expanding their medical marijuana programs or programs for recreational use.
Deputy Attorney Cole provided a subsequent memorandum responding to the passing of recreational marijuana laws by Colorado and Washington, by announcing a waiver on legal challenges to recreational laws, but reserving right to interfere with criminal prosecution actions [i]f state enforcement efforts are not sufficiently robust.” Federal intrusion would ensue if there is a lack of state compliance under eight outlined priorities, or implementation of state laws that would otherwise “stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” These communications by the federal government provide some, but minimum guidance in respect to state law compliance, thereby leaving an undefined road towards solving the federal-state conflict. Recently, the federal government declined rescheduling cannabis under the CSA in 2016, by stating cannabis contains no medicinal value. Aside from a few recent clarifications, the federal government remains mute in the reclassification of cannabis, state legalization, the conceivable medical benefits of cannabis, and the potential outright legalization. In a sense, the government has failed in mitigating prevailing issues that are a by-product of cannabis prohibition.
The federalism anomaly poses a variety of constitutional questions, which have received little to no answers regarding the cannabis state experiment. However, in Gonzales v. Raich, the Supreme Court held the cultivation, production, and distribution of medical cannabis is well within Congressional Commerce authority. Notably, the Court’s opinion in Raich dealt solely on the question of Congress’ Commerce power to regulate and prohibit “intrastate possession and use of marijuana,” but made no comment on whether state law permitting the use of medical cannabis was preempted by CSA. Further exacerbating the unknown, the Court neglects to discuss a solution to this real-life law school exam hypothetical regarding the doctrines of preemption and anti-commandeering, thus, leaving federal and state initiatives in an incongruent positions.
The Constitution’s Supremacy Clause establishes the preemption doctrine by declaring federal law “the supreme law of the land” and the “fundamental principle of the Constitution is that congress has the power to preempt state law.” This bears the constitutional question assessing whether States legalizing cannabis are preempted by the direct conflict with the CSA. Nonetheless, while a conflict exists, the CSA does not entirely preempt state marijuana laws due the Tenth Amendment’s anti-commandeering doctrine, and a CSA provision clarifying “Congress did not intend to entirely occupy the regulatory filed concerning controlled substances or wholly supplant traditional state authority in the area.” The anti-commandeering doctrine institutes a federal restriction that insulates States from the enforcement, development, or maintenance of federal law. Thus, the federal government is precluded from obligating states to enact legislation on intrastate regulation regarding an activity commonly regulated by the federal government. Additionally, the federal government is precluded from forcing state executive official to be commandeered by the federal government for the purpose of carrying out federal law. Likewise, the preemptive power of the federal government is expressly limited in the CSA unless “a positive conflict between” state and federal laws makes it either “physically impossible” to comply with both laws, or the state law “stands as an obstacle to the accomplishment and execution” of congressional objectives.” While there are some consistencies in preemption and anti-commandeering, scholars affirm remaining ambiguities in the law leave an opportunity for preemption of the CSA, which may prevent state protection of citizens complying with state law. Even more straining is the uncertain future in federal stance on cannabis with a majority republican controlled government and the appointment of Jeff Sessions as Attorney General, who have spent decades opposing legalization.
As more states join legalization, the issue of preemption remains undefined and until the Supreme Court opines on the subject, states may experience federal intervention, which potentially may overrule state initiatives. Not only does the federalism conflict set compliance with the law uncertain, but the CSA’s ban on cannabis makes it so those involved in the cannabis industry cannot deposit legitimate profits in banks, and are finding themselves at risk of theft by incurring piles of cash inside their business. Pressures from the government results in banks shunning away those engaged in cannabis commerce under the fear of federal prosecution for money laundering. Lack of uniformity, or even federal guidance, makes it unmanageable to regulate or tax cannabis businesses operating exclusively by cash, and with such high profits its money the State along with the people are losing from a legitimate enterprise. Until there is a federal prescription guiding States with these issues, the federal ban on cannabis will remain defaming the current legal industry, making it nearly impossible for banks and other industries, to perceive cannabis as a legitimate industry. Additionally, businesses involved in the legal market or individuals simply seeking legal advice, are encountering inconsistent state regulations when accessing attorneys or even for attorneys to represent such individuals.
