Chapter
21
Public
policy options
Public
policy is not just a matter of enabling legislation, in this case criminal
legislation. Nonetheless, when it comes to illegal drugs, criminal legislation
occupies a symbolic and determinative place in public policy. It is as if this
legislation is the backbone of our public policy. Public discussions of cannabis
do not deal so much with such matters as public health, user health, prevention
of at-risk or excessive use, but with such questions as the pros and cons of
decriminalization, establishing a civil offence or maintaining a criminal
offence, or possible legalization and the extent thereof. As we complete our
report, the Minister of Justice is releasing trial balloons in relation to
decriminalization. Apart from the merits of this approach–to be discussed at
length in this chapter – it is clear that tinkering with the criminal
legislation is not indicative of an authentic public policy. In this
Committee’s view, a public policy on
cannabis must be, first and foremost and essentially, a public health policy
based on encouraging government and users to assume more responsibility.
On a
general level, the tendency to reduce drug issues to the legal framework fits
neatly into the increasing juridicization of social relations, a situation in
which legislation is the central, sometimes the only, tool of government policy.
However, in the matter of illegal drugs, other factors are also at work.
On the
one hand, this attitude has been at the very heart of the approaches to drugs
throughout the twentieth century, approaches in which criminal prohibition
guides - and restricts - public policy. It is only because of the AIDS crisis
that the merits of harm-reduction approaches have been “discovered.” Even
then, decision-makers were often preoccupied more with protecting non-user
members of society than with improving the health of drug users. When
governments decided to tackle the criminal behaviour of drug users deriving from
the criminalization of drugs (we do not mean organized crime and drug
traffickers), the aim was not so much to improve drug users’ living conditions
but to protect non-users from drug-related “mischief.”
On the
other hand, criminal prohibition is often thought of as the “ultimate
stronghold” against uncontrolled proliferation of drug use. Without criminal
prohibition, we were told, cannabis consumption might well explode out of
control. The underlying hypothesis, rarely stated explicitly, that criminalizing
drugs contributes effectively to reducing their use, has never been
demonstrated, however. Quite the contrary, as this chapter will show, available
data tend to demonstrate that prohibitionist policies have little impact on
levels of use or availability of drugs.
Public
policy cannot be reduced to adopting legislation, the more so since laws rarely
contain clearly stated guiding principles setting out aims and objectives. In
respect of illegal drugs, where the key issues are, first and foremost, matters
of public health and culture (including education and research), and where
criminal law should be used only as a last resort, public policy must be based
primarily on clear principles and objectives. For this to come about, public
policy must be equipped with a set of tools designed to deal with the various
issues that drugs represent to societies. Legislation is only one such tool.
The
social and economic costs of illegal drugs affect many aspects of society
through lower productivity and business loss, hours of hospitalization and
medical treatment of all kinds, police time and prison time, and broken or lost
lives. Even if no one can pinpoint the exact figures, a portion of these costs
arise, not from the substances themselves, but from the fact that they are
criminalized. The drug most frequently associated with violence and criminal
offences, including impaired driving, is in fact legal, alcohol.[1]
Cannabis, the criminal organizations that control part of the production
and distribution chain aside, neither leads to crime nor compromises safety.
Even its social and health costs are relatively small compared to those of
alcohol and tobacco. In fact, more than for any other illegal drug, we can
safely state that its criminalization is
the principal source of social and economic costs.
However,
in spite of the fact that the principal social costs of drugs affect business,
health and family, the emphasis on the legal debate tips the scales of public
action in favour of law enforcement agencies. No one can deny that their work is
necessary to ensure public order and peace and to fight organized crime. At the
same time, over 90% of resources are spent on enforcing the law, the most
visible actions with respect to drugs in the public sphere are police operations
and court decisions and, at least in the case of cannabis, the law lags behind
individual attitudes and opinions, thus creating a huge gap between needs and
practice.
Most
national strategies display a similar imbalance. The national strategies that
appear to have the greatest chance of success, however, are those that strive to
correct the imbalance. These strategies have introduced knowledge and
observation tools, identified indicators of success with respect to their
objectives, and established a veritable nerve centre for implementing and
monitoring public policy. The law, criminal law especially, is put in its proper
place, that of one method among many of reaching the defined objectives, not an
aim in itself.
This
chapter is divided into three sections. The first examines the effectiveness of
legal measures for fighting drugs and shows that legal systems have little
effect on consumption or supply. The second section describes the various
components of a public policy. The third considers the direction of criminal
policy, and defines the main terms used: decriminalization, depenalization,
diversion, legalization, and regulation.
ineffectiveness
of criminal policies
Two key
indicators are usually applied to measure the effectiveness of drug-related
criminal policy: reduced demand and reduced supply. Some authors attempt to
measure the economic efficiency of various control options[2];
we do not address this aspect as the data are incomplete.
The
methods of measuring the impact of public policy on supply and demand are faced
with a series of methodological pitfalls. Firstly, the two indicators are
relatively artificial and not easily distinguished from one another. In other
words, a given measure impacts both indicators simultaneously and are often
accomplished by the same institution For example, a police officer conducting
drug “education” in schools, theoretically for the purpose of affecting
demand, also works to reduce supply. Secondly,
the capacity of agencies responsible for affecting one or the other depends on a
series of factors relating to their means and resources, their practices and
skills, and their competence. For the police, the number of officers per capita
and the general thrust of law enforcement services (community police,
traditional more reactive police) as well as the priority given to drug-related
offences, can influence the volume of reported incidents as well as the decision
to lay a charge. Generally speaking, the total resources allocated by a
government to its drug policy may affect one or both of these indicators. In
short, effectiveness cannot be measured directly.
It is
even more difficult to assess, even indirectly, the impact of action taken, when
clear objectives, ideally associated with indicators, are not defined, as is the
case in Canada at this time, as was seen in Chapter 11. This being the case, and
because we are in no position to make a rigorous assessment of public policy on
drugs, we will examine the question on the basis of a series of indirect
indicators.
Impact on consumption
General policy direction
At the
most general level, national governments (see preceding chapter) define a
general direction for their policies on drugs. Some are more tolerant or
permissive (e.g., the Netherlands, Belgium, Spain, and Germany); others stress
prohibition and abstention (e.g., the United States, Sweden, France).
Admittedly, these are crude categories, ignoring the complexity of each
country’s policy. Even in the U.S.A. with its “war on drugs”, individual
cities and states may implement widely different measures. Furthermore, there is
often a huge gap between public policy statement and concrete action. For
example, in France, a tough stance on use is accompanied by limited user-related
police activity. In Canada, as a number of witnesses told us, enforcement by
police is often at odds with “lenient” court decisions. In other words,
there is no direct relationship between political statements and concrete
action.
Some
comparative studies have attempted to determine whether or not public policy
influences use levels. A study by Reuband compares “tolerant” European
countries (the Netherlands, Spain, Denmark, and Italy) and restrictive countries
(Germany, France, Norway, United Kingdom, and Sweden). The study found no
significant differences between consumption levels, regardless of public policy
direction.[3]
The
“Message” of the Conseil fédéral
suisse sur la révision de la loi sur les stupéfiants reports the results
of a comparative study on seven European countries by Cesoni, which reached the
conclusion that the legal regime had no influence on the frequency of
consumption.[4]
Another
study carried out for the Office fédéral
suisse de la Santé publique classifies the policies of European countries
on a line from “very liberal” to “very restrictive”, relating them to
the lifetime prevalence of cannabis consumption. The study shows no relation
between severity of legislation and level of use.[5]
We have
drawn up two similar charts, classifying the policies of the various countries
and adding Canada, Australia, and the United States. We used the Chapter 6 data
on lifetime prevalence of consumption in the general population (Chart 1) and in
the past month among 15-16 year olds (Chart 2).
The
charts show no direct relationship between consumption levels and public policy
direction. Very liberal countries show low rates (Spain, the Netherlands,
Portugal), whereas countries that have very restrictive policies show high rates
(USA, Canada, France). Of course this may be explained by the fact that these
are static statistical data not a time
series, and are thus little influenced by variations from year to year. Another
possible explanation is that, as few users are arrested, there is a strong
inconsistency between words and action. The following section looks at this
issue.
Cannabis consumption and
arrests
A number
of authors have looked at the relationship between arrest levels and delinquent
behaviour in general, and in drug consumption in particular. One recent study
was conducted by Kilmer[6]
within the context of the International Scientific Conference on Cannabis. The
following graph is from that study.
The
graph shows that, in all countries, the number of arrests per inhabitant for
simple possession of cannabis increased during the 1990s, with Australia the
only exception. Switzerland, currently considered relatively moderate, has the
highest level of arrests per inhabitant, followed by the USA, Austria, the
United Kingdom, France, and Germany.
Here
again there appears to be no direct relationship between direction of public
policy and arrests. Switzerland and Australia, both of which have far more
moderate policies than the USA, arrest proportionally larger numbers of people
than that country, although Switzerland’s consumption rate is far lower than
that of the USA, and Australia’s is virtually the same.
The
variation in rates of arrest cannot be explained by the number of police
officers per inhabitant. France has far more officers than does the USA or
England, but arrests far fewer people than the USA and fewer than the UK for
simple possession.
We
created a graph charting the relationship between the number of users among high
school youth in Ontario in the past twelve months and incidents declared by the
police of cannabis-related offences in the same year in Ontario. We chose
Ontario because it is the only province that produces continuous time series on
consumption levels, and the Ontario figures are almost identical to the Canadian
mean (Chapter 14). The results are shown below.
|
|
The
graph shows a very weak statistical relationship (0.15) between police activity
and cannabis use. In other words, police activity has no dissuasive effect on
cannabis experimentation by young students.
Criminology
teaches that probability of arrest carries far more dissuasive weight than
severity of sentence. As the following table shows, the probability of arrest is
very low for cannabis possession offences.
Probability of being arrested for cannabis possession[7]
|
1995 |
1996 |
1997 |
1998 |
1999 |
Germany Australia Austria Canada United States France United Kingdom Sweden |
3.7% 1.7% 1.8% 2.8% |
3.0% 2.1% |
2.7% 1.7% 3.1% 2.4% |
2.1% 3.2% 2.9% |
2.0% 3.2% 2.0% |
Public spending
While
none of the preceding factors appears related to consumption levels, can a case
be made for public spending?
There is
danger in trying to estimate the overall cost of public policy on drugs. Even
for a budget item as seemingly well-defined as law enforcement, estimates are
unreliable. As we saw in Chapter 14, the cost of law enforcement ranges from
$700 million to $1 billion. Figures on public expenditure related to
treatment and prevention, even if we know that they are much smaller than those
for law enforcement, are equally unreliable.[8]
Making
international comparisons is even riskier. Services are organized differently,
costs are not accounted for in the same way, and service orientation and overall
government direction vary widely.
With
these reservations, we will attempt the exercise based on data from a number of
sources. To make the results a little more comparable, we restrict the
comparison to law enforcement expenditures which, in any case, account for
between 70% and 90% of public spending relating to illegal drugs. The following
table summarizes the data. (Note that, for Canada, we have used the data from
the CCSA study rather than our own estimates from Chapter 14. Our data show a
cost estimate of law enforcement (police, courts, prisons) of approximately $1.5
billion or $50 per capita).
