Effect of Cannabis Policies on the US and Canada's Relationship

High Priorities: Cannabis Prohibition in The United States and Canada Makes for Uncertain Future

1. Introduction

In the past decade, efforts in the United States and Canada towards cannabis[1] legalization raise significant concerns about the conflict between federal regulation and state/province autonomy. While both countries share similar history on the “war on drugs,^[2]” the current political arena in each country is advancing diverging positions on the issues of cannabis legalization at the federal government level.^[3] Since 2013 the Canadian Liberal Party continues to provide compressive revisions to the legalization of cannabis at the federal level.^[4] Such efforts have seen a remarkable expansion under the present leadership of Prime Minister Justin Trudeau. Cannabis legalization in the United States witnessed somewhat of a similar progression under President Obama, however, under the tenure of President Trump’s his cabinet signals a perplexing future for legalization and regulation of cannabis.^[5] A possible regression in cannabis legalization and regulation under President Trump may put the cannabis industry and consumers in states where it has been legalized in a precarious position. The divergent treatment of the cannabis reform in these two nations, nurture uncertain speculations about the future of American-Canadian relationship.

Additionally, the two countries experience diametrical positions in case-law regarding cannabis regulation by the federal government. Each country focuses on different standards of enforcement and regulation. For example, the Canadian approach of prioritizing the right to security from unwarranted government intrusion and persecution when trying to obtain medical treatment.^[6] Within the past decade this prioritization of individual rights over (sometimes baseless) drug enforcement, demonstrates an astonishing response by the Canadian government in improving active problems inflicting their citizens. Contrary to Canada’s focus, much of the U.S. government remains silent on the such a question of individual rights^[7] when discussing cannabis legalization; rather, policy is prescribed under polices of drug regulation and crime prevention.^[8] As such, distinct contemporary approaches taken by Canada and the United States make it unclear how well the two countries will deal with an emerging cannabis global market.^[9]

The purpose of this note is to address how early resemblances of marijuana prohibition in the U.S. and Canada, and each country’s diverging positions towards marijuana reform, create an infertile ground for the future of their relationship. This note will discuss how recent changes in the politics of each nation will engender more instability and conflict between the two. Part II of this note speaks to how the initial focus of cannabis prohibition in both, was due to discriminatory and nationalistic attitudes that were essentially backed by the respective governments.  Part III examines the prohibition effects vis-à-vis government action on marijuana reform; in the United States this was subject to state prerogatives while in Canada, the initiative was directly addressed by Parliament. Part IV analyzes the overwhelming consequences created as a result of government indecision and the lack of dialogue between both countries regarding cannabis policy, whilst proposing solutions to these issues.

2. History of Marijuana Prohibition In Canada and The United States
   1. The GrinNo-way

The regulatory regime around cannabis policy in the United States witnesses a continual inconsistent development since the conception of the nation. Many suggest the tenacious mêlée of cannabis prohibition was in part because of misaligned juxtapositions of immigrating minorities with crime and violence.^[10] Nevertheless, within the past decade, the legalization of marijuana at the state level attempts to ameliorate the sins of the past through comprehensive regulation and enforcement of legal medical and recreational cannabis. With an awareness of the potential benefits potentially bearing fruit from legalization, states are heeding the widespread approval by the American populous.^[11] For example, the 2016 election concluded with 29 states legalizing cannabis in some form.^[12] The trend towards marijuana legalization at the state level, continues to create significant disparities between federal and state regulation priorities.  Additionally, one may wonder where the trajectory of the future of federal marijuana regulation and legalization may progress with the  Donald Trump as President of the United States and Senator, Jeff Sessions as Sessions as Attorney General—a known challenger of cannabis legalization.^[13] Issues of federalism, coupled with the election of a republican majority government, may put the progression of marijuana legalization in limbo or regress, which can conceivably hinder US relations with a promising legal market in neighboring Canada.

1. The Beginning Years

The inception of cannabis prohibition in the United States began no more than a century ago. During the colonization of the free nation, the consumption, production, and sale of cannabis was legal due to high reliance on hemp at the time.^[14] By the close of the nineteenth century cannabis became, alongside tobacco and cotton, one of the leading crops produced in the Americas.^[15] During this time physicians often prescribed cannabis for medical,^[16] however, after a rise in opiate addiction following the Civil War, cannabis fell under the same fate as many other commonly stigmatized drugs such as heroin and cocaine.^[17] Moreover, early restrictions on cannabis are documented as being under the guise of federal drug regulatory objectives backed with discriminatory sentiments, which were immensely supported by states until the end of the 20^th century.^[18] Scholars suggests xenophobic and racist opinions inundated early cannabis illegality because of the influx of Mexican and Chinese immigrants into the states^[19]

During the turn of the twentieth century, a common misconception of the use of cannabis was frequently associated with minority groups and crime, especially in Latino and Black communities.^[20] Although active legislation was instated to combat addiction, none made mention of a direct cannabis ban^[21] until Congress set out to regulate cannabis through a tax in 1937.^[22] Initial federal prohibition charmed the public through the backing of the polemic film, Reefer Madness (1936),^[23] “which depicted marijuana users as murderous fiends.”^[24] Prohibitionist and Federal Narcotics Bureau Commissioner, Harry J. Anslinger, used the film as exemplar of how cannabis was an “assassin of the youth” that induces violent behavior and with repercussion far more destructive than other drugs.^[25] The vilification of cannabis permitted Congressional introduction of the Marihuana Tax Act of 1937, “bann[ing] the unlicensed and non-medicinal use” of marijuana.^[26] The American Medical Association (AMA), as part of a vigorous opposition to the removal of cannabis from Federal Pharmacopeia, contended that the drug could have medical uses, and there was no legitimate evidence demonstrating that marijuana would provoke criminal conduct.^[27] Notwithstanding credible opposition, Congress approved the act and reclassified cannabis as a controlled substance.^[28] Though the Act did not declare cannabis per se illegal, the cumbersome tax on administrative and regulatory measures, made it impossible for any involvement in the cannabis industry.^[29]

2. Federal Prohibition

Official illegality of cannabis began through the enactment of the Control Substance Act (CSA) in 1970, by providing “statutory framework through which the federal government regulates the lawful production, possession, and distribution of controlled substances.”^[30] By criminalizing cannabis, the purposes of the CSA was to “combat drug abuse, prevent the diversion of drugs from legitimate to illicit channels, and eliminate ‘[t]he illegal importation, manufacture, distribution, possession, and improper use of controlled substances.’”^[31]A multitude of substances are placed by the CSA into five distinct schedules based on each substance’s medical use, potential for abuse, and safety or dependency liability.^[32] Under the notion that cannabis has  “no currently accepted medical use” and “high potential for abuse,” Congress listed cannabis as a Schedule 1 drug, thus placing it in the most restrictive category.^[33] Effectively, this made the cultivation, distribution, or possession of cannabis a federal crime.^[34] Serving as a standard for various state laws, the CSA brought on a new era of marijuana reform, and within a few years of its passing, cannabis was prohibited in all fifty states.^[35] Nevertheless, due to cannabis availability in black markets and the enforcement of laws proved to be racially disproportionate, reconsideration of the prohibition became a state focus.^[36] States began to embrace popular advocacy for not only the disparate criminalization between minorities and whites, but also commenced reexamining cannabis use vis-à-vis the potential medicinal benefits.^[37]

2. The Canadian Way-Eh
   1. Early Developments Thanks to Opiates

Cannabis in Canada endures the similar fate of inconsistent methodologies to combat the issues as it has in the United States. Just like its southern neighbor, initial cultivation of cannabis in Canada predominately served the hemp industry, and its use was considered to have medicinal value.^[38] Likewise, Canada’s history is equally plagued with discriminatory and nationalistic ideologies in order to combat the war on drugs.^[39] The use of Chinese migrant workers for railroad construction and gold mining was as prevalent in Canada as in the United States, and both countries dealt with the opiate addiction allegedly be brought by the Chinese.^[40]

Completion of many of these projects by Canadian companies, lead to the unnecessary need of further Chinese labor, resulting in thousands of these workers being left homeless and thereby creating a serious immigrant crisis.^[41] In its attempt to control the crisis, the Canadian government moved to enact the Opium Narcotic Act of 1908;^[42] prohibiting the import, manufacture and sale of non-medicinal opiates.^[43] Albeit that the Act was designed by the Canadian government to “eliminate an undesired element of the labor pool” (the Chinese) the act is currently the basis for all government dealings with illicit drugs.^[44] However, issues of enforcement emerged and the development of Chinese opium smuggling networks prompted the government to revitalize the Act of 1908 into the Opium and Drug Act, which was promulgated in 1911.^[45] The Act not only  covered opiates, but the government expanded the list to other prohibited drugs.^[46] Furthermore, an amplification of minority criminalization of drug possession and use in the States, prompted comparable approaches in Canada coupled with the support of the MacLean’s Magazine, which published a series of articles regarding illicit drugs in Canada.^[47]Analogous to the American demonization of cannabis use with the association of minority groups and crime, these articles written by Judge Emily Murphy, professed a white only Canada by claiming:

“Addicts to this drug, while under its influence, are immune to pain, and could be severely injured without having any realization of their condition. While in this condition they become raving maniacs and are liable to kill or indulge in any form of violence to other persons, using the most savage methods of cruelty without … any sense of moral responsibility. When coming from under the influence of this narcotic, these victims present the most horrible condition imaginable. They are dispossessed of their natural and normal will power, and their mentality is that of idiots. If this drug is indulged to any great extent, it ends in the untimely death of its addict.”^[48]

Murphy’s stance on marijuana prohibition derives from discriminatory sentiments akin to Narcotics Commissioner, Harry J. Anslinger, in claiming marijuana as a “menace to society” with references of use in minorities making them violent and insane, particularly Mexicans.^[49]  These articles later compiled into a book entitled “The Black Candle,” were used by prohibitionists “for the express purpose of arousing public demand for stricter drug legislation.”^[50] Indeed, Murphy’s contentions potentially incited the Canadian government in extending the Opium and Drug Act to include cannabis as a prohibited drug in 1923.^[51]

