home Features Osgoode’s Alan Young Talks Pot and Policy

Osgoode’s Alan Young Talks Pot and Policy

<News Editor>

“My first inclination that a war on drugs was folly came when I was very young, in private school studying the Bible. The very first story in Genesis, Adam and Eve, right: God decrees and orders that Adam and Eve not eat from the tree of knowledge. And what did they do? They ate.

What I take from this story is very important: It borders on arrogance for the state to believe that you can curb people from curiosity when God couldn’t do it. People cannot be prevented from exploring their minds. No state law can prevent it.”

–Alan Young

On November 6th, in perhaps a historical move, Colorado and Washington became the first jurisdictions in North America to legalize the recreational use of marijuana in Amendment 64 and Initiative 502, respectively. Colorado has also experienced an increasing boom in its medical marijuana industry in recent years as the movement shifts from one being advocated by youth with dreads and B.O. to one being taken up by politicians, lawyers, and rich investors looking for the next big thing. All of this was the subject in a recent Newsweek article entitled, “The New Pot Barons: Businessmen Bank on Marijuana.” Additionally, The Daily Mail noted that at nearly 300 locations, there are now more marijuana dispensaries in Denver than Starbucks branches. In light of all this, I started to get excited. Were policymakers finally coming to their senses?

Newsweek noted Colorado as having the developed world’s only regulated for-profit marijuana industry, with a net revenue of $200 billion a year, resulting in tens of billions of dollars in state and federal taxes. The medical marijuana market exists in a tenuous relationship with federal law, however, which still prohibits the sale of cannabis. Every level, from cultivation, to distribution, to sales, is subject to federal surveillance and inspection, and every gram is accounted for (apparently). Nevertheless, the stock prices for the three biggest manufacturing companies (HEMP, Inc., Medical Marijuana, Inc., and GrowLife, Inc.) have seen sharp spikes as the election draws nearer. Now that recreational use is also legal in Colorado and Washington State, it remains to be seen how the discrepancy between federal law and state law will play out. It should be a reminder to optimists that DEA raids on compassion clubs took place in California over the course of this last year despite that the clubs were legal under California state law.

Regardless, amidst all this momentum, I started to wonder about legalization in the Canadian context. We were once known to our southern neighbours as the country with the more progressive pot laws, where “BC Bud” was a source of pride and joy for some, and we were well on our way to decriminalization under the Liberals a few years ago. Stephen Harper put an end to that by reigniting the war on drugs, refusing to reintroduce the decriminalization bill, and instead, put out legislation like Bill C-10 (The Safe Streets and Communities Act), which set new mandatory minimum sentences for possession, cultivation and trafficking. I was surprised that jurisdictions within a country seen as much more conservative than our own was going to be the first in North America to legalize, and this made me feel a little embarrassed for us and our government, given the fact that 70% of the Canadian population supports either the decriminalization or legalization of cannabis.

Bearing all these questions in mind, I decided to approach someone with well-versed knowledge and experience in terms of marijuana law reform in Canada: Professor Alan Young.

I first heard of him in connection with Bedford v Canada, the bawdy house/prostitution case that will be up in front of the Supremes soon. Having only recently been aware of his achievements in the pro-pot movement, including his contributions in legalizing marijuana for patient use, as well as getting the judiciary to declare that weed was relatively harmless compared to tobacco and alcohol, I was looking forward to getting to speak to someone who was making such monumental progress in what are arguably controversial areas.

The night before the interview, I stayed up late watching Alan Young on YouTube lecture about trying to smoke banana peels as a kid before moving onto pot, the drudgery of our working lives, spiritual enlightenment, and the stupidity behind prohibition. I almost couldn’t believe someone so cool and laidback taught at my law school.

Obiter Dicta (OD): Hi. Wow. I’m a big fan of your work.

Alan Young (AY): Thank you.

OD: So let’s begin with a little background information about your past work with trying to legalize pot. The courts have been at a bit of a standstill since Malmo-Levine; what do you think the next step is?

AY: My initial foray into using the Charter as a tool of law reform was not to win cases. The Charter wasn’t ready yet. It was to change public opinion. Look at the headlines in 1997, when we had our decision: They all picked up on the factual assertions of the judges – “Marijuana is relatively harmless” – that’s what fuelled the last ten years of accelerating the law reform campaign and led to a great expansion of cannabis use in Canada. It sort of normalized it. We couldn’t quite achieve it in the courts, for complicated reasons in the evolution of the Charter, but it all started there.