Costs of enforcing
legislation in various countries
|
Cost of
enforcing legislation |
Per capita
costs |
Germany, 1992 [9] Australia, 1992 [10] Canada, 1992 [11] United States [12] France, 1998 [13] The Netherlands [14] |
DM 6.3 billion A$450 million US$300 million US$12.3 billion US$500 million US$230 million |
US$10 US$40 US$8 US$15 |
We note
that countries in which consumption levels are average (Germany, the
Netherlands) spend less than the USA, which has a high consumption rate; in
addition, these countries, specifically, show law enforcement expenditures above
those of two far more restrictive countries (France and Canada).
In
short, here again cannabis consumption levels appear unaffected by public policy
that aims to reduce demand by cracking down on use.
Impact
on supply
Does
public policy affect drug availability or price? The available data suggest not.
In spite
of sustained efforts to exert national and international control, battle drug
trafficking (macro and micro, local and international), the availability of
drugs, and cannabis in particular, has not fallen. Price has fallen
significantly (e.g., heroin, cocaine) or remained relatively stable (e.g.,
cannabis and derivatives).[15]
The relative price increase for some grades of cannabis is at least as
closely linked to attempts to improve “quality” (e.g., THC content, organic
cultivation) and the large profit margin earned by producers and traffickers, as
it is to the efforts of law enforcement agencies.
Conclusion
The
title of this section includes our conclusion: if
the aim of public policy is to diminish consumption and supply of drugs,
specifically cannabis, all signs indicate complete failure. We agree with the
conclusions from the Swiss studies that prohibiting cannabis use through the
application of criminal law appears to have little, if any, influence on levels
of use.
One may
think the situation would be worse if not for current anti-drug action. This may
be so. Conversely, one may also think that the negative impact of anti-drug
programs that are currently centre stage are greater than the positive effect,
specifically non-compliance with laws inconsistent with majority attitudes and
behaviour.
One
of the reasons for this failure is the excessive emphasis placed on criminal law
in a context where prohibition of use and a drug-free society appear to remain
the omnipresent and determining direction of current public policies.
Does
this mean nothing can be done? We do not believe so. Does it mean market forces
should be allowed to rule as if drugs were goods like any other commodity, a
solution suggested by some free-market advocates?[16]
Certainly not. Psychoactive substances, including cannabis, alcohol, and
medications, are not ordinary commodities. Although cannabis (see Chapter 7)
does not have the deleterious effects that some people claim and is in some
respects a less harmful substance than tobacco, it must be the subject of
regulation and government intervention.
The
question raised by the patent and costly failure in human, social, and economic
terms of Canada’s public policy direction to date, is what should be the
direction and components of public policy on cannabis and, as a corollary, the
role and direction of legislation. This is what is discussed in the following
sections.
General
economy of a public policy on cannabis
We are
fully aware of the somewhat artificial distinction imposed by our mandate
between cannabis and its derivatives and other psychoactive substances.
Different substances lead to different types of uses. This is as true of
cannabis as it is of alcohol, medications, cocaine, or ecstasy. The uses differ
with the substance - cannabis consumption differs from consumption of
medications or even alcohol. There is nonetheless a common basis to the
non-medical uses of psychoactive substances, which are primarily seen as a
source of pleasure, even a method of enhancing awareness and the senses. There
are of course other forms of use: abuse, for example, is not based on pleasure
but rather a physiological and psychological mechanism symptomatic of loss of
control, even distress. Nevertheless, throughout history human beings have
consumed psychoactive substances for reasons relating to self-liberation.
Uses
also differ for a given substance. Cannabis use, originally associated with
self-medication and religious rites, in twentieth century western societies
became an expression of a counter culture and the hippie movement, before
becoming a recreational drug. Although most cannabis use is self-regulated, in
some cases, when associated with at-risk behaviour, use can lead to abuse.
For
public policy on psychoactive substances to adequately encompass the common
dimensions of substance use, it must be integrated,
yet flexible enough to allow for approaches
that are adapted to different substances.
An
integrated public policy on drugs would be administered by a decision-making
body capable of making links between the substances and their uses so as to
propose a meaning to different drug uses. A public policy on drugs revolves
around the varying uses made of drugs and not on the substances themselves. In
other words, an approach more like that taken by France’s Mission interministérielle instead of an approach by multiple
decision-making bodies, each one operating in a functional silo, in competition
with the others as in the States, or for that matter in Canada, where illegal
drugs, tobacco and alcohol are handled by different agencies.
An
adaptable policy would be able to
propose, define and develop tools
suited to the various substances. Abuse of cigarettes causes lung cancer, not
death due to impaired driving. Some medications, however, do lead to fatal
accidents. Cannabis may be associated with both problems: cancer related to
combustion, and highway accidents related to psychomotor effects. We must be in
the position to understand what is specific to a given substance and what is
common to a variety of substances.
A
public policy, both integrated and adaptable must aim for knowledge of the
relationship between substances and methods and contexts of use,
in order to define the determining factors that separate non-problematic
self-regulated consumption, from at-risk behaviour, and excessive use and
related problems. There are two broad types of problems: the first affect user
health, the second the health and safety of others; they must be dealt with in
different ways. Certain measures must be preventive - inform users of risks and,
specifically, help individuals recognize the signs of at-risk behaviour that can
lead to problems. Those who consistently smoke between three and five cigarettes
a day, something very few tobacco consumers may be able to do, are probably at
no greater risk of lung cancer than non-smokers. Learning to manage consumption,
recognizing the dangers, and having the means and the tools to do so are key.
Other methods are dissuasive in nature: where drinking and driving are involved
for example. Finally, some measures are curative: whatever the substance, from
simple aspirin to heroin, for all kinds of reasons that pre-date consumption of
the substance itself, some individuals consume abusively in a way that leads to
health problems. The tools for treatment and cure must be available.
Thus,
and this is the third criterion, a public policy on psychoactive substances must
primarily be a public health policy:
prevention, abuse deterrence, and treatment are the three prongs of public
health intervention. A public health policy does not attempt to oblige people to
live healthy lives or to have the community decide individual behaviour for some
elusive public good. What we envision is a public health policy that contributes
to reducing the risks relating to the
different uses of different substances. A public health policy on psychoactive
substances is thus a risk reduction policy.
Harm
reduction approaches have been associated with needle exchange or the
prescription of methadone or heroin. Some think that harm reduction policies
rely too heavily on a medical model, simply softening the negative effects of an
otherwise prohibitionist regime.[17]
Harm reduction has been described as a “transition
doctrine, contradictory and ambiguous, with the ambiguity enabling unlimited
adaption.” [Translation][18]
Even worse, according to American psychiatrist Thomas Szasz, it is a morally
repugnant position reflecting government therapeutic paternalism.[19]
We
believe that what is essential is recognition that (1) use of psychoactive
substances cannot be eliminated, it is part of the human experience and not all
use is abuse - whatever the substance - and (2) all substances can have negative
consequences for both the user and society, making it advisable to contribute to
individual and community well-being by providing information, abuse prevention
tools and a treatment infrastructure. Recognition
that an individual is no less a citizen, indeed no less a good citizen,
because he chooses to smoke cannabis rather than drink alcohol, or chooses to
use rather than abstain, but that individuals and societies, according to the
circumstances and method of consumption, will have different needs is the key .
A public
policy on drugs does not target users: its implementation embraces them. For too
long, in any discussion of illegal drugs, including cannabis, the focus has been
on understanding the characteristics specific to consumers, as if they had some
feature distinguishing them fundamentally from users of tobacco, alcohol, or
psychotropic medications for non-medical use. Although problem users may indeed
have common characteristics, it is neither the substance nor being a user that
is the question: other factors underlying development of at-risk behaviour
should be given more attention.
Some
people told us that harm and risk reduction policies, or for that matter
decriminalizing cannabis, would “trivialize” its use. On the contrary, this
is normalization, not trivialization. Excessive use of any substance is harmful:
all substances may endanger user health, even coffee. Normalizing the use and
the user does not mean trivializing them. A public policy on drugs aims to normalize
uses of psychoactive substances: that implies not marginalizing users, while
at the same time not trivializing use and shrugging our shoulders, ignoring the
dangers specific to various substances.
To
summarize: a public policy on
psychoactive substances must be both integrated and adaptable, target at-risk
uses and behaviours and abuses taking a public health approach that neither
trivializes nor marginalizes users. Implementation of such a policy must be
multifaceted, as we will see now.
Components
of a public policy
The
public policies described in the preceding chapter, as well as the policies of
Denmark, Portugal, and Mexico, have a number of elements in common: they rely on
a strong decision-making body, promote interconnection and multiple viewpoints,
aim at national consensus on clear and measurable objectives, and rely on
independent knowledge and assessment tools.
Strong
decision-making body
One may
disagree with the political orientation of the American Office of National Drug
Control Policy (ONDCP); but no one can deny the office gives strong direction to
American national policy on drugs. Although one may be critical of the
structural rigidity of the French Mission
interministérielle (MILDT), or its timidity with respect to legislative
debate, however, one cannot help but agree that the MILDT has strongly
influenced French policy and practice in the past five years. Each country
covered in the preceding chapter has a highly visible, well-known
decision-making body that has undeniable legitimacy and methods of action that
meet expectations.
In our
opinion, the question of drugs, inasmuch as it is broader than the jurisdiction
of a single government department or level of government, inasmuch as it refers
to our collective ways of relating to society and others, and especially
inasmuch as it demands both integration and differentiation, must be governed by
an agency that is not accountable to a particular department and can define
direction for (not enforce diktats on) all players.
Interconnection
The
policies on psychoactive substances are the concern of educators and therapists,
police officers and anthropologists, diplomats and local associations and, of
course, users. The ability to tie things together for knowledge and
comprehension purposes supposes an ability to link specialties, administrations,
individuals. This is the meaning of interconnection that a public policy must be
capable of making.
A
shared definition of shared objectives
In
Chapters 11 and 18, we saw that federal policy on drugs, in addition to lacking
rigour and clarity, means and infrastructures, is not a national policy. This
does not mean there is no place for specific approaches by the provinces and
territories that make up the Canadian mosaic. However, if a common culture on
drugs is to emerge, if we are to better understand behaviours of use through
geographic comparison, if players are to benefit from the experience of others,
tools must be developed for the joint definition of shared objectives.
Moreover,
the ability - and the will - to define objectives is the foundation of any
future evaluation to determine whether or not the action taken is in sync with
the objectives and is effective; in short, defining objectives is necessary
because we must be able to assess the impact of what we do.
Information
tools
A public
policy must also rest on knowledge. Many witnesses, from all over, told us this.
European Union member countries, the United States and Australia have developed
powerful knowledge tools, specifically agencies that monitor drugs and drug
addictions. These monitoring agencies, most of them independent of the
government and political influence, are capable of measuring changing trends and
forms of use of various substances, understanding emerging trends and new
products, even assessing public policies. We are unable to see how Canada can
fail to develop a national knowledge tool on psychoactive substance use.