2. Contemporary Prohibition

Canadian use of cannabis escalated in the 1960s and 1970s, prompting extreme amounts of drug convictions and arrests throughout the country.^[52] In 1972, talks of a liberalization of Canadian drug policy, whilst the persistent negative perception of marijuana, ensued by the Commission of Inquiry into the Non-Medical Use of Drugs, also referred to as Le Dain Commission.^[53] The commission recommended a repeal of cannabis prohibition based on extensive research findings that “the social cost . . . did not justify the nation’s current drug policies.”^[54] However, like the American Medical Association’s recommendations to Congress, negative perception of cannabis use provided for the government to discount the assertions to reclassify cannabis under the Narcotic Control Act.^[55] Aside from an amendment to the Act allowing prosecutors to proceed with cases under lesser offenses, the Le Dain provoked the formation of Non-Medical Use of Drugs Directorate (NMUDD).^[56] In response, pivoting focus on health considerations instead of criminal sanctions.^[57]

Likewise pressures from the Reagan Administration its infleunce global drug policy, pushed Canada to enact the Drug Strategy in 1987 in order to enforce, treat, and prevent drug use.^[58] However, the program became a failure once funding ended, and in 1997 Parliament instated the Controlled Drugs and Substance Act, replacing the Narcotic Control Act.^[59] Nevertheless, Parliament rescheduled cannabis from Schedule 1 to Schedule 2, where penalties for possession, distribution, and production were lessened; particularly for personal medicinal use. The CSDA defines any substances “that can alter consciousness as a controlled substance,” and brought to Canada the American-driven strategies towards the “war on drugs,” which later found to be as unworkable as in the states, calling for provincial and federal government intrusion.^[60] Dispute active regulation and enforcement, marijuana use and distribution increased significantly, as reported by the Royal Canadian Mounted Police (RCMP), stating “marijuana production activities will continue to increase” because of the popular use among individuals and pervasiveness of black markets making marijuana available.^[61]

While Parliament’s determined contention of the dangers of cannabis use, advocates against prohibition pushed for reform of marijuana policy arguing the basis for the draconian law as “idiotic, unfounded, and inaccurate.” Advocates claimed the government maintained the prohibition of marijuana by the dissemination of propaganda and the use of medical studies that are outdated and discredited by the scientific community.”^[62] Particularly, these advocates denounced the American influence on the war on drugs in Canada, calling for Canadian independence on the matter and eventual marijuana reform “would put tremendous pressure on U.S. lawmakers to do the same.”^[63] Realizing these conflicting methodologies continued to be undermined by black market and popular opinion regarding legalization, Canada since moved to significantly alter laws regarding medical marijuana access, and presently the government is considering full legalization of recreational marijuana to alleviate these persisting conundrums.

3. Effects of Prohibition and the Road to (Potential) Legalization: A Story Of Different Approaches

Since the passing of controlled substances acts, Canada and the United States instituted diverging views on the management of cannabis policy. Attributing to such opposite approaches is the rise of liberal and progressive moments in Canada at the start of the millennium, while a rise of conservative and right-wing inclinations prompted more enforcement and control in the United States.^[64] Furthermore, the Canadian government’s progression of legalization focuses on a balance in crime prevention and an individual right to use marijuana for medicinal purposes, while the American approach is silent of individual rights, crime and drug prevention are at the forefront of American federal policy.^[65] This next section will outline the legalization process in each country, as well as discuss the effects on prohibition on such a process.

1. State Disobedience: Policies Puzzling the Future In The United States

Notwithstanding the federal ban, since 1996 states have implemented legislation allowing the use, production, and distribution of medical cannabis, citing to the potential health and economic benefits. Ironically, California, one of the first states to criminalize cannabis, became the first state to legalize medical cannabis, sparked by political and popular support for marijuana use for terminally-ill patients.^[66] California’s Proposition 215 became the longstanding model for reform at the state level, with the condition that legal use of medical cannabis is possible when recommended and prescribed by a medical physician for treating a medical condition.^[67] Presently, either through ballot initiative or state legislative process, twenty-nine states and District of Columbia, have enacted laws modeling the California initiative of legalizing medical cannabis, and including within this list, along with the D.C., eight states have legalized marijuana for recreational use.^[68]

Moreover, certain provisions of state medical and recreational cannabis laws are designed to shield individuals, doctors, and others in the industry from state criminal prosecution.^[69] States where recreational marijuana is permitted “impose state controls akin to the more restrictive state laws regulating the sale of alcoholic beverages.”^[70] While state legalization of both medical and recreational cannabis are in force, this violates the Federal CSA ban on marijuana.^[71] With other states following suit^[72], lingering constitutional questions on the constraints of the relationship of federal and state law, will foster instability and ambiguity in “states that are pioneering new approaches to marijuana control.”^[73] The cannabis market in United States and Canada are growing at an extraordinary rate that is purported that the market will surpass the gains of the dot-com era by a projected growth of 25% per year.^[74] This exploding market calls for federal reassessment in potential initiatives towards establishing a legitimate market, particularly with the pendency of Canadian recreational legalization of marijuana due in 2017.

1. Federal Indecision Exacerbating the Uncertain

As states move for legalization of cannabis either for medical or recreational use, conflict in federal and state law places the use, production, and distribution of cannabis in a dual state of compliance and violation.^[75] Marijuana policy in the United States witnessed an acute progression under President Barack Obama, chartering an end to the Bush administration’s frequent raids of medical marijuana distributors and the inconsistent application of federal and state law.^[76] In an informal policy, President Obama announced that the federal government has “bigger fishes to fry,” and the focus on drug enforcement should be geared towards the black market and not the legitimate state market.^[77]

Likewise, Deputy Attorney General David Ogden in 2009 issued a memorandum providing guidance and clarification regarding federal prosecution in state which have legalized medical cannabis.^[78] The memorandum specifically declares the “pursuit of [federal] priorities should not focus federal resources in [] States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” The memorandum, although useful for some clarification on state compliance, nevertheless, leaves states in limbo when facing federal “investigation or prosecution even where there is clear and unambiguous compliance with existing state law . . . where investigation or prosecution otherwise serves important federal interest.”^[79] Even with such cautionary language, the post-memorandum effect demonstrated an optimistic future for a “hands-off policy to enforcing federal marijuana laws in states authorizing marijuana under state law.”^[80] However, an upsurge in the “commercial cultivation, sale distribution, and use of marijuana for purported medical purpose,” provoked DOJ response in a 2009 memorandum by Deputy Attorney General James M. Cole.^[81] Responding to state authorization “of large-scale, privately operated industrial marijuana cultivations centers,” the Cole Memorandum clarified the scope of the Ogden memorandum declaring the government “never intended to shield such actives from federal enforcement action and prosecution, even where those activities purport to comply with state law.”^[82] Therefore, those “who are in the business of cultivating, selling, or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the [CSA] regardless of state law.”^[83] Since the issuing of the memorandum, state and federal prosecution of those involved in the marijuana industry skyrocketed, causing many states to hold off on legislation expanding their medical marijuana programs or programs for recreational use.^[84]

Deputy Attorney Cole provided a subsequent memorandum responding to the passing of recreational marijuana laws by Colorado and Washington, by announcing a waiver on legal challenges to recreational laws, but reserving right to interfere with criminal prosecution actions [i]f state enforcement efforts are not sufficiently robust.”^[85] Federal intrusion would ensue if there is a lack of state compliance under eight outlined priorities,^[86] or implementation of state laws that would otherwise “stand[] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”^[87] These communications by the federal government provide some, but minimum guidance in respect to state law compliance, thereby leaving an undefined road towards solving the federal-state conflict. Recently, the federal government declined rescheduling cannabis under the CSA in 2016, by stating cannabis contains no medicinal value.^[88] Aside from a few recent clarifications, the federal government remains mute in the reclassification of cannabis, state legalization, the conceivable medical benefits of cannabis, and the potential outright legalization.^[89] In a sense, the government has failed in mitigating prevailing issues that are a by-product of cannabis prohibition.

2. Federalism Effects

The federalism anomaly poses a variety of constitutional questions, which have received little to no answers regarding the cannabis state experiment. However, in Gonzales v. Raich, the Supreme Court held the cultivation, production, and distribution of medical cannabis is well within Congressional Commerce authority.^[90] Notably, the Court’s opinion in Raich dealt solely on the question of Congress’ Commerce power to regulate and prohibit “intrastate possession and use of marijuana,” but made no comment on whether state law permitting the use of medical cannabis was preempted by CSA.^[91] Further exacerbating the unknown, the Court neglects to discuss a solution to this real-life law school exam hypothetical regarding the doctrines of preemption and anti-commandeering, thus, leaving federal and state initiatives in an incongruent  positions.^[92]

The Constitution’s Supremacy Clause establishes the preemption doctrine by declaring federal law “the supreme law of the land” and the “fundamental principle of the Constitution is that congress has the power to preempt state law.”^[93] This bears the constitutional question assessing whether States legalizing cannabis are preempted by the direct conflict with the CSA.^[94] Nonetheless, while a conflict exists, the CSA does not entirely preempt state marijuana laws due the Tenth Amendment’s anti-commandeering doctrine, and a CSA provision clarifying “Congress did not intend to entirely occupy the regulatory filed concerning controlled substances or wholly supplant traditional state authority in the area.”^[95] The anti-commandeering doctrine institutes a federal restriction that insulates States from the enforcement, development, or maintenance of federal law.^[96] Thus, the federal government is precluded from obligating states to enact legislation on intrastate regulation regarding an activity commonly regulated by the federal government.^[97] Additionally, the federal government is precluded from forcing state executive official to be commandeered by the federal government for the purpose of carrying out federal law.^[98] Likewise, the preemptive power of the federal government is expressly limited in the CSA unless “a positive conflict between” state and federal laws makes it either “physically impossible” to comply with both laws, or the state law “stands as an obstacle to the accomplishment and execution” of congressional objectives.”^[99] While there are some consistencies in preemption and anti-commandeering, scholars affirm remaining ambiguities in the law leave an opportunity for preemption of the CSA, which may prevent state protection of citizens complying with state law.^[100] Even more straining is the uncertain future in federal stance on cannabis with a majority republican controlled government and the appointment of Jeff Sessions as Attorney General, who have spent decades opposing legalization.^[101]

