10/25/15 Doug McVay

Century of Lies

This week we talk with Kirk Tousaw, an attorney and civil rights advocate in British Columbia, about the recent Canadian general election and prospects for drug policy reform under the new Trudeau government.

Audio file


OCTOBER 25, 2015


DEAN BECKER: The failure of drug war is glaringly obvious to judges, cops, wardens, prosecutors, and millions more now calling for decriminalization. Legalization. The end of prohibition. Let us investigate the Century Of Lies.

DOUG MCVAY: Hello! And welcome to Century of Lies. I'm your host, Doug McVay, editor of DrugWarFacts.org. Century of Lies is a production of the Drug Truth Network for the Pacifica Foundation Radio Network.

And now, on with the show.

Kirk Tousaw is a barrister and advocate based in Vancouver and Victoria, British Columbia. He's a proponent of modernizing our cannabis policies by repealing prohibition and implementing a regime of reasonable controls. He's a founding Board member of the Sensible BC Society, serves on the Board of Directors of NORML Canada and the BC Civil Liberties Association. And, he's my guest right now. Kirk, how are you, my friend.

KIRK TOUSAW: I'm doing great, Doug, thanks for having me on.

DOUG MCVAY: Oh, my goodness, it is a pleasure. I'm sure things have been a little crazy up there for the last day or so. You, I guess you had an election.

KIRK TOUSAW: We did have an election, we periodically have those although not as frequently as we used to before we implemented a fixed election date law, and ours was two days ago, and a red wave swept this country. Now, Americans will be thinking, red, oh no, that's conservative, but up here it means a very different thing. The red party is the Liberal Party of Canada, which is a center-left party ideologically. And they're back in power after a bit of a hiatus.

DOUG MCVAY: Bit of a hiatus is putting it mildly. Until the election two days ago, they had, what was it, 37 seats in your Parliament, and now they are the majority party with 54 percent, hundred and, what was it, 180, 190-some seats?

KIRK TOUSAW: Yeah, it's an incredible comeback from third party status. I think some of that is the popularity of the Prime Minister Elect, Mister Trudeau. Some of it is that they ran a, quite a good election campaign, a long election campaign by Canadian standards. And some of it is that prior to about 10 years ago, the Liberal Party of Canada was really seen as the natural ruling party of Canada, it had a big red tent, it encompassed people with a fairly broad spectrum of political views, and in some respects was perennially either government or official opposition status, and I think that that's, that kind of balance has sort of come back into Canadian politics with the New Democratic Party, which is our further left party, losing a number of seats in this most recent election, and the Conservative Party obviously going from majority government status to the official opposition.

DOUG MCVAY: Well, it's astounding, I know Harper, the now-former Prime Minister, feels good to say that, doesn't it?

KIRK TOUSAW: Feels good to hear it.

DOUG MCVAY: Harper was not a friend to drug policy reform. I mean, everything from marijuana through the syringe exchange through the heroin maintenance that you've had up there in Canada for the last, well, quite a few years. And, I mean, you still do have Insite, and there is still a pilot program on heroin maintenance, but, having said that, they've been under attack. Now, what kind of changes do you expect with the new Trudeau government?

KIRK TOUSAW: Well, Mister Trudeau has been very clear that his government will be enacting policy based on evidence and facts, which is a marked departure from the predecessor government that actually had a very intense dislike for things like science and reason and logic, preferred to make its policies on the basis of fear and ideology and a ruthless quest for power. So I expect we'll be seeing some very positive steps in the progressive direction on drug policy and other issues from Mister Trudeau. And specifically on the issue of cannabis policy, it was in, for the first time ever in the history of Canada, a campaign position and a platform position by the Liberal Party of Canada, that if elected they would legalize cannabis for the consumption by adults, by adult Canadians. And so, one hopes that Mister Trudeau will make good on that pledge, and that we will see within the next year or two a completely legal environment for the production, distribution, possession of cannabis and cannabis-based products right across this country.

