NOTE: John Conroy informed the NORML Canada web maintainer some
time ago that he was not actively maintaining email correspondence. To contact
John, please telephone or write his office. John has always returned my calls, although the phone company seems to route all incoming calls to me from John to my voice mail rather than to the cell phone itself, so I have to call back to actually speak to him.
From:ngeo@openaccess.org
To: jornalsign@yahoo.com
Subject: Canadian Supreme Court ruling
Date: Thu, 5 Feb 2004 18:42:10 -0800
Dear Sir,
I have read some of your web site with interest. I am a Canadian citizen
living in Washington state. I have been following the Canadian cannabis struggle
and particularly the recent Supreme Court decision, which appeared to affirm
the 'constitutionality' of cannabis prohibition. However I believe the cases
in question were fought on the wrong grounds, and I am wondering why section
7 of the Charter of Rights and Freedoms was chosen as protection for cannabis
use, rather than section 2(b), which guarantees freedom of thought, as well
as of belief, opinion and _expression. I wrote an email to Mr. Conroy along
this line some time before the arguments were made in 2002, but received
no reply. I believe section 2(b) remains a viable defense, particularly since
the Supreme Court stated that cannabis is used for the purpose of alteration
of mental function, i.e. for the purpose of thought. After the decision I
again wrote to Mr. Conroy and even telephoned his office, but again received
no reply. I understand following the decision he is now working
on sentencing rather than on trying to fight the prohibition itself. It still
puzzles me why section 2(b) has not been used in a defense; the only reason
I can think is that the defendants in the Supreme Court cases were
afraid to get into that section because freedom of 'thought' seems so airy
that it is almost a given - how can any law infringe on someone's thought?
But that is precisely what cannabis prohibition does. Possibly the defendants were
afraid to get into the subject of 'thought' at all, because of the 'mental'
stigma attached to cannabis use by the prohibitionist regime.
I am not a lawyer,
but I have written a defense against a cannabis possession charge on
the grounds of section 2(b), and I found case precedents which indicate
a 2(b) defense would require the court to consider section 1, which was not
required in the recent cases. Since it must be almost self-evident that cannabis
prohibition infringes freedom of thought, the requirement to consider section
1 would put the government in the position of having to show a 'pressing
and substantial' need for cannabis prohibition, and a law that was reasonable
and demonstrably justified in a free and democratic society. I do not believe
it could pass these tests.
I have no interest in payment; my interest is only to get prohibition
ended in Canada at least.
Yours truly,
David G.
From: ngeo@openaccess.org
To: Bill Carroll(NORML Canada web) jornalsign@yahoo.com
Subject: Re: Canadian Supreme Court ruling
Date: Sat, 7 Feb 2004 10:19:29 -0800
Dear Mr. Carroll,
Feel free to post my letter, and in addition I am enclosing as part
of this email the entire defense against a cannabis possession charge, using
the grounds of section 2(b) of the Charter, which I wrote. As I said, I
am not a lawyer but I believe a lawyer would be able to use it and probably
find other cases to add to the defense. The cases I quote are from the Supreme
Court of Canada web site. There is also a guide to the Charter on the internet
which states that the section 2 freedoms are "set out in the Charter to ensure
that Canadians are free to create and to express their ideas . . . ." Although
it is not a legal document it gives indication as to what freedom of thought
means: freedom to create ideas. I don't remember exactly how I got to the
web site but the guide is by: The Human Rights Program, Citizens' Participation
Directorate, Department of Canadian Heritage, Hull, Québec K1A 0M5,
Telephone: (819) 994-3458, Fax: (819) 994-5252.
I hope you can use this or pass it on to someone who can:
1. Prohibiting possession of cannabis for private personal use under
s. 1, Schedule II, Controlled Drugs and Substances Act, S.C. 1996, c. 19,
infringes freedom of thought which is guaranteed by s. 2 (b) of the Canadian
Charter of Rights and Freedoms, and this infringement is neither reasonable
nor demonstrably justified in a free and democratic society as required by
section 1 of the Canadian Charter of Rights and Freedoms.
2. In R. v. Malmo-Levine; R. v. Caine (2003) SCC 074, the Supreme
Court held that use of cannabis causes alteration of mental function and
in those cases, that alteration of mental function is the purpose for which
cannabis is used. Mental function requires continuous change in cerebral
and other bodily electric waves. Alteration in cerebral and other bodily
electric waves is essential and integral to mental function. Therefore mental
function itself causes alteration of mental function.
3. Section 2 of the Canadian Charter of Rights and Freedoms states:
Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom
of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
'Thought' is a unique freedom established in and by the Charter, and
its free exercise is guaranteed by the Charter.
4. There appears to be no guiding legal authority as to the definition
of 'thought'. Common usages of the word 'thought' can be found in various
dictionaries. Webster's Revised Unabridged Dictionary (1913) defines 'thought'
in the following ways (among others): -The act of thinking; the exercise
of the mind in any of its higher forms; reflection; cogitation. -Meditation;
serious consideration. -That which is thought; an idea; a mental conception,
whether an opinion, judgment, fancy, purpose, or intention.
5. The noun, 'thought', is derived from the verb, 'think', which is
defined by the same dictionary as follows (among others): -Judge or regard;
look upon; judge. -Expect, believe, or suppose. -Use or exercise the mind
or one' s power of reason in order to make inferences, decisions, or arrive
at a solution or judgments. -Recall from memory; have a recollection. -Imagine
or visualize. -Focus one's attention on a certain state. -Have in mind as
a purpose. -Decide by pondering, reasoning, or reflecting. -Ponder, reflect
on, or reason about. -Dispose the mind in a certain way. -Have or formulate
in the mind. -Be capable of conscious thought. -Bring into a given condition
by mental preoccupation.
6. There appears to be no guiding legal authority as to the definition
of 'mental function'. Webster's Revised Unabridged Dictionary (1913) defines
' mental' as 'of or pertaining to the mind; intellectual; as, mental faculties;
mental operations, conditions, or exercise.' And 'mind' is defined there
as: - The intellectual or rational faculty in man; the understanding; the
intellect; the power that conceives, judges, or reasons; also, the entire
spiritual nature; the soul; -- often in distinction from the body. - The
state, at any given time, of the faculties of thinking, willing, choosing,
and the like; psychical activity or state; as: (a) Opinion; judgment; belief.
(b) Choice; inclination; liking; intent; will. (c) Courage; spirit. - Memory;
remembrance; recollection; as, to have or keep in mind, to call to mind,
to put in mind, etc.
7. Both 'mental function' and 'thought' can be identified as the same
changing cerebral electric waves. Alteration, or change, is the essence of
'mental function', and of 'thought'. To say that cannabis alters mental function
is to say nothing more than that cannabis changes the thought of an individual.
If this change results in a particular observable underlying pattern of
cerebral electric waves different from its equivalent without cannabis use,
the purpose for which cannabis is used might be described as to achieve
a particular underlying pattern of cerebral electric waves, or ' state'
of brain wave activity. Other bodily electric waves alter cerebral electric
waves, and vice versa. All bodily functions are functions of electric waves.
