Law Library Stacks

Back to Decriminalization of Narcotics

Summary

The Controlled Drugs and Substances Act (CDSA), which is Canada’s main drug-control legislation, criminally prohibits the possession, cultivation, production, importing, and exporting of certain scheduled substances, including cannabis, cocaine, heroin, amphetamines, LSD, and other narcotics.  The use of cannabis (marijuana) for recreational purposes is currently illegal and prohibited.  In the early 2000s, bills aiming to decriminalize minor offenses related to marijuana had been introduced but were never passed.  The current Liberal government of Canada plans on introducing legislation legalizing and regulating recreational marijuana at the federal level in the spring of 2017.

I.  Introduction

Presently, the Controlled Drugs and Substances Act (CDSA) is Canada’s main drug-control legislation, with criminal offenses involving possession, cultivation, production, importing, and exporting of certain scheduled substances, including cannabis, cocaine, heroin, amphetamines, LSD, and other narcotics.[1]  Certain other drug-related regulations and offenses can be found in the Food and Drugs Act[2] and the Criminal Code.[3]

During the 2015 federal elections, the Liberal Party, which subsequently won the election,  pledged that it would legalize, regulate, and restrict access to marijuana.[4]  The possession, production, and trafficking of other narcotics will remain illegal.  On April 20, 2016, federal Health Minister Philpott announced at a United Nations General Assembly special session on drugs that Canada would introduce legislation on the legalization of the recreational use of cannabis in the spring of 2017.[5]

Currently, regardless of the quantity, possession of cannabis is a criminal offense that results in a criminal record and is punishable by imprisonment and/or a fine.[6]  Possession of up to 30 grams of marijuana or up to 1 gram of cannabis resin (hashish) is punishable on summary conviction with up to six months’ imprisonment or up to a Can$1,000 (about US$771[7]) fine, or both.[8]  Otherwise the possession of cannabis or hashish and other cannabis-related derivatives found under Schedule II of the Act are punishable on summary conviction with up to six months’ imprisonment or up to a Can$1,000 fine, or both, for the first offense, and up to one year of imprisonment or up to a Can$2,000 fine (about US$1540), or both, for a subsequent offense.[9]  If found guilty on an indictable offense, the person “is liable to imprisonment for a term not exceeding five years less a day.”[10]  The production of cannabis plants is also prohibited; punishments and minimum punishments depend on the number of plants and whether production is for the purpose of trafficking or if certain factors apply.[11]

Despite these criminal penalties, Canada’s youth still have the highest rate of cannabis use among developed countries.[12]

Back to Top

II.  Past Proposals

Various bills aiming to lessen the consequences of minor offenses related to marijuana were introduced in the early 2000s.  In 2003 and 2004, the Canadian government introduced multiple versions of a bill to amend the Contraventions Act and the Controlled Drugs and Substances Act.[13]  In 2003, the Liberal government of Jean Chretien introduced Bill C-38, which sought to decriminalize “simple possession of marijuana.”[14]  The bill treated the possession of minor and intermediate amounts of marijuana as contraventions under the Contraventions Act rather than criminal offenses under the CDSA.[15]  Under the proposal, “[v]iolation tickets would be issued, and existing provincial and territorial systems would be used to process the tickets”;[16] an adult possessing less than 1 gram of cannabis resin would be subject to a Can$300 fine (about US$231) while a young person under the age of eighteen would be fined Can$200 (about US$154);[17] and the possession of less than 15 grams of marijuana would only be punishable with a fine of Can$150 (about US$116) for an adult and Can$100 (about US$77) for a person under eighteen.[18]  

The proposed legislation would require larger fines if certain aggravating circumstances were present, such as “operating a motor vehicle, committing an indictable offence, and being in, or near, a school.”[19]  Under those circumstances, adults would be fined Can$400 (about US$309) and youth Can$250 (about US$193).[20]  Also according to the bill, the possession of more than 15 but not more than 30 grams of marijuana could either be treated as a contravention liable to a fine of Can$300 (about US$231) or, in the case of a young person, Can$200, or as a criminal offense at the discretion of a police officer.[21]  The proposed legislation would also make producing up to three plants punishable by a fine of only Can$500 (about US$386) for adults and Can$250 for young persons.[22]

In February 2004 an identical bill was introduced as Bill C-10 but, like its predecessor, it also died on the order paper without a vote in May 2004, due to the federal election.[23]  Another identical bill was introduced in November 2004 as Bill C-17[24] by the minority Liberal government of Paul Martin, but it too died on the order paper.[25]  In 2006, the Conservative Party won the election and these bills were not revisited.  Therefore, none of these bills have been adopted. 

