OUR POSITION FOR A CANADIAN PUBLIC POLICY
REPORT OF THE SENATE SPECIAL COMMITTEE ON ILLEGAL DRUGS
VOLUME I : PARTS I and II
Chairman: Pierre Claude Nolin
Deputy Chairman: Colin Kenny
ORDER OF REFERENCE
Extract from the Journals of the Senate of March 15, 2001:
Resuming debate on the motion of the Honourable Senator Nolin, seconded by the Honourable Senator Molgat:
That a special committee of the Senate be struck to examine:
- The approach taken by Canada to cannabis, its preparations, derivatives and similar synthetic preparations, in context;
- The effectiveness of this approach, the means used to implement it and the monitoring of its application;
- The related official policies adopted by other countries;
- Canada's international role and obligations under United Nations agreements and conventions on narcotics, in connection with cannabis, the Universal Declaration of Human Rights and other related treaties; and
- The social and health impacts of cannabis and the possible consequences of different policies;
That the special committee consist of five senators, three of whom shall constitute a quorum;
That the Honourable Senators Banks, Kenny, Nolin, Rossiter and (a fifth Senator to be named by the Chief Government Whip) be named to the committee.
That the committee be authorized to send for persons, papers and records, to hear witnesses, to report from time to time, and to print from day to day such papers and evidence as may be ordered by it;
That the briefs and evidence heard during consideration of Bill C-8, An Act respecting the control of certain drugs, their precursors and other substances and to amend certain other Acts and repeal the Narcotic Control Act in consequence thereof, by the Standing Senate Committee on Legal and Constitutional Affairs during the Second Session of the Thirty-fifth Parliament be referred to the committee;
That the documents and evidence compiled on this matter and the work accomplished by the Special Senate Committee on Illegal Drugs during the Second Session of the Thirty-sixth Parliament be referred to the committee;
That the committee be empowered to authorize, if deemed appropriate, the broadcasting on radio and/or television and the coverage via electronic media of all or a part of its proceedings and the information it holds;
That the committee present its final report no later than August 31, 2002; and that the committee retain the powers necessary to publicize its findings for distribution of the study contained in its final report for 30 days after the tabling of that report;
That the committee be authorized, notwithstanding customary practice, to table its report to the Clerk of the Senate if the Senate is not sitting, and that a report so tabled be deemed to have been tabled in the Senate.
The question then being put on the main motion as amended, it was adopted.
Extract from the Journals of the Senate of May 9, 2002:
The Honourable Senator Nolin moved, seconded by the Honourable Senator Stratton,
That the date of presentation by the Special Senate Committee on Illegal Drugs of the final report on its study into reassessing Canada's anti-drug legislation and policies, which was authorized by the Senate on March 15, 2001, be extended from August 31, 2002 to September 13, 2002.
The question being put on the motion, it was adopted.
Paul C. Bélisle
Clerk of the Senate
A Word of Thanks
I am very proud of the report on cannabis being made public today by the Senate Special Committee on Illegal Drugs. It marks a stage in Canada's public policy on drugs, and I have no doubt that it will find an attentive readership, despite its impressive size.
The report is the product of a team effort over a period of two years. At the risk of leaving anyone out, and I hope I will be pardoned should I do so, I would like to express my gratitude to those most closely involved with the project.
I would first thank all Canadians, who, from near and far, shared in our efforts, by writing us, by attending our hearings and our open forums in the regions, by watching us on television and, quite simply, by taking the time to learn about this important social policy issue. Their contributions, their questions and their comments were a source of inspiration. We will not forget the welcome given us by the Chiefs of the Piapot tribe in Saskatchewan. The ceremony they held for us was truly healing.
The Committee could not have done its work without the immense contribution of its research team. This small group was under the able direction of sociologist Dr Daniel Sansfaçon, whose rigour and devotion enabled the Committee to meet the highest standards of quality in its work and in the drafting of its report. Mr Gérald Lafrenière and Ms Chantal Collin, researchers with the Parliamentary Research Branch of the Library of Parliament working with him, provided invaluable support. I would take the opportunity to thank the Parliamentary Research Branch and its Director General specifically for their diligence and professionalism in responding to our imposing program of work. Finally, I wish to mention the contributions by Ms Barbara Buston Wheelok, assistant to Senator Rossiter, to Mr François Dubois, my research assistant, and to Messrs Jean-Guy Desgagné and David Newman in Communications.
The Committee benefited in its work from the expertise and the generosity of the many experts who testified before it or whom it met privately, and whose names are appended. I would thank them one and all.
We were also able to draw on the competence of the committee clerks and on the efficiency of their administrative personnel in organizing our many working and public meetings. My thanks to Blair Armitage, Daniel Charbonneau and Adam Thompson.
Our report, with its great concern for transparency and rigour, exemplifies the highest standards maintained by the Senate. I would thank my colleagues in the Senate, who entrusted us with this mandate. In concluding, I would like to express my gratitude to my colleagues who took part in our work and especially to each of the members of the Senate Special Committee on Illegal Drugs: its Deputy Chair, Senator Colin Kenny, and Senators Tommy Banks, Shirley Maheu and Eileen Rossiter. They did a remarkable job.
My colleagues, I believe Canadians may rightly be proud of our parliamentary institution.
Pierre Claude Nolin
Chair, Senate Special Committee on Illegal Drugs
MEMBERS OF THE SENATE SPECIAL COMMITTEE ON ILLEGAL DRUGS
1. MEMBERS OF THE SENATE SPECIAL COMMITTEE ON ILLEGAL DRUGS
Honourable Pierre Claude Nolin
Honourable Colin Kenny
Honourable Tommy Banks
Honourable Eileen Rossiter
Honourable Shirley Maheu
|Honourable John Lynch-Staunton *
Honourable Sharon Carstairs, P.C.* **
Honourable Noël A. Kinsella *
Honourable Fernand Robichaud, P.C. *
2. OTHER SENATORS WHO PARTICIPATED IN THE PROCEEDINGS OF THE COMMITTEE
Honourable Michel Biron
Honourable Laurier LaPierre
Honourable Pat Carney, P.C.
Honourable Jean Lapointe
Honourable Thelma Chalifoux
Honourable Edward M. Lawson
Honourable Ione Christensen
Honourable Lorna Milne
Honourable Ethel M. Cochrane
Honourable Yves Morin
Honourable Pierre De Bané, P.C., Q.C.
Honourable Lucie Pépin ***
Honourable Consiglio Di Nino
Honourable Marie-P. Poulin
Honourable Joyce Fairbairn, P.C.
Honourable Marcel Prud’homme, P.C.
Honourable Sheila Finestone, P.C.
Honourable Gerry St. Germain, P.C.
Honourable J. Michael Forrestall
Honourable Peter A. Stollery
Honourable Jerahmiel S. Grafstein, Q.C.
Honourable Terry Stratton
Honourable Mobina S.B. Jaffer
Honourable John Wiebe
Honourable Lois M. Wilson
* Ex Officio Members
** The Honourable Sharon Carstairs was a member of the Committee from April 2000 to October 2000
*** The Honourable Lucie Pépin was a member of the Committee from April 2000 to October 2000
TABLE OF CONTENTS
Part I - General Orientation
Chapter 1 - Our Mandate
Chapter 2 - Our Work
Two Working Principles
State of Knowledge
The Challenge of Synthesis
Taking Opinions into Account
Interpreting in Light of Principles
Chapter 3 - Our guiding principles
Ethics, or the principle of reciprocal autonomy
Governance: maximizing the actions of individuals
Governance of the self
The role of governance
Criminal law and the limits of prohibition
Requirement for distinctions
Criteria for distinction
Application to illegal drugs issues
Science or approximate knowledge
Chapter 4 - A Changing Context
Changes in the International Sphere
Globalization and Integration
Difficulties of the Security Debate
From Anti-Drug Policies to Drug Policies
Changes in Canada
A National Crime Prevention Strategy
The Fight Against Organized Crime
A Societal Debate
PART II - CANNABIS: EFFECTS, TYPES OF USE, ATTITUDES
CHAPTER 5 - CANNABIS: FROM PLANT TO JOINT
ONE PLANT, VARIOUS DRUGS
PROPERTIES OF CANNABIS
CHAPTER 6 - USERS AND USES: FORM, PRACTICE, CONTEXT
PATTERNS OF USE
Consumption by the population as a whole
Consumption among young people
Use patterns in other countries
PATTERNS AND CIRCUMSTANCES OF USE
Cannabis in History
Trajectories of Use
Factors Related to Use
STEPPING STONE TOWARDS OTHER DRUGS?
CANNABIS, VIOLENCE AND CRIME
CHAPTER 7 - CANNABIS: EFFECTS AND CONSEQUENCES
EFFECTS AND CONSEQUENCES OF CANNABIS: WHAT WE WERE TOLD
ACUTE EFFECTS OF CANNABIS
CONSEQUENCES OF CHRONIC USE
Physiological Consequences of Chronic Use
Cognitive and Psychological Consequences
Behavioural and Social Consequences
TOLERANCE AND DEPENDENCE
Severity of Dependence
CHAPTER 8 - DRIVING UNDER THE INFLUENCE OF CANNABIS
FORMS OF TESTING
Studies not involving accidents
Studies where an accident was involved
Epidemiological studies on youth
CHAPTER 9 - USE OF MARIJUANA FOR THERAPEUTIC PURPOSES
Marijuana as a drug?
CURRENT THERAPEUTIC PRACTICES
CHAPTER 10 - CANADIANS' OPINIONS AND ATTITUDES
ATTITUDES AND OPINIONS SHARED WITH THE COMMITTEE
PART III - POLICIES AND PRACTICES IN CANADA
CHAPTER 11 - A NATIONAL DRUG STRATEGY?
PHASE I - DEVELOPMENT AND IMPLEMENTATION
Creation of the Canadian Centre on Substance Abuse
Creation of Canada's Drug Strategy Secretariat
PHASE II - RENEWAL
PHASE III - RENEWAL WITHOUT SPECIFIED FUNDING
CANADA'S DRUG STRATEGY - A SUCCESS?
CHAPTER 12 - THE NATIONAL LEGISLATIVE CONTEXT
Opium Act, 1908
The Opium and Narcotic Drug Act, 1911
Amendments to the Opium and Narcotic Drug Act (1920-1938)
Amendments to the Act to Amend the Opium and Narcotic Drug Act in 1954
Senate Report of 1955
FROM 1960 TO THE LE DAIN COMMISSION: THE SEARCH FOR REASONS
Narcotic Control Act (1961)
An Act respecting Food and Drugs and Barbiturates (1961)
The Le Dain Commission (1969-1973)
Bill S?19 and Cannabis
AFTER LE DAIN: FORGING AHEAD REGARDLESS
Controlled Drugs and Substances Act
CHAPTER 13 - REGULATING THERAPEUTIC USE OF CANNABIS
BACKGROUND TO THE RECENT REGULATIONS
Section 56 - Controlled Drugs and Substances Act
Charter Challenges - Therapeutic Use of Marijuana
MARIHUANA MEDICAL ACCESS REGULATIONS
Authorization to Possess
Licence to Produce
Access to cannabis
CHAPTER 14 - POLICE PRACTICES
CHARGES UNDER THE CONTROLLED DRUGS AND SUBSTANCES ACT IN 1999
TheCanada Customs and Revenue Agency
Provincial and Municipal Police
Searches and Seizures
Entrapment and Illegal Activity
Customs Act - Fines
CHAPTER 15 - THE CRIMINAL JUSTICE SYSTEM
Drug Treatment Courts
DISPOSITION AND SENTENCING
CHAPTER 16 - PREVENTION
INITIATIVES THAT FALL SHORT OF THE MARK
Not enough prevention
Prevention lacks focus
There is not enough evaluation of preventive measures
Preventive and social messages in contradiction
There is a body of knowledge on which we have to draw
PREVENTING WHAT AND HOW?
RISK REDUCTION AND HARM REDUCTION
CHAPTER 17 - TREATMENT PRACTICES
FORMS OF TREATMENT
EFFECTIVENESS OF TREATMENT
CHAPTER 18 - OBSERVATIONS ON PRACTICES
DIFFICULTIES IN HARMONIZING THE PLAYERS
INCONGRUITIES OF APPROACH
SIGNIFICANT ECONOMIC AND SOCIAL COSTS
PART IV - PUBLIC POLICY OPTIONS
CHAPTER 19 - THE INTERNATIONAL LEGAL ENVIRONMENT
The 1909 Shanghai Conference
The 1912 Hague International Opium Convention
The 1925 Geneva Opium Conventions
The 1931 Geneva Narcotics Manufacturing and Distribution Limitation Convention / 1931 Bangkok Opium Smoking Agreement
The 1936 Geneva Convention for the Suppression of the Illicit Traffic in Dangerous Drugs
The Second World War
The 1946 Lake Success Protocol
The 1948 Paris Protocol
The 1953 New York Opium Protocol
THE THREE CURRENT CONVENTIONS
The Single Convention on Narcotic Drugs, 1961
Convention on Psychotropic Substances
Protocol amending the Single Convention on Narcotic Drugs, 1961
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
CHAPTER 20 - PUBLIC POLICIES IN OTHER COUNTRIES
Different Forms of Logic
An Integrated Public Policy
Statistics on Use and Offences
Essential Experts Reports
The Coffee Shop System
Data on Use
Ten-Year Strategy to Battle Drugs
Other Relevant Legislation in the Field of Drug Misuse
Debate in the UK
Recent Key Reports and Studies
Debate in Sweden
A Harm Reduction Policy
The Legal Framework
A Bill to Decriminalize Cannabis
Administration of Swiss Drug Policy
Statistics on Narcotics Use and Offences under the Narcotics Act
National Drug Strategy
Decriminilization in Australia
The Federal-State Legislative Framework
Current Legislation and Enforcement
Federal Drug Policy Goals and Objectives
Administration of the Policy
Current Issues and Debates
CHAPTER 21 - PUBLIC POLICY OPTIONS
INEFFECTIVENESS OF CRIMINAL POLICIES
Impact on Consumption
Impact on Supply
GENERAL ECONOMY OF A PUBLIC POLICY ON CANNABIS
COMPONENTS OF A PUBLIC POLICY
Strong Decision-making Body
A Shared Definition of Shared Objectives
Clarification of criminology
Criteria for a Legal Policy on Cannabis
CONCLUSIONS AND RECOMMENDATIONS
LE DAIN - ALREADY THIRTY YEARS AGO
INEFFECTIVENESS OF THE CURRENT APPROACH
PUBLIC POLICY BASED ON GUIDING PRINCIPLES
A CLEAR AND COHERENT FEDERAL STRATEGY
NATIONAL STRATEGY SUSTAINED BY ADEQUATE RESOURCES AND TOOLS
A PUBLIC HEALTH POLICY
A REGULATORY APPROACH TO CANNABIS
A COMPASSION-BASED APPROACH FOR THERAPEUTIC USE
PROVISIONS FOR OPERATING A VEHICLE UNDER THE INFLUENCE OF CANNABIS
CANADA'S INTERNATIONAL POSITION
PROPOSALS FOR IMPLEMENTING THE REGULATION OF CANNABIS FOR THERAPEUTIC AND RECREATIONAL PURPOSES
Glossary of key terms
Vague term with a variety of meanings depending on the social, medical and legal contexts. Some equate any use of illicit drugs to abuse: for example, the international conventions consider that any use of drugs other than for medical or scientific purposes is abuse. The Diagnosis and Statistical Manual of the American Psychiatric Association defines abuse as a maladaptive pattern of substance use leading to clinically significant impairment or distress as defined by one or more of four criteria (see chapter 7). In the report, we prefer the term excessive use (or harmful use).
Refers to effects resulting from the administration of any drug and specifically to its short term effects. These effects are distinguished between central (cerebral functions) and peripheral (nervous system). Effects are dose-related.
General term referring to the concepts of tolerance and dependency. According to WHO addiction is the repeated use of a psychoactive substance to the extent that the user is periodically or chronically intoxicated, shows a compulsion to take the preferred substance, has great difficulty in voluntarily ceasing or modifying substance use, and exhibits determination to obtain the substance by almost any means. Some authors prefer the term addiction to dependence, because the former also refers to the evolutive process preceding dependence.
A substance that acts on receptor sites to produce certain responses.
Agonist neurotransmitter of the endogenous cannabinoid system. Although not yet fully understood in research, these neurotransmitters seem to act as modulators, THC increasing the liberation of dopamine in nucleus accumbens and cerebral cortex.
Use behaviour which makes users at-risk of developing dependence to the substance.