The case was called Malmo-Levine, unfortunately, but the actual case was Clay, on which I was lead counsel. Malmo-Levine and Caine followed along. I did all the work and research. By the time it got to the Supreme Court of Canada, I was erased from the equation because my dad was in the hospital. I couldn’t attend. The whole thing got shifted to David. He’s an interesting guy, an activist. He didn’t hurt the case, but he didn’t help the case. When you’re dealing with self-represented pot users, a lot of them aren’t realistic about what people will accept and not accept. David just wanted to get really high and make his presentation, and the last thing he said was, by the way, I was really high and I bet you didn’t know, and I said to him, that’s the worst strategy possible, you’re just going to alienate them and make them feel stupid. They’re not going to be impressed by you being articulate when you’re high, so I don’t think it helped that I wasn’t there.

But the case simply could not succeed because we were asking the court to do more than they weren’t prepared to do.

OD: Right, so they said that ultimately it was up to Parliament to make the choice to criminalize or not?

AY: They had to say, in order to resolve the constitutional challenge before them, that there was no threshold of harm that Parliament had to meet before they enacted an offence, and I think that’s politically the stupidest thing I’ve ever heard. Whether or not courts should be supervising public policy is a political question, but to say that there is no ceiling and no floor when it comes to enacting a criminal law? I was shocked when I read that judgment – they’re talking about paternalism and seatbelt laws in the context of putting people in jail? For life? It was a horrible, horrible disaster that case. It got worse with each level going up, and I lost a lot of respect for the Court.

OD: I’ve heard you say that you don’t trust politicians, which is why you take to the courts.

AY: That was my forum, yes. That’s where I can influence people.

OD: So what do you think the options are now that there has been a standstill at the courts, and in light of the passing of Bill C-10 earlier this year?

AY: There’s very little left to achieve through litigation strategies to get to marijuana decriminalization. And the only strategy still remaining is the one I used for a while which was to effect law reform on the backs of sick people. Because of the deficiencies in the medical program with Harper, we’re rebounding to the validity of the criminal law.

I won’t do that anymore. I want to litigate to improve the medical program, not to use it as a wedge to get to decriminalization. I just don’t feel comfortable anymore. But ultimately, with very limited options in court, we have to wait out this government. And it’s not the end of the world, because you know, depending on any alternative that emerges in the next few years, it’s an easy sell to governments, when you have a government that’s not ideological. We’re talking somewhere in the vicinity of $11 billion in tax revenue. We’re running big deficits after all those stimuli packages. This is how gambling got legalized; this is how pot will get legalized.

OD: Earlier this summer, Conservative health minister Leona Aglukkaq spoke about reforming the medical marijuana program, which involved eliminating personal growers and having all medicinal product manufactured by industrial growers instead. Ottawa is expected to unveil these reforms in 2014. Could you comment on these changes, and perhaps the possible constitutional challenges that will arise?

It’s a complicated story. The current program was doomed to failure from its inception. I’ve successfully challenged the current program twice, and each time Health Canada’s response was literally disrespectful to the court order. They did the bare minimum to comply with the court order, and it really is undercutting the order. I was tired of going to court and these cases take a long time. There’s no money behind any of this.

So I had a client who had a lot of money, wanted to be a big producer; he had a doctor and wanted to run a clinic. And I said, okay, I’ve finally got someone who has some resources. I took him to Health Canada to run the pitch, spoke to them about how dysfunctional their program has been, not because of their bad program, but it was just playing out in a bad way. Hydro problems, diversion problems, just a lot of different issues.

OD: What about the issue that they only cultivate one strain?

AY: That too. I was part of the thing with Emery; we created the idea of overthrowing the government. Initially we wanted to have 4-5000 production licenses, like, “Look, everyone’s growing!” But I didn’t know how greedy people would be, and how people would not comply with municipal bylaws for electrical safety. You can grow pot very safely but you can also make a disaster of it. So the police, hydro, the fire – everyone’s against the program.

I went to Health Canada with a proposal. They liked it. And it’s ultimately what they’ve chosen: To license four or five producers, and strip people of the right to grow for themselves, which is constitutionally problematic, and strip designated producers to grow for patients, which won’t be constitutionally problematic. And, the devils in the details. They’ve been delayed over six months in coming up with the new regulations.