The federal ban coupled with the most recent DOJ memorandum, mark participation or knowledge of legal marijuana commerce as an efficient breach of CSA; thus attorney providing such entities or individuals with legal assistance may find themselves conceivably violating ethical codes of the state bar that refer to the Model Rules of Professional Responsibility. States like Arizona, Colorado, and Washington have a relaxed by cautionary approach, expressing a need for attorneys to keep in mind of the federal prohibition when advising clients as well as stating no intention of attorney discipline by the bar for those “who in good faith advice or assist clients . . . in strict compliance with the state and its implementing regulations.” Main and Connecticut have ambiguous approaches stating “the Rule governing attorney conduct, does not make a distinction between crimes that are enforced and those that are nonetheless a federal crime.” These States advise attorneys to be aware of the risks and should evaluate where to draw a line “between permissible and forbidden activities on a case-by-case basis.” The complications presented by federalism and the government silence and ambiguity, particularly to the access of attorneys and banking, are added exacerbation to the uncertainty of the cannabis industry’s legal status. The U.S. would be in a vulnerable position once Canada outright legalizes cannabis, placing the U.S. at a disadvantage in being a global competitor in a market spearheaded by Canada.
Canada’s Legalization Of Medical Marijuana and The Future Of Recreational Use
The legalization initiative in Canada is principally a federal government response to disproportionate criminalization of those need medical cannabis as we as a the security of individual rights; rather than state action as in the United States. Canada’s progression towards medical and recreational cannabis legalization, focuses primarily on Parliament’s preferment of health issues, individual rights, and the control of organized crime groups. Contrary from the American legalization process, which focuses regulation and enforcement of drugs based on criminal prosecution, the Canadian government continues to experiment with legalization after recommendations from Le Dain report. This next section will outline the basis for change in Canada under section 7 of the Charter of rights and Freedoms, and the government response to increasing barriers for individuals to obtain medical marijuana. The section will conclude with the future of marijuana legalization in Canada proposed by the Canadian Task Force in 2016.
Supremacy of Section 7 of the Charter: The Basis for Change
Revisions towards legalization stems from Section 7 of the Canadian Charter of Rights and Freedom; supreme law of Canada, which stipulates a similar preemptive effect as the U.S. Constitution, declaring any law contrary to the charter will have no effect. Under the charter, “[e]very has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” These independent, but intersecting rights under section 7 apply to all natural citizens of Canada and can be asserted in the presence of government intrusion of these rights. Between the 1990s and early 2000s, reconsidering the potential medicinal value of cannabis, Parliament applied the guaranteed rights mention above as the basis when accessing of medical cannabis. In 1999, Heath Canada’s Research Plan for Marijuana for Medicinal Purposes stipulated a research plan to discern cannabis’s use for medicinal purposes, and thereafter established the Marihuana Medical Access Program (MMAP). The MMAP amended section 56 of CDSA to allow access to marijuana for medical treatment, but required the issuance of an exemption under the CDSA. Because of the negative stigma of marijuana, many doctors were reluctant to prescribe marijuana as a medicine and individuals found it nearly impossible to obtain the medical exemption, pushing individuals to turn to the black market and risking of criminal prosecution.