8. It is clear from the above usages that 'thought' and 'mental function'
are integrally connected, most clearly by the adjacency of 'the act of thinking'
and 'the exercise of the mind in any of its higher forms' as the first definition
of 'thought'. The word 'mind' appears in the definition of thought both
in the active sense (e.g. 'the exercise of the mind') and in the passive
sense (e.g. 'a mental conception'), and the word 'thinking' appears in the
definition of 'mind'. In almost all the alternative definitions of 'thought'
and 'mental function' the intent is very similar if not expressed identically,
with few distinctions. That the differences between 'mind' and 'think' are
small is indicated by the dictionary's description of their roots. The root
of the word 'mind' is traced to the Sanskrit 'man', to think; and the word
'think' is traced to Old Latin(?) 'tongere', to know. It can be no coincidence
that the Sanskrit word 'man', defined by the word whose Latin root involves
thought, is identical to the modern English word 'man', whose roots are
also traced to the Sanskrit words 'manu', 'manus', and ultimately (though
with reservation by the dictionary authority) to the Sanskrit word 'man':
to think. The human characteristic that separates us from all other natural
creations is our ability to think. The Biblical creation story tells of
the moment of the rise of the human race: the eating of the fruit of the
tree of knowledge of good and evil, which in view of recent archeological
discoveries is quite likely the cannabis plant. (In Webster's Online Dictionary,
'psychoactive' is defined as 'affecting the mind or mood or other mental
processes; those drugs which alter sensation, mood, consciousness or other
psychological or behavioral functions'. By that definition, all food is
'psychoactive', since without food an individual loses consciousness.)
9. The similarities between the usages of 'think' and 'mind' are such
that any perceived difference can be said to be due to their different roots
in different regions and the usages attached to those roots over time. Mental
function can be said to be the act of thinking. Alteration of mental function
can also be said to be the act of thinking. If a distinction is made between
mental function and thought, it remains that mental function, or psychic
activity, gives rise to thought; and altered mental function also gives
rise to thought.
10. Section 1 of the Charter states as follows:
The Canadian Charter of Rights and Freedoms guarantees the rights
and freedoms set out in it subject only to such reasonable limits prescribed
by law as can be demonstrably justified in a free and democratic society.
11. Cannabis use produces thought of a kind that is not produced without
its use. Cannabis prohibition has the effect of prohibiting a kind of thought,
namely that thought produced by the use of cannabis.
12. Because they are of such fundamental importance to the existence
of a free and democratic society, the freedoms guaranteed by section 2 (b)
can be infringed only when the infringement can be justified according to
section 1 of the Charter. In Ford v. Quebec (Attorney-General) [1988] 2
S.C.R. 712, The Court stated:
[755-756] The issue . . . is not whether the guarantee of freedom
of expression . . . should be construed as extending to particular categories
of expression, giving rise to difficult definitional problems, but whether
there is any reason why the guarantee should not extend to a particular kind
of expression . . . .
In light of this, a question as to whether section 2(b) protects the
free exercise of thought by cannabis use, or protects the thought created
by cannabis use, which is infringed by cannabis prohibition, becomes a question
as to whether there is any reason why the guarantee of freedom of thought
should not include the particular prohibited exercise or thought.
13. In R. v. Keegstra, [1990] 3 S.C.R. 697, with regard to the freedom
of expression guaranteed by section 2(b), the Court stated that a "large
and liberal" interpretation is given to section 2(b), and that this interpretation
indicates that:
[699] It is inappropriate to attenuate the s. 2(b) freedom on the
grounds that a particular context so requires. The large and liberal interpretation
given to freedom of expression indicates that the preferable course is to
weigh the various contextual values and factors in s. 1 of the Charter. .
. . This section both guarantees and limits Charter rights and freedoms by
reference to principles fundamental in a free and democratic society.
14. In R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, Dickson J.
(as he then was) states as follows:
[337] Freedom in a broad sense embraces both the absence of coercion
and constraint, and the right to manifest beliefs and practices. Freedom
means that, subject to such limitations as are necessary to protect public
safety, order, health, or morals or the fundamental rights and freedoms
of others, no one is to be forced to act in a way contrary to his beliefs
or his conscience.
In judging infringement on the freedom of thought guaranteed in section
2(b) of the Charter, in view of the fundamental importance of those freedoms
in a free and democratic society, any constraint on cannabis use as a practice
in the free exercise of thought must be limited to the instances when this
use threatens public safety, order, health, morals, or the fundamental rights
and freedoms of others.
15. The use of cannabis is a practice by which the guaranteed freedom
of thought is exercised; the blanket prohibition of its possession is an
unlimited constraint on that practice since the cannabis user must possess
cannabis in order to use it in the free exercise of thought. The use of cannabis
to create thought, or the free exercise of thought by the use of cannabis,
is a practice within the guarantee of section 2 (b); and cannabis prohibition,
as an unlimited constraint on this practice, must be weighed in light of
the values and factors in section 1 of the Charter.
16. Similarly, the purpose of the guarantee of freedom of thought
in section 2(b) should be examined in light of those same values and factors.
In R. v. Big M Drug Mart Ltd, above Dickson J. (as he then was) stated:
[344] The meaning of a right or freedom guaranteed by the Charter
was to be ascertained by an analysis of the purpose of such a guarantee;
it was to be understood, in other words, in the light of the interests it
was meant to protect.
In my view this analysis is to be undertaken, and the purpose of the
right or freedom in question is to be sought by reference to the character
and the larger objects of the Charter itself, to the language chosen to
articulate the specific right or freedom, to the historical origins of the
concepts enshrined, and where applicable, to the meaning and purpose of
the other specific rights and freedoms....
To identify the underlying purpose of the Charter right in question,
therefore, it is important to begin by understanding the cardinal values
it embodies.
17. Human thought is a miraculous gift, simultaneously powerful and
fragile, immense and delicate, from which all purposeful human activity
flows and on which human survival and growth depends. Thought is the origin
of the belief, opinion and expression whose free exercise is also guaranteed
by section 2(b) of the Charter. In addition to thought being the essential
precursor and interpreter of human speech, complex thought is the power that
separates humans from all other creatures. The effect of the free exercise
of thought, whether in pursuit of knowledge and understanding or in pursuit
of any creative mental or physical activity, is individual health in the
sense of wholeness. The greatest possible diversity of thought, perception,
insight, etc. must be available to the widest possible human audience if
the wisest possible decisions are to be made collectively as the future paths
of human societies. If growth is the creation of new systems out of old,
a human society can never cease to grow or to seek to grow. Human growth
to continue requires that every means or avenue of creative human thought
must be available to all people. That is why history to this point has blessed
those societies which are the most open to the creative instincts embodied
in human thought. If there is a hope for the human race on Earth, it is that
a creative global human society, dedicated to encouraging creative thought,
will emerge from the morass of conflicting selfish interests that characterizes
current relations between national jurisdictions. In growth toward such
a human society, diversity of thought is the interest that the guarantee
of free exercise of thought is meant to protect. Among the cardinal values
provided for guidance by Dickson J. in R. v. Oakes [1986] 1 S.C.R. 103 (below
in paragraph 20), namely respect for the inherent dignity of the human person,
commitment to social justice and equality, accommodatio n of a wide variety
of beliefs, respect for cultural and group identity, and faith in social
and political institutions which enhance the participation of individuals
and groups in society, it is difficult to find any value not embodied in
freedom of thought. And in turn it is difficult to see any of these values
as other than the embodiment of free exercise of thought; values such as
these cannot emerge with free exercise of thought. Free exercise of thought
and free and a democratic society are integral to each other; they cannot
exist separately or one without the other. A society without free exercise
of thought is not free and democratic. It follows that at present Canada
is not a free and democratic society.
