The following is a guest post by Sarah Ettedgui, from Montreal, Quebec, Canada, who worked as foreign law intern this past summer with foreign law specialist Nicolas Boring at the Global Legal Research Directorate, Law Library of Congress. This blog post is part of our Frequently Asked Legal Questions series.
On Wednesday, October 17, 2018, Canada’s first legal marijuana dispensaries opened their doors and marijuana enthusiasts all over the country endured long lines to purchase products. According to figures compiled by the Société québécoise du cannabis (SQDC), in Quebec, more than 12,500 in-person transactions had been conducted within its stores on Wednesday, while more than 30,000 had been made online. Only nine days after cannabis consumption has been made legal in Canada, the SQDC announced it had to slash its operating hours by nearly half due to supply shortage.
Now that cannabis is legal in Canada, here is what you need to know.
Why was Marijuana Originally Criminalized in Canada?
In 1923, Parliament decided to add marijuana to the Schedule of the Opium and Narcotic Control Act, which also included opium, morphine, cocaine and eucaine at the time. Historians have been unable to find a record of any kind of parliamentary debate on the issue, and it seems no explanation was given as for why it was being criminalized.
In 2001, the Canadian Medical Marihuana Access Regulations granted legal access to cannabis for individuals with HIV/AIDS and other illnesses. Authorized patients could grow their own marijuana plants or obtain it from authorized producers or Health Canada.
In the 2003 renowned case R. v. Malmo Levine; R v. Caine, the Supreme Court of Canada dismissed a constitutional challenge to Canada’s criminalization of marijuana possession and confirmed that Parliament had the power to criminalize the possession of cannabis since the “criminalization of the possession of marihuana is a policy choice that falls within the broad legislative scope conferred on Parliament”. Conversely, it was deemed equally open to Parliament to decriminalize or otherwise modify any aspect of the marijuana laws that it no longer considers to be good public policy.
When did Marijuana Become Officially Legal?
During the 2015 Canadian federal election, Justin Trudeau, leader of the Liberal Party of Canada, promised while campaigning to legalize cannabis for recreational use. According to the party’s view, Canada’s system of marijuana prohibition “failed to prevent young people from using marijuana and too many Canadians ended up with criminal records for possessing small amounts of the drug”. On October 19, 2015, the Liberal Party led by Trudeau won 184 seats, allowing it to form a majority government with Trudeau as prime minister.
The Liberal Party fulfilled its electoral promise with the enactment of the Cannabis Act on October 17, 2018, which created a legal framework for controlling the production, distribution, and possession of cannabis across Canada. Canadian provinces and territories are still responsible for determining how cannabis is distributed and sold within their jurisdictions. They have the flexibility to set added restrictions, including lowering possession limits, increasing the minimum age, restricting where cannabis may be used in public, or setting up added requirements on personal cultivation.
This distribution of powers between the federal and provincial levels of government is due to the division of legislative powers and responsibilities between the two orders as outlined in the Constitution Act of 1867. Since provinces may restrict where cannabis can be used in public, this could lead to the ambiguous outcome of citizens having a right to use cannabis in theory, but it being impossible to exercise practically due to potential provincewide bans.
What is Legal in Canada Since the Enactment of the Cannabis Act?
Under the Cannabis Act, but subject to provincial or territorial restrictions, adults who are 18 years of age or older are legally able to:
- possess up to 30 grams of legal cannabis, dried or equivalent in non-dried form in public (see section 8(1)(a));
- share up to 30 grams of legal cannabis with other adults;
- buy dried or fresh cannabis and cannabis oil from a provincially-licensed retailer;
- grow, from licensed seed or seedlings, up to 4 cannabis plants per residence for personal use (see 8(1)(e));
- make cannabis products, such as food and drinks, at home as long as organic solvents are not used to create concentrated products (see section 12(1)(b)).
Since the Cannabis Act came into force, new regulations have replaced the Access to Cannabis for Medical Purposes Regulations with changes to improve patient access of medical marijuana. Cannabis-related offences may still target those acting outside of the legal framework such as organized crimes with penalties proportional to the seriousness of the offence as outlined in the Canadian Criminal Code and the Controlled Drugs and Substances Act.
Where Can One Purchase Cannabis Related Products?
Marijuana is not sold in the same location as alcohol or tobacco but from retailers regulated by provinces and territories. Retailers are prohibited from promoting cannabis (see section 17(1) of the Cannabis Act) and instead must prioritize the health and safety of consumers. To that end, retailers undertake to sell quality, lower-risk products and inform and educate users on how to minimize the health impacts of cannabis.
Moreover, the Canadian government has pledged close to $46 million over the next five years for cannabis public education and awareness activities aimed at informing Canadians of the health and safety risks of cannabis consumption.
Is it Possible to Travel with Cannabis?
The legalization of cannabis and the enactment of the Cannabis Act did not change Canada’s border rules and it remains illegal, without a permit or exemption authorized by Health Canada, to take cannabis or any product containing cannabis into or outside Canada. This is the case even if the person is travelling to places that have legalized or decriminalized cannabis.
Only Health Canada retains authority to issue permits or grant exemptions to import or export cannabis and do so in limited circumstances.
What Will Happen to Previous Marijuana-Related Charges?
Canadians with past convictions of simple possession of cannabis may apply for a pardon with no fee or waiting period since “it becomes a matter of basic fairness when older laws from a previous era are changed” according to Public Safety Minister Ralph Goodale.