Chapter 13

Regulating Therapeutic Use of Cannabis

As discussed in Chapter 9, cannabis has an extremely long history of therapeutic use, going back several thousands of years. It was often used for the same medical conditions it is used for today. With the development of the pharmaceutical industry in the last century, the medical community has gradually discontinued its use. Various factors may explain this. Developments in the pharmaceutical industry provided the medical community with more stable and better tested medication. The practice of medicine itself has changed and so has our conception of health. Then, at the turn of the 20th century, the plants from which opium, cocaine and cannabis are derived were banned by the international community, except for medical and scientific purposes. In the case of cannabis, no rigorous study had been done, until recently.

Further to the social rediscovery of cannabis and the identification of its molecular composition and chemical elements in the 1960s, renewed interest in the therapeutic applications of cannabis grew in the early 1970s. More people began using the plant for its therapeutic benefits and many demanded a relaxation of the prohibitionist rules governing cannabis.

Because its safety and effectiveness have yet to be reviewed in clinical trials, cannabis has not been approved for sale in Canada as a medical product.[1] Despite this lack of approval, many use cannabis for its therapeutic purposes without legal authorization. In addition, because of the many claims regarding its therapeutic benefit, a growing number of people have called for a less restrictive approach and are demanding access to cannabis for people who could benefit from its use.

This chapter reviews the events that prompted the recent enactment of the Marihuana Medical Access Regulations. One of the objectives of the regulations is to provide a compassionate framework of access to marijuana for seriously ill Canadians while research regarding its therapeutic application continues. Also discussed is the implementation of these regulations, which came into force on 30 July 2001.

 

Background to the recent regulations

Section 56 – Controlled Drugs and Substances Act

The Controlled Drugs and Substances Act [2] (CDSA) prohibits a series of activities relating to psychoactive substances, including: possession; cultivation; trafficking; possession for the purposes of trafficking; importation; and exportation. These activities are illegal unless authorized by regulations made under the CDSA. For example, the Narcotic Control Regulations regulate the legal distribution of narcotic drugs.[3] In addition, before a drug may be marketed in Canada, it must be approved for sale under the Food and Drugs Act[4] (FDA) and its regulations. The regulations under that Act set out controls dealing with, among others, the safety, efficacy and quality of therapeutic products. To market marijuana as a drug in Canada, a sponsor would have to file a “New Drug Submission” with the Therapeutic Products Programme of Health Canada. Submitted data would be evaluated to assess the potential benefits and risks of the drug before the drug would be approved for sale.

Other mechanisms authorize certain otherwise prohibited activities. Pursuant to section 56 of the CDSA, the Minister of Health is authorized to grant exemptions if, in his or her opinion, such an exemption is necessary for a medical or scientific purpose or is otherwise in the public interest. Thus, any person or class of persons may be exempted from the application of all or any of the provisions of the CDSA in these specified circumstances. These circumstances include both the cultivation and possession of marijuana, activities that are otherwise prohibited by the legislation.

In response to the growing demand for access to cannabis for therapeutic purposes and to Charter challenges in relation to therapeutic use, Health Canada published an Interim Guidance Document in May 1999. This document set out a process enabling Canadians to apply for an exemption to possess and cultivate marijuana for therapeutic purposes under the authority provided in section 56 of the CDSA. Applicants were required to demonstrate that the exemption was necessary for such purposes and required a statement from a physician in support of the application, along with details of their  medical and drug therapy histories. Health Canada reviewed the applications on a case-by-case basis, taking into account the medical necessity of the applicant. The first exemption was issued in June 1999. As of 3 May 2002, 658 exemptions had been granted under the authority of section 56, and 501 were still active. With respect to the other 157 persons with exemptions, some are now authorized to possess the substance under the recently enacted Marihuana Medical Access Regulations and others may no longer need marijuana for therapeutic purposes. Under this process, persons with exemptions were required to limit their cultivation to the quantity specified in their exemption letter.[5]

In February 2000, as part of a commitment to public consultation in relation to the section 56 exemption program, a multi-stakeholder consultation workshop was held. The participants[6] identified the following issues as priorities: 

 

v     Obtaining a legal source of marijuana for persons exempted under section 56;

v     Exemptions for caregivers;

v     Addressing the need for more information on the use of marijuana for medical purposes;

v     Addressing concerns of law enforcement agencies;

v     Improvement of the process and tools for section 56 applications; and

v     Communications regarding the section 56 process and Health Canada’s activities regarding marijuana for medical purposes.[7]

 

The information gathered at these consultations was later used for the development of the Marihuana Medical Access Regulations.

 

Charter challenges – therapeutic use of marijuana [8]

Charter challenges to  prohibitions with respect to marijuana  by those using the substance for therapeutic purposes have met with some success. In Wakeford v. Canada (1998),[9] a person suffering from AIDS and using marijuana to fight nausea and loss of appetite, which were side-effects of the drugs he was taking to fight AIDS, sought a constitutional exemption from the prohibitions with respect to marijuana in the CDSA. The Ontario Court, General Division, found that by denying the individual the autonomy to choose how to treat his illness, the law infringed his rights to liberty and security of the person under the Charter. The Court indicated that the prohibition on marijuana was not arbitrary inasmuch as there is some risk of harm associated with its use.[10] Thus, the Court found that in its general application, the law was consistent with the principles of fundamental justice as set out in section 7 of the Charter. However, the law’s impact on medical users raised additional considerations. As applied to these users, the blanket prohibition is over-broad and does not support the state’s rationale for prohibition.

The Court held that it would be contrary to the principles of fundamental justice to prohibit the use of marijuana where it can be shown to be a significant medical treatment for a debilitating and deadly disease and where there was no procedural process for obtaining an exemption from prosecution.[11] However, the Court noted that such a process was provided for in section 56 of the CDSA. Therefore, the Court found that the law was in accordance with fundamental justice – even in respect of medical users – and denied Mr. Wakeford a constitutional exemption. It emphasized that, without a ministerial exemption process for medical users, the case would have been decided differently.[12] Later, Mr. Wakeford was granted an interim constitutional exemption with respect to the offences of possession and production/cultivation of marijuana on the basis of “fresh evidence” indicating that no real process had been established to deal with applications for exemptions under section 56 of the CDSA. Because the statutory exemption turned out to be “illusory,” the Court reopened the case and granted the exemption. It would remain in effect until the Minister of Health had made a decision on Mr. Wakeford’s application for an exemption under section 56 of the CDSA.[13]

In R. v. Parker (2000),[14] the Ontario Court of Appeal reached a similar conclusion with respect to the impact of the blanket prohibition on marijuana use on the “liberty and security of the person” interests of medical users. In Parker, the accused–who had been charged with cultivation and possession of marijuana–grew and used marijuana to control his epileptic seizures. The Court held that the criminal prohibition on the use of marijuana, vis-à-vis bona fide medical users, engaged their section 7 right to liberty because of the possibility of imprisonment. In addition, by depriving such individuals of the ability to choose marijuana as medication to alleviate the effects of a serious illness, the prohibition also infringed their rights to liberty and security of the person, independent of the potential for imprisonment. The Court in Parker further concluded that the blanket prohibition on marijuana possession did not accord with the principles of fundamental justice. The Court of Appeal made reference to the findings of the trial judge with respect to the medical conditions and symptoms for which cannabis has a therapeutic effect:

 

Based on the evidence adduced at trial, the trial judge found that the defence had established that smoking marihuana has a therapeutic effect in the treatment of nausea and vomiting particularly related to chemotherapy, intraocular pressure from glaucoma, muscle spasticity from spinal cord injuries or multiple sclerosis, migraine headaches, epileptic seizures and chronic pain. [15]

   

Of significance to this chapter, the Court in Parker concluded that the exceptions and exemptions contemplated by the legislation that could cover approved medical use were contrary to the principles of fundamental justice. Firstly, although the legislation theoretically contemplated that a person could obtain marijuana with a doctor’s prescription, the evidence in the case established that no pharmacist would fill such a prescription; the government would not look favourably on any physician who prescribed marijuana; and it was practically impossible to find a legal source of marijuana in Canada.[16] Thus, this exception to the prohibition was held by the Court to be illusory.[17] 

Secondly, with respect to ministerial exemptions under section 56 of the CDSA, the Court found this procedure to be inadequate and not in accordance with the principles of fundamental justice. The Court ruled that, under section 56, unfettered discretion was vested in the Minister of Health, an inappropriate basis for decisions relating to the security or liberty of the person in the context of access to medical treatment to alleviate the effects of serious illness.[18] Key issues relating to the section 56 exemption process included: the broad discretion given to the Minister under the CDSA; transparency of the process; and a clear definition of medical necessity. 

In the end, the Court concluded that the broad prohibition on possession of marijuana was contrary to section 7 of the Charter and did not constitute a reasonable and justified limit under section 1 of the Charter.[19] The Court then declared the prohibition on the possession of marijuana to be unconstitutional and of no force and effect. However, the Court suspended the declaration of invalidity for one year in order to give Parliament the opportunity to amend the law to include adequate exemptions for medical use. In the interim, Mr. Parker was granted a personal exemption from the prohibition on possession of marijuana. The Court in Parker suggested its finding that the prohibition on possession of marijuana violated section 7 of the Charter would likely apply to the prohibition on cultivation as well.[20] 

 

Government reaction

In September 2000, while an appeal was still under consideration, the government announced its intention to establish a new regulatory approach, which would define the circumstances and the manner in which the use of marijuana for therapeutic purposes would be authorized.[21] A Notice of Intent was published on 6 January 2001 and meetings were held with key stakeholders as identified by Health Canada.[22]

In April 2001, the government unveiled proposed regulations governing the possession and production of marijuana for therapeutic purposes. The proposed regulations were designed to address the key issues raised by the Ontario Court of Appeal in relation to the section 56 exemption process. There were two parts to the draft regulations: (1) authorization to possess and (2) licence to produce.

The 30-day regulatory consultation period, during which Health Canada received comments from 139 individuals and groups, resulted in the following changes being made to the proposed regulations: the application process would be managed by the individual applicant instead of by a medical practitioner; restrictions on growing locations would be  relaxed and would no longer include a one-kilometre restriction on cultivation outdoors near schools and other places frequented by children; the formula to calculate the number of plants permitted under a licence to produce would be adjusted to reflect estimated indoor and outdoor growing yields and margins of error; and transitional provisions would be included to extend all current exemptions by six months with the objective of ensuring patients would be afforded ample opportunity to comply with the new regulations.[23]

On 4 July 2001, the government announced that the regulations governing the possession and production of marijuana for therapeutic purposes would come into effect on 30 July 2001.

 

 

Marihuana medical access regulations

 

As stated above, there are two parts to the Marihuana Medical Access Regulations (MMAR): part 1, authorization to possess, and part 2, licence to produce. One of the objectives of the regulations is to provide a compassionate framework to allow  access to marijuana for medical purposes.

 

The regulations establish a compassionate framework to allow the use of marijuana by people who are suffering from serious illnesses, where conventional treatments are inappropriate or are not providing adequate relief of the symptoms related to the medical condition or its treatment, and where the use of marijuana is expected to have some medical benefit that outweighs the risk of its use.[24]

 

As will be reviewed in detail, the MMAR are intended to provide access to marijuana in special circumstances only: in the case of serious medical conditions where conventional treatment may not provide adequate symptomatic relief. Health Canada explains that this limitation is due to “the health risks associated with the smoked form in particular, and due to the lack of evidence supporting the claimed health benefits.”[25] 

Significantly, the application of the MMAR is limited to “Cannabis (marihuana)” as referred to in sub-item 1(2) of Schedule II of the CDSA. Thus, the regulations do not provide access to other cannabis-related products.

The key provisions of the MMAR are as follows.

 

Authorization to possess

Three distinct categories have been established in relation to authorization to possess dried marijuana, each with its own application requirements. In each case, the application is to be submitted by the patient, whose declaration must include information identifying the applicant and indicating that:

 

v     The applicant is aware that no notice of compliance has been issued under the Food and Drugs Act concerning the safety and effectiveness of marijuana as a drug and that the applicant understands the significance of that fact; and

v     The applicant has discussed the risks of using marijuana with a medical practitioner and consents to using it for the recommended medical purpose.

 

Category 1

v     Eligibility: Applicants who suffer from a symptom associated with a medical condition for which the prognosis is death within 12 months.

v     Conditions: A medical practitioner must provide a medical declaration indicating, among other things:

·               The applicant’s medical condition and the symptom that is associated with that condition or its treatment;

·               The applicant suffers from a terminal illness;

·               All conventional treatments for the symptom have been tried or considered;

·               The recommended use of marijuana would mitigate the symptom;

·               The benefits from the applicant’s recommended use of marijuana would outweigh any risks associated with that use;

·               The medical practitioner is aware that no notice of compliance has been issued under the Food and Drug Regulations concerning the safety and effectiveness of marijuana as a drug; 

·               The applicant’s recommended daily dosage and period of use.

 

Category 2

v     Eligibility: Applicants who suffer from specific symptoms associated with some serious medical conditions, specially: 

·               Multiple sclerosis: severe pain and/or persistent muscle spasms;

·               Spinal cord injury: severe pain and/or persistent muscle spasms;

·               Spinal cord disease: severe pain and/or persistent muscle spasms;

·               Cancer: severe pain, cachexia, anorexia, weight loss, and/or severe nausea;

·               AIDS/HIV infection: severe pain, cachexia, anorexia, weight loss, and/or severe nausea;

·               Severe forms of arthritis: severe pain; and

·               Epilepsy: seizures.[26]

 

 

 

 

 

Source: Application for Authorization to Possess Dried Marihuana, Category 2 – Medical Specialist Form

 

v     Conditions: Applicants must provide a declaration from a medical specialist to support their application, indicating, among other things:

·               The applicant’s medical condition and the symptom that is associated with that condition or its treatment;

·               The specialist practises in an area of medicine that is relevant to the treatment of the applicant’s medical condition;

·               All conventional treatments for the symptoms have been tried or considered and were found to be medically inappropriate for reasons outlined in the Regulations;

·               The recommended use of marijuana would mitigate the symptom;

·               The benefits from the applicant’s recommended use of marijuana would outweigh any risks associated with that use, including risks associated with long-term use of marijuana;

·               The medical specialist is aware that no notice of compliance has been issued under the Food and Drug Regulations concerning the safety and effectiveness of marijuana as a drug; and

·               The applicant’s recommended daily dosage and period of use.