18. The historical origins of the guarantee of freedom of thought
appear to be the United Nations Universal Declaration of Human Rights, copied
into the Charter. There appears to be no previous case in which an infringement
on the guaranteed freedom of thought was alleged. Human thought is so personal,
private and closely held that it is difficult to imagine a situation in which
free exercise of thought could be directly impaired by an act of government,
but cannabis prohibition is such an infringement. In this regard, the maturing
of human thought as related in the Biblical chapter of Genesis may be significant.
The opening of the human eyes to awareness of knowledge of good and evil
in the garden of Eden is an account of the birth of human moral awareness.
In view of recent research, it becomes likely that the tree of knowledge
of good and evil was cannabis. Then cannabis may well be the source of human
moral awareness. Cannabis was an ingredient in the holy anointing oil of
Moses, and anointed his tabernacle. Alone among the controlled drugs and
substances and among legal drugs including alcohol and tobacco, cannabis
is a substance which does no long term harm to an otherwise healthy person;
cannabis stimulates both thought and activity, and improves health; yet
in spite of its obvious value and the increasing and wide use and acceptance
of cannabis, the state seeks to control the use of this substance by a blanket
prohibition, justifying a blanket prohibition by the need to protect a small
minority of Canadians, i.e. for 'public health and safety' reasons, when
all evidence shows that prohibition increases the harm to public health
and safety. The obvious conclusion is that prohibition of cannabis is an
attempt by the state to deter the thought which cannabis produces, on behalf
of those whose interest is to control and limit thought for their private
benefit. As Adolf Hitler, dictator of Germany, is reported as saying, "How
fortunate it is for governments that the people they administer do not think."
19. Cannabis use is not simply an individual exercise of free thought;
it is also an exercise of freedom from thought that is coerced and manipulated
for private profit. Hitler is also reported as saying, "Why nationalize industry
when you can nationalize the people?" Coercion of the people's thought is
nothing less than nationalization of the people. At the same time that human
thought is characterized by unparalleled creative power, it is also a fragile
exercise since although the physical system for thought is inborn, its physical
growth is influenced by the environment in which it grows, and the paths
by which images are transmitted, received, stored and retransmitted in the
cerebral system are influenced both by the cerebral system itself, by external
sense organs, and by the external environment which transmits signals to
those organs. Thought is subject to manipulation of images, and today such
manipulation is practiced on an enormous scale for private profit. The individual
may be free to avoid, ignore or rebut manipulated images, but in society
the individual is continually confronted by them and by those who believe
them; and the individual is not free to avoid persecution due to societal
ignorance created and maintained by manipulated images. For example, systematic
thought manipulation has been occurring systematically in Canada in the
75 years' media campaign against cannabis. Thought manipulation for the
purpose of promoting consumption, regardless of its effect on the health
of its citizens, is an integral and necessary part of Canada's economic
system. A free and democratic, let alone creative, society cannot exist
if citizens do not have freedom to choose to pursue and receive knowledge
and understanding by whatever means they choose, and it is ultimately this
pursuit of knowledge and understanding that draws many individuals to the
use of cannabis in free exercise of thought, in spite of prohibition. Cannabis
is a medium for thought; so is a computer; so is the internet; so is a newspaper;
so are our eyes and ears. The pursuit of knowledge and understanding by
free exercise of thought is impaired when the medium for thought is prohibited.
Whether or not the purpose of cannabis prohibition is to coerce thought so
that only approved, 'nationalized' thought is permitted, the blanket prohibition
on cannabis use is a gross infringement on the free thought and therefore
on the free choice, of a free and democratic society. Protection against
dictatorship by coerced thought, promotion of a wide variety of opinions
and beliefs, maintenance of societal health and ultimately human growth and
survival are some of the "cardinal values" embodied in the guarantee of
freedom of thought. Freedom to use cannabis in exercise of free thought is
essential in promoting these cardinal values in a free and democratic society.
The blanket prohibition on cannabis use is detrimental to these values.
20. In R. v. Oakes, [1986] 1 SCR 103, the Court stated:
[105-6] Section 1 of the Charter has two functions: First, it guarantees
the rights and freedoms set out in the provisions which follow it; and second,
it states explicitly the exclusive justificatory criteria (outside of s.
33 of the Constitutional Act, 1982) against which limitations on those rights
and freedoms may be measured.
The onus of proving that a limitation on any Charter right is reasonable
and demonstrably justified in a free and democratic society rests upon the
party seeking to uphold the limitation. Limits on constitutionally guaranteed
rights are clearly exceptions to the general guarantee. The presumption is
that Charter rights are guaranteed unless the party invoking s. 1 can bring
itself within the exceptional criteria justifying their being limited. ..
Two central criteria must be satisfied to establish that a limit is
reasonable and demonstrably justified in a free and democratic society. First,
the objective to be served by the measures limiting a Charter right must
be sufficiently important to warrant overriding a constitutionally protected
right or freedom. The standard must be high to ensure that trivial objectives
or those discordant with the principles of a free and democratic society
do not gain protection. At a minimum, an objective must relate to societal
concerns which are pressing and substantial in a free and democratic society
before it can characterized as sufficiently important. Second, the party
invoking s. 1 must show the means to be reasonable and demonstrably justified.
This involves a form of proportionality test involving three important components.
To begin, the measures must be fair and not arbitrary, carefully designed
to achieve the objective in question and rationally connected to that objective.
In addition, the means should impair the right in question as little as
possible. Lastly, there must be a proportionality between the effects of
the limiting measure and the objective -- the more severe the deleterious
effects of a measure, the more important the objective must be."
Further in R. v. Oakes, Dickson C.J. stated:
[135-6] It is important to observe at the outset that s. 1 has two
functions: first, it constitutionally guarantees the rights and freedoms
set out in the provisions which follow; and, second, it states explicitly
the exclusive justificatory criteria (outside of s. 33 of the Constitution
Act, 1982) against which limitations on those rights and freedoms must be
measured. Accordingly, any s. 1 inquiry must be premised on an understanding
that the impugned limit violates constitutional rights and freedoms--rights
and freedoms which are part of the supreme law of Canada. . . .
A second contextual element of interpretation of s. 1 is provided
by the words "free and democratic society". Inclusion of these words as
the final standard of justification for limits on rights and freedoms refers
the Court to the very purpose for which the Charter was originally entrenched
in the Constitution: Canadian society is to be free and democratic. The
Court must be guided by the values and principles essential to a free and
democratic society which I believe embody, to name but a few, respect for
the inherent dignity of the human person, commitment to social justice and
equality, accommodation of a wide variety of beliefs, respect for cultural
and group identity, and faith in social and political institutions which
enhance the participation of individuals and groups in society. The underlying
values and principles of a free and democratic society are the genesis of
the rights and freedoms guaranteed by the Charter and the ultimate standard
against which a limit on a right or freedom must be shown, despite its effect,
to be reasonable and demonstrably justified. . . .