Series of Court Decision and Government Response
Increasing criminal prosecution inaugurated legal challenges to section CDSA, causing courts to consider the proportionality of criminal prosecution for possession and cultivation of medical cannabis to an the individual’s right to security. In 2000, the Ontario Court of Appeal issued an opinion to section 56 of the CDSA in R. v. Parker, where an defendant, Parker, growing his own supply of cannabis to avoid the black market was arrested for possession and cultivation of cannabis. The Ontario Court found “[t]he government’s failure to provide reasonable access for medical purposes violated Mr. Parker’s rights under section 7 of the Charter, as he had not only been charged with a criminal offense but was forced to choose between his ‘liberty’ and his ‘health.’” The Court concluded the objectives of the CDSA were to protect the health of citizens, but by preventing access to cannabis the objectives were running counter to the legislative effect, thus the court deemed the CDSA arbitrarily denying “a generally safe medical treatment that might be of clear benefit” as inconsistent with guarantees of the charter and fundamental justice.
Citing the holding of R. v. Morgentaler, the court affirmed the “‘[s]ecurity of the person’ within the meaning of s. 7 of the Charter must include a right of access to medical treatment for a condition representing a danger to life or health without fear of criminal sanction.” The Court found that a blanket prohibition on cannabis possession in the CDSA with no legal source to supply medical marijuana, deprives individuals of the “right to security of the person and right to liberty,” and is therefore unconstitutional under section 7 of the Charter. The Court’s holding inspired current changes in cannabis policy by Parliament, and serves as a blueprint for other courts in determining when principles of fundamental justice are intersecting with criminal law, and potentially impeding on the individual rights guaranteed by the Charter.
Subsequently, the Court’s holding prompted government response to consistencies of the objectives and effects of the CDSA. In 2001, the Canadian Parliament amended the CDSA to allow personal possession and purchase of cannabis for legitimate medical needs and enacted the Marihuana Medical Access Regulations (MMAR). The purpose of the Regulation was to “establish a framework to allow access to marihuana by individuals suffering from grave or debilitating illnesses,” and those seeking medical access must be authorized under one of the three categories of symptoms and disease, and supported by medical practitioners and specialist. While this attempt by Health Canada offered access to medical cannabis to more individuals, without the fear of criminal sanction, the requirements in the MMAR were deemed impossible for many to satisfy, and lead to inevitable debate in the Canadian courts.
Since Parker, medical cannabis reform in Canada endures incremental modification from both government response and Charter challenges to the effects of government regulation that is contrary to the guarantees of section 7 of the Charter. A series of cases and political movements continue to reshape cannabis reform, and have prompted response from the current government to legalize adult use of cannabis, in order to ease the effects of government regulation, under the guise of particular regulations. Much of the MMAR has been long debated for its ambiguity and reservation on the pertinent implications of government regulation on individual access and rights concerning the use medical cannabis. The first major challenge to the MMAR was the regulations limitation on legal access and supply of medical cannabis, which demonstrated that even when a citizen was able to obtain a medical exemption, individuals were still turning to illegal markets for medical cannabis. In 2003, the Ontario Court of Appeal in Hitzig v. Canada, considered a MMAR challenge to the legal supply and access of medical marijuana and determined legislative restriction created a serious impediment for individual access to a legal supply. The claimants asserted the near impossible task to find medical professionals that would authorize their medical exemption and the lack of legal supply, forced claimants to turn to purchasing the drug in the black market. Reviewing the evidence, the Court held the MMAR directly violated rights of liberty and security set by section 7 of the Charter. The Courts holding reaffirms government implementation of processes preventing authorized users to medical marijuana as counter to the principles of fundamental justice, because removing legal access to supply, the government is essentially granting individuals leave to purchase from illegal markets. Requiring citizens to break the law gives rise to heavier criminal prosecution, effectively promoting government disobedience. While the Court did not view the task to obtain medical authorization as impossible or unduly burdensome task, it did note “if in the future physician cooperation drops to the point that the medical exemption scheme becomes ineffective, this conclusion might have to be revisited.” Following this decision, the MMAR was amended to permit authorized users to obtain cannabis from Health Canada and the authorization process to obtain marijuana was further simplified, relaxing the specialist approval process.