As more states join legalization, the issue of preemption remains undefined and until the Supreme Court opines on the subject, states may experience federal intervention, which potentially may overrule state initiatives. Not only does the federalism conflict set compliance with the law uncertain, but the CSA’s ban on cannabis makes it so those involved in the cannabis industry cannot deposit legitimate profits in banks, and are finding themselves at risk of theft by incurring piles of cash inside their business.^[102] Pressures from the government results in banks shunning away those engaged in cannabis commerce under the fear of federal prosecution for money laundering.^[103] Lack of uniformity, or even federal guidance, makes it unmanageable to regulate or tax cannabis businesses operating exclusively by cash, and with such high profits its money the State along with the people are losing from a legitimate enterprise.^[104] Until there is a federal prescription guiding States with these issues, the federal ban on cannabis will remain defaming the current legal industry, making it nearly impossible for banks and other industries, to perceive cannabis as a legitimate industry.^[105] Additionally, businesses involved in the legal market or individuals simply seeking legal advice, are encountering inconsistent state regulations when accessing attorneys or even for attorneys to represent such individuals.

The federal ban coupled with the most recent DOJ memorandum, mark participation or knowledge of legal marijuana commerce as an efficient breach of CSA; thus attorney providing such entities or individuals with legal assistance may find themselves conceivably violating ethical codes of the state bar that refer to the Model Rules of Professional Responsibility.^[106] States like Arizona, Colorado, and Washington have a relaxed by cautionary approach, expressing a need for attorneys to keep in mind of the federal prohibition when advising clients as well as stating no intention of attorney discipline by the bar for those “who in good faith advice or assist clients . . . in strict compliance with the state and its implementing regulations.”^[107] Main and Connecticut have ambiguous approaches stating “the Rule governing attorney conduct, does not make a distinction between crimes that are enforced and those that are nonetheless a federal crime.”^[108] These States advise attorneys to be aware of the risks and should evaluate where to draw a line “between permissible and forbidden activities on a case-by-case basis.”[109] The complications presented by federalism and the government silence and ambiguity, particularly to the access of attorneys and banking, are added exacerbation to the uncertainty of the cannabis industry’s legal status. The U.S. would be in a vulnerable position once Canada outright legalizes cannabis, placing the U.S. at a disadvantage in being a global competitor in a market spearheaded by Canada.[110]

2. Canada’s Legalization Of Medical Marijuana and The Future Of Recreational Use

The legalization initiative in Canada is principally a federal government response to disproportionate criminalization of those need medical cannabis as we as a the security of individual rights; rather than state action as in the United States. Canada’s progression towards medical and recreational cannabis legalization, focuses primarily on Parliament’s preferment of health issues, individual rights, and the control of organized crime groups.^[111] Contrary from the American legalization process, which focuses regulation and enforcement of drugs based on criminal prosecution, the Canadian government continues to experiment with legalization after recommendations from Le Dain report.^[112] This next section will outline the basis for change in Canada under section 7 of the Charter of rights and Freedoms,^[113] and the government response to increasing barriers for individuals to obtain medical marijuana. The section will conclude with the future of marijuana legalization in Canada proposed by the Canadian Task Force in 2016.

1. Supremacy of Section 7 of the Charter: The Basis for Change

Revisions towards legalization stems from Section 7 of the Canadian Charter of Rights and Freedom; supreme law of Canada, which stipulates a similar preemptive effect as the U.S. Constitution, declaring any law contrary to the charter will have no effect.^[114] Under the charter, “[e]very has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”^[115] These independent, but intersecting rights under section 7 apply to all natural citizens of Canada and can be asserted in the presence of government intrusion of these rights.^[116]  Between the 1990s and early 2000s, reconsidering the potential medicinal value of cannabis, Parliament applied the guaranteed rights mention above as the basis when accessing of medical cannabis. In 1999, Heath Canada’s Research Plan for Marijuana for Medicinal Purposes stipulated a research plan to discern cannabis’s use for medicinal purposes, and thereafter established the Marihuana Medical Access Program (MMAP).^[117] The MMAP amended section 56 of CDSA to allow access to marijuana for medical treatment, but required the issuance of an exemption under the CDSA.^[118] Because of the negative stigma of marijuana, many doctors were reluctant to prescribe marijuana as a medicine and individuals found it nearly impossible to obtain the medical exemption, pushing individuals to turn to the black market and risking of criminal prosecution.^[119]

2.    Series of Court Decision and Government Response

Increasing criminal prosecution inaugurated legal challenges to section CDSA, causing courts to consider the proportionality of criminal prosecution for possession and cultivation of medical cannabis to an the individual’s right to security.^[120] In 2000, the Ontario Court of Appeal issued an opinion to section 56 of the CDSA in R. v. Parker, where an defendant, Parker, growing his own supply of cannabis to avoid the black market was arrested for possession and cultivation of cannabis.^[121] The Ontario Court found “[t]he government’s failure to provide reasonable access for medical purposes violated Mr. Parker’s rights under section 7 of the Charter, as he had not only been charged with a criminal offense but was forced to choose between his ‘liberty’ and his ‘health.’”^[122] The Court concluded the objectives of the CDSA were to protect the health of citizens, but by preventing access to cannabis the objectives were running counter to the legislative effect, thus the court deemed the CDSA arbitrarily denying “a generally safe medical treatment that might be of clear benefit” as inconsistent with guarantees of the charter and fundamental justice.^[123]

Citing the holding of R. v. Morgentaler, the court affirmed the “‘[s]ecurity of the person’ within the meaning of s. 7 of the Charter must include a right of access to medical treatment for a condition representing a danger to life or health without fear of criminal sanction.”^[124] The Court found that a blanket prohibition on cannabis possession in the CDSA with no legal source to supply medical marijuana, deprives individuals of the “right to security of the person and right to liberty,” and is therefore unconstitutional under section 7 of the Charter.^[125] The Court’s holding inspired current changes in cannabis policy by Parliament, and serves as a blueprint for other courts in determining when principles of fundamental justice are intersecting with criminal law, and potentially impeding on the individual rights guaranteed by the Charter.^[126]

Subsequently, the Court’s holding prompted government response to consistencies of the objectives and effects of the CDSA. In 2001, the Canadian Parliament amended the CDSA to allow personal possession and purchase of cannabis for legitimate medical needs and enacted the Marihuana Medical Access Regulations (MMAR).^[127] The purpose of the Regulation was to “establish a framework to allow access to marihuana by individuals suffering from grave or debilitating illnesses,” and those seeking medical access must be authorized under one of the three categories of symptoms and disease^[128], and supported by medical practitioners and specialist.^[129] While this attempt by Health Canada offered access to medical cannabis to more individuals, without the fear of criminal sanction, the requirements in the MMAR were deemed impossible for many to satisfy, and lead to inevitable debate in the Canadian courts.^[130]

Since Parker, medical cannabis reform in Canada endures incremental modification from both government response and Charter challenges to the effects of government regulation that is contrary to the guarantees of section 7 of the Charter.^[131] A series of cases and political movements continue to reshape cannabis reform, and have prompted response from the current government to legalize adult use of cannabis, in order to ease the effects of government regulation, under the guise of particular regulations. Much of the MMAR has been long debated for its ambiguity and reservation on the pertinent implications of government regulation on individual access and rights concerning the use medical cannabis. The first major challenge to  the MMAR was the regulations limitation on legal access and supply of medical cannabis, which demonstrated that even when a citizen was able to obtain a medical exemption, individuals were still turning to illegal markets for medical cannabis.^[132] In 2003, the Ontario Court of Appeal in Hitzig v. Canada, considered a MMAR challenge to the legal supply and access of medical marijuana and determined legislative restriction created a serious impediment for individual access to a legal supply.^[133] The claimants asserted the near impossible task to find medical professionals that would authorize their medical exemption and the lack of legal supply, forced claimants to turn to purchasing the drug in the black market.^[134] Reviewing the evidence, the Court held the MMAR directly violated rights of liberty and security set by section 7 of the Charter.^[135] The Courts holding reaffirms government implementation of processes preventing authorized users to medical marijuana as counter to the principles of fundamental justice, because removing legal access to supply, the government is essentially granting individuals leave to purchase from illegal markets.^[136] Requiring citizens to break the law gives rise to heavier criminal prosecution, effectively promoting government disobedience. While the Court did not view the task to obtain medical authorization as impossible or unduly burdensome task, it did note “if in the future physician cooperation drops to the point that the medical exemption scheme becomes ineffective, this conclusion might have to be revisited.”^[137] Following this decision, the MMAR was amended to permit authorized users to obtain cannabis from Health Canada and the authorization process to obtain marijuana was further simplified, relaxing the specialist approval process.^[138]