DOUG MCVAY: This is, it's, I mean already we've had Uruguay as the first nation to actually legalize marijuana. But, do you think it's possible Canada may end up being second? Now, what chance is there of this going forward before the UN's UNGASS, their special session on drugs that's coming up April of next year?

KIRK TOUSAW: Well, I mean there's two paths, really, that -- cannabis could be removed from our controlled drugs and substances act by Mister Trudeau, once he forms government on November Fourth, almost immediately, because the Minister of Health is entitled to remove or add substances to the scheduled list of substances in the controlled drugs and substances act at will. It does not require going back to Parliament, or even having a vote. And so theoretically, it could occur almost instantly. I don't think that that's what's going to happen. I think that there's going to be a period of reflection and study in order to learn from best practices in other jurisdictions, including US states like Colorado, Oregon, Washington, and Alaska. Maybe to a lesser extent California and other medical marijuana jurisdictions. But one hopes that, given the incredible social harms prohibition continues to cause here in Canada and across the world, that this will be a front burner issue for Mister Trudeau and that we'll have a system, a nationwide system of legal cannabis access, within the first at least year or so of his administration.

DOUG MCVAY: And that's one of the other big differences, of course, between Canada's system and the United States, we have our election coming up in November of 2016, then some time in January the new president is sworn in, the old leaves office, the various secretaries and such step down. Your government, you've just had the election, the former prime minister, Stephen Harper, submitted his resignation that night, and you'll have a new prime minister sworn in, you were saying November Fourth. And that's also presumably when he will be announcing the different people to occupy those ministerial posts. Am I right?

KIRK TOUSAW: Yeah, that's right. That's right. We have a very different, very different political process here. You know, this election campaign was a bit over 60 days long, and it was the longest election campaign, federally, in modern Canadian history. Typically our election campaigns are about 36 days long, and they certainly don't ever turn into the one or two year affairs that seem to be the norm in the American, particularly president political arena. Which is good, it allows legislatures and leaders to do their business of governing as opposed to being constantly on the campaign trail. We also need to seat a Parliament, and Prime Minister Elect Trudeau has indicated that he expects to seat Parliament and begin his prime ministership on the Fourth of November, at which time he will be announcing his cabinet, the ministers of justice, and health, and environment, and all the other critical positions that do the business of government in a parliamentary system.

DOUG MCVAY: Minister of Health, now I recall seeing an article in the press not very long ago in which you were very critical of the now former health minister. Just feels so good to say that word "former" about some of these people. So, who do you think is going to be replacing her, and what kind of things do you think we're going to be seeing from your health ministry?

KIRK TOUSAW: Well, I couldn't even begin to speculate on who might replace Ms. Ambrose as Health Minister. Certainly I hope it's someone with some knowledge of things like health and medicine, which she was unfortunately sadly lacking. It was clearly just a political appointment for Ms. Ambrose, and I would like to see somebody with some ability to understand science, respect science and evidence put into that position. The minister of health is going to be critical to the further development of both the medical cannabis program in this country as well as determinations on what to do about non-medical use of cannabis, so long as it remains within the federal jurisdiction.

There's an interesting question of whether or not cannabis, if it is non-criminal in nature, can in fact be regulated at the federal level in Canada. Normally, commodities are regulated by the province and municipalities, delegated from the province, so there's going to be some very interesting discussions in Ottawa and between Ottawa and the provinces about what to do, if cannabis is no longer criminal law oriented in nature. And I certainly look forward to hopefully participating in and seeing the outcome of those discussions.

DOUG MCVAY: Now, I know you've got a case that you're arguing in the Canadian courts, a challenge regarding your, is it your -- what, tell me about the case, we were starting to talk about it and I'm afraid I'll jumble up any of the details, just because, and you're right here, so ...

KIRK TOUSAW: Yeah, there's a few different cases that are proceeding involving medical and spiritual use of cannabis, and the constitutionality of restrictions on that medical use and production, and spiritual possession and production. On the medical side, there are at least two major pieces of litigation that I'm involved with, moving forward. There's a case called Allard Versus Canada, that John Conroy, QC, is lead counsel and I'm assisting with. That case is awaiting a decision from the trial judge as to whether or not the government's attempts to completely ban personal production of medical cannabis, even for patients who had been licensed for a decade to do that under our former regulatory policy, is constitutional. As I say, that trial is completed and we're simply waiting for a decision from the trial court judge on that issue.