Endogenous receptors of the active cannabis molecules, particularly 9-THC. Two endogenous receptors have been identified: CB1 densely concentrated in the hippacampus, basal ganglia, cerebellum and cerebral cortex, and CB2 particularly abundant in the immune system. The central effects of cannabis appear to be related only to CB1.
Three varieties of the cannabis plant exist: cannabis sativa, cannabis indica, and cannabis ruredalis. Cannabis sativa is the most commonly found, growing in almost any soil condition. The cannabis plant has been known in China for about 6000 years. The flowering tops and leaves are used to produce the smoked cannabis. Common terms used to refer to cannabis are pot, marihuana, dope, ganja, hemp. Hashish is produced from the extracted resin. Classified as a psychotropic drug
s, cannabis is a modulator of the central nervous system. It contains over 460 known chemicals, of which 60 are cannabinoids. Delta-9-tétrahydrocannabinol, referred to as THC, is the principal active ingredient of cannabis. Other components such delta-8-tétrahydrocannabinol, cannabinol and cannabidiol are present in smaller quantities and have no significant impacts on behaviour or perception. However, they may modulate the overall effects of the substance.
Refers to effects which are delayed or develop after repeated use. In the report we prefer to use the term consequences of repeated use rather than chronic effects.
Commission on narcotic drugs (CND)
The Commission on Narcotic Drugs (CND) was established in 1946 by the Economic and Social Council of the United Nations. It is the central policy-making body within the UN system for dealing with all drug-related matters. The Commission analyses the world drug abuse situation and develops proposals to strengthen international drug control.
Removal of a behaviour or activity from the scope of the criminal justice system. A distinction is usually made between de jure decriminalization, which entails an amendment to criminal legislation, and de facto decriminalization, which involves an administrative decision not to prosecute acts that nonetheless remain against the law. Decriminalization concerns only criminal legislation, and does not mean that the legal system has no further jurisdiction of any kind in this regard: other, non-criminal, laws may regulate the behaviour or activity that has been decriminalized (civil or regulatory offences, etc.).
The use of measures other than prosecution or a criminal conviction for an act that nonetheless remains against the law. Diversion can take place before a charge is formally laid, for example if the accused person agrees to undergo treatment. It can also occur at the time of sentencing, when community service or treatment may be imposed rather than incarceration.
Modification of the sentences provided in criminal legislation for a particular behaviour In the case of cannabis, it generally refers to the removal of custodial sentences.
State where the user continues its use of the substance despite significant health, psychological, relational, familial or social problems. Dependence is a complex phenomenon which may have genetic components. Psychological dependence refers to the psychological symptoms associated with craving and physical dependence to tolerance and the adaptation of the organism to chronic use. The American Psychiatric Association has proposed seven criteria (see chapter 7).
Neuromediator involved in the mechanisms of pleasure.
Generally used to refer to illicit rather than licit substances such as nicotine, alcohol or medicines. In pharmacology, the term refers to any chemical agent that alters the biochemical or physiological processes of tissues or organisms. In this sense, the term drug refers better to any substance which is principally used for its psychoactive effects.
European Monitoring Centre on Drugs and Drug Addiction (EMCDDA)
The European Monitoring Centre was created in 1993 to provide member states objective, reliable and comparable information within the EU on drugs, drug addictions and their consequences. Statistical information, documents and techniques developed in the EMCDDA are designed to give a broad perspective on drug issues in Europe. The Centre only deals with information. It relies on national focal points in each of the Member States.
Characteristic of a substance to irrigate quickly the tissues. THC is highly fat-soluble.
Theory suggesting a sequential pattern in involvement in drug use from nicotine to alcohol, to cannabis and then “hard” drugs. The theory rests on a statistical association between the use of hard drugs and the fact that these users have generally used cannabis as their first illicit drug. This theory has not been validated by empirical research and is considered outdated.
Time needed for the concentration of a particular drug in blood to decline to half its maximum level. The half-life of THC is 4.3 days on average but is faster in regular than in occasional users. Because it is highly fat soluble, THC is stored in fatty tissues, thus increasing its half life to as much as 7 to 12 days. Prolonged use of cannabis increases the period of time needed to eliminate is from the system. Even one week after use, THC metabolites may remain in the system. They are gradually metabolised in the urine (one third) and in feces (two thirds). Traces on inactive THC metabolites can be detected as many as 30 days after use.
Resinous extract from the flowering tops of the cannabis plant and transformed into a paste.
Various international conventions have been adopted by the international community since 1912, first under the Society of Nations and then under the United Nations, to regulate the possession, use, production, distribution, sale, etc., of various psychotropic substances. Currently, the three main conventions are the 1961 Single Convention, the 1971 Convention on Psychotropic Substance and the 1988 Convention against Illicit Traffic. Canada is a signatory to all three conventions. Subject to countries’ national constitutions, these conventions establish a system of regulation where only medical and scientific uses are permitted. This system is based on the prohibition of source plants (coca, opium and cannabis) and the regulation of synthetic chemicals produced by pharmaceutical companies.
International Narcotics Control Board (INCB)
The Board is an independent, quasi-judicial organisation responsible for monitoring the implementation of the UN conventions on drugs. It was created in 1968 as a follow up to the 1961 Single Convention, but had predecessors as early as the 1930s. The Board makes recommendations to the UN Commission on Narcotics with respect to additions or deletions in the appendices of the conventions.
Disturbance of the physiological and psychological systems resulting from a substance. Pharmacology generally distinguishes four levels: light, moderate, serious and fatal.
Cigarette of marijuana or hashish with or without tobacco. Because joints are never identical, scientific analyses of the effects of THC are more difficult, especially in trying to determine the therapeutic benefits of cannabis and to examine its effects on driving.
Regulatory system allowing the culture, production, marketing, sale and use of substances. Although none currently exist in relation to « street-drugs » (as opposed to alcohol or tobacco which are regulated products), a legalisation system could take two forms: without any state control (free markets) and with state controls (regulatory regime).
Mexican term originally referring to a cigarette of poor quality. Has now become equivalent for cannabis.
Substance which can induce stupor or artificial sleep. Usually restricted to designate opiates. Sometimes used incorrectly to refer to all drugs capable of inducing dependence.
Office of national drug control policy (ONDCP) USA
Created in 1984 under the Reagan presidency, the Office is under the direct authority of the White House. It coordinates US policy on drugs. Its budget is currently US $18 billion.
Substance derived from the opium poppy. The term opiate excludes synthetic opioids such as heroin and methadone.
Historically, the term designates the period of national interdiction of alcohol sales in the United States between 1919 and 1933. By analogy, the term is now used to describe UN and State policies aiming for a drug-free society. Prohibition is based on the interdiction to cultivate, produce, fabricate, sell, possess, use, etc., some substances except for medical and scientific purposes.
Substance which alters mental processes such as thinking or emotions. More neutral than the term “drug” because it does not refer to the legal status of the substance, it is the term we prefer to use.
Psychotropic substance (see also psychoactive)
Much the same as psychoactive substance. More specifically however, the term refers to drugs primarily used in the treatment of mental disorders, such as anxiolytic, sedatives, neuroleptics, etc. More specifically, refers to the substances covered in the 1971 Convention on Psychotropic Substances.
Control system specifying the conditions under which the cultivation, production, marketing, prescription, sales, possession or use of a substance are allowed. Regulatory approaches may rest on interdiction (as for illegal drugs) or controlled access (as for medical drugs or alcohol). Our proposal of an exemption regime under the current legislation is a regulatory regime.
Society of Nations (SDN)
International organisation of States until 1938; now the United Nations.
Main active component of cannabis, D9-THC is very fat-soluble and has a lengthy half-life. Its psychoactive effects are modulated by other active components in cannabis. In its natural state, cannabis contains between 0.5% to 5% THC. Sophisticated cultivation methods and plant selection, especially female plants, leads to higher levels of THC concentration.
Reduced response of the organisms and increased capacity to support its effects after a more or less lengthy period of use. Tolerance levels are extremely variable between substances, and tolerance to cannabis is believed to be lower than for most other drugs, including tobacco and alcohol.
Characteristic of a substance which induces intoxication, i.e., “poisoning”. Many substances, including some common foods, have some level of toxicity. Cannabis presents almost no toxicity and cannot lead to an overdose.
United Nations Drug Control Program (UNDCP)
Established in 1991, the Programme works to educate the world about the dangers of drug abuse. The Programme aims to strengthen international action against drug production, trafficking and drug-related crime through alternative development projects, crop monitoring and anti-money laundering programmes. UNDCP also provides accurate statistics through the Global Assessment Programme (GAP) and helps to draft legislation and train judicial officials as part of its Legal Assistance Programme. UNDCP is part of the UN Office for Drug Control and the Prevention of Crime.
World Health Organization (WHO)
The World Health Organization, the United Nations specialized agency for health, was established on 7 April 1948. WHO’s objective, as set out in its Constitution, is the attainment by all peoples of the highest possible level of health. Health is defined in WHO’s Constitution as a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.
The question of illegal drugs is one of the societal issues that can readily become a moral and indeed emotional matter. Who among us does not have an opinion on drugs and "drug addicts"? Who does not have a parent, friend, young cousin or uncle who has had personal problems at school or at work, perhaps even run-ins with the police and the criminal justice system, as a result of using drugs? Who has not heard of drug traffickers, veritable anti-heroes, whom we find both repulsive and fascinating, all of whom we consider the worst kind of scum, who grow rich by selling adulterated and dangerous products to our children? Every day brings its share of newspaper articles and television news reports on anti-drug operations conducted by police forces: sometimes massive, and almost always spectacular arrests, huge seizures of drugs, cash and weapons of all kinds. Every day we also see articles on money laundering and the corruption of honest men through the illegal drug market. Even closer to home, the events of September 11 shed new light on the ambiguous and alleged relations between the drug trafficking world and the financing of "terrorist" networks.
Security is now the key buzz word.
The drug issue involves the political values of life in society. In what kind of society do we want to live? What place should, and can, drugs occupy in it? For some, drugs are substances that keep individuals in a state of dependence. Using them weakens their moral fibre, makes them more malleable, more subject in particular to (bad) outside influences, and reduces their ability to be productive individuals in society. If they don't bring about human downfall, drugs do prevent the full achievement and realization of human potential. For others, drugs are tools to achieving greater productivity, being more competitive and thus better positioned in a hyper-competitive world. The obvious example of this is doping among elite athletes. For still others, drugs are a preferred means of entering into contact with other aspects of their being, spiritual, artistic aspects, or simply peace and serenity. The history of art is full of examples. These almost diametrically opposed conceptions often leave little room for dialogue and result in considerable prejudice on all sides.
In the past 20 years, we have introduced stringent anti-tobacco programs. And we have definitely achieved a measure of success. We have also adopted stricter measures to put a stop to impaired driving. Here too, we believe we have made significant inroads. The fight against drugs is a kind of metaphor for the type of social policies we expect of governments: policies based on the improved well-being of citizens.
Of course, everything depends on what each person means by the word "drugs". The term is clearly not neutral: it elicits varying degrees of fear and anxiety. And we do not necessarily all include the same substances under that heading. The examples cited above concern illegal drugs, alcohol, tobacco and performance-enhancing substances. A number of psychotropic drugs could also be included. And yet, when we think of drugs, the first things that come to mind are illegal substances: cocaine and heroin, of course, crack and amphetamines for the more sophisticated among us, and, obviously, cannabis and hashish. However, an increasing number of scientific studies and government policies strive to show the interrelationships between different drugs, discussing at-risk behaviours in relation to each drug. As will be seen below, the mere fact of considering alcohol as one drug among others signifies a genuine cultural revolution in a country such as France, a major producer and consumer of wine. And tobacco companies would certainly object to comparing nicotine to heroine.
The members of the Senate Special Committee on Illegal Drugs addressed the question of drugs as everyone else does, that is to say with the same preconceptions, with the same basic attitudes, the same fears and the same anxieties. Of course, we had at our disposal the study which a number of our colleagues had conducted in 1996 on government legislation dealing with illegal drugs, which had enabled them to hear a number of witnesses over several months. We also knew at the outset that research expertise would be available to us, but let there be no mistake, it is nevertheless difficult to go beyond attitudes and opinions that have long been taken for granted. Whether one is in favour of enhanced enforcement or, on the contrary, greater liberalization, opinions tend to resist the facts, particularly since, in a field such as this, the production of facts, even through scientific research, is not necessarily a neutral enterprise. It follows then that we too, like you, have our prejudices and preconceptions. And together we must make the effort to go beyond them. That is one of the objectives of this report.
Our report is divided into four parts. Part I outlines our general orientations and comprises four chapters. Chapter 1 describes the Committee's origins and mandate, while Chapter 2 outlines the work we have undertaken, explaining certain choices we have made. Chapter 3 is central to the entire architecture of the report and, as it were, provides a "reading grid". In it, we state what we have called the guiding principles for a public policy on illegal drugs. Lastly, Chapter 4 offers a broad overview of the present situation with regard to illegal drugs, placing our efforts in the context of the changes that are occurring in various countries and on the international scene more generally.
Part II is the heart of our report. It provides a comprehensive outline of scientific research findings and the opinions of the experts we heard. Chapter 5 describes the plant from which smokable cannabis and hashish are derived and the pharmacological properties of the cannabinoids, which are their active ingredient. It also provides some figures on sources of production of cannabis and its main trafficking routes. Chapter 6 contains information on uses and users: who uses cannabis, in what circumstances, what do we know about their user trajectories and, in particular, the highly controversial question as to whether cannabis use leads to the use of other drugs. Chapter 7 describes the physiological and psychological effects and consequences of cannabis, focusing as well on the important issues of cannabis dependence and tolerance. Chapter 8 deals specifically with the important issue of driving under the influence of cannabis. Given the current debates on the issue of therapeutic uses of cannabis, Chapter 9 reviews existing findings. Chapter 10, the last chapter in the section, addresses public opinion, outlining public opinion polls and surveys, reporting also what we were told in the consultations we held in the regions following the publication of our discussion paper in May 2002.
Part III concerns public policy and practices in Canada. When we think of drugs, we immediately think of the legislation governing them. In so doing, we forget that the law is never more than one of a number of elements involved in a public policy. Chapter 11 focuses on the National Drug Strategy, which was in effect in Canada between 1987 and 1997. It must be considered since only in this period in the history of our public drug policies was an attempt made to adopt a comprehensive and integrated strategy. Chapter 12 then describes the history of Canadian drug legislation. Chapter 13 examines the current regulatory regime for therapeutic uses of cannabis. The following four chapters deal with the various components of the implementation of the public policies on illegal drugs. Chapters 14 and 15 discuss respectively police practices and legal practices central to the implementation of those statutory provisions, while Chapters 16 and 17 briefly examine prevention practices and health care practices. Finally, in Chapter 18, we conclude this third part of our report with a series of three observations on these practices, examining in particular the economic costs and unexpected consequences of current public policies.
Part IV addresses public policy options. When it comes to drugs, we cannot avoid the architecture of the international conventions that have governed these substances since 1912. This is the subject of Chapter 19. However, beyond this global framework, countries have chosen different approaches to respond to drug related issues and problems. Chapter 20 describes in detail the public policy frameworks in seven industrialized countries. Finally, chapter 21 is key to understanding our recommendations and their links with our guiding principles. This chapter shows that the criminal law is but one of the tools of public policy in this field. It then distinguishes between the various legal options and clarifies heavily loaded terms such as decriminalisation and legalisation. Finally, based on the accumulated knowledge, our reading of public opinion and our principles, this chapter explains our framework for a comprehensive public policy on cannabis.
Based on all this knowledge gathered, we state a certain number of conclusions and offer our recommendations, which express the fundamental premise underlying our report: in a free and democratic society, which recognizes fundamentally but not exclusively the rule of law as the source of normative rules and in which government must promote autonomy insofar as possible and therefore make only sparing use of the instruments of constraint, public policy on psychoactive substances must be structured around guiding principles respecting the life, health, security and rights and freedoms of individuals, who, naturally and legitimately, seek their own well-being and development and can recognize the presence, difference and equivalence of others.
We are aware, as much now as we were at the start of our work, that there is no pre-established consensus in Canadian society on public policy choices in the area of drugs. In fact, as we have seen, there are few societies where there is a broadly shared consensus among the general public and between the public and experts. We are also aware, perhaps more so than at the outset, that the question of illegal drugs, viewed from the standpoint of the public policies that govern them, is part of a broader international context and that we cannot think or act in isolation. We are aware that our proposals are provocative, that they may meet with some resistance. However, we are convinced that Canadian society has the maturity and openness to welcome this informed debate.
