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Turning failure into success: what does the case of Western Australia tell us about Canadian cannabis policy-making? Elaine Hyshka a a Community-University Partnership for the Study of Children, Youth, and Families, University of Alberta, Edmonton, Canada First Published:November2009

To cite this Article Hyshka, Elaine(2009)'Turning failure into success: what does the case of Western Australia tell us about Canadian

cannabis policy-making?',Policy Studies,30:5,513 — 531 To link to this Article: DOI: 10.1080/01442870902899962 URL: http://dx.doi.org/10.1080/01442870902899962

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Policy Studies Vol. 30, No. 5, November 2009, 513!531

RESEARCH ARTICLE Turning failure into success: what does the case of Western Australia tell us about Canadian cannabis policy-making? Elaine Hyshka*

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Community!University Partnership for the Study of Children, Youth, and Families, University of Alberta, Edmonton, Canada (Received 14 July 2008; final version received 1 March 2009) Cannabis policy in Canada is a puzzling affair. Since the 1960s and as recently as 2006, several policy windows have opened promising evidence-based cannabis law reform only to be slammed shut before achieving meaningful change. This ‘saga of promise, hesitation, and retreat’ has motivated Canadian cannabis researchers to investigate the reasons behind this policy inertia. These single-jurisdiction analyses have resulted in interesting yet necessarily tenuous findings. Fischer’s (1999) Policy Studies article suggests the need for an analysis of Canadian cannabis policy in comparative context and offers Australia as a point of departure. This article addresses this analytic task by examining two recent case studies in cannabis policy. Specifically, borrowing Kingdon’s (1995) concept of a policy window, it contrasts Canada’s failure to decriminalise minor cannabis offences between 2001 and 2006 with Western Australia’s successful decriminalisation of cannabis possession and production for personal use between 2001 and 2004. In particular, it appears that a lack of support from law enforcement and cannabis users, conflicting evidence and risk associated with a lack of an evaluation plan all combined with a weakened electoral mandate for the government to contribute to a perception that cannabis decriminalisation was not politically feasible. Additional variables worthy of further inquiry are also discussed. Keywords: cannabis; marijuana; decriminalisation; depenalisation; Canada; Western Australia; illegal drug policy; comparative analysis.

Introduction Drug policy researchers in many countries often face disappointments in their efforts to achieve evidence-based drug law reform. These difficulties may be attributed to the fact that ‘policy windows ! opportunities for action on given policy initiatives ! open infrequently’, yet are often the main means for achieving policy change (Lenton 2004, p. 224). This is particularly true for Canadian cannabis policy, which Giffen, Endicott and Lambert (1991) have aptly characterised as a repetitious ‘saga of promise, hesitation and retreat’. From Canada’s ‘first upsurge of youthful illicit drug use in the 1960s’ to the present, a large body of evidence has developed indicating that criminal sanctions are an ineffective and costly means for addressing possession of small amounts of cannabis (Erickson 1998, p. 263). Several cannabis policy windows have opened in this period, but all have failed to achieve meaningful, evidence-based reforms. *Email: [email protected] ISSN 0144-2872 print/ISSN 1470-1006 online # 2009 Taylor & Francis DOI: 10.1080/01442870902899962 http://www.informaworld.com


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Perhaps out of frustration, curiosity or both, various Canadian drug policy scholars have attempted to pinpoint the reasons behind these repeated unsuccessful law reform episodes (see for example Giffen et al. 1991, Fischer 1999, Martel 2006). These efforts have yielded descriptive historical accounts and insights into the possible reasons for Canada’s resistance to cannabis policy reform. But these conclusions have been necessarily tenuous because they lack a comparative, historically relevant context in which to situate an understanding of Canada’s cannabis policy inertia. Indeed, Fischer (1999, p. 206) notes that there is a general dearth of research examining the social and political determinants of drug law and policy reform in nations that have liberalised their prohibitionary regimes. To remedy this, he suggests a comparative study between Canada and another jurisdiction, offering Australia as a point of departure. This article addresses this analytical task. Using Kingdon’s (1995) Multiple Streams theoretical perspective of the policy process, it contrasts Western Australia’s decriminalisation of cannabis possession and production for personal use between 2001 and 2004 with Canada’s failure to decriminalise minor cannabis offences between 2001 and 2006. Specifically it compares the social and political determinants of policy change in both national episodes to suggest possible reasons for Canada’s failure to achieve evidence-based cannabis law reform. Comparing policy windows To better understand the differences between Canadian and Western Australian cannabis policy-making, this article employs useful theoretical concepts that facilitate comparative analysis. Kingdon’s (1995) Multiple Streams model of policy-making enables this task by allowing for a conceptualisation of cannabis decision-making as compartmentalised into separate and relatively distinct periods referred to as ‘policy windows’. That is, the model breaks ‘policy-making’ down into tangible periods of time with specific contextual determinants. These can then be analysed and compared with historically relevant policy windows in other jurisdictions. In a policy window, three streams of problems, policy alternatives, and politics come together to create an opportunity for policy change (Lenton 2007, p. 3). A predictable (e.g. scheduled review) or unpredictable (e.g. crisis) event brings a problem or issue onto the agenda, which becomes coupled with a solution or policy alternative that is seen as politically feasible at the time (Soroka 1999). If those in a position to influence policy ‘cannot or do not take advantage of these opportunities, they must bide their time until the next opportunity comes along’. Despite being an important means to achieve policy change, policy windows open infrequently (Kingdon 1995, p. 166). Thus, policy-making around a particular issue can be understood to occur in bursts where several factors come together to make policy change possible, and they become successfully marshalled into reform or, alternatively, lost opportunities. Canadian research reports a history of lost opportunities. Overwhelmingly, cannabis reform advocates have been unable to capitalise on the favourable conditions provided by policy windows. For example, Martel (2006) documents Canada’s first wave of cannabis law reform attempts, 1961!1975. This era was marked by the groundbreaking findings of the Le Dain Commission and their recommendations that cannabis laws be liberalised. Additionally, many high-profile