 

Category 3

v     Eligibility: Applicants who have symptoms associated with a medical condition, other than those described in Categories 1 and 2.

v      Conditions: Declarations from two medical specialists must accompany the application. The first declaration must indicate all information required  under Category 2; all conventional treatments that have been tried or considered for the symptom; and the reasons, from those outlined in the Regulations, why the medical specialist considers that those treatments are medically inappropriate.

 

 

Source: Application for Authorization to Possess Dried Marihuana, Category 3 – First Medical Specialist Form

 

 

 

v     The second declaration must indicate that, among other thingss:  the specialist has reviewed the applicant’s medical file and the reasons why the conventional treatments are considered to be medically inappropriate; the specialist has discussed the applicant’s case with the first specialist and agrees that the recommended use of marijuana would mitigate the symptom, and the benefits of the applicant’s recommended use of marijuana would outweigh any risks associated with that use, including the risks associated with long-term use of marijuana; and the second specialist is aware that no notice of compliance has been issued under the Food and Drug Regulations concerning the safety and effectiveness of marijuana as a drug.

 

Dosage           

The medical practitioner or specialist sets the daily dosage. If the recommended daily dosage is more than 5 grams per day, the medical practitioner or specialist must indicate that he or she has considered the risks associated with an elevated daily dosage of marijuana, including risks with respect to the effect on the applicant’s cardio-vascular, pulmonary and immune systems and psychomotor performance, as well as the potential for drug dependency; and that in his or her medical opinion, the benefits of the applicant’s use of marijuana according to the recommended daily dosage would outweigh the risks associated with that dosage, including risks associated with the long-term use of marijuana.

 

Maximum quantity possessed

The authorization to possess specifies the amount that may be possessed at any given time is a 30-day treatment supply. As explained above, the medical practitioner or specialist sets the daily dosage used to determine the 30-day treatment supply.

 

Duration

Generally, authorizations to possess are valid for one year and may be renewed.

 

Licence to produce

There are currently two possible legal sources for holders of an authorization to possess: they can grow their own supply or they can designate someone else to grow it for them. Health Canada has stated that, in the future, they should also be able to obtain it from a licensed supplier.

Only holders of an authorization to possess (personal-use production licence) or someone who has been designated as their representative (designated-person production licence) are eligible to hold a licence to produce. A designated person cannot be remunerated for their activities.


Conditions for obtaining a licence to produce include the following:

 

v     A person cannot be the holder of more than one licence to produce;

v     One site may be used for the production of marijuana under a maximum of three separate licences;

v     The holder of a licence to produce must maintain measures necessary to ensure the security of the product;

v     The production of marijuana outdoors is not permitted if the production site is adjacent to a school, public playground, day care facility or other public place frequented mainly by persons under 18 years of age;

v     A person is ineligible for a designated-person production licence, who has been found guilty of a designated drug offence in the previous 10 years.

 

The licence specifies the maximum number of plants that may be cultivated. The licence also deals with the maximum quantity of dried marijuana that may be kept in storage and, in the case of a designated representative, the transportation of marijuana. The maximum amount of marijuana that may be cultivated and stored at any time depends on the daily dosage that has been set by the medical practitioner or specialist, and whether plants are grown indoors or outside. The regulations also deal with inspection powers and record-keeping requirements.

 

Other provisions

There are also provisions dealing with matters such as: measures to ensure the security of the marijuana in the possession of an authorized person; the revocation of licences; the showing of documents to police officers; the referral to police of complaints received by inspectors; and the disclosure of information about a medical practitioner to provincial licensing authorities of medicine. Of note is a transitional provision extending section 56 exemptions for an extra six months after the date of their expiry.

Health Canada has established an ongoing review process to monitor the effectiveness and application of the MMAR and provide advice on future measures related to the manufacture, distribution and sale of marijuana for medical purposes. This process involves a series of activities intended to collect information and seek input on various aspects of the MMAR. A 15-member committee representing a number of different stakeholder groups is currently being established, with a its first meeting planned in October 2002.

 

 

 

 

 

 

Compassionate access?

 

One of the objectives of the MMAR was to provide a compassionate framework for medical access to marijuana. In addition, one of the criteria used in choosing the current regulatory approach was that it “must not unduly restrict the availability of marihuana to patients who may receive health benefits from its use.”[27]

While a process that authorizes the possession and production of marijuana has been established in Canada, this has not ensured that cannabis is suitably available to those in need. After careful review of the MMAR and thorough consideration of the evidence submitted to us, it is apparent that the MMAR have become a barrier to access. Rather than providing a compassionate framework, the regulations are unduly restricting the availability of cannabis to those who may receive health benefits from its use.

The following was stated in the Regulatory Impact Analysis Statement that accompanied the publication of the MMAR.

 

Due to anticipated increased visibility and efficiency of the new regulatory scheme and increased awareness of the potential uses or medical benefits of marihuana, it can reasonably be expected that the numbers of applicants will increase significantly. (emphasis added)

 

As reported to us by Health Canada, as of 3 May 2002, 658 exemptions had been granted under the authority of section 56, and 501 were still active. In terms of the MMAR, 498 applications were received and 255 had been authorized as of the same date. In addition, 164 personal production licences and 11 designated personal licences have been issued. The rest of the files are open and are incomplete, awaiting more information or undergoing review.[28]

Thus, almost one year after the MMAR came into force, only 255 people have been authorized to possess marijuana for therapeutic purposes and only 498 applications have been received. These numbers are significantly lower than the number of exemptions that were granted under section 56 of the CDSA. Although 501 exemptions under section 56 are still active, it is clear that the number of applicants has not increased significantly as could “reasonably be expected” under the MMAR. In fact, the stated efficiency of the new regulatory scheme should be viewed with much scepticism. The low participation rate, in itself, should raise serious concerns among those sincerely aiming to provide compassionate access to cannabis for therapeutic purposes. In addition, the following sections will set out some of the specific problems that must be addressed if the regulatory scheme is to be truly efficient and compassionate.

Eligibility

The current framework requires an applicant to obtain a declaration from a medical practitioner (or one or two specialists) indicating that the recommended use of marijuana would mitigate the applicant’s symptom and that the benefits from the applicant’s recommended use of marijuana would outweigh any risks associated with that use. The medical practitioner must also determine the applicant’s recommended daily dosage and period of use. A medical practitioner is defined as someone who is authorized under the laws of a province to practise medicine.

It is clear to everyone that requiring medical practitioners to act as “gatekeepers” in the use of marijuana for therapeutic purposes has created a major impediment to access, or, as Health Canada states, there is a conundrum”. The Canadian Medical Association and many other professional medical organizations have refused to support the new federal application process because of issues of patient safety, dosages, and the legal liability of physicians prescribing cannabis.

This reluctance should not have come as a surprise to Health Canada. During the consultation process with regard to the proposed regulations, two medical associations and two provincial licensing authorities opposed the use of smoked marijuana for medical purposes. Their reasons included: 

·               The lack of scientific evidence supporting its use;

·               The fact that marijuana is not an approved drug product;

·               The view that the use of smoked marijuana is not an acceptable form of drug administration; and

·               The view that the responsibility placed on doctors to support the use of marijuana for medical purposes may place them in conflict with professional conduct rules relating to the use of unapproved or “alternative” medicines.[29]

 

The position taken by the Canadian Medical Protective Association (CMPA) is fairly reflective of the positions taken by other individuals and organizations in the medical community. The CMPA is a medical mutual defence organization with 60,000 members–about 95 per cent of the physicians practising in Canada. It has warned its members that they could expose themselves to liability or professional misconduct complaints if they prescribe marijuana without “detailed knowledge” of the drug’s risks and benefits and the appropriate dosage. The following was stated in an information sheet sent to members:

 

Section 69 of the regulations allows a medical licensing authority to request from the federal health minister information regarding a specific medical practitioner, which may be provided if the minister has reasonable grounds to believe the medical practitioner has made a false statement under the regulations. This is a significant concern, as physicians may unknowingly make a false statement because they are being asked to attest to matters that may go beyond the scope of their expertise. As a result, the risk that physicians could be reported to their College is increased. 

 

The fact that marijuana is not an approved drug product may lead some to conclude marijuana is an alternative medicine. This raises the important point as to whether the Colleges would consider physicians’ involvement in the application for a licence to possess marijuana as requiring them to comply with the policy of that College concerning alternative or complementary medicines. The CMPA advises physicians to ascertain from their regulatory authority what their position is in this regard. 

 

Given the consequences that may befall physicians with respect to their licensing body, or potential medico-legal liability, physicians will want to be very careful when determining whether to assist a patient in making an application under these regulations. [30] 

 

The CMPA has also stated that the information about the effectiveness of medical marijuana in each patient’s case, the relative risks and benefits of the drug and what dosage would be appropriate is “simply is not available,” making it nearly impossible for the vast majority of doctors to comply with requirements of the MMAR. It views the MMAR as placing “an unacceptable burden on member physicians” and states that, since “many physicians would not have the necessary knowledge about the effectiveness, risks or benefits of marijuana, we believe it is unreasonable to make physicians gatekeepers in this process.”[31]  The CMPA advised its members as follows: 

 

As you will see from the attached Information Sheet, now in the hands of our members, we have advised those physicians who are not or do not feel qualified to make those assessments to refrain from signing a declaration for a patient. We also advised our members to explain to their patients why they do not have the knowledge about marijuana, and to refer the patient to another physician, if known, with more experience in the medical use of marijuana.

 

Finally, recognizing that some physicians, out of compassion for their patients, may believe in good faith that their medical condition would benefit from marijuana, we have advised them to complete only Parts 1 and 2 of the form and to NOT complete Parts 3, 4 and 5, leaving Health Canada to decide whether to process an incomplete application. [32]

 

Clearly, under these circumstances, patients will have difficulty finding a medical practitioner willing to complete the required declaration forms, and even more difficulty accessing the appropriate specialists. This situation has created an unacceptable barrier to access and one must conclude that physicians should not be the “gatekeepers” under the MMAR, a responsibility that they themselves do not desire. Even Health Canada recognizes that there is a problem.

 

Without that scientific evidence, the doctors are in a legitimate quandary. For other therapeutic products, doctors rely on information that Health Canada either develops or analyzes through the drug review process. That is the basis for doctors’ understanding of the particular products. They do not have that analysis in this particular situation. 

 

Through the marijuana medical access regulations, we have eliminated the criminality of possessing and growing for your own purposes. That is the regulatory regime that is in place. We are working with Prairie Plant Systems, as Ms Lynch has said, to develop a research source for this product that will be made available through legitimate clinical trials for patients.

 

Until such time as we can begin to get the results of the research and until the medical community can determine whether it will prescribe this in legitimate circumstances, there is a conundrum. [33]

 

The involvement of physicians in the process is not questioned–what must be determined is their proper role with respect to use of cannabis for therapeutic purposes. Physicians are trained to provide a diagnosis of a person’s medical conditions and symptoms and to determine how to treat these conditions and symptoms medically. Most do not have, however, adequate knowledge of the therapeutic benefits of cannabis and are reluctant to associate themselves with this product for a variety of reasons, including its illegality. In our view, and as we have explained in detail in Chapter 9, a distinction must be made between an approved medicine per se and a substance that has, at the very least, potential therapeutic applications–although these may not have been “scientifically” confirmed to date. Chapter 9 enumerates the conditions and symptoms for which cannabis has potential therapeutic applications.  Let us be clear: we do not view cannabis as a “miracle” substance that will treat or cure numerous medical conditions or symptoms. It is a substance, however, that is known to provide effective relief of certain medical conditions and symptoms, thus improving the quality of life of many individuals.

In these circumstances, the proper role of the physician should be to make a diagnosis of the patient’s medical conditions or symptoms. If the condition or symptom is one where cannabis has potential therapeutic applications, the patient would be authorized to use the therapeutic product of his or her choice, including cannabis. This would also mean eliminating the current requirement that all other “conventional treatments” have been tried or considered before the use of cannabis is authorized. There is no justification for making cannabis an option of “last resort.”

The requirement for specialist involvement in the current scheme clearly can lead to long delays. To make matters worse, the stated positions of medical organizations would make it very difficult to get two specialists to make the required declarations.  This creates another unwarranted barrier.

 

The requirement to involve a medical specialist in the authorization of possession of medicinal cannabis is unjustified, unfounded, unrealistic and punitive. It negates timely access, and places au unjustified burden on both the patient and the Health Care system. Many patients already wait from nine months to a year to see a specialist. This means that those waiting for authorization to access medicinal cannabis may be on hold for upwards of a year. This is an inhumane wait to force upon those in dire medical need. In addition, it will unnecessarily exacerbate already extensive waiting lists for specialists, meaning those in genuine need of the specialists will unduly suffer. [34]

 

The conditions and symptoms for which cannabis use would be authorized are set out in Chapter 9. New conditions or symptoms would be added based on ongoing research. 

We are aware that the 1961 Single Convention on Narcotic Drugs would seem to require medical prescriptions for the supply or dispensation of drugs to individuals.[35] We make two comments:

·               International conventions are generally subject to a country’s constitutional provisions. As previously discussed, courts in Canada have found that depriving an individual of the ability to choose marijuana as medication to alleviate the effects of a serious illness does violate the rights protected under the Canadian Charter of Rights and Freedoms unless there is a statutory exemption scheme authorizing such use. The courts have indicated that, where a statutory exemption scheme turns out to be “illusory,” a constitutional exemption will be granted. The stated positions of Canadian medical organizations may make the current MMAR exemption scheme turn out to be “illusory.”

·               It is better to look to the spirit rather than the letter of the Convention.  While cannabis may not be an approved medicine per se, there is no doubting its potential therapeutic applications. Thus, the Government of Canada should advise the international community that we will not strictly adhere to this requirement and that we will be requesting appropriate amendments to the international conventions.

 

 

Access to cannabis

Concerns regarding patients’ ability to grow marijuana on their own or to find a person willing and able to do it for them were often raised. This problem is compounded by the condition in the MMAR that a person cannot be the holder of more than one licence to produce. Problems associated with the present scheme include  a lack of experience in cultivation; products of unknown potency and quality; security risks related to cultivation of marijuana; etc.