In this, as in so many other areas of public policy, we say that action must be taken and that the knowledge accumulated fully supports the orientations we propose, but that first and foremost the sharing of knowledge and public debate are both necessary and desirable in the democratic life in our society.
On April 16, 2000, pursuant to a motion by Senator Pierre Claude Nolin, the Senate adopted the following order of reference:
That a Special Committee of the Senate be appointed to reassess Canada's anti-drug legislation and policies, to carry out a broad consultation of the Canadian public to determine the specific needs of various regions of the country, where social problems associated with the trafficking and use of illegal drugs are more in evidence, to develop proposals to disseminate information about Canada's anti-drug policy and, finally, to make recommendations for an anti-drug strategy developed by and for Canadians under which all levels of government work closely together to reduce the harm associated with the use of illegal drugs;
That, without being limited in its mandate by the following, the committee be authorized to:
· Review the federal government's policy on illegal drugs in Canada, its effectiveness, and the extent to which it is fairly enforced;
· Develop a national harm reduction policy in order to lessen the negative impact of illegal drugs in Canada, and make recommendations regarding the enforcement of this policy, specifically the possibility of focusing on use and abuse of drugs as a social and health problem;
· Study harm reduction models adopted by other countries and determine if there is a need to implement them wholly or partially in Canada;
· Examine Canada's international role and obligations under United Nations conventions on narcotics and the Universal Declaration of Human Rights and other related treaties in order to determine whether these treaties authorize it to take action other than laying criminal charges and imposing sentences at the international level;
· Explore the effects of cannabis on health and examine whether alternative policy on cannabis would lead to increased harm in the short and long term;
· Examine the possibility of the government using its regulatory power under the Contraventions Act as an additional means of implementing a harm reduction policy, as is done in other jurisdictions;
· Examine any other issue respecting Canada's anti-drug policy that the committee considers appropriate to the completion of its mandate.
Upon adoption of the motion, the Committee chairman asked the Senate to name the members who would form the Committee. The following senators were thus appointed: Pierre Claude Nolin, Chair, Sharon Carstairs, Deputy Chair, Colin Kenny, Lucie Pépin and Eileen Rossiter.
The Committee thus constituted approved a work program and a budget, which it then submitted to its peers in the upper Chamber. The Committee's budget was approved in June 2000, thus making it possible to hire the scientific and administrative personnel who would support its work. The Committee organized its program of hearings of expert witnesses and held its first hearings on October 16, 2000.
However, the Committee was dissolved when the general election was called in October 2000, and restruck on March 15, 2001, but with an amended mandate: the scope of its work was now restricted to cannabis. The Committee's mandate in its present form therefore reads as follows:
That a special committee of the Senate be struck to examine:
· The approach taken by Canada to cannabis, its preparations, derivatives and similar synthetic preparations, in context;
· The effectiveness of this approach, the means used to implement it and the monitoring of its application;
· The related official policies adopted by other countries;
· Canada's international role and obligations under United Nations agreements and conventions on narcotics, in connection with cannabis, the Universal Declaration of Human Rights and other related treaties; and
· The social and health impacts of cannabis and the possible consequences of different policies;
That the special committee consist of five senators, three of whom shall constitute a quorum;
That the Honourable Senators Banks, Kenny, Nolin, Rossiter and (a fifth Senator to be named by the Chief Government Whip) be named to the committee;
That the committee be authorized to send for persons, papers and records, to hear witnesses, to report from time to time, and to print from day to day such papers and evidence as may be ordered by it;
That the briefs and evidence heard during consideration of Bill C‑8, An Act respecting the control of certain drugs, their precursors and other substances and to amend certain other Acts and repeal the Narcotic Control Act in consequence thereof, by the Standing Senate Committee on Legal and Constitutional Affairs during the 2nd Session of the 35th Parliament be referred to the committee;
That the documents and evidence compiled on this matter and the work accomplished by the Special Senate Committee on Illegal Drugs during the 2nd Session of the 36th Parliament be referred to the committee;
That the committee be empowered to authorize, if deemed appropriate, the broadcasting on radio and/or television and the coverage via electronic media of all or part of its proceedings and the information it holds;
That the committee present its final report no later than August 31, 2002; and that the committee retain the powers necessary to publicize its findings for distribution of the study contained in its final report for 30 days after the tabling of that report;
That the committee be authorized, notwithstanding customary practice, to table its report to the Clerk of the Senate if the Senate is not sitting, and that a report so tabled be deemed to have been tabled in the Senate.
The Committee's mandate is a continuation of the history of drug legislation passed by the Parliament of Canada in 1996, the Controlled Drugs and Substances Act. That legislation, which revised drug statutes in Canada by repealing the Narcotic Control Act and certain sections of the Food and Drugs Act, grew out of a relatively lengthy history of which we will provide only a brief overview here, since Chapter 12 is devoted to a detailed history of drug laws in Canada.
Bill C‑7, which was tabled by the newly elected government in February 1994, proposed a revision of illegal drug legislation, in particular to make it more coherent and to render national legislation consistent with Canada's obligations under the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances signed in 1988. Following prorogation, it was reintroduced in the House of Commons at the start of the 2nd Session, on March 6, 1996, as Bill C‑8. It was adopted by the House on the same day and was referred to the Standing Senate Committee on Legal and Constitutional Affairs which conducted a detailed study of it and heard a number of witnesses.
In its report, the Senate Committee on Legal and Constitutional Affairs proposed 15 amendments as well as the striking of a joint parliamentary committee of the House of Commons and the Senate, which would review Canada's drug policy. Bill C‑8 was passed and received Royal Assent on June 20, 1996, and is thus Canada’s current illegal drug legislation.
While this legislation was being studied by the Sub-Committee on Bill C-7 of the Standing Committee on Health of the House of Commons in 1994 and 1995, "the vast majority of witnesses (…) were highly critical of the bill. The most general criticisms concerned three points: first, the lack of basic principles or an express statement as to the purpose of the act; second, the fact that the bill followed the prohibition system of the 1920s, subsequently codified in the Narcotic Control Act, and third, the absence of any emphasis on damage reduction and prevention criteria which form the basis of Canada's Drug Strategy." Despite the amendments made by the Sub‑Committee of the House, the testimony of the persons heard by the Senate Committee was equally critical. Witnesses noted that the Act did not categorize drugs on the basis of the dangers they represented, that it did not contain any specific, rational criteria and that it was impossible, particularly in view of the Act's complexity, to determine how it would be implemented in practice.
All of these criticisms led the Senate Committee to "propose energetically" the creation of a Joint Committee of the House of Commons and the Senate that would review all Canadian drug legislation, policies and programs.
However, the 1997 federal election rendered this suggestion moot. Senator Nolin, convinced of the need for action and faced with the inaction of the House of Commons, thus tabled his first motion in 1999 - that a Senate Committee be struck and given a mandate to examine the legislation, policies and programs on illegal drugs in Canada. The motion was adopted by the Senate in April 2000. In support of the motion, Senator Nolin had commissioned a study on drugs and drug policy in Canada. The purpose of this study, in particular, was "to assist in analyzing policy on the control of drug use from a new angle, without being influenced by the often unfounded prejudices that Canadian society has of drug addicts". Senator Nolin wrote further that a Senate Special Committee "would be charged, first, with transmitting to the Canadian public accurate and objective information on the use of illegal drugs, their effects on individuals and society and control measures in place. Second, it could conduct consultations on desirable amendments that Parliament should make to legislation on the control of drug use in the years to come."
Our mandate comprises four components:
1. Examine the federal government policy on cannabis, the means used to implement it, its control and its effectiveness;
2. Examine the policies and approaches followed in other countries;
3. Examine the implications of the international conventions and treaties; and
4. Examine the social and health effects of cannabis and the possible impacts of different policies.
We chose to interpret our mandate in the broadest manner possible. Some asked us whether it was our ambition to be a second Le Dain Commission. Others told us we did not have the resources to be so exhaustive and rigorous in our examination. Still others regretted the fact that we were restricted in the first phase of our work to cannabis, as though the various substances could be separated and their users classified accordingly.
Chapter 2, on our work program, will show that we were motivated by a desire to be rigorous and to cast our net wide. We are nevertheless aware of the scope and limits of our role as a Senate Committee, all the more so since the means put at our disposal were as limited as our ambition was generous.
The question of the distinction among substances is more problematical for various reasons. First, recent research shows that it is more important to distinguish between user behaviours than between substances. Based on this view, it is thus not so much the drugs themselves that should be distinguished as the different ways in which they are used and the environments in which those uses take place, and hence the risks a certain number of users run. Here we will discuss at-risk behaviours, which are not determined so much by the characteristics of the substances as by those of the users and the conditions in which they are used. Second, the distinctions between substances have no clear scientific basis. Thus, entirely different classifications are arrived at depending on how one views the pharmacological properties of the various drugs, their effects on physical health and their origins or cultivation methods. And third, a comprehensive and integrated drug policy cannot be put forward on the basis of this distinction between substances.
However, the result of this decision, which forced us to limit our work to cannabis, was something more than just disadvantages and limits. We should admit, first of all, that embracing the entire field of illegal drugs with so little in the way of resources would have been a monumental undertaking. And as recent commissions of inquiry and international scientific conferences have chosen, as we did, to survey the state of knowledge on cannabis, we were able both to make use of their work and to compare it to our own. Lastly, and more particularly, experiments conducted in other countries, in particular the Netherlands, demonstrate the merit in treating cannabis separately, in a "market separation" approach.
In short, while restricting our work to cannabis, we invited the witnesses not to limit themselves to it alone and to show us the links between it and the various at-risk behaviours of users when they occur. We also bore in mind the necessity of addressing drugs in the context of an integrated policy, particularly with regard to the major parameters of public policy, legislation or knowledge infrastructure, for example.
Designing, developing and implementing public policy is the very essence of the role of government, of political life in the broad sense. This fundamental activity presupposes a choice between various alternatives and, in a democratic system, an explanation and justification of the choice that has been made. A public policy, regardless of its object, stands at the confluence of various influences: partisan political considerations of course, economic considerations as well, even increasingly so. However, if it lays claim to a certain degree of rationality and citizen support, a public policy must also be based on rigorous and objective data, preferably from scientific research, and on an understanding of society's expectations and resistance. Lastly, a public policy, in our view, should be founded on, and at the same time promote, guiding principles. By that, we mean a clear and express vision of the principles that guided the choice among various alternatives and that reflect a conception of government and of the relationship between government institutions and civil society.
From the outset, our Committee chose to remain above partisan issues. This is the advantage of belonging to the Senate, which makes it possible to take, on various questions, a more objective view not influenced by concern for re‑election. Economic considerations affected us in two different ways. The first, a trivial matter, was related to the budgets allocated to us, which necessarily limited the scope of our work, the second to the economic impact of various public policy options which are discussed in Chapters 18 and 21.
Our work thus focused on the other three sources that should influence a choice of public policy on illegal drugs: knowledge, public opinion and guiding principles.
At the Committee's public hearings, the Chair presented the research program as follows:
In order to fully satisfy the mandate conferred upon the committee, the committee has adopted an action plan. This plan centres around three challenges. The first challenge is that of knowledge. We will be hearing from a wide variety of experts, both from Canada and afar, from academic settings, the police, legal specialists, medical specialists, the government sector and social workers. (…)
The second challenge, surely the most noble challenge, is that of sharing knowledge. The committee hopes that Canadians from coast to coast will be able to learn and share the information that we will have collected. In order to meet this challenge, we will work to distribute this knowledge and make it accessible to all. We would also like to hear the opinions of Canadians on this topic and in order to do so, we will be holding public hearings in the spring of 2000 throughout Canada.
And finally, the third challenge for this committee will be to examine and identify the guiding principles on which Canada's public policy on drugs should be based.
This chapter describes the various measures we took to ascertain the state of knowledge and public opinion on cannabis and to determine guiding principles. Chapter 3 presents our guiding principles in detail, while Parts II and III outline all the information we were able to gather. First, however, a few words on two working principles which we considered essential to the complete realization of this Committee's mandate.
In view of the formulation of our mandate, which included an obligation to provide Canadians with objective and rigorous information, we have emphasized rigour and openness throughout the entire process.
It was all the more imperative that we do our work in a rigorous manner since opinions on all sides of the illegal drugs issue are strong and often categorical. Like everyone else, we too had our opinions and preconceptions regarding illegal drugs when we began our work. How could it be otherwise? Like you, we have children. We have had friends and relatives whose lives have been ruined by addiction problems. Our study of the government bill (C-8), which afforded us the opportunity to hear from a certain number of stakeholders and experts, provided us with information, of course, but also revealed major gaps in our knowledge. It then seemed clear to us that opinions were often based on partial and at times incorrect information. On what basis can it be said that cannabis leads to the use of other drugs? What is the empirical basis that supports the notion of cannabis dependence? What leeway does a nation have under the provisions of the international conventions governing the production, trafficking in and possession of illegal drugs?
One cannot assert both one thing and its opposite. However, on the subject of drugs, and specifically cannabis, such very assertions were made to us, and with conviction. How to determine who was right? And to tell opinions from facts?
These findings convinced us that the highest degree of rigour was necessary in the course of our work, as will be seen in the next section.
But rigour is not enough. For this information to reach Canadians, we could not reserve it for our exclusive use, hence the second principle that guided us: openness. From the outset, we insisted that all our work be made available as soon as possible on our Web site. There was nothing new in posting witnesses' testimony to a Web site, since this is common practice for most parliamentary committees. However, in addition to this testimony, we also posted a number of studies we had commissioned, many from the Parliamentary Research Branch of the Library of Parliament. These studies, which are often not made public until after a Committee's report is published, were made available to Canadians as they were completed.
Being legislators, we would of course like our work to have an impact on public policy. We also believe it important to provide Canadians with information that is as factual as possible to allow them to benefit from it.
When the Commission of Inquiry into the Non-medical Use of Drugs conducted its work in the early 1970s, like most commissions of inquiry, it had a large staff and budgets enabling it to carry out a vast research program. That was all the more necessary since, at the time, no large pool of knowledge on illegal drugs existed. Virtually nothing was known about the active ingredients of cannabis or even about the pharmacological properties of more traditional drugs, such as heroin and cocaine, and little was known about user trajectories; criminological studies on the relationship between drugs and crime were virtually non-existent, and public policy impact studies were in their earliest stages.
To say the situation has completely changed would be an understatement. In all scientific disciplines, from molecular biology to anthropology, countless studies have been conducted over the past 25 years on illegal drugs in general, and cannabis in particular. They come from the United States, of course, but also from Australia, England, France, Switzerland, Italy, Germany, Sweden, Finland and Denmark to name only a few. They have been conducted by academics interested in these questions on a purely individual basis, by pharmacological laboratories and by research groups within organizations operating in the drug addiction field and in the context of scientific commissions appointed by the governments of various countries.
The Committee asked the Parliamentary Research Branch to prepare a survey of illegal drug research under way or completed in the past five years at the federal level and in the provinces and territories. That survey, which lays no claim to being exhaustive, but offers an overview of the extent and scope of recent research, clearly shows that, despite minuscule budgets compared to those allocated in the United States, research on illegal drugs is doing relatively well in Canada. We can only imagine that it would be a formidable task to survey the studies under way in the United States on the question of illegal drugs.
Ascertaining the state of knowledge on the subject thus first meant finding the means to prepare a rigorous synthesis. To that end, the Committee adopted a research program focusing on all aspects. However, as it lacked the financial resources to produce an extensive series of studies, and also wishing to ensure that the information was broadly transmitted to the public, the Committee designed a program of public hearings of expert witnesses who would likely be able to assist in more clearly determining the state of current knowledge on the subject.
The Committee approved a research program divided into five major axes of knowledge, sub-dividing each one into specific issues:
v The socio-historical, geopolitical, anthropological, criminological and economic issues of the use and regulation of cannabis. This axis of work will establish the context for a better understanding of modern practices in the production and use of cannabis. The main questions are:
· What are the key historical patterns in the production, use, consumption and circulation of cannabis?
· Is there a relationship between cannabis use and religious or cultural practices?
· What are the relationships between the production, use, consumption, and circulation of cannabis and the socio-demographic characteristics of populations? More specifically, what do we know about cannabis users?
· What are the key domestic and international drug routes and how are they related to national and international political and policy issues?
· What are the relationships between various drugs and how have current distinctions between licit and illicit drugs been created?
· What are the relationships between the production, use, consumption, circulation and regulation of drugs and criminality?
· What are the key economic issues in the production, use, consumption, circulation and regulation of cannabis?
