Canada's 11th-Hour 420
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Canada’s 11th-Hour 420

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We’ve come a long way since summer 2003. Or have we?


Sure, it was eight years ago. It was also not the best few months all around, what with SARS and everything, but the warmer months of that year did have an oddly hedonistic quality. Many were collectively drunk already on having thumbed our national nose at Washington, sitting out the invasion of Iraq much to Harper’s chagrin.
Then, not even a year after the Senate Special Subcommittee on Illegal Drugs ruled on the side of cannabis legalization, Justice Douglas Phillips of the Ontario Court of Justice dealt the feds another policy blow. Declaring Canada’s laws against the personal use of cannabis to be constitutionally invalid, two charges against a 16-year-old Windsor boy were thrown out, and the national weed debate lurched considerably to the left. It almost seemed like a playful skewering of the viral, angry authoritarianism hanging in the air during those raw days, and not everyone was amused.
Paul Cellucci, then–American ambassador to Canada, was regularly making Bush’s finger-wagging, paternalistic disapproval known, acting more like a viceroy than a diplomatic representative. To hear the U.S. side of things, you’d think the continent would erupt in anarchy with the first toke of a legal spliff. We were inviting disaster. At worst, we just got more obnoxious about legalization every time Washington went on a power trip.
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This year, Canadians at least seem a bit more restrained about everything. It’s 2011; in the intervening eight years, we’ve come full circle from the so-called Summer of Legalization. It culminated with another ruling, this time from the Ontario Superior Court. According to the testimony of 21 patients, the Court found doctors are more likely to reject than approve an application to use medical cannabis legally. In the case of Matt Mernagh, a 37-year-old Hamilton man suffering from fibromyalgia, scoliosis, and near-chronic seizures, cannabis, he says, has been the only medicine effective in relieving his symptoms. But without official say-so, Mernagh resorted to growing his own—a gambit that ended about as well as it does for anyone charged with trafficking.
Digging into the case, the Court laid blame squarely on the Crown, not Mernagh. “The body of evidence from Mr. Mernagh and the other patient witnesses is troubling,” wrote Justice Donald Taliano in his ruling. “The evidence of the patient witnesses, which I accept, showed that patients have to go to extraordinary lengths to get the marijuana they need.” The government’s Marihuana Medical Access Regulations require a user to first have a doctor’s declaration on the patient’s behalf, a rubber stamp much of the medical community isn’t willing to give. Across the country, those 21 patients reported the same response: all told, 113 doctors flat out refused to participate. You’d think the government was daring the sick and desperate to become criminals.
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So in Ontario, that means the federal government has until July. If they don’t come through and address the Court’s ruling, cannabis production and possession may become entirely legal in this province. It’s not a triumphant throwing open of doors or a ceremonial Parliament Hill hot-box, but in a very Canadian way, it’s a start.
Today, of course, the federal government appealed Taliano’s decision, claiming he made “critical errors” in ruling the program unconstitutional. And when the government of Stephen Harper starts talking about “critical errors” with respect to constitutionality, that’s when you start downing grains of salt by the shaker.
Taliano’s ruling also came down during a pretty rough week for Marc Emery, the so-called “Prince of Pot.” Six years ago, the former politician, activist, and editor of High Times was arrested by officials from both the U.S. and Canadian governments, charged with selling and distributing cannabis seeds over the Internet. Given Emery’s high-profile activities since the early 1990s, which included overturning the law that prohibited High Times from being published to begin with, he’d have found himself in state crosshairs eventually. But then Harper came along, and not only was Emery busted, he was also extradited to the States. Not even a week after Taliano’s ruling, Emery’s request to transfer out of the U.S. to finish his sentence in Canada was refused. American authorities cited the “seriousness” of his offence.
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“It’s about Canadian sovereignty,” said NDP MP Libby Davies (Vancouver East) after Emery’s extradition. “Why would we cart off a Canadian to serve time in America for something he wouldn’t have been charged with in Canada? Now what we’re left with is trying to press that he at least be allowed to serve his time in Canada.” Speaking to Vancouver’s Georgia Straight, Liberal MP Ujjal Dosanjh, Vancouver South, said pretty much the same thing. Calling it a “disproportionate” sentence, Dosanjh agreed that he would have received less for the same crime on his home soil. “He’s not a dangerous offender,” he said.
When his request for a transfer was denied, though, Emery’s lawyer was emphatically pointed about the treatment of his client, calling him a target of political persecution. “This refusal is a terrible affront to the sovereignty of Canada,” he railed. “[He] should have been allowed to serve out his jail term in Canada.”