I'm involved in another case pending in BC Supreme Court that is tracking very similar issues in terms of medical cannabis production and access to appropriate levels of medical cannabis by patients. That case is a bit behind the Allard case, but it is in a different court system and court jurisdiction, and it is proceeding through that system as well.

I also am involved in a number of cases dealing with dispensaries that are operating currently unlawfully in Canada, medical cannabis dispensaries. They are illegal, they were not regulated, despite their requests to be regulated during the last changes to the medical cannabis regime in this country two years ago. And so dispensary operators continue to be arrested and prosecuted in various jurisdictions. And I have two or three charter challenges that are pending on behalf of persons involved in the dispensary industry.

And then finally, I'm involved in a case litigating on religious freedom grounds access to cannabis for spiritual purposes, that went to trial, received an unfavorable result a few years back, we went to the court of appeal, the federal court of appeal, we obtained a reversal of the trial court decision and a remand for a new trial, and so I'm looking forward to picking that case back up in the new year, and hopefully convincing a judge of the federal court that my client's religious freedom has been infringed by the criminal prohibition on his access to cannabis for spiritual and religious purposes.

DOUG MCVAY: Now, the spiritual case, is it, is he a member of a particular church, or is it going beyond just an organized body, or what's the, what are some of the -- yeah, tell me about that.

KIRK TOUSAW: Yeah, he happens to be a member of the Church of the Universe, which is a spiritual cannabis-based gnostic religion that has been around for, well at least since the 1960s. But in Canada, it's very clear from our jurisprudence that the test for whether one's practice is spiritual or religious in nature is an individualized test, it does not require adherence to any official dogma. The courts in fact have said very clearly that it's inappropriate for either government or the courts to lead an inquiry into whether one's spiritual practices are part of any prescribed religious dogma, that that would be in effect the state determining what constitutes true religious belief, and in fact that the role of the court is to determine whether or not the person sincerely believes that their practice is spiritual or religious in nature.

And if that sincere belief is present, then the practice ought to be protected, subject to other limitations within our constitution that allows the government to override religious and other constitutional rights, essentially, you know, without going into an extended lesson in Canadian constitutional law, essentially if there's a good enough reason to do so, and we say, in the area of cannabis, there is just not a good enough reason to infringe someone's religious freedom to attempt to unsuccessfully I would suggest keep cannabis out of the hands of them or anyone else.

DOUG MCVAY: See, now that, I think, is fascinating. One of my -- I end up talking about cannabis and spirituality at a couple of festivals every year, and -- makes sense, right, I do Drug War Facts, so let's talk about spirituality. But, I believe there is a value, a spiritual value, with cannabis use, and I also have concerns that narrowing it to an organized religious group, I mean, I -- I don't think most organized religious groups are worth the paper their dogma's printed on, everything from the Catholic Church through the Scientologists, all have -- they, you know, they got problems, and I think that, you know, spirituality is a different thing than religiosity. So the fact that, that they -- yeah, it's, Canada sounds like it's got a much better handle on that kind of thing than we do down here.

KIRK TOUSAW: Well, in theory. Certainly the jurisprudence in the Supreme Court of Canada suggests, and I think it's simply just true that religion is very individualized, spirituality is very individualized. It's about your own relationship with your conception of the divine or spirituality or whatever labels you want to put on it. These are individual practices and beliefs, and of course people can come together and manifest those practices and beliefs in association with each other in the form of organized religion, but they can also be just as deeply spiritual and religious without ever having a discussion with any other living person about their own belief systems. And we have to respect both those points of view. Otherwise, there simply isn't the kind of fulsome protection for religious and spiritual experience that I think we should have in a free and democratic society.

DOUG MCVAY: I couldn't agree with you more. I think that that's one of the most rational things I've heard about religion and spirituality in a very long time.