Indeed, Canada saw an incredible spike in the number of individuals who were authorized to possess and produce large amounts of cannabis. The regulation of the MMAR in respect to the limitations of obtaining licenses for production as well as the limited amount of cannabis supply available, demonstrated a necessity for modification.^[139] Additionally, the amount of production licenses amplified dramatically, but the issue became a lack of government  foresight, because the “MMAR did not intend to permit such widespread, large-scale marijuana production” the government quickly recognized “the MMAR did not adequately address the public health, safety, and security concerns that accompanied personal production.”^[140] Numerous local and federal complaints expressed the negative impacts of personal production in-house grow operations that posed various “fire safety risks, building code violations, electrical violations, diversion, theft, and children’s safety.”^[141] Such worries ensued careful consideration of amendments that would address and improve these expanding issues. The problems with the MMAR were far from over, and on in 2013 Health Canada instituted the Marihuana for Medical Purposes Regulation (MMPR), effectively made medical marijuana legal throughout Canada.^[142]Replacing the MMAR, the purpose of the regulations was to addressed the abovementioned issues of health and safety left blank in the previous system.^[143] Aside from legalizing medical marijuana to all, the MMPR eliminated personal production licenses and allowing for-profit productions facilities.^[144] This new regime is responsible for the current explosion of the marijuana industry in Canada, which in 2014 annual revenues from the industry estimated to reach $1-3 billion by 2024.^[145] The MMPR was short-lived due to several inconsistencies with previous policies in the MMAR and individual right under the Charter. The biggest contention was the MMPR did not allow for personal growth of medical cannabis and there were restrictions in only obtaining dry cannabis with no other forms envisioned.^[146]

3. ACMPR: A Joint Approach Between MMAR & MMPR

The expansion of medical marijuana experienced a significant rise after the promulgation of the MMRP, and this began opening legitimate discussions by parliament on the issue of recreational legalization, particularly after the transition from the MMAR to the MMPR. Some even suggests recreational dialogue is now possible by the Conservative government’s inadvertent expansion of the industry in 2013.^[147] However, criticism of the MMRP’s deficiencies positioned the government in another stalemate, and pressures from the High Courts together with popular demands, posited a need for a policy improvement that would incorporate the missing pieces. With the MMAR and MMPR working concurrently,^[148] the Court in Allard et al. v. Regina, concluded both regulations regarding access, production, and possession of medical marijuana as diverging under the standards proposed in section 7 of the Charter.^[149] The Federal Court of Canada opined the MMRP compelling access to get medical marijuana only from licensed producers, whilst denying individuals the ability to grow on their own, infringes individual liberty and security rights protected by the Charter.^[150] Most concerning to the court was that “under the current legislation . . . medical marijuana was not appropriately affordable and accessible to Canadians.^[151] Consequently, the Court’s decision pressured government amendments to the MMPR and MMAR, and in response the government announced the enactment of the Access to Cannabis for Medical Purposes Regulations (ACMPR) in 2016.^[152] Divided into for parts, the ACMPR permits personal growth of medical marijuana or to designate a grower, while having the option of purchasing cannabis from licensed producers.^[153] Essentially, the ACMPR by replacing the MMAR and MMPR, consolidates the previous regulations into all four parts. The framework envisioned in the ACMRP, may serve as a guide for the future the of recreation marijuana regulation Canada, and while the proposal of adult use was long-before discussed, the ACMRP and the Allard demonstrates the noteworthy push towards recreational legalization.^[154]

4. The Times They Are a-Changin: Canada May Go Green

The Canadian election in 2015 demonstrated a monumental transformation in Government focus on marijuana legalization for adult use.^[155] Liberal Party Leader and elected Prime Minster, Justin Trudeau vowed before and after the election for a parliament push towards recreational legalization.^[156] With more than half the population supporting^[157] legalization of marijuana in some form, coupled with an immense increase in personal prescription to buy marijuana,^[158] Prime Minster Trudeau and a panel of appointed officials, are planning to legitimize the marijuana market and remove from the criminal code the  possession and consumption cannabis.^[159] The plan, formalized by the creation of the Task Force on Marijuana Legalization and Regulation, is led by Anne McLellan, former deputy prime minister, to ensure a system that would legalize, regulate, and restrict marijuana access to minors.^[160] After careful research and investigation of legal markets countries and states in the U.S., the Task Force announced at the end of 2016 a 112 page report outlining how Canada’s legal cannabis market, laws, and regulations will be.^[161] In the report, the task force makes clear that cannabis will received further control than government regulation on tobacco and alcohol, in order to ensure it cannot be accessed by minors or by crime organizations.^[162] Moreover, the task force addresses recommendations for minimum age to use, it provides public safety guidance—especially on impaired driving—and tighter enforcement in avoiding an overflow of the legal market onto the black market. While this has set for a somewhat relaxation of marijuana policy, the government plans on continuing criminalization on those who access the market without proper authorization.^[163] Prime Minister Trudeau has urged law enforcement to continue seeking those who are getting ahead of legalization.^[164] Trudeau’s promise will meet its fate in the spring of 2017, but outright legalization may potentially take longer.^[165]  Time will only tell what the outcome of Canada’s legal market will be, but given government history on legalization and regulation of medical marijuana, Canada may have reach the point of no return.

4.            Pending High Issues and Blunt Solutions

Currently, cannabis prohibition experiences an undoubted paradigm shift in the move towards legalization, regardless whether it be for medical or recreational use. By the year, the reception of the medical or recreational use of cannabis and/or its decriminalization in the United States and Canada, has seen a growth of more than half in the population.[166] Additionally, Arcview Market Research, including Canada for the first time in the report, noted the North American “marijuana market posted sales totaling at $6.7 billion—a 30% increase from 2015—and projected the market to increase to $20.2 billion by the year 2021 at a 25% compound annual growth.[167] The numbers alone have been some cause for change.[168] Further, the means of these nations towards cannabis reform, though differently managed, creates the prospect of elevating the industry from a national level towards a global industry. However, though a robustly legalized global economy of cannabis is unlikely to happen anytime soon, it is imperative that the two nations brace themselves for the inevitable, by beginning cross boarder reform to uniformly address potential impacts of the future.[169]

1. Internal Constrains Causing Cross-Border Effects

There are merits in the manner to which the United States and Canada have developed towards a lawful cannabis industry, by responding to societal concerns regarding health and crime. Nevertheless, Canada’s move towards full legalization will conceivably obfuscate its relationship with the United States, especially when the  new government- poses deviating views than Obama administration towards cannabis reform.[170] For many, Donald Trump’s campaign and election was unorthodoxly unexpected, and advocates of cannabis reform raises concerns about the trajectory of the cannabis in the United States.[171] The appointment of Senator Jeff Sessions and several other cabinet members leaves the accomplishments of the outgoing government in a state of possible regress.[172] Though, unlikely it may be for Sen. Session and the Trump administration to dismantle existing state laws on both medical and recreational use, as the aforementioned DOJ memorandums illustrate, there is wide latitude for the government to commence more rigid enforcement and regulatory policies.[173] Any prospect of cannabis reform in either acknowledging individual rights, as charted in Canada, and the longstanding federalism conflict, seem grim with the republican majority government. Though state literature acknowledges, but  does not granting right to medical access to cannabis exists, this task is yet to be undertaken by the federal government, perhaps will not be a focus of the incoming government.[174]

But what does this mean for the American-Canadian relationship? Well, for starters with such a vehement view of cannabis reform, as noted by a majority of the Trump administration cabinet and Republicans, may promote draconian regulations regarding boarder portal and immigration. Additionally, while some countries have commenced some type of internal drug policy development, major international treaties—initiated by the American effort against the war on drugs—may pressure a hindrance on Canadian prospects of full legalization in the future.[175] Alternatively, Canada may receive immense support from nations, such as Great Britain, Germany, and Israel, to ameliorate global drug policy, which may put the United States to align with countries’ that have taken extreme measures to combat the war on drugs.[176] The two countries are the key players of the Western hemisphere, and both are responsible for creating decisive solutions to current global issues, thus, it is not conducive to continue this cat-fight against legalization. Such an unsettling approach may ruin the regulation of legitimate markets, by perhaps providing further aliment to illicit channels.

2. Border Control & Immigration

The extensive boarder between the United States and Canada, includes states that have legalize cannabis either for adult or medical use, but others have not move for legalization at all. Cross-border inconsistencies on the legality of cannabis, present immediate problems to Canada’s plan to legalize, because the Trump administration commented the government firmly intends to keep cannabis illegal at the federal level.[177] Leaving the state to vet for themselves in dealing with border patrol issues, and may force states that have legalized the drug in some way to consider heavier restrictions.[178] Presently, the United States’ border policies results in travel bans to migrants admitting they have used cannabis; an issue Canada continues to plea the American government to remedy.[179] Because border patrol is under the exclusive jurisdiction of the federal government, cannabis at the border is illegal on the side of the free nation.[180]

Additionally, this presents a concern in acquiring American legal representation for Canadians and Americans that have been criminalized for possession, because CSA illegality of cannabis can open an opportunity of  ethical infraction for attorneys  under  the Model Rules of Professional Responsibility.[181] Such limitations of access in Canada are not at all prevalent, instead Canada witnesses a surge of individuals in need of legal assistance by admitting to the use to American border portal agents.[182] This may make for impossible immigration battles between the two nations, and requires keen dialogue to solve the issue. Yet, there is great uncertainty as to how the Trump administration will decide to deal with this, but for now it calls for such individuals to keep an open mind towards cooperative management between the two nations. Moreover, Canadian prospects of legalization commenced a new wave of American citizens making their way to the greater north, which potentially calls for “building a wall in order to keep Americans in” the U.S.[183] Many of these Americans seeking refuge and work permits for various occupations in Canada, are doing so because the booming industry has amplified job creation and will continue to do so at the rate Canada is heading.[184]

3. Treaties

American’s uncertain future on cannabis reform may pose significant barriers to Canadian efforts on full legalization. Because both countries are signers to three major UN treaties regarding global drug policy, there may in fact be pressures from the Trump administration to sanction or hold Canada liable for treaty violations.[185] This would not be the first time the United States attempted this.[186] During the Bush administration, then known “drug czar,” John Walters, denounced the Canadian liberal party’s efforts to decriminalize cannabis and liberalization of drug policies.[187] Believing that the “poison” would flow down from the Canadian border, Walters threatened the Canadian government to impose stricter border patrol and moving to hold Canada liable for treaty violations.[188] This pressure ended up being effective, causing the Canadian government to back off from cannabis reform for nearly a decade.[189] A similar situation may present itself in the near future, given that the two nations are in a similar political states as they were during Bush and Chrétien governments.[190] Either country may face serious backlash depending on how the global community reacts the Canada’s drug policy reform. Thus, for Canada to avoid this, the government must denounce the above treaties and then must attempt to reapply to the treaties with expressed reservations.[191] Though, this approach will take time, this may be a remedial manner to avoid damaging relations with the United States entirely.