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public figures, including the federal health minister, and the public anticipated some sort of policy change (Martel 2006). However, Martel argues that the presence of strong anti-prohibition interest groups combined with an ineffective liberalisation movement resulted in the federal government’s decision to keep the cannabis laws intact. Giffen et al. (1991) also analyse the Le Dain period as well as later reform attempts in the 1980s. Their review hints at the nature of bureaucratic law-making in Canada and politicians’ electoral considerations as potential explanations for further cannabis law inertia. Fischer (1999, p. 167) dissects another Canadian drug policy window that occurred between 1985 and 1997. During this time, ‘a variety of policy factors’ came together to promise reform. Facing an HIV/AIDS public health crisis, falling popularity and a political desire to distinguish its social policies from those of the US, the federal government proposed to overhaul Canada’s approach to illegal drugs, placing an emphasis on public health rather than criminal justice. Although cannabis reform advocates lobbied for leniency for marijuana offences and the government seemed to flirt with this proposal, the country’s cannabis policy was not meaningfully altered (Fischer 1999). Fischer (1999) blames Canada’s federalist composition and institutional arrangements that combined with unfavourable social and political variables to quell law reforms and the shift to a nascent public health approach to drug use. These three analyses indicate that although policy windows might open, making conditions favourable for change, they do not always lead to desirable results. This begs the question: what are the obstacles during each policy window that have blocked evidence-based reforms? The diversity of each study’s findings suggests further analysis in a comparative context may provide better insight into each period of attempted reform, and illustrate the import of some policy change determinants over others. The importance of comparative work is demonstrated by other cannabis policy literature. Scheerer’s (1978, p. 604) comparative analysis of the successful and unsuccessful cannabis policy reform efforts in Holland and Germany, respectively, ‘reveal the impact of underlying social structural variables upon the degree to which a moral issue is politicised and given symbolic significance by powerful groups’. More recently, MacCoun and Reuter (2001) utilise evidence from multiple countries, including Italy, Spain, Australia and the Netherlands, to suggest alternatives to America’s costly and ineffective war on drugs and speculate about the outcomes of applying various cannabis control regimes to the US. Finally, Reinarman and Cohen’s (2007, p. 124) comparison of cannabis policies and use patterns in San Francisco and Amsterdam finds no evidence to suggest that cannabis ‘decriminalisation leads to earlier, greater or more intense use, or, conversely, that criminalisation deters or reduces use’. All of these authors supply findings that would have been less sophisticated and in-depth had they relied on a single case study. Thus it is clear that comparative analysis in the realm of cannabis law and policy can assist researchers in gaining insights that would otherwise be elusive in single-jurisdiction analyses. Accordingly, the remainder of this article borrows theoretical understandings from Kingdon (1995) to review the most recent Western Australian and Canadian attempts to reform cannabis policy. Drawing on primary and secondary sources ! including government documents, media articles, and scholarly accounts ! the article compares the social and political determinants present in the case of Western Australia to those in Canada to suggest possible conditions that contributed to the

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former’s ability to reform cannabis laws at the beginning of the 21st century and the latter’s failure to do so.


Why Western Australia? A comparative look at Western Australian and Canadian cannabis policies may at first appear odd, because Canada is a nation-state and Western Australia is but one jurisdiction within a nation-state. Initial impressions might suggest that it is more pertinent to take Australian national cannabis policy in contrast. Nevertheless, this comparison is less suitable, due to the legal framework that makes the Australian states and the Canadian nation more appropriate counterparts. Under Canada’s federalist system, illegal drug regulation falls in the realm of criminal law, which is the purview of the federal government. Canadian provinces and territories are all bound by federal criminal laws and mandated to enforce their statutes; only the federal government may initiate changes to the legal status of controlled substances. In contrast, ‘under Australia’s federal structure, criminal law ! and responsibility for enforcing drug laws ! is primarily the responsibility of state governments’ (Canada 2002a, p. 551, Kisley 2005). Thus, individual states have the flexibility to change the laws regarding the legal status of controlled substances. As a result, there are currently several different systems of cannabis regulation in place in Australia and four of its eight jurisdictions have implemented cannabis depenalisation schemes, where cannabis possession and/or production is subject to civil penalty.1 They include South Australia in 1987, the Australian Capital Territory in 1992, the Northern Territory in 1996 and most recently Western Australia in 2004 (Sutton and Hawks 2005). The remaining districts have cannabis prohibition regimes. As such, comparing Canada and Australia at the national level is inappropriate, because Canada has one national cannabis enforcement scheme whereas Australia has eight unique regulatory systems. Despite different legal environments, Australia and Canada have similar cannabis use rates, policy eras, drug expenditures, cannabis arrests and social costs of cannabis use (Kisley 2005). These similarities hold when comparing Western Australia and Canada, as well. For example, Western Australia’s cannabis law reforms took place at about the same time Canada was attempting to decriminalise cannabis (i.e. the early years of the twenty-first century). In addition, Canada and Western Australia have comparable cannabis use statistics. In 2004, 44.6% of Canadians aged 15 and older reported having used cannabis at some point in their lives and 14.1% reported past-year use (Canadian Addiction Survey 2004, p. 3). Western Australia’s figures are slightly higher with 54% of people aged 14 and older indicating past use and 18.5% indicating past-year use, in 2002 ! prior to the implementation of cannabis prohibition with civil penalties (Fetherston and Lenton 2007, p. 7). Moreover, Lenton, Ferrante and Loh (1996) report that under the former prohibition scheme, approximately 85% of all drug charges in Western Australia were for cannabis, and of these, 90% were for minor offences. These statistics are similar to Canada, in which approximately 77% of drug offences are cannabis-related and of these, 70% are for possession (Canada 2003a, p. 6). Despite the similarities between these two jurisdictions, Western Australia, unlike its northerly counterpart, has successfully implemented major cannabis policy reforms (Fischer 1999, p. 206, Kisley 2005).