KIRK TOUSAW: Thank you.

DOUG MCVAY: Oh please, thank you. All the work that you've been doing, I mean -- politics, politics follow the change in culture and the attitudes, and if you don't have that change in the culture, if you don't capture their hearts first, then you're not going to make lasting change, and you've been making real change happen for a quite a while.

KIRK TOUSAW: Well, I appreciate that. It's been a privilege to be able to tell the stories of my clients to the courts and to find largely a receptive audience for those individual lived experiences, and to relate them to the necessary protections that we have built in from government encroachment, if we want to call ourselves societies that respect autonomy and individual action.

DOUG MCVAY: Truer words. So, I know you've got a lot of stuff to do, it's been my privilege. I'm speaking with Kirk Tousaw, he's a barrister and advocate based up in British Columbia, Canada. He's on the board of directors of NORML Canada, the BC Civil Liberties Association, and he is a tireless advocate and proponent of sensible reforms and rational policies. Kirk, any final thoughts and where do people find out about some of the cases you're working on and some of the good work you're doing?

KIRK TOUSAW: Well, I appreciate you having me on, and giving me the opportunity to speak to your audience. If people want to keep up to speed on what I'm doing and what's going on here in Canada, my website is TousawLaw.ca, that's TOUSAWLAW.ca. NORML Canada's NORMLCanada.ca. I'm also with an organization called Sensible BC, which is SensibleBC.ca. And if you come looking, I'm sure you'll find more than you can handle in terms of the kind of activity that's going on in drug policy reform up here in Canada, it's a very exciting time to be Canadian, very exciting time to be in this field, really on both sides of our shared border, and I certainly look forward to a time when we can sit together and reminisce about how we ended drug prohibition across North America and hopefully the world.

DOUG MCVAY: Well, I'm not sure when the next time is I'll be seeing you, but I'm telling you, I will be Vancouver or somewhere in BC on the day that marijuana becomes legal up there.

KIRK TOUSAW: Let's hope that's soon.

DOUG MCVAY: I've got my passport ready.

KIRK TOUSAW: Thanks, Doug

DOUG MCVAY: Ah, Kirk, thank you so much.

You're listening to Century of Lies, a production of the Drug Truth Network for the Pacifica Foundation Radio Network. I'm your host, Doug McVay, editor of DrugWarFacts.org.

So, I spoke at Portland Hempstalk last weekend. Had a great time. Here's part of it.

NGAIO BEALUM: You know, it's beautiful that we can come here to the park and celebrate marijuana and not smoke weed, but we still have a lot of things to do. We still have a lot of things to do. And to talk more about it, my good friend, from, what is it? Drug facts, drug freedom facts?

DOUG MCVAY: Drug War Facts!

NGAIO BEALUM: Drug War Facts, radio, DrugWarFacts.org I think it is. Give it up for not only a fantastic photographer but a wonderful human being, and he just got engaged to get married: Doug McVay!

DOUG MCVAY: Thank you, Ngaio, thank you. You all are beautiful. Thank you all for coming out.

Back in 1984 I got off a Greyhound Bus here in Portland, Oregon, with the sole purpose of making marijuana legal. Sorry it's taken so long. But we're not done yet, it isn't really legal, right? Now, there's nothing I love better than coming into a friendly crowd and talking about the stuff that we all love, that we all agree with, and that is so freakin' boring, I'm not going to make you listen to that. Because, yes, hemp, absolutely. Medical pot? Of course. Expanding legalization? Absolutely. But you know, that's not really what I'm about anymore. It's about freedom and social justice. And yes, we need to make marijuana legal, but you see, there are broader things. No one should be arrested simply because they use drugs. Period. All drug use needs to be decriminalized, period. All drug possession. It's marijuana, sure, and hash, and heroin, and methamphetamine, and cocaine. None of it, there's no reason why any of that should put someone in jail. It just makes the problem worse, it just makes the world a worse place. All that has to stop.