Indeed, Canada saw an incredible spike in the number of individuals who were authorized to possess and produce large amounts of cannabis. The regulation of the MMAR in respect to the limitations of obtaining licenses for production as well as the limited amount of cannabis supply available, demonstrated a necessity for modification. Additionally, the amount of production licenses amplified dramatically, but the issue became a lack of government foresight, because the “MMAR did not intend to permit such widespread, large-scale marijuana production” the government quickly recognized “the MMAR did not adequately address the public health, safety, and security concerns that accompanied personal production.” Numerous local and federal complaints expressed the negative impacts of personal production in-house grow operations that posed various “fire safety risks, building code violations, electrical violations, diversion, theft, and children’s safety.” Such worries ensued careful consideration of amendments that would address and improve these expanding issues. The problems with the MMAR were far from over, and on in 2013 Health Canada instituted the Marihuana for Medical Purposes Regulation (MMPR), effectively made medical marijuana legal throughout Canada.Replacing the MMAR, the purpose of the regulations was to addressed the abovementioned issues of health and safety left blank in the previous system. Aside from legalizing medical marijuana to all, the MMPR eliminated personal production licenses and allowing for-profit productions facilities. This new regime is responsible for the current explosion of the marijuana industry in Canada, which in 2014 annual revenues from the industry estimated to reach $1-3 billion by 2024. The MMPR was short-lived due to several inconsistencies with previous policies in the MMAR and individual right under the Charter. The biggest contention was the MMPR did not allow for personal growth of medical cannabis and there were restrictions in only obtaining dry cannabis with no other forms envisioned.
ACMPR: A Joint Approach Between MMAR & MMPR
The expansion of medical marijuana experienced a significant rise after the promulgation of the MMRP, and this began opening legitimate discussions by parliament on the issue of recreational legalization, particularly after the transition from the MMAR to the MMPR. Some even suggests recreational dialogue is now possible by the Conservative government’s inadvertent expansion of the industry in 2013. However, criticism of the MMRP’s deficiencies positioned the government in another stalemate, and pressures from the High Courts together with popular demands, posited a need for a policy improvement that would incorporate the missing pieces. With the MMAR and MMPR working concurrently, the Court in Allard et al. v. Regina, concluded both regulations regarding access, production, and possession of medical marijuana as diverging under the standards proposed in section 7 of the Charter. The Federal Court of Canada opined the MMRP compelling access to get medical marijuana only from licensed producers, whilst denying individuals the ability to grow on their own, infringes individual liberty and security rights protected by the Charter. Most concerning to the court was that “under the current legislation . . . medical marijuana was not appropriately affordable and accessible to Canadians. Consequently, the Court’s decision pressured government amendments to the MMPR and MMAR, and in response the government announced the enactment of the Access to Cannabis for Medical Purposes Regulations (ACMPR) in 2016. Divided into for parts, the ACMPR permits personal growth of medical marijuana or to designate a grower, while having the option of purchasing cannabis from licensed producers. Essentially, the ACMPR by replacing the MMAR and MMPR, consolidates the previous regulations into all four parts. The framework envisioned in the ACMRP, may serve as a guide for the future the of recreation marijuana regulation Canada, and while the proposal of adult use was long-before discussed, the ACMRP and the Allard demonstrates the noteworthy push towards recreational legalization.
