Policy-makers, police and social policy wonks have long known that a criminal record, for whatever offence, does much greater harm to a person’s life prospects than the behaviour for which the penalty was assessed.
If every person who ever put their lips to a joint — or passed said joint to the person next to them — were subject to the penalties in the Criminal Code, Canada, not the United States, would be the world’s leading incarcerator. Of course, that could never happen. Rather, as noted in the 2002 report of the Senate committee chaired by the late Senator Pierre Claude Nolin, enforcement of cannabis prohibition is selective and uneven, falling disproportionately on persons of minority and inner-city status. The same is true of all laws arising from our dysfunctional adherence to 19th-century social engineering experiments in behaviour modification through prohibition. All the current indicators point to the Harper Conservatives doing more of the same — what I have called a strategy of “putting new propellers on the Titanic.” So the policy reform community took notice of Justin Trudeau’s distinction between legalization and decriminalization in a speech in Kelowna in 2013, and welcomed his commitment to do what should have been done at least as long ago as 1972, when the Le Dain Commission report called for it: reduce the role of the criminal justice system in the regulation of cannabis.
Depending on which model of legalization is eventually adopted, it means a couple of big things and a number of smaller things. Among the bigger would be the end of criminalization of essentially consensual behaviour, with huge implications for individual cannabis users and the criminal justice system. Policy-makers, police and social policy wonks have long known that a criminal record, for whatever offence, does much greater harm to a person’s life prospects than the behaviour for which the penalty was assessed. This is true — in spades — where cannabis is concerned, if only because most cannabis users desist in their late 20s (if not earlier) and because cannabis is not, generally, associated with the antisocial or impulsive risk-taking behaviour that often characterizes truly criminal behaviour. Relieving many thousands of persons — particularly persons from marginal, inner-city or Aboriginal communities — of a criminal record would facilitate the integration of these people into mainstream society once they have outgrown their experimental years. This would be a big improvement in the life prospects of such persons.
A second big outcome concerns the role of organized crime in Canadian society. Champions of prohibition — of which there are fewer every year — find themselves in the unenviable position of having to ignore one of its most egregious unintended consequences: the nurturing of organized crime. No one can fathom the tax revenues forgone by Canadian policy-makers’ failure to adopt a model of production and distribution based on alcohol or tobacco. But since Le Dain, organized crime in various forms has established itself in every part of Canada and controls access to most illicit substances, regulating their markets with violence, coercion and threats. Taking cannabis out of the schedule of prohibited substances — by removing Schedule II from the Controlled Drugs and Substances Act — would reduce Canada’s “drug problem” to a relative handful of chronic, usually mentally ill and homeless substance abusers, opening a window for a public health intervention employing state-of-the-art and evidence-informed harm reduction and recovery modalities.
The return of “evidence” — there, I said it again — to the policy menu returns Canada to the forefront of drug treatment. The Trudeau distinction indicates (1) that he understands that prohibition cannot work and can only produce more crime and social disorder and (2) that he or someone close to him is willing to be led by the evidence of what does work to minimize social harm while maximizing resources to produce the best outcomes without employing the heavy and ineffectual hand of the criminal justice system.
The return of evidence to drug policy-making would be no small breakthrough. When an evidence-based system is run properly, policy-makers can expect a stream of tax revenue from cannabis — to say nothing of the peace dividend from reduced use of the criminal justice system — that will make everyone smile approvingly. That revenue stream can be put into treatment, harm reduction, evidence-based rehabilitation for people in need thereof, education, health care and research — long suppressed by criminalization — on the benefits to be derived from cannabis therapy.
Policy-makers would also have to contend with expunging the criminal records of those who had acquired one during the era of prohibition. This would have to be handled on a class-by-class basis: some people’s cases would warrant an absolute revocation of their record, other cases would be more complex. But it would unfair and unjust for persons to be saddled with a criminal record for a crime that is no longer a crime under the new regime. Some thought needs to go into this, but there are other models on offer since Colorado, Washington State, Oregon, Alaska and Washington, DC, have relaxed or overthrown their prohibition regimes. Uruguay and Portugal also have lessons to share with Canada — if Canadians will take them.