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Thus it appears that Canada and Western Australia are suitable jurisdictions for comparison.2


Western Australia’s prohibition with civil penalties The prominent Australian cannabis policy researcher Simon Lenton (2004) thoroughly reviews the events leading up to Western Australia’s 22 March 2004 implementation of laws decriminalising minor cannabis possession and production. As such, a brief review is offered here, to provide a context for the Canadian efforts. Prior to 2004, Western Australia’s system of cannabis regulation involved prohibition with a cautioning scheme. That is, first offenders caught in possession of 25 grams or less of cannabis avoided a criminal charge and penalty if they attended a cannabis education programme. Subsequent offences, however, were prosecuted (Lenton 2004, p. 225). At the time, this policy was in line with Australia’s unofficial national policy of de facto decriminalisation. This had been in place since 1999 when the Council of Australian Governments introduced a National Drug Diversion initiative, ‘with the aim of diverting all individuals charged with possession or use of any illicit substance for the first time into education and counselling’ (Hall 2008, p. 715). In 2000, Western Australia’s recent cannabis policy window was opened by the state’s branch of the Australian Labour Party (ALP). At the time, the party did not hold power and were actively formulating their policy platform in preparation for a forthcoming election (Lenton 2004). In formulating their policy on illegal drugs, the ALP proposed a decriminalised regime which would apply to possession of 50 grams of cannabis or less and cultivation of no more than two plants per household. A person who admitted to a simple cannabis offence would be issued with a cautioning notice as a first offence, be required to attend education and counselling session for a second offence, in lieu of accepting that option, face a fine as civil offence, and be fined for any subsequent offence. Possession and cultivation would not be legalised. (as cited in Lenton 2004, p. 227)

This proposal acknowledged the social costs of the criminalisation of personal cannabis use in Western Australia, such as increased employment, housing, relationship and legal problems reported by Western Australians convicted of cannabis possession (Lenton et al. 2000). In February 2001, the Western Australian Labour Party was elected to government with this platform, despite the rival Liberal Party’s campaign which explicitly highlighted and condemned the Labour Party’s stance on cannabis (Lenton 2004). In August of that year, the government fulfilled their election promise by organising a Community Drug Summit to provide ‘a neutral ground for consideration of the issues and contribut[e] to a balanced public debate’ on illegal drugs (Lenton 2004, p. 227). The delegates attending the event made 45 recommendations including Recommendation 39, which formally supported the Western Australian government’s decriminalisation proposal (Lenton 2004, Hall 2008). In response to these recommendations, Western Australia’s government established a ministerial working party on drug law reform to advise pending illegal drug policy changes (Lenton 2004). Notably, the panel included representatives from the state’s law enforcement, medical, judicial and regulatory communities. The working


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E. Hyshka Possession and cultivation of cannabis for personal use remains illegal, but is now subject to a civil penalty. Possession of up to 15 grams of cannabis, or a used smoking implement, results in a $100 fine; possession of 15–30 grams of cannabis results in a $150 fine; and the possession of no more than 2 non-hydroponically-grown cannabis plants per household results in a $200 fine. Offenders are required to either pay their penalty or complete a specified education session within 28 days to avoid a criminal charge. Those receiving more than two CINs over two separate days in a three-year period have to attend education instead of paying a fine; failure to do so may result in a criminal conviction. Hashish or cannabis oil offences remain subject to criminal penalties. The scheme will be thoroughly monitored and reviewed. A comprehensive education campaign will be provided for the general public explaining the laws and emphasising that cannabis possession remains illegal.

Figure 1. Key provisions of Western Australia’s Cannabis Infringement Notice scheme (adapted from Chanteloup et al. 2005; and Lenton 2004, p. 229).

group presented its findings to the Minister of Health and the cabinet in March 2002, which resulted in the Cannabis Control Bill (2003, no. 188) being tabled in the Western Australian parliament one year later (Lenton 2004, p. 228). After amendments, the bill passed both Houses on 23 September 2003. The bill laid out a Cannabis Infringement Notice (CIN) scheme. The scheme aimed to reduce the adverse social costs of minor cannabis possession enforcement, shift cannabis supply away from large, criminal organisations and free up law enforcement and the courts to deal with more serious crimes (Lenton 2004, p. 229). Figure 1 outlines some of the key features of this scheme. The Cannabis Control Act (2003, no. 52) and its CIN scheme were implemented on 22 March 2004.