Undoubtedly, patients must have access to safe and high-quality cannabis products. The current option of self-cultivation should remain open for those who prefer this avenue. In such cases, the patient would register directly with Health Canada. In cases where self-cultivation is not appropriate or feasible, access should be permitted through properly regulated Dedicated Cannabis Distribution Centres. These centres would be staffed by personnel with knowledge of the therapeutic use of cannabis, who could advise patients on the dosage, strain and potency best suited for their particular conditions. The failure to obtain a domestic source of research-grade marijuana, as had been planned, provides further justification for allowing distribution centres to dispense high-quality cannabis to eligible patients. In addition, we are convinced that the government should not be the only distributor of cannabis intended for therapeutic purposes. Currently, Compassion Clubs play a very important role in distributing cannabis to those who need it for therapeutic purposes. For example, the B.C. Compassion Club Society is a registered non-profit society that has been distributing cannabis for medical use since 1997.  It employs  a  staff of 28 and serves a membership of approximately 1,600 people. Before registering a member, the club requires a confirmation of diagnosis and a recommendation for cannabis from a physician, naturopathic doctor or a psychiatrist. If a doctor will not sign a recommendation solely because he or she is uncomfortable with the legal status of cannabis, or has concerns about professional retribution, the club may register the patient without a doctor’s recommendation, depending on the severity of the diagnosis. Similar Compassion Clubs exist elsewhere in Canada.[36] 

Access to a variety of strains of cannabis with varying levels of potency is crucial. For example, the B.C. Compassion Club Society currently stocks many varieties of cannabis products.

 

Our daily menu usually has seven to ten varieties of cannabis, one or two varieties of hashish, cannabis tincture and baked goods. It is important that medicinal users have access to a variety of strains, as the effect of cannabis varies depending on which strain is being used and the method of ingestion. Our members are made aware of the differences and can then select the best strain of cannabis to most effectively treat their symptoms. [37]

 

High-quality products would be ensured through proper testing. The importance of testing was raised as a key issue. 

 

It is absolutely crucial in the developments on which we are working – and that we would like to continue – to have strict guidelines in terms of moulds and mildews, pesticides, fungicides, heavy metals and the kinds of things – which can be very dangerous – that you find in non-organic cannabis. Even in organic cannabis, some of those elements of microbiology can be very harmful to people, especially for people with depleted immune systems. We can only develop such standards when the medical marijuana community has access to laboratories. I think that there are all kinds of standards that can be developed in terms of safety and cleanliness in growing and distribution. [38]  

 

Despite what most would view as laudable motives–distributing cannabis to patients in order to alleviate their suffering–most of the existing clubs have faced or are facing difficulties with the justice system. Because they are operating in a grey area, those involved in these clubs are subject to prosecution and have in fact been prosecuted. For example, we heard from Philippe Lucas, director of the Vancouver Island Compassion Society (VICS), who indicated that he had been arrested and charged with possession for the purposes of trafficking because of his work with VICS. Mr. Lucas pleaded guilty to the charge but was recently granted an absolute discharge. Some of the comments made by the judge at sentencing are certainly relevant to this chapter. On the question of eligibility, the judge stated the following: 

 

This case must be viewed in a broad context, in which to date, the combination of federal regulations and College of Physicians trepidation has made it extremely difficult for applicants to obtain approval to use marijuana. [39]

 

He added the following with respect to access to marijuana:

 

Further, the federal government has so far been unable to ensure any legal supply of marijuana to those whom Health Canada thinks need it as a therapy. This is a particular hardship for those who cannot grow it.

 

…the Crown cannot rely upon the argument that there is a lawful option for those in need of the drug when the evidence establishes that the drug is only theoretically available through legitimate sources. [40]

 


In conclusion the judge stated the following.

 

I find that while there is no doubt that Mr. Lucas offended against the law by providing marijuana to others, his actions were intended to ameliorate the suffering of others. His conduct did ameliorate the suffering of others. By this Court’s analysis, Mr. Lucas enhanced other peoples’ lives at minimal or no risk to society, although he did it outside any legal framework. He provided that which the Government was unable to provide a safe and high quality supply of marijuana to those needing it for medicinal purposes. He did this openly, and with reasonable safeguards. The fact that he has stated he will continue this activity points to the sincerity of his principles, and points to our need as a society to get this thorny issue resolved quickly by either Parliament or the Supreme Court of Canada. If he re-offends, he will have to argue his case again, and may find a discharge difficult to obtain in the future. This court hopes that cooler heads will prevail pending the final resolution of issues regarding the medical and non‑medical use of marijuana. [41]

 

In Montreal, we heard how two volunteers of the Club Compassion de Montréal had been arrested only three months after they started operations. A decision is expected by the end of August 2002. Encouragingly, Hilary Black, founder and director of the B.C. Compassion Club Society, stated that the local police had generally been “wonderfully supportive of their work.” However, her next statement reveals readily apparent contradictions.

 

Police who have come to the Compassion Club Society have told me what great work we are doing, and have, on one occasion, protected a safe full of cannabis on our behalf. However, I have had a police gun held to my head for being at a growing facility. While I met with the federal health minister, Alan Rock, to give recommendations and information Health Canada had requested from us, the RCMP raided a greenhouse that was growing low cost, organic cannabis for the Compassion Club Society. While I am here before you, sharing our information as experts in the distribution of medicinal cannabis, my colleagues risk arrest, imprisonment, their ability to travel, to be employed, and their freedom to distribute cannabis to those in need. Prohibition is not protecting Canadians from the evils of cannabis; prohibition is destroying Canadians’ lives. [42]

 

Because these organizations are presently operating in a grey area we would hope that those in charge of enforcement would use their discretion powers liberally and that cooler heads will prevail. Some of the statements made by Hilary Black led us to be optimistic in this area. Clearly, in other areas of the country, the political climate will have to change.

In order to create a transparent therapeutic distribution system, these centres should be licensed and properly regulated. The conditions of their operation should include a requirement that they be authorized only to distribute cannabis for therapeutic purposes to those who have been diagnosed as having an enumerated condition or symptom. In addition, the distribution centres would be required to keep suitable records and make periodic reports. The purpose of such information would be to keep Health Canada informed of the centres’ members for registration purposes and also to provide valuable information for scientific research. Thus, the records would include information on a patient’s medical condition and its evolution, the amounts consumed and the observed effects on the patient. The centres would also be required to ensure that security measures are in place and would be subject to inspections to ensure compliance with the regulations. 

While added regulation will increase the costs of these distribution centres, this is essential to ensure proper controls over therapeutic use of medicinal cannabis. We insist that the costs of this regulatory scheme be kept to a minimum so as not to impede access to cannabis through inflated prices.

With respect to obtaining products, centres would agree to be supplied only by licensed producers. Such producers would be able to cultivate cannabis only for therapeutic purposes–since the separation of the therapeutic system from the recreational system is crucial. Licensed producers would be properly regulated–in particular, to ensure adequate safety measures are in place–and would be required to produce safe, high-quality products.

 

Products

Currently, the MMAR authorize possession of only dried marijuana, and not other cannabis products. We do not feel that this is justified and would recommend that the scheme be expanded to cover other cannabis derivatives .

 

Costs

We heard on several occasions that patients using cannabis for therapeutic purposes were often suffering from serious debilitating diseases, which negatively affected their financial situations. We recognize that drug coverage by insurance plans is generally a provincial responsibility. However, we believe that the purchase of marijuana for therapeutic purposes, and the purchase of equipment necessary for its cultivation, should be considered a medical expense for the purposes of the Income Tax Act.

 

Marihuana Medical Access Regulations

Committee Proposals

Eligibility

  • The medical practitioner must not only confirm the applicant’s medical condition and the symptom that is associated with that condition or its treatment, but also confirm that the recommended use of marijuana would mitigate the symptom and that the benefits from the applicant’s recommended use of marijuana would outweigh any risks associated with that use

 

  • Requirement to consult one (category 2) or two (category 3) specialists for symptoms associated with medical conditions set out in category 2 and category 3

 

  • Generally requires that all conventional treatments have been tried or considered

 

 

  • Three categories of eligibility

Eligibility

  • The diagnosis of a medical doctor or other medical practitioner regulated by a provincial colleges of physicians and surgeons would suffice for the purpose of authorizing therapeutic use

 

 

 

 

 

  • Eliminate the requirement to consult one or two specialists

 

 

 

  • Eliminate the requirement that all conventional treatments have been tried or at least considered before cannabis may be used

 

  • Eliminate the three categories and enumerate the medical conditions or symptoms for which cannabis use would be permitted – updating the list on a continual basis based on commissioned research

Access

·         Patients are limited to growing their own supply or designating someone to grow it for them

Access

·         Patients would be allowed to grow cannabis themselves or obtain it from dedicated distribution centres supplied by licensed producers

Products

  • Limited to cannabis (marijuana)

Products

  • Include all cannabis-derived related products

Dosage

·         Set by medical practitioner

Dosage

·         Would be determined by patient in association with the dedicated distribution centre

 

Research plan

 

Health Canada’s Office of Cannabis Medical Access is responsible for the administration of the MMAR. It also co-ordinates other initiatives related to cannabis, including research on the safety and effectiveness of marijuana used for therapeutic purposes and the establishment of a reliable Canadian source of research-grade marijuana.

As stated previously, Health Canada released a report in June 1999 announcing a research plan for the therapeutic use of marijuana. The document[43] laid out a five-year research plan for evaluating the risks and benefits of the use of marijuana for medical purposes. The plan included the following elements: 

v     a research agenda composed of projects to address the issues of safety and efficacy of smoked marijuana and cannabinoids;

v     mechanisms for medical access to marijuana outside the projects (for example section 56 exemptions discussed previously in this chapter); and

v     the development of a Canadian source of research-grade marijuana.

Scientific research

As part of the government’s strategy to address the issue of medical marijuana, Health Canada decided to sponsor research activities to evaluate the safety and efficacy of smoked marijuana and of cannabinoids. Health Canada was concerned that the evidence of the therapeutic value of smoked marijuana was heavily anecdotal and that the scientific studies supporting the safety and efficacy of marijuana for therapeutic claims were inconclusive. Health Canada was also concerned about the health risks associated with the use of marijuana, especially in smoked form. 

The strategy has been developed with advice from the Therapeutic Products Programme’s (TPP) Expert Advisory Committee on New Active Substances, an external body of scientific and medical experts who provided advice to the TPP.

Currently, there is a partnership program between Health Canada and the Canadian Institutes of Health Research (CIHR), a granting agency. This is to ensure scientific validity of the studies. The Health Canada/CIHR Medical Marijuana Research Program (MMRP) has been established as a five-year research plan with estimated funding of up to $7.5 million. The initial focus is on the smoked form of marijuana, although future initiatives are also to focus on non-smoked marijuana and cannabinoids.

We are aware of at least two studies that have been planned:

v     In July 2001, Health Canada and the CIHR announced a contribution of $235,000 to fund a pilot study at McGill, with about 32 patients, aimed at evaluating the effects of smoked marijuana for chronic neuropathic pain. 

v     In June 2001, Health Canada announced funding of $840,000 to support a research project by the Community Research Initiative of Toronto (CRIT) on the efficacy of smoked marijuana in the treatment of wasting syndrome in those living with HIV/AIDS. At the time, it was entering the second phase of a three-part research project on smoked marijuana – The acute effects of smoked cannabis on appetite in persons living with HIV/AIDs (PHAs): A randomized, double-blind, placebo-controlled, crossover pilot study.  

 

It should be noted, however, that neither of these projects is currently under way because they do not have access to marijuana.

In addition to pilot projects, Health Canada has announced that research-grade marijuana will be provided to eligible individuals who agree to provide health information for monitoring and research purposes. Health Canada will collect and analyse this information for research purposes. Once again, Health Canada has yet to provide marijuana to authorized users.

Health Canada has indicated that the knowledge gained from the overall research program will be used, in part, to amend the MMAR if necessary. For example, category 2 symptoms may need to be adjusted or the daily dosage may need to be more precisely determined. Health Canada also indicated that if no benefits were shown, the continued need of the MMAR would be in doubt.

Clearly, research on the therapeutic aspects of marijuana is essential. While Health Canada should be applauded for establishing a research plan, what is less commendable is the pace at which the research is progressing. As stated, the authorized pilot projects have yet to commence their research because Canada must rely on an American source for research-grade marijuana. This means that American institutions, in particular the National Institute on Drug Abuse, are entitled to review Canadian research protocols to determine whether or not they will deliver their marijuana products to Canadian researchers.

 

Our first source or our first attempt at sourcing the marijuana for research purposes was through NIDA, the National Institute on Drug Abuse in the States. They have seed and dried product. We are still negotiating with them to get some dry product.

 

In order to use their product, we have to have the protocols that the product will be used for approved by both the health department there and NIDA themselves. Once they have approved the actual scientific protocol, then it has to go to the DEA to see if they will allow the export. [44]

 

While further research is essential, it does not suggest that therapeutic use is not justified in specified circumstances. The ongoing research should focus on confirming  its justification and on identifying new medical conditions or symptoms for which cannabis has therapeutic value. Research to determine the value of cannabis as a medicine per se should also be a priority, as should finding alternative delivery systems that are as effective as smoked cannabis.

Before leaving the issue of research, mention should be made of the considerable expertise and knowledge currently residing in the Compassion Clubs, which have become established outside of the legal system. This source of valuable information and expertise has not been acknowledged under Health Canada’s current research plan. We feel strongly that the information they have must be gathered and analysed for research purposes. The validity of ongoing research using what some consider to be low-quality, low-potency cannabis imported from the National Institute on Drug Abuse or similar type of product that may be produced in Canada must also be called into question. Hilary Black, founder and co-director of the B.C. Compassion Club Society, stated the following.

 

We created a research proposal with a team of research scientists from Vancouver. However, we were turned down because we refuse to facilitate a study using a placebo or low-quality, low-potency cannabis imported from the US National Institute on Drug Abuse. Any study attempting to prove the efficacy of cannabis as a medicine using such a low-potency herb, or unknown strains such as those currently being grown in Canada by Plant Prairie Systems, is destined to fail. There is no need to import cannabis for research, considering the high quality and huge quantity of cannabis being produced in Canada. The information we could gather is being requested by doctors, patients, pharmaceutical companies, Plant Prairie Systems and Health Canada, yet we are not financially empowered to facilitate this research. [45]

 

Research-grade marijuana

As was previously stated, another priority in Health Canada’s research plan was the development of a Canadian source of research-grade marijuana. A request for proposal (RFP) was released on 5 May 2000 through Public Works and Government Services Canada. The purpose of the RFP was to establish a Canadian source of quality, standardized, affordable, research-grade marijuana for scientific research. Originally, the marijuana was to be made available only to qualified, approved scientists for research. A number of proposals were received by the closing date of 28 June 2000. The evaluation criteria included: financial status, qualifications of personnel, security requirements respecting personnel, etc. No experience in growing marijuana was required, although there was a requirement for experience in growing plant material for human consumption.  

