Article by Sam Riches, Growth Op
Martin Cauchon stood in the House of Commons and took a breath. It was the spring of 2003 and as the Minister of Justice and Attorney General of Canada, Cauchon was about to introduce Bill C-38, a piece of legislation that would decriminalize the possession of marijuana.
Prime Minister Jean Chrétien was relying on Cauchon to lead the file. The minister was outspoken in his belief that the punishment for cannabis possession was disproportionate to the offence and that the law was being applied selectively. He would argue that 100,000 Canadians were daily cannabis consumers, and the idea that their lives could be upended for its use, rerouting their education and employment and their ability to cross the border, was lunacy. Under C-38, possession of 15 grams or less would result in a ticket rather than a criminal record.
It was a historic moment, with roots that traced back to the 1972 Le Dain Commission, which recommended cannabis be treated similarly to alcohol, allowing for possession and personal cultivation. However, it didn’t arrive quite as expected.
“You could hear a fly going around, it was so silent,” Cauchon says.
The battle begins
The silence didn’t last long. When question period began, Stephen Harper, then the Leader of the Opposition, Canadian Alliance, was first at-bat. He grilled Cauchon about what message the bill would send to Canada’s youth. Batting second, Jason Kenney, Alliance critic for Canada–United States relations, took a different approach. He wanted to know why, in a phone call with U.S. President George W. Bush the day before, Cauchon had discussed the Montreal Expos rather than the U.S. ban on Canadian beef.
Cauchon wasn’t done answering for C-38, though. In trying to please everyone, it seemed — at first, anyway — that he had pleased no one at all. Not only were prohibitionist arguments raised, but Cauchon faced criticism from those who said the bill was merely a halfway measure with an arbitrary 15-gram limit and a ban on home growing. As limited as it may have been, C-38 would still be a historical piece of legislation, provided the Liberals could garner enough support to get it across the finish line.
“When people were looking at me in those days they thought I was really crazy — at least when I looked at people from the opposition,” Cauchon says. “And even within my own caucus, it was very difficult.”
The hand-wringing had begun shortly after the 2002 Throne Speech when the Chrétien government included among its objectives “the possibility of the decriminalization of marijuana possession.”
That line, as unassured as it was, became instant news fodder, with many discussions veering into worries about how our Southern neighbours might react. The 54,000-member Canadian Professional Police Association wrote a strongly worded letter, fearing the government was on the wrong path. Mothers Against Drunk Driving lobbied against the effort, citing inadequate testing measures to determine if drivers were stoned behind the wheel.
The issue was divisive enough to split an arm of the Liberal majority. Brenda Chamberlain, a Liberal MP from Guelph, was one of the party’s most vocal critics. She urged the Prime Minister to reconsider and often spoke to the media about the message this legislation would send to kids. It was a different time, when admitting to inhaling was still cause for controversy.
On that front, Chrétien denied ever partaking. He joked that once decriminalized, he would have a puff in retirement. “I will have my money for my fine and a joint on the other hand,” he said. Cauchon was more direct. “Of course I tried it before,” he told inquiring reporters. “Obviously.”
Burlington MP Paddy Torsney, who chaired a House committee on the bill, also faced that question. When a reporter asked her in the lead up to Father’s Day, she came clean but then forgot to tell her parents. When she arrived at their home that Sunday, her mother opened the door with a question. “Really?”
Weed will bring us together
As unintended as it might have been, questions from the media on marijuana use, which every member of the committee received, seemed to pull the disparate politicians closer together. Weed was leading to the discovery of common ground. “We really had an amazing collaboration across party lines,” says Torsney, now a permanent observer to the United Nations.
The committee travelled the country together, even visiting Amsterdam and Switzerland. The vice-chair was Abbotsford MP and Reform Party member Randy White, who missed a few meetings after falling off a roof. The sessions continued in his absence, with committee members doing their best impression of what he might have had to say. “We had such a good connection between all of us,” Torsney says. “If one of the members wasn’t there, someone else would step in.”
Torsney recalls White speaking up for an absent Libby Davies, the NDP MP for Vancouver East, and vice versa. “Randy would be like, ‘Okay, so if Libby were here’ — and they were diametrically opposed in their views. ‘She’d ask something like this, let’s get it on the record.’ And then, you know, if Randy wasn’t there, it would be the same deal.”
“He and I were on the opposite ends of the spectrum,” Davies says. “I was pro-legalization and he was, you know, anti-harm reduction even in its most mild form. But it was actually a very good committee.”
The differences in opinion came to a head when it was time to author the report. “We had a bizarre, conflicting, ridiculous list of recommendations from everybody,” Torsney recalls. “It was really hard to reconcile all those things.”
Line by line, they worked through the report, trying to find balance in the language. “We just kept going around the table and we could start to see our positions evolve. We all agreed that we wanted to do this.”
In the end, they would come together to support decriminalization, with an amendment to allow personal cultivation. They went so far as to encourage the government to move quickly on the file.
For the sake of momentum
The 600-page committee report from the Senate went even further. They recommended legalization, with licenced production and sales. The Senate argued a regulated system would allow for more effective targeting of the illicit market. It would also create a pipeline of regulated products for medical consumers.
Senator Pierre Claude Nolin, a prominent Conservative, chaired that committee, and to the surprise of many, fully supported legalization. “Canadians should be allowed to choose whether to consume or not,” the senator, who died in 2015, said in a news conference after the report was published. “Scientific evidence overwhelmingly indicates that cannabis is substantially less harmful than alcohol and should be treated not as a criminal issue but as a social and public health issue.”
“He was actually an amazing guy and very forward-thinking,” Davies says of Nolin. “He was a true blue conservative, but he was also more of a civil libertarian and his stance on drug policy was very good. He recognized that prohibition was not only costly economically, but it was actually harmful.”