The medical and pharmacological aspects of the consumption, use and regulation of cannabis. The use of cannabis for medicinal purposes occupies an important place in current debates on regulatory systems governing it. The idea here is to produce state of the art reviews on knowledge related to the physiological and psychological effects of various drugs. The key research questions are:
· How has cannabis been used for medicinal purposes?
· What is the state of knowledge on the therapeutic properties of cannabis?
· What is the state of knowledge on the physiological effects of cannabis, especially in respect of addictive capacity?
· What is the state of knowledge on the psychological effects of cannabis, especially in respect of dependence?
· What is the current state of knowledge on the effects of various forms of treatment for dependence and addiction problems, their impacts and their costs?
v The legal aspects from a national perspective. Federal legislative mechanisms exist in Canada to control the use, consumption, production and circulation of drugs, even though treatment and other areas, for example, are under the jurisdiction of the provinces and territories. Additionally, the courts have interpreted the relevant acts and regulations, particularly regarding policing powers. Overall, this section will examine the legislative and control arsenal, its rationality and objectives, from the standpoints of criminology, law, history, sociology and economics. The key questions guiding this third axis of the research program are:
· What are the history of and logic to the different regulatory and control modes of cannabis in Canada?
· What are the history and logic behind criminalization and penalization in Canada?
· What is the state of case law in respect of the legislative and regulatory arsenal relating to the production, use, consumption and circulation of drugs in Canada?
· What is the state of case law on police powers and sentences in relation to drug issues?
· What are the effects of criminalization and penalization in matters of drugs on the justice system (and its various components), the prison system and the criminal careers of delinquents?
· What are the economic and social costs of the various modes of regulation, control and criminalization in matters of drugs?
· What are the relations among justice and public health policies and government departments in matters of drugs?
v The legal and political issues in an international perspective. Canada is a party to various treaties and conventions on the production, trafficking and possession of psychoactive substances. It was important to assess how precise and binding these instruments are on domestic legislation. Also, these treaties and conventions are themselves part of a larger array of international instruments, especially on human and political rights; it was essential to determine the interrelationships between these instruments. Finally, drugs are an issue in international relations, in particular in relations between Canada and the United States. Although not legally binding, these factors may influence policy reorientations and will thus be interesting to look at. The key questions are:
· What are the main treaties and conventions in matters of drugs, their history and their provisions?
· What constraints, if any, do these treaties and conventions impose on Canada?
· Beyond treaties and conventions, what other aspects of international relations have implications for Canada in adopting a regulatory mode in matters of drugs?
· What are the regulatory approaches adopted by other countries, what are their impacts, and to what extent are they pertinent for Canada?
v The ethical issues and Canadians' moral and behavioural standards. Ethical issues and knowledge of the standards adopted by Canadians are also relevant in determining policy and legislative orientations. The key questions are:
· What are the ethical principles relevant to examining issues related to the production, use, consumption, circulation and control of drugs?
· What are the pertinent ethical principles in relation to the medicinal use of cannabis and the medical and psychological treatment of drug addictions and dependence?
· What are the current norms of behaviour of Canadians in relation to cannabis production, consumption, use and circulation?
· What are the norms of tolerance of Canadians?
· To what extent do ethical principles and norms of tolerance in the population accord?
As can be seen, the undertaking was a vast one. In an attempt to answer these questions in the most effective and most economical manner possible, the Committee agreed to perform two tasks concurrently: conduct a research program and hear expert witnesses–complementary activities.
Lacking both a research budget that would have enabled us to commission studies and a full-time research staff, we asked the Parliamentary Research Branch to produce syntheses and analyses of the relevant literature. The research is divided into three major categories:
v Legal studies: analyses of case law and international conventions and treaties;
v Socio-criminological studies: analyses of the relationship between drugs and crime, of developments in denunciations, charges and sentences; cannabis use practices; economic aspects of drugs;
v Comparative studies: syntheses of public policies in certain countries.
We also received a synthesis of the literature on the physiological and psychological effects of cannabis. Lastly, we commissioned a qualitative study on Canadians' opinions and attitudes by a public survey firm.
In all, the Committee received 23 reports and benefited from summaries of work conducted in other countries, particularly through its attendance at international conferences.
Aware of the research program's limits, and particularly of the need to question some of the researchers whose work was cited in the studies conducted and to compare their analyses with those of other researchers and with the positions of other expert organizations (police forces, for example), we conducted a series of hearings of expert witnesses in Ottawa and certain other cities across the country.
The hearings began on October 16, 2000 during the 36th Parliament and resumed on April 30, 2001, during the 37th. They ended on June 10 of this year with presentations from the principal departments responsible for illegal drug policy in Canada. As far as possible, the Committee maintained a rate of one hearing every two weeks.
In every case, the Committee asked the witnesses to prepare a written brief responding to specific questions. The Committee did not expect the experts to give their opinion or tell it what to think. The expert witness hearings were part of an effort to increase members' knowledge. Knowing that our ability to conduct studies was limited and acknowledging that research data were incomplete, if not contradictory, we wanted to take full advantage of this exceptional opportunity to clarify and better disseminate certain findings.
Who were these experts? How did the Committee select them? These are important questions to the extent that a certain number of stakeholders questioned the Committee's credibility as a result of certain choices it made. First, we wanted to cover each of the major fields of investigation. Consequently, we heard sociologists and lawyers, psychologists and physicians, police officers and criminologists. Second, we wanted to hear as many Canadian experts as possible from those various research areas. Third, for the most part, we selected experts known for their publications in the field. The researchers included Professors Harold Kallant and Marie‑Andrée Bertrand, who were closely involved in the work of the Le Dain Commission 30 years ago and researchers closely associated with such major institutes as the Ontario Centre on Mental Health and Addiction (the former Addiction Research Foundation) and the Canadian Centre on Substance Abuse. Lastly, we were interested in inviting experts who, in certain cases, could speak on behalf of major institutions such as the Canadian Medical Association, the Federation of Canadian Municipalities, the Canadian Association of Chiefs of Police and the Royal Canadian Mounted Police. It will be seen from a close look at the list of experts heard and the subjects of their presentations that they coincided with all our areas of concern.
When the hearings focused on the situation in other countries, we sought to strike a balance between those persons who could describe public policy and researchers whose work was recognized in their country and internationally. As the number and length of our hearings were limited, we had to make choices. At most we could hear four persons per hearing. As a general rule, we tried to choose a senior government official and three researchers.
One could also question our choice of countries heard: France, the Netherlands and Switzerland. We had initially intended to hear representatives from England, particularly because that country's public drug policies have been examined in many high-quality studies. Unfortunately, changes under way in there prevented us from holding those hearings. Similarly, we did not have enough time to hear from Sweden or Australia. However, we had the Parliamentary Research Branch prepare syntheses on each of those countries.
The case of the United States deserves particular attention. Chapter 20 describes American drug policy. However, at our hearings on the United States, which is much more complex and less monolithic than is often thought, we were unable to hear from those responsible within the U.S. government, although not for lack of trying. The Director of the prestigious National Institute on Drug Abuse (NIDA) had tendered his resignation a week before the scheduled date of the hearings, after accepting our invitation. And the Director of the Office of National Drug Control Policy in Washington declined our invitation. In short, we are dissatisfied at having been unable to hear the senior officials responsible for drug policy in the United States. Nevertheless, on June 10 2002, we held a private meeting with Dr. Hanson, the new Director of NIDA, and on June 11 we had an in camera meeting with Mr. Walters, the Director of ONDCP and some of his key advisors in Ottawa.
In all, the Committee held more than 40 days of public hearings in Ottawa and other Canadian cities, hearing more than 100 persons from all backgrounds.
One further note. It can be said that we did not handle the testimony of researchers and those of practising experts in the same way. That is true in part. To the extent that researchers presented data lending itself to critical review, containing verifiable data, which does not mean proof, on specific subjects, making it gradually possible to answer our empirical questions, we attached a certain degree of importance to them, which will be reflected in the passages cited throughout this report. The information from practitioners is not in itself any less significant or important in our view. However, the practitioners more often tended to express opinions than to present study data. They also did not have the same concern to give precise answers to the questions put to them. Those opinions are important, as are those of the Canadians whom we heard and who wrote to us, but they are nevertheless opinions, not cold hard data.
Faced with this massive amount of information, the greatest challenge was to synthesize it. The scientific literature on all of the topics addressed, particularly those concerning the effects of cannabis and users and types of use, is abundant. Experts reported to us on their research and that of other researchers. The reports prepared at our request are full of information, and our research team stayed on the look‑out for recent publications and attended various international scientific conferences. In short, the task was to make sense of all this data, which, in addition, contained contradictory information at times.
At the same time, the data on certain subjects are still fragmentary. This is the case of data on trends in the use of cannabis and other drugs in Canada (Chapter 6), on the specific nature of therapeutic applications of cannabis, evidence of which often does not go beyond the anecdotal (Chapter 9) and simply on police practices (Chapter 14) or the decisions of Canadian courts (Chapter 15).
Synthesizing this information thus also meant making choices. While fully respecting the diverse range of perspectives, we nevertheless had to draw conclusions, accepting that some of the conclusions might be preliminary and that they might be contradicted by subsequent research. It is in the very nature of science that it is constantly in motion, and we accept that state of affairs. As a result, we are aware that we have left ourselves open to criticism. So much the better, we might add, first, because criticism will stimulate public debate, second, because it will undoubtedly pique the curiosity of researchers, who will verify some of our findings empirically, thus improving the state of our present knowledge, and, third, because our choices will be made plain in light of the guiding principles that are outlined in the next chapter.
Public opinion is hard to grasp, first, because it does not exist in itself but is created by the manner in which the pollsters' questions are asked, by the manner in which the media report a debate, and by a broader context of representations the actual determinants of which are never precisely known.
Understanding public opinion on a complex subject such as drugs is not a simple matter such as discovering what type of laundry detergent respondents will buy at the supermarket. A seemingly simple question quickly becomes complex once Pandora's box is opened. A public opinion poll may ask the public whether they are in favour of decriminalizing cannabis. However, do we know whether every respondent understands the term "decriminalization" in the same way? The complex nature of this term is addressed in Chapter 21. Do we know whether respondents are for or against decriminalization for the same reasons? And once it has been determined that a majority is for or against it, do we know how that public policy choice would be implemented?
If it is the case, taking opinions into account is a necessity in a democracy. For us, taking opinions into account meant we had two closely related responsibilities: first, it meant we had a duty to inform, indeed to educate, although we hope those who are offended by that term will pardon us for using it, but we are convinced that on public policy topics, which are societal issues, it is the duty of political leaders to transmit information that educates, not merely convinces. The level of knowledge about drugs, even about cannabis which is the best known drug, is often limited and wrapped up in numerous myths. Our second responsibility in taking public opinion into account was to go and discover it. We did so in three ways.
First, we publicized our work as widely and as openly as possible to enable everyone to learn about it and react to it. Many chose to do so by writing to us, although they were relatively few compared with the number of people in this country.
Second, we commissioned a qualitative public opinion study. The focus groups conducted across the country as part of that study are described in detail in Chapter 9.
Third, we held public hearings in various cities across the country (eight in all), thus enabling a certain number of citizens to come and tell us what they thought, what they knew and what they had experienced.
We are aware that informing and seeking public opinion also means having a hand in forming it. It is thus not a neutral activity.
All this knowledge, in the form of research and public opinion, still needs to be interpreted. Scientific knowledge is subject to constant verification. It at times contains contradictions, as will be seen in Chapters 7 and 8 in particular. Knowledge of public opinion necessarily remains fragmentary and evolving. Thus the importance of interpretation.
Beyond this, a public policy, as noted above, is not based on knowledge alone, no matter how rigorous. Guiding principles are necessary, principles that can permit an informed interpretation of data and assist in the establishment of conclusions. This is the subject of the next chapter, which will describe the method we used to determine our guiding principles and the principles themselves.
What should public policy on illegal drugs consist of, policy here being understood in the strict sense of the word, as government through public debate and not party politics? As we are part of the Senate of Canada and therefore of Parliament, and having legislative authority, one might wonder why we ask ourselves the question. As legislators, are we not guided by the principles of good government, that is to say by public interest? In fact, what is public interest, and how is it determined? Does our position as Senators give us the de facto ability to say what is, or what should be, in the interest of Canada? We do not believe so.
When faced with social issues such as illegal drugs, we are like all Canadians, struggling with our beliefs, our knowledge, our values, our doubts and our myths. Our special access to some one hundred expert witnesses, our reading of numerous research papers and our discussions with dozens of people across the country have forced us to confront our preconceived ideas and images about drugs and to compare them with those of “others”, and if not to change them, at least to refine them along the way. However, this is not sufficient to determine what is in the public interest. Experts, no more so than the many citizens we heard from, do not determine what is in the public interest. Studies show only the most superficial aspects of what Canadians think. In addition, when polls that are more sophisticated provide us with a more in-depth picture of public opinion, we will be no further ahead in trying to decide on the direction that public policy on cannabis should take. This is primarily because the greater good is not determined by polling to see which way the winds of public opinion are blowing, and also because, as is the case with our personal opinions, public opinion relies on unverified information, on preconceived ideas that are sometimes biased, and on values that are not always clear.
We heard quite frequently that the public policy decisions should be based on the future of our children, on the kind of society in which we wish to live and that we wish to leave them. Over the last two decades, Canadian society has implemented costly anti‑smoking programs. Do we want to be in conflict with these by allowing the smoking of cannabis? Cannabis is a psychoactive substance that can impair certain cognitive abilities linked to learning in young people. Do we want to send the message that it is okay for them to take drugs?
Others said that the fundamental values of Canadian society, values of respect for people’s rights and freedoms, of tolerance and openness towards diversity, were compromised by existing legislation on cannabis. They added that these laws are no longer in step with society, reflecting an inter-generational conflict between adults and youth, they bring about more harmful consequences than good, and on top of being ineffective they are iniquitous.
This is an issue of values, therefore, which opposes various ideas about public health, of community health, meaning both the physical well-being of people as well as of the entire community, of its moral fiber as well as the model of inter-relationships that it proposes. However, we do not all share the same values.
In the fragmented, disillusioned world in which we live, a world open to the sharing of cultures and of identities, albeit not always by choice, the issue of values is constantly at stake, and from this the very meaning of social life. Even the transcendental values that we all share, of sacred respect for life and of immanent justice, are not readily turned into public policy: abortion or capital punishment, for example. As for other values, such as freedom, truth or law, they are the subjects of constant debate in democratic societies and they are precisely the kinds of values that are at stake in a public policy on illegal drugs.
It has now been thirty years since the Royal Commission of Inquiry on the Non‑Medical Use of Drugs, the Le Dain Commission, named for its Chairman, studied issues similar to those we are studying today. Its report on cannabis, whose scientific conclusions on the effects of the drug were generally accepted by all members of the commission, nevertheless led to … three reports: a majority report by three of the members, and two minority reports. During our first day of public hearings, Professor Line Beauchesne presented the fundamental differences of opinion among the members:
The dissension stems primarily from different visions of the values that should underlie a drug policy. I will refer to the report to illustrate the three positions that can be taken on drug use.
The first position, based on legal moralism, is that advocated by Ian Campbell. This public policy approach founded on legal moralism justifies the current prohibition and resulting repression on the grounds that it protects common values. (…) Briefly put, the government is perceived as having the responsibility of establishing common values, which are then imposed on society with a view to achieving optimum social harmony. If everyone thinks the same way, then there will be fewer problems.
(…) The second position, held by the majority of the Le Dain Commission members, is based on legal paternalism. Public policy based on legal paternalism justifies current prohibitions on the grounds that the State has a responsibility to protect non-independent persons, particularly young persons.
When we come to the third position, that taken by Marie-Andrée Bertrand advocating the legalization of cannabis, this brings us around to the whole question of values (…). Legal liberalism implies that the government maintains some responsibility for preserving individual autonomy to the maximum extent possible. (…) A public drug policy based on legal liberalism is founded on the premise that the government’s role is to maximize opportunities for each individual to be a full citizen and to ensure that criminal law is never used.
Moralism is an affirmation of a set of shared values. Paternalism is protection of the weak. Liberalism is maximization of the independence of citizens. These three categories do not include all of the possibilities: communitarianism, for example, represents another approach. In some areas of public policy, at certain times, these various approaches can co-exist. Nevertheless, each one expresses a different concept of the role of the State and of criminal law, and the roles of science and ethics in the choices that must be made.