Legislative
options
So what
do we do with the legislation? Legislation stems from public policy direction,
which it supports and completes; it is a means, not an end.
Cannabis
debates are highly contaminated by discussions on decriminalization,
depenalization, legalization. The terms are frequently poorly understood,
especially as they are not necessarily clear. This section defines each key term
in the debate and suggests indicators that can be used to assess each option.
Clarification
of terminology
Decriminalization or
depenalization
The
United Nations Drug Control Programme (UNDCP) glossary of terms on drugs gives
the following definitions of the two terms.
Decriminalization
or depenalization
Removal
of penal controls and criminal sanctions in relation to an activity, which
however remains prohibited and subject to non-penal regulations and sanctions
(e.g., administrative sanctions such as the removal of driving licence).
Under
the “prohibition with civil penalties” option, the penalties for the
possession of amounts of drugs deemed in law as being for personal use are still
illegal but are dealt with by civil sanctions such as infringement notices which
attract a monetary penalty, rather than by criminal sanctions such as a criminal
record or imprisonment. Typically, the harsher criminal penalties still apply to
the more serious offences of possession, supply, manufacture or cultivation of
amounts of the drug deemed in law to be for trafficking or commercial purposes. [20]
For
Caballero and Bisiou, depenalization means essentially removing drugs from the
field of criminal law. They distinguish between total depenalization and
depenalization of use.[21]
The first removes all control except free-market forces. This is a far
cry from the UNDCP definition. Depenalization of use corresponds more closely to
decriminalization as defined by UNDCP. It is also the definition given by the
European Monitoring Centre for Drugs and Drug Addiction.
Possessing
or holding cannabis for personal use has been decriminalized in Germany,
Australia, Spain, Italy, Portugal, the Netherlands, and some American states.
The resemblance ends there because each country has slightly different way of
reaching the goal. In Australia and the American states where possession of
cannabis has been decriminalized, possession remains illegal and subject to a
fine. In Germany, the constitutional court has ruled that prosecution for
possession of small quantities of cannabis contravenes basic rights and is
unjustified. In Spain and Italy, possession of small amounts of cannabis is not
an offence and consumption is authorized except in public places. However, as in
Portugal, individual possession of cannabis is subject to an administrative
penalty (fine in Spain and Portugal; suspended licence in Italy).[22]
In the Netherlands, the possession offence has never been repealed, although use
and certain types of sale (coffee shops) are tolerated.
In all
cases, decriminalization is partial. It is sometimes de jure (Spain, Italy, Portugal) and sometimes de facto (the Netherlands, Denmark).
In
Canada, some authors have written in favour of decriminalizing cannabis. One of
the best known papers on this option may be that published by the policy
committee of the Canadian Centre on Substance Abuse.[23]
The authors identify four options for decriminalization:
·
Fines under the
Controlled Drugs and Substances Act
(CDSA) excluding incarceration as a possible sanction. The option retains the
illegality of cannabis possession and related criminal record consequences.
·
Civil offence:
here again the sanction is a fine, although the option differs from the first in
that cannabis possession is no longer sanctioned under the CDSA, but subject to
a sanction under the Contraventions Act.
·
Alternative
measures (or diversion): under this option, possession remains a punishable
criminal offence, but sanctions are suspended if the offender agrees to another
form of “treatment” or community service. Drug treatment courts are a form
of alternative measure.
·
Transfer to the
provinces: under this approach, the provinces would be free to adopt the control
measures they deem necessary (with the exception of criminal measures which are
exclusively federal). However, it is difficult to understand the reasoning of
the authors on this approach as it is more a form of legalization than
decriminalization.
In
Quebec, the Comité permanent de lutte à
la toxicomanie (CPLT) has made a
recommendation proposing diversion measures when deemed appropriate by the
authorities.[24] The CPLT defines
diversion as the “exercise, by the Crown
prosecutor, of a discretionary power enabling him to desist from prosecuting the
offender and instead apply alternate measures” [Translation].[25] However, diversion may be
given a broader definition, in which the discretionary power is exercised by the
police prior to a charge, giving a consumer a simple warning. The CPLT opinion
notes the following.
· Cannabis related offences account for at least 60% of offences under the CDSA, with possession the most frequent.
· The number of offences for possession of cannabis is rising, whereas the proportion that lead to prosecution is falling, even though such prosecution remains in a majority (approximately 60% of 1997 cases).
· The practice of laying charges and applying alternative measures varies among regions of Canada and within Quebec.
· Most sentences handed down by the courts are fines.
This
timid recommendation refuses to take a systematic approach and even links
cannabis consumption to delinquent or criminal activities, relating risk to
consumption of products with a high THC concentration, as if consuming spirits
should be subject to stronger measures than drinking wine.
The term
“decriminalization” is obviously loaded with contradictions. Even though the
term purports to remove it from the ambit of criminal law, cannabis consumption
remains illegal. The sanction may be less severe, but a sanction still applies,
one that, in some cases, can have the same impact as a criminal sanction and
entail even greater discrimination: a young or disadvantaged person unable to
pay the fine faces a far greater risk of ending up in prison than an adult or
socially secure individual. As explained to the Committee by Dr. Kendall:
However,
a cautionary note should be sounded. If Canada did adopt this recommendation, we
should be concerned and thus take steps to avoid the situation in Australia, or
to repeat that situation, where the imposition of a cannabis expiation program
actually led to a net widening effect, because the police now ticketed
individuals that they had previously ignored. Many of those so ticketed
failed to appear to pay their fines, and subsequent numbers entered the criminal
justice system for non-payment of fines and subsequently received criminal
convictions. There was an unintended result in that the number of persons
criminalized is as large, or perhaps larger, than before the measure was
implemented. [26]
In spite
of its merits and success, the Dutch system of controlled cannabis sale, a form
of de facto decriminalization, has no
way of regulating production and distribution, which is still controlled at
least in part by organized crime, or exercising quality control, specifically
the concentration of THC.
In the
opinion of some authors, decriminalization is in fact simply less severe
prohibition.[27] In other words, in the
guise of a socially responsible and rational measure, decriminalization in fact
furthers a prohibitionist logic. Same grounds, different form. This model has no
greater capacity for prevention or education than a strict prohibition model.
Even worse, the prohibition model is based on clear and consistent theory,
whereas the same cannot be said of decriminalization as an approach.
Some
will say that decriminalization is a step in the right direction, one that gives
society time to become accustomed to cannabis, to convince opponents that chaos
will not result, to adopt effective preventive measures. We believe however that
this approach is in fact the worst-case
scenario, depriving the State of a regulatory tool needed in dealing with the
entire production, distribution, and consumption network, and delivering a
rather hypocritical message at the same time.
Legalization
The
United Nations glossary of terms defines this term as follows.
Legalization
Removal
of the prohibition over a previously illicit activity, e.g., non-medical trade
or consumption of psychoactive substances. It does not necessarily imply the
removal of all controls over such activity (e.g. restriction on sale to minors).
[28]
The term
“legalization” is equivalent to Caballero and Bisiou’s concept of
depenalization, although it does not rely solely on market forces but includes a
form of regulation entailing some restrictions. To quote:
Controlled
legalization is a system that aims to replace existing prohibition of drugs by
regulation of their production, trade, and use with a view to restricting abuse
that can damage society (…) unlike depenalization, penal law retains its role
in preventing damage to third parties by users (drunkenness) or producers
(contraband). [Translation] [29]
No
system for controlled legalization of cannabis currently exists. Switzerland
comes close with its bill to amend the Loi
sur les stupéfiants. This type of regulation is nothing new: colonial opium
and kif regulatory bodies operated well into the first half of the twentieth
century.
Conversely,
legalized systems exist for the manufacture, distribution, sale and production
of such products as alcohol, tobacco, and psychotropic medications. These could
be used as a model for regulating the cannabis production chain.
Regulation
The
United Nations glossary of terms defines regulation as follows:
Regulation
The
rules governing all aspects of drug control promulgated pursuant to legislation.
Violation of these rules may attract criminal or non-criminal penalties, such as
fines and license suspension, depending on the seriousness and the intentional
nature of the violation. [30]
Although
one may play with words, regulation is in fact a necessary application of any
form of control, whether within a system of prohibition or a system of
legalisation. All consumer products, from the automobiles we drive to the food
we eat, are subject to some form of regulation. Quality control, environmental
standards, compliance with industrial standards, regulations on
accessibility—all are forms of regulation essential for ensuring no one is
poisoned by the food they eat, drives a defective vehicle, or plugs in a
dangerous appliance.
Regulation
is the most current form of government control; criminal law usually intervenes
when the controls fail or mandatory standards are not met.
The same
is true of the current international system for controlling narcotics. Canadian
legislation deals with “controlled” substances. The control system may range
from prohibition of all non-medical and non-scientific use (e.g., opium,
cocaine, cannabis), to less severe control measures that allow accessibility to
products deemed dangerous, under specific conditions.
Classification of legal
policy systems
MacCoun,
Reuter and Schilling examine various systems of legal policy, which they divide
into three main types: prohibitionist, controlled access, and regulated access,
each of which can be broken down further. Their classification system is
reproduced below.[31]
Prohibitionist
systems vary along a number of lines: based on the nature of prohibited activity
(e.g., possession, use, use in public); based on the severity of sanctions
(civil penalty, criminal penalty, imprisonment); based on the severity of
enforcement (resources, priorities); and based on the capacity to exercise
discretionary power (diversion, alternative measures). This makes it clearer why
decriminalization remains in essence a prohibitionist approach, albeit a less
severe one.
Controlled
access systems are in a grey area somewhere between prohibition and regulation.
In some ways, they are more like prohibition models, particularly by giving
powers of decision to a physician or pharmacist rather than promoting
individual user responsibility. This is the medical model criticized by Szasz,
Caballero and, closer to home, Malherbe, in his discussion paper on the role of
ethics and public health. One can see why harm reduction approaches belong in
this grey area, somewhere between prohibition and regulation, with the
prescription of methadone or heroine for treating addiction the perfect example
of medical power.
The
third type is the regulatory model that exercises various types of control on
who (who may purchase, restrictions on minors), what (different accessibility
levels for different substances), how (point of sale, location, requirement for
producers and vendors) and when (time of day, days of the week).
Prohibitionnist
Controlled access
Regulatory
|
Pure prohibition : no use possible (i.e., cannabis) |
Decreasing restriction |
Prohibitionist prescription : medical and scientific purposes only |
||
Treatment : prescription for the treatment of dependency (i.e.,
methadone) |
||
Regulated prescription : auto administration under prescription to
treat medical conditions (i.e, Valium) |
||
Positive licensing : available to any adult with a licence to
demonstrate his capacity to make responsible use |
||
Negative licensing : accessible to any adult who has not violated
some condition (i.e., criminal behaviour) |
||
Free market for adults : similar to alcohol |
||
Free market : no regulation (i.e., coffee). |
In our
opinion, there are basically only two
systems: a prohibition system and a legalization system. Both rest on
regulation, and the nature and direction of this regulation determines their
specific features.