In December 2000, a contract was awarded to Prairie Plant Systems Inc. of Saskatoon (PPS) to provide Health Canada with a reliable source of affordable, quality, standardized marijuana for medical and research purposes. Health Canada also announced that until the domestic supply was established, it would submit requests to the U.S. National Institute of Drug Abuse to obtain research-grade marijuana for clinical trials being conducted in Canada on behalf of researchers.

PPS met the contract requirements for security and was given authorization to begin growing marijuana. The site chosen for the cultivation of research-grade marijuana in Canada was an abandoned mine in Flin Flon, Manitoba. While to some this appears comical, Health Canada justifies this decision because of the security this location provides and the opportunity to control the temperature, the humidity and the growing conditions.

The first product was expected to be delivered to Health Canada by early 2002. Under the terms of the five-year, $5.7 million contract that Prairie Plant Systems Inc. signed with Health Canada, the company would

 

v     Set up and operate a marijuana growing, processing, fabrication and storage establishment;

v     Conduct laboratory testing and quality control of marijuana throughout the product life cycle;

v     Fabricate, package, label and store marijuana material;

v     Distribute marijuana product to recipients authorized by Health Canada; and

v     Conform to the requirements of the CDSA including stringent security and physical measures.

 

Health Canada also announced that this product would, in addition to use for research purposes, be made available to authorized Canadians using it for medical purposes who agree to provide information to Health Canada for monitoring and research purposes.

This spring, Health Canada revealed that the first crop could not be used for research purposes because of the varying quality. While they had hoped to obtain seeds from the National Institute on Drug Abuse, the seeds that were used were obtained from police seizures in Canada. This led to a collection of marijuana with different strains and characteristics. Health Canada states the importance of research-grade marijuana as follows: 

 

Going back to the comments we made earlier on why Health Canada is involved in the study of medical marijuana, it is to determine whether to develop the scientific evidence that is required to determine whether there is a benefit. In order to develop that scientific evidence, one must have a base product that meets research standards. It was not a question of whether Prairie Plant Systems did in fact grow marijuana; it was a question of whether the product they developed was consistent, research‑grade standard such that it could be used in legitimate scientific research. [46]

 

While we are sympathetic to this argument, there would appear to be no justification for not supplying this product to those who have been authorized to do so under the CDSA, particularly since the safety of the product, in regard to pesticides, moulds, etc., should not be in question.  

 

 

Conclusions

 

We would like to emphasize that the changes we propose to the MMAR still ensure that therapeutic use is limited to cases of legitimate medical need and that distribution and production is done under governmental licence.

 

 

Conclusions of Chapter 13

 

Ø      The MMAR are not providing a compassionate framework for access to marijuana for therapeutic purposes and are unduly restricting the availability of marijuana to patients who may receive health benefits from its use.

Ø      The refusal of the medical community to act as gatekeepers and the lack of access to legal sources of cannabis appear to make the current regulatory scheme an “illusory” legislative exemption and raises serious Charter implications.

Ø      In almost one year, only 255 people have been authorized to possess marijuana for therapeutic purposes under the MMAR and only 498 applications have been received – this low participation rate is of concern.

Ø      Changes are urgently needed with regard to who is eligible to use cannabis for therapeutic purposes and how such people gain access to cannabis.

Ø      Research on the safety and efficacy of cannabis has not commenced in Canada because researchers are unable to obtain the product needed to conduct their trials.

Ø      No attempt has been made in Health Canada’s current research plan to acknowledge the considerable expertise currently residing in the compassion clubs.

Ø      The development of a Canadian source of research-grade marijuana has been a failure.

 

 



[1] Two commercially available drugs related to cannabis have been approved for sale in Canada:  Marinol, which contains chemically synthesized THC; and Cesamet, a synthetic cannaboid.  Both may be prescribed by physicians.

[2]  S.C. 1996, Chapter 19.

[3]  These drugs are set out in the schedule and include opium, codeine, morphine, heroin, cocaine, and cannabis. 

[4]  R.S.C. 1985, Chapter F-27.

[5]  In June 1999, Health Canada released a report announcing a research plan for the use of marijuana for therapeutic purposes and stating that steps would be taken to establish a domestic source of research-grade marijuana. Both of these initiatives are discussed in more detail in subsequent sections of this chapter.

[6]  Participants included representatives from law enforcement, practicing physicians, research clinicians, National Association of Pharmacy Regulatory Authorities, Health Canada and others of unknown affiliation.

[7] Regulatory Impact Analysis Statement accompanying the Marihuana Medical Access Regulations, p. 17.

[8] This section is based largely on Drug Prohibition and the Constitution, a paper prepared for the Senate Special Committee on Illegal Drugs, by David Goetz, Law and Government Division, Parliamentary Research Branch, Library of Parliament, 1 March 2001.

[9] [1998] O.J. No. 3522 (Ont. Gen. Div.).

[10] Ibid., at paras. 49-50.

[11] Ibid., at para. 54.

[12] Ibid., at para. 66.

[13] [1999] O.J. No. 1574, at paras. 11, 31 and 32.

[14] 49 O.R. (3d) 481. 

[15] Ibid.

[16] Ibid., at para. 155.

[17] Ibid., at para. 163.

[18] Ibid., at paras. 184-185 and 188.

[19] Ibid., at paras. 191-194.

[20] Ibid., at para. 190.

[21] Health Canada, News Release, Minister Rock announces intention to develop new approach for the use of marihuana for medical purposes, 14 September 2000.

[22] Key stakeholders included representatives from the Canadian Medical Association, the Canadian Pharmacists Association, the Canadian AIDS Society, the RCMP, Solicitor General Canada, Department of Justice, Correctional Service Canada and the Canadian Association of Chiefs of Police.

[23] Health Canada, Information, Marijuana Medical Access Regulations – Amendments Resulting from Public Consultations, July 2001.

[24] Health Canada, Information, Medical Access to Marijuana – How the Regulations Work, July 2001.

[25] Regulatory Impact Analysis Statement accompanying the Marihuana Medical Access Regulations, page 8.

[26] These symptoms are listed in a Schedule to the MMAR and were selected based on the outcome or conclusions of scientific and medical reports, although seizures associated with epilepsy were added in view of the findings in the Parker decision. This list is intended to be reviewed on a regular basis and is to be amended as new information becomes available.

[27] Regulatory Impact Analysis Statement accompanying the Marihuana Medical Access Regulations, page 13.

[28] Gillian Lynch, Director General, Drug Strategy and Controlled Substances Programme, Health Canada, Proceedings of the Special Committee on Illegal Drugs, Senate of Canada, First Session, Thirty-Seventh Parliament, 2001-2002, Issue No. 22, page 32.

[29] Regulatory Impact Analysis Statement accompanying the Marihuana Medical Access Regulations, p. 19.

[30] Canadian Medical Protective Association, What To Do When Your Patients Apply For A Licence To Possess Marijuana For Medical Purposes, October 2001.

[31] Canadian Medical Protective Association, letter to the Honourable Allan Rock, Q.C., 8 November 2001.

[32] Ibid.

[33] Dann Nichols, Assistant Deputy Minister, Healthy Environments and Consumer Safety Branch, Health Canada, Proceedings of the Special Committee on Illegal Drugs, Senate of Canada, First Session, Thirty‑Seventh Parliament, 2001-2002, Issue No. 22, pages 37-38.

[34] B.C. Compassion Club Society, BCCCS Response to Health Canada’s Proposed Medical Marijuana Access Regulations, 4 May 2001, page 4.

[35] Single Convention on Narcotic Drugs, 1961, Article 30.2.b.i.

[36] For example, the Vancouver Island Compassion Society currently has 235 members and the Club de compassion de Montréal has 130 members. 

[37] Proceedings of the Special Committee on Illegal Drugs, Senate of Canada, First Session, Thirty-seventh Parliament, 2001, Issue no. 10, page 36

[38] Ibid., page 44.

[39] R. v. Lucas, Provincial Court of British Columbia, Victoria, File No:  113701C, para. 47 (Honourable Judge Higinbotham).

[40] Ibid., para. 47-48.

[41] Ibid., para. 49

[42] Proceedings of the Special Committee on Illegal Drugs, Senate of Canada, First Session, Thirty-seventh Parliament, 2001, Issue no. 10, page 41.

[43] Health Canada, Therapeutics Products Programme, Research Plan for Marijuana for Medicinal Purposes : A Status Report, 9 June 1999.

[44] Gillian Lynch, Director General, Drug Strategy and Controlled Substances Programme, Health Canada, Proceedings of the Special Committee on Illegal Drugs, Senate of Canada, First Session, Thirty-Seventh Parliament, 2001-2002, Issue No. 22, pp. 47-48.

[45] Proceedings of the Special Committee on Illegal Drugs, Senate of Canada, First Session, Thirty-seventh Parliament, 2001, Issue no. 10, p. 10 :38-10 :39.

[46] Dann Nichols, Assistant Deputy Minister, Healthy Environments and Consumer Safety Branch, Health Canada, Proceedings of the Special Committee on Illegal Drugs, Senate of Canada, First Session, Thirty‑Seventh Parliament, 2001-2002, Issue No. 22, page 46.


Chapter 14

Police Practices

Views on police priorities regarding enforcement of laws on illicit drugs are, at the very least, inconsistent, if not completely contradictory. Some believe that too much police time, effort and resources are spent in investigating illicit drug offences and, more specifically, possession offences – even more specifically, cannabis possession offences. Others–including the police themselves – claim that police priorities are already focused on traffickers and producers, and that possession charges are laid as a result of police presence to deal with other criminal activity. Thus, they maintain that the vast majority of cannabis possession charges are incidental to other police responsibilities.

This chapter will review the key organizations that are responsible for enforcing Canada’s current illicit drugs legislation, the Controlled Drugs and Substances Act (CDSA). It will include a discussion of the powers they have been granted, and the investigative techniques used, in relation to illicit drug investigations. Finally, key police-related statistics will be explored. This information should help clarify some of the misconceptions related to enforcement of laws on illicit drugs.

 

 

Enforcement agencies

 

Several organizations play a role in enforcing Canada’s illicit drug legislation.  This section will review three: the RCMP, the Canada Customs and Revenue Agency (CCRA), and provincial and municipal police forces. These key players co‑operate with many other organizations when required, such as National Defence, Fisheries and Oceans, and the Canadian Coast Guard.

 

The RCMP

The RCMP’s role and mandate is to enforce laws, prevent crime, and maintain peace, order and security. The RCMP is involved mainly in four components of Canada’s Drug Strategy: enforcement and control; national co‑ordination; international co-operation; and prevention programming.

At the national level, the RCMP’s drug enforcement responsibilities are primarily carried out by two groups:

 

v     The Drug Enforcement Branch: with approximately 900 employees, this branch is responsible for drug enforcement in Canada through its head office in Ottawa and its divisional drug enforcement units located throughout the country. The Branch also provides rapid communication to members of the international drug enforcement community.

v     Integrated Proceeds of Crime Initiative: with about 415 employees, this group is responsible for investigating persons for proceeds of crime and seizing assets obtained through criminal activities. With an estimated 90 per cent of seizures related to drugs, it is primarily a drug-related initiative. The 13 units are staffed with a mix of: federal, provincial, and municipal police; Justice counsel; customs officers; tax investigators; asset managers; and forensic accountants. Cases tend to be complex and lengthy.

 

These two services also receive assistance from other RCMP sections such as intelligence and other specialized investigation services, including electronic and physical surveillance. Their current priorities lie in the investigation and arrest of upper echelon criminal organizations, involved in the drug trade, and in the seizing of proceeds of crime. The RCMP has adopted an intelligence-driven approach and conducts project-oriented investigations–for example, focusing on organized crime. It gathers information that is fed through its intelligence process to identify the main threats across the country. National priorities are based on these threat assessments so that resources will be focussed on the areas of greatest risk to Canadians. National priorities are reassessed, modified and retargeted based on gathered intelligence. Within those national priorities – for example, outlaw motorcycle gangs – particular groups will be specifically targeted. This approach has resulted in cases that are complex and lengthy and consume significant resources. Many of these investigations can take many years to come to fruition.

When it appeared before the Committee in October 2001, the RCMP set out the following national priorities:

 

Our current strategic national priorities are outlaw motorcycle gangs, Asian-based organized crime, Italian-based organized crime, and Eastern European-based organized crime. These are national targets; they are not drug targets. These are the RCMP national targets. These groups are involved in all commodity areas. However, you will notice that all four groups are involved in illicit drugs [1]

    

The RCMP works closely with other national and international enforcement agencies in its efforts to reduce the supply of drugs in Canada. In this function, it will regularly participate in joint forces operations–which can be permanent working groups or temporary operations aimed at a specific target–to co-operatively investigate criminal activity and exchange intelligence. Liaison is maintained with provincial and municipal police departments, Interpol, the United Nations, the Organization of American States, National Defence, Fisheries and Oceans, Correctional Service of Canada, the Canadian Coast Guard, as well as Customs authorities and drug enforcement agencies worldwide, such as the Drug Enforcement Administration, FBI and U.S. Customs.

The RCMP is also involved in drug prevention and has established a Drug Awareness Service. With a budget of $4 million and 31 employees, this Service is responsible for going into the community to educate students, parents, athletes, coaches, employees, employers and community groups. The RCMP–including all personnel and not only the 31 full-time employees–makes over 10,000 presentations per year. Programs include Drug Abuse Resistance Education (DARE)[2], the Aboriginal Shields Program, the Two-way Street: Parents, Kids and Drugs, and the Drugs and Sport Program.

In addition to its federal responsibilities, the RCMP is involved in local enforcement as part of the provincial and municipal policing responsibilities it performs under contract. Sgt. MacEachern, Drug Enforcement Coordinator in New Brunswick, provided the following explanation:

 

The RCMP has a contractual obligation to the Province of New Brunswick and, as such, we provide policing services to all rural areas of the province, a large number of the smaller service districts and small municipalities, and as well a significant number of larger municipalities. In addition, we have federal law enforcement units throughout the province, and for drug enforcement we have offices and suboffices in Bathurst, Moncton, Saint-Leonard, Saint John and Fredericton.

 

Simply put, our federal enforcement personnel dedicate themselves to larger scale investigations involving organized criminal groups at the provincial, interprovincial, national and international levels. Our provincial or contract detachments are tasked with targeting local or street level drug traffickers, but often, in the interests of addressing a significant local trafficking situation, our federal units combine resources with our detachments to pursue a specific goal. [3]

 

While enforcement statistics are discussed in greater detail in following sections of this chapter, it is interesting to note that, according to the following chart from the Auditor General’s 2001 Report,[4] the RCMP was responsible for approximately 24% of all charges under the Controlled Drugs and Substances Act in 1999, with only 4% of the charges relating to its federal policing services. In this chart, the number of persons charged is according to the most serious offence in a given incident and means persons charged by police or persons against whom the police recommended charges be laid.