5.              Conclusion

Though the popularity of cannabis is nothing recent, the progression towards a legitimate market, demonstrate a colossal transformation in the perception on the war on drugs. The potential legalization of cannabis in Canada, puts the country ahead of other developed nations in tackling drug development. As evidenced, drug prohibition has only led to immense political, social, and economic issues, which require a frank discussion between adult leaders. Of the many things the United States can learn from Canada, its compassion for individual security rights under federal law. Drug reform should not be about the criminalization and alienation of people, as the history of cannabis has indicated. Instead, comprehensive reform comes through sincere approaches solving pervasive issues regarding citizen quotidian matters. When there is no government acknowledgment of basic rights that supreme law affords, then there will be a heightened focus on government prerogatives to regulate and enforce, rather than reconsiderations of how governance interferes with basic citizen livelihood. The purpose of this note is to demonstrate how swiftly it is for federal inaction and reaction to creates national filibusters that do not allow for fruitful measures to fix problems affecting the overall functionality of the government. This note’s objective is to create spaces for discussion on matters that we have consistently ignored. While this note does not discuss the racial and discriminatory consequences of existing drug policies, it does insist the reader to be implore such issues tainting the innocent lives of many.

[1] Presently, marijuana and cannabis are terms understood as interchangeable; however, this case will use the word cannabis exclusively as an effort to depart away from the use of term marijuana, which contains suggestive negative history. See generally Alfonso Serrano, Weed All About It: The Origins of the Word ‘Marijuana’, Aljazeera America, (Dec. 14, 2013), http://america.aljazeera.com/articles/2013/12/14/weed-all-about-ittheoriginsofthewordamarijuanaaintheus.html.

^[2] Kara Godbehere Goodwin, Is the End of the War in Sight?: An Analysis of Cana’s Decriminalization of Marijuana and the Implications for the United States “War on Drugs,” 22 Buff. Pub. Int. L.J. 199, 201 (2003).

^[3] Contributor article, Canada Takes Next Step Towards National Marijuana Legalization, Entrepreneur, (Dec 29, 2016), https://www.entrepreneur.com/article/287046.

^[4] Id.

^[5] Associated Press in Toronto, Canada’s New Liberal Government Repeats Promise to Legalize Marijuana, Guardian, (Dec 4 2015), https://www.theguardian.com/world/2015/dec/04/canada-new-liberal-government-legalize-marijuana

^[6] Carolynn Conron, Canada’s Medical Marijuana Regulations: Up in Smoke, 6 Albany Gov’t. L. Rev, 259, 267 (2013).; Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c. 11 (U.K.)

^[7] Goodwin, supra note 1 at 214; see also Conron, supra note 5 at 267.

^[8] Goodwin, supra note 1 at 215.

^[9] Will Yakowicz, Forget Colorado Weed, Marijuana Companies are Going Global, Inc. (May 27, 2016) available at http://www.inc.com/will-yakowicz/forget-indoor-weed-welcome-to-the-global-marijuana-market.html

^[10] See generally Martin D. Carcieri, Obama, the Fourteenth Amendment, and the Drug War, 44 Akron L. Rev. 303, 325 (2011) (Recounting early marijuana prohibition in U.S. as largely motivated by racism).

^[11] See generally Art Swift, Support for Legal Marijuana Use Up to 60% in US, Gallup.com, (Oct 19, 2016) (demonstrating that about 60% of there the populations favor legalization for either medical use or recreational use, which is the highest data has shown in the 47-year tread), http://www.gallup.com/poll/196550/support-legal-marijuana.aspx

^[12] See Sara G. Miller 3 More States Legalize Recreation Use of Marijuana: How the Map Looks Now, Live Science,(Nov 9, 2016), available at http://www.livescience.com/56807-recreational-marijuana-california-massachusetts-nevada.html   Recreational use of marijuana is now allowed, along with the District of Columbia, in Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, and Washington. While medical use of marijuana is now allowed in Arizona, Arkansas, Connecticut, Delaware, Florida, Hawaii, Illinois, Louisiana, Maryland, Michigan, Minnesota, Montana, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Pennsylvania, Rhode Island, and Vermont.

^[13] See Christopher Ingraham, Trump’s pick for attorney general: ‘Good people don’t smoke marijuana’, Wash. Post, (Nov 18 2016), https://www.washingtonpost.com/news/wonk/wp/2016/11/18/trumps-pick-for-attorney-general-good-people-dont-smoke-marijuana/?utm_term=.b77ea1288eac(“At a Senate drug hearing in April, Sessions said that “we need grown-ups in charge in Washington to say marijuana is not the kind of thing that ought to be legalized, it ought not to be minimized, that it’s in fact a very real danger.” He voiced concern over statistics showing more drivers were testing positive for THC, the active component in marijuana, in certain states”).

^[14] Richard J. Bonnie & Charles H. Whitebread, The Marijuana Conviction: A History Of Marijuana Prohibition In The United States 51–53 (1974); See also Patrick Anderson, High in America 47 (1981).

^[15] Steven B. Duke & Albert C. Gross, America’s Longest Was: Rethinking Our Tragic Crusade Against Drugs, xv (1993)

^[16] Steven w. bender, Run for the border: Vice and Virtue In US-Mexico Border Crossings (2012)

^[17] See generally Doris Marie Provine, Unequal Under Law: Race In The War On Drugs 70, 71 (2007)

^[18] Michael Vitiello, Proposition 215: De Facto Legalization of Pot and the Shortcomings of Direct Democracy, 31 U. Mich. J. L. Reform 707, 749–51 (1998) (“In 1937, Harry J. Anslinger was serving as the United States Commissioner of Narcotics. He had served in the Treasury Department where he aggressively enforced the Harrison Act and headed the Federal Bureau of Narcotics in the Treasury Department. Anslinger’s appeal to racism and hysteria was unabashed. He and other proponents of the Marijuana Tax Act argued that marijuana caused criminal and violent behavior . . . Anslinger stated that, ‘[m]arihuana [was] an addictive drug which produce[d] in its users’ insanity, criminality, and death’”).

^[19] See generally Provine, supra note 17 at 70 -71; Carcieri, supra note at 10 at 325.

^[20].The National Commission On Marihuana And Drug Abuse, Marihuana: A Signal Of Misunderstanding 16 (1972) http://babel.hathitrust.org/cgi/pt?id= mdp.39015015647558;view=1up;seq=5.

^[21] Harrison Anti-Narcotic Act, ch. 1, 38 Stat. 785 (1914) (requiring registration and special tax to produce or dispense opium or coca leaves or their derivatives but gives no mention about similar procedures for marijuana); see also Lisa N. Sacco & Kristin Finklea, Cong. Research Serv., R43164, State Marijuana Legalization Initiatives: Implications For Federal Law Enforcement 3 (2013), available at https://www.fas.org/sgp/crs/misc/R43164.pdf (“Until 1937, the growth and use of marijuana was legal under federal law. The federal government unofficially banned marijuana under the Marihuana Tax Act of 1937”).

^[22] Erwin Chemerinsky et al., Cooperative Federalism and Marijuana Regulation, 62 Ucla L. Rev. 74, 81-82 (2015).

^[23] Nick Wing, Marijuana Prohibition was Racist from The Start. Not Much Has Changed, Huffington Post, (Jan 14, 2014) (discussing Reefer Madness and Government discriminatory tactics in marijuana prohibition), available at http://www.huffingtonpost.com/2014/01/14/marijuana-prohibition-racist_n_4590190.html.

^[24]. See Steven W. Bender, Joint Reform?: The Interplay of State, Federal, and Hemispheric Regulation of Recreational Marijuana and the Failed War on Drugs, 6 Alb. Gov’t L. Rev. 359, 363 (2013).  http://digitalcommons.law.seattleu.edu/faculty/116.

^[25] Isaac Campos, Home Grown: Marijuana and the Origins Of Mexico’s War on Drugs 19 (2012) (describing Anslinger’s article ‘Marihuana: Assassin of Youth” attributing more than two dozen cases relating to murder or sex attacks because of marijuana, and how in later years Anslinger retreated from claims and emphasized the supposed role of marijuana as a gateway drug).

^[26] Bender, supra note 16, at 97.

^[27] See Anderson supra note 14 at 8; see also Lester Grinspoon & James B. Bakalar, Marihuana: the Forbidden Medicine (1997).

^[28] See Chemerinsky, supra note 22 at 82.

^[29] James p. Gray, Why our Drug Laws Have Failed And What we Can Do About It: A Judicial Indictment Of the War on Drugs 25 (2d ed. 2012); see also Bender, supra note 16 at 202.

^[30] 21 U.S.C. § 812 (2012); see also Todd Garvey, Cong. Research Serv., R42398 Medical Marijuana: The Supremacy Clause, Federalism, and the Interplay Between State and Federal 2 (2012).

^[31] David Schwartz, High Federalism: Marijuana Legalization and the Limits of Federal Power to Regulate States, 35 Cardozo L. Rev. 567, 577 (2013) (citing Pub. L. No. 91-513, 84 Stat. 1236 (1970) and Gonzales v. Raich, 545 U.S. 1, 10 (2005)).

^[32] Garvey, supra note 30 at 2.

^[33] Id.

^[34] Id.

^[35] Chemerinsky, supra note 22 at 84 (discussing after passing CSA, states began to implementing law prohibited marijuana prompted state law as the basis for marijuana arrests).