Prohibitionist
systems may be subdivided into criminal and medical prohibition. In the first
case, sometimes referred to as outright prohibition, the justice system (police
and the courts) is central. In the second, the physician is the key player. In
both cases, the user is considered a “minor”, a person in danger who must be
protected from himself. Some call this legal paternalism. Both variations can be
more or less strict, more or less severe, but rest on the concept that all use
that poses a danger to the user and society and must be strictly controlled. In
this scenario, decriminalization of use
is a weak variation of prohibition, in the long run entailing more
disadvantages than advantages. In addition to failing to affect the production
chain and retaining the illegal aspect, it leaves no room for dispensing
information to and promoting responsible behaviour by users, or for strong
preventive measures. Conversely, the harm
reduction approach is a strong variation of a prohibition system. While this
approach recognizes the impossibility of eliminating the damage done by market
criminalization, it seeks nonetheless to reduce the negative effects of
prohibition on users, who are the focus of its main thrust, by introducing
education on drug content (for example, analysis of ecstasy consumed at raves).
Prohibition
System
|
Main player |
Degree of
prohibition |
Severity |
Criminal Medical |
Police / Justice Physician |
Prohibition of fabrication, cultivation,
production, sale, trafficking, use and consumption Decriminalization of use with criminal process / diversion Civil offences Recognized therapeutic uses only Treatment for dependency General prescription by a physician |
|
A
prohibition system, whether criminal or medical, calls for regulation derived
from criminal law: any interaction with drugs that is not authorized under the
medical model is punished by a criminal or quasi-criminal penalty.
The
other type of system rests on legalization of cannabis. It can also take various
forms.
Legalization System
|
Main player |
Accessibility level |
Degree of control |
State Market |
Community User |
User licences Licence for production / distribution / sale Free market |
+ - |
Legalization
systems range from issuing a user licence under certain conditions (e.g., no
criminal record, no dependency problems), to permitting a completely
uncontrolled free market.
Criteria
for a legal policy on cannabis
Some
studies have explored the question of the comparative effectiveness of public
policy systems in cost/benefit terms, others in terms of social costs. The first
type of analysis is impossible simply because no two strategies are different
enough for purposes of comparison: there is no cannabis regulation model that
can be compared to a prohibition model. The other approach is to consider the
social costs incurred by drugs based on a “cost of illness” model in a
“counter-factual” scenario: what would happen if there were no consumption
of this drug? However, as we saw in Chapter 18, it is difficult to establish the
real costs related to cannabis and the response of public policy to it, and
impossible to determine real social costs.
The
question is whether or not society would be better off if the use of one or more
currently illegal drugs was authorized. The answer is only if public well-being
is enhanced (or the social cost of drugs is reduced).
No one knows the impact on social costs of legalization of illicit drugs.
It is impossible to predict the impact of increased consumption, substitution of
tobacco and alcohol for currently illegal drugs, the lower current negative
impact attributable to drug illegality and, moreover, the combined impact of all
these factors. The superiority of neither prohibition nor legalization is
provable. [Translation] [32]
The
counter-factual scenario used in studies of the social costs of drugs is itself
a formidable challenge, as it rests on the unproven concept of eradicating
consumption of a drug. The model is drawn from the field of health, in which a
counter-factual model may be legitimate because, in some cases, a disease can be
completely or almost completely eradicated (e.g., childhood diseases). It does
not apply to drugs, as the process is necessarily so hypothetical that one
wonders if it is worth the effort. It is one thing to try and identify as
accurately as possible the diversity of social and economic costs incurred by
drugs and then reflect on public policy options; it is another to claim they can
actually be measured.
MacCoun,
Reuter, and Schelling propose two series of criteria, the first considering
different applications to different substances, the second based on acceptable
costs and consequences. Using a four-axis matrix, they distinguish:
· scope of consequences: community and user health; community and individual performance; public order and security;
· potential damage to each of the above;
· those affected by the damage (users, traffickers, family members, employers, neighbours, society); and
· primary source of the damage (substance, legal status, legal intervention).
How do
we make a choice? At the outset, it must be understood that, at the end of the
line, the decision is necessarily a
political one. Epidemiological data on levels of use and empirical data on
effects and consequences are clear: cannabis is not as dangerous a substance as
interdiction policies would like us to believe. Comparative data on public
policies, although more limited, also make it clear that measures undertaken
under prohibitionist regimes have not been effective. This much said, no one can
predict what will happen under an alternative regime, such as the regulated
access model we are proposing. This is why we insist that any comprehensive
strategy on cannabis must be based on a public health model and involve tools to
evaluate its implementation and effects.
Application to cannabis
We do
not have all the empirical data required to make a decision with respect to all
the potential consequences of different control
systems. To produce such data, one would have to have experienced the different
regimes of cannabis control. Since the early twentieth century, various degrees
of prohibition are all there has been, however.
Be that
as it may, we would hazard a guess that, even if we did have empirical data, in
the final analysis the decisions would still be political in nature because they
are basically public policy decisions which, as discussed in our chapter on
guiding principles, are not defined on the basis of scientific knowledge alone.
Nonetheless,
if we attempt to apply these criteria to cannabis, we believe that a system
of regulated access is most likely to reduce the negative consequences for
both users and society.
|
Prohibition |
Regulation |
Consequences on: Health Conduct
of individuals and society Public
order and safety |
-
Use denied therefore no possible distinction
between forms of use (use, at-risk use, abuse) -
Difficulties adapting prevention to reality
due to predominance of abstinence -
Health costs due to lack of knowledge of forms
of use -
Absence of quality control may bring about
problems -
Difficult for users to recognize at-risk use
and acknowledge possible dependency -
Enhanced individual performance (e.g., school,
professional) if prohibition
totally successful and no substitute exists -
Users potentially dealing with criminal
networks -
Human rights infringements
-
Theoretical decrease in availability of
substance -
Theoretical increase in price of substance -
Increased organized crime -
Significant illegal trafficking -
Decreased respect for the law -
Violence in criminal organizations |
-
Possible increase in number of users -
Enhanced recognition of use and ability to
distinguish between forms of use -
Ability to promote prevention not based on
abstinence -
Possible increase in health care for abusive
users resulting from increase in number of users -
Opportunity to control quality and THC content
-
Monitoring of at-risk behaviour and forms of
non-penal treatment -
Possibility of increased negative impact on
users and their families if consumption increases -
Legal access leading to normalizing and
demystifying -
Control over price and availability -
Elimination of the negative consequences of
criminalization and marginalization of users -
Need to control impaired driving -
Need to maintain restrictions regarding sale
to minors -
Decrease in —not elimination of—organized
crime -
Increased control over illegal trafficking -
Possible increase in the insecurity of people
residing near points of sale |
We are
fully aware that our statements with respect to a regulatory system are wholly
theoretical. We do think, however, that all the data we have collected on
cannabis and its derivatives provide sufficient ground for our general
conclusion that the regulation of the
production, distribution and consumption of cannabis, as part of an integrated
and adaptable public policy, best responds to the principles of autonomy and
governance that foster human responsibility and of the limitation of penal law
to situations where there is demonstrable harm to others. A regulatory system
for cannabis should permit, in particular, :
·
more
effective targeting of illegal traffic and a reduction in the role played by
organized crime;
·
prevention
programs better adapted to the real world and better able to prevent and detect
at-risk behaviour;
·
enhanced
monitoring of products, quality and properties;
·
better
user information and education;
·
respect
for individual and collective freedoms, and legislation more in tune with the
behaviour of Canadians.
In
our opinion, Canadian society is ready for a responsible policy of cannabis
regulation that honours these basic principles.
[1]
Please refer to the recent CCSA study: Permanen, K., et. al., op.
cit.
[2]
See Jackson, A.Y. (2002) op.
cit., and our discussion in Chapter 18.
[3]
Reuband, K., (1995) “Drug use and drug policy in Western Europe.”
European Addiction Research, vol. 1,
32-41.
[4]
Cesoni, L.L. (1999) Usage et actes préparatoires de l’usage des drogues illicites :
les choix en matière d’ncrimination.
Analyse comparative de l’usage de drogues illicites de sept législations
européennes. In Conseil fédéral
suisse,
op.cit., page 3560.
[5] Conseil fédéral Suisse (2001) Message concernant la révision de la loi sur les stupéfiants, page 3560.
[6]
Kilmer, B., (2002) “Do cannabis possession laws influence cannabis
use?” in Pelc, I. (dir.) International Scientific Conference on Cannabis.
Brussels.
[7]
Table reproduced from Kilmer, B., op.cit,
page 108.
[8]
See Kopp, P. and Fenoglio (2000) Le
coûts social des drogues licites (alcool et tabac) et illicites en France. Paris: OFDT.
[9]
Source: Rehm, J., (2001) The
Costs of public policies to fight illegal drugs. Brief presented to the
Special Senate Committee on Illegal Drugs,
page 13.
[10]
Source: Rehm, J., (2001) The
Costs of public policies to fight illegal drugs. Brief presented to the
Special Senate Committee on Illegal Drugs,
page 13.
[11]
Single, E., et. al., op. cit.
[12]
Source: Kopp, P. and C. Palle (1999) ²Économistes
cherchent politique publique efficace.²
in Faugeron, C., (ed.) Les
drogues en France.
Paris: Georg, page
261.
[13]
Source: Kopp, P. and C. Palle (1999) ²Économistes
cherchent politique publique efficace.²
in Faugeron, C., (ed.) Les
drogues en France.
Paris: Georg, page
261.
[14]
Source: Kopp, P. and C. Palle (1999) ²Économistes
cherchent politique publique efficace.²
in Faugeron, C., (ed.) Les
drogues en France.
Paris: Georg, page
261.
[15]
See above, in the United States, one of the most complete studies on
the question: Abt Associates (2001) The
price of illicit drugs: 1981 through the second quarter of 2000. Washington,
DC: Office of National Drug Control Policy.
[16]
For example, economist Milton Friedman.
[17]
For example, critical assessment in Caballero and Bisiou, pages
114-115.
[18]
Ibid., page 116.
[19]
Ibid., page 120
[20]
UN Office for Drug Control and Crime Prevention (2000) Demand Reduction. A
Glossary of Terms. Vienna: author, page 18.
[21]
Caballero and Bisiou, op.cit,
page 117.
[22]
See EMCDDA (2001) Decriminalisation
in Europe? Recent Developments in Legal Approaches to Drug Use. Lisbon:
author, available on line at www.emcdda.org
[23]
Fischer et al., (1998) “Cannabis Use in Canada: Policy Options For
Control.’ Policy Options.
October.
[24]
Comité permanent de lutte à la toxicomanie (1999) Avis
sur la déjudiciarisation de la possession simple de cannabis.
Montreal:
CPLT.
[25]
Ibid., page
2.
[26]
Dr. Perry Kendall, Medical Health Officer for the Government of
British Columbia, testimony before the Special Senate Committee on Illegal
Drugs, Senate of Canada, First session, Thirty-seventh Parliament, September
17, 2001, Issue 6, page: 40.