Having examined each of these subjects, we have elected to set down the guiding principles that clarify the concept we have of the roles that the state, criminal law, science and ethics must play in the development of a public policy on cannabis. These principles will then help us in our analysis of the information resulting from the research and current practices in Canada, and most of all, influence our recommendations. In this way, the reader will have the benefit of our attempts to make explicit the principles which all too often remain implicit, therefore giving the opportunity to all to take us to task for inconsistency, or to voice their disagreement with our conclusions, because they do not share these principles. We feel this exercise has the virtue of being both clear and transparent.
In order to assist our preparations for this work on the guiding principles, we asked four Canadian academics, well known both in their respective fields and for their independence, to prepare issue papers on each of the four main themes: governance, criminal law, science and ethics. We strongly encourage Canadians to read these texts, which are of an exceptional richness and quality. We will use these texts freely, without pretending to render the complexity of their thinking, but neither will we simply echo their sentiments. Just as we did not ask witnesses to tell us what to think, but rather to share their knowledge with us while being as rigorous and as precise as possible, whether their knowledge comes from research or from experience, so we asked for issue papers and not for answers to our questions. We must formulate our own responses to the illegal drug issues before us, and that is what is expected of us.
We will begin with a reflection on ethics. We feel that such an examination, insofar as it affects the very bedrock of our values, as it imposes a requirement for communication and dialogue, is the cornerstone upon which the other guidelines are based. Our principles dealing with governance – that is to say the role of the State – and with criminal law as a tool for achieving social conditions, then, hinge on this ethical concept. We will conclude with thoughts on the role of science, or more specifically of knowledge.
Let us assume that science, with supporting evidence, had shown the harmfulness of a given drug – say tobacco – and that it is a “cause” of serious, indeed fatal illnesses. To what extent are doctors, judges, and in the end, the State, authorized to go to ensure that people do not smoke? What limits are there on intervention? This is the question posed by ethics, more specifically the ethics of “health”. Should we simply ban tobacco and punish both its users and its producers? Should we educate people through prevention campaigns? Should we discourage smokers through their pocketbooks, for example with a surtax for the hospital care that their habit could make necessary?
We see that ethical reflections take us through what is, through the realm of facts, to the realm of what should be, of what would be desirable. Moving therefore from recognized facts (that cigarettes “cause” lung cancer) to standards (the majority recognizes that smoking is harmful), but, more important than standards, to values (health is the greater good) and finally to the means of passing on and above all implementing these values (smoking is forbidden and subject to a fine). At any of these steps, one could speak out and say just a minute, I do not agree. I do not agree with the statement of fact: what is the basis of, what studies support this “finding”, one might ask. I do not agree with the standard: even though a public opinion poll may show that most people believe cigarettes cause lung cancer, is that reason enough to put an end to the debate? I do not agree with the established values: freedom is the greater good and not health - what is the use of being in good health under a totalitarian regime? Finally, disagreeing with the means chosen to implement the value - it being unacceptable to ban cigarettes under the pretext that they cause cancer because the means is disproportionate to the fact.
Anyone who has followed the debates on cannabis to any degree will have drawn a parallel. Because cannabis “causes” health problems (both physical and moral), the standard states that its use is “dangerous” and, under the banner of public health values (and of the protection of the most vulnerable: children, adolescents, etc.), its production, manufacture, sale and use, etc. will be prohibited. This is the basis of the existing public policy.
As Professor Malherbe reminds us, this way of setting out the cannabis problem – as in fact is true for other substances – encourages us to rethink our ideas on health, medicine and science. Moreover, going one step further, it obliges us to consider the issue of risk and of life itself in society.
We live in a risk-taking society, but in a paradoxical manner. On the one hand, we place great value on risk-taking: venture capital, risk management, putting no limits on success. We see this as much in the appreciation of certain kinds of political or corporate decisions, as in the emulation of certain kinds of risky activities, such as Formula 1 racing, paragliding, and other extreme sports. On the other hand, we are becoming intolerant of risks of life in society, of the risks that others represent to our individual lives. It is a search for safety, both individually and collectively, vis-à-vis the smalltime crook or the terrorist. Risk would be in conflict with safety and security as illness would be in conflict with health.
Between these two apparently opposed attitudes towards risk, a subtle change in connotation slips in and partly explains the paradox. In the first sense (risks we like to take or will accept others taking), the issue is clearly risk. Here, risk is seen as being positive, and offers a number of options: when faced with this kind of risk, the person can decide to forge ahead, to wait, or to give up. In any case, there is a broadening of possibilities, therefore of autonomy, an extension that is no doubt linked to the admiration these people elicit, which is also tinged with envy as we observe this action that our position as “mere mortals” rarely permits us. The shift in meaning happens with the second sense, which does not relate to our ideas on safety but rather of danger. Safety is a collective and individual good, as in food or occupational safety. Danger, on the other hand, is usually a loss or a limitation of freedom of action: when faced with danger, most of us stop, and withdraw from the scene. In this sense, danger reduces the range of autonomy. Therefore, it is not safety that is in conflict with risk, but rather danger. The distinction is fundamental, because it refers us to the degree–whether real or perceived–to which we control our own existence. We sense that the “crazy Canuck” bombing down the slopes is at least in relative control of the risks he is taking; danger is different in that it implies loss of control.
We are collectively learning how to manage this risk/danger equation. The “risk” here, if one can put it this way, is thinking of risk as a kind of acquired individual autonomy, and of danger as a limitation of this very autonomy by “the other”, bringing about in its wake withdrawal, intolerance, and concisely, fear. For if risk is the source of intense pleasure, danger generally gives rise to fear. If risk points to the improvement of the means that allow me to be more in control of my safety, danger points to threats coming from the outside, chiefly from the ‘other’, over which I have little control.
Some concepts in medicine, and in science in general, add to this paradox when they address risk factors, such as when smoking is considered a risk factor for lung cancer. This is also the case with delinquency: dropping out of school is a risk factor as regards delinquency. Within these meanings, risk here becomes a danger factor, the ultimate danger, of course, being death (cancer). This mechanistic and causalist concept of prevention erases the fundamental difference between the body-machine we occupy and the body-subject we are, to use the distinctions proposed by Professor Malherbe. There is, in fact, no direct link between the “objective” characteristics of our environment (including the personal traits of genetic history, family and culture, etc.) and the subjective perception we have of ourselves and of our relationship with our environment. In other words, it is precisely why two children born in a similar environment, in the same era and friends from a very young age, will take two entirely different paths in life. We have a body with a genetic inheritance and pre-dispositions; what we do with it and how we interact with others and our environment is something else entirely. Just as there is no immediate transfer of the recognized fact to the norm, neither is there any direct translating my biopsychological make-up into actions and thoughts.
The scientific approach searching to identify a statistical “norm” – the correlation between two facts – does not take into account the fact that we are not all equal in the face of this risk/danger equation. What for some would constitute a risk – going down an icy mountain on skis – would represent a real danger for another.
[Translation] Despite all we think we know about addiction, a considerable number of well-informed subjects “happily continue committing suicide” through their dependencies. While health education is largely thwarted, and not only in the field of toxic substances, it is because human subjects are in fact subjects, that is to say “subjective” beings whose behavioural reactions are linked much more to the meaning they attach to their behaviours than to the objective mechanical-medical consequences which statistical analysis claims to define.
Some risks are no doubt worth taking for life to be worth the trouble of being lived, for it not to dissolve into a maniacal and fearful sequence of endless precautions (…). Lastly, what is most human (the most autonomy, we dare wonder): succumbing to fearful hypochondria and enclosing oneself in a cocoon of universal prevention (to the point of death by asphyxiation and loss of will) or living one’s life through risks freely chosen and accepted.
This is where the central position of the concept of autonomy comes in. Autonomy, however, is to be understood here in a critical manner as reciprocal autonomy, and not as autonomy where isolated individuals establish standards to their own liking. It should be borne in mind that autonomy, etymologically speaking, means “establishing one’s own laws”. This is not a question of arbitrary legislation, created for oneself, but of laws that permit, whenever possible, the successful interaction with others, which is the very bedrock of society. This autonomy is based on the ability to recognize the existence, the difference, and the equivalence of the other, allowing one to assume solitude, finiteness and uncertainty, respectively, to then move on to practice solidarity, dignity and liberty in return.
The “dependent” person is not autonomous, some would say. Indeed, in their dependency, the drug addict, the alcoholic and the inveterate smoker are not. Neither the emotionally dependent person nor the person addicted to gambling, money or sex is fully autonomous. Next comes the question of the extent to which the state or society can intervene to encourage the slow achievement of this autonomy, and how to go about it. What are the respective roles of collective governance and criminal law as mechanisms of this governance? How can science contribute to this emancipation?
In any case, we note Professor Malherbe’s comment, that:
[Translation] (…) the fundamental problem of our civilization is not whether it is acceptable to prohibit the trade in cannabis derivatives or even their use, but rather not to repress the expression of anxiety when it arises and, even better, to invent new ways of taming it. On this point, it is useful to recall that every unjustified restriction, which adds to the already heavy burden of civilized individuals, can only increase their sense of being the object of some form of totalitarianism rather than the subject of their own destiny. From this standpoint, anti-drug campaigns seem decidedly like attempts to deny death rather than recognize its presence in collective and individual life. (…) In this respect, we agree with N. Bensaïd, who says that preventive medicine conceals our fear of death by making us die of fear.
From this base ensues a definition of ethics as “constant work, to which we can consent and which we perform with one another in order to reduce, as far as possible, the inevitable difference between our values as practiced and our values as stated.” With one another, indeed, thereby imposing constraints so that reciprocity and equivalence of the ‘other’ can be realized; this is the role of governance.
As a guideline, we will adopt the principle that an ethical public policy on illegal drugs, and on cannabis in particular, must promote reciprocal autonomy built through a constant exchange of dialogue within the community.
We are social beings. It is a trivial assertion, however it must be stated because it means that, necessarily, we always find ourselves in paradoxical situations where to a certain degree, each person has the free will to make decisions, and makes free decisions for himself, while at the same time, in order to regulate interactions with others, rules are established, a normativity, that is more or less complex or more or less formal, as is appropriate. This is true of relationships between couples, families, in sports, and at work, as it is of relationships between citizens and the government. Self‑governance – acquired through the arrival of liberal democracy – is never complete and inevitably yields in part to the governance of the community.
Governance is relatively easy to develop within simple relationships: within couples, families, or businesses. This is not to say that its practice is easy: anyone with any experience of relationships as a couple will be well aware of how difficult it can be to make implicit rules explicit, and to agree on the rules of a shared life. However, the standards that are established between friends, between lovers, between parents and children, are in fact a set of relatively simple rules, and most importantly, rules whose effectiveness does not require the intervention of other parties, except in the case of a break-up or of abuse.
In feudal, pre-modern or pre-democratic societies, the prevailing rules for even the simplest social relationships were stipulated from the outside: by the sovereign, the lord, the church representative, the father or forefather, the head of the business, each one could issue orders and expect to be obeyed, being all powerful in his domain. The establishment of normativity was largely done without the involvement of “subjects”, without their consent, and without any input on their part; they were excluded from the power relationship. Over the centuries, during which our modern-day democracies were built, we have moved on to styles of governance of ourselves and others that allow people to participate more and more in the development of the rules of life, both personal and social. We have also moved on from a situation whereby each person’s life was decided by his or her destiny, and limited to the narrow prospects dictated by the place of birth and status, to an “indeterminate” life situation, which is open to the building a personal identity and history.
These are therefore (1) changes in the sources of normativity and their operationalization in society, and (2) changes in our relationship to these norms. In the first case, we are slowly becoming involved in the external formalization of the sources of behavioural norms. As they no longer ensue from divine right, from the sovereign or the church prelate, they are built through the political manifestation of the will of the people. They are entrenched in national constitutions, in legal decisions (in British Common Law) or in legal codes (the Civil Code). It follows that the supra-legal normativity (inherited from divine right) or the infra-legal (not set out in law), lose both their symbolic value and their real influence on social relationships, to the benefit of legal rules that are registered according to a recognized and legitimate procedure in the social system by means of statutory provisions. Modern societies are legal societies, that is to say societies that base their management of relationships between people and between individuals, groups and institutions, on the rule of law. Never completely incorporated into the legal system, other sources of normativity have not disappeared completely but the pre-legal or infra-legal sources of normativity are less apparent, and sometimes less legitimate.
With this change of source comes a change in operation: while the sovereign or the church representative could convict, or even execute, without challenge to the legitimacy or rationality of their decision – except by risking the same fate – the means of expressing the will of the people, setting it out in the legal system, is now in the hands of judges and the legal system entirely. The legal establishment of norms is set in motion either by the public authority provided in the legislation (civil and criminal cases, for example) or by citizens themselves (private and civil lawsuits) and is put in effect primarily by the courts. Remedies exist, and most importantly, these remedies are theoretically the same for, and accessible to, one and all.
The relationship that a person has to the norms, and through this to all aspects of social life, is the third change. Choice and uncertainty have both increased, to the point that, today, the connection is not so much to the other person, but to the risk represented by being in contact with them. Normativity in and of itself is no longer considered inevitable, nor even a duty. Without being rejected, social normativity is called into question based on personal experience and worldview. The gap between the subject of the norm and the norm itself seems to be widening, while conflict resolution models are being made more formal.
Through the conjunction of these processes, governance becomes more and more instrumental. The mechanisms of formal normativity, i.e. lawyers, judges and the courts, sometimes take on a greater importance than the actual substance of the norms themselves: the immediate personal question is whether I have access to the recognized mechanisms of conflict resolution, or if, through my condition or my actions, I am excluded in one way or another. In other words, the means is replacing the end, the rule of law is replacing the requirement for a connection to the other, which is the very basis of normativity and of social life itself.
Modern societies are therefore faced with a series of sometimes paradoxical injunctions. Collective governance must: (1) allow social relationships to be regulated in the most orderly but least restrictive manner possible, (2) give expression to the norms and values shared by the community and (3) give each person the opportunity to define themselves in relationship to these norms and values. How can these seemingly obvious opposites be reconciled?
Based on Professor Taylor’s work, we can say that there are two central spheres or preferred means of governance: the governance of relationships with others, and the governance of the self. The governance of collective relations is obviously part of the traditionally recognized areas of intervention of the state, even if the form and substance change. On the other hand, governance of the self does not come immediately or systematically under the jurisdiction of the state.
The state is far from the only source of normativity. But the fact that democratic states must act in accordance with the law and that most public policies come in the form of legislative texts, produces a kind of short-circuit whereby the source of law and the state appear as one.
Yet, as Professor MacDonald rightly points out, if the actions of the state are subject to the rule of law, the legal sphere is not limited to the State. In all known societies, rules have always been established for the governance of the self and of collective relations. They are implicit or explicit, formal or informal, all-encompassing or limited in their application, codified or recorded in the collective memory, extensive or limited to certain spheres of activity. In every case, whatever the nature or specific form of the rules, they serve to express for members of the community the conditions of collective life. They deal with marriage and parenthood, the ways in which one respects the life and property of others, as well as the connections to the invisible and the beyond. They take the form of prescriptions and bans, are implemented by the bishop or the mullah, by the king or his representative, or by the judge. Much as we might like to believe, we in modern times have not invented the codification of laws because the first legal code goes back to Hammurabi, the King of Babylon. In Roman law, Justinien was the first to suggest a code of laws, not to mention the Ten Commandments “handed down” to Moses.
In this sense, we agree with Professor MacDonald as concerns legal pluralism, according to which there are multiple sources of normativity and therefore of rules of action that are not exhausted by formal legislation. This is the distinction between law and “juridicity”. As we mentioned above, juridicity can be derived as much from the family as from business, from school as from the trade union, from political parties as from religion. In this sense, juridicity “is the business of subjecting action to rules-based governance”.
Juridicity, of course, co-exists with other ways of governing individual and community actions: the brute exercise of power and war are examples of other forms. One of the main differences, however, between juridicity and other forms comes from the nature and the origin of its legitimacy. The establishment of legal rules of action involves a form of consent, if not of active participation, in the development and implementation of the rule, qualities that are not needed nor sought out in the case of domination by a tyrant or an occupying army.
The development of a formal juridicity, in the form of legal texts passed by legislative assemblies prescribing both objective and subjective rights, is at the very heart of modernity. It is in fact around these kinds of issues that the more specific question of the role of the State arises: when and to what extent should formal legal rules be developed, and how should they be enforced?
Modern societies are unique in that they have, amongst other things, given precedence to the formal rule of law over other sources of juridicity as regards the governance of social relationships, established the need for these formal laws to be adopted and implemented by legislative and executive arms of the State, and set up arbitration systems in the form of courts of law born of the State but having an arm’s length relationship with the former two.