 

Charges under the Controlled Drugs and Substances Act in 1999

 

 

The Canada Customs and Revenue Agency [5]

The CCRA–currently with over 8000 employees–has always played a key role in drug enforcement in Canada and is responsible for intercepting drugs at the point of entry. This is a significant task because many of the illicit drugs found in Canada are smuggled across our borders – although this statement may be less accurate with respect to cannabis, because of local production.

The Customs Act grants customs officers certain powers. Section 98 authorizes an officer to search a person arriving in Canada if the officer suspects on reasonable grounds that the person has secreted on or about his person: anything in respect of which the Act has been or might be contravened; anything that would afford evidence with respect to a contravention of this Act; or any goods the importation or exportation of which is prohibited, controlled or regulated under the Act or any other Act of Parliament. In addition, section 99 authorizes examination of goods that have been imported into Canada. 

The CCRA deals with several types of contraband, including firearms, alcohol, tobacco and drugs. Like that of the RCMP, its work is intelligence-based, using information gathered through its own extensive intelligence network and through other enforcement agencies (both nationally and internationally). Thus, its contraband and intelligence program works with national and international enforcement agencies to develop information, indicators and trends to help identify suspicious shipments and/or persons before they arrive at the border.

The enforcement programs are based on strategic planning, risk management, information gathering and dissemination, partnerships, and effective training of personnel. The Contraband and Intelligence Services Directorate–with illegal drugs as its first priority–is responsible for the design, development, and implementation of strategies with regard to anti-smuggling and intelligence programs. Due to increasing volume, the CCRA implemented the Customs Action Plan–modernizing customs processes and introducing programs based on risk management.

The CCRA contraband and intelligence program is made up of intelligence officers, analysts, and databases to support front-line customs inspectors in identifying high-risk persons and goods at our borders. These units are responsible for collecting and developing intelligence and disseminating it to the line officers across the country.

The CCRA maintains alliances with other customs administrations, national and international law enforcement agencies, and external stakeholders in connection with contraband, intelligence, strategic export and counter-terrorism programs. It has also built important partnerships with other law enforcement agencies in Canada, such as the RCMP and provincial and municipal police, and around the world with other customs administrations and law enforcement agencies such as the United States Customs Service, the Drug Enforcement Agency, the World Customs Organization, the Caribbean Customs Law Enforcement Council, and Interpol. The CCRA regularly participates in joint-force operations of both short- and long-term duration. For example, the Integrated Border Enforcement Teams (IBETS) is a multi-agency law enforcement initiative between Canada and the United States to address cross-border crimes. In addition, the CCRA and police pool resources on a daily basis with local, state and provincial enforcement agencies to combine expertise and intelligence. The CCRA is also part the Integrated Proceeds of Crime initiative discussed above.

Specific activities in relation to drug enforcement include:

 

v     Use of highly sophisticated contraband detection equipment to conduct non-intrusive examinations to assist in the identification of narcotics – X-ray systems, including baggage, mobile truck and rolling cargo systems; ion scans used to detect trace amounts of narcotics on almost any surface; detector dog teams deployed across the country; contraband detection kits that include a number of useful tools such as probes and fibrescopes; and one submersible remote-operated vehicle used to detect narcotics and other contraband attached to the hull of ships, below the water level.

v     Emphasis on training its customs inspectors in the area of contraband enforcement.

v     Use of several enforcement systems and databases, both internal and external, which allow customs officers and inspectors to identify the level of risk of travellers, carriers and/or drivers. 

v     Deployment of dedicated enforcement personnel to enhance intelligence and interdiction in the regions. Regional Intelligence Officers work with local police authorities, targeters, investigators and customs officers to identify high-risk movement across the border. Flexible Response Teams consist of highly trained customs officers who have been placed across Canada to perform monitoring and compliance verification activities, as well as sampling stints on travellers chosen on a random basis. Regional Intelligence Analysts analyze large seizures to identify links to organized crime; they also conduct threat assessments based on trends, and help identify future risk.

 

The CCRA estimates that it is responsible for approximately 50% of all drug seizures in Canada.

 

Provincial and municipal police

Provincial and municipal police forces handle the majority of drug cases in Canada. They are involved primarily in enforcing illicit drug legislation at the street level. In addition, members of these forces are often involved in joint operations with the RCMP and/or the CCRA and other enforcement agencies. For example, the Committee was informed of joint operations currently being run with the RCMP–and in certain cases other enforcement agencies–and the Toronto Police Service, the Vancouver Police Department and the Regina Police Service. 

 

 

Costs [6]

 

The Committee had requested certain details from police forces such as the proportion of time officers spend on drug-related cases, the number of officers assigned to drug enforcement, etc. In most cases, we either received no response to these questions or very general broad statements. Either the police forces were not willing to share this information or police work does not lend itself to these types of calculations and no one knows how much is spent on drug enforcement. In either case, the lack of data makes it extremely difficult to estimate how much of police budgets is allocated to drug-related matters and to analyze whether or not public funds are efficiently allocated.

Estimating the cost of drug enforcement is a fairly complex exercise. Questions raised include: Which items should be included? Which items should be left out because of a lack of data? How should each cost element be measured? Are such costs truly avoidable? How are items to be costed? Finally, what is the effect of these factors on the quality of the results?

The Canadian Centre on Substance Abuse (CCSA) undertook the latest major study of the costs of drug abuse in Canada.[7] This study was published in 1996 and relates to 1992 data. Law enforcement costs were estimated as:

 

Police                                                  $208.3M

Courts                                                   $59.2M

Corrections (including probation)     $123.8M

Customs and Excise                               $9.0M

Total law enforcement costs                      $400.3M

 

Police costs consisted of the costs for specialized law agencies such as the (then) RCMP Narcotics Division, plus that fraction of the general costs of operations that could be attributed to dealing with illicit drug crimes. Such crimes included both direct violations of the drug laws and also that proportion of general crimes that could reasonably be attributed to illicit drugs. 

Data existed on the proportion of homicide and assault cases in which the perpetrator was under the influence of illicit drugs. The CCSA study estimated the proportion of those cases where the assault or homicide could be causally attributed to the drug intoxication of the perpetrator. Putting these two together, it estimated that 8% of violent crimes were attributable to illicit drugs in Canada. No such figure was estimated for property crimes.

The measure of police output was the offence. To estimate policing costs, total policing expenditures as reported by Statistics Canada were multiplied by the percentage of offences that were estimated to be drug-related. The CCSA study concluded that in 1992, 2.4% of all offences were attributable to illicit drug use.

 

Policing costs of enforcing federal drug laws           $168.4M

Policing costs of 8% of violent crimes                        $39.9M

Total policing costs                                                          $208.3M

 

The Customs and Excise figure excluded programs financed under the Drug Strategy.

While we are unable to conduct an in-depth study of enforcement of laws on illicit drugs costs in relation to the RCMP, the CCRA and provincial and municipal police, we can assert with certainty that the current costs of enforcement of laws on illicit drugs are significantly higher than the approximately $210 million estimated in 1992.            

The Auditor General’s 2001 report estimated that the RCMP alone spent approximately $164 million in 1999 on enforcement of laws on illicit drugs.[8] This estimate was based on detailed expenditure data gathered by the federal drug enforcement program. The amount included costs directly related to drug enforcement as well as costs in related areas such as proceeds of crime and customs and excise initiatives.

The $164 million applies only to RCMP federal policing services, however, and not to the policing services rendered by the RCMP under contract to a province or municipality, which account for the largest share of the force’s budget. We were told that, at present, it was not possible to ascertain the costs related to the enforcement of laws on illicit drugs for the latter functions.

 

In the case of contract policing, enforcement of drug laws is rendered in conjunction with a number of other services as, typically, the officers under contract are performing uniform duty, that is, general policing duties in communities. It is therefore difficult to determine what portion of their time is spent doing which activity. This difficulty is enhanced when the drug offence is incidental to another crime, which is often the case.

 

One must consider that a large portion of the cost of any police service is the pay and benefits extended to its members. In order to accurately determine the cost of drug enforcement in contract policing, the amount of time devoted to the effort must be measured.

 

While this is done for members of the RCMP employed in the federal services, the present system applied to contract policing is incapable of collecting this information. An effort is being made to develop a new system that could possibly capture this information. However, given the breadth of day-to-day contract policing duties, it is a clear challenge to separate out, in a meaningful way, drug-related activity.

 

…I should like to speak now to the cost borne by provincial and municipal police forces. We have recently begun a process to determine what information exists on enforcement costs and where the gaps lie. Last month, at the most recent meeting of the National Coordinating Committee on Organized Crime, which I chair, our department distributed a questionnaire to collect existing information on the cost of enforcement in the provinces and territories. The questionnaire has since been distributed to police forces across the country through the Canadian Association of Police Boards. We are very interested in analyzing the results once we have received them. [9]

 

This Committee is obviously also very interested in these results, since they would provide the most accurate information available to date. As previously explained, we found it extremely difficult, if not impossible, to obtain any specific details on cost breakdowns for drug-related activities for provincial and municipal police forces. While Chief Fantino of the Toronto Police Service indicated that “probably one-third of our resources are sucked right up in some form or another relating to drug work,”[10] this type of statement is insufficient to permit concrete conclusions with respect to policing costs. What we did hear was that drug investigations–in particular those targeting trafficking networks–can be very resource-intensive for police forces.

 

It is a large pull on resources, due to the nature of the work. The work is complex and, as you point out, it involves surveillance. It will sometimes involve wiretap surveillance as well. It requires a network of people who work in a clandestine fashion. It takes the police a long time to assemble credible evidence to reveal the network, make the connections, and then to correlate all of that for the court. It is a very resource-intensive aspect of policing, therefore, it is very expensive to the police department. [11]

 

It is not clear, however, whether the same rationale with respect to costs applies in the case of cannabis possession.

 

Cannabis use is, except as it is incidental to an encounter with a police officer, not a target of police investigation at this time, at least not in this community. We do not go out and seek people who are simply using cannabis. We do encounter them, however, as we go about our business in many other circumstances. We encounter them as one part of the drug investigation into trafficking, so we see the users there and some charges arise. We see them in domestic disputes. We see users in drinking establishment investigations and sometimes in traffic-infraction situations. Their presence is incidental to the investigation.

 

As far as targeting cannabis trafficking and cannabis cultivation, that is a mainstream of the drug investigations. The money from cannabis cultivation and cannabis trafficking does flow into other aspects of crime. In some communities it is most definitely formal, organized crime; in other communities it is groups of affiliated criminals who are involved for profit only. We direct our activity to those areas. [12]

 

With respect to customs-related costs, the CCRA indicated that of its $410 million budget for 2001-2002, it can be estimated that $75 million is dedicated to the interdiction of illegal drugs, in areas such as: Flexible Response Teams; district-targeting units; the container examination program; the marine centre of expertise; regional intelligence analysts; and regional intelligence officers. In addition, costs were associated with contraband detection technology that includes: X-rays; ion-mobility spectrometers; and the Detector Dog service. The CCRA did indicate that the officers involved in contraband detection are not dedicated solely to drug enforcement but to contraband enforcement in general–although illicit drug interdiction was their first priority. The Auditor General’s 2001 report had estimated the CCRA’s enforcement expenditures at between $14 and $36 million for illicit drug interdiction.[13] 

The numbers indicated below have been selected from the following sources:

 

v     RCMP (federal policing services) – Auditor General’s 2001 report and testimony before the Committee;

v     Provincial and municipal forces and RCMP (under contract) – by multiplying the estimated total policing expenditures for municipal and provincial policing of $5.0 billion (in 1997-1998, expenditures totalled $4.8 billion – excluding RCMP federal policing services expenditures)[14] by 3.5% (the percentage that illicit drug offences represented of all CDSA and Criminal Code offences in 2001: 91,920 CDSA offences and 2,534,319 Criminal Code offences = 2,626,239 total CDSA and Criminal Code offences)[15]; and

v     CCRA – based on an estimate between figures provided in the Auditor General’s 2001 report ($14 to $36 million) and the CCRA’s testimony before the committee ($75 million). 

 

While this is a crude and unscientific method of calculation and does not take into account a series of factors that would certainly lead to adjustments, it does provide some basis for comparison.   

 

RCMP (Federal Services)                                                                              $164 million

Provincial and municipal policing                                                                 $175 million

CCRA                                                                                                             $50 million

 

Total   $389 million

 

As indicated above, given the fact that drug investigations are extremely resource-intensive, drug enforcement may be assumed to represent much more than 3.5% of policing budgets. Chief Fantino of the Toronto Police Service indicated that it was probably closer to 33% of his budget. Even if a conservative number such as 15% were used, the figure for provincial and municipal policing costs would increase to $750 million. This would mean that almost $1 billion is being spent on drug enforcement in Canada every year. Clearly, not all costs would be recoverable, even under a legalized system. For example, already overburdened police forces would surely redirect resources to other priorities. However, significant savings could reasonably be expected, if the cannabis laws were relaxed.

 

…the actual savings in law enforcement costs attributable to changing prohibition of possession are hard to estimate. The difficulty occurs in part because cannabis arrests have decreased in recent years in Vancouver reflecting the overall tendency to relax enforcement for simple possession. Nevertheless, reduced law enforcement activities would have substantial savings if the law was repealed or changed.[16](emphasis added)

 

 

Police powers [17]

 

There are those who argue that police have been granted powers that are far too extensive in relation to drug enforcement and that in this fight against drugs, society has come to tolerate a battery of investigative techniques–wiretapping, strip-searches, the use of paid informants, entrapment, etc–which are offensive to our basic notions of civil liberty. As will be discussed in more detail, the nature of drug offences renders them difficult to enforce. This results in police agencies requesting and using a variety of unusual methods of enforcement. While there is a long history of special police powers in relation to drug enforcement, this chapter will focus primarily on modern police powers.   

No one questions the fact that police require powers for the maintenance of law and order in our society. In investigating criminal offences, the police may use less intrusive investigative techniques such as observation and interrogation.  In other cases, they may be required to use more intrusive methods such as electronic surveillance and reverse sting operations. While such methods are not limited to drug enforcement and may be used in other criminal matters, they are certainly used much more extensively in drug investigations.