[139-40] There are, in my view, three important components of a proportionality
test. First, the measures adopted must be carefully designed to achieve
the objective in question. They must not be arbitrary, unfair or based on
irrational considerations. In short, they must be rationally connected to
the objective. Second, the means, even if rationally connected to the objective
in this first sense, should impair "as little as possible" the right or
freedom in question: R. v. Big M Drug Mart Ltd., supra, at p. 352. Third,
there must be a proportionality between the effects of the measures which
are responsible for limiting the Charter right or freedom, and the objective
which has been identified as of "sufficient importance".
With respect to the third component, it is clear that the general
effect of any measure impugned under s. 1 will be the infringement of a
right or freedom guaranteed by the Charter; this is the reason why resort
to s. 1 is necessary. The inquiry into effects must, however, go further.
A wide range of rights and freedoms are guaranteed by the Charter, and an
almost infinite number of factual situations may arise in respect of these.
Some limits on rights and freedoms protected by the Charter will be more
serious than others in terms of the nature of the right or freedom violated,
the extent of the violation, and the degree to which the measures which
impose the limit trench upon the integral principles of a free and democratic
society. Even if an objective is of sufficient importance, and the first
two elements of the proportionality test are satisfied, it is still possible
that, because of the severity of the deleterious effects of a measure on individuals
or groups, the measure will not be justified by the purposes it is intended
to serve. The more severe the deleterious effects of a measure, the more
important the objective must be if the measure is to be reasonable and demonstrably
justified in a free and democratic society.
21. In R. v. Malmo-Levine; R. v. Caine, 2003 S.C.C. 074, the Court
held as follows:
All sides agree that marihuana is a psychoactive drug which "causes
alteration of mental function". That, indeed, is the purpose for which the
appellants use it. There are concurrent findings in the courts below of "harm"
that is neither insignificant nor trivial. Certain groups in society share
a particular vulnerability to its effects. While members of these groups,
whose identity cannot in general be distinguished from other users in advance,
are relatively small as a percentage of all marihuana users, their numbers
are significant in absolute terms. . . . Advancing the protection of these
and other vulnerable individuals through criminalization of the possession
of marihuana is a policy choice that falls within the broad legislative scope
conferred on Parliament. . . . The questions before the Court are . . .
whether the prohibition, including the availability of imprisonment for
simple possession, is not valid legislation, either because it does not
properly fall within Parliament's legislative competence, or because the
prohibition, and in particular the availability of imprisonment, violate
the guarantees of the Canadian Charter of Rights and Freedoms.
22. The Court found in R. v. Malmo-Levine; R. v. Caine that the prohibition
of cannabis did not infringe on protected Charter rights, which had formed
part of the argument by the appellant. However the appellant did not appeal
on the grounds of an infringement of section 2 (b) of the Charter, and in
that case the Court was not compelled to consider the effect of cannabis
prohibition as such an infringement. The Court found that criminalization
of cannabis possession is a valid exercise of power for the purpose of protecting
public health and safety, and does not violate the applicable guarantees
of the Charter. The finding that cannabis prohibition has as its purpose
the protection of public health and safety is relevant in the context of
a section 2(b) infringement, but the finding that other Charter freedoms
were not infringed is not relevant in this context. The question of whether
the infringement of freedom of thought protected by section 2(b) is reasonable
and demonstrably justified in a free and democratic society was neither
asked nor answered in that case.
23. In view of the direction provided by R. v. Oakes above, the law
enacted for the purpose of protection of public health and safety which
impairs freedom of thought must be rationally connected to its purpose by
careful design, not arbitrary or unfair, to achieve this purpose; the freedom
of thought which it impairs must be impaired as little as possible; its
effect must not be harmful to society to an extent that outweighs the importance
of its purpose; and the law must address a concern which is pressing and substantial
in view of the values and principles of a free and democratic society which
form the source of the freedom of thought which is impaired.
Rational Connection to Purpose; Care in Design, Fairness, Arbitrariness
24. The Controlled Drugs and Substances Act 1996, c. 19 has no statement
of purpose other than that it is an act . . . respecting the control of
certain drugs, their precursors and other substances and to amend certain
other Acts and repeal the Narcotic Control Act in consequence thereof
The Court has held that the purpose of the Act is to protect against
harm to public health and safety. The maintenance and improvement of existing
public health and safety does not appear to be a purpose of the Act, since
public health and safety are harmed more by the Act than they would be without
the Act. If maintenance and improvement of existing public health and safety
is not a purpose of the Act, nor of the state's interest in public health
and safety with regard to the Act, then an Act purporting to protect against
harm to public health and safety, but which increased the harm to public
health and safety, could still be defended as rational since its purpose
was not to maintain or improve an existing state of public health and safety
but merely to protect against harm to it. Such a 'protective' Act would find
a self-perpetuating purpose. A society could be in ruins and such a ' protective'
Act, having created great harm to society, would find an increasingly important
purpose. Would the Court, in judging such a Act's rational connection to
its purpose, find that the Act was not irrational, even though its enactment
increased the harm to public health and safety, on the grounds that its
purpose was simply to protect against the harm to public health and safety?
By prohibiting cannabis use, the Act has increased the risk of harm to public
health and safety by placing cannabis in a black market whose only 'regulation'
for 'non-medical' purposes is 'regulation' of the black market by the police.
Aside from those licensed for 'medical purposes', police officers are the
only individuals in Canada legally authorized to possess and deal in cannabis;
and then only for investigative purposes in enforcement of the prohibition.
25. Since the Act contains no express statement of purpose other than
that above in its title, the purpose of the Act is solely the result of
judicial interpretation which now appears to include the proposition that
criminal penalties for cannabis possession are a statement of social 'disapproval'
expressed through Parliament, with a rational connection to a 'reasonable
apprehension of harm'. In Malmo-Levine/Caine above (para. 136), Gonthier
and Binnie J.J. state:
The criminalization of possession is a statement of society's collective
disapproval of the use of a psychoactive drug such as marihuana . . . and,
through Parliament, the continuing view that its use should be deterred.
The prohibition is not arbitrary but is rationally connected to a reasonable
apprehension of harm. In particular, criminalization seeks to take marihuana
out of the hands of users and potential users, so as to prevent the associated
harm and to eliminate the market for traffickers.
As to a perceived 'collective disapproval' by society, at what point
does an individual's harmless behavior become so offensive that 'society's
collective disapproval' overrides the inherent dignity of the individual?
Clearly in the case of cannabis use, Parliament has taken upon itself to
express 'society's collective disapproval' by infringing on the individual's
freedom of thought. Clearly in view of Ford v. Quebec (Attorney-General),
R. v. Keegstra, R. v. Big M Drug Mart and R. v. Oakes above, only a pressing
and substantial need can justify the individual's inherent dignity being
overriden by 'society's collective disapproval', particularly in the case
of generally harmless behavior, and particularly in the case of a crucial,
determining factor in maintenance of a free and democratic society.
