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Is this the end of the black market for marijuana?

Neil Boyd is professor, School of Criminology, Simon Fraser University

Marijuana was criminalized in Canada in 1923. There was no debate in the House of Commons, just the statement, "There is a new drug in the schedule." The prominent Edmonton magistrate Emily Murphy had written a book about illegal drugs in 1922, concluding of marijuana, "… there are three ways out from the regency of this addiction: 1st – Insanity. 2nd – Death. 3rd – Abandonment. This is assuredly a direful trinity."

Between 1923 and 1965, there were only sporadic arrests and convictions for marijuana offences, but by 1967, there were 1,000 convictions for marijuana possession in that year alone and by the mid-1970s, more than 40,000 annually. The initial response in the mid-1960s had been to place 50 per cent of users in jail, often for a year or more, but usage kept increasing. In 1973, the Le Dain Commission urged the Pierre Trudeau government to repeal the offence of possession of marijuana, and gradually move toward the wise exercise of freedom of choice.

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So here we are in 2017, with a Liberal government that has promised to legalize adult use of the drug for entirely logical and commendable reasons – to eliminate the black market, with its occasional violence and untaxed revenues, and to reduce access to youth.

We've slowly come to acknowledge, as a matter of science, that the line drawn between legal and illegal drugs in the early 20th century had nothing to do with public health and everything to do with culture and political economy. Drugs such as alcohol and tobacco were acceptable items of commerce, while the drugs of the developing world – opium, coca and cannabis – were morally offensive and deserved criminal prohibition. And the arbitrariness of this distinction became particularly obvious with cannabis, far less toxic and less likely to cause dependence than either alcohol or tobacco.

The government's legislation, now introduced in the House of Commons, mandates licensed producers as the suppliers of marijuana for both medical and recreational markets across the country. Provinces will have to determine what age is appropriate for purchase and what price is sufficient to keep the black market at bay. A mail-order system will operate federally and both provinces and municipalities will have to determine whether retail outlets will be put in place for medical and/or recreational users. Decisions will need to be made over the next year about the role of pharmacies, liquor stores and dispensaries in each province, and, quite likely, in most municipalities.

Can the government accomplish its goal of eliminating the black market in this drug? The short answer is probably, but it will not happen immediately, and there are several policy decisions that might jeopardize this goal. First, based on lessons learned from Washington State, we should not set a price that is significantly higher than current black-market prices. Second, we may not have enough product to meet initial consumer demand. Again, this may be a short-term problem, arising from not having a sufficient number of licenced producers.

Third (and this is likely to be a major point of discussion as the provinces and municipalities grapple with this legislation), what will happen to dispensaries? They were recommended by the recent government task force as a retail option, in preference to liquor stores. But they are currently selling product that does not come from licenced producers. Can and will that change? If not, the goal of eliminating the black market will be in jeopardy. Dispensaries will also need to put measures in place to ensure that youth do not have access, which is something that liquor stores already do quite well.

The legislation keeps alive the recommendation of the task force that adults be able to grow up to four plants, with oversight by local authorities. This proposal has a number of potential pitfalls. Do municipalities want to oversee what may potentially be tens of thousands of applications to grow marijuana at home? What of apartment buildings and the intrusive odours? What if the home grower wants to use metal halide lights? Who will oversee the safety of installations? At least initially, a better approach might be one of only permitting four plants grown outdoors. Difficult for those in Iqaluit, but they will have mail order.

Finally, as expected, the government has kept its promise to keep the possession offence intact until the day legalization arrives. It's difficult to support this approach. Part of the logic of legalization is a message to users – we don't think you deserve to be regarded as criminals, subject to arrest, conviction and the possibility of imprisonment. Why not make that commitment now? It's the most tentative step the government could have taken, and we have no evidence from other jurisdictions that use increases when that change is made.

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