Back to Top

III.  Current Proposal

In his 2015 election campaign, current Prime Minister Justin Trudeau pledged to legalize, regulate, and restrict access to marijuana at the federal level in order to “keep marijuana out of the hands of children, and the profits out of the hands of criminals.”[26]  He promised to “remove marijuana consumption and incidental possession from the Criminal Code, and create new, stronger laws to punish more severely those who provide it to minors, those who operate a motor vehicle while under its influence and those who sell it outside of the new regulatory framework.”[27]  He also aimed to “create a federal/provincial/territorial task force, and with input from experts in public health, substance abuse, and law enforcement . . . design a new system of strict marijuana sales and distribution, with appropriate federal and provincial excise taxes applied.”[28]

Although legislation concerning the legalization and the regulation of marijuana will not be introduced until the spring of 2017, Trudeau reiterated in June 2016 that such legislation will focus on the dual purpose of restricting underage access to cannabis and diminishing the profits of organized crime earned through the illicit marijuana market.[29]  The Canadian government has launched a nine-member task force to advise the government on the regulation and legalization of marijuana.  In the upcoming months, the task force will consult provincial, territorial, and indigenous governments as well as “youth and experts in relevant fields like healthcare, criminal justice, economics, industry and law enforcement.”[30]  Companies with expertise in the sale, production, and distribution of marijuana will also be consulted.[31] 

The New Democratic Party of Canada had introduced a motion for the immediate decriminalization of recreational marijuana.  However, this motion was rejected by the government.  Prime Minister Trudeau argues that without regulations in place, the decriminalization of marijuana will result in giving a “legal stream of income to criminal organizations.”[32]  Until the new law is in place, recreational marijuana will remain illegal.

Plans to legalize marijuana are being complicated by Canada’s international treaty obligations.[33]  Because the legalization of marijuana may violate such treaties, Canada will have to demonstrate how it plans to conform to its treaty obligations.  In some cases, Canada may either have to renegotiate the treaties or formally withdraw from them.[34]

Back to Top

Prepared by Tariq Ahmad
Foreign Law Specialist
July 2016


[1] Controlled Drugs and Substances Act, S.C. 1996, c.19, http://laws-lois.justice.gc.ca/eng/acts/c-38.8/FullText.html, archived at https://perma.cc/55U6-EKBN.

[2] Food and Drugs Act, S.C. 1985, c. F-27, http://laws.justice.gc.ca/eng/acts/F-27/FullText.html, archived at https://perma.cc/FTW7-WBY8

[3] Criminal Code, S.C. 1985, c. C-46, http://laws-lois.justice.gc.ca/eng/acts/C-46, archived at https://perma.cc/ BA3Y-4KUN.

[4] Marijuana, Liberal Party of Canada, https://www.liberal.ca/realchange/marijuana (last visited June 29, 2016), archived at https://perma.cc/HUK9-6RGY.

[5] Canadian Marijuana Legalization Bill Coming in Spring 2017, Jane Philpott Announces, Huffington Post (Apr. 20, 2016), http://www.huffingtonpost.ca/2016/04/20/canada-marijuana-legaliza_n_9738222.html, archived at https://perma.cc/59DY-53ZN.

[6] Controlled Drugs and Substances Act § 4(1).

[7] Exchange rate as of June 3, 2016: Can$1.00 = US$0.77, http://www.bankofcanada.ca/rates/exchange/daily-converter.

[8] Controlled Drugs and Substances Act § 4(5).

[9] Id. § 4(4)(b).

[10] Id. § 4(4)(a).

[11] Id. § 7(2)(b).