These powers must be constrained, however, so as to protect individuals from excessive police activity. As stated by La Forest J.: “The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.”[18]  In determining whether police conduct is acceptable, conflicting interests generally have to be weighed. First, there are the individual’s interests, including the interest of being free from state intrusion. Second, there are the state’s interests, including that of protecting society from crime. Because these interests generally conflict, it can sometimes be difficult to agree on where the line should be drawn in relation to police conduct.

The courts have recognized that, as crimes become more sophisticated, police must be able to use more sophisticated investigative techniques to detect their commission. In addition, with respect to drug-related offences and other consensual types of offences,[19] it is acknowledged that routine investigative techniques are often insufficient because of the difficulty in detecting these activities. Generally, because there is no “victim,” no one is there to complain or report the offence to police. Both Parliament and the courts appear to agree that additional police powers may be warranted in these circumstances. It is believed that police need to be proactive, rather than reactive, as is generally the case for other non-consensual offences. An example of this viewpoint is expressed in the following statement by former Chief Justice Laskin of the Supreme Court of Canada:

 

Methods of detection of offences and of suspected offences and offenders necessarily differ according to the class of crime. Where, for example, violence or breaking, entering and theft are concerned, there will generally be external evidence of an offence upon which the police can act in tracking down the offenders; the victim or his family or the property owner, as the case may be, may be expected to call in the police and provide some clues for the police to pursue. When “consensual” crimes are committed, involving willing persons, as is the case in prostitution, illegal gambling and drug offences, ordinary methods of detection will not generally do. The participants, be they deemed victims or not, do not usually complain or seek police aid; this is what they wish to avoid. The police, if they are to respond to the public disapprobation of such offences as reflected in existing law, must take some initiatives. [20]

 

The Le Dain Commission had also recognized the special nature of drug offences.

 

The peculiar nature of drug crimes–the fact that the people involved in them are consenting and co-operative parties, and there is rarely, if ever, a victim who has reason to complain, as in crimes against persons and property – makes enforcement of the drug laws very difficult. The police are rarely assisted by complainants. For the most part they have to make their own cases. Moreover, the activity involved in non-medical drug use is relatively easy to conceal. It can be carried on, by agreement of the parties involved, in places which are not easily observed by the police. Further, the substances and equipment involved are relatively easy to conceal or dispose of.

 

All of these difficulties have given rise to the development of unusual methods of enforcement. [21]

 

Searches and seizures

Special powers of search and seizure have long been part of drug law enforcement practices. For example, before they were eliminated in 1985, writs of assistance generally gave peace officers the power to search without first having to obtain a warrant. Such powers were found in previous versions of the Customs Act, the Excise Act, the Food and Drugs Act and the Narcotic Control Act.  Before its repeal in 1985, section 10(1) of the Narcotic Control Act allowed peace officers acting under “the authority of a writ of assistance or a warrant” to enter and search a dwelling-house “at any time,” so long as the peace officer had a reasonable belief that there was a narcotic in the house “by means of or in respect of which” an offence under the Act had been committed. Section 8 of the Charter eventually put an end to writs of assistance.

Today, the CDSA establishes a comprehensive search and seizure scheme for drug-related offences. Although these provisions are similar to the search and seizure provisions of the Criminal Code, police have some additional powers under the illicit drug legislation. Section 11(1) allows a justice to issue a search warrant if he or she is satisfied by information on oath that there are reasonable grounds to believe that specific items are in a place. These items are:

 

v     A controlled substance or precursor in respect of which the CDSA has been contravened;

v     Anything in which a controlled substance or precursor referred to in the previous paragraph is contained or concealed;

v     Offence-related property; or

v     Anything that will afford evidence in respect of an offence under the CDSA.

 

A warrant may be obtained even though there is no reason to believe that there are illicit drugs in the place being searched, so long as there are grounds respecting the presence of one of the other three types of items. 

The CDSA authorizes a search “at any time.” Thus, there is no requirement to obtain authorization to search at night, as in the case of a search under the Criminal Code.

Another special power is found in subsection 11(5), which allows the police to conduct searches of the person in certain circumstances. This power is not found in the Criminal Code, although the police do have power of search incidental to arrest under common law. The CDSA gives the police, in the process of executing a search warrant, the power to search a person for a controlled substance or other specified items. This can be done only if the officer has reasonable grounds to believe that the person found in the place set out in the warrant has in his or her possession a controlled substance or other specified items set out in the warrant. Thus, this provision authorizes the police to conduct a search of the person even if no arrest is made, but only for specified items and only if the police have reasonable belief of certain facts.

Subsection (7) allows the police to conduct a search described in subsections (1), (5) or (6) without a warrant “if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impractical to obtain a warrant.” As will be discussed later, warrantless searches are presumed to be unreasonable, but the courts have allowed for exceptions. The rules have been summarized as follows:

 

A warrantless search has been justified where, based on the circumstances of the search, it was not feasible to obtain the warrant; for example, where a vehicle, airplane or other conveyance having the ability to change location is the subject of the search. The onus in such cases is on the Crown to establish that the obtaining of a warrant in the circumstances of the specific case would impede the effectiveness of the enforcement of the law.

 

Where there is no common law search power regarding searches in “exigent circumstances”, the courts have held that it is necessary for the enabling legislation to specifically refer to a warrantless search power in certain circumstances, for example, exigent circumstances. Such legislative provisions should narrowly define the type of investigation which would permit the use of a warrantless search. [22]

 

Although exigent circumstances may be created by the presence of drugs in a vehicle, whether a warrantless search of a person’s home in exigent circumstances will be found to be constitutional is still in doubt.[23] The courts will require some public interest sufficiently compelling to override the privacy interests attaching to the home. One example of such a compelling interest is the preservation of human life or safety.[24] 

The legislation also allows: a police officer to seize things not specified in the warrant if the officer believes on reasonable grounds that they are items mentioned in subsection (1);[25] and the power to seize anything that the officer believes on reasonable grounds has been obtained by or used in the commission of an offence (not limited to drug offences) or will afford evidence in respect of an offence.[26]

The CDSA also deals with the use of force. Section 12 allows a police officer who is executing a warrant to “enlist such assistance as the officer deems necessary” and “use as much force as is necessary in the circumstances.” It should be noted that the search provisions in the Criminal Code do not specify that force may be used, although this is set out in other sections of the Criminal Code.

Things seized under the CDSA can be classified as either offence-related property (for example, money and automobiles) or controlled substances (“drugs”), with specific rules regarding detention and forfeiture for each category. The legislation also provides for the search, seizure, detention and forfeiture of proceeds of crime in relation to drug-related offences by incorporating the proceeds of crime provisions of the Criminal Code.

 

Section 8 of the Charter–warrantless searches

Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search and seizure. Court decisions have dealt with the question of whether searches are reasonable in various situations and with the ancillary question of whether evidence obtained during the searches can be adduced at trial. A search will generally be reasonable if it is authorized by law, the law itself is reasonable, and the search is carried out in a reasonable manner. 

Section 8 protects the public’s reasonable expectation of privacy from state intrusions. Thus, where there is no reasonable expectation of privacy, section 8 does not apply. In addition, a diminished expectation of privacy (for example, in prisons or at border crossings) will lower the standard of reasonableness (for example, excusing the absence of a warrant or reducing the standard required for justifying the search). A person’s home is where there would be the greatest expectation of privacy and thus a greater degree of constitutional protection.

Although the Charter does not specifically require that police obtain a search warrant to conduct a search, the Supreme Court of Canada in Hunter v. Southam Inc. has established a presumption that a warrantless search is unreasonable.[27] The general rule for a valid search is that the police will require prior authorization to conduct the search (for example, by obtaining a search warrant) and reasonable and probable grounds to justify it. This is to provide a safeguard against unjustified state intrusion. 

This is the general rule; however, there are exceptions. It is recognized that a prior authorization is not always feasible. With respect to these exceptions, the courts require some authority, in statute or at common law, to conduct warrantless searches. The existence of such authority is not enough, however, because the courts will also review this authority to ensure that it is reasonable. In defining what is reasonable, the courts have established that warrantless searches should generally be limited “to situations in which exigent circumstances render obtaining a warrant impracticable.”[28] In R. v. Grant, the Court stated:

 

To sum up on this point, s. 10 may validly authorize a search or seizure without warrant in exigent circumstances which render it impracticable to obtain a warrant. Exigent circumstances will generally be held to exist if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed. While the fact that the evidence sought is believed to be present on a motor vehicle, water vessel, aircraft or other fast moving vehicle will often create exigent circumstances, no blanket exception exists for such conveyances. [29]

 

While every case will be reviewed on its merits, the greater the degree of urgency the police can demonstrate in the circumstances, the more inclined a court will be to find the warrantless search reasonable.

 

Searches of the person

Apart from a few specific provisions, such as the one found in the CDSA, federal criminal law does not provide authorization for a search of the person. The common law does, however, allow a search of the person incidental to a lawful arrest. This common law power is an exception to the general rule that a search requires prior authorization to be reasonable. This is a very important exception, because most searches of the person are done pursuant to this power. As explained earlier, the CDSA does allow a police officer who is executing a search warrant under that Act to search people who are present, under certain conditions. 

A person may be searched under the common law power only for the purpose of locating further evidence relating to the charge upon which he or she has been arrested or to locate a weapon or some article that may assist him or her to escape or commit violence. Although the power to search incidental to an arrest is fairly broad, there is no automatic unrestricted right to search incidental to an arrest.

 

Manner in which search conducted

Courts have shown a willingness to scrutinize the manner in which a search of the person is conducted. For example, in Collins, a British Columbia case, the accused was sitting in a bar that was said to be frequented by heroin users and traffickers. The accused was seized by two police officers; while one of them used a choke-hold that rendered her semi-conscious, the other forced open her mouth. While this was happening, three caps of heroin dropped out of the accused’s right hand. The Court held that the officers in this case had not had reasonable and probable grounds to believe that narcotics were in the accused’s mouth and that therefore the search was unlawful. The Court went further and determined that to admit the evidence would bring the administration of justice into disrepute, for it would condone and allow the continuation of unacceptable conduct by the police. This decision was affirmed on appeal by the Supreme Court of Canada. This does not mean that a choke-hold will always be considered unreasonable. The following was stated in R. v. Garcia-Guiterrez.[30]  “a choke-hold was used to prevent the evidence from being swallowed and a punch to the solar plexus to force the suspect to cough it up. Subject to a strongly worded dissenting opinion, the majority of the B.C. Court of Appeal held that the choke-hold to preserve evidence was acceptable in the circumstances.”[31] 

Searches of the person authorized by statute and the common law generally provide no indication as to the scope of the search that can be carried out. As discussed above, one of the requirements of a reasonable search is that it be executed in a reasonable manner. With respect to searches of the person, the level of intrusion may render the search unreasonable.

When discussing body searches in border areas, the Supreme Court of Canada distinguished between three categories of searches:

 

It is, I think, of importance that the cases and the literature seem to recognize three distinct types of border search. First is the routine of questioning which every traveller undergoes at a port of entry, accompanied in some cases by a search of baggage and perhaps a pat or frisk of outer clothing. No stigma is attached to being one of the thousands of travellers who are daily routinely checked in that manner upon entry to Canada and no constitutional issues are raised. It would be absurd to suggest that a person in such circumstances is detained in a constitutional sense and therefore entitled to be advised of his or her right to counsel. The second type of border search is the strip or skin search of the nature of that to which the present appellant was subjected, conducted in a private room, after a secondary examination and with the permission of a customs officer in authority. The third and most highly intrusive type of search is that sometimes referred to as the body cavity search, in which customs officers have recourse to medical doctors, to X-rays, to emetics, and to other highly invasive means. [32]

 

In the Simmons case, Dickson C.J.C. went on to add that the different types of searches raise different issues and entirely different constitutional issues “for it is obvious that the greater the intrusion, the greater must be the justification and the greater the degree of constitutional protection.”[33] This approach was confirmed in the 1999 Supreme Court of Canada decision in Monney (discussed below). In both cases, the constitutionality of the third category of searches was left open, while the first two categories were held to be reasonable under section 8 even if based only on suspicion. It should be noted that these cases were decided in the context of border searches.

The Supreme Court of Canada indicated the following with respect to frisk searches in the context of a search incidental to arrest:

 

A “frisk” search incidental to a lawful arrest reconciles the public’s interest in the effective and safe enforcement of the law on the one hand, and on the other its interest in ensuring the freedom and dignity of individuals. The minimal intrusion involved in the search is necessary to ensure that criminal justice is properly administered. [34]

 

Thus, when a search of the person is justified, a frisk search will generally be held to be reasonable because it is the least intrusive means available to conduct one.

Strip searches were considered in R. v. Flintoff.[35] A police officer arrested the accused at the scene of an accident for impaired driving. The accused was strip-searched before the breath tests, pursuant to a general police policy requiring all police officers to strip-search every person brought into the station in custody, regardless of the circumstances of the case or the individual. The Court held that the search was unreasonable and in violation of section 8 of the Charter. The Court stated that the strip search was not justified in law and was not incidental to an arrest. It found the breach was “outrageous” and “flagrant” and that it would shock the public. According to the Court, strip-searching “is one of the most intrusive manners of searching” and “one of the most extreme exercises of police power.” Although the police can search incidental to an arrest, “the degree of intrusion must be reasonable and in pursuit of a valid objective such as safety.” 

The recent Supreme Court of Canada decision in R. v. Golden[36] reviews issues surrounding searches incidental to arrest and the manner in which such a search may be conducted. Mr. Golden was arrested following what police believed were drug transactions in a restaurant. He was taken to a stairwell where the police pulled down his pants and underwear and noticed a clear plastic wrap containing a white substance in the anal area. The police tried to retrieve it but the accused resisted. He was escorted back into the restaurant and patrons were told to leave. The accused was forced to lean over a table and his pants and underwear were lowered. He continued to resist police attempts to retrieve the plastic wrap and accidentally defecated–which did not dislodge the plastic wrap. The police retrieved a pair of rubber dishwashing gloves and removed the package while the accused was face-down on the floor. The accused was strip-searched again at the police station. The Supreme Court made the following statement regarding strip searches:

 

While the respondent and the interveners for the Crown sought to downplay the intrusiveness of strip searches, in our view it is unquestionable that they represent a significant invasion of privacy and are often a humiliating, degrading and traumatic experience for individuals subject to them. Clearly, the negative effects of a strip search can be minimized by the way in which they are carried out, but even the most sensitively conducted strip search is highly intrusive. Furthermore, we believe it is important to note the submissions of the ACLC and the ALST that African Canadians and Aboriginal people are overrepresented in the criminal justice system and are therefore likely to represent a disproportionate number of those who are arrested by police and subjected to personal searches, including strip searches... As a result, it is necessary to develop an appropriate framework governing strip searches in order to prevent unnecessary and unjustified strip searches before they occur. [37]

 

In Golden, the Supreme Court of Canada found that the Crown had failed to prove that the strip search of the appellant was carried out in a reasonable manner. It was of the view that the evidence fell far short of establishing that a situation of exigency existed so as to warrant a strip search outside of the police station, particularly with the station two minutes away. Thus, the Court concluded that this was not a case involving an urgent and necessary need to conduct a strip search “in the field” for the purpose of preserving evidence. 