After implementation Although the focus of this article is the process of policy change in Western Australia (and policy stagnation in Canada), and not an evaluation of the prohibition with civil penalties scheme, a brief mention of some of the results of implementation is in order because they evidence the need for cannabis law reform in Canada and other jurisdictions. Thus Figure 2 outlines some preliminary research findings regarding the CIN scheme and its implementation. All in all, there have been mostly positive consequences of the scheme reported thus far. The reduction in cannabis use, in particular, provides a formidable argument in support of the CIN scheme. However, the Western Australian government has more work to do in the realm of public education about the law. In addition, policy-makers should be aware of the potential for variable enforcement

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Early research findings indicate Western’s Australia’s decriminalisation system is associated with: A reduction in the proportion of people using cannabis in the past 12 months from 19% in 2002 to 12% in 2007 (NDRI 2007). A higher rate of compliance to civil penalty relative to other Australian jurisdictions in which cannabis has been decriminalised. 65% of people pay their fines or attend an education session by the required date (compared to 45% in South Australia [Lenton n.d.]). Only a modest net-widening effect. Net-widening (an increase in enforcement of cannabis laws) has been minimised in Western Australia in part because police tend to process apprehended users at the police station, finger-printing and photographing them and weighing the seized cannabis, rather than issuing CINs in the field (Lenton n.d.). A growing body of evidence that suggests that cannabis users may be more likely to seek treatment under this scheme (Lenton n.d.; National Drug Research Institute [NDRI] 2007). Almost half of respondents in a follow-up survey reported that they believe it is legal for an adult to possess small amounts of cannabis for personal use (NDRI 2007). An increase in cannabis users growing their own supply (from 11% in 2002 to 25% in 2007) (NDRI 2007). Some marginal deterrence relating to the production and use of hydroponically-grown cannabis plants.

Figure 2.

Early impact of Western Australia’s Cannabis Infringement Notice scheme.

patterns created by unanticipated police practices and attempt to further reduce already modest levels of net-widening. Canada’s failed reforms Canadian criminal law prohibits the possession, cultivation and trafficking of cannabis and cannabis products. In 2001, a policy window opened and efforts were made to change the status quo by shifting the country’s law to cannabis decriminalisation. The events that unfolded during this era and the ultimate failure of the Canadian government to decriminalise cannabis are described below. Canada’s most recent cannabis policy window opened on 4 March 2001, with the tabling of a Private Member’s Bill in the House of Commons. The author of the bill, Keith Martin ! an MP from the right-wing Canadian Alliance Party ! sought the decriminalisation of minor cannabis possession and trafficking (Hyshka 2009). This was in contrast to current Canadian law, which dictates that first-time possession offenders are liable to five years imprisonment less a day, or a fine not exceeding $1000, or both. In practice however, the majority of cases received a fine that averaged around $200 and only 13% received imprisonment (Canada 2003a, p. 7). The bill made it through two readings before the government used a procedural motion to effectively kill it in April 2002 (Gagnon 2002). Instead, the issue was deferred to a House of Commons committee for further study. By 2003, momentum for cannabis law reform had grown stronger. The aforementioned House of Commons committee and a separate Senate committee had just produced two high-profile reports on cannabis calling for decriminalisation and legalisation, respectively (Canada 2002a, 2002b). Canadian courts had recently decided on a number of important cannabis cases, some of which challenged ‘the constitutionality of the cannabis prohibition under Canada’s Charter of Rights and Freedoms’ (Erickson and Oscapella 1999). Public opinion polls showed that the majority of Canadians supported some form of cannabis law liberalisation (Fischer et al. 2003, Khoo 2004). A large number of Canadians (three million) reported recent


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cannabis use, and 700,000 had a criminal record for cannabis possession (Canada 2002a, p. 15, Fischer et al. 2003, p. 274). Finally, evidence suggested that cannabis prohibition was differentially enforced across the country, suggesting a need for legal reform to harmonise regional practices (Murray and Erickson 1983, Canada 2003a). In summary, the context from which Canada’s latest decriminalisation saga emerged was very favourable to drug law reform, with many policy-makers, stakeholders and citizens supporting some form of liberalisation of cannabis laws. Responding to this social and political pressure, the Liberal government tabled Bill C-38: An Act to Amend the Contraventions Act and the Controlled Drug and Substances Act, on 27 May 2003. The bill proposed to decriminalise the possession of less than 15 grams of cannabis and less than 1 gram of hashish by making it a civil offence. The penalties for possession of larger amounts would remain the same, but penalties for production were increased (Hyshka 2009).3 Despite several favourable social and political determinants, Bill C-38 died on the parliamentary Order Paper, before it could be passed into law. In February 2004, under a new prime minister, the Liberal government re-tabled an identical bill; however, it was short-lived due to an early election call a few months later. Re-elected, but with a minority in the House of Commons, the Martin government introduced a final decriminalisation bill. No initiative was taken to move the bill through Parliament, and it quietly died with the prorogation of Parliament a year later and the election of a socially conservative government in 2006. Soon after his election, the new prime minister, Stephen Harper, unequivocally stated that his government would not pursue cannabis law liberalisation (Hyshka 2009). With that, Canada’s most recent policy window slammed shut.4 Western Australia and Canada compared Why was Western Australia able to liberalise its cannabis laws at the start of the twenty-first century and why did Canada fail to do so? Lenton (2004), in his review of Western Australia’s cannabis decriminalisation, draws on his own extensive experience as a cannabis policy researcher to identify ‘some conditions that could be seen as necessary for the successful translation of a drug law reform scheme into de jure legislative change’ (p. 224). These social and political determinants of policy change include whether the proposed changes are: supported by law enforcement as well as a clear majority of the general public and cannabis users; survivable for politicians; supported by the evidence; sustainable under international drug treaties and conventions; and subject to evaluation and review (Lenton 2004, p. 224). All of these conditions were present during Western Australia’s cannabis decriminalisation. A review of the evidence is warranted to determine the extent to which these variables were applicable or present during Canada’s last cannabis policy window, and to generate new hypotheses regarding Canada’s failure to decriminalise minor cannabis offences between 2001 and 2006. Law enforcement support According to Lenton (2004, p. 225): ‘it is important that the police department, who are required to enforce the law, support the proposed legislative changes’. This notion is further supported by research done in the US and other parts of Australia,