26. If the purpose of prohibition (criminalized or not) of cannabis
is to prevent a perceived harm associated with cannabis use while at the
same time to 'eliminate the market for traffickers', it is an irrational
purpose. Prohibition creates a harm associated with cannabis use, namely
the harm of the black market, that would not exist if cannabis use were
not prohibited; while increasing the risk, if any, of harm through naïve
use by creating that same black market. Thus prohibition creates the very
harm it purports to protect against. To justify prohibition on the grounds
that its purpose is to eliminate the market for traffickers is also irrational,
since it is prohibition itself which creates the very black market whose
elimination it takes as its purpose. Without traffickers there would be
no market for traffickers, since the market would be legal. There is little
risk of harm to the user associated with cannabis use per se, but prohibition
creates a harm by forcing cannabis users to obtain cannabis in the black
market, placing them unnecessarily in harm's way, both as illicit customers
of illicit traffickers who additionally will target naïve users, and
as 'offenders' in the eyes of the police who 'regulate' the market. By far
the greatest part of the harm associated with cannabis use, both to the
user and to society, is the harm created by prohibition. Cannabis use is
manifestly desired by large numbers of Canadians regardless of 'society's
collective disapproval', if such disapproval does in fact exist and is based
on reason; and it is widely used with little risk of harm other than the
harms of the black market.
27. Parliament has created a class of outlaws in order to punish the
outlaws it has created, with great harm to Canadian society. Since cannabis
use has not been legal for several generations, it cannot even be said that
the alleged harm associated with cannabis use per se, for example to people
with underlying schizophrenic conditions, would occur if cannabis were used
in a legal environment. The unstable nature of the black market is virtually
an invitation for misuse by people who in a legal environment would be engaging
in an entirely lawful exercise of free thought, without any of the guilt
and persecution associated with the irrational prohibition. Someone who feels
unjustly persecuted is justified in this feeling if the persecution is in
fact unjust. Such unjust persecution is entirely due to prohibition. The
unjust and irrational exercise of prohibition is aided and abetted by indirect
coercion of expression and thought, in the form of public comments by public
officials who misrepresent the effects of cannabis use, and persecute cannabis
users, in order to defend prohibition and attack the black market; but who
fail to advise society that without prohibition there would be no black
market. These public comments reinforce society's collective, but irrational,
disapproval of a substance and its users, by associating them with a black
market for which society has a rational fear.
28. Increased general use, the ruthless targeting by traffickers of
new groups, including the very groups such as adolescents which the Court
has identified as being 'at risk', and the naïve use and misuse which
occurs as a result of intentional and unintentional misinformation about
the effects of cannabis by its being under a blanket prohibition, all increase
rather than reduce both the general threat to public health and safety and
the individual harm associated with cannabis use. Strengthening enforcement
only strengthens the black market, driving up prices, causing greater expectation
of high profit, forcing development of new markets, etc. This 'war on drugs'
has two sides, with the population in the middle, and a move by one side
will meet a response by the other side. Prohibition has never been shown
to work to achieve its intended purpose of decreasing consumption. And its
very enactment creates the 'market' it then purports to eliminate.
29. The perceived harm to society associated with cannabis use, aside
from the harm caused by prohibition, includes generally undefined 'welfare'
costs to society, and specific harm from impaired driving or impaired operation
of machinery. 'Welfare' costs can only be measured as financial costs, and
include medical costs incurred by those who naively misuse cannabis in a
climate of social ignorance of its effects; for example chronic users or
naïve abusers, who may experience temporary symptoms of schizophrenia
(although cannabis has not been shown to cause the underlying condition,
which has been shown to be due mainly to hereditary and family influences
and maternal nutritional deficits) and then require 'treatment'; or vaguely
understood costs of lost productivity by underachieving adolescents who require
public support. The combined financial costs from the use of all ' illicit
drugs', for example the costs of hospital admission and medical treatment,
pale by comparison to the financial costs of enforcing prohibition; and the
indefinable 'welfare' costs do not account for indefinable cost benefits
that could be achieved by use of cannabis as a therapeutic drug for treatment
of individuals now treated unsuccessfully or simply ignored at great 'cost'
to the welfare of society. The indefinable 'welfare' costs are largely an
illusion perpetrated in the interest of prohibition, and are increased, not
decreased, by prohibition. Prohibition of cannabis increases rather than
decreases the harm to society from such 'welfare' costs. Most of the costs
to society by 'offenders', either through imprisonment or through 'treatment'
in the form of re-education or indoctrination in the values that prohibition
requires, are in truth due to prohibition, not to cannabis use. The small
number of individuals who suffer specific psychotic symptoms due to misuse
of cannabis create a cost that a free and democratic society would be willing
to bear both in order to preserve its freedoms and to improve its health;
but the money now spent imprisoning, hospitalizing and 'treating' at-risk
cannabis users would be better spent on research into the causes of schizophrenia
in order to be able to identify 'at risk' individuals, and even better spent
on research into other mental illnesses. Treated mental disorders now appear
to afflict approximately one-fifth of the Canadian population, with an larger
undefined number of Canadians afflicted by stresses that contribute to these
disorders, yet there is little acknowledgement of the harm Canadian society
in its current form is evidently inflicting upon its own members. Ultimately,
the prevalence of 'mental illness' is both defined by and a reflection of
the health of a society. If a society is not healthy, 'mental illness' will
become increasingly prevalent. Regardless of the general failure of policy,
the specific legal enactment of prohibition, by forcing cannabis into a
black market, increases the number of 'at risk' individuals who will use
cannabis by forcing traffickers to target alienated social groups who by
definition bear no love for society. The prohibition-black market system
both increases the outright harm to public health and safety caused by the
black market, and by diversion of resources into its ever-widening 'war on
drugs', increases 'welfare' costs by the wasteful priority given to enforcement
of prohibition.
30. The only potential for specific harm to others by cannabis use
noted in Malmo-Levine/Caine is harm caused by impaired driving or impaired
operation of machinery. There is other legislative protection from this
risk, which in terms of estimated number of individuals harmed is small
compared with the known harm caused by alcohol. In view of existing legislation
there is no need to enact further legislation, particularly a blanket prohibition
of cannabis use, in order to protect against possible harm from impaired
driving. But because prohibition encourages criminal traffickers, and because
the authorities do not (and, due to the need to defend prohibition, cannot)
encourage accurate information about cannabis use, naïve misuse is increased.
For example, adolescents who see evidence of little harm caused by moderate
cannabis use, encouraged by their peers, are more likely to drive after using
both alcohol and cannabis, in which case their driving skill will be more
impaired by alcohol than it will be, if at all, by cannabis. This would not
occur if adolescents and adults were informed with the truth about the respective
effects of cannabis and alcohol. Prohibition has the effect of increasing
the risk of specific harm to others, including driving while under the influence
of both cannabis and alcohol and driving while impaired due to ignorant
misuse of cannabis.
31. In short, there is no aspect of the protection of public health
and safety in which prohibition does not increase the very harm it seeks
to protect against. Prohibition of cannabis is manifestly irrational as a
way to achieve its purpose. In the name of public health and safety, it increases
the harm to public health and safety.
32. The self-perpetuating and irrational nature of the prohibition-black
market mechanism, and the improbability of its 'success', is revealed by
a reference in R. v. Malmo-Levine; R. v. Caine, [2000] B.C.C.A. (para. 90)
to the case 30 years earlier of R. v. Hartley (1967), 63 W.W.R. 174 (B.C.C.A.)
(Davey J., para. 179):
This court . . . said that the possession of marijuana is a serious
offence and it must be punished severely. The purpose of course was to deter
the use of marijuana, among other reasons, because users must obtain supplies,
and the supply of the drug involves trafficking, and that, as the market
increases, that traffic becomes organized, and the organized traffic tends
to increase the use of the drug.