The Supreme Court also cautioned against the use of force in conducting a search:

 

We particularly disagree with the suggestion that an arrested person's non-cooperation and resistance necessarily entitles police to engage in behaviour that disregards or compromises his or her physical and psychological integrity and safety. If the general approach articulated in this case is not followed, such that the search is unreasonable, there is no requirement that anyone cooperate with the violation of his or her Charter rights. Any application of force or violence must be both necessary and proportional in the specific circumstances. In this case, the appellant’s refusal to relinquish the evidence does not justify or mitigate the fact that he was strip searched in a public place, and in a manner that showed considerable disregard for his dignity and his physical integrity, despite the absence of reasonable and probable grounds or exigent circumstances. [38]

 

The importance of Golden is that the Supreme Court adopted a “framework for the police in deciding how best to conduct a strip search incident to arrest in compliance with the Charter:” It set out the following questions:

 

1.    Can the strip search be conducted at the police station and, if not, why not?

2.    Will the strip search be conducted in a manner that ensures the health and safety of all involved?

3.    Will the strip search be authorized by a police officer acting in a supervisory capacity?

4.    Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched?

5.    Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances?

6.    What is the minimum of force necessary to conduct the strip search?

7.    Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search can observe the search?

8.    Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time?

9.    Will the strip search involve only a visual inspection of the arrestee's genital and anal areas without any physical contact?

10. If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the option of removing the object himself or of having the object removed by a trained medical professional?

11. Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?

 

Because of the nature of drug-related offences and the fact that the substance is more easily concealed, it would appear that more intrusive searches may be allowed. The courts are certainly aware of the tactics used by offenders to conceal drugs and may be more willing to allow police conduct that would otherwise be unreasonable. It is clear from the decisions, however, that the more intrusive the search, the greater must be the justification and greater the constitutional protection.

 

Schools

In R. v. M. (M.R.),[39] in a majority decision, the Supreme Court of Canada has held that a student’s reasonable expectation of privacy in the school environment is “significantly diminished” because school authorities are responsible for “providing a safe environment and maintaining order and discipline in the school.” In the case of searches by school authorities (not the police), there is no requirement for a warrant, and the standard is reasonable belief. The school authority must not, however, be an agent of the police. The Court added that students must know “that this may sometimes require searches of students and their personal effects and the seizure of prohibited items.” In the result, the Court held that the seizure of marijuana from a student searched during a school dance did not infringe his rights under section 8 of the Charter. While setting out the parameters for a reasonable warrantless search in such circumstances, it must be noted that the majority decision expressly limited its findings to the elementary or secondary school milieu, with “no consideration” having been given to a college or university setting.  

 

Borders

Searches conducted by customs officers at the border are an example of reduced constitutional protections where the courts find that there is a lower expectation of privacy based on the context. In such cases, the standards established in Hunter may not apply. 

Section 98 of the Customs Act[40] allows an officer to search a person who has just arrived in Canada within a reasonable time of the person's arrival, or a person who is about to leave, if the officer suspects on reasonable grounds that the person has hidden illegal items on his or her person. The Supreme Court of Canada has interpreted this standard as one of reasonable suspicion and not the higher standard of reasonable grounds.[41] A person about to be searched can request to be taken before a senior officer who will make a determination as to whether the search shall proceed.[42]

In R. v. Simmons,[43] the accused was required to submit to a strip search as the result of a customs officer’s belief that she was carrying contraband. The Supreme Court’s decision acknowledged Canada’s right as a sovereign state to control both who and what crosses its boundaries. Even though the search power did not meet the standards that it had set out in Hunter (for example, prior authorization and reasonable grounds), the Court stated:

 

I accept the proposition advanced by the Crown that the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. For the general welfare of the nation the state is expected to perform this role. Without the ability to establish that all persons who seek to cross its borders and their goods are legally entitled to enter the country, the state would be precluded from performing this crucially important function. Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process. This process will typically require the production of proper identification and travel documentation and involve a search process beginning with completion of a declaration of all goods being brought into the country. Physical searches of luggage and of the person are accepted aspects of the search process where there are grounds for suspecting that a person has made a false declaration and is transporting prohibited goods.

 

In my view, routine questioning by customs officers, searches of luggage, frisk or pat searches, and the requirement to remove in private such articles of clothing as will permit investigation of suspicious bodily bulges permitted by the framers of ss. 143 and 144 of the Customs Act, are not unreasonable within the meaning of s. 8. Under the Customs Act searches of the person are not routine but are performed only after customs officers have formed reasonable grounds for supposing that a person has contraband secreted about his or her body. The decision to search is subject to review at the request of the person to be searched. Though in some senses personal searches may be embarrassing, they are conducted in private search rooms by officers of the same sex. In these conditions, requiring a person to remove pieces of clothing until such time as the presence or absence of concealed goods can be ascertained is not so highly invasive of an individual’s bodily integrity to be considered unreasonable under s. 8 of the Charter.

 

I also emphasize that, according to the sections in question: (i) before any person can be searched the officer or person so searching must have reasonable cause to suppose that the person searched has goods subject to entry at the customs, or prohibited goods, secreted about his or her person, and (ii) before any person can be searched, the person may require the officer to take him or her before a police magistrate or justice of the peace or before the collector or chief officer at the port or place who shall, if he or she sees no reasonable cause for search, discharge the person.

 

In light of the existing problems in controlling illicit narcotics trafficking and the important government interest in enforcing our customs laws, and in light of the lower expectation of privacy one has at any border crossing, I am of the opinion that ss. 143 and 144 of the Customs Act are not inconsistent with s. 8 of the Charter. [44]

It is noteworthy for our purposes that the Court mentioned the problems of controlling illicit narcotics trafficking as a factor in determining that the search was reasonable under section 8 of the Charter.

The fact that those travelling through customs have a lower reasonable expectation of privacy does not, however, diminish the obligation on state authorities to adhere to the Charter, even if the grounds prompting the search are reasonable and drugs are found as a result. Before any search, the inspectors must clearly explain to the subject his/her rights under the Charter – especially the prior right to consult a lawyer – and the right to have the search request reviewed before complying with it, as provided in the Customs Act.  In Simmons, the subject remained ignorant of her legal position because she had not properly been informed of her rights. As a result, the Supreme Court of Canada found that the search was unreasonable; even so, the evidence was not excluded because the customs officers had acted in good faith.

The Supreme Court of Canada has determined that section 98 of the Customs Act, authorizing searches for contraband “secreted on or about” the person, applies to contraband that a traveller has ingested. In R. v. Monney,[45] the Court concluded that a customs officer who has reasonable grounds to suspect that contraband has been ingested is authorized by the Act to detain the traveller in a “drug loo facility” until that suspicion can be confirmed or dispelled. Although such action amounts to a search for the purposes of section 8 of the Charter, the Court confirmed that “the degree of personal privacy reasonably expected at customs is lower than in most other situations” and that the search in question was “reasonable for the purposes.” 

The Court did indicate that the different levels of intrusion raise different constitutional issues (for example, by potentially requiring a higher standard than reasonable suspicion). The Court stated: “the potential degree of state interference with an individual’s bodily integrity for searches in the third category requires a high threshold of constitutional justification.”[46] 

It is clear that the courts apply a lower standard of constitutional protection for searches at the border than elsewhere. As stated in Monney, “decisions of this Court relating to the reasonableness of a search for the purposes of s. 8 in general are not necessarily relevant in assessing the constitutionality of a search conducted by customs officers at Canada’s border.”[47]

 

Electronic surveillance

Because of the consensual nature of drug offences, police often resort to special investigative techniques to detect these crimes, including the use of electronic surveillance. The Supreme Court of Canada has stated that electronic surveillance constitutes a search for the purposes of section 8 of the Charter, and its decisions in this area have had a significant impact on the Criminal Code provisions dealing with such techniques. Because electronic surveillance is more invasive of privacy than actions under regular search warrants, more procedural safeguards are provided in the legislation. Although surreptitious interception is often used for drug offences, it can also be used for many other serious offences under the Code and other federal legislation.[48] The Solicitor General’s 1998 report entitled Annual Report on the Use of Electronic Surveillance states the following with respect to the importance of electronic surveillance as an investigative tool:

 

Electronic surveillance plays a crucial role in the battle against organized crime, especially with respect to the offence of drug trafficking. In curtailing the importation and distribution of illicit drugs in Canada, law enforcement agencies rely heavily upon the interception of private communications. Section III of this report demonstrates that the majority of authorizations granted by the courts allow for the use of electronic surveillance in relation to trafficking in a controlled substance. As in previous years, many of these authorizations were related to criminal conspiracies, crimes which are difficult for the police to detect, investigate and solve.

 

…The use of electronic surveillance has led to a number of seizures of large quantities of drugs in Canada. These seizures reduce the amount of drugs available in streets and neighbourhoods, and assist in the prevention of crimes associated with drug abuse. Without this crucial tool, the ability of the law enforcement community to prevent crimes and ensuing social harm would be seriously hindered.

 

Although it is clear that electronic surveillance is an effective investigative tool, it is also clear that it constitutes a dramatic infringement of the right to privacy. The Supreme Court of Canada stated the following:

 

The very efficacy of electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that our communications will remain private. A society which exposes us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we opened our mouths might be superbly equipped to fight crime, but would be one in which privacy no longer had any meaning. As Douglas J., dissenting in United States v. White, supra, put it, at p. 756: “Electronic surveillance is the greatest leveller of human privacy ever known.” If the state may arbitrarily record and transmit our private communications, it is no longer possible to strike an appropriate balance between the right of the individual to be left alone and the right of the state to intrude on privacy in the furtherance of its goals, notably the need to investigate and combat crime.

 

This is not to deny that it is of vital importance that law enforcement agencies be able to employ electronic surveillance in their investigation of crime. Electronic surveillance plays an indispensable role in the detection of sophisticated criminal enterprises. Its utility in the investigation of drug related crimes, for example, has been proven time and again. But, for the reasons I have touched on, it is unacceptable in a free society that the agencies of the state be free to use this technology at their sole discretion. The threat this would pose to privacy is wholly unacceptable. [49]

Because electronic surveillance is more invasive of privacy than are actions permitted under regular search warrants, more procedural safeguards are provided in the legislation. Similar rules apply to video surveillance. 

The Supreme Court of Canada decisions rendered on 25 January 1990 in the Duarte and Wiggins cases had a significant impact on policing methods, particularly undercover investigations involving drug and morality offences. In Duarte,[50] the Court affirmed that electronic surveillance constitutes a search and seizure within the meaning of section 8. This only occurs, however, where a reasonable expectation of privacy exists. The Court said that unauthorized electronic surveillance and interception “of private communications by an instrumentality of the state with the consent of the originator or intended recipient thereof, without prior judicial authorization, does infringe the rights and freedoms guaranteed by section 8.” Until then, it had been legal for the police to intercept such communications, as long as one of the parties to the conversation consented. It is now necessary for a judge to authorize such interception in the same way as interception of an entirely private conversation (“wiretapping”) where neither party has given prior consent. The Court also required that there be reasonable and probable grounds, established on oath, to believe that there is evidence of an offence in the place to be searched.  Suspicion would not satisfy this requirement.

In Duarte, the Supreme Court of Canada said that “the primary value served by section 8 is privacy,” which it defined as “the right of the individual to determine when, how, and to what extent he or she will release personal information.” Accordingly, “one can scarcely imagine a state activity more dangerous to individual privacy than electronic surveillance and to which, in consequence, the protection accorded by s. 8 should be more directly aimed.” The Court took the position that it could no longer allow the police an “unfettered discretion ... to record and transmit our words” without prior judicial authorization because this widespread police practice represented an “insidious danger” to the “very hallmark of a free society,” namely, the “freedom not to be compelled to share our confidences with others.” In Wiggins,[51] the use of “body pack” microphones by police was also found to be unconstitutional, for the reasons expressed in Duarte. The Duarte decision demonstrates that even if conduct is authorized by legislation, this does not mean that it is reasonable under section 8. The Code has since been amended to provide for prior authorization of consent interceptions.

With respect to surreptitious interceptions, a judge must ensure that: (1) the best interests of the administration of justice would be served; and (2) other investigative procedures (a) have been tried and have failed; or (b) are unlikely to succeed; or (c) the situation is urgent. In 2000, the Supreme Court of Canada in R. v. Araujo[52] interpreted the second requirement set out in the legislation. The Court indicated that the standard for branch (b) was not one of “efficiency” but rather “necessity.” The test is: There must be, practically speaking, no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry.

 

Section 24

Section 24(1) of the Charter provides a course of action for accused persons whose Charter rights have been infringed or denied. Under it, they can apply to a “court of competent jurisdiction” for the “appropriate and just” remedy. Section 24(2) allows a court to exclude evidence obtained in a manner that infringed or denied Charter rights, if admitting it into evidence “would bring the administration of justice into disrepute.” The three primary factors to be considered are:  (a) does the admission of the evidence affect the fairness of the trial; (b) how serious was the Charter breach; and (c) what would be the effect on the system’s repute of excluding the evidence.

Some have criticized the way these factors are applied to drug-related offences.  For example, Don Stuart stated the following:

 

The impression left by these recent Supreme Court and Ontario Court of Appeal rulings, especially in drug cases, is that these Courts seem generally determined not to exclude real evidence found in violation of section 8. These Courts tend to ratchet up the rhetoric respecting the third Collins factor about the seriousness of the offence and the effect on the repute of the system if the exclusion of reliable evidence were to result in acquittals. If this is the major reason for admitting the evidence, it points to an irony and inconsistency with the Stillman approach, in that the seriousness of the offence and reliability are not relevant factors when evidence is characterized as going to trial fairness. Canadian criminal trials under the Charter are no longer exclusively concerned with determining guilt or innocence and it betrays respect for the Charter to argue a return to the pre-Charter days where police conduct was not a material consideration. Particular abhorrence of drug offences may well have coloured consideration of the second Collins factor so that seriousness of the violation is unduly de-emphasised. The Courts, as guardians of the Charter, should be above the war against drugs. This one category of offences does not require special and reduced Charter standards. [53]

 

The decision of whether the evidence should be excluded can be important; if courts are reluctant to exclude evidence, they may be sending conflicting messages to the police. Although their conduct will have been found to breach a person’s Charter rights, there may be little incentive for the police to adhere to the limits imposed by the courts if the evidence is not excluded.