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which found that successful state decriminalisation bills were supported by law enforcement (DiChiara and Galliher 1994, p. 31, Fischer 1999). Moreover, Scheerer (1978) reports that the Netherlands’ law enforcement officers were also supportive of cannabis decriminalisation during that country’s policy change. Indeed, Sutton and Hawks (2005, p. 333) report that in Western Australia ‘senior police generally seemed to understand and accept the aims of a prohibition with civil penalties’ during the cannabis law reform process. In contrast, Canadian law enforcement officials were for the most part against the proposed cannabis decriminalisation scheme. Between 2000 and 2001, the Canadian Association of Chiefs of Police (CACP) voiced support for minor cannabis decriminalisation on the grounds that it would ‘free up valuable resources and allow law officials to concentrate on bigger problems such as trafficking in hard drugs like heroine [sic] and cocaine’ (Baglole 2001). However, the association had changed their official position by early 2004, when they issued an open letter to the prime minister asking him to withdraw proposed cannabis decriminalisation legislation, contending that ‘the loosening of marijuana possession laws will come at a high price for [Canadian] society’ (CACP 2004). Around the same time, the senior drug officer of the Royal Canadian Mounted Police (RCMP ! Canada’s federal law enforcement agency) indicated his opposition to the bill, in part because ‘it lack[ed] the teeth to punish offenders who refuse to pay their fines’ (Chief Supt. Raf Souccar, cited in Foot 2004, p. A5). In summary, Canada’s two most prominent law enforcement associations were not very supportive of the decriminalisation bills. Public support Principles of democratic governance imply intuitively that public support for any proposed cannabis reforms might contribute to successful policy change. Indeed, research done in Western Australia confirms that ‘once explained, the proposed civil penalty scheme was viewed as ‘‘a good idea’’ by 79% of the sample, despite significant difference due to personal experience of cannabis use, political affiliation, religiosity and age of offspring’ (Fetherston and Lenton 2005, p. 301). In comparison, Canadian data indicate that during the 2001!2006 period, a large majority of Canadians (in some cases two-thirds) supported ‘a limited fine as a maximum penalty for cannabis possession’ (Fischer et al. 2003, p. 277). Thus it appears that public support for cannabis decriminalisation, while still robust, was slightly lower in Canada. Notably, this trend seems to continue today in spite of cannabis policy inertia, with Hathaway, Erickson and Lucas (2007) reporting similar findings regarding favourability of cannabis law liberalisation among the Canadian public. Cannabis user support Another variable contributing to successful cannabis policy change is whether cannabis users themselves support the proposed initiatives (Lenton 2004). In this regard, policy-makers might assume that ‘while many cannabis users will support full legalisation of cannabis use, the vast majority will see civil penalties schemes as far more reasonable and just than schemes that apply strict criminal prohibition’ (Lenton 2004, p. 225). Western Australian evidence supports this position. Pre-implementation


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research indicates that 91.3% of respondents who had used cannabis in the previous 12 months favoured the proposed CIN scheme; in addition, only 26.7% of respondents indicated that they thought the proposed scheme was too harsh (Fetherston and Lenton 2005, Lenton and Fetherston 2007). Unfortunately, similar data from Canada were not collected; however, if newspaper coverage from that period is any indication, it appears that Canadian marijuana users at best preferred legalisation and at worst outright opposed the proposed decriminalisation. On 3 May 2003 the Canadian Press reported that thousands marched in favour of cannabis law liberalisation. Activists attending these marches revealed that they were enthused by recent developments in Canadian cannabis policy, but that they saw the prospective decriminalisation as ‘a halfmeasure [they’d] have to live with for a while’ (Canadian Press 2003). In contrast, the Ottawa Citizen reported in March 2004 that the proposed decriminalisation legislation was not popular with marijuana users and activists, most of whom want the government to legalise the stuff. (In fact,) Vancouver’s Marc Emery ! the self-proclaimed ‘Prince of Pot’ who is Canada’s most high profile legalisation agitator ! says if Bill C-10 becomes law and police start issuing tickets to marijuana users, he will rally the country’s marijuana smokers to dispute their fines in court as part of a deliberate campaign to cripple the system. (Foot 2004, p. A5).

Perhaps, the comments of one of North America’s most prominent cannabis academics best elucidates up the feelings of Canadian marijuana users. In an interview with the San Francisco Chronicle in November 2003, Ethan Nadelmann (founder of the US-based Drug Policy Alliance) ‘noted that many marijuana advocates oppose [Canada’s] measure because it doesn’t legalize marijuana, or tax or regulate the drug’. Still, he argued that ‘decriminalization is an improvement over the current policy of the drug war’ (cited in Saunders 2003, p. A 27). In summary, it appears that Canada’s proposed decriminalisation reforms were not as well-received by cannabis users and activists as Western Australia’s CIN scheme.