[12] Peter Adamson, UNICEF Office of Research, Child Well-Being in Rich Countries: A Comparative Overview 26 (Innocenti Report Card 11, 2013), http://www.unicef.ca/sites/default/files/imce_uploads/DISCOVER/ OUR%20WORK/ADVOCACY/DOMESTIC/POLICY%20ADVOCACY/DOCS/unicef_report_card_11.pdf, archived at https://perma.cc/2BBU-7LZV.  

[13] Wade Raaflaub, Library of Parliament, Canada’s Proposed Decriminalization of Marijuana: International Implications and Views, PRB 04-33E (Dec. 17, 2004), http://www.lop.parl.gc.ca/content/ lop/researchpublications/prb0433-e.pdf, archived at https://perma.cc/3TK8-F2T7.

[14] Kathleen McIntosh, Recent Developments in Marijuana Possession Law, 10 Appeal: Rev. Current L. & L. Reform 40, 50 (2005), https://journals.uvic.ca/index.php/appeal/article/viewFile/5682/3500, archived at https://perma.cc/83B3-HPTY.

[15] Id. at 51.

[16] Id.

[17] Bill C-38, An Act to Amend the Contraventions Act and the Controlled Drugs and Substances Act, HC 2d Session, 37th Parliament, introduced May 27, 2003, § 5(2) (amending and replacing CDSA§ 4(5) with § 5), http://www.parl.gc.ca/HousePublications/Publication.aspx?doc=C-38&language=E&parl=37&pub=bill&ses= 2&File=16#1, archived at https://perma.cc/3GZ6-SSSK.  References to Schedule VIII in the provisions can be found here: http://www.parl.gc.ca/HousePublications/Publication.aspx?doc=C-38&language=E&parl=37&pub= bill&ses=2&File=30.

[18] Bill C-38, § 5(2) (adding CDSA § 5.1).

[19] Id. § 5(2) (adding CDSA § 5.3).

[20] McIntosh, supra note 14, at 51.

[21] Bill C-38, § 5(2) (adding CDSA § 5.4).

[22] Id. § 6(2) (amending CDSA § 7 by adding § 7(3)).

[23] Rick Csiernik & Robin Koop-Watson, Many Paths to Prohibition: Drug Policy in Canada, in Responding to the Oppression of Addiction 320 (Rick Csiernik & William S. Rowe eds., 2d ed. 2010).

[24] Id.

[25] Neil Boyd, Canadian  Law: An Introduction 55 (2011).

[26] Liberal Party of Canada, supra note 4.  

[27] Id.

[28] Id.

[29] Tory Floyd, Why Justin Trudeau Wants to See Marijuana Legalized in Canada,Yahoo Canada (June 10, 2016), https://ca.finance.yahoo.com/blogs/insight/why-justin-trudeau-wants-to-see-pot-legalized-in-canada-163350140. html, archived at https://perma.cc/5ZUZ-WEDJ.  

[30] Monique Muise, Canada One Step Closer to Marijuana Legalization, Global News (June 30, 2016), http://globalnews.ca/news/2796430/watch-live-feds-to-make-announcement-regarding-marijuana, archived at https://perma.cc/FY2P-WJUF.

[31] Id.

[32] Joanna Smith, NDP Urges Liberals to Decriminalize Pot Before Legalizing It, The Star (June 12, 2016), https://www.thestar.com/news/canada/2016/06/12/ndp-urges-liberals-to-decriminalize-pot-before-legalizing-it.html, archived at https://perma.cc/9CJR-KY56.

[33] Mike Blanchfield, Legalizing Pot in Canada Will Run Afoul of Global Treaties, Trudeau Warned, CBC (Jan. 5, 2016), http://www.cbc.ca/news/politics/trudeau-legalizing-pot-global-treaties-1.3390745, archived at https://perma.cc/UNH9-G7Q2.

[34] Canada’s Marijuana Legalization Plan Flouts 3 UN Drug Conventions, CBC (May 16, 2016), http://www.cbc.ca/ news/health/marijuana-legalization-canada-un-drug-conventions-1.3584148, archived at https://perma.cc/8A2Y-3D6Q.