Pretty hilarious, only not. If you’re Stephen Harper, the word “sovereignty” sounds nice on paper and in campaign spots and when you’re talking about the Arctic, even though it doesn’t necessarily apply there, either. But not in instances where foreign authorities are beating down Canadian doors, enforcing crimes that, three years earlier, our own Senate had declared constitutionally unsound. And then again in Ontario. And then again this year, same province.
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Let’s call a spade a spade, though: when Harper said in 2005 that we “won’t recognize Canada when [he] gets through with it,” this, among other things, is exactly what the man was talking about. It’s not like the U.S. War on Drugs has been a staggering, flag-waving success or anything, but key in the case of Marc Emery was the U.S. insistence on the “seriousness” of his crime. In September, 2002, addressing the same offence, our own Senate recommended that the government “declare an amnesty for any person convicted of possession of cannabis under current or past legislation,” recognizing that the entire law rests on flimsy foundations.
Ignoring this precedent, though, and listening more closely to economic, trade, and security policies than Canadian civil law, Harper has been trying to ram an American-style drug war through legislative channels for years. In 2007, it was introduced as Bill C-26, later killed with 2008’s election call. It was resurrected in 2009 as Bill C-15, then killed again when Parliament was prorogued that December. In 2010, it slithered back to life as Bill S-10, but died on the floor when the government was defeated on March 25.
The letter of each law reflects how serious an offence America has stubbornly considered cannabis to be for nearly 80 years, taking the whole failed policy package and shoving it into a Canadian box. Under each piece of legislation, the penalties for the production and possession of cannabis are increased. If caught with as few as six plants, a common amount for personal consumption, users would face the same trafficking charges as those with up to 200: a mandatory sentence of at least six months. Suddenly, those billions for mega prisons come into uncomfortably sharp relief.
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But really, of course Harper’s government will treat citizens like Matt Mernagh as criminals-in-waiting, or prominent activists like Marc Emery as enemies of the state. From 2003 to today, one thing that hasn’t changed is the all-consuming American neurosis over what comes out of Canada, whether it’s terrorism or our incredibly choice herb. It’s not even about some “secret agenda,” like Paul Martin was on about in 2004.
Since taking power, bit by bit, Harper has made no bones whatsoever about his single-minded obsession with remaking Canada in America’s image. It’s not like he’d come right out and say it during a debate, knowing the key battleground provinces in which that’s an enduring concern, but accountability has never stopped Harper before. This entire year and through much of the last, Harper’s been quietly negotiating a perimeter deal with U.S. officials, harmonizing everything from trade to security, enforced by cross-border policing. Knowing the poison pill that cannabis normally represents in Canada-U.S. relations, it doesn’t take much imagination to see its undue enforcement as a condition for smoother, more open, less regulated trade corridors between our two countries, a bottomless pot of gold at the end of Harper’s rainbow.
Whether it’s the ill-fated Security and Prosperity Partnership of North America or this year’s incarnation [PDF], or any of the North American doors hanging loosely from broken hinges over the years, the legal anathema of cannabis has always been more political than criminal.
Which, to many, makes a guy like Marc Emery a political prisoner, and cases like Matt Mernagh’s matters of human rights. Every time a cannabis user sparks a joint, they become revolutionaries in a sense, what Noam Chomsky called “pharmacological dissidents.” In large numbers, embracing this least justified of illegal acts is a potent, defiant move against a law that’s done more harm than good, with a history of racism, profiling, and state excess.
On June 19, 2003, it was Marc Emery himself who said it best. Working his way through the crowd gathered on College Street, the Prince of Pot stood on the front steps of the Toronto Police Services headquarters, presided over at the time by Chief Fantino. At 4:20 p.m., with all those present, Emery raised a joint to his lips, lit it, and thanked the audience for being present. Not just for their support, but for the symbolic power of the act.
“We must assert our lawful right to possess marijuana, and have the police acknowledge that under the current law, they have no lawful authority to seize your pot,” he said, celebrating that summer’s lifting legal fog. To be in the same place again may not seem like we’ve come a long way or even full circle, but with this month’s rulings, we’ve earned back the chance to defy a law with a checkered history, and a government with a draconian agenda.
So happy 4:20, Toronto. Smoke ’em if you’ve got ’em.
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All photos by Nick Kozak, taken at the 2009 Freedom Festival.

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