This formality of the law, or to be more precise, the legal normativity found in the legislative texts passed by the State, in no way signifies the disappearance of the other forms of normativity. Here Professor MacDonald gives us a relevant example of this:
For example, activity that the official criminal law sanctions and stigmatizes may be rewarded and valued in certain other normative communities. In socio-economically impoverished neighbourhoods where economic opportunities are limited, the manufacture and sale of illicit drugs may be an attractive means of escaping poverty. For those who are successful in the enterprise, the consequent advancement in social standing may more than offset the potential harms visited by criminal sanctions. Similarly, in an international context, in countries where the raising of traditional crops which are capable of being converted into illicit drugs is an indigenous cultural activity, and where conditions of poverty are such that the attendant economic benefits are necessary for subsistence, the criminal law (whether domestic or international) has little purchase.
In other words, juridicity is not exhausted in the formal law, and the role of the State is not limited to the processes of passing, enforcing and arbitrating formal legislation.
Historically, juridicity has often been equated with moral standards, or has tried to model itself on them. These standards could come from religion, from philosophy, from an ethic, or a universal theory of nature as in Plato. In every case, they tried to say what constituted the “good life”, how to conform one’s life with the immanent rules of life, ending the cycle of reincarnations, or avoiding eternal damnation. In every case as well, the good life corresponded more or less to “life” in the most abstract sense, that is to say the focus was not so much on the destiny of the individual, but on that of the community, the group, the clan.
It is only as of the second half of the second millennium, during what we refer to as the Age of Enlightenment, that individual life slowly began to register as a primary concern in the governance of the community. This major change resulted in what Taylor calls “ordinary life”, that of the “average sensual man”, at the heart of which we find his connection to the world and his manner of connecting with it through the agency of family and work, being suddenly recognized. Having had no means by which to participate in the development of juridicity in general until then, the “citizen” acquired some legal authority and right to active participation (to simplify things, we could give as an example the right to vote), not only as a member of the community but as a whole and unique individual.
Up until that time, communities had a juridicity that was largely based on relationships with others, granting strong objective rights (the right to life: you shall not kill; the right to property: you shall not steal; etc.), with a weak cognitive component: while admitting that it continues (unfortunately one might add), to pose certain problems (take racial or sexual inequality) even throughout the twentieth century, - accepting respect for life as a universal norm has not met with great opposition. It is in this sense that we speak here, particularly following Pires’ work discussed in the following section, of norms with weak cognitive components. These fundamental norms, which certain philosophers of law have said are natural laws, do not require a strong empirical justification. The same cannot be said of other norms concerning conduct such as homosexuality, abortion… or taking drugs. These norms are an issue of what we might call subjective rights that relate to individual behaviours that express personal choices achieved through a consensual exchange and thus being of little or less direct concern to the community. This is why we could say this is an issue of norms with a strong cognitive component: in order to be imposed as negative laws, that is to say as constraints or prohibitions, these standards need an exogenous justification drawn from the external knowledge of juridicity itself.
In this way, parallel to the process of legal formalization of the norms of governance in the community described in the preceding sub-section, the modern individual has acquired more and more room for governance of the self. This space is no longer, as in the past, entirely dictated by the determinations stemming from one’s birth in a given place, in a given family, with given genetic “baggage”. Except in some totalitarian regimes, neither is this space for the governance of the self entirely subjected to collective or religious rules. This space consists of a vast area of uncertainty that, in part, precisely explains why it is sometimes called “disenchantment with the world”, or more prosaically “loss of sense” or “lack of values”. In fact, we would say that neither comes into play, so much as a process of slow and hesitant reinvention of social life, in and through new ways of relating as individuals.
Governance is part of both the spheres of collective governance of the State and of governance of the self. If the State’s chosen vehicle is formal law, the passing of legislation does not exhaust all the possibilities in terms of collective governance. Moreover, governance of the self is the slow discovery – in the strong sense of the term - of the juridicity that underlies human action.
Professor MacDonald addresses the issue eloquently:
How ought law and legal institutions to be deployed to achieve the symbolic governance of human agency in a manner that facilitates the just achievement of individual and collective human purposes?
The issue brings us back to the purposes of community governance, which is to facilitate human relationships and self-realization, with a minimum of interference in such a way as to stimulate individuals' discovery of the source of normativity rather than having it dictated by an external body. It is not the responsibility of State governance to ensure either the health or the happiness of its citizens. It is, however, its duty to ensure that the rules that it enacts and the way in which they are carried out do the least possible harm to the individual’s ability to develop his or her own moral code. Not a single morality, or at least a morality for everyone, as the majority position of the Le Dain report maintained, but a facilitation of access to morality for citizens, morality here being understood in the sense of the ethical discovery of fundamental laws regarding relationships with others, as Professor Malherbe pointed out.
Professor MacDonald proposes a definition of governance that is drawn from the work of the Law Reform Commission, which gives guidance: the goal of governance is freedom, and not control. It is a question of defining the goals of society through policies and action programs that are then implemented through systems and processes and upheld by actors, allowing for the encouragement and affirmation of human action. The law, vehicle of choice of governance, does not seek instrumental purposes of simple expressiveness of rules or limitations passed for and on behalf of citizens, but a reciprocal process of building social relationships through which people, citizens and governments, can constantly adjust their expectations in terms of behaviour.
We therefore accept as a guiding principle for governance that all of the means the State has at its disposal must work towards facilitating human action, particularly the processes allowing for the building of arrangements between collective government and governance of the self.
During the course of this report, we will have plenty of opportunity to describe the degree to which criminal law is at the very heart of any discussion of illegal drugs. It has come to the point that debates between those we refer to as prohibitionists on the one hand, and liberalists on the other, have overshadowed all other considerations. The Italian sociologist Pareto (1848-1923), quoted by Professor Pires in his issues paper, said of human beings that even if we would like to believe that we are rational, we are above all argumentative beings, that is to say that we want “to give a logical aspect to behaviours that do not have the substance thereof.” In the context of the debate on cannabis, this sentiment takes on its fullest meaning: both sides hurling their arguments at the other, claiming they are recognized “truths”.
Any discussion on the role and the place of criminal law as concerns illegal drugs, here being a question of cannabis, in effect poses questions regarding principles of the appropriateness of turning to criminal law. In general, both sides are quick to escape this stringent argument on the principles to turn to justifications. As is true of both sides, justification has nothing to do with the mechanism itself, being the criminal law, but with the target, being cannabis. The result is the litany of “proofs” of the effects of cannabis. For some, the effects are significant enough to “justify” turning to the criminal law, and to list the risks associated with the use of cannabis: addiction, learning difficulties, delinquency, and impaired driving. For others, these same risks are so minimal, or are already covered by other criminal legislation (driving under the influence), that they do not justify the use of the criminal law. Whatever the case may be, the debate is no longer in relation to the principles but on justification.
This reflection on the role of criminal legislation is specifically intended to bring us back to principles of the appropriateness of turning to criminal law. The central issue is to attempt to identify the criteria that will help us decide in what circumstances society can–or must–turn to criminal law. It must then be determined if these criteria justify the use of the criminal law in relation to cannabis.
Raising the question as to whether or not the use of criminal law as concerns cannabis is justified necessarily brings us back to a primary observation: the use of criminal law is not justified in all cases, but, in some cases, it must be. This observation is supported by three findings: (1) that most social relationships are regulated without the use of criminal law; (2) that certain behaviours are forcibly within the sphere of criminal law; and (3) that certain behaviours legislation has criminalized, at certain points in time, have since been excluded from this domain. The possibility of including or excluding human actions from the sphere of criminal legislation rests on the ability to make distinctions.
However, a significant difficulty arises as soon as this principle of distinction is accepted in practice, and not simply in theory. Once an act has been recognized as being a “crime”, it becomes part of the body of what defines all offences: behaviours against society. According to the internal logic of criminal law, the only eligible distinction would precede the decision to incorporate a behaviour into the law or not. If the behaviour at issue is one that goes against the common good, it is a crime. Otherwise, it would be an uncivilized act, perhaps even an immoral one, but certainly not a crime. Once such a decision is taken, the only remaining distinctions to make would be with respect to form: the kind of procedure to follow and the severity of the punishment according to the nature of the offence.
Everything is done as if there were no positive distinctions made within criminal law between offences, as if the distinction was made only from the outside, before making the act an offence. In fact, distinctions between types of offences do exist. These are the distinctions made by Professor Pires, between standard prohibited behaviours and “two-sided” prohibited behaviours. It is more usual to distinguish between “victimless” crimes and crimes “with victims”, but this categorization is incorrect. On the one hand, under criminal law, the victim is all of society. There are certainly individual victims, but by some kind of extension, the harm has in fact been done to all of society. This would explain the principle of deterrence, in criminal legal theory: by punishing a guilty party, we try to dissuade all those who might be tempted to behave in the same way.
On the other hand, this categorization brings us back to a single aspect, the subject of the offence, losing view of the other processes by which criminal law distinguishes between different kinds of offences. In this way, another kind of distinction that is intrinsic to criminal law falls under the modes of justification. A decision to criminalize homicide does not require, as Professor Pires stresses, the undertaking of comparative studies in order to determine if one kind of murder is more or less harmful than another to the victim. The cognitive component is weak: here, there is no need to turn to external arguments to justify the criminalization. The act, in and of itself – this is the concept of malum in se – is enough to establish the legitimacy of the criminal standard. There is no such thing when the issue is drugs: since the beginning of prohibition, external justifications were needed regarding the harm caused by drug use. These subjects of criminalization have a strong cognitive component, in that they require a higher level of justification.
The distinction between kinds of prohibitive behaviours is therefore an analytical tool that is necessary in order to understand and think about the role of the criminal law as concerns drugs. What then are the criteria we can use in order to make these distinctions? This is the goal of the following sub-section.
Professor Pires proposes seven criteria allowing for distinctions to be made between the various kinds of prohibitive behaviours in criminal law.
Seven criteria to distinguish between offences
Nature of the offence
Is this an issue of a conflict or an exchange?
Capacity of the law for discernment
Can the law see a victim and distinguish them from the deviant?
Is the actor able to appreciate the consequences of his actions on another person?
Limitation on natural liberty
Is it possible that there could be limitation of the freedom of the person to act?
Justification of the offence
Must the law turn to outside knowledge in order to justify the enacted standard?
Application of the law
Does application of the law require any active intervention?
Effects of the law
Can the effects of applying of the law compromise the standard?
We will briefly examine these, one at a time.
The nature of the offence
In order for there to be an offence, harm must have been done, which brings us to the victim. As we said above, in the broadest sense, criminal law sees society as the ultimate victim of any offence. The direct victim of an assault or theft is a witness, in the technical sense of the law. However, at a concrete level, the law recognizes direct victims. In certain cases, the concept of victim falls somewhere between the two: it is the neighbourhood or the surrounding area, for example, in the case of nuisance caused by solicitation for the purposes of prostitution. However, these nuisance situations are themselves at the limit of criminal law, in a sort of gray area between standard offences and two-sided offences.
What is remarkable is that the criminal law cannot take all three levels into account at the same time. If it recognizes the direct victim, then society becomes invisible. If it considers the neighbourhood, it becomes even more evident that it can no longer recognize a direct victim or society as a whole. Finally, and above all, if it takes the perspective of society as a whole, then it loses sight of not only the direct victim, but what is more, it loses its specificity. In effect, in the latter case, one could say that civil law also protects society: without respect for sales contracts and debts, society would go down the drain.
It is therefore not only the harm caused, nor even the presence of a victim that gives certain acts their criminal character, but the fact that they bear witness to conflict, abuse of power, infringement of one social actor upon another. Obviously, civil law also serves to resolve conflicts, from which comes the need for more criteria.
Capacity of the law for discernment
Is the law able to differentiate a victim from a perpetrator? In the case of standard prohibited behaviours, it generally can. For example, the victim of a homicide can clearly be distinguished from the perpetrator. Of course, there are exceptions to these standard scenarios, for example, where the victims themselves face criminal charges. A case in point would be where a victim of sexual assault is convicted of contempt of court for refusing to testify against her attacker.
When faced with two-sided prohibited behaviours, criminal law is hard-pressed to distinguish the victim from the perpetrator. Or, it finds the perpetrator to be the victim that must be protected from himself. Consequently the perpetrator becomes the victim of his/her own behaviour.
Alternatively, cognisant of the limitations and difficulty involved in punishing the victim - for example, a prostitute - criminal law shifts from the phenomenological world (the facts) to a different mode of reasoning. It moves from an analysis-based mode of reasoning (evidence enabling deduction) to one based on consequentialism or teleology (the goals underlying behaviour). For instance, criminal law justifies its intervention by the need to protect children. Consequently, it loses, and causes us to lose, sight of the (ultimately inexplicable) reasons why the offence was brought before the courts in the first place.
This term refers to the capacity of perpetrators of the offence to recognize –despite “explanations”, denial or other self-justification methods - the harm caused to others by their actions. Even in case of some borderline standard prohibited behaviours, such as cruelty to animals, the perpetrator of the offence – who, for example, has hanged his neighbour’s dog from a tree – may recognize the harm caused by his/her action to the animal’s owner. The criminal act in the case of two-sided prohibited behaviours may be self-destructive, but is not motivated by maliciousness towards others, since it does not create a direct relationship with others. Indeed, the sociologist A. Ehrenberg raises the issue of the absence of a relationship with others exhibited in all types of drug use when interpreted as a form of withdrawal from the world. However, this is already beyond the issue of criminal law into to the realm of political discussion on democracy.
Limitation on natural liberty
We shall deal only briefly with this issue here since it is discussed at greater length later. Suffice it to say, however, that the law places special restrictions on what Kant called the “unfettered freedom of action”: criminal law restricts an individual’s liberty to take the life or property of others. Consequently, it institutes specific rights and freedoms, i.e. the right to enjoy life and property. Fundamental problems arise where the law seeks to restrict the very rights and freedoms that it provides. A case in point is prostitution, where the law seeks to restrict the very right to enjoy one’s own body and the freedom provided for by the law.
Justification of the offence
Criminal law very seldom uses external sources to justify the criminalization of offences. A good example to illustrate this is our original homicide scenario. Criminal law does not refer to sociology, anthropology, history, economics or medicine to establish the various effects of different types of homicides and various ways of taking life. The same rationale can be applied to sexual assaults, theft, fraud, etc. The cognitive component in the justification process is weak. The rationale underpinning the standard prohibited behaviour is deeply rooted in the social relationship. It is quite clear that any society even considering legalizing homicide would become untenable and would cease to be a society at all. Consequently, our society does not question the validity of the criminalization of homicide. The sole issue that arises in some countries, but which was addressed in Canada a long time ago, is the sentence society imposes on murderers.
Quite the opposite situation exists for two-sided prohibited behaviours. They require empirical demonstration and justification with a strong cognitive component. As one might expect, this issue is central to any debate on drugs. Indeed, this report accords a great deal of importance to this matter.
Below professor Pires deals with this issue in graph form.
As professor Pires points out, the criterion here is not to establish whether there is consensus or “dissensus” on the criminal standard or on the terms relating to the type and possibility of democratic debate but rather to determine whether the source of the legitimacy of the standard is endogenous or exogenous. In the case of standard prohibited behaviours, the source is endogenous. In the case of two-sided prohibited behaviours, it is exogenous. However, the criminal law creation process remains the same, i.e. democratic debate resulting in the adoption of enabling legislation. It is for this reason that it is all too easy to lose sight of the fact that the two types of offences are not in fact of the same nature.
[Translation] The important point to remember is that all two-sided prohibited behaviours to which this criterion applies exhibit certain specific problems. (i) They all have a more precarious, more ideological or more fragile endogenous basis because they are not rooted in a concrete, conflictual deviance and because the norms are not sufficiently detached from certain forms of (purely moral or religious) knowledge or are not sufficiently unaffected by knowledge of facts. (ii) They are therefore more subject to a process of selection from the available knowledge and to the actual value of the knowledge that we select or that is available to us in respect of them at a particular point in time. That means that a critical and serious examination of the knowledge is of crucial importance. (iii) They are, to all intents and purposes, more polemical and subject to public debate at a particular point in time, and more likely to be based on major cultural or cognitive misapprehensions.
Application of the law
In the vast majority of cases involving standard prohibited behaviours, offences are brought to the attention of the police by way of a complaint. Complaints to the police most often involve theft, sexual assault and homicide. Indeed, approximately 90% all offences that come to the attention of the police do so through complaints. In the case of two-sided prohibited behaviours, close to 100% of offences are discovered pro-actively.