The push for legalization garnered further political support after Canada’s Auditor General, Sheila Fraser, published a report revealing the exorbitant cost of enforcing cannabis prohibition.
“She did this amazing report on the efficacy and value of criminalization of people on using drugs,” Davis says. “And she pointed out that Canada’s approach was mostly reliant on enforcement or a justice approach. This was an audit. It’s not, you know, some policy wonk, it’s actually a financial audit, and she threw into serious question the efficacy and value and effectiveness of the justice approach to drug enforcement.”
With support from House and Senate committees alongside, what Davies calls, “a very groundbreaking report” from the Auditor General, momentum was on Cauchon’s side. Nevertheless, the Attorney General still had his doubts: “It was difficult, there were a lot of people opposed, some in my own caucus. But you know, as a minister, you do what you believe is right.”
Despite Cauchon’s skepticism, the bill seemed on its way to becoming part of the nation’s history. There was still at least one hurdle to overcome, however — the White House.
The White House and The God Squad team up
John Walters was the director of the White House Office of National Drug Control Policy (ONDCP), where he served in George W. Bush’s cabinet for eight years. The “chief scientist” in that office was David Murray. Together, Murray and Walters travelled north to counter the growing decriminalization movement.
It wasn’t their first visit to Canada. Walters attended the University of Toronto, while Murray has family roots in Alberta that date back to the late 1800s. “I went to Vancouver and Ottawa a couple of times in my capacity as a representative of the office,” Murray says. “Vancouver was Amsterdam, even in those days,” he says. “There was an awful lot of commercial dope that was being moved around. And B.C. bud was probably the highest potency around at that time other than maybe UK Skunk.”
Murray says the U.S. was concerned about conditions worsening along the border, “as opposed to just B.C. running rampant.”
“We were familiar with a pretty intense criminal organization moving high potency B.C. bud into the U.S. and proceeds going the other way. It was pretty nasty business,” Murray says. “So we were very concerned as to what the future would look like, particularly the kind of cross border traffic that might affect what is one of the best commercial relationships in the world. We saw deterioration as a possibility if Canada were to capitulate and decriminalize at the federal level.”
The ONDCP argued that Canada was a signatory to international treaties around drug policy, and decriminalization would be a violation of those commitments. At the time, 12 U.S. states had already decriminalized minor cannabis offences, though federal law still maintained the illegality of the plant.
“We were pleading with them not to blow a hole in the global capacity to monitor and protect the public health consequences of illicit drugs,” Murray says. “And that was an appeal that we made to them.”
Ottawa countered this argument by saying that under Bill C-38, any amount of cannabis was still illegal and subject to penalty, therefore meeting Canada’s obligations to those conventions. The director of the United Nations Office on Drugs and Crime agreed, stating that C-38 complied with the main conventions, but the ardent U.S. opposition was enough to cast further doubt on what was already a precarious piece of legislation.
Davies says there was a small but significant portion of the Liberal party that ran with the U.S. opposition. “We used to call them the God Squad,” she remembers. “These are the same folks who were generally opposed to same-sex marriage, which was happening around the same time, and anything to do with drug policy reform. And so they became very vocal, and they really picked up the narrative from the drug czar in the U.S.”
Walters, Davies says, kept at it. “He kept threatening Canada, that if Canada went with the bill it was going to cause all kinds of problems at the border, and that the U.S. would have to retaliate and it could affect trade and — blah, blah, blah. It was absolute drivel and nonsense in my opinion. But unfortunately, there were people that kind of took hold of that.”
Cauchon, who had previously been the Minister of National Revenue before becoming the Minister of Justice, had a good working relationship with his counterparts in the U.S. He had worked closely alongside them on the Smart Border initiative that Bush and Chrétien had agreed to. That experience, combined with the fact that a dozen U.S. states had already decriminalized cannabis, was enough for Cauchon to believe he could convince the U.S. to come around. He maintains that the border situation was overblown.
Walters and Murray were being quoted in the media every week, he says, criticizing the bill and the government’s approach. Cauchon says that when he raised the bill in a meeting with John Ashcroft, then the US Attorney General, Ashcroft’s reaction was that it was “no big deal.”
“Canada is a sovereign country,” Cauchon says. “We do whatever we want for our jurisdictions. And that’s it. Period. “
But Canada wouldn’t get a chance to see the U.S. reaction.
A different sort of scandal
As winter approached a scandal nearly a decade in the making was erupting in Ottawa. In November 2003, Chrétien prorogued parliament. The Liberals said the pause was necessary to allow incoming PM Paul Martin time to set his agenda, while everyone else said Chrétien was avoiding the Auditor General’s report on the sponsorship scandal, which found that more than $100 million had been forked over to advertisers and communications companies with Liberal ties.
With parliament suspended, the bill lost momentum. When Martin’s minority government took over, in the shadow of the still-unfolding scandal, decriminalization was not high on the priority list.
“To the best of my recollection, Paul’s team was not very much on side with that,” Cauchon says. The sponsorship scandal would push Martin out of power, ending a 12-year Liberal reign and setting the groundwork for a decade of Stephen Harper and the Conservatives.
They went a different direction with cannabis.
“Our safe streets and healthy communities are increasingly under threat of gun, gang and drug violence,” the Conservative government said in their first Speech from the Throne. “This Government will tackle crime.” The Conservatives scrapped the bill and doubled down on cannabis enforcement, imposing mandatory minimums for some offences.
That was then. This is now
Little more than a decade later, however, Canada achieved legalization, and while there are still glaring issues to resolve — cannabis amnesty foremost among them — Cauchon says it’s remarkable how far the country has come.