Political survivability Lenton (2004) suggests that for proposed policy changes to be successful, politicians must believe that their adoption will not harm their future electability. Giffen et al. (1991) support this idea, suggesting that one possible reason for decades of stagnated cannabis policy change in Canada may be the constant pull of electoral considerations and unwillingness on the part of politicians to appear ‘soft on drugs’. No research to date has addressed this issue systematically through qualitative interviews. Some evidence, however, indicates that Western Australian politicians may have believed cannabis decriminalisation was politically survivable while Canadian politicians viewed it as less so. In Australia, public opinion indicated high levels of support for cannabis decriminalisation for personal use. Additionally, the Western Australian government had recently been elected on a platform that included a proposal to decriminalise cannabis. Shortly after their election, the health minister and other government members attended a high-profile Community Drug Summit, implying that they were


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not afraid to openly debate the merits of current cannabis policy or to be associated with reform-minded experts (Community Drug Summit 2001). These three factors suggest that Western Australia’s politicians may have believed that a prohibition with civil penalties scheme was politically survivable. In contrast, inferences into the Canadian context imply that cannabis decriminalisation was politically survivable for only the first part of the period of attempted reform. That is, between 2001 and 2003 the Liberal Party of Canada held the enviable position of a majority government. Moreover, this earlier period was buoyed by the prior release of two prominent parliamentary reports from the Senate and House of Commons calling for the legalisation and decriminalisation of cannabis, respectively, and relatively high levels of public support (Canada 2002a, 2002b, Fischer et al. 2003). However, in 2004 it appears levels of political survivability declined for the governing party. The Liberals were re-elected with only a minority government and that same year the CACP spoke out against the proposed cannabis decriminalisation legislation. In addition, the new prime minister and justice minister, while still supporting cannabis law reform, seemed less enthusiastic than their previous counterparts. That is, critics accused Prime Minister Martin of feeling ‘stuck’ with the Chre´tien-era initiative, and not being as strong a supporter of cannabis law reform as his predecessor (Opposition MP, cited in Schmitz 2005, p. A2). In fact, in September 2005 during the run-up to a federal election, the parliamentary secretary to the justice minister indicated that rather than tackling the decriminalisation bill, his party would ‘probably approach the opposition about pursuing less contentious initiatives, such as recently tabled bills on proceeds of crime and human trafficking’ (Schmitz 2005, p. A2, emphasis added). Indeed the cannabis decriminalisation bill died on the Order Paper, with the dissolution of Parliament and the Liberals did not survive the subsequent election. Thus, political determinants of the later part of Canada’s cannabis policy window imply that the government’s perception of a low level of political survivability may have played an important role in the failure of reform initiatives. Qualitative interviews with key politicians and senior bureaucrats would help better establish the importance of this variable.

Supported by the evidence Another potential influence on cannabis policy reform is scholarly and scientific research. Lenton (2004) argues that whether a proposed policy change is enacted depends to a degree on whether it is supported by research. The Western Australian government drew on a large body of research produced by Australia’s drug policy community that supported its CIN scheme (Lenton 2004). In addition, Western Australian policy-makers had the advantageous position of learning from the mistakes of other Australian jurisdictions ! notably South Australia ! and could adjust their laws in advance to prevent the same problems. The Canadian government also had access to information that supported cannabis law liberalisation. Both the Senate and the House of Commons had just completed two comprehensive policy reviews by major parliamentary committees. Unfortunately, although both reports recommended that cannabis laws be liberalised, they disagreed on the extent of policy change required. While the House of

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Commons’ review recommended decriminalisation as the best option for cannabis law reform, the Senate’s review described cannabis decriminalisation as the worst-case scenario, depriving the State of a regulatory tool needed in dealing with the entire production, distribution and consumption network, and delivering a rather hypocritical message at the same time (Canada 2002a, p. 597).

Thus although both the West Australian and Canadian governments had evidence to support their proposed policy changes, the situation in Canada was less clear-cut, with one important report criticising decriminalisation as a Canadian policy option.


International drug treaties and conventions Another important variable in the cannabis policy process is the role of international drug laws (Lenton 2004). Both Canada and Australia are party to three key United Nations conventions dealing with cannabis: the Single Convention on Narcotic Drugs and the Protocol Amending the Single Convention on Narcotic Drugs (Single Convention and Single Convention Protocol) 1961; the Convention on Psychotropic Substances (Psychotropics Convention) 1971; and the Convention Against Illegal Traffic in Narcotic Drugs and Psychotropic Substances (Trafficking Convention) 1988 (Canada 2003a, Lenton 2004). Article 3 of the Trafficking Convention stipulates that parties should make illegal the possession, trafficking, production, importation, etc. of illicit substances in their domestic policy. Furthermore, this article instructs parties to make these offences ‘liable to sanctions which take into account the grave nature of these offences, such as imprisonment or other forms of deprivation of liberty, pecuniary sanctions and confiscation’ (United Nations 1988 p. 3!4). Many commentators have indicated that Western Australia’s prohibition with civil penalties scheme does not violate any international drug laws (Lenton 2004). Canada’s proposed decriminalisation legislation was also deemed to be within the boundaries of the conventions. In testimony to the Special Committee examining the decriminalisation bill, a representative of the Department of Foreign Affairs indicated that the International Narcotics Control Board (the body charged with enforcing international drug treaties) had ruled Canada’s proposed legislation as ‘entirely in compliance with [its] international obligations’ (Canada 2003b, n.p.).

Evaluation and review The last variable Lenton (2004) identifies as potentially important for the realisation of cannabis law reform is whether the proposed changes are subject to an evaluation and review. This may act to reassure both members of the public and members of government that the proposed changes can be reversed if they are found to be more ineffective and/or problematic than the status quo. Indeed, Western Australia’s implementation of its Cannabis Control Act (2003, no. 52) included the planning and undertaking of an extensive review of the pre- and post-implementation phases. The evaluation process included seven two-wave (pre!post) sub-studies covering a broad range of topics such as the CIN’s effects on use rates, attitudes to the law, policymakers’ perceptions, and drug education in schools etc. (Lenton 2005, p. 297; see Figure 3 for a complete list).