[27]
MacCoun, R., Reuter, P. and T. Schelling (1996) “Assessing
alternative drug control regimes.” Journal
of Policy Analysis and Management. Vol 15, no 3, page 332.
[28] UNDCP (2000) op.cit, page 41.
[29]
Caballero and Bisiou, op.cit,
page 132.
[30] UNDCP (2000) op.cit, page 63
[31]
MacCoun and coll., op. cit, page
333. [1996 issue vol.15 not available]
[32]
Kopp, P., and P. Fenoglio (2000)
op.cit, page 12.
CONCLUSIONS
AND RECOMMENDATIONS
The
Senate Special Committee on Illegal Drugs’ mandate was to examine Canada’s
public policy approach in relation to cannabis and assess its effectiveness and
impact in light of the knowledge of the social and health-related effects of
cannabis and the international context. Over the past two years, the Committee
has heard from Canadian and foreign experts and reviewed an enormous amount of
scientific research. The Committee has endeavoured to take the pulse of Canadian
public opinion and attitudes and to consider the guiding principles that are
likely to shape public policy on illegal drugs, particularly cannabis. Our
report attempted to provide an update of the state of knowledge and of the key
issues, and sets out a number of conclusions in each chapter.
This
final section sets out the main conclusions that emerge from all this
information and presents the resulting recommendations that derive from the
thesis we have developed namely: 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.
Le
Dain – Already thirty years ago
Thirty
years ago, the Le Dain Commission released its report on cannabis. This
Commission had far greater resources than did we. However, we had the benefit of
a much more highly developed knowledge base and of thirty years' historical
perspective.
The
Commission concluded that the criminalization of cannabis had no scientific
basis. Thirty years later, we can confirm this conclusion and add that continued
criminalization of cannabis remains unjustified based on scientific data on the
danger it poses.
The
Commission heard and considered the same arguments on the dangers of using
cannabis: apathy, loss of interest and concentration, learning difficulties. A
majority of the Commissioners concluded that these concerns, while
unsubstantiated, warranted a restrictive policy. Thirty years later, we can
assert that the studies done in the meantime have not confirmed the existence of
the so-called amotivational syndrome and add that most studies rule out this
syndrome as a consequence of the use of cannabis.
The
Commission concluded that not enough was known about the long-term and excessive
use of cannabis. We can assert that these types of use exist and may present
some health risks; excessive use, however, is limited to a minority of users.
Public policy, we would add, must provide ways to prevent and screen for at-risk
behaviour, something our policies have yet to do.
The
Commission concluded that the effects of long-term use of cannabis on brain
function, while largely exaggerated, could affect adolescent development. We
concur, but point out that the long-term effects of cannabis use appear
reversible in most cases. We not also that adolescents who are excessive users
or become long-term users are a tiny minority of all users of cannabis. Once
again, we would add that a public policy must prevent use at an early age and
at-risk behaviour.
The
Commission was concerned that the use of cannabis would lead to the use of other
drugs. Thirty years' experience in the Netherlands disproves this very clearly,
as do the liberal policies of Spain, Italy and Portugal. And here in Canada,
despite the growing increase in cannabis users, we have not had a proportionate
increase in users of hard drugs.
The
Commission was also concerned that legalization would mean increased use, among
the young, in particular. We have not legalized cannabis, and we have one of the
highest rates in the world. Countries adopting a more liberal policy have, for
the most part, rates of usage lower than ours, which stabilized after a short
period of growth.
Thirty
years later, we note that:
Ø
Billions of
dollars have been sunk into enforcement without any greater effect: there are
more consumers, more regular users and more regular adolescent users;
Ø
Billions of
dollars have been poured into enforcement in an effort to reduce supply, without
any greater effect: cannabis is more available than ever, it is cultivated on a
large scale, even exported, swelling coffers and making organized crime more
powerful; and
Ø
There have been
tens of thousands of arrests and convictions for the possession of cannabis and
thousands of people have been incarcerated; however, use trends remain totally
unaffected and the gap the Commission noted between the law and public
compliance continues to widen.
It is
time to recognize what is patently obvious: our policies have been ineffective,
because they are poor policies.
Ineffectiveness
of the current approach
No
clearly defined federal or national strategy exists. Some provinces have
developed strategies while others have not. There has been a lot of talk but
little significant action. In the absence of clear indicators accepted by all
stakeholders to assess the effectiveness of Canadian public policy, it is
difficult to determine whether action that has been taken is effective. Given
that policy is geared to reducing demand (i.e. drug-use rates) and supply (by
reducing the availability of drugs and pushing up drug prices), both these
indicators may be used.
A look
at trends in cannabis use, both among adults and young people, forces
us to admit that current policies are ineffective. In chapter 6, we saw that
trends in drug-use are on the increase. If our estimates do indeed reflect
reality, no fewer that 2 million Canadians aged between 18 and 65 have used
cannabis at least once over the past 12 months, while at least 750,000 young
people between the ages of 14 and 17 use cannabis at least once per month; one
third of them on a daily basis. This proportion appears, at least in the four
most highly-populated provinces, to be increasing. Statistics suggest that both
use and at-risk use is increasing.
Of
course, we must clearly establish whether the ultimate objective is a drug-free
society, at least one free of cannabis, or whether the goal is to reduce at-risk
behaviour and abuse. This is an area of great confusion, since Canadian public
policy continues to use vague terminology and has failed to establish whether it
focuses on substance abuse as the English terminology used in several documents
seems to suggest or on drug-addiction as indicated by the French terminology.
It is
all very well to criticize the “trivialization” of cannabis in Canada to
“explain” increases in use but it must also be established why, if this is
indeed the case, this trivialization has occurred. It is also important to
identify the root cause of this trivialization against a backdrop of mainly
anti-drug statements. The courts and their lenient attitude might be blamed for
this. Perhaps the judiciary is at the forefront of those responsible for
cannabis policies and the enforcement of the law. It must also be determined
whether sentences are really as lenient as some maintain. A major issue to be
addressed is whether harsher sentences would indeed be an effective deterrent
given that the possibility of being caught by the police is known to be a much
greater deterrent. Every year, over 20,000 Canadians are arrested for cannabis
possession. This figure might be as high as 50,000 depending on how the
statistics are interpreted. This is too high a number for this type of conduct.
However, it is laughable number when compared to the three million people who
have used cannabis over the past 12 months. We should not think that the number
of arrests might be significantly increased even if billions of extra dollars
were allocated to police enforcement. Indeed, such a move should not even be
considered.
A look
at the availability and price of drugs, forces
us to admit that supply-reduction policies are ineffective. Throughout
Canada, above all in British Columbia and Québec, the cannabis industry is
growing, flooding local markets, irritating the United States and lining the
pockets of criminal society. Drug prices have not fallen but quality has
improved, especially in terms of THC content – even if we are sceptical of the
reported scale of this improvement. Yet, police organizations already have
greater powers and latitude – especially since the September 11, 2001 tragedy
– in relation to drugs than in any other criminal matter. In addition,
enforcement now accounts for over 90% of all illegal drug-related spending. To
what extent do we want to go further down this road?
Clearly,
current approaches are ineffective and inefficient – it is throwing
taxpayers’ money down the drain on a crusade that is not warranted by the
danger posed by the substance. It has been maintained that drugs, including
cannabis, are not dangerous because they are illegal but rather illegal because
they are dangerous. This is perhaps true of other types of drugs, but not
cannabis. We should state this clearly once and for all, for public good, stop
our crusade.
Public
policy based on guiding principles
However
much we might wish good health and happiness for everyone, we all know how
fragile both are. Above all, we realize that health and happiness cannot be
forced on a person, especially not by criminal law based on a specific concept
of what is morally right. No matter how attractive calls for a drug-free society
might be, and even if some people might want others to stop smoking, drinking
alcohol, or smoking joints, we all realize that these activities are well and
truly part of social reality and the history of humankind.
Consequently,
what role should the State play? It should neither abdicate responsibility and
allow drug markets to run rife, nor should it impose a particular way of life on
people. Instead, we have opted for a concept whereby public policy promotes
and supports freedom for individuals and society as a whole. For some, this
would undoubtedly mean avoiding drug use. However, for others, the road to
freedom might be via drug use. For society as a whole, this concept means a
State that does not dictate what should be consumed and under what form. Support
for freedom necessarily means flexibility and adaptability. It is for this
reason that public policy on cannabis has to be clear while at the same time
tolerant, to serve as a guide while at the same time avoiding imposing a single
standard. This concept of the role of the State is based on the principle
of autonomy and individual and societal responsibility. Indeed, it is much
more difficult to allow people to make their own decisions because there is less
of an illusion of control. It is just that: an illusion. We are all aware
of that. It is perhaps sometimes comforting, but is likely to lead to abuse and
unnecessary suffering. An ethic of responsibility teaches social expectations
(not to use drugs in public or sell to children), responsible behaviour
(recognizing at-risk behaviour and being able to use moderately) and supports
people facing hardship (providing a range of treatment).
From
this concept of government action ensues a limited role for criminal law. As far
as cannabis is concerned, only behaviour
causing demonstrable harm to others shall be prohibited: illegal
trafficking, selling to minors, impaired driving.
Public
policy shall also draw on available knowledge and scientific research but
without expecting science to provide the answers to political issues. Indeed,
scientific knowledge does have a major role to play as a support tool in decision-making, at both an individual and
government level. Indeed, science should play no greater role. It is for this
reason that the Committee considers that a drug and dependency observatory and a
research program should be set up: to help those decision makers that will come
after us.
A
Clear and coherent federal strategy
Although
the Committee has focused on cannabis, we have nevertheless observed inherent
shortcomings in the federal drug strategy. Quite obviously, there is no real
strategy or focused action. Behind the supposed leadership provided by Health
Canada emerges a lack of necessary tools for action, a patchwork of ad hoc
approaches from one substance to another and piecemeal action by various
departments. Of course, co‑ordinating bodies do exist, but without real
tools and clear objectives, each focuses its action according to its own
particular priorities. This has resulted in a whole series of funded programs
developed without any tangible cohesion.
Many
stakeholders have expressed their frustration to the Committee at the jig-saw of
seemingly evanescent pieces and at the whole gamut of incoherent decisions,
which cause major friction on the front lines. Various foreign observers also
expressed their surprise that a country as rich as Canada, which is not immune
to psychoactive substance-related problems, did not have a “champion”, a
spokesperson or a figure of authority able to fully grasp the real issues while
at the same time obtaining genuine collaboration of all stakeholders.
It is
for this reason that we are recommending the creation of the position of
National Advisor on Psychoactive Substances and Dependency to be attached to the
Privy Council. We do not envisage this as a super body responsible for managing
psychoactive substance-related budgets and action. In fact, we favour an
approach similar to that of the Mission
interministérielle à la drogue et à la toxicomanie in France over one
modelled on the United States’ Office of National Drug Control Policy. The
Advisor would have a small dedicated staff, with the majority of staff loaned
from the various federal departments and bodies concerned by the drugs issue.