The Times They Are a-Changin: Canada May Go Green
The Canadian election in 2015 demonstrated a monumental transformation in Government focus on marijuana legalization for adult use. Liberal Party Leader and elected Prime Minster, Justin Trudeau vowed before and after the election for a parliament push towards recreational legalization. With more than half the population supporting legalization of marijuana in some form, coupled with an immense increase in personal prescription to buy marijuana, Prime Minster Trudeau and a panel of appointed officials, are planning to legitimize the marijuana market and remove from the criminal code the possession and consumption cannabis. The plan, formalized by the creation of the Task Force on Marijuana Legalization and Regulation, is led by Anne McLellan, former deputy prime minister, to ensure a system that would legalize, regulate, and restrict marijuana access to minors. After careful research and investigation of legal markets countries and states in the U.S., the Task Force announced at the end of 2016 a 112 page report outlining how Canada’s legal cannabis market, laws, and regulations will be. In the report, the task force makes clear that cannabis will received further control than government regulation on tobacco and alcohol, in order to ensure it cannot be accessed by minors or by crime organizations. Moreover, the task force addresses recommendations for minimum age to use, it provides public safety guidance—especially on impaired driving—and tighter enforcement in avoiding an overflow of the legal market onto the black market. While this has set for a somewhat relaxation of marijuana policy, the government plans on continuing criminalization on those who access the market without proper authorization. Prime Minister Trudeau has urged law enforcement to continue seeking those who are getting ahead of legalization. Trudeau’s promise will meet its fate in the spring of 2017, but outright legalization may potentially take longer. Time will only tell what the outcome of Canada’s legal market will be, but given government history on legalization and regulation of medical marijuana, Canada may have reach the point of no return.
Pending High Issues and Blunt Solutions悬而未决的重大问题和生硬的解决方案
Currently, cannabis prohibition experiences an undoubted paradigm shift in the move towards legalization, regardless whether it be for medical or recreational use. By the year, the reception of the medical or recreational use of cannabis and/or its decriminalization in the United States and Canada, has seen a growth of more than half in the population. Additionally, Arcview Market Research, including Canada for the first time in the report, noted the North American “marijuana market posted sales totaling at $6.7 billion—a 30% increase from 2015—and projected the market to increase to $20.2 billion by the year 2021 at a 25% compound annual growth. The numbers alone have been some cause for change. Further, the means of these nations towards cannabis reform, though differently managed, creates the prospect of elevating the industry from a national level towards a global industry. However, though a robustly legalized global economy of cannabis is unlikely to happen anytime soon, it is imperative that the two nations brace themselves for the inevitable, by beginning cross boarder reform to uniformly address potential impacts of the future.
Internal Constrains Causing Cross-Border Effects
There are merits in the manner to which the United States and Canada have developed towards a lawful cannabis industry, by responding to societal concerns regarding health and crime. Nevertheless, Canada’s move towards full legalization will conceivably obfuscate its relationship with the United States, especially when the new government- poses deviating views than Obama administration towards cannabis reform. For many, Donald Trump’s campaign and election was unorthodoxly unexpected, and advocates of cannabis reform raises concerns about the trajectory of the cannabis in the United States. The appointment of Senator Jeff Sessions and several other cabinet members leaves the accomplishments of the outgoing government in a state of possible regress. Though, unlikely it may be for Sen. Session and the Trump administration to dismantle existing state laws on both medical and recreational use, as the aforementioned DOJ memorandums illustrate, there is wide latitude for the government to commence more rigid enforcement and regulatory policies. Any prospect of cannabis reform in either acknowledging individual rights, as charted in Canada, and the longstanding federalism conflict, seem grim with the republican majority government. Though state literature acknowledges, but does not granting right to medical access to cannabis exists, this task is yet to be undertaken by the federal government, perhaps will not be a focus of the incoming government.
But what does this mean for the American-Canadian relationship? Well, for starters with such a vehement view of cannabis reform, as noted by a majority of the Trump administration cabinet and Republicans, may promote draconian regulations regarding boarder portal and immigration. Additionally, while some countries have commenced some type of internal drug policy development, major international treaties—initiated by the American effort against the war on drugs—may pressure a hindrance on Canadian prospects of full legalization in the future. Alternatively, Canada may receive immense support from nations, such as Great Britain, Germany, and Israel, to ameliorate global drug policy, which may put the United States to align with countries’ that have taken extreme measures to combat the war on drugs. The two countries are the key players of the Western hemisphere, and both are responsible for creating decisive solutions to current global issues, thus, it is not conducive to continue this cat-fight against legalization. Such an unsettling approach may ruin the regulation of legitimate markets, by perhaps providing further aliment to illicit channels.
