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Andrew Coyne: All in all, the Liberals got it right on pot legalization

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Perhaps the federal Liberals were hoping to be congratulated for moving forward with legislation to permit the recreational use of marijuana in Canada. It was, after all, the fulfillment of a signature election promise, and these days that’s news.

If so, they were destined to be disappointed. Those opposed to legalization before were just as opposed to it after, while those in favour, which would include most of the press corps, found the Liberal approach, with its emphasis on how heavily regulated the legal marijuana market would continue to be, unspeakably square.

They were only doing it, some complained, because they had to — because they couldn’t afford to break yet another campaign promise — not because they actually believed in it. It was “the most grudging piece of legislation since the Paul Martin Liberals legalized same-sex marriage,” wrote one. Some saw the timing of the press conference, on the afternoon just before a long weekend, as betraying a certain lack of enthusiasm.

One had the distinct feeling that some of my colleagues would only have been satisfied had the assembled ministers put on a Bob Marley record, sparked up a nation-sized spliff, and confessed they were already “lit af” by virtue of a mid-morning bong session. If the Liberals really believed that marijuana was so dangerous, asked one, why on earth were they making it easier to obtain? Surely they had imposed so many restrictions that the bulk of the trade would continue to be in the black market.

Others complained that the rules on advertising were too restrictive, or that it was folly to try to regulate the growing of marijuana plants at home. As if that were not enough, there were all those “unanswered questions,” like how it would be taxed, or who would distribute it, and so on. Hadn’t they just punted all the hard questions to the provinces?


THE CANADIAN PRESS/Adrian Wyld

With respect, I think my colleagues are demanding of the government “a foolish consistency.” No doubt the Liberals’ back-handed approach to legalization is heavily influenced by political calculations: it would not be surprising to find internal polling showed they were vulnerable on the issue, especially once you move beyond the top-line “should pot be legalized” question to the realities of implementation.

But there is also sound reason in principle to proceed with caution. For goodness sake: we are only the second country on earth, and the only large one, to do this. Legalization is probably, on balance, the best approach, but if we are honest we will acknowledge only probably, and only on balance. There are potential downsides as well as upsides, some of which we have anticipated, others of which we may have not. A little humility is in order.

My own position on these sorts of “vice” issues is what one might call libertarian-calvinist: you should be allowed to do them, but you shouldn’t want to. The policy equivalent is not far off what the government has attempted here, a kind of paternalistic liberalism. It is rooted not in the belief that marijuana is harmless, or that society should be unconcerned at the harm it might do, but in the observation that much worse harm arises from prohibiting it: in creating a lucrative business for organized crime, but also in bringing otherwise law-abiding people into contact with criminals, in some cases saddling them with criminal records.

There is no contradiction, then, in legalizing it, while continuing to discourage its use, in the full knowledge that we may be more successful in the former effort than the latter — that by alleviating the first sort of harm we may make the second worse. There is some evidence in polling data — and also from experience, after the lifting of Prohibition in alcohol — that usage will increase if marijuana is legalized. We can’t know for certain until we try, but we should begin by admitting to ourselves that we are not just legalizing marijuana, but at least to some extent, normalizing it.

Whether we normalize it on the model of alcohol, as a pleasurable activity that some people abuse, or of tobacco, as something inherently unsafe, will depend on the particulars of the regulations: what sort of advertising is allowed, or how widely it is distributed, and through which channels. Likewise, how successful we are at taking the business away from organized crime will depend on the particular taxation model: you want to set the price just low enough to make it worthwhile for existing users to switch to legal sources, without setting it so low as to cause a major expansion in consumption.

The uncertainty surrounding these and other issues of implementation argues strongly for leaving much of the details to the provinces — not only to reflect differences of customs and values, but in classic “laboratories of democracy” terms, to allow each to learn from the others’ experiments. In the broad strokes, then, I think the Liberals got it right, even if in certain specific respects — the maximum 14-year penalty for selling pot to minors, or the opportunistic expansion of current law on driving while impaired to permit the police, not only to test for marijuana, but to order breathalyzer tests for alcohol without probable cause — they went too far. Whether either survives committee or court scrutiny may be doubted.

The good news is we are not starting from scratch here. Long experience with alcohol and tobacco has taught us both the futility of prohibition and the necessity of regulation, and if we have not been wholly successful either at taking them away from organized crime or keeping them away from children, we have been tolerably so. If that strikes some as hypocritical, well, there is something to be said for hypocrisy in such matters.

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