One might point to the increase in complaints from people living near cannabis plantations in British Columbia. However, these people’s complaints perhaps deal either with the very real danger of fire – since the illegal nature of cannabis production forces producers to illegally tap into electricity lines – or with pressure on them from criminals to keep quiet – also because producers are forced to operate illegally.
The pro-active application of the criminal law in the case of two-sided prohibited behaviours has harmful consequences, including social and human costs but also the possibility of discriminatory application of the law or police corruption. This raises the question of whether the endogenous basis of the offence warrants these consequences.
Effects of the law
The effects of the law stem, to a certain extent, from the previous criterion and all the others before it. This criterion relates to the legitimacy of the standard. The difficulties and criticism arising from pro-active police action, changes in social normativity or in the knowledge base, make the law counter-productive, which, in turn, raises questions sui generis as to its basic tenets and legitimacy.
We have compiled Professor Pires’ suggested criteria under three headings. Each criterion includes an “action-related” and a “law-related” element, which can be used in distinguishing between various criminal offences.
Nature of the offence. The action here refers to the relationship between the “victim” and the “perpetrator”, i.e. are they in a conflict or exchange-type situation? The law-related criterion focuses on establishing whether criminal law is able to distinguish between the victim and the perpetrator.
Justification. The action in this case is to determine whether perpetrators are able to recognize the harm caused to others by their actions. The legal aspect of the equation deals with determining the basis of the legitimacy of the standard.
Operativity. The action relates to identifying whether the application of the appropriate standard is triggered by the victim or witness or whether pro-active action is required by law-enforcement agencies. The legal side of the equation is to establish whether the enforcement of the standard could potentially sabotage itself.
It is our view that the analysis of Criminal Code offences based on these three criteria addresses the fundamental issue of whether limiting the liberty of an individual to act is justified in the criminal law. It is for this reason that we are less concerned about the criteria themselves than about the result of the application of theses criteria to the criminal law standard.
Are illegal-drug-related offences two-sided prohibited behaviours under criminal law? Undoubtedly so.
The offence created implies an exchange-type situation and it is relatively unimportant whether the subject of the transaction is a prohibited substance or not. It is deemed to be a consented exchange between two parties. In the case of cannabis use – or the personal use of the opium or cocaine that just happens to be growing in my garden, - no exchange with another party takes place. Nevertheless, possession is prohibited in Canada, as is use in certain other countries.
Criminal law is hard pressed to find a victim. With respect to impaired driving endangering the lives of others, the Criminal Code contains a provision for the punishment of an individual operating a vehicle under the influence of any substance. The argument that cannabis poses enforcement difficulties is not valid. The same difficulties apply to driving under the influence of prescription drugs. What about the issue of children? It is difficult to see how cannabis use harms children, except where an “uncontrolled” market, brought about either by a lack of regulations or by the current illegality of cannabis fostering illegal markets, does cause harm to children.
In relation to referentiality, a user or even a seller does not see himself or herself as causing harm to others. At least, this is the case for cannabis derivatives. Of course, a situation where “grass” is mixed with other substances and adulterated substances are sold to users is reminiscent of the era of prohibition and is one of the reasons why prohibition was scrapped. To justify behavioural standards and the offence, criminal law has to refer to external sources over which – and the interpretation of which – it exerts no control.
The operativity of the standard raises both application problems and on-going questions as to the legitimacy of the standard itself.
On the whole, the legal basis of the criminal law is weak where the prescribed standard (1) does not concern a relationship with others and where the characteristics of the relationship do not create a victim and a perpetrator able to recognize his/her actions; (2) has to find its justification outside fundamental social relationships; and (3) results in a form of enforcement, the harmful effects of which, undermine and challenge the very legitimacy of the law. (Where criminal law is involved in these issues, the very standard prescribed by the law makes the perpetrator the victim and tries to protect him from himself, which it can do only by producing a never-ending stream of knowledge, which remains constantly out of his reach.)
This analysis indicates to us that only offences involving significant direct danger to others should be matters of criminal law.
The public is generally willing to leave the choice of control methods to the interaction between health care experts and government agencies because they recognize that the drug is being used essentially for their well-being and they rely on expert knowledge to decide the best way to protect that.
Therefore, in formulating social policy on non-medical use, you must consider not only at the harm done by the law or at the harm done by the drug, but as far as possible a full cost/benefit analysis of drug use and the control measures, and any change in control measures that you may contemplate. This is a matter for all of society to decide - not for experts to decide as a matter of scientific knowledge.
From the very outset of the Committee’s proceedings, we have been aware that knowledge - even science-based, is not of itself a sufficient basis for the development of public policy on illegal drugs, in particular cannabis. One might be tempted to think that a Special Committee on Illegal Drugs - in this case, cannabis - should base its conclusions and recommendations solely on knowledge. However, no amount of knowledge alone could determine public policy. There are several reasons for this.
Firstly, the process of knowledge development is ongoing. This process is by definition a continuing study of the unknown. The pursuit of knowledge, in view of the scale and complexity of the task, is always approximate - or, as the French anthropologist Claude Lévi-Strauss would have put it, cobbled-together. To search for knowledge is to acknowledge our ignorance of fundamental questions, which by definition remain open-ended. According to Professor de Koninck:
[Translation] It is appropriate for us to celebrate the ignorance we have at last discovered because it is now part of our known ignorance (ordinary ignorance, in the classical vocabulary), as opposed to unknown ignorance (twofold ignorance) - thanks to neuroscience, oceanography, astrophysics, but also to depth psychology, the history of religion (to cite only two of the advanced "humanities") and to other disciplines which have particularly progressed in our era. We must celebrate it with the wonder and puzzlement which are still the necessary prerequisite of all discovery.
This situation might seem ironic, since never at any other time has such a wealth of information been produced – in all areas of human culture but also specifically on the issue of drugs – than in the modern era. So much knowledge has been gained in fact, that experts, such as economists, sociologists, criminologists, psychologists, and geneticists have become necessary players in the whole public policy justification process. It is only thanks to the ability of a team of scientists to successfully influence decision-makers that the greenhouse effect and the global warming phenomena have been acknowledged as real and that action has been taken to protect our environment. Governments' macro-economic decisions will be explained to the public on the nightly news by a senior economist. Where urban violence occurs or a serial killer is on the rampage, psychologists and criminologists are brought in to explain what is taking place, or to justify the thrust of criminal policy. The mass production of information and reference to experts in policy development give the public decision-making process at least credibility, if not legitimacy. Consequently, people who feel disenfranchized or even disillusioned by what they perceive as the disparity between the real world and the world presented to them in the media, will feel less inclined to challenge political decisions which are based on the “authority of knowledge”. Information is becoming knowledge, the learned are becoming experts and politicians, (who are increasingly allergic to independent reflection on principles and fundamental issues), have come to rely on this handy army of “experts”, who are ever ready to proffer advice.
However, information is not knowledge. Indeed, knowledge cannot be reduced to mere information. The Internet teams with information, but no one would dare contend that all of it could be deemed knowledge.
Secondly, the knowledge production process is fragmented and, like modern life itself, has difficulty addressing the issue of meaning. No better knowledge is produced with the addition of academic disciplines all studying issues through the lens of their own field of expertise than is produced when one of these disciplines works in isolation. The promotion of inter-disciplinary and trans-disciplinary approaches will remain as meaningless as calls for a social “partnership”, until there is genuine resolve to grasp the issues of meaning and comprehension. Prestigious institutes such as NIDA may have huge research budgets and conduct research, which in itself, is both fascinating and useful, but they function as if their sole goal were to demonstrate the bio-psychological mechanisms of “drug addiction” and the dangerous abuse that results from the consumption of “drugs of abuse”, as they call them.
However, the reasons for particular practices cannot be reduced to the sum of their constituent parts, or a jumble of re-enactments. Remarkable knowledge about cell mechanisms and genetics does not provide answers to the ethical and political issues raised by cloning. In the same way, knowledge about the mechanisms of the atom and nuclear fission did not provide answers to the issue of the manufacture and use of nuclear weapons. The highly abstract and math-based discipline of economic “science” is so far removed from reality that it is no longer able to explain the gulf that exists between nations or between extravagant wealth and human misery.
Researchers seem more concerned with mathematical equations and abstractions, and as a result, fail to ask fundamental questions. Their fields of knowledge are patchy and highly compartmentalized and there often remains a confusion between knowledge, information and technology. To ask fundamental questions, is to link issues and to re-acknowledge the complex nature of these issues in an attempt to identify the underlying reasons. There are on-going debates between scientists and philosophers over linking issues and over the shift towards an integrated knowledge base of human beings.
Thirdly, this raises the whole issue of the so-called “learned idiot” “experts”.
[Translation] Idiots is the right word (from the Latin idiota, meaning "ignorant person", borrowed from the Greek idiôtês, of the same meaning, as opposed to pepaideumenos, "cultivated man"). What is unfortunate is that their unearned reputation as experts extends all the more the influence of this "idiocy" in societies such as ours where "science" exercises a magic power and "that power appears increasingly legitimized by 'learned' experts," as Jacques Testart notes. "Indeed, the expert provides reassurances and citizens are reluctant to decry the absurdity or cynicism of a political decision approved by 'the most qualified experts'.
We are not trying to take issue with science but rather to challenge the difficulty scientists have in reflecting on their research. It is one thing to conduct cutting-edge research on specific issues, but it is quite another to claim to use the resultant fragmented knowledge to provide “explanations”. It is yet another to attempt to provide answers that science is quite simply not able to provide. It is one thing to conduct studies of the behaviour of laboratory rats, which have been administered a dose of Delta 9-THC (the principal active component in cannabis), but it is quite another to claim that this type of experiment is useful in understanding cannabis use and its effects on human beings. It is still another issue to contend that this research can provide an answer to cannabis public policy-related issues.
Drug use is a social action and forms part of a particular individual’s behavioural pattern and as such, cannot be reduced to mere neuro-psychological mechanisms. It might be useful to understand the mechanisms involved but this knowledge alone will not explain the reasons underlying drug use in our society.
Fourthly, the colonization of the mind by the authority of experts-acting as mediators between politicians and the community – equates to the dangerous colonization of social sciences by natural sciences. This is nothing new. This process began in the 19th century but significantly accelerated during the 20th century. The most significant manifestation of this process is the ever-closer links between psychology and neuro-science. Consequently, a transposition of methods and problem-approach systems has taken place. As a result, human sciences have now taken on a quantitivist-reductionist approach, which in turn has led to a knowledge crisis. A sample of 100 young people chosen at random to undergo a battery of psychological tests aimed at determining why they use cannabis will provide apparently serious anecdotal research and a series of correlations, which are unlikely to reveal the reasons behind drug use.
In some academic and decision-making circles, it is fashionable to refer to “evidence-based” policies. By this, we mean policies based on “scientific” evidence of approaches that work. One of the most striking examples of this approach was the Crime Reduction Strategy implemented in the United Kingdom in 1998 by the then newly-elected Labour government. Under this scheme, considerable money was earmarked to support those crime prevention initiatives that studies had shown to be effective with the goal of reducing various types of crime by a specified percentage over a five-year period. Despite this scheme, the United Kingdom is currently facing a crime “crisis”, in part because crime rates have risen, and the Crime Reduction Strategy is a shambles.
It is tempting to ask how the outcome could have been any different. Social engineering strategies in areas such as population control and crime prevention date back to the 19th century and have rarely provided tangible results. These initiatives, which are built on one or two “formulae”, themselves drawn from a small number of controlled experiments, do not take account of the complex nature of the modern world, with its ever-growing, increasingly fluid and intangible interdependent and multi‑level relationships. Is it in an attempt to flee this reality that we seek refuge in the mathematical abstraction of correlations between supposedly predictive variables?
The Committee’ report - especially the second part - has put great emphasis on research-based knowledge. This focus is an attempt to do justice to the knowledge that has been developed over the past few decades. We considered it important and indeed necessary to give it detailed consideration. Indeed, the Committee recommends that the drive for knowledge acquisition on specific issues that we deem to be important be continued.
We do not claim, however, to have answered the fundamental question of why people consume psychoactive substances, such as alcohol, drugs or medication. We were indeed surprised, given the quantity of studies conducted each year on drugs, that this area has not been covered. It is almost as if the quest for answers to technical questions has caused science to lose sight of the basic issue!
Scientific knowledge cannot replace either reflection or the political decision-making process. It supports the process. Indeed, we consider that its greatest contribution to public drug policy is in doing so. Our guiding principle is that science, which must continue to explore specific areas of key issues and reflect on overarching questions, supports the public policy-development process. No more, but no less.
One of the greatest challenges for modern societies is to collectively invent new forms of social life and community belonging that stretch beyond the tools of formal law. As individuals with objective and subjective rights, people can participate fully in the development – we would even go as far as to say the conquest – of the collective project of creating a society. It is no longer sufficient just to develop legislation and for people to automatically accept this legislation just because it was democratically decided by Parliament. We need to promote ethical participation - through discussion - in the development of collective and individual governance. The groups from civil society, whether they oppose the “behind-closed-doors” globalization process or support promoting fair and sustainable development, are asking how we can collectively develop a joint-participation normativity process, in which collective governance and individual governance are mutually supportive.
This discussion brings us to the conclusion that public policy on illegal drugs, specifically cannabis, ought to be based on an ethic of reciprocal autonomy and a resolve to foster human action. It ought to defer to criminal law only where the behaviour involved poses a significant direct danger to others. It ought to promote the development of knowledge conducive to guiding and fostering reflection and action.
Our work is being conducted at a time in history, in a given historical period. That history is not simply a field external to us, something outside us, exercising no influence on what we do. It is closely bound up with our actions, influencing them in various subtle ways. At the same time, because we are living through and making that history, we do not have the necessary distance from it to reconstitute all its elements or to understand all its implications. However, to re-situate our work in its complexity and uncertainty, we have a responsibility to attempt to ascertain certain elements of this history-in-the-making. This brief chapter is an attempt to identify certain historical elements we think are relevant to our effort. We have identified six elements which we have divided into two spheres, international and national, recognizing that those two spheres necessarily interact with each other. The international elements are: the globalization of markets and the trend toward economic and even political integration; the spiralling increase in discourse on safety and the drug-crime equation; and the aspects of change becoming apparent in certain countries with regard to drug policies. The national elements are judicial activism, which is reflected in significant court decisions at least with regard to the therapeutic use of cannabis; the adoption of the National Strategy on Community Safety and Crime Prevention; and the fight against organized crime.
The last two decades have witnessed significant changes in the international arena and in the structure of national states. The idea here is not to write the history of or to analyze this period. A few of those changes, however, have had a definite impact on drugs.
Globalization and integration
Since the early 1980s, with market deregulation, we have witnessed a globalization of trade and a more significant degree of continental integration. The end of the Cold War and the disappearance of the Soviet Bloc, as well as the opening of China to capitalist markets, have merely increased the pace of these movements. As a result, we have seen, in particular, an increasing degree of integration of the European economy under the Maastricht accords and in the North American Free Trade Agreement between Canada, the United States and Mexico.
At the same time, rapid technological change, particularly through the Internet and satellite communications, has helped to further open borders, although in varying ways and to various degrees, depending on the level of development in the various countries, to the movement of goods and capital. Similarly, the increase in population flows and travel has led, at times by default or even against the will of certain states, to freer movement of people.
These changes have had a significant impact on the illegal drug markets. The opening of markets and borders has of course created new money laundering opportunities, while making it more difficult to monitor borders and transportation. However, we all too often forget certain effects of macro-economic policies governing global capital flows and expected structural adjustments, particularly in developing countries. One study produced for the United Nations International Drug Control Program clearly shows this.
Efforts to achieve (balance of payments) stability often aim to reduce the external deficit by reducing the level of domestic consumption. Macroeconomic stabilization often requires a reduction in expenditure by government and/or the private sector.
In situations of reduced money growth, an infusion of hard currency can bolster a country’s foreign reserves, ease the hardship associated with expenditure-related policies, and moderate foreign indebtedness. Drug money could in this light be perceived as a potentially stabilizing force, a source of capital without the strings of conditionality attached. Clearly, there are "benefits" which accrue to countries which serve as reservoirs of the revenues from the international drug trade.
In addition, the trend toward the privatization of entire sectors of national economies, particularly in Eastern European countries after the fall of the Berlin Wall, but also in a number of Latin American and Asian countries, in an environment in which internal regulation measures are weak and bank credit tight, fosters the inflow of money from organized crime particularly through the laundering of drug money. It has been observed moreover that the concentration of industrial production in those countries is not necessarily reduced following privatization, thus further favouring penetration by organized crime.