The
Advisor would be responsible: for advising the Cabinet and the Prime Minister on
national and international psychoactive substance-related issues; for ensuring
co-ordination between federal departments and agencies; for overseeing the
development of federal government psychoactive substance-related objectives and
ensuring these objectives are satisfied; and to serve as a Canadian Government
spokes-person on psychoactive substance-related issues at an international
level.
Recommendation 1
The Committee recommends that
the position of National Advisor on Psychoactive Substances and Dependency be
created within the Privy Council Office; that the Advisor be supported by a
small secretariat and that federal departments and agencies concerned by
psychoactive substances second, upon request, the necessary staff.
National
strategy sustained
by adequate ressources and tools
A
federal policy and strategy do not in themselves make a national strategy.
Provinces, territories, municipalities, community organizations and even the
private sector all have a role to play in accordance with their jurisdiction and
priorities. This is necessary and this diversity is worth encouraging. However,
some harmonization and meaningful discussion on practices and pitfalls, on
progress and setbacks, and on knowledge, are to be encouraged. Apart from the
resource-starved piecemeal action of the Canadian Centre on Substance Abuse,
there are all too few opportunities and schemes to promote exchanges of this
type. The current and future scale of
drug and dependency-related issues warrants the Canadian Government earmarking
the resources and developing the tools with which to develop fair, equitable and
well-thought out policies.
Like the
majority of Canadian and foreign observers of the drug situation, we were struck
by the relative lack of tools and measures for determining and following up on
the objectives of public psychoactive substance policy. One might not agree with
the numbers-focused goals set out by the Office of National Drug Control Policy
for the reduction of drug use or for the number of drug treatment programs set
up and evaluated. However, we have to admit that at least these figures serve as
guidelines for all stakeholders and as benchmarks against which to measure
success.
Similarly,
one might not feel totally comfortable with the complex Australian
goal-definition process, whereby the whole range of partners from the various
levels of government, organizations and associations meet at a conference every
five years. However, at least those goals agreed upon by the various
stakeholders constitute a clear reference framework and enable better
harmonization of action.
The
European monitoring system with its focal points in each European Union country
under the European Monitoring Centre for Drugs and Drug Addiction umbrella might
seem cumbersome; and the American system of conducting various annual
epidemiological studies might appear expensive. We might even acknowledge that
there are problems with epidemiological studies, which are far from providing a
perfect picture of the psychoactive substance-use phenomena. However, at least
these tools, referred to and used throughout the Western world, enable the
development of a solid information base, with which to analyse historical
trends, identify new drug-use phenomena and react rapidly. In addition, it
allows for an assessment of the relevance and effectiveness of action taken. No
system of this type exists in Canada, which is the only industrialized Western
country not to have such a knowledge structure.
It is
for these reasons that the Committee recommends that the Government of Canada
support various initiatives to develop a genuine national strategy. Firstly, the
Government should call a national conference of the whole range of partners with
a view to setting out goals and priorities for action over a five-year period.
This conference should also identify indicators to be used in measuring progress
at the end of the five-year period. Secondly, the Canadian Centre on Substance
Abuse needs to be renewed. Not only does this body lack resources but it is also
subject to the vagaries of political will of the Minister of Health. The Centre
should have a budget in proportion with the scale of the psychoactive substance
problem and should have the independence required to address this issue. Lastly,
a Canadian Monitoring Agency on Drugs and Dependency should be created within
the Centre.
Recommendation 2
The Committee recommends that the Government of Canada mandate the
National Advisor on Psychoactive Substances and Dependency to call a high-level
conference of key stakeholders from the provinces, territories, municipalities
and associations in 2003, to set goals and priorities for action on psychoactive
substances over a five-year period.
Recommendation
3
The Committee recommends that
the Government of Canada amend the Canadian Centre on Substance Abuse enabling
legislation to change the Centre’s name to the Canadian Centre on Psychoactive Substances and Dependency; make the
Centre reportable to Parliament; provide the Centre with an annual basic
operating budget of 15 million dollars, to be increased annually; require the
Centre to table an annual report on actions taken, the key issues, research and
trends in the federal Parliament and provincial and territorial assemblies and
legislatures; mandate the Centre to ensure national co-ordination of research on
psychoactive substances and dependency, and to conduct studies into specific
issues; and mandate the Centre to undertake an assessment of the national
strategy on psychoactive substance and dependency every five years.
Recommendation
4
The Committee recommends that
in the legislation creating the Canadian Centre on Psychoactive Substances and
Dependency, the Government of Canada specifically include provision for the
setting up of a Monitoring Agency on Psychoactive Substances and Dependency
within the Centre; provide that the Monitoring Agency be mandated to conduct
studies every two years, in co-operation with relevant bodies, on drug-use
trends and dependency problems in the adult population; work with the provinces
and territories towards increased harmonization of studies of the student
population and to ensure they are carried out every two years; conduct ad hoc
studies on specific issues; and table a bi-annual report on drug-use trends and
emerging problems.
A
public health policy
When
cannabis was listed as a prohibited substance in 1923, no public debate or
discussion was held on the known effects of the drug. In fact, opinions
expressed were disproportionate to the dangers of the substance. Half a century
later, the Le Dain Royal Commission of Inquiry on the Non-Medical Use of
Drugs held a slightly more rational debate on cannabis and took stock of what
was known about the drug. Commissioners were divided not so much over the nature
and effects of the drug but rather over the role to be played by the State and
criminal law in addressing public health-related goals. Thirty years after the
Le Dain Commission report, we are able to categorically state that, used
in moderation, cannabis in itself poses very little danger to users and to
society as a whole, but specific types of use represent risks for users.
In
addition to being ineffective and costly, criminalization leads to a series of
harmful consequences: users are marginalized and exposed in a discriminatorily
fashion to the risk of arrest and to the criminal justice system; society sees
organized crime enhance their power and wealth by benefiting from prohibition;
and governments see their ability to conduct prevention of at-risk use
diminished.
We would
add that, even if cannabis were to have
serious harmful effects, one would have to question the relevance of using the
criminal law to limit these effects. We have demonstrated that criminal law
is not an appropriate governance tool for matters relating to personal choice
and that prohibition is known to result in harm which often outweighs the
desired positive effects. However, current scientific knowledge on cannabis, its
effects and consequences are such that this issue is not relevant to our
discussion.
Indeed
available data indicate that the scale of the cannabis use phenomenon can no
longer be ignored. Chapter 6 indicated that no fewer than 30% of Canadians (12
to 64 years old) have experimented with cannabis at least once in their
lifetime. In all probability, this is an underestimation. We have seen that
approximately 50% of high school students have used cannabis within the past
year. Nevertheless, a high percentage of them stop using and the vast majority
of those who experiment do not go on to become regular users. Even among regular
users, only a small proportion develop problems related to excessive use, which
may include some level of psychological dependency. Consumption patterns among
cannabis users do not inevitably follow an upward curve but rather a series of
peaks and lulls. Regular users also tend to have a high consumption rate in
their early twenties, which then either drops off or stabilizes, and in the vast
majority of cases, ceases altogether in their thirties.
All of
this does not in any way mean, however, that cannabis use should be encouraged
or left totally unregulated. Clearly, it is a psychoactive substance with some
effects on cognitive and motor functions. When smoked, cannabis can have harmful
effects on the respiratory airways and is potentially cancerous. Some vulnerable
people should be prevented, as much as possible, from using cannabis. This is
the case for young people under 16 years of age and those people with particular
conditions that might make them vulnerable (for example those with psychotic
predispositions). As with alcohol, adult users should be encouraged to use
cannabis in moderation. Given that, as for any substance, at-risk use does
exist, preventive measures and detection tools should be established and
treatment initiatives must be developed for those who use the drug excessively.
Lastly, it goes without saying that education initiatives and severe criminal
penalties must be used to deter people from operating vehicles under the
influence of cannabis.
As
for any other substance, there is at-risk use and excessive use. There is no
universally accepted criterion for determining the line between regular use,
at-risk use and excessive use. The context in which use occurs, the age at which
users were introduced to cannabis, substance quality and quantity are all
factors that play a role in the passage from one type of use to another.
Chapters 6 and 7 identified various criteria, which we have collated in table
form below.
Proposed Criteria for Differentiating Use Types
|
Environment |
Quantity |
Frequency |
Period of use
and intensity |
Experimental / Occasional |
Curiosity |
Variable |
A few times over lifetime |
None |
Regular |
Recreational,
social Mainly
in evening Mainly
in a group |
A few joints Less than one gram per month |
A few times per month |
Spread over several years but rarely intensive |
At-risk |
Recreational and occupational (to go to school, to go to work, for
sport…) Alone, in the morning Under 16 years of age |
Between 0.1 and 1 gram per day |
A few times per week, evenings, especially weekends |
Spread over several years with high intensity periods |
Excessive |
Occupational and personal problems No self regulation of use |
Over one gram per day |
More than once per day |
Spread over several years with several months at a time of high
intensity use |
If
cannabis itself poses very little danger to the user and to society as a whole,
some types of use involve risks. It is time for our public policy to
recognize this and to focus on preventing at-risk use and on providing treatment for excessive
cannabis users.
Recommendation 5
The Committee recommends that
the Government of Canada adopt an integrated policy on the risks and harmful effects of psychoactive substances covering
the whole range of substances (medication, alcohol, tobacco and illegal drugs).
With respect to cannabis, this policy shall focus on educating users, detecting
and preventing at-risk use and treating excessive use.
A
regulatory approach to cannabis
The prohibition
of cannabis does not bring about the desired reduction in cannabis consumption
or problem use. However, this approach does have a whole series of harmful
consequences. Users are marginalized and over 20,000 Canadians are arrested each
year for cannabis possession. Young people in schools no longer enjoy the same
constitutional and civil protection of their rights as others. Organized crime
benefits from prohibition and the criminalization of cannabis enhances their
power and wealth. It is a well-known fact that society will never be able to
stamp out drug use – particularly cannabis use.
Some
might believe that an alternative policy signifies abandoning ship and giving up
on promoting well-being for Canadians. Some might maintain that a regulatory
approach would fly in the face of the fundamental values of our society. We
believe, however, that the continued prohibition of cannabis jeopardizes the
health and well-being of Canadians much more than the regulated marketing of the
substance. In addition, we believe that the continued criminalization of
cannabis undermines the fundamental values set out in the Canadian Charter of Rights and Freedoms and borne out by the history
of a country based on diversity and tolerance.
We do
not want to see cannabis use increase, especially among young people. Of note,
the data from other countries that we compared in Chapters 6 and 20 indicate
that countries such as the Netherlands, Australia or Switzerland, which have put
in place a more liberal approach, have not seen their long-term levels of
cannabis use rise. The same data also clearly indicate that countries with a
very restrictive approach, such as Sweden and the United States, are poles apart
in terms of cannabis use levels, and that countries with similar liberal
approaches such as the Netherlands and Portugal are also at opposite ends of the
spectrum, falling somewhere between Sweden and the United States. We have
concluded that public policy itself has little effect on cannabis use trends and
that other more complex and poorly-understood factors play a greater role in
explaining the variations.