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1. A study of the CIN’s effects on the general public’s cannabis use, attitudes and knowledge of the law. 2. A study of the CIN’s effects on frequent (at least weekly) cannabis users’ use, attitudes, and involvement in the drug market. 3. A study of the CIN’s effects on apprehended offenders’ use, attitudes to the law and the social impacts of arrest. 4. A study examining infringement notice data for those apprehended under the CIN scheme in comparison with data from the previous cautioning and criminal penalty scheme. 5. A study examining the CIN’s effects on policy-makers’ and law enforcers’ attitudes regarding trends in activity, practices and drug market perceptions. 6. A study looking at health effects of the CIN including rates of drug treatment-seeking, serious road injuries, psychosis and violence. 7. A study involving the school system examining the CIN’s effects on students’ use, attitude and knowledge and drug education in the classroom.

Figure 3. Western Australia’s CIN Evaluation and Review consisted of seven (pre!post) substudies (originally cited in Lenton 2005, p. 297).

The evaluation is being undertaken by an independent group of Australia’s top drug policy experts. The results of many of these studies are still pending; Figure 2 has already presented some preliminary findings. In sharp contrast, the Canadian government did not propose any period of evaluation and review for their decriminalisation legislation. This implied that once implemented, minor cannabis possession would remain indefinitely. In conclusion The preceding comparison between the latest Western Australian and Canadian cannabis policy windows indicates several factors which help explain why Canada did not decriminalise cannabis between 2001 and 2006: (1) the presence of law enforcement support in the Western Australian case and the absence of it in the Canadian context; (2) unlike in Western Australia, there was no clear support for the government’s decriminalisation attempts from cannabis users and activists who argued that they would increase users’ contact with the legal system; (3) evidence indicates that members of Canada’s governing Liberal party had reason to question the political survivability of instituting cannabis decriminalisation, while electoral considerations were not an issue in Western Australia; (4) Western Australia’s policy change included an extensive evaluation and review plan, but no such plans were included in Canada’s proposed new scheme; and (5) Canadian decision-makers had access to conflicting evidence supporting cannabis decriminalisation, whereas in Western Australia support for their CIN scheme was much more clear-cut. Of particular interest here is the lack of perceived political survivability on the part of Canadian politicians. At the beginning of Canada’s last cannabis policy window, cannabis decriminalisation was considered politically feasible. The proposed reforms enjoyed a favourable social and political context including strong levels of public support, and two high-profile parliamentary reports in favour of cannabis law reform. Indeed, Kingdon’s (1995) Multiple Streams theory of the policy process indicates that political feasibility of a proposed policy change is a necessary


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condition for the presence of a policy window. However, towards the end of the cannabis policy window it is clear that decriminalisation was perceived as politically unfeasible. The Liberal Party had been re-elected with a minority government and the official opposition did not support these reforms. Additionally, other policy change determinants ! which may have been easier to overlook with a strong electoral mandate ! such as law enforcement’s withdrawal of support, complaints on the part of cannabis activists, risk associated with a lack of an evaluation plan, and conflicting evidence, likely fed into this perception. As a result, Canada’s policy window was slammed shut and the ‘saga of promise, hesitation and retreat’ continues into its fifth decade. This analysis has uncovered a few additional variables not mentioned by Lenton (2004) but worthy of further inquiry. First, it should be noted that Western Australia was the fourth Australian jurisdiction to decriminalise minor cannabis possession in some form (Sutton and Hawks 2005). Perhaps this condition made cannabis law liberalisation seem less risky to both Western Australian politicians and members of the public. In contrast, as mentioned before, Canadian institutional arrangements place criminal law under the sole jurisdiction of the federal government. As such, cannabis law reform must be an all-or-nothing affair. This may work against enterprising reformers, as the implications of any policy change must be considered on a larger scale (that is, the effect on an entire country and not simply one of its jurisdictions). Fischer (1999, p. 207) suggests: ‘while most national or federal governments still stick with repressive drug control rhetoric and practices, many key reform measures have become effectively established at local levels’. At least one Canadian municipality has been pushing for these types of reforms. Vancouver’s Four Pillars Drug Strategy includes a recommendation that the Canadian government implement a legal regulatory framework for cannabis, and small-scale cannabis possession is virtually unenforced by the Vancouver Police Department unless there are aggravating circumstances (Canada 2002a, p. 359, City of Vancouver 2005, p. 56). Despite this, Canadian drug policy persists in prohibiting minor cannabis use and enforcement practices are generally more strict in the rest of the country. How much change needs to occur at the local level in Canada to stimulate federal policy change? To what degree is Western Australia’s policy change explained by the fact that it is but one jurisdiction in a country where other states had already decriminalised cannabis? These questions demand further inquiry. A second possibility to consider is the influence of the staunchly prohibitionist American government on each of the two countries. Fischer (1999, p. 206), in his argument for a comparative analysis between Canada and Australia, suggests that it seems unlikely Australia’s cannabis law reforms could have occurred ‘had its capital been only a few hundred miles from Washington DC, and with most of its trade exports going to US destinations’. In addition, Australia has a history of medical professionals being important ‘claims-makers advocating a medical model to controlling drug use and abuse’ that has not been as obvious in Canada (Gerber and Jensen 2001, p. 16). As such, it is expected that the American government plays a more prominent role in Canadian drug policy-making than in other jurisdictions, Australia included (Erickson and Haans 2001). With particular regard to Canada’s last cannabis policy window, two examples of American influence stand out. First, in drafting his proposed cannabis decriminalisation legislation, Canadian Justice