^[36] Id. at 84-85; see also American Civil Liberties Union, The War on Marijuana in black and White: Billions of Dollars Wasted on Racially Biased arrests 8 (2013), available at https://www.aclu.org/criminal-law- reform/war-marijuana-black-and-white-report (reporting a “Black person is 3.73 times more likely to be arrested for marijuana possession than a white person, even though Blacks and whites use marijuana at similar rates.” These racial disparities still exist in today and in most regions of the United States).

^[37] Schwartz, supra note 32 at 577.

^[38] Goodwin, supra note 1at 204.

^[39] Id.

^[40] See generally The Complete History of Cannabis in Canada, Hack Canada (Jan. 26, 1999), available at http://www.hackcanada.com/canadian/freedom/hempinfodoc2.html

^[41] Id.

^[42] The Opium and Narcotic Drug Act, S.C. 1923, c. 22 (Can.).

^[43] Id.

^[44] Id.

^[45] Id.

^[46] Id.

^[47] Id.; Hack, supra note 42.

^[48] Emily F. Murphy, The Black Candle 332-33 (1922).

^[49] Murphy, supra note 49 at 333.

^[50] Hack, supra note 42.

^[51] Id.

^[52] R. Solomon et al., Legal Considerations in Canadian Cannabis Policy, 4 Can. Pub. Pol’y 419, 421 (1983).

^[53] Hack, supra note 42.

^[54] See generally Canadian Government Commission of Inquiry into the Non-Medical Use of Drugs. “Conclusions and Recommendations of Gerald Le Dain, Heinz Lehmann, J. Peter Stein” (Recommending outright legalization or fines for marijuana use)

^[55]See generally Canadian Government Commission of Inquiry into the Non-Medical Use of Drugs. “Conclusions and Recommendations of Marie-Andree Bertrand (“The federal government should remove cannabis from the Narcotic Control Act, as the Commission recommended in its Interim Report. The federal government should immediately initiate discussions with the provincial governments to have the sale and use of cannabis placed under controls similar to those governing the sale and use of alcohol, including legal prohibition of unauthorized distribution and analogous age restrictions. Furthermore, this government-distributed cannabis should be marketed at a quality and price that would make the ‘black market’ sale of the drug an impractical enterprise”).

^[56] Goodwin, supra note 1 at 207.

^[57] Id.

^[58] Id.

^[59] Controlled Drugs and Substances Act, S.C. 1996, c. 19 (Can.) (creating a focus in drug legislation back into the criminal system and changing drug scheduling used by the Canadian government).

^[60] Goodwin, supra note 1 at 207.

^[61] See generally Drug Situation in Canada, Royal Canadian Mounted Police CRIM. Intel.  Program. (April 2002), available at http://www.rcmp- grc.gc.ca/crimint/drugs_200 1e.htm.

^[62] See Isabel Vincent, Canada: Enforcers Challenge Cannabis Liberation Movement, Globe & Mail, (Apr 6, 1998) available at http://www.mapinc.org/drugnews/v98.n255.a08.html/all.

^[63] Id. (Proponents of decriminalization say that Canadian legislators are loath to reform cannabis policy because of pressure from the United States . . . “We can’t seem to get beyond the repressive American policy on drugs,” . . . strong influence of the U.S.  government’s so-called war on drugs, which came to a head under the Republican administrations of Ronald Reagan and George Bush in the 1970s and 1980s . . . So we maintain this cowardly insistence of being little foot soldiers to the American war on drugs.”)

^[64] Jeet Heer, Canadian Rhapsody, The Great White North’s Unlikely Progressivism, Boston Globe, (July 13, 2003.)

^[65] Goodwin, supra note 1 214-5.

^[66] Chemerinsky, supra note 22 at 85.

^[67] Garvey, supra note 30 at 4.

^[68] Melia Robinson, the legal weed market is growing as fast as broadband internet in the 2000s, Business Insider, (Jan 3, 2017) http://www.businessinsider.com/arcview-north-america-marijuana-industry-revenue-2016-2017-1.

^[69] Schwartz, supra note 32 at 575.

^[70] Id.

^[71] 21 U.S.C. § 812(c) (2012).

^[72] Seerat Chabba, Marijuana Legalization 2017: Which States Will Consider Cannabis This Year?, Int’l Business Times, (Dec 31, 2016) http://www.ibtimes.com/marijuana-legalization-2017-which-states-will-consider-cannabis-year-2467970 (discussing state legalization in 2017, with Delaware, Rhode Island, Vermont and New Mexico moving to recreational use of marijuana, and other states such as New Jersey, Texas, Virginia, Kentucky, and Missouri).

^[73] See Chemerinsky, supra note 22 at 77.

^[74] Robinson, supra note 69; See also Debra Borchardt, Marijuana Sales Total $6.7 Billion in 2016, Forbes, (Jan 1, 2017) (“To put this in perspective, this industry growth is larger and faster than even the dot-com era. During that time, GDP grew at a blistering pace of 22%. Thirty percent is an astounding number especially when you consider that the industry is in early stages. Arcview’s new editor-in-chief Tom Adams said, “The only consumer industry categories I’ve seen reach $5 billion in annual spending and then post anything like 25% compound annual growth in the next five years are cable television (19%) in the 1990’s and the broadband internet (29%) in the 2000’s’”) http://www.forbes.com/sites/debraborchardt/2017/01/03/marijuana-sales-totaled-6-7-billion-in-2016/#1c0352e18716.

^[75] 21 U.S.C. § 812(c) (2012).

^[76] See David Johnston & Neil A. Lewis, Obama Administration to Stop Raids on Medical Marijuana Dispensers, N.y. Times, (Mar 18, 2009), at A20, available at http://www.nytimes.com/2009/ 03/19/us/19holder.html; see also Stu Woo & Justin Scheck, California Marijuana Dispensaries Cheer U.S. Shift on Raids, Wall St. J., (Mar 9, 2009) http://online.wsj.com/news/articles/SB123656023550966719.

^[77] See Ryan J. Reilly & Ryan Grim, Eric Holder Says DOJ Will Let Washington, Colorado Marijuana Laws Go into Effect, Huffington Post, (Aug 29, 2013) http://www.huffingtonpost. com/2013/08/29/eric-holder-marijuana-washington-colorado-doj-n 3837034.html.

^[78] See generally Memorandum from David W. Ogden, U.S. Deputy Att’y Gen., to U.S. Att’ys (2009) (“does not “legalize” marijuana or provide a legal defense to a violation of federal law, nor is it intended to create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil, or criminal matter. Nor does clear and unambiguous compliance with state law or the absence of one or all of the above factors create a legal defense to a violation of the Controlled Substances Act”) https://www.justice.gov/opa/blog/memorandum-selected-united-state-attorneys-investigations-and-prosecutions-states.

^[79] Id. at 3

^[80] See Chemerinsky, supra note 22 at 87.

^[81] See generally Memorandum from James M. Cole, U.S. Deputy Att’y Gen., to U.S. Att’ys (June 29, 2011), https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/dag-guidance-2011-for-medical-marijuana-use.pdf.

^[82] Id.

^[83] See Sarah Kliff, Justice Dept. Won’t Stop States from Legalizing Pot. Here ‘s What That Means, Wash. Post (Aug 29, 2013) http://www.washingtonpost.com/blogs/wonkblog /wp/20 13/08/29/justice-dept-wont-stop-states-from-legalizing-pot-heres-what-that-means/.

^[84] See Medical Marijuana: Federal Crackdown, Similar to That in California, Begins in Colorado, HUFFPOST DENVER (Jan. 12, 2012, 4:28 PM), http://www.huffingtonpost.com/2012/01/12/ medical-marijuana-federal_n_1202725.html; See also Bob Ponting, Feds Raid Medical Marijuana Facilities, FOX 5 SAN DIEGO (Apr. 23, 2013, 9:28 PM) http://fox5sandiego.com/2013/04/23/feds-raid-medical-marijuana-facilities/ #axzz2YkLqhqUS; Colleen Slevin & Kristen Wyatt, Denver Pot Businesses Raided Ahead of Legal Sales, YAHOO (Nov. 21, 2013, 6:21 PM), http://news.yahoo.com/denver-pot-businesses-raided-ahead-legal-sales-232109833.html (discussing November 2013 raids of Colorado marijuana dispensaries).

^[85] See Memorandum from James M. Cole, U.S. Deputy Att’y Gen., to all U.S. Att’ys (Aug. 29, 2013) https://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf.

^[86] Id. at 1-2 (Preventing distribution of marijuana to minors; Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels; Preventing the diversion of marijuana from states where it is legal under state law in some form to other states; Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity; preventing violence and the use of firearms in the cultivation and distribution of marijuana; Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use; Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana product on public lands; and Preventing marijuana possession or use on federal property).

^[87] See County of San Diego v. San Diego Norml, 165 Cal. App. 4th 798 (2008) (holding state law conflicts with the CSA only when it is impossible to comply with both state and federal law).

^[88] See Dea Pub. Aff., DEA Announces Actions Related to Marijuana and Industrial Hemp, Dea.Gov (Aug 11, 2016)    https://www.dea.gov/divisions/hq/2016/hq081116.shtml (DEA has denied two petitions to reschedule marijuana under the Controlled Substances Act (CSA). In response to the petitions, DEA requested a scientific and medical evaluation and scheduling recommendation from the Department of Health and Human Services (HHS), which was conducted by the U.S. Food and Drug Administration (FDA) in consultation with the National Institute on Drug Abuse (NIDA). Based on the legal standards in the CSA, marijuana remains a schedule I controlled substance because it does not meet the criteria for currently accepted medical use in treatment in the United States, there is a lack of accepted safety for its use under medical supervision, and it has a high potential for abuse).

^[89] Id.

^[90] Gonzales v. Raich, 545 U.S. 1, 22 (2005) (Relying on the1942 decision of Wickard v. Filburn, the Court held prior precedent “firmly establish[es] Congress’[s] power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce”).

