Chapter 13 - Regulating Therapeutic Use of Cannabis

Opium Act, 1908

In the House of Commons on July 10, 1908, the Minister of Labour proposed the adoption of a motion prohibiting: “the importation, manufacture and sale of opium for other than medicinal purposes.”[1][24] The motion was adopted without debate. The Minister introduced Bill 205, An Act to prohibit the importation, manufacture and sale of opium for other than the medicinal purpose. (Opium Act, 1908).[2][25] The first section of the Act prohibited the importation of opium without authorization from the Minister of Customs. Additionally the drug could be used for medical purposes only. The manufacture, sale and possession for the purpose of selling crude opium or opium prepared for use by smokers was also prohibited. Whoever violated these provisions could be found guilty of a criminal offence punishable by a maximum prison term of three years and/or a minimum fine of $50 and not exceeding $1,000. Even though it prohibited the use of opium, the legislation was aimed at opium dealers, most of whom were Chinese, and not users. The bill was given Royal Assent on July 20, 1908.

The Opium and Narcotic Drug Act, 1911

The enactment of the Opium Act led to the introduction of 8 new bills intended to make it both more restrictive and effective on January 26, 1911, Mackenzie King, who had just become the Minister of Labour, introduced Bill 97, an Act to prohibit the improper use of Opium and other Drugs (the Opium and Narcotic Drug Act, 1911).[3][26] During the deliberations on second reading, Mackenzie King gave three reasons for introducing the bill: the Shanghai Commission, the panic in Montreal caused by cocaine use and the need to grant special powers to the police to ensure that the Act could be enforced effectively. The Shanghai Commission had adopted a number of non-binding resolutions, including: putting a gradual stop to the opium smoking habit, with due regard to the specific circumstances of each country; prohibiting the use of opium and its alkaloids and derivatives (morphine, heroin, etc.) and other drugs for non-medical purposes; and prohibiting the export of these substances to countries that prohibited their use.  

No member raised any objections about the four drugs added to the Schedule to the Act, namely cocaine, opium, morphine or eucaine. Section 14 of the Act also provided that the Governor in Council had the power to order any alkaloid, by-product or drug preparation added to the Schedule when its addition was deemed necessary in the public interest–a power which still exists today. The justification given for this was that if the use of a new drug were to become widespread in society, it would be possible to add it more quickly to the Schedule than by having to enact new legislation.[4][27] Other provisions of the Act related to the use of opium, search powers granted to the police, orders for the confiscation or restitution of seized drugs and a reverse onus for cases of simple possession of drugs. The possibility of requesting that a higher Court issue a writ of certiorari with respect to prosecutions carried out under this Act was eliminated.  

The post-war period led to a string of major amendments to the offences, penalties, police powers and criminal procedure provided in the Opium and Narcotic Drug Act. There are several factors to explain this legislative ferment:  the concerns raised by Emily Murphy’s writings about the extent of the “scourge” of drugs in Canada[5][28]; the renewed conflicts between Whites and Asians in British Columbia; the mobilization of doctors’ and pharmacists’ associations to prevent the Act from infringing on their activities; the establishment in 1919 of the Department of Health and the powerful Narcotics Division (the predecessor of the current (Office of Controlled Substances), which were responsible for enforcing international conventions on drugs in Canada; the establishment in 1919 of the Royal Canadian Mounted Police (RCMP), responsible for enforcing the Opium and Narcotic Drug Act; the enactment of the Harrison Narcotic Act in the United States in 1914; and the mobilization of the international community to enforce the International Opium Convention (The Hague - 1912) imposed on a number of countries by the 1919 Treaty of Versailles.

The establishment of the narcotics division

The enactment of the Harrison Narcotic Act in the United States and the mobilization of the international community to enforce The Hague Convention quickly brought to light three major shortcomings of the Opium and Narcotic Drug Act, 1911.[6][29]

The first problem appeared when the time came to control drug imports and exports. The Act had only vague instructions concerning trading in drugs for medical or scientific purposes. That being the case, customs officials were reluctant to seize cargo containing opium or other drugs.

The second problem stemmed from the enactment in the United States of the Harrison Narcotic Act, which was similar to the Act passed in Canada in 1911. However, it imposed a system of licences issued to businesses by the federal government authorizing them to import or export drugs. This led to a significant demand for illegal drugs in the United States. As the supply of these substances in Canada exceeded consumer demand, traffickers quickly took advantage of this business opportunity and exported their surpluses to the United States. This had become so profitable that in 1918, a committee of the US Senate filed an official complaint with the Canadian government concerning drug trafficking.

The third and final problem stemmed from the fact that traffickers quickly found ways to avoid the provisions of the 1911 Act because its enforcement was not centralized within a single government agency. On the one hand, Customs was attempting as best it could to control legal trade in drugs whereas on the other hand, municipal police departments handled illegal trafficking, which was becoming increasingly sophisticated every year, requiring that new powers be granted to the police.[7][30]

The many amendments to the Act to deal with these problems were orchestrated in part by F. W. Cowan the first Chief of the new Narcotics Division (1919-1927) of the Department of Health, and in particular by Colonel C. H. L. Sharman, the former RCMP officer who succeeded him (1927-1946). Cowan quickly understood after becoming Chief of the new division that he would have to centralize control over both legal and illegal trade in drugs to ensure that the Act could be enforced effectively, thereby assuring the long-term survival of his organization. During his tenure, an impressive communications network was created, and by the end of the 20s, it included the other divisions of the Department of Health, the Department of Justice and the lawyers hired to prosecute drug offences, the RCMP, the media, municipal police departments, associations representing doctors and pharmacists, governments and agencies responsible for enforcing the laws of other countries, including the United States, and international narcotics control agencies established by the League of Nations.

Under Sharman’s impetus, the administration of information  from all of these participants was eventually conducted solely by the Division, and no longer by the Department of Justice or the RCMP. This made it possible for the director to have an overall picture of the narcotics situation, thereby making him an “expert” in the field.  A former official of the Division described Colonel Sharman as “a Czar running an empire of his own.”[8][31] His influence grew when the Division was placed under the authority of the Deputy Minister of Health. The reorganization fostered a closer and more direct relationship with the Minister and Members of Parliament, making it possible for him to short-circuit proposals from other divisions within the Department. And when the time came to add further offences, penalties, criminal procedures or new police powers in the 20s, the Division never hesitated to take advantage of the “panic” generated by the media in Vancouver, or Emily Murphy’s writings, to justify such amendments.[9][32]

From the standpoint of enforcing the Act, this structure was very useful. For example, up until the 50s, from the moment a police officer or a lawyer, anywhere in Canada, informed the Chief of the Division of a weakness in the Act, he would draft proposed amendments, pass them on to his network for rapid consultation, and if necessary, he would encourage the Minister of Health to introduce a bill to correct the problem situation. The federal drug bureaucracy as we know it today was born!

In such a context, the establishment of a network like this had a significant impact on the direction that would be taken by Canadian narcotics legislation:

 In short, the establishment of an administrative organization to enforce narcotic law had the unintended consequence of creating a centralized pressure group which had the motivation and influence to play a major role in shaping the future course of the legislation. This centralization of power and expertise together with the fact that the resources were directed mainly at a socially powerless group helps to explain the virtual absence of an effective criticism and alternative proposals for control from 1920 to 1950. [10][33]