Reform in Canada Pretense & Perils

2.9 Decriminalization: Beyond the Here and Now
There are also post-legalization issues to consider.
Experience in US jurisdictions (described in section 3.4 of this report) makes it clear that
a contraband supply of cannabis will survive legalization and thrive as do contraband
supplies for all of our legal drugs (alcohol, tobacco, pharmaceutical). Given the longstanding
existence of contraband cannabis trade in Canada, is it realistic to expect most
cannabis users to take seriously the distinction between legal and illegal cannabis? Is a
young adult at a party, when passed a joint, really likely to ask about the legal status of
the offering, or to even care? And is it reasonable to expect law enforcement to be able
to make the distinction between a legal and an illegal joint, and is it prudent for the
justice system to expend time and resources on providing a ruling based upon making a
distinction? If the new legislation attempts to deal in a harsh manner regarding a
distinction that few key players recognize as critical, reasonable, or practical, does this
pose a risk of bringing discredit to the entire enterprise?
The government must be true to its word in taking “a public health approach” to
cannabis law reform. Given the significant impact of criminalization upon people’s social
determinants of health, the government’s approach should avoid any continuance of a
punitive approach for the simple possession of cannabis. The continued existence of a
contraband trade within both a decriminalization and a legalization regime is assured.
Its continued monopoly under a decriminalization regime is not ideal. However,
establishment of a decriminalization regime may be a reasonable short-term
compromise for the immediate benefit of bringing an end to cannabis use criminalization
and its attendant harms upon Canadians. Our government would do well to recognize
these benefits and to desist with the exaggerated appeals to fear in order to subordinate
decriminalization to legalization as a reform option.
Outside of Canada, support for decriminalization continues to flourish as a viable
approach to reform. The American Academy of Pediatrics (2015) has issued a strong
statement of support for decriminalization while issuing an equally strong
recommendation against legalization. In the US, twenty-one states have decriminalized
cannabis, fourteen of which continue to resist the temptation of commercial legalization
for recreational use (National Organization for the Reform of Marijuana Laws, 2016).
States continue to choose decriminalization rather than legalization. Illinois did so as
recently as May 2016 (Carissimo 2016). Canada’s Task Force on Marijuana
Legalization and Regulation’s Discussion Paper (2016, p9) provided an unreferenced
statement that twenty-two countries have implemented some form of decriminalization
of cannabis. As of November 2016, Wikipedia (2016a), citing individual jurisdictional
sources, provided a count of thirty-two.
The Canadian government’s harshly inflexible stance against decriminalization
continues to stray further from the wave of discourse across the world which
increasingly considers decriminalization, not just of cannabis, but of all drugs. The
countries of Portugal and Czechoslovakia have moved beyond talk and have actually
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