Observers also too often forget the role of investors from the developed countries, where the push for deregulation and market liberalization originates. In those countries, as Campodònico has noted, "(r)are indeed are prosecutions against drug traffickers or financial institutions of the industrialized world, which is precisely where most of the proceeds of drug trafficking are kept." The result is a kind of dual discourse in which the necessity of liberalization of capital for multinationals makes it impossible to distinguish between clean and dirty money. The example of Peru developed by Campodònico and that of Russia examined by Keh show striking structural similarities.
The end of the Cold War also meant that the countries allied to the Soviet Bloc, or internal guerrilla groups, had to turn to other sources of financing. This is the analysis of the Geopolitical Drug Watch and its founder Alain Labrousse, who appeared before the Committee on May 28, 2001, citing the example of Kosovo:
What happened in Kosovo is a good example in this regard. The creation of the KLA was financed by intense heroin traffic from Istanbul. The heroin was sold in Switzerland to buy Kalashnikovs and handguns. They were more or less freely available and were stored in the Albanian part of Macedonia.
And as though to make the connection with the perverse effects of liberalization and the involvement of macroeconomics, Mr. Labrousse wrote in an earlier book:
[Translation] According to estimates, drug trafficking in the world generates between 420 and 577 billion francs in business annually. The growing role that these funds play in the democratization and economic restructuring process is leading to an explosion in drug production and trafficking in Asia, Africa and the East. It is this windfall, drawn on by local powers of all kinds, that fuels nationalist, ethnic and religious conflicts in the Third World and countries of the former Communist Bloc. Drugs, an economic issue and a tool of power, are now a given in international relations. Apart from a few major traffickers, the banking systems of the rich countries, the IMF and the major international organizations are involved.
Like other analysts, Mr. Labrousse observes that the developed countries are not immune to criticism since they "close their eyes" when their interests, particularly strategic and economic, are at stake.
[Translation] An incident occurred and was reported by the press when the international financial action group prepared a list of countries suspected of engaging in money laundering; it did not include either the Anglo-Norman island of Jersey or the Principality of Monaco, which surprised everyone. It was subsequently discovered that France and England had negotiated with each other to ensure neither appeared on the relatively infamous list.
This is also the case of European interests in Morocco and Africa more generally, as well as American interests elsewhere, in tax havens.
Chapter 1 of the 2001 report of the International Narcotics Control Board (INCB), a UN agency responsible for monitoring implementation of international drug control treaties, concerns the effects of globalization and new technologies. The agency writes that, apart from their "innumerable benefits" globalization and new technologies have had perverse effects: undermined cultural identities, political and social itemization, marginalization and growing poverty in certain sectors. According to the Board, "these disparities are exploited by drug dealers and traffickers in their attempts to develop new markets. Moreover, in the course of the last decade, the growth in trade and financial activity has provided criminals with greater possibilities for concealing the illicit transfer of goods such as internationally controlled drugs and precursor chemicals and for disguising the proceedings therefrom." According to the report, drug traffickers use new technologies to enhance the effectiveness of product delivery and distribution, to protect themselves and their illegal activities and to commit conventional offences using new methods or to commit new types of offences. Among other things, the Board also notes:
· The Inter-American Drug Abuse Control Commission noted for 1999‑2000 that the Internet had become the most widely used medium for expanding the production of synthetic drugs in some countries of that region;
· According to the International Criminal Police Organization (Interpol), in 2000, over 1,000 Web sites world-wide offered to sell illicit drugs, mostly cannabis;
· Increasing recourse to electronic means of financial transfer, together with a massive growth in the volume and speed of monetary flows, lead to reduced capability for detecting illicit capital movements; and
· The Financial Action Task Force on Money Laundering (FATF) has warned that there are three characteristics of Internet use that could aggravate certain conventional money-laundering risks: ease of access, depersonalization of contact and rapidity of electronic transactions.
In short, while the search for greater coherence, and indeed for better predictability of international markets, is highly promising, particularly as regards the developing countries, it also has untoward effects, regardless of all other geopolitical considerations. Moreover, these characteristics also afford “unexpected” benefits… for organized criminal groups.
Over the same period, in various Western countries, a preoccupation for domestic security has gradually arisen in response to the perceived or actual increase in crime and to the public's feelings of insecurity. The effects of this have been observed in election campaigns based on law and order and in a shift toward measures considered repressive by some, such as zero-tolerance policies.
With regard to drugs, this social discourse has had two main components. The first, starting in the early 1980s under Ronald Reagan's presidency, was the "war on drugs", which went far beyond U.S. borders. The second, starting in the late 1980s, an attitude increasingly emerged that equated drugs with crime.
The war on drugs made it possible to allocate unprecedented resources to the effort. It was at this time, it will be remembered, that Canada launched the first phase of its anti-drug strategy with a budget of $210 million over five years. In its "war on drugs" the United States allocated 17 times that amount, increasing federal spending alone from $100 million in the early 1970s to more than $17 billion in 2002. The combined spending of the federal government and the states on the war against drugs was estimated at more than $40 billion in 2002. As a result, that war led to a quadrupling of the American prison population, from 500,000 inmates in the early 1980s to more than two million in the late 1990s.
During the 1990s, corrections constituted one of the fastest growing line items in state budgets. On average, corrections consumed 7 percent of state budgets in 2000. Today, it is costing states, counties and the federal government nearly $40 billion to imprison approximately two million state and local inmates, up from $5 billion in combined prison and jail expenditures in 1978. Twenty-four billion of that was spent on the incarceration of non-violent offenders. Despite the modest recent decline in state prison populations, the massive growth in state prisoners over the past two decades has meant that one out of every 14 general fund dollars spent in 2000 was spent on prisons. (…) The expansion of America’s prisons has been largely driven by the incarceration of non-violent offenders. The percentage of violent offenders held in state prisons declined from 57 percent in 1978 to 48 percent in 1999. From 1980 to 1997, the number of violent offenders committed to state prison nearly doubled (up 82 percent), the number of non-violent offenders tripled (up 207 percent) while the number of drug offenders increased 11-fold (up 1040 percent).
In Canada, as will be seen in Chapter 14, while the overall crime rate has been declining regularly in the past 10 years, the percentage of drug-related incidents has constantly increased, and the overall prison population has remained stable. There are even grounds to suggest that the percentage of inmates with addiction-related problems has in fact risen.
This discourse has resulted in a host of national and international measures, in particular increased policing powers in the war against drugs in various countries, a reinforced international police infrastructure, use of the war against drugs in international diplomacy and its reflection in UN proceedings, particularly at the United Nations' extraordinary session on drugs in 1998.
The other aspect of the debate is the drug-crime equation. For a significant proportion of citizens, drug use is associated with crime, when it is not simply reduced to one of its major causes. Witness the following comments:
We cannot continue to apply policies and programs that do not deal with the root causes of substance abuse and attendant crime.
In countries that have adopted permissive policies toward drug use, violent crime and organized criminal activity have increased proportionately to the drug trade.
The social harm from other illicit drugs (such as cannabis - ed.) presents a different picture. In some communities or neighbourhoods across the country, the harm caused to innocent victims of violent crime and property crime is very great. (…) This results from drug-addicted users committing crimes to get money to feed their habit.
Deeply rooted in perceptions and attitudes, this belief, which is discussed later in Chapter 6, and which research data support only in part, has resulted in a series of measures including the creation of special drug treatment courts and the introduction of treatment orders for offenders with known dependence problems, the spread of urine testing programs in the work place and in prisons, as well as the remodelling of socio-community intake systems.
This association of drugs and crime sprang from fertile ground, for a number of reasons: changes caused by globalization and the realignment of the role of the state, which explain at least in part the increased social and economic inequalities between North and South, but also within countries, in the North and in the South; the increased insecurity of general living conditions following the 30 years, from 1945 to 1975, of unprecedented prosperity and employment security; divisions within communities caused by uncertainty and inability to manage mixed populations. For all these reasons the increase in "ordinary" crime (break and enter, car theft, vandalism and so on) has become the perfect metaphor for the insecurity of living conditions. Being an easy target that has considerable, very real impact on everyday life in neighbourhoods already subject to other social and economic problems, minor crime now elicited a stern, repressive response. Hence, in all Western countries, the number of prison terms and length of sentences increased starting in the mid‑1980s. In addition to this collective security "crisis", there was a division between generations, as a result of which youths as a group came to be viewed as a source of concern, if not simply potential criminals. For example, during that period, Canada experienced an unprecedented increase in its reliance on detention for minors, placing it at the top of the list of industrialized countries in that regard. Since young people are the principal drug users, the rest of equation was quickly established.
However, the advent of AIDS in the 1980s helped to cast doubt on prohibitionist policies on illegal drugs. Toward the end of the decade, it was discovered that intravenous drug users had a high rate of HIV and other pathologies such as hepatitis. In fact, intravenous drug use was the second leading cause of infection among men, after homosexual and bisexual practices, and the second leading cause as well among heterosexual women. Repressive policies, based on prohibition of use, do not make it possible to adequately inform users or to adopt risk reduction and preventive measures, such as needle exchanges or supervised injection sites. The increase in harm reduction practices in a number of countries would be based on this new reality.
The creation of agencies monitoring illegal drug use trends was another factor in the questioning of drug policies. Until the mid‑1980s, the U.S.A., England and Australia were virtually the only countries with systems for regular and repeated epidemiological surveying of drug use trends in the population. Starting in 1993, the European Union developed its tools to monitor trends in use and policy responses with the establishment of the European Monitoring Centre for Drugs and Drug Addiction and its focal points in individual EU countries. This regular monitoring system showed, among other things, that drug use trends may not vary so much with public policies as with social, cultural and symbolic factors.
Lastly, some states began to question their public policies on the basis of impact assessment studies. That was the case in particular of Australia and Switzerland as well as certain American states. Apart from the often emotional rhetoric, it was discovered in those studies that, in addition to having little impact on drug use, policies had significant untoward effects and high economic costs. It was moreover the results of certain cost benefit studies that led California and other U.S. states to review their highly repressive approaches (involving, for example, automatic incarceration on the third offence, whatever it might be).
While national legislation on illegal drugs, particularly cannabis, did not in fact change, there was nevertheless a distinct trend toward questioning practices, particularly legal practices, and seeking alternatives while still complying with the international conventions. That was the case of Spain, Italy, certain Australian states, Belgium and, more recently, Portugal and Switzerland.
We have identified three major causes of change in Canada over the same period which have had at times paradoxical effects: the judicial activism resulting from the coming into force of the Canadian Charter of Rights and Freedoms in 1982, the adoption of the National Strategy on Community Safety and Crime Prevention and the fight against organized crime. Since we will be discussing each of these causes more fully in subsequent chapters of this report, we will only briefly sketch out the broader context here.
With regard to cannabis, there is undoubtedly no better example than the decision by the Ontario Court of Appeal in the R. v. Parker. In that case, the Ontario Appeal Court considered the constitutional validity of the prohibition against marijuana under the Controlled Drugs and Substances Act in the context of its use for medicinal purposes. The Court unanimously held that Terrance Parker's allegations that the prohibition violated his fundamental rights under section 7 of the Canadian Charter of Rights and Freedoms were founded. Rosenberg J.A., writing for the majority, found that Mr. Parker needed marijuana to control the symptoms of his epilepsy and that the prohibition against marijuana possession was accordingly unconstitutional. The Court thus held that the statutory provision was null and void. However, they suspended the declaration of invalidity for one year, thus giving the government time to amend the act accordingly. In July 2001, as a result of that decision, the government made regulations circumscribing the use of cannabis for medicinal purposes.
Other judicial decisions altered the applicability of drug legislation in various ways, particularly regarding police powers. Certain of these decisions are briefly reviewed in Chapters 14 and 15.
Generally speaking, it has been observed that, since the Charter came into force, the courts have played an increasingly significant role in Canadian political life, and the drug issue has not fallen outside the scope of this judicial activism. Moreover, a decision on the issue of the use of cannabis for non-medicinal purposes is to be rendered by the Supreme Court of Canada in the coming months.
In 1999, as a result of the work of the National Crime Prevention Council, the federal government introduced the National Strategy on Community Safety and Crime Prevention. The purpose of this national strategy, originally allocated an annual budget of $35 million, which increased to approximately $65 million this year, is to prevent crime through social development actions in the communities by taking action in particular on risk factors among children and youths. While the Strategy does not specifically mention prevention of drug use, a certain number of its projects and activities have focused on that issue in various ways.
The Centre has seen fit to fund two special drug treatment court pilot projects, in Toronto and Vancouver, for the purpose of preventing repeat drug abuse and related criminality. The Centre also supports an initiative of the Federation of Canadian Municipalities to introduce drug-free communities in a certain number of cities. It is also supporting the evaluation of alternative measures programs for youths accused of cannabis possession.
If there is one legal subject that has given rise to extensive public debate, led to the passage of new legislation granting greater powers to police forces and resulted in spectacular police operations and no less spectacular trials, it is organized crime, in particular criminalized motorcycle gangs in Quebec, the Italian-Canadian Mafia in Montreal and the Asian heroin rings on the West Coast.
In 1995, Parliament passed Bill C‑95 granting police officers more effective tools for investigating and prosecuting individuals taking part in gang activities. Four years later, three problems led the government to propose amendments to the Criminal Code and other statutes: the problems involved in implementing the act, the growing influence of organized crime in Canada and the illegal activities committed by police officers in undercover operations. In 1999, in passing Bill C‑51 (an omnibus bill amending the Criminal Code), Parliament granted immunity from prosecution to police officers who had to commit offences related to money laundering in the course of an investigation or in performing other duties. According to the government, the purpose of that amendment was to support police officers in the fight against organized crime and money laundering.
In addition, on October 19, 2000, the Sub-Committee on Organized Crime of the House of Commons Standing Committee on Justice and Human Rights tabled a report proposing a series of amendments that could be made to the Criminal Code to facilitate the fight against criminal organizations. The Sub-Committee began its work in April 2000, and, in view of the nature of the subject under study, its members decided at the outset to perform their work in camera. Among other things, the Committee recommended that the Criminal Code be amended in such a way as to group together all provisions concerning activities relating to organized crime in a specific part entitled "Organized crime, designated substance offences, gangs and money laundering". A number of the Committee's recommendations were incorporated into Bill C‑24, which received Royal Assent in December 2001.
These considerations of the global environment help put the drug issue in context. Always considered as a public security question, this issue more fundamentally concerns the upheavals societies are currently experiencing as a result of globalization. The place of drugs in those societies, which are shifting painfully from the modern to the post-modern world, attempting to reinvent society after individual destiny, so central to the cultural "revolutions" of the 1960s, has replaced family and collective destiny, raises questions about the boundaries of the individual and his relationship to others and about the very possibility of community given the significance of the individual. As the sociologist A. Ehrenberg has emphasized:
[Translation] (…) drugs appear as the condenser of uncertain responsibility. For democratic societies, it is the opportunity for a consideration of the limits of private freedom, that is to say of the tension between minimum contact with one's self, without which one cannot enter into relations with others, and minimum distance from self, without which one cannot make a society.
In another way, this is also what B. Alexander said in a brief he submitted to the Senate Committee:
Because western society is now based on free-market principles which mass-produce dislocation, and because dislocation is the precursor to addiction, addiction to drug use and to other substitute life styles within western society is not the pathological state of a few, but, to a greater or lesser degree, the general condition. Because free-market society increasingly provides the model for globalization, addiction is becoming more and more prevalent everywhere on earth (…).
As may be seen, the drug issue cannot simply be raised in terms of criminalization or decriminalization because it refers to much deeper societal issues relating to the role of government of the self in a context in which political government of the community is changing, and to the relationship between the two. Reducing the drug issue to a question of more or less repressive or more or less liberal criminal legislation is to rule out broader questions and to play the game of the particular interests of institutions which have every interest in reducing the figure of the addict to that of the “other”, the deviant, the pathological case, and drugs to mere illegal drugs, whereas the faces of drugs are many and diverse. As the International Narcotics Control Board states in its 2000 report, trafficking in licit psychoactive drugs and their increased use are, in many respects, much more disturbing phenomena than the illegal drug market. There is a great risk that we will mistake the tip of the iceberg for the iceberg as a whole and allow ourselves to drift away on notions as simplifying as they are dangerous for a true public policy on drugs.
Alexander, B.K. (2000) "The globalization of addiction." Addiction Research, Vol. 8, No. 6, page 504.