33. Rather than leading to the end of prohibition at the point of
this clear admission that the black market created by it was increasing
rather than decreasing cannabis use, the by now obviously irrational attempt
to deter the use of cannabis by prohibition was re-emphasized by severe
punishment. The only reasonable conclusion is that such continuing 'deterrence'
would actually result in increased use. There can be few clearer statements
of the irrational nature of the prohibition-black market system than this.
Use of cannabis is to be deterred because, among other reasons, the deterrence
tends to increase its use! Thus the black market created by prohibition is
used to justify the prohibition. Prohibition is a way to combat the effects
of prohibition; the 'harm' of the drug itself is less important than the
harm of the black market. The irrational or fraudulent exercise of justifying
prohibition because it attacks the black market it creates had been carried
out earlier than 1967. In 1954 Parliament amended the Opium and Narcotic
Drug Act. The purpose of the amendment, in the words of Braidwood J. (Malmo-Levine/Caine,
2000 B.C.C.A. para. 81), was to better combat drug trafficking in Canada:
The new offence of possession for the purpose of trafficking ('P.P.T.')
was created, and penalties for trafficking were greatly increased. As courts
have often stated, the harsh penalties for drug trafficking (as opposed to
simple possession) that were enacted in 1954 indicate that Parliament's primary
purpose was to stamp out the drug traffic and punish the traffickers. . .
.
This statement of Parliament's primary purpose in 1954, 'to stamp
out the drug traffic', is clear evidence that the black market, which Parliament
had itself created in 1908 and to which cannabis had been consigned in 1923,
had become the primary target of the prohibition law. By 1967 the "organized
traffic" of the black market was recognized as tending "to increase the use
of the drug". But prohibition remains in force today, with the irrational
purpose of deterring cannabis use and 'traffic', while infringing on free
exercise of thought.
34. It is clear that prohibition increases the threat to public health
and safety by creating a black market which not only increases cannabis
use but also poses an additional threat to public health and safety by the
operation of criminal gangs who traffic in truly dangerous substances as
well as in cannabis. The law which prohibits cannabis possession is not
rationally connected to its purpose of protecting public health and safety,
since at the moment of its enactment it increases the threat to public health
and safety by consigning cannabis, a beneficial substance whose use is mainly
moderate, whose moderate is harmless, and whose immoderate use is generally
harmless, to a black market.
35. If the recitation above of the 'progress' of prohibition is not
in itself evidence that little care was taken in the design of the prohibition
law, more evidence of this lack of care is that cannabis was added to the
schedule of 'narcotics' without any policy statement or debate in Parliament.
Various courts have noted the climate of 'irrational fear' at the time of
enactment of cannabis prohibition. For example, in R. v. Parker (Court of
Appeal for Ontario, 20000731), Rosenberg J.A. (para. 126) observed:
. . .the cannabis prohibition was enacted in a climate of 'irrational
fear' based upon wild and outlandish claims that its users are driven completely
insane, immune from pain and, while in this state of maniacal rage, kill
or indulge in other forms of violence using the most savage methods of cruelty.
It had been known at that time for thirty years, following the report
of the Indian Hemp Drugs Commission of 1893-4, that cannabis used in moderation
is harmless both physically, mentally and 'morally'. Cannabis has been used
in various regions since the dawn of human history, and its potential as
a 'medicine' in England, where its use was not historical, had been recognized
in the eighteenth century. But in Canada a climate of irrational fear, most
likely encouraged by private interests who saw hemp as a market rival to
petroleum-based industrial materials and chemical pharmaceuticals who aided
and abetted misunderstanding of the effects both of cannabis and its prohibition,
produced an irrational prohibition which was hastily introduced and enacted
with no fanfare, possibly to avoid political embarrassment. Even when cannabis
use became widespread and the irrational fear was exposed, cannabis was
still carelessly treated 'for the purposes of the law' as if it were an
addictive narcotic. Parliament appeared not to care or respect the opinions
of those Canadians who knew it was neither a narcotic nor addictive, who
realized its benefit, demanded its legalization, or questioned the rationality
of prohibition. The entire subject was effectively off-limits, and cannabis
remained carelessly implicated in the scheme of 'dangerous drugs'.
36. There was, and remains, no reasonable attempt to regulate the
use of cannabis in order to produce maximum benefit and minimum harm to
public health and safety. The blanket prohibition is an approach that shows
utter disregard, if not outright disrespect, for inherent human dignity.
Even as the strictly 'medical' benefits of cannabis become more evident,
'medical' regulation is half-hearted and mean spirited. For personal 'non-medical'
use, 'regulation' takes the form of a blanket prohibition in which the police,
the courts and the penal system are the regulators. In view of the lack
of criminality created by cannabis use, there is no need for a ' criminal'
system of market regulation. A carefully designed law would create an orderly
market for cannabis in which the purpose of sanctions would be to ensure
uniform purity and quality standards, purity, weights and measure standards,
licensing standards; and to define and advise responsible use to minimize
misuse by perceived 'at risk' groups. Such a carefully designed law would
both protect and benefit the health and safety of the public while impairing
as little as possible the free exercise of thought.
37. The law is unfair in that in order to protect against misuse by
a small number of 'at risk' individuals and groups, it punishes a much larger
group of people who use cannabis with no risk to health and more likely
a benefit and for whom the use of cannabis is the free exercise of thought.
A greater manifest unfairness is that the law remains in effect because
those who seek election to Parliament must appeal to a group of voters whose
irrational fear of cannabis is reinforced by a rational fear of the black
market . These politicians, particularly those in the government, must draw
attention away from the fact that prohibition is the crime, and lay the
evils of the black market at the feet of cannabis and its users. Political
scare tactics hide the truth of the general harmlessness and potential benefit
of cannabis use. Maintenance of fear for political purposes may be the true
and, in the eyes of politicians, unfortunately 'rational' purpose of prohibition;
but this 'rational' purpose has nothing to do with the protection of public
health and safety, since prohibition creates a threat to public health and
safety, and maintaining prohibition increases that threat.
38. The law is arbitrary in that it places cannabis, which is not
addictive or even inherently dangerous to health, under the same prohibition
with addictive drugs which are dangerous to health, while leaving the addictive
drugs which are most dangerous to health in Canadian society, namely alcohol
and tobacco, untouched. It appears that Parliament may pick and choose which
perceived 'harms' in society it wishes to address without this picking and
choosing being deemed as and 'arbitrary' violation of the 'fundamental principles
of justice'; but when it infringes upon a specific freedom guaranteed in
section 2(b) of the Charter, such picking and choosing must be justified
in view of a pressing and substantial concern. If there are any pressing
and substantial concerns in the area of Canadian public health and safety,
ignoring the harms of alcohol, tobacco and fatty foods to public health
and safety while singling out cannabis for blanket prohibition virtually
defines what is 'arbitrary'.
39. Viewed with respect to the values and principles enumerated by
Dickson C.J. above, namely respect for the inherent dignity of the human
person, commitment to social justice and equality, accommodation of a wide
variety of beliefs, respect for cultural and group identity, and faith in
social and political institutions which enhance the participation of individuals
and groups in society, it is clear that in the design of the law prohibiting
cannabis possession, and therefore its use, there is no respect whatsoever
for the inherent dignity of the human person. The millions of Canadians who
use cannabis are given no credit for having the ability to make up their
own minds, to take care of themselves, or to act responsibly. There is no
accommodation whatsoever of the beliefs of a large number of Canadians. There
is no commitment whatsoever to social justice and equality, but rather the
law persecutes a large number of Canadians whose continuing use of an illegal
substance without harm either to themselves or to society except in police,
court and penal costs, is met with continuing disdain by public and elected
officials, who now propose a patronizing 'decriminalization' which would
retain the social and legal stigma associated with cannabis use while professing
more lenient treatment of 'offenders' against the established order. And
this is in the face of increasing acceptability of cannabis use even among
people who do not use cannabis. Prohibition diminishes the faith of Canadians
in their social and political institutions, and apart from unjustly criminalizing
a large number of Canadians it diminishes the participation of the persecuted
groups in society.
