Daniel Bear is a professor in criminal justice at the School of Social and Community Services, Humber College, Toronto.
For the Dutch, a coffee shop isn't just a place for a latte or double-double. "Coffee shops" refers to regulated stores found across The Netherlands where adults can purchase small amounts of cannabis. They are easily found, open about what they sell, and technically illegal under the laws of that country. But for more than 30 years the Dutch have instituted a policy of "gedogen," whereby some crimes are tolerated when the public interest outweighs the needs of law enforcement and changing the law itself is not practical. It isn't a perfect system, but it works to keep people away from criminal markets and exposure to hard drugs.
Canada also finds itself in a precarious situation regarding cannabis. Prime Minister Justin Trudeau has taken the bold and commendable step of introducing legislation to legalize cannabis by July 1, 2018, but has insisted that there will be no slowdown in the pursuit of cannabis offenders in the interim. This is a mistake that is both harmful to individuals and not in line with the larger goals of legalization.
On Monday, the Prime Minister sat down with Manisha Krishnan of Vice News for a frank discussion about legalization. He stood fast to the idea that the law is the law, pointing out that decriminalization is a half-measure that allows the black market to profit from drug distribution and potentially creates unsafe experiences for users. In this, he is mostly correct. Decriminalization is not something we should strive for as a permanent national model. The Dutch have nice, quiet store fronts selling their cannabis, but the back end of their system is permeated by organized crime and growing operations that have no regulatory oversight.
Thankfully, Canada is already on the pathway to regulation through legalization. In this proposed system, there will be a public health and safety focus, strict regulation of producers, and opportunities for provinces and municipalities to regulate retail sales. Some have said this system would be too restrictive or excessively punitive, and indeed there are troubling aspects such as a 14-year maximum penalty for giving cannabis to a minor. Though stringent, the new system should curtail many of the problems associated with both cannabis prohibition and a decriminalization model.
However, based on numbers from previous years, another 57,000 Canadians could be arrested for cannabis possession before the new legal system comes in to place. This represents more than half of all drug-related incidents in the country each year. A formal or informal declaration of decriminalization would acknowledge that obtaining an arrest or conviction record, or even spending time in jail, is an inappropriate response to a drug the Prime Minister already readily admits is not being regulated appropriately. Mr. Trudeau and his point person on legalization, former Toronto Police chief Bill Blair, have never shied away from the idea that the enforcement of cannabis offences is disproportional against people of colour, but seem unmoved by this injustice to take immediate action.
While it is true that the black market would control drug distribution if cannabis is temporarily decriminalized, this is already the case in our prohibitionist arrangement. A temporary decriminalization would protect users, but leave the status quo in place for distributors, who could still be pursued by police if they represented a harm to local communities. Even if the government is unwilling to act, Crown attorneys and police officers across the country could exercise their discretionary power and avoid pursuing cannabis cases that do not involve harms perpetrated against a community.
Decriminalization, however imperfect it may be, would serve as a stopgap measure to protect users while we figure out exactly what the legal cannabis market will look like. It is a version of the Dutch gedogen policy, where we take account of large public interests over the enforcement of an outdated law. There is no justice in arresting someone today if we know that, by the time they finish their sentence, the thing they were convicted of doing is no longer a crime. To paraphrase former U.S. Secretary of State John Kerry when he appeared before congressional hearings in 1971 to advocate for the end of the Vietnam War, how do you ask a person to be the last person arrested for a mistake?