If new regulations for licensing dealers is relaxed and accommodating to pot as a unique product, people will be able to get in the door; we might have some good growers. If they use the same program for licensing dealers for pharmaceuticals, no one’s getting in. I’ve spoken with most of the people, they don’t have the resources, the wherewithal – the security requirements are just astronomical. So I’ve tried a little bit to get to the right people. This is happening, there’s no turning back on this. My interest is in good producers. I want sick people to have good quality medicine.

I even tried to convince Bedrocan, the Dutch company that grows for their national program to come here. But I honestly have not seen anybody come forward that the government wants to deal with. And I think part of the delay with the program is that no one’s going to meet their regulations. I’ll give them six months, and then I’ll attack them again for setting up a program doomed to failure.

Prairie Plant Systems (PPS) [the current and only supplier to Health Canada] was supposed to be the solution, but consistently, only 20% of patients bought from PPS, and that’s never going to change. Because PPS has a bad reputation, whether founded or unfounded: They’re seen as “the government.” No one wants to buy from them, so the government realized that they couldn’t restrict people’s ability to grow if they can’t liberally access it from the government. Everything always turns on the dysfunction and the effectiveness of the government to create some sort of s. 7 and s. 20(1) remedy.

OD: Why is Health Canada having such a huge issue in finding growers to meet their standards, while the medical marijuana industry flourishes in Colorado, Washington, and California? Surely, there must be companies lining up to offer tenders.

AY: Be careful about what you read in the press. Yes, there is a proliferation in certain parts of the US, but some of it is very exaggerated. There’re a fair amount of dispensaries in Denver, but they take into account the number of licenses given, not the number of dispensaries open. To think of the United States as an ideal model is completely wrong because they also have the enormous problem of fighting the federal government, who still apply their laws onto the states. The dispensary system in California, Colorado, they really operate as to the indulgence of the federal government. The situation is very precarious. I don’t like it much.

Now, in terms of Health Canada, it’s a very different type of program. I can only give you a personal opinion: Health Canada was directed to create and manage a program. They’re largely a reactive agency that makes their career out of approving pharmaceutical company applications for new drugs. They don’t do anything on their own initiative – they simply are the handmaidens of the regulated industry.

What happens is that they don’t want to do this. It’s a very simple lesson. Don’t impose a program on a department that really doesn’t want to do it. They’re also getting a mixed message from the government: Do not relax the program too much because we have to maintain our criminal prohibition simultaneously. If we make the program too lax and liberal and open it undercuts all the claims we make about the harms of marijuana. It must be seen as somewhat extraordinary in order for them to maintain their stupid criminal prohibition.

Two things came together: a reluctant bureaucracy, and a government that wanted to make sure the medical program was sending out a political message while at the same time trying to cater to sick people. Ultimately, it couldn’t do both.

OD: But in the States, they have these concerns of maintaining prohibition as well, yet you could arguably say that more patients are able to access marijuana due to the comparably more lax restrictions on setting up dispensaries.

AY: That’s because there’re 50 states that have their own penal codes and penal policies. There are 11 states that have decriminalized since the 1970s – there are pockets in the United States that seem very liberal in their drug policies, but it’s more symbolic than real because of their federal law. The federal government also has jurisdiction over trafficking laws, which is seen as an interstate law. It’s not as if these 11 states are going to change anything. It’s the same thing with the medical program.

Obama, when he was elected, indicated that he was going to change the policies of the DEA towards state medical marijuana programs. Then he backed off, and there were raids in California. They don’t happen frequently, and often don’t result in convictions. But everything that exists in the United States exists on a precarious foundation. So yeah, maybe right now, Denver looks cool. Next year it may not be so.

OD: Are there compassion clubs in Toronto?

AY: Yeah, I helped set up eight of them.

OD: So do they get their supply from Health Canada?

AY: No, they exist in a grey area of legality.

OD: How does Health Canada distribute?

AY: Since 2001, they’ve had a distribution policy; the good news is that they sell at $5 a gram, undercutting the black market. The bad news is that people don’t like the product very much.

In 1998, a whole bunch of young people came to see me about an influx of compassion clubs in Southwestern Ontario. Most of them were fly-by-night operations and didn’t last. The two clubs that started with me in Toronto, Cannabis as Living Medicine (CALM) and Toronto Compassion Club, have lasted and are quite large. We’re talking about membership of roughly 5000 patients each; maybe 30-40% of those patients have Health Canada authorization, the rest have doctor’s letters confirming their illness.