One other thing warrants mention: there is early evidence that cannabis displaces alcohol in certain settings and among some populations of users. This is potentially a big deal because alcohol is associated with more social disorder, including impulsive crime, than cannabis. Alcohol is also associated with risk-taking, including impaired driving. While any impairment is problematic, some forms of impairment are more problematic than others because of the kinds of behaviours they provoke and the consequences for persons adjacent to the substance user. On all scales, alcohol is far the more dangerous of these currently used drugs — both to the user and to the persons associated with the user. Thus, any decrease in the use of alcohol — even if it means greater cannabis use — would be a net gain from a social order and public health perspective. This may seem counterintuitive, but if you doubt it, I suggest you ask a cop which substance is the greater problem from their professional standpoint.
Those are the big things. A number of smaller things can be expected too. Canadians are — for reasons unknown — among the more prolific users of cannabis globally. That is unlikely to change under any new regime because the Internet has democratized the production of high-quality cannabis for anyone with a desire to grow their own, and because the plant itself is easy to cultivate, robust in most soils, lovely to nurture and hardy enough to grow anywhere south of the treeline. A modernized regime, however, could erect a gateway between producers and consumers, making it harder for youth to acquire cannabis than it currently is.
A common mythology concerns the black-trench-coated, fedora-sporting “pusher” who stands just off the school grounds vending cannabis from his inside pockets to anyone with cash. That trope is so archaic that only Harper Conservatives buy into it. Anyone with their own kids knows that kids acquire cannabis from other kids — from the kid down the hallway who sells from his school locker. A public health model of cannabis distribution would draw upon our long experience with alcohol and tobacco to ensure that an age limitation is enforced — probably similar to that applied to alcohol — and that persons who are clearly intoxicated are prevented from purchasing until no longer impaired.
We should not expect a dramatic drop in underage consumption of cannabis. That will take time, and may not happen at all. There are many reasons for young people to prefer cannabis if they can get access to it. Still, a responsible public health regime would seek to create barriers to youthful access.
Another thing to expect — which may turn out to be a big thing — will be an increase in experimentation with different strains and blends as baby boomers seek to alleviate the pains of advancing age. Many will prefer cannabis to pharmaceuticals because the side effects are easier to tolerate, the product will be less expensive and the stigma of using cannabis will be erased. Additionally, since the Supreme Court ruling in R. v. Smith, it will be easier to ingest cannabis in edible or other non-smoking forms. The Smith decision returns us to the very early history of cannabis therapy, when it was available in many different forms for many different maladies. The established pharmaceutical interests will not yield this market happily, but the search for a nontoxic analgesic for chronic nonmalignant pain has been the long quest of primary care medicine, and we can expect that as physicians lose their fear of cannabis, many will find their patients reporting good results from cannabis preparations.
If we can learn anything from the experience of our neighbours to the south — Colorado, Washington State, Oregon, Alaska and Washington, DC — the sky will not fall after reregulation and life will go on much as it always has, with the notable changes I have itemized above. Rates of use will probably not spike up nor decline. There’s no reason to expect more impaired driving because — to be honest — cannabis users are already driving, just slower and more cautiously.
Policy-makers will have one big issue to contend with when — as is the most logical outcome — jurisdiction is transferred to provincial regulatory authorities. This is how to strike the right balance between a price that marginalizes organized crime’s role and one that generates revenues to be recycled into socially desirable projects. The challenge is this: per hour of intoxication, cannabis is the cheapest substance known to humankind. People will want to grow it on their apartment balconies, in their basements and backyards — to cultivate specific strains for specific purposes — and the policy costs of limiting home production will be excessive. A lot of creative thinking will be needed here, but the challenges are surmountable.
The biggest breakthrough has already been made by Justin Trudeau in his Kelowna declaration.
Craig Jones is the executive director of the National Organization for the Reform of Marijuana Laws in Canada.