Border Control & Immigration边境管制及移民
The extensive boarder between the United States and Canada, includes states that have legalize cannabis either for adult or medical use, but others have not move for legalization at all. Cross-border inconsistencies on the legality of cannabis, present immediate problems to Canada’s plan to legalize, because the Trump administration commented the government firmly intends to keep cannabis illegal at the federal level. Leaving the state to vet for themselves in dealing with border patrol issues, and may force states that have legalized the drug in some way to consider heavier restrictions. Presently, the United States’ border policies results in travel bans to migrants admitting they have used cannabis; an issue Canada continues to plea the American government to remedy. Because border patrol is under the exclusive jurisdiction of the federal government, cannabis at the border is illegal on the side of the free nation.
Additionally, this presents a concern in acquiring American legal representation for Canadians and Americans that have been criminalized for possession, because CSA illegality of cannabis can open an opportunity of ethical infraction for attorneys under the Model Rules of Professional Responsibility. Such limitations of access in Canada are not at all prevalent, instead Canada witnesses a surge of individuals in need of legal assistance by admitting to the use to American border portal agents. This may make for impossible immigration battles between the two nations, and requires keen dialogue to solve the issue. Yet, there is great uncertainty as to how the Trump administration will decide to deal with this, but for now it calls for such individuals to keep an open mind towards cooperative management between the two nations. Moreover, Canadian prospects of legalization commenced a new wave of American citizens making their way to the greater north, which potentially calls for “building a wall in order to keep Americans in” the U.S. Many of these Americans seeking refuge and work permits for various occupations in Canada, are doing so because the booming industry has amplified job creation and will continue to do so at the rate Canada is heading.
American’s uncertain future on cannabis reform may pose significant barriers to Canadian efforts on full legalization. Because both countries are signers to three major UN treaties regarding global drug policy, there may in fact be pressures from the Trump administration to sanction or hold Canada liable for treaty violations. This would not be the first time the United States attempted this. During the Bush administration, then known “drug czar,” John Walters, denounced the Canadian liberal party’s efforts to decriminalize cannabis and liberalization of drug policies. Believing that the “poison” would flow down from the Canadian border, Walters threatened the Canadian government to impose stricter border patrol and moving to hold Canada liable for treaty violations. This pressure ended up being effective, causing the Canadian government to back off from cannabis reform for nearly a decade. A similar situation may present itself in the near future, given that the two nations are in a similar political states as they were during Bush and Chrétien governments. Either country may face serious backlash depending on how the global community reacts the Canada’s drug policy reform. Thus, for Canada to avoid this, the government must denounce the above treaties and then must attempt to reapply to the treaties with expressed reservations. Though, this approach will take time, this may be a remedial manner to avoid damaging relations with the United States entirely.
Though the popularity of cannabis is nothing recent, the progression towards a legitimate market, demonstrate a colossal transformation in the perception on the war on drugs. The potential legalization of cannabis in Canada, puts the country ahead of other developed nations in tackling drug development. As evidenced, drug prohibition has only led to immense political, social, and economic issues, which require a frank discussion between adult leaders. Of the many things the United States can learn from Canada, its compassion for individual security rights under federal law. Drug reform should not be about the criminalization and alienation of people, as the history of cannabis has indicated. Instead, comprehensive reform comes through sincere approaches solving pervasive issues regarding citizen quotidian matters. When there is no government acknowledgment of basic rights that supreme law affords, then there will be a heightened focus on government prerogatives to regulate and enforce, rather than reconsiderations of how governance interferes with basic citizen livelihood. The purpose of this note is to demonstrate how swiftly it is for federal inaction and reaction to creates national filibusters that do not allow for fruitful measures to fix problems affecting the overall functionality of the government. This note’s objective is to create spaces for discussion on matters that we have consistently ignored. While this note does not discuss the racial and discriminatory consequences of existing drug policies, it does insist the reader to be implore such issues tainting the innocent lives of many.