I’ve had success in protecting clubs from prosecution because there are no gains for the government, as long as the clubs operate discreetly and only cater to a medical population. Having said that, CALM was raided roughly two years ago, and is awaiting a Superior Court trial, a major constitutional challenge to the current medical program, and by default, to the criminal law too. But I can’t say too much more about it; I’m involved in the periphery.

One of the flaws of the compassion programs run by private citizens, generally young people, is that they tend to have dedicated growers, simply because that would be the only way to get the price below the black market price. A very high percentage of people who purchase from compassion centres are on disability; they are very sick, and money is in short order. One of the failures after roughly 15 years of doing this has been the fact that the clubs have to use black market growers and traffickers. The good news is that they check that the product is clean because it’s coming from a dedicated grower, but they continue to use black market prices. Compassionate centres are not selling cannabis at a price that I think is reasonable for patients. But the bigger problem is obviously that marijuana is still illegal for growers, whether they’re dedicated to the club to grow or not. Some of the growers have been arrested, so it’s very hard to convince growers to supply the clubs.

OD: But some of the growers have licenses. Why are they still getting arrested?

AY: The licenses are limited, and they only allow someone to grow for a few patients.

OD: Why doesn’t Health Canada put its products into pharmacies or have dispensaries of its own?

AY: Because it’s an unapproved drug. Under the Food and Drug Act, only drugs that have drug identification numbers and have gone through the four stages of approval can be sold in pharmacies.

OD: That’s ironic that there’s OxyContin in the pharmacies but we somehow can’t put marijuana in there.

AY: Yeah, yeah I know. There are a lot of anomalies and paradoxes, and the truth is that marijuana still remains both medically and recreationally one of the safest products on the planet. That’s what’s so bizarre about all of this.

There are really sad aspects of this. Everyone thinks it’s sort of a joke. Because that marijuana is still a prohibited substance, the impact of it is that it’s very hard to access research into its rehabilitative purposes. What saddens me is not the fact that I know that marijuana and cannabinoids are really valuable substances – it’s what I’ve been doing for ten years; I’ve seen it and read all the studies –what really saddens me is that at least seven studies in seven different jurisdictions from very reputable institutions have found that cannabinoids are effective in reducing tumours.

Now I’m not the sort of person to say, “Oh my god, there’s some kind of panacea for cancer out there,” but it’s unbelievable that one of the greatest scourges of modern living is that cannabis is not being researched with government funds when we know that it reduces tumours. That is just a pathetic side effect of prohibition. I’ve represented many people who have died from cancer; the studies are out there, and government isn’t jumping.

OD: Would you say that the lack of research into the medical qualities of marijuana and patients’ lack of access to it poses a bigger a problem than legalizing it?

AY: No, the medical potentialities for marijuana are not fully known. There’s just the potential.

The greatest injustice remains that a lot of people end up being intertwined in the criminal justice system for getting high. That is an injustice in and of itself. If there was some direct or indirect implication on society at large for other people aside from users themselves to be harmed, then I would say yeah, we should be more strict about it. But both professionally and historically, this is an inane policy. It just clutters up criminal justice. Criminal justice is already ineffective; we don’t need more problems to it.

OD: Why do you think the Harper government is so opposed to legalization or even decriminalization?

AY: It’s ideology, and it’s based on the same facts that would turn anyone into a fairly rabid prohibitionist. He obviously had somebody, friend or family, that had a bad experience with pot. It’s as simple as that, and then you extrapolate from that, thinking it’s going to destroy the youth of Canada, and then you believe it, because this is not an evidence-based government.

I’m sure 60% of those sitting in government would change the law with a free vote. There’s a small pocket of people who believe drugs, including pot, are the downfall for the Western civilization, but it is a minority point of view. Few people do have bad experiences with pot, whether it’s the panic reaction from the THC, or they’ve become so chronic that they’re actually just kind of losers – that does happen. But for the majority, this is not the case.

OD: What are your current initiatives concerning the legalization movement? Are you just pursuing the medical front?

AY: It’s unclear. I don’t see any value in approaching this current government. I’ve brought four or five constitutional challenges to improving the medical program. I’m not really certain what the next direction is politically. Chances are I will end up in court. I’m kind of tired of doing it. I tried to disconnect from the pot world after last year because I’m just so tired of it, but talking to you has kind of gotten me interested in it again. I do have a conference call with some leaders from NORML next week addressing this issue again, but it is unclear at this point where it is going.

OD: Well, that is good to hear. We do need people to keep advocating for this, and what you do is very admirable. Alan, I’d like to thank you so much for lending us the time to get to hear your insight on this cause.