An
exemption regime making cannabis available to those over the age of 16 would
probably lead to an increase in cannabis use for a certain period. Use rates
would then level out as interest wanes and as effective prevention programs are
set up. This would then be followed by a roller-coaster pattern of highs and
lows, as has been the case in most other countries.
This
approach is neither one of total abdication nor a sign of giving up but rather a
vision of the role of the State and criminal law as developing and promoting but not controlling human action and as stipulating
only necessary prohibitions relating to the fundamental principle of respect
for life, others and a harmonious community, and as supporting
and assisting others and not judging and condemning difference.
We might
wish for a drug-free world, fewer tobacco smokers or alcoholics or less
prescription drug dependency, but we all know that we shall never be able to
eliminate these problems. More importantly, we should not opt to criminalize
them. The Committee believes that the same healthy and respectful approach and
attitude should be applied to cannabis.
It is
for this reason that the Committee recommends that the Government of Canada
amend the Controlled Drugs and Substances
Act to create a criminal exemption scheme for the production and sale of
cannabis under the authority of a licence. Licensing and the production and sale
of cannabis would be subject to specific conditions, that the Committee has
endeavoured to specify. For clarity’s sake, these conditions have been
compiled at the end of this section. It should be noted at the outset that the
Committee suggests that cigarette manufacturers be prohibited from producing and
selling cannabis.
Recommendation
6
The Committee recommends that
the Government of Canada amend the Controlled
Drugs and Substances Act to create a criminal exemption scheme. This
legislation should stipulate the conditions for obtaining licences as well as
for producing and selling cannabis; criminal penalties for illegal trafficking
and export; and the preservation of criminal penalties for all activities
falling outside the scope of the exemption scheme.
Recommendation 7
The Committee recommends that
the Government of Canada declare an amnesty for any person convicted of
possession of cannabis under current or past legislation.
A
compassion-based approach for therapeutic use
In
Chapter 9, we noted that cannabis has not been approved as a medicinal drug in
the pharmacological sense of the word. In addition to the inherent difficulties
in conducting studies on the therapeutic applications of cannabis, there are
issues arising from the current legal environment and the undoubtedly high cost
to governments of conducting such clinical studies.
Nevertheless,
we do not doubt that, for some medical conditions and for certain people,
cannabis is indeed effective and useful therapy. Is it more effective than other
types of medication? Perhaps not. Can physicians currently prescribe cannabis at
a known dosage? Undoubtedly not. Should persons suffering from certain physical
conditions diagnosed by qualified practitioners be permitted to use cannabis if
they wish to do so? Of this, we are convinced.
Regulations
made in 2001 by the Health Canada, even though they are a step in the right
direction, are fundamentally unsatisfactory. They do not facilitate access to
therapeutic cannabis. They do not consider the experience and expertise
available in compassion clubs. These regulations only govern marijuana and do
not include cannabis derivatives such as hashish and cannabis oils.
It is
for these reasons that the Committee recommends that Health Canada amend the Marihuana
Medical Access Regulations in order to allow compassionate access to
cannabis and its derivatives. As in the previous chapter, proposed rules have
been compiled at the end of this chapter.
Recommendation 8
The Committee recommends that
the Marihuana Medical Access Regulations
be amended to provide new rules regarding eligibility, production and
distribution of cannabis for therapeutic purposes. In addition, research on
cannabis for therapeutic purposes is essential.
Provisions
for operating a vehicle under the influence of cannabis
In
chapter 8, we discussed the fact that research has not clearly established the
effects of cannabis when taken alone on a person’s ability to operate a
vehicle. Nevertheless, there is enough evidence to suggest that operating a
vehicle while under the influence of cannabis alters motor functions and effects
a person’s ability to remain in his or her lane. We have also established that
the combined effects of cannabis and alcohol impair faculties even more than
alcohol taken alone. Epidemiological studies have shown that a certain number of
cannabis users do drive under the influence of the substance and that a large
proportion of these people, mainly the young, appear to believe that cannabis
does not impair their ability to drive.
This
chapter also indicated that no reliable and non-intrusive road-side detection
tools exist. Saliva-based equipment is a promising development but for the time
being, provide random results. We have also established that a visual
recognition system, which has mainly been developed and assessed in the United
States, is a reliable way of detecting drug-induced impaired driving faculties.
Recommendation
9
The Committee recommends that
the Criminal Code be amended to lower permitted alcohol levels to 40
milligrams of alcohol per 100 millilitres of blood, in the presence
of other drugs, especially, but not exclusively cannabis; and to admit evidence
from expert police officers trained in detecting persons operating vehicles
under the influence of drugs.
research
Research
on psychoactive substances, and particularly on cannabis, has undergone a boom
over the past 20 years. The Committee was able to fully grasp the actual extent
of this increase, since we faced the challenge of summarizing it. Not all
research is of the same quality and the current political and legal climate
governing cannabis hampers thorough and objective studies. Nevertheless, a solid
fact base was available to the Committee, on which to base its foregoing
conclusions and recommendations.
However,
more research needs to be done in a certain number of specific areas. In Chapter
6, we established that a lack of practical research on cannabis users has
resulted in only a limited amount of information on contexts of use being
available. It is also currently difficult to establish criteria on the various
types of cannabis use in order to guide those responsible for prevention. The
Committee suggests that cannabis use of over one gram per day constitutes
excessive use and that between 0.1 and one gram per day equates to at-risk use.
We also suggest that any use below 16 years of age is at-risk use. This is of
course enlightened speculation, but speculation nevertheless, which remains to
be explored.
In
Chapters 16 and 17, we referred to the fact that we know very little about the
most effective prevention practices and treatment. Here also, the current
context hindered. As far as prevention is concerned, the more or less implicit
“just say no ” message and
the focus on cannabis use prevention are strategies that have been dictated by
the prohibition-based environment. In terms of treatment for problem users,
abstinence-based models have long been the dominant approach and continue to sit
very poorly with harm-reduction-based models. Thorough assessment studies are
required.
The
Canadian Centre on Psychoactive Substances and Dependency must play a key role
in co-ordinating and publishing the results of studies. The Centre does not have
to conduct research itself. This can and indeed must sometimes be carried out by
academics. The Health Research Institutes are also natural players. However, it
is important to clearly identify a single central body to collect research
information. This will enable the information to be distributed as widely
possible and, we hope, used.
Recommendation
10
The Committee recommends that the Government of Canada create a national
fund for research on psychoactive substances and dependency to fund research on
key issues - more particularly on various types of use, on the therapeutic
applications of cannabis, on tools for detecting persons operating vehicles
under the influence of drugs and on effective prevention and treatment programs;
that the Government of Canada mandate the Canadian Centre on Psychoactive
Substances and Dependency to co-ordinate national research and serve as a
resource centre.
Canada’s
international Position
The
Committee is well aware that were Canada to choose the rational approach to
regulating cannabis that we have recommended, it would be in contravention of
the provisions of the various international conventions and treaties governing
drugs. We are also fully aware of the diplomatic implications of this approach,
in particular in relation to the United States.
We are
keen to avoid replicating, at the Canada-US border, the problems that marked
relations between the Netherlands, France, Belgium and Germany over the issue of
drugs-tourism between 1985 and 1995. This is one of the reasons that justifies
restricting the distribution of cannabis for recreational purposes to Canadian
residents.
We are
aware of the fact that a significant proportion of the cannabis produced in
Canada is exported, mainly to the United States. We are also aware that a
considerable proportion of heroin and cocaine comes into Canada via the United
States. We are particularly cognisant of the fact that Canadian cannabis does
not explain the increase in cannabis use in the United States. It is up to each
country to get its own house in order before criticizing its neighbour.
Internationally,
Canada will either have to temporarily withdraw from the conventions and
treaties or accept that it will be in temporary contravention until the
international community accedes to its request to amend them. The Committee opts
for the second approach, which seems to us to be more consistent with the
tradition and spirit of Canadian foreign policy. In addition, we have seen that
international treaties foster the imbalanced relationship between the Northern
and Southern hemispheres by prohibiting access to plants, including cannabis,
produced in the Southern hemisphere, while at the same time developing a
regulatory system for medication manufactured by the pharmaceutical industry in
the Northern hemisphere. Canada could use this imbalanced situation to urge the
international community to review existing treaties and conventions on
psychoactive substances.
Canada
can and indeed should provide leadership on drug policy. Developing a national
information and action infrastructure would undoubtedly be key to this. Canada
must also play a leading role in the Americas. We believe that Canada enjoys
a favourable international reputation and that it can promote the development of
fairer and more rational drug – in particular cannabis - policies. We also
contend that Canada should strive for the creation of a European
Observatory-style Drug and Dependency Observatory for the Americas within the
Organization of American States.
Recommendation
11
The Committee recommends that
the Government of Canada instruct the Minister of Foreign Affairs and
International Trade to inform the appropriate United Nations authorities that
Canada is requesting that conventions and treaties governing illegal drugs be
amended; and that the development of a Drugs and Dependency Observatory for the
Americas be supported by the Government of Canada.
Proposals
for implementing the regulation of cannabis for
therapeutic and recreational purposes
Amendments to the Marihuana Medical Access Regulations
(Production and sale of cannabis for therapeutic purposes)
(Production and sale of cannabis for therapeutic purposes)
A.
Eligible
person
A person
affected by one of the following: wasting syndrome; chemotherapy treatment;
fibromyalgia; epilepsy; multiple sclerosis; accident-induced chronic pain; and
some physical condition including migraines and chronic headaches, whose
physical state has been certified by a physician or an individual duly
authorized by the competent medical association of the province or territory in
question, may choose to buy cannabis and its derivatives for therapeutic
purposes. The person shall be registered with an accredited distribution centre
or with Health Canada.
B.
Licence
to distribute
A Canadian
resident may obtain a licence to distribute cannabis and its derivatives for
therapeutic purposes. The resident must undertake to only sell cannabis and its
derivatives to eligible persons; to only sell cannabis and its derivatives
purchased from producers duly licensed for this purpose; to keep detailed
records on the medical conditions and their development, consumption and the
noted effects on patients; to take all measures needed to ensure the safety of
the cannabis products and to submit to departmental inspections.
C.
Licence
to produce
A Canada
resident may obtain a licence to produce cannabis and its derivatives for
therapeutic purposes. The resident must undertake: not to hold a licence to
produce cannabis for non therapeutic purposes; to take the measures necessary to
ensure the consistency, regularity and quality of crops; to take the measures
necessary to ensure the security of production sites; to know and document the
properties and concentrations of each harvest with respect to Delta 9 THC; to
sell only to accredited distribution centres and to submit to departmental
inspections.
D.
Other
proposals
·
Ensure
that expenses relating to the use of cannabis for therapeutic purposes will be
eligible for a medical expenses tax credit;
·
Establish
a program of research into the therapeutic applications of cannabis, by
providing sufficient funding; by mandating the Canadian
Centre on Psychoactive Substances and Dependency to co-ordinate the research program; and by providing
for the systematic study of clinical cases based on the documentation available
in organizations currently distributing cannabis for therapeutic purposes and in
future distribution centres; and
·
Ensure
that the advisory committee on the therapeutic use of cannabis represents all
players, including distribution centres and users.