^[91]  Garvey, supra note 30 at 6.

^[92] See Chemerinsky, supra note 22 at 102.

^[93] Id. at 102; see also Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000).

^[94] Chemerinsky, supra note 22 at 102.

^[95] Garvey, supra note 30 at 9.

^[96] Id.

^[97] See New York v. United States, 505 U.S. 144 (1992) (holding congress cannot commandeer the legislative process of the states no matter how important federal interest is).

^[98] See Printz v. United States, 521 U.S. 898, 933, 138 L. Ed. 2d 914, 117 S. Ct. 2365 (1997) (holding unconstitutional “commandeering” of state officers is similar to a commandeering of legislature, which is outside of congressional authority and violates the Tenth Amendment).

^[99] See 21 U.S.C. § 903 (2012) (“No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates . . . [and] subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together”).

^[100] Chemerinsky, supra note 22 at 102-13.

^[101] See Jezreel Smith, Donald Trump and Republicans On the Legalization of Marijuana; Is There A Possibility to Stop What Obama Started (“Democrats’ votes legalizing marijuana over having it illegal is 66% vs. 33% whereas for republicans almost 55% oppose marijuana legalization while 41% favoring it); see also Patrick McGreevy, Weed’s Legal in California, But Activist Fear a Battle Ahead with Jeff Sessions, Trump’s Pick For Attorney General, (“Sessions said at a legislative hearing in April that “good people don’t smoke marijuana,” a drug that he said is “dangerous.” He went on to say, “We need grown-ups in charge in Washington to say marijuana is not the kind of thing that ought to be legalized”).

^[102] Jacob Sullum, Eric Holder Promises to Reassure Banks About Taking Marijuana Money ‘Very Soon,’ FORBES (Jan. 24, 2014, 1:02 PM), http://www.forbes.com/sites/jacobsullum/2014/01/24/eric- holder-promises-to-reassure-banks-about-taking-marijuana-money-very-soon (“Huge amounts of cash, substantial amounts of cash just kind of lying around with no place for it to be appropriately deposited, is something that would worry me”).

^[103] Memorandum from James M. Cole, U.S. Deputy Att’y Gen., to all U.S. Att’ys, (Feb 14, 2014) available at http://www.justice.gov/usao/co/news/2014/feb/DAG%20Memo%20- %20Guidance%20Regarding%20Marijuana%20Related%20Financial%20Crimes%202%2014%2014.pdf (“Financial transactions involving proceeds generated by marijuana-related conduct can form the basis for prosecution under the money laundering statutes (18 U.S.C. §§ 1956 and 1957), the unlicensed money transmitter statute (18 U.S.C. § 1960), and the BSA. Sections 1956 and 1957 of Title 18 make it a criminal offense to engage in certain financial and monetary transactions with the proceeds of a “specified unlawful activity,” including proceeds from marijuana-related violations of the CSA. Transactions by or through a money transmitting business involving funds “derived from” marijuana-related conduct can also serve as a predicate for prosecution under 18 U.S.C. § 1960. Additionally, financial institutions that conduct transactions with money generated by marijuana-related conduct could face criminal liability under the BSA for, among other things, failing to identify or report financial transactions that involved the proceeds of marijuana-related violations of the CSA. See, e.g., 31 U.S.C. § 5318(g)”); see also Serge F. Kovaleski, Banks Say No to Marijuana Money, Legal or Not, N.Y. TIMES, Jan. 11, 2014, at A1, available at http://www.nytimes.com/2014/01/12/us/banks-say-no-to- marijuana-money-legal-or-not.html

^[104] See generally Govs. Hickenlooper, Inslee Call for Flexibility in Federal Banking Regulations for Marijuana Businesses, Colorado: The Official State Web Portal (Oct. 2, 2013),http://www. colorado.gov/cs/Satellite?c=Page&childpagename=GovHickenlooper%2FCBONLayout&cid=12 51646488031&pagename=CBONWrapper; see also Chemerinsky, supra note 22 at 92.

^[105] Chemerinsky, supra note 22 at 93.

^[106] Model Rules of Prof’l Conduct R. 1.2 (d) (2015) (“A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of an proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law”).

^[107] See generally State Bar of Arizona Ethics Opinion 11-01, (February 2011),  http://www.azbar.org/Ethics/EthicsOpinions/ViewEthicsOpinion?id=710; Colo. Rules of Prof’l Conduct, Rule 1.2 Of Representation and Allocation of Authority Between Client and Lawyer, Amended and Adopted by the Court, En Banc (March 24, 2014), https://www.courts.state.co.us/userfiles/file/court_Probation/Supreme_Court/Rule_Changes/2014/2014%. 2805%29%20redlined.pdf; Wash. Wash. Rules of Prof’l Conduct, Rule 1.2 Of Representation and Allocation of Authority Between Client and Lawyer.

^[108]See generally Opinion #199. Advising Clients Concerning Maine’s Medical Marijuana Act (July 7, 2010) http://www.mebaroverseers.org/attorney_services/opinion.html?id=110134; see also Informal Opinion 2013-02: Providing Legal Services to Clients Seeking Licenses Under the Connecticut Medical Marijuana Law (January 16, 2013) http://c.ymcdn.com/sites/ctbar.siteym.com/resource/resmgr/Ethics_Opinions/Informal_Opinion_2013- 02.pdf.

[109] Id.

[110] Jared Lindzon, Will Canada Become America’s Cannabis Capital, Guardian, (May 14, 2016) (“They’ll be first to market,” says Williams. “There’s going to be a lot of development and innovation in Canada that’s going to spur economic growth and attract investment. First to market is going to get a lot of attention, so it’s a lost opportunity for the United States if and when that happens”) https://www.theguardian.com/world/2016/may/14/canada-america-cannabis-capital.

^[111] United States-Canada Border Drug Threat Assessment – Response to the Situation, NAT’L DRUG INTELLIGENCE CENTER (Dec. 2001), http://www.usdoj.gov/ndic/pubs07/794/794p.pdf at 31.

^[112] Id.

^[113] Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c. 11 (U.K.).

^[114] The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, Part I § 7; see also The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 Part IV § 52 (The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect).

^[115] Id.

^[116] Conron, supra note 5 267.

^[117] Id.

^[118] See, generally Marihuana for Medical Purpose Regulations, Regulatory Impact Analysis Statement, Can. Gazette,(Dec 15, 2012) available at http://gazette.gc.ca/rp-pr/p1/2012/2012-12-15/html/reg4-eng.html.[hereinafter Analysis Statement].

^[119] Conron, supra note 5 at 276.

^[120] Id.; see also R. v. Parker, [2000] 49 O.R. 3d 481, 5 (Can. Ont. C.A.).

^[121] Parker, [2000] 39 O.R. 3d at ¶ 13.

^[122] The Canadian Bar Association, Bill C-2, Respect for Communities Act, Nat’l Crim. Justice Section, 1, 3 (2014) available at  https://www.cba.org/CMSPages/GetFile.aspx?guid=97319f43-237d-4ff4-9fe6-a0a7341ec0e0.

^[123]  Id,; Parker, [2000] 39 O.R. 3d at ¶ 109, 139, 192 (“[T]he common-law treatment of informed consent, the sanctity of life and commonly held societal beliefs about medical treatment suggest that a broad criminal prohibition that prevents access to necessary medicine is not consistent with fundamental justice”).

^[124] Parker, [2000] 39 O.R. 3d at ¶ 93 (“‘state interference with bodily integrity and serious state-imposed psychological stress, at least in the criminal law context, constitute a breach of security of the person’”).

^[125] Id. at ¶ 153.

^[126]Parker, [2000] 39 O.R. 3d at ¶ 117 (The principles of fundamental justice are breached where the deprivation of the right in question does little or nothing to enhance the state’s interest[;] (ii) A blanket prohibition will be considered arbitrary or unfair and thus in breach of the principles of fundamental justice if it is unrelated to the state’s interest in enacting the prohibition, and if it lacks a foundation in the legal tradition and societal beliefs that are said to be represented by the prohibition[;] (iii) The absence of a clear legal standard may contribute to a violation of fundamental justice[;] (iv) If a statutory defense contains so many potential barriers to its own operation that the defense it creates will in many circumstances be practically unavailable to persons who would prima facie qualify for the defense, it will be found to violate the principles of fundamental justice[; and] (v) An administrative structure made up of unnecessary rules, which result in an additional risk to the health of the person, is manifestly unfair and does not conform to the principles of fundamental justice.); see also Canadian Bar, supra note 117 at 3-4.

^[127] Marihuana Medical Access Regulations, SORI2001-227 § 1 (Can.) [hereinafter MMAR].

^[128] MMAR, supra note 126 at §1(1) (“category 1 symptom” means a symptom that is associated with a terminal illness or its medical treatment. “category 2 symptom” means a symptom, other than a category 1 symptom, that is set out in column 2 of the schedule and that is associated with a medical condition set out in column 1 or its medical treatment. “category 3 symptom” means a symptom, other than a category 1 or 2 symptom, that is associated with a medical condition or its medical treatment).

^[129] Id. at § 4(1) (2) (“(1) A person seeking an authorization to possess dried marihuana for a medical purpose shall submit an application to the Minister.  (2) An application under subsection (1) shall contain (a) a declaration of the applicant; (b) a medical declaration that is made (i) in the case of an application based on a category 1 symptom, by the medical practitioner of the applicant, or (ii) in the case of an application based on a category 2 or 3 symptom, by a specialist”).

^[130] Analysis Statement, supra note 117.

^[131] Conron, supra note 5 at 282.

^[132] Id.; R. v. Krieger, [2000] 307 A.R. 349, ¶ 36 (Can.) (Concluding lack of legal supply was unconstitutional because of the government’s removal of legal access that forced individuals to seek black market purchases of marijuana).

^[133] See Hitzig v. Canada, [2003] O.J. No. 3873, ¶ 145.