So that's part of what I'm about, what I'm out here to talk about. You know, you're in Multnomah County. This place has one of the oldest and best needle exchange programs in the United States. Now that is something to be proud of. You live in a very intelligence place, because they understand that throwing people in jail is not as important as it is to save people's lives. It's your life now, it's your life later. The person you're going out with, ten years ago, maybe they were using needles. How do you know? Can be a surprise, eh? But you know, if they had access to a needle exchange, you won't have to worry about whether 10, 20 years down the line they're going to realize that they were infected with hepatitis C, or with AIDS. And that's important.

Because people, you know, people are people and people deserve life. Harm reduction, that's where it's at. The methadone treatment clinic that someone wants to locate a block away from your house. You know what? Let them. Don't try to force them out, don't try and zone them out like we're doing with dispensaries. Because it's your neighbors who need that clinic. It's not just people who live in bad places. It's the bad places where they have to go because that's the only place we can locate the methadone clinics. And that's a shame. That's the stuff we have to work on. And that's the work that I'm about.

Yes, we've got to legalize pot, but you know, the facts have always said we should legalize weed. Everyone's agreed with it for a long time, finally enough of you -- enough of us, care. Because that's what it's taken to make it legal. We had to care. And I'm out here to make you care about some other stuff, too, because this is where it's really at.

October 22nd through 24th are national days of action against police brutality. You should all become involved. Hashtag #RiseUpOctober. Check it out on the web at RiseUpOctober.org. There will be days of action in New York City, there will be a large protest in Cleveland -- you know, Cleveland, where the police murdered a 12-year-old child named Tamir Rice? Police murder happens all the time. Zachary Hammond in Seneca, South Carolina, who was shot in the back by police, who claim he was driving his car towards them. How are you driving a car towards them and get shot in the back? They haven't quite explained, but hey, you know, cops with the magic bullets.

These are all what counts. I got involved in legalized 30 years ago, and I've always been working on it, but at some point a few years into it I realized, there's so much more out there I've got to talking about. And like I say, talking about stuff that we agree with, that's okeh, but let's talk about some stuff that maybe you're going to have to think about. Legal weed? Obviously. Prescription heroin? We should talk about that one, because it's a good idea. Safe injection sites, like what they have up in Vancouver, at Insite. Safe injection facility, you know that safe injection facility, they've had a handful of overdoses, and you know what, none of them have died. This is important stuff. We could talk about this epidemic of heroin use, and all this -- epidemic's a terrible word, it's not really, it's just that there are more people admitting that they use, and there are more people on painkillers. Actually we have an epidemic of untreated pain in this country, and if we only knew how to deal with it. But that's what we're here for, is to learn to talk.

Now, I'm going to get out of here because these folks are actually real ready to go, but before I do remember, give money to Hempstalk, this thing costs bucks to provide. Come see my friend Ngaio because he's brilliantly funny. And I thank you very much. Visit me at DrugWarFacts.org, the radio show Century Of Lies, and of course follow at @DrugPolicyFacts. Thank you very much.

NGAIO BEALUM: Doug McVay! Activism, people!

DOUG MCVAY: We'll have more from Hempstalk next week. Well for now, that's all the time we have. Thank you for listening. This is Century Of Lies, a production of the Drug Truth Network for the Pacifica Foundation Radio Network. I'm your host Doug McVay, editor of DrugWarFacts.org.

Century Of Lies is heard at 420Radio.org on Mondays at 11am and 11pm, Saturdays at 4am, all times are pacific. We're heard on time4hemp.com on Wednesdays between 1 and 2pm pacific along with our sister program Cultural Baggage. We're on The Detour Talk Network at thedetour.us on Tuesdays at 8:30pm. And we're heard on Grateful Dread Public Radio at GDPRNashville.org on Saturdays between 8 and 9 pm pacific time along with our sister program Cultural Baggage.

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We'll be back next week with more news and commentary on the drug war and this Century Of Lies. For now, for the Drug Truth Network, this is Doug McVay saying so long. So long!

For the Drug Truth Network, this is Doug McVay asking you to examine our policy of drug prohibition: the century of lies. Drug Truth Network programs archived at the James A. Baker III Institute for Public Policy.