Degree of Impairment of Freedom of Thought
40. Rather than impairing freedom of thought as little as possible,
the blanket prohibition of cannabis impairs to the maximum extent possible
the freedom of the individual to acquire the kind of thought which cannabis
produces. Whereas a carefully designed, rational, and fair law would leave
the great majority of Canadians the free exercise of thought by cannabis
use, limiting the impairment only where necessary the only Canadians currently
freely exercising thought by cannabis use are those who use cannabis legally
for 'medical' purposes. By indirect coercion in the form of negative and
deceitful propaganda which gives 'public' support to an irrational system
of prohibition, many Canadians who would otherwise benefit from cannabis
use are led to believe cannabis is a dangerous 'evil'. Such indirect coercion
of thought may impair freedom of thought to a greater degree than the direct
coercion of prohibition. Clearly there is no attempt in the law which prohibits
cannabis possession to limit the law's impairment of freedom of thought
at all.
41. Viewed once again in light of the values and principles underlying
the Charter, the blanket prohibition of cannabis in order to protect a small
number of 'at risk' people and groups demonstrates no respect for the inherent
dignity of the remainder of the population whose freedom of thought is impaired
unnecessarily by the blanket prohibition. If Parliament were truly committed
to social justice, social equality and accommodation of a wide variety of
beliefs, it could easily find a way to impair freedom of thought as little
as possible in regulating cannabis use without throwing a blanket prohibition
over the whole population. The variety of beliefs which may arise from cannabis
use may prove immensely beneficial to a society which at present cannot be
described as healthy or whole. If those who lead Canada wish to solve economic
and social problems such as unemployment, underemployment, and overconsumption,
they would serve themselves far better by encouraging a wide variety of
perspectives than by discouraging Canadians from participating in solving
these problems. The thought produced by cannabis use may be the thought that
is needed to solve the problems Canada faces. But the person who may have
that thought may be currently prohibited from having it. Thought produced
by the use of cannabis is, in effect, illegally acquired thought.
Harmful Effect of Prohibition
42. The harm caused by cannabis to Canadian society is minuscule in
absolute terms, and trivial in view of the harm caused by legal drugs such
as alcohol and tobacco, and also when compared with mental illnesses due
to prescription drug abuse, when compared with the overall incidence of physical
and mental health problems in Canada, and when compared with the harm to
society caused by cannabis prohibition. The harm caused by cannabis prohibition
in Canada over the past 75 years cannot be estimated financially except
by the enforcement costs incurred in an ultimately doomed exercise which
harms freedom and democracy. These costs are extreme compared with the 'problem'
prohibition is supposed to address. But the unwritten costs to the 'physical',
'mental', and 'social' health of Canadians is enormous and hard to exaggerate.
Beside the damage to public and private institutions created by the existence
of the black market, prohibition of cannabis has damaged the physical health
of individual Canadians by denying them access to the safest therapeutic
substance known to man, and this 'prohibition' continues in the almost punitive
Marijuana Medical Access regulations. There are many more conditions that
can be treated by cannabis than those in the restrictive categories of symptoms.
Cannabis before prohibition was widely used for treatment of many conditions.
The development of synthetic chemical pharmaceuticals, in part made possible
by cannabis prohibition, may have produced more benefit for the corporations
that control the market for these drugs than for the Canadian public. These
drugs may have had the effect of prolonging life, but the prolonged life
of Canadians is now lived with greater physical and mental disease, and at
a greater cost, than ever before. What is described as 'health care' is in
fact sickness care. Hundreds of thousands of people have died prematurely
from the effects of tobacco use; many more have died prematurely from the
effects of alcohol use; there is little sign of 'society's collective disapproval'
of these premature deaths; while a relatively harmless substance, without
harmful side effects, which could and would otherwise have been chosen by
many of those prematurely dead people, is under prohibition. New kinds of
mental illness have developed (or have been invented by pharmaceutical manufacturers
in search of profits) which could and would have been avoided if cannabis
had been legally available. Industries such as the prison ' industry', the
enforcement 'industry', and the drug testing 'industry' have become fixtures
in Canadian society. Criminals and criminal organizations have infiltrated
all social, commercial and political institutions. Canadians have been kept
in a shroud of ignorance not only of cannabis but of the damage their economic
system was doing to them. Respect for the inherent dignity of the human person,
commitment to social justice and equality, accommodation of a wide variety
of beliefs, respect for cultural and group identity, and faith in social
and political institutions which enhance the participation of individuals
and groups in society, all have been diminished over the period of prohibition.
Canadian society is in many ways a sick society in need of a cure. There
certainly appears to be no progress toward any particular social goal, nor
any awareness of a purpose, in political institutions overrun by vested
interests which, for all we know, fear the thought that legal cannabis use
might produce because their agendas would be unmasked in a more open society
with free exercise of thought.
Pressing and Substantial Concern
43. There is a pressing and substantial concern in Canadian society
to eliminate the black market for some illicit drugs, but this black market
cannot be eliminated by prohibition; it is created by prohibition. Some of
these drugs, such as opiates, are addictive but not dangerous in themselves;
their danger is a creation of the black market in that addicted individuals
must pay extremely inflated prices for impure and often dangerous doses.
If these individuals are 'treated', the treatment is often to replace one
addictive drug with another; nothing is accomplished by replacing heroin,
for example, with methadone. The only beneficiary of this 'treatment' is
the supplier of methadone. Other of these drugs, such as refined cocaine
and methamphetamines, are both addictive and dangerous in themselves. These
drugs do cause psychoses, and often violent behavior, and withdrawal symptoms
are severe. Use of these dangerous and addictive drugs should and can be
deterred in a truthful way without creating a police-enforced black market.
Addicts themselves eventually recognize the danger of these substances by
their own experience and seek legitimate treatment (not 'treatment' in the
form of attempted re-education as an alternative to imprisonment that is
currently practiced) . There are many other 'psychoactive' drugs which are
legally available for 'medical purposes' but which are dangerous and often
misused; there appears to be little effort to deter misuse of these drugs
which are responsible for a far greater number of hospital emergency room
admissions than all illicit drugs combined. Cannabis is in fact an alternative
to many of these illicit drugs and medicines, and has been termed one of
the safest therapeutically active substances known to man. As such it is
hard to justify arbitrarily limiting its use to patients whose own doctors
may be more at the service of drug companies who manufacture and sell these
potentially toxic drugs than they are at the service of their patients.
But prohibition raises the price and limits the availability of cannabis.
44. Legal cannabis use would deter many people from using these dangerous
and addictive drugs in the first place by providing them with a legal, safe
alternative. Legal cannabis use would also encourage addicted individuals
to withdraw from their addicted use. In addition to its other 'medical' benefits,
cannabis eases the pain of withdrawal both from cocaine and methamphetamines.