^[134] Hitzig, [2003] O.J. No. 3873 at ¶ 15- 22.

^[135] Id. at ¶ 104-5 (“To take the medication they require they must apply for an ATP, comply with the detailed requirements of that process, and then attempt to acquire their medication in the very limited ways contemplated by the MMAR. These constraints are imposed by the state as part of the justice system’s control of access to marihuana. As such, they are state actions sufficient to constitute a deprivation of the security of the person of those who must take marihuana for medical purposes”).

^[136] Id. at ¶ 118.

^[137] Id. at ¶ 139.

^[138] R. v. Mernagh, [2011] O.J. No. 1669, ¶ 21 (Can. Ont. Super. Ct.).

^[139] Id. at ¶ 29.

^[140] Id. at ¶ 31.

^[141] Id.

^[142] See generally Brian Hutchinson, Medical Marijuana Production in Canada Set for Dramatic Change, Nat’l Post, (Jan 17, 2014), http://news.nationalpost.com/news/canada/medical-marijuana-production-in-canada-set-for-dramatic-change.

^[143] R. v. Mernagh, [2011] O.J. No. 1669, ¶ 31-33 (Can. Ont. Super. Ct.).

^[144] Id.

^[145] Id.

^[146] See R. v. Smith, [2015] 2 S.C.R. 602, ¶ 34; see also Allard et al. v. Regina, [2016] F.C. 236¶ 254 -7;see; Jack Locke & Sam Dabner, Legal Update: Marihuana for Medical Purpose, Fulton & Co. (Aug 13, 2013), http://www.fultonco.com/wp-content/uploads/2015/12/Case-Law-Update-Marihuana-for-Medical-Purposes-1.pdf.

^[147] See Jared Lindzon, With Legalization on the Horizon, Pot Entrepreneurs are Keen to Turn Canada into a Marijuana Leader, Globe & Mail, (Oct 20, 15) (“By transitioning from small mom-and-pop operations to the mega facilities we see today, it is likely that [the Conservative government] inadvertently created the infrastructure that would greatly benefit from legalization”), http://www.theglobeandmail.com/report-on-business/small-business/startups/with-legalization-on-the-horizon-pot-entrepreneurs-are-keen-to-turn-canada-into-a-marijuana-leader/article26890992/.

^[148] Conron, supra note 5 at 288 (“The MMPR will run concurrently with the MMAR from the time the new regulations come into force, until March 31, 2014”).

^[149] Allard et al. v. Regina, [2016] F.C. 236¶ 254-5; see also Andrea Hill, Allard decision Sets the Stage for the Future of Legal Marijuana, Globe & Mail, (Feb 25, 2016) http://www.theglobeandmail.com/opinion/allard-decision-sets-the-stage-for-the-future-of-legal-marijuana/article28902163/.

^[150] Allard et al, [2016] F.C. 236 ¶ 289.

^[151] Susan Lunn, Philpott won’t Appeal Allard Ruling on Right to Grow Medical Marijuana, Cbc News, (Mar. 24, 2016) http://www.cbc.ca/news/politics/medical-marijuana-grow-allard-philpott-no-appeal-1.3506015.

^[152] Statement from Health Canada Concerning Access to Cannabis for Medical Purposes, Health Canada, (Aug 11, 2016) available at http://news.gc.ca/web/article-en.do?nid=1110389.

^[153]  Statement, supra note 151.

^[154] Lunn, supra note 150.

^[155] Jessica Murphy, Justin Trudeau Elected New Canadian Prime Minister as Liberals Return to Power, Guardian, (Oct 20, 2015), available at https://www.theguardian.com/world/2015/oct/20/justin-trudeau-set-to-become-pm-as-liberals-sweep-board-in-canada-election.

^[156] Id.

^[157] Cbc News, Vote Compass: Majority of Canadians Support Softer Marijuana Laws, Cbc News, (Sep 29, 2015), http://www.cbc.ca/news/politics/canada-election-2015-marijuana-1.3248969.

^[158] Susana Mas, Marijuana Task Force to be Led by Former Deputy PM Anne McLellan, Cbc New, (Jun 30, 2016), available at http://www.cbc.ca/news/politics/liberals-marijuana-task-force-1.3659509; see also Jacquie Miller, Numbers of Canadians Buying Legal Medical Marijuana Triples in Just One Year, Ottawa Citizen, (Dec 12, 2016), available at http://ottawacitizen.com/news/local-news/number-of-canadians-buying-legal-medical-marijuana-triples-in-just-one-year.

^[159] Adam Goldenberg, Is Trudeau’s Plan Constitutional?, Pol’y Options, (Nov 18, 2015), available at http://policyoptions.irpp.org/2015/11/18/trudeau-pot-constitution/.

^[160] Susana Mas, Marijuana Task Force to be Led by Former Deputy PM Anne McLellan, Cbc News, (Jun 30, 2016), available at http://www.cbc.ca/news/politics/liberals-marijuana-task-force-1.3659509.

^[161] Shannon Proudfoot, What Canada Learned About Marijuana, Maclean’s, (Dec 13, 2016), available at http://www.macleans.ca/news/canada/what-canada-learned-about-marijuana/.

^[162] Id.

^[163] Jaime Watt, Justin Trudeau Risks Alienating Both Right and Left, The Star, (Dec 12, 2016) available at https://www.thestar.com/opinion/commentary/2016/12/12/justin-trudeau-risks-alienating-both-right-and-left-watt.html.

^[164] Id.

^[165] John Paul Tasker, Pot task force recommends legal cannabis sales be limited to users 18 and over, Cbc News, (Dec 13, 2016), available at http://www.cbc.ca/news/politics/marijuana-legalization-pot-task-force-1.3893876.

[166] Add poll citations here.

[167] See also Debra Borchardt, Marijuana Sales Total $6.7 Billion in 2016, Forbes, (Jan 1, 2017) (“To put this in perspective, this industry growth is larger and faster than even the dot-com era. During that time, GDP grew at a blistering pace of 22%. Thirty percent is an astounding number especially when you consider that the industry is in early stages. Arcview’s new editor-in-chief Tom Adams said, “The only consumer industry categories I’ve seen reach $5 billion in annual spending and then post anything like 25% compound annual growth in the next five years are cable television (19%) in the 1990’s and the broadband internet (29%) in the 2000’s’”), available at  http://www.forbes.com/sites/debraborchardt/2017/01/03/marijuana-sales-totaled-6-7-billion-in-2016/#1c0352e18716.

[168] Id.

[169] Yakowicz, supra note 9 (discussing how the United States and Canada are not the models for legalization as other countries have commence initiatives towards some-type of legalization, as well as commenting on how other countries have implemented regulation and enforcement efforts that far surpass the United States model).

[170] Ingraham, supra note 13; Sharon LaFraniere & Matt Apuzzo, Jeff Sessions, a Lifelong Outsider, Finds the Inside Track, Ny. Times, (Jan 8, 2016) (After one of the most liberal periods in Justice Department history, Mr. Sessions is expected to execute an about-face on the Obama administration’s policies of immigration, criminal justice and — many critics fear — civil rights), http://mobile.nytimes.com/2017/01/08/us/politics/jeff-sessions-attorney-general.html?WT.nav=top-news&action=click&amp=&amp=&amp=&amp=&amp=&amp=&clickSource=story-heading&emc=edit_nn_20170109&hp=&module=first-column-region&nl=morning-briefing&nlid=72254056&pgtype=Homepage&region=top-news&te=1&referer=.

[171] Dan Roberts, et al., Donald Trump’s win Presidential election, plunging US into Uncertain Future, Guardian, (Nov 9, 2016) https://www.theguardian.com/us-news/2016/nov/09/donald-trump-wins-us-election-news; McGreevy, supra note 102.

[172] Id.

[173] Times Editorial Board, The Voters Have Spoken on Marijuana. Trump Ought to Listen, La Times, (Dec 28, 2016), http://www.latimes.com/opinion/editorials/la-ed-marijuana-trump-20161228-story.html.

[174] Riach v. Gonzales, 856 (“For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental. Although that day has not yet dawned, considering that during the last ten years eleven states have legalized the use of medical marijuana, that day may be upon us sooner than expected. Until that day arrives, federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering”).

[175] Rachel Browne, Canada Really Wants to Legalize Weed—But First It Needs to Deal with The UN, Vice News, (Feb 10, 2016), available at  https://news.vice.com/article/canada-really-wants-to-legalize-weed-but-first-it-needs-to-deal-with-the-un.

[176] Id.

[177] Editorial Board, supra note 172.

[178] Id.

[179] Andrew Blake, Canada to urge U.S. for Changes to Border Law that Bans Marijuana Smokers from Entry, Wash. Times, (Sep 10, 2016), https://news.vice.com/article/canada-really-wants-to-legalize-weed-but-first-it-needs-to-deal-with-the-un.

[180] Laura Kane, How Legalizing Marijuana Could Change Canada-U.S. Relations, Globe & Mail, (Dec 21, 2016), https://news.vice.com/article/canada-really-wants-to-legalize-weed-but-first-it-needs-to-deal-with-the-un; see also Chris Roberts, The Green Border: How Canada’s Move to Legalize Pot Will Affect the U.S., High Times, (Dec 21, 2016) http://hightimes.com/news/the-green-border-how-canadas-move-to-legalize-pot-will-affect-the-u-s/.

[181] Model Rules, supra note 102 at 1.2(d)(“A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of an proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law”).

[182] Blake, supra note 178.

[183] Roberts, supra note 179

[184] Id.

[185] Brown, supra note 174.

[186] Tim Harper, US: Pot Plan Puts U.S. Noses Out of Joint, Toronto Star, (May 3, 2003), available at http://www.mapinc.org/drugnews/v03/n640/a07.html?255171

[187] Id.

[188] Id.

[189] Roberts, supra note 179.

[190] Id.

[191] Brown, supra note 174.