Amendment to the
Controlled Drugs and Substances Act (CDSA)
(Production and sale of cannabis for non therapeutic purposes)
A.
General
aims of the bill
·
To
reduce the injurious effects of the criminalization of the use and possession of
cannabis and its derivatives;
·
To
permit persons over the age of 16 to procure cannabis and its derivatives at
duly licensed distribution centres; and
·
To
recognize that cannabis and its derivatives are psychoactive substances that may
present risks to physical and mental health and, to this end, to regulate the
use and trade of these substances in order to prevent at-risk use and excessive
use.
B.
Licence
to distribute
Amend the Act
to create a criminal exemption scheme to the criminal offences provided in the
CDSA with respect to the distribution of cannabis. A Canadian resident could
obtain a licence to distribute cannabis. The resident must undertake not
to distribute to persons under the age of 16;
must never have been sentenced for a criminal offence, with the exception of
offences related to the possession of cannabis, for which an amnesty will be
declared; and must agree to procure cannabis only from duly licensed
producers. In addition, in accordance with the potential limits imposed by the Canadian Charter of Rights and Freedoms, licensed distributors shall
not display products explicitly and shall not advertise in any manner.
C.
Licence
to produce
Amend the Act
to create a criminal exemption scheme to the criminal offences provided in the
CDSA with respect to the production of cannabis. A Canadian resident could
obtain a licence to produce cannabis. The resident must undertake to only sell
to duly licensed distributors; to sell only marihuana and hashish with a THC
content of 13% or less; to limit production to the quantity specified in the
licence; to take the measures needed to ensure the security of production sites;
to keep detailed records of quantities produced, crops, levels of THC
concentration and production conditions; and to submit to departmental
inspections. No person charged with and sentenced for criminal offences, with
the exception of the possession of cannabis, for which an amnesty will be
declared, shall be granted a licence. No person or legal entity, directly or
indirectly associated with the production, manufacture, promotion, marketing or
other activity connected with tobacco products and derivatives shall be granted
a licence. In accordance with the potential limits imposed by the Canadian
Charter of Rights and Freedoms, cannabis products and their derivatives
shall not be advertised in any manner.
D.
Production
for personal use
Amend the Act to create a criminal exemption scheme to
the criminal offences provided in the CDSA in order to permit the personal
production of cannabis so long as it is not sold for consideration or exchange
in kind or other and not advertised or promoted in any other way. In addition,
quantities shall be limited to ensure production is truly for personal
consumption.
E.
Consumption
in public
Consumption in public places shall be prohibited.
F.
International
trade
All forms of
international trade, except those explicitly permitted under the Act shall be
subject to the penalties provided in the CDSA for illegal trafficking.
G.
Other
proposals
·
Ensure
the establishment of a National Cannabis Board with duly mandated
representatives of the federal government and the governments of the provinces
and territories. The Board would keep a national register on the production and
sale of cannabis and its derivatives, set the amount and distribution of taxes
taken on the sale of cannabis products and ensure the taxes collected on the
production and sale of cannabis and derivatives are directed solely to
prevention of at-risk use, treatment of excessive users, research and
observation of trends and the fight against illegal trafficking.
·
The
provinces and territories would continue to develop prevention measures that
should be directed at at-risk use, as a priority. The Canadian
Centre on Psychoactive Substances and Dependency should be mandated to collect best prevention
practices and ensure an exchange of information on effective practices and their
evaluation.
·
The
provinces and territories would continue to develop support and treatment
measures that should be directed at excessive use, as a priority. The Canadian Centre on Psychoactive Substances and Dependency should be mandated to collect best prevention
practices and ensure an exchange of information on effective practices and their
evaluation.
·
Increase
resources available to police and customs to fight smuggling, export in all its
forms and cross-border trafficking.
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II – Witnesses quoted in the report
Mohamed ben Amar, Professor, Pharmacology and
Toxicology – University of Montreal, First Session, Thirty-seventh Parliament,
June 11, 2001, Issue no 4.
Line Beauchesne, Professor, Department of Criminology
– University of Ottawa, Second Session, Thirty-sixth Parliament, October 16,
2000, Issue no 1.
Patricia Bégin, Director, Research and Evaluation –
National Crime Prevention Centre, First Session, Thirty-seventh Parliament, June
10, 2002, Issue no 22.
Marie-Andrée Bertrand, Professor Emeritus of
Criminology – University of Montreal, First Session, Thirty-seventh
Parliament, April 23, 2001, Issue no 1.
Hilary Black, Founder and Director – B.C. Compassion
Club Society, First Session, Thirty-seventh Parliament, November 7, 2001, Issue
no 10.
Tim Boekhout van Solinge, Lecturer
and Researcher in Criminology – Utrecht University, First Session,
Thirty-seventh Parliament, November 7, 2001, Issue no. 11.
Micheal J. Boyd, Chair of the Drug Abuse Committee and
Deputy Chief of the Toronto Police Service – Canadian Association of Chiefs of
Police, First Session, Thirty-seventh Parliament, March 11, 2002, Issue no
14.
Neil Boyd, Professor, Department of Criminology –
Simon Fraser University, Second Session, Thirty-sixth Parliament, October 16,
2000, Issue no 1.
Serge Brochu, Professor and Director of the
International Center for Comparative Criminology – University of Montreal,
First Session, Thirty-seventh Parliament, December 10, 2001, Issue no
12.
Bill Campbell, President – Canadian Society on
Addiction Medicine, First Session, Thirty-seventh Parliament, March 11, 2002,
Issue no 14.
Mark Connolly, Director General, Contraband and
Intelligence Services Directorate, Customs Branch – Canada Customs and Revenue
Agency First Session, Thirty-seventh Parliament, October 29, 2001, Issue no
8.
John Conroy, Barrister, First Session, Thirty-seventh
Parliament, March 11, 2002, Issue no 14.
Jean-Michel Coste, Director – French Monitoring
Centre for Drugs and Drug Addictions, First Session, Thirty-seventh Parliament,
October 1st, 2001, Issue no 7.
Patricia Erickson, Researcher – Centre for Addiction
and Mental Health, First Session, Thirty-seventh Parliament, May 14, 2001, Issue
no 2.
Julian Fantino,
Chief – Toronto Police Service, First Session, Thirty-seventh Parliament,
September 10, 2001, Issue no 5.
Benedikt Fischer, Professor, Department of Public
Health Sciences – University of Toronto, First Session, Thirty-seventh
Parliament, September 17, 2001, Issue no 6.
David Griffin, Canadian Police Association, First
Session, Thirty-seventh Parliament, May 28, 2001, Issue no 3.
Henry Haddad, President – Canadian Medical
Association, First Session, Thirty-seventh Parliament, March 11, 2002, Issue no
14.
Health Canada, First Session, Thirty-seventh
Parliament, June 10, 2002, Issue no 22.
Kash Heed, Vice Drugs Section – Vancouver Police
Service, First Session, Thirty-seventh Parliament, November 7, 2001, Issue no
10
Gary E. Johnson, Governor, State
of New Mexico, First Session, Thirty-seventh, November 5, 2001, Issue no
9.
Cal Johnston, Chief – Regina Police Service, First
Session, Thirty-seventh Parliament, May 13 2002, Issue no 16.
Harold Kalant, Professor Emeritus – University of
Toronto, First Session, Thirty-seventh Parliament, June 11, 2001, Issue no
4.
Perry Kendall, Health Officer –
Province of British Columbia, First Session, Thirty-seventh Parliament,
September 17, 2001, Issue no 6.
Paul Kennedy, Senior Assistant Deputy Solicitor
General, Policing and Security Branch – Solicitor General of Canada, First
Session, Thirty-seventh Parliament, June 10, 2002, Issue no 22.
Barry King, Former Chair of the Drug Abuse Committee
and Chief of the Brockville Police Service – Canadian Association of Chiefs of
Police, First Session, Thirty-seventh Parliament, March 11, 2002, Issue no
14.
R.G. Lesser, Chief Superintendent – Royal Canadian
Mounted Police, First Session, Thirty-seventh Parliament, October 29, 2001,
Issue no 8.
Gillian Lynch, Director General, Drug Strategy and
Controlled Substances Programme – Health Canada, First Session, Thirty-seventh
Parliament, June 10, 2002, Issue no 22.
Mary Lynch, Director, Canadian Consortium for the
Investigation of Cannabinoids – Dalhousie University, First Session,
Thirty-seventh Parliament, June 11, 2001, Issue no 4.
Nicole Maestracci, President – Interministerial
Mission for the Fight against Drugs and Drug Addiction, First Session,
Thirty-seventh Parliament, October 1st, 2001, Issue no 7.
Colin Mangham, Director – Prevention Source B.C.,
First Session, Thirty-seventh Parliament, September 17, 2001, Issue no
6.
Céline Mercier, Associate Professor, Department of
Psychiatry – McGill University, First Session, Thirty-seventh Parliament,
December 10, 2001, Issue no 12.
Croft Michaelson, Director and Senior General Counsel,
Strategic Prosecution Policy Section – Justice Canada, First Session,
Thirty-seventh Parliament, June 10, 2002, Issue no 22.
John P. Morgan, Professor of Pharmacology – City of
New York Medical School, First Session, Thirty-seventh Parliament, June 11,
2001, Issue no 4.
Dann Michols, Assistant Deputy Minister, Healthy
Environments and Consumer Safety Branch – Health Canada, First Session,
Thirty-seventh Parliament, June 10, 2002, Issue no 22.
Dale Orban,
Canadian Police Association, First Session, Thirty-seventh Parliament, May 28,
2001, Issue no 3.
Michel Perron, Executive Director – Canadian Centre
on Substance Abuse, First Session, Thirty-seventh Parliament, June 10, 2002,
Issue no 22.
Senate of Canada, Proceedings of
the Senate Special Committee on Illegal Drugs, First Session, Thirty-seventh
Parliament, March-April 2001, Issue no 1.
Senate of Canada, Proceedings of
the Senate Special Committee on Illegal Drugs, First Session, Thirty-seventh
Parliament, May 28, 2001, Issue no 3.
Eric Single, Professor, Department of Public Health
Sciences – University of Toronto, First Session, Thirty-seventh Parliament,
May 14, 2001, Issue no 2.
Diane Steber Büchli, Head, International Drug Affairs
Unit – Swiss Federal Office of Public Health, First Session, Thirty-seventh
Parliament, February 24, 2002, Issue no 13.
Art Steinman, Executive Director – Alcohol-Drug
Education Service, First Session, Thirty-seventh Parliament, November 7, 2002,
Issue no 10.
Ambros Uchtenhagen, Retired Professor – Addiction
Research Institute, First Session, Thirty-seventh Parliament, February 4, 2002,
Issue no 13.
Mark Ware, Assistant Professor – McGill University,
First Session, Thirty-seventh Parliament, May 31st 2002, Issue no
18.