Having a legal, safe alternative many addicted individuals would be encouraged
to refrain from continual use of cocaine and methamphetamines. A rational,
careful approach to the problem of drug addiction would reduce harm to society
from these dangerous drugs, rather than increasing the harm. But prohibition
is not a rational, careful approach. The pressing concern of Canadian society
in regard to cannabis use is to end prohibition and repair the damage it
has done; there is no pressing or substantial concern to continue to prohibit
cannabis use. The only voices raised in favor of continued prohibition are
those of a diminishing number of Canadians whose irrational fear and desire
to express their 'collective disapproval' of cannabis use is appeased by
politicians not necessarily because they share that fear or agree with that
view, but definitely because they seek votes. Thus the effect of cannabis
prohibition, whether intended or not, is to maintain the population in a
shroud of ignorance of cannabis.
45. Canadian society cannot be said to be healthy, free, or democratic
today. Canadian society is physically and mentally unhealthy; and its culture,
social and political institutions have been corrupted by the effect of the
prohibition-black market system that holds a beneficial substance hostage
to political opportunists and ruthless criminals. There will not be a society
which respects the inherent dignity of the human person, or a society committed
to social justice and equality, or a society that accommodates a wide variety
of beliefs, or a society that respects cultural and group identity, or a
society with faith in social and political institutions which enhance the
participation of individuals and groups, until the guarantee of free exercise
of thought is unimpaired by an arbitrary, irrational, and unfair law. That
is the importance of cannabis to Canadian society. The impairment by cannabis
prohibition of the free exercise of thought is among the worst of the evils
in Canadian society. There is a pressing and substantial need to undo this
evil.
46. The characterization of cannabis use for 'recreational purposes'
is not a characterization which describes the main purpose for which cannabis
is used. Nor is an interpretation which equates 'non-medical' with 'recreational'
use entirely valid. There are many purposes for which individuals act, including
the purpose for which they use cannabis, that are neither 'medical' nor
'recreational'. Some individuals use cannabis legally for approved 'medical'
purposes; others may use cannabis for a 'recreational ' purpose by seeking
its euphoric effect (often achieved in conjunction with alcohol use), but
this effect is not necessarily sought universally by users, nor even necessarily
sought at all by those who abstain from the use of alcohol or refrain from
its use when using cannabis, since the desired effect of cannabis is negated
by the alcohol.
47. Some people may use cannabis 'non-recreationally' for purposes
of maintaining or improving their physical or mental health or their general
health in the sense of 'wholeness', which would appear to lie outside the
realm of government-approved 'medical' advice or intervention. Others may
use cannabis for the purpose of improving their knowledge, understanding
and appreciation of the natural world, or for understanding society and their
role in society; others may use cannabis for the purpose of stimulating creative
physical or mental activity. Others may use cannabis for the purpose of freeing
their thought from, for example, the mental chains by which media organizations
seek to bind them in order to direct their actions (in other words, to escape
the 'thought control' they perceived to be exercised by advertising and other
media campaigns). It can truthfully be said that any or all these purposes
can be, and are, achieved by individuals by the use of cannabis for its
effect on thought. If the effect of cannabis use on thought is not found
beneficial by an individual - for example, if it is perceived as not improving
'health', cannabis is not addictive, and the choice to refrain from using
cannabis is not a difficult one. A cannabis user becomes aware of the effect
of cannabis use on his or her thoughts, although the full benefit may not
become immediately evident, and a naïve user may not judge well the
effect of cannabis use or recognize any benefit . A mature or experienced
user who values the effect of cannabis on his or her thought can learn to
use cannabis in a 'non-recreational' way as a creative stimulant, a means
of introspection, a learning tool, etc. To a person thoroughly familiar
with effect, cannabis is a miracle drug, a multi-purpose tool which can be
adapted for many uses. That such a useful substance is prohibited is a crime
against society.
48. Various words have been used to describe the effects of cannabis
use on the individual and many of them have acquired negative connotations
through their association with a prohibited substance. For example, cannabis
is commonly described as producing a feeling of euphoria. Although the word
'euphoria' has become associated with an unjustified sense of wellbeing,
no such negative connotation applies to its roots, nor is this connotation
itself necessarily justified. According to Webster's Online Dictionary, the
word euphoria first appeared in modern use in 1882. However, its roots are
old. Its etymology can be traced to the Greek 'euphoros', meaning healthy,
with further roots 'eu-': 'well' or 'good' and 'pherein': 'bearing' (as in
'bearing children'). If a sense of wellbeing is associated with cannabis,
this wellbeing is not limited to cerebral effects. For example, patients
in the U.K. suffering from multiple sclerosis, taking part in a recent research
study, reported improvement in their physical symptoms from cannabis use
which was not observed in clinical tests. Clearly the use of cannabis relieved
the symptoms that they felt, even though this relief was not evident to the
observers of the test. But the observers were not the patients. If one of
the aims of medicine is to relieve suffering, then if a patient reports
relief from suffering, is denial of that relief justified? Cannabis produces
a sense of wellbeing. To a first-time user or in an extreme dose, this sense
may be overwhelming, but with familiarity and moderate use this sense is
not overwhelming. It is simply welcome. A sense of wellbeing is not dangerous.
It may lead to a sense of joy. It may lead to a state in which a cannabis
user feels free to exercise his or her inherent power of thought, at which
point his eyes are opened.
49. Another word used in association with cannabis is the word 'intoxication
'. A toxic substance (derived from the Latin, originally a poison in which
arrows were dipped) is a poisonous substance. A 'poison' is an agent which
creates a deadly effect in the user. Cannabis is not a poison. There is no
known case of death by cannabis poisoning or 'overdose'. Cannabis is known
as one of the most benign 'therapeutic' substances known to man. Whereas
many illnesses are treated by medicines which are poisonous in certain doses,
and many medicines take effect at a point very close to which they are poisonous,
and with harmful side-effects, cannabis is not such a substance. The word
'intoxication' used to describe an effect of cannabis is not accurate.
50. 'Joy' is defined by Webster's Dictionary as the "passion or emotion
excited by the acquisition or expectation of good; pleasurable feelings or
emotions caused by success, good fortune, and the like, or by a rational
prospect of possessing what we love or desire; gladness; exhilaration of
spirits; delight". It should not be surprising that a cannabis user, experiencing
a sense of wellbeing by cannabis use, should feel joy; nor should it be surprising
that the user would desire to repeat the experience on a regular basis.
It is surprising that such a desire should be characterized, with negative
connotation, as a 'psychological dependence'. In that case the desire to
have sex on a regular basis would also be characterized as a 'psychological
dependence'. Would such a 'psychological dependence' acquire a negative
connotation?
51. Like human thought, cannabis is a miraculous gift whose 'medicinal'
properties alone make it the safest therapeutic substance known to man. But
cannabis is food and medicine. Cannabis seed is the healthiest and most complete
single food for humans. Just as food is necessary for physical health, cannabis
is both food for physical health and food for thought. It is medicine in
the broadest sense, useful for the healthy as well as for the unhealthy.
It is good for human health in the whole sense. That is why it is widely
used in spite of the prohibition-black market system. Cultivation and use
of cannabis should be encouraged both for food and for thought, as well as
for industrial use, and Canadian society will be healthier for it.