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Minister Martin Couchon took the unusual step of briefing the US Attorney General prior to tabling legislation in Parliament (Canada 2003a). As such, the American government received the opportunity to weigh in on Canada’s planned marijuana decriminalisation bill even before it was debated in the House of Commons. This meeting clearly evidences compromised Canadian sovereignty in cannabis policy-making. Another example of American interference during this period relates to statements made by US officials. United States Drug Czar John Walters toured Canada, publicly stating his country’s opposition to any form of cannabis law liberalisation. In addition, he spoke to Canadian business groups emphasising that if passed, the legislation would cause major delays at the US!Canada border. The American ambassador to Canada, Paul Celluci, echoed these comments (CTV News, Leinwand 2003). At the time, a poll of 146 Canadian chief executives revealed the saliency of this warning in that the majority believed that Canada’s attempts at decriminalisation were a bigger threat to Canada!US relations than an infamous and very contentious softwood lumber dispute (Bloomberg News 2005). In summary, during Canada’s last cannabis policy window American interference represented an important feature of the debate over minor cannabis decriminalisation. Thus the role of the US in Canadian and Australian drug policy should also be further investigated as a possible contributing factor to Canada’s failure and also, Western Australia’s success. Finally, the role of terminology in public cannabis debates should be considered. From the beginning, Western Australia’s ALP referred to their cannabis law liberalisation scheme as ‘prohibition with civil penalties’ whereas the Canadian government referred to their proposed changes as ‘decriminalisation’. This appeared to open up debate amongst Canadian commentators about whether cannabis possession would remain illegal under the proposed system. For example, in testimony to the parliamentary committee examining one version of the Canadian decriminalisation bill, the policy director of a prominent Canadian civil liberties association suggested that the legislation would only increase individuals’ contact with the criminal justice system, despite the fact that the bill would have removed criminal sanctions for minor cannabis possession (Canada 2003c). In addition, one of the primary talking-points of the Justice Minister during this time involved clarifying that the Canadian government was not talking about legalising marijuana. This type of ambiguity is less likely with the term ‘prohibition with civil penalties’, which clearly implies the continuing illegality of cannabis. It may also be more palatable to politicians, officials and members of the public concerned with sending the ‘wrong message’ to youth and society in general about cannabis. As such, the role of terminology in the cannabis policy reform proposals is another factor to consider in examining Canada’s failure and Western Australia’s success. In conclusion, the case of Western Australia’s recent decriminalisation of cannabis possession and cultivation for personal use provides a useful contrast for understanding why Canada, despite considerable onlooker optimism, was unable to decriminalise minor cannabis possession between 2001 and 2006. Indeed, after a thorough analysis it is clear that a number of important factors could have played a role in stifling policy change. In particular, it appears that a lack of support from law enforcement and cannabis users, conflicting evidence, risk associated with the lack of an evaluation plan, coupled with a weakened electoral mandate for the government,


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contributed to a perception that cannabis decriminalisation was not politically feasible. This ultimately ended the opportunity for change and closed the policy window. Other factors, such as Canada’s inexperience with decriminalisation regimes, American influence, and the semantics of ‘decriminalisation’ may have also played a role. To gauge the importance of some variables over others, however, qualitative interviews with key policy-makers from the era would be an excellent, if not logistically challenging research project. Finally, the findings of this article indicate the importance of comparative historical analyses for scholars and demonstrate the utility of the ‘policy window’ concept for this task. Past studies of Canadian cannabis policy windows have provided interesting historical overviews of tumultuous policy change considerations; however, their lack of another jurisdiction to serve as a foil has resulted in fewer factors being considered, leading to tenuous, somewhat vague findings. Of course, other factors, including the further considerations listed above, may have played a role in stifling Canadian policy change, and the role of these latent variables is difficult to gauge. However, in comparison to single-jurisdiction analyses, comparative studies of drug policy change supply researchers with a clearer grasp of how multiple policy change determinants can come together to block the reform efforts of those trying to capitalise on an open policy window.

Notes 1. In Canada, removing criminal sanctions for an offence and replacing them with civil penalties is generally referred to as ‘decriminalisation’. In Australia, the terms ‘depenalisation’ or ‘prohibition with civil penalties’ are more common than decriminalisation, however they refer to this same process. 2. Note that a comparison between Western Australian cannabis policy and a nation-state is not unprecedented. For example, Swenson and Crofts (2005) compare the cannabis regulation schemes of Western Australia and that of UK. 3. The maximum penalties for cultivation were increased and penalties were scaled so that they became progressively harsher with the seizure of larger quantities of marijuana plants (Hyshka 2009, p. 5). 4. For a full review of the Canadian cannabis legislative initiatives 2003!2008, see Hyshka 2009.

Acknowledgements The author would like to thank Patricia G. Erickson for her insightful commentary and guidance on earlier drafts of this article.

Notes on contributor Elaine Hyshka worked on earlier drafts of this article while attending graduate studies at the Department of Sociology and Collaborative Program in Addiction Studies at the University of Toronto in Toronto, Ontario, Canada. Her research interests include addictions and health policy. She is currently engaged in a number of research projects related to health policy and practice at the Community ! University Partnership for the Study of Children, Youth, and Families in the Faculty of Extension, University of Alberta, Canada.

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