 

Entrapment and illegal activity

Entrapment and illegal police activity are both based on the doctrine of abuse of process.

Entrapment

In some cases, police forces use informers (including paid informers) or undercover police agents to obtain information about criminal offences. With consensual offences such as those related to drugs, infiltrating a group and acting as a consensual participant is often the only way for the police to obtain evidence of an offence. They are generally there to observe the suspect and, in some instances, may afford the suspect an opportunity to commit an offence  The police must ensure that the actions of the informer or the undercover agent do not go too far. When police actions are excessive, the accused may attempt to rely on the doctrine of entrapment. Although police tactics intended to provide a person with the opportunity to commit an offence and illegal police activities are not limited to drug offences, it is fair to state that these tactics are probably much more prevalent in investigations of these types of offences. 

The leading case in Canada on entrapment is the Supreme Court of Canada’s decision in R. v. Mack.[54]  Lamer J., as he then was, delivered the unanimous judgement of the Supreme Court of Canada. He explained that entrapment is not a substantive defence (such as necessity or duress) and indicated that the rationale for this defence is not a lack of culpability in the accused (because the essential elements of the offence will generally be present). Rather, the rationale is based on the need for the Court “to preserve the purity of the administration of justice” and to prevent an abuse of the judicial process. Thus, entrapment is based on the common law doctrine of abuse of process. According to Lamer J., entrapment occurs when the conduct of the police exceeds acceptable limits. This is the case in the following circumstances:

 

v     The authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry; or

v     Having a reasonable suspicion or acting in the course of a bona fide inquiry, the police go beyond providing an opportunity and induce the commission of an offence.

 

To establish entrapment, the accused is required to demonstrate only that one of the two branches of the test has been met. If successful, the remedy is a stay of proceedings.

According to the guidelines set out by the Supreme Court of Canada, the police are required to have a reasonable suspicion that the accused is already engaged in criminal activity, or must be acting pursuant to a bona fide inquiry. The rationale for requiring reasonable suspicion is “because of the risk that the police will attract people who would not otherwise have any involvement in a crime and because it is not a proper use of the police power to simply go out and test the virtue of people on a random basis.”[55] 

In determining whether police conduct goes further than providing an opportunity, a court will assess the following non-exhaustive list of factors:

 

v     The type of crime being investigated and the availability of other techniques for the police detection of its commission;

v     Whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime;

v     The persistence and number of attempts made by the police before the accused agreed to commit the offence;

v     The type of inducement used by the police, including deceit, fraud, trickery or reward;

v     The timing of the police conduct, in particular whether the police instigated the offence or become involved in ongoing criminal activity;

v     Whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship;

v     Whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction;

v     The proportionality between the police involvement, as compared to that of the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves;

v     The existence of any threats, implied or express, made to the accused by the police or their agents; and

v     Whether the police conduct is directed at undermining other constitutional values.[56]

 

The Supreme Court of Canada stated that the claim of entrapment is a very serious allegation against the state, and that the state must be given substantial room to develop techniques which assist in its fight against crime in society. It is only when the police and their agents engage in conduct which offends basic values of the community that the doctrine of entrapment should apply. The Court indicated that a stay should be entered only in the “clearest of cases.”[57]  

In Mack, the Supreme Court of Canada stated that with respect to the crime of drug trafficking, the state must be given substantial leeway. This offence “is not one which lends itself to the traditional devices of police investigation.” The Court added that it is a “crime of enormous social consequence which causes a great deal of harm in society generally.” The Court concluded “this factor alone is very critical.”[58]  

Although the Supreme Court of Canada stated in Mack that random virtue-testing will not be permitted because there is a risk of attracting innocent individuals into the commission of an offence, it does make an exception to the requirement to have reasonable suspicion with respect to the individual in the case of a bona fide investigation related to an area where it is reasonably suspected that criminal activity is taking place.

It is clear that such an exception can apply to known locations of drug trafficking. An example of this can be seen in R. v. Barnes.[59]  The accused was charged with a number of offences, including trafficking in cannabis. An undercover police officer had approached the accused and his friend because they generally fitted the description of persons who may possess and sell drugs. After a short conversation, the accused agreed to sell hashish to the undercover agent. The place where the arrest took place (a six‑block pedestrian mall) was a well-known area where trafficking occurred, and the police were conducting what are known as “buy-and-bust” transactions. The accused relied on the defence of entrapment. 

The Supreme Court of Canada reiterated the circumstances when entrapment occurs. Because in this case the police did not have reasonable suspicion of the accused’s involvement in unlawful drug-related activity, its conduct would amount to entrapment unless it was part of a bona fide inquiry. Thus, although the basic rule is that the police may only present the opportunity to commit an offence to a person for whom they have a reasonable suspicion that they are already engaged in criminal activity, there is an exception where the police conduct is part of a bona fide investigation directed in an area where it is reasonably suspected that criminal activity is occurring. If the location is defined with “sufficient precision,” the police may present any person associated with the area with the opportunity to commit the particular offence. In these circumstances, the police conduct would not be considered to be random virtue-testing.

In summary, the key issue with respect to entrapment is whether the police had reasonable grounds or suspicions to target an individual or were acting pursuant to a bona fide inquiry. In addition, even if the first branch of the test is satisfied, one must consider whether the police conduct went beyond providing an opportunity by determining whether the tactics used by the police were designed to induce an average person into the commission of an offence. It is important to note, however, that with respect to entrapment the “fact situations can vary enormously, which is why, although the general principles are beginning to emerge, their application is not always easy and can lead to disagreement.”[60] The courts have indicated that each case must be determined on its own facts, making it difficult to provide more precise rules regarding police conduct.

 

Illegal activities

As has been discussed, as criminal offenders become more sophisticated, the police have adopted new investigative tools in an attempt to keep pace (including cases where police officers have breached the law while in the performance of their duties). This occurs in drug investigations, for example, when police conduct buy-and-bust operations and reverse sting operations. The use of illegal police activity to combat crime raises the issue of whether such conduct leads to an abuse of process such that a stay of proceedings will be granted. The Supreme Court of Canada has stated that illegal police activity does not automatically amount to an abuse of process. The legality of police actions is but a factor to be considered, “albeit an important one.” Although the issue of illegal police activity is important, it has less of an impact on the enforcement of drug legislation. The reason is that the drug legislation provides police immunity for activities such as buy-and-bust operations and reverse sting operations.[61]

The leading case with respect to illegal police activities is R. v. Campbell.[62] The police in this case had conducted a reverse sting operation in which undercover officers portrayed themselves as large-scale hashish vendors. The accused argued that the police conduct was illegal because they had committed the offence of trafficking themselves (the CDSA and the exemption it provides for such police conduct having not yet been passed). They added that this amounted to an abuse of process. 

According to the Supreme Court of Canada, the police are not immune from criminal liability for acts committed in the course of an investigation, unless this is authorized by legislation. The Court added that the issue should be left to Parliament: “If some form of public interest immunity is to be extended to the police to assist in the ‘war on drugs,’ it should be left to Parliament to delineate the nature and scope of the immunity and the circumstances in which it is available…”[63] Where alleged illegal police activity is authorized within the legislative scheme, there is no abuse of process issue. The Supreme Court of Canada added, however, that illegal police activity does not automatically amount to an abuse of process. The legality of police actions is but a factor to be considered, “albeit an important one.” 

Although this decision may have had a significant impact on general law enforcement in Canada, the impact was less severe in the case of drug enforcement. This is because drug legislation was amended to allow police officers to conduct the type of activities that were at issue in Campbell

The CDSA proscribes various activities such as possession, trafficking and manufacturing of drugs, while allowing various regulatory exceptions, for example the importation by licensed dealers and the sale by pharmacists. The Act also allows for the making of regulations dealing with enforcement matters such as exempting police officers from application of the Act on such terms and conditions as specified in the regulations. In addition, the Act allows for the making of regulations “that pertain to investigations and other law enforcement activities conducted under this Act by a member of a police force and other persons acting under the direction and control of a member.” Thus, the regulations provide a legal framework for specialized enforcement techniques (including buy-and-bust, and sting operations) and set out the parameters for such activities. The police rely on these regulations for protection against prosecution.

Section 3 of the Narcotic Control Regulations authorizes members of police forces to possess narcotics where such “possession is for the purposes of and in connection with such employment.” In addition, the CDSA (Police Enforcement) Regulations exempt police officers from the offences of trafficking, importation or exportation and production. The regulations set out the eligibility requirements for the exemption. Different rules apply depending on the source of the drugs. At all times, the individual must be an active member of a police force and must be acting in the course of his or her responsibilities for the purposes of the particular investigation. 

Thus, special immunity for police officers is set out in the CDSA. Canadian criminal legislation has recently been amended to provide a general exemption from criminal liability for police officers. The legislation provides police with protection from criminal liability for certain otherwise illegal acts committed during the course of a bona fide investigation or other law enforcement duties, as long as certain conditions are met.[64]

 

Conclusion

Clearly, Parliament and the courts have recognized that, as criminals become more sophisticated, the police must be given more sophisticated tools to fight them. In addition, they generally view the illegal drug trade as a serious challenge. Courts often mention the sinister nature of the drug trade and the impact it has on society in rendering their decisions. They may be influenced by these concerns in determining where to draw the line with respect to police conduct. They recognize the difficult job police have and are often willing to grant them “considerable latitude.” An example of this attitude is the following statement by the Supreme Court of Canada with respect to the selling of drugs: “It is a crime that has devastating individual and social consequences. It is, as well, often and tragically coupled with the use of firearms. This crime is a blight on society and every effort must be undertaken to eradicate it.”[65] In another case, the following was stated: “… this Court must also consider the societal interest in law enforcement, especially with regard to the illicit drug trade. This pernicious scourge in our society permits sophisticated criminals to profit by inflicting suffering on others.”[66] However, the police have not been given “carte blanche” to do what they want to solve a crime. Their activities are scrutinized so as to ensure that their conduct does not shock the community and in any way detract from the fairness of an accused’s trial. 

 

 

Statistics

 

The following sections will review key criminal statistics related to enforcement of illicit drug legislation. This information must be carefully interpreted. It is generally thought that police-reported crime statistics are much more a reflection of police activity than actual societal changes, particularly in the case of consensual type offences. As in many other drug related areas, Canadian statistics are fairly weak–for example, other than fairly basic information, it is very difficult if not impossible to identify some of the essential characteristics of individuals entering the criminal justice system. 

 

Reported incidents [67]

Reported incidents are incidents that come to the attention of the police and are captured and forwarded to the Canadian Centre for Justice Statistics according to a nationally approved set of common crime categories and definitions. Thus the actual number of drug offences would be much higher, since it can be assumed that most drug offences do not come to the attention of police. As with other consensual types of offence, it is impossible to determine accurately the amount of illegal activity. In addition, the survey counts only the most serious offence committed in each criminal incident, which consequently underestimates the total number of drug-related incidents, particularly offences with less severe penalties. The number of reported incidents should also not be confused with the number of charges that are laid by the police. Because police have wide discretion in whether to lay a charge, it is clear that the number of charges will be lower than the total reported incidents.

The figure below shows trends in the number of incidents reported by police according to the most serious crime. It reveals that, from 1983 to 1995, incidents related to drug offences were relatively stable, hovering around 60,000 per year. However, from 1995 to 2000, there was an increase of approximately 50%, with the number of reported incidents reaching nearly 88,000. In 2001, the number reached 91,920, an increase of 3.3% in relation to the previous year. 

 

 

Most of the increase in recent years can be attributed to cannabis-related offences. In 2001, these increased by 5.5% in relation to the previous year. These offences account for the majority of all drug-related offences in Canada. In 2001, cannabis-related offences accounted for 71,624 of reported incidents, almost 77% of all drug-related incidents. Of those 71,624 offences, 70% were for possession, 16% for trafficking, 13% for cultivation, and 1% for importation.[68] This means that approximately 54% of all reported drug-related offences are for the possession of cannabis. The following are reported incident rates per 100,000 people for offences related to cannabis, cocaine and all drugs.

 

Selected drug offences per 100,000, Canada 1994-2001

 

1994

1995

1996

1997

1998

1999

2000

2001

Cannabis

 

         -    possession

138

 

97

148

 

103

157

 

110

160

 

108

168

 

115

197

 

130

215

 

147

227.22

 

 

 

Cocaine

 

42

 

38

 

37

 

38

 

40

 

39

 

42

 

39.4

 

Total all drugs

 

207

 

208

 

217

 

222

 

235

 

263

 

286

 

295.7

 

From 1991 to 2001, the percentage change in rate per 100,000 people for cannabis-related offences is +91.5; for cocaine-related offences, –31.5; for heroin-related offences, –36.1; and for other drugs, +15.0.  This means that, based on the same population, reported cannabis-related offences have almost doubled in the last decade.

In recent years, the cultivation of cannabis, particularly in British Columbia, has raised concerns. This type of offence has also seen a significant increase over the past decade: from a rate of 7 incidents per 100,000 people in 1990 to 29 in 2001.[69] A recent report indicates that in British Columbia, the number of growing operations is increasing by an average of 36% per year and average size is increasing at a rate of 40% per year. The report adds that the vast majority of cases coming to the attention of the police in British Columbia do so as a result of public complaints, meaning that the increase in cases is not due to increased proactive police enforcement.[70]   

The two figures that follow provide information on the location of reported incidents from 1988 to 1997. Not surprisingly, the most populated provinces are at the top, with Ontario in the lead followed by British Columbia, Quebec and Alberta. 

 

 

 

 

A better indication of the level of crime in a province, however, is a calculation based on rates per 100,000 population. British Columbia has historically had the highest provincial rate of drug crime in the country. [71] For example, in 2001, the rate was 563.5 incidents per 100,000, almost double the national figure of 295.7. The rates for the other provinces and territories are as follows: Newfoundland and Labrador–173.1; Prince Edward Island–192.0; Nova Scotia–218.3; New Brunswick–346.9; Quebec–262.1; Ontario–256.1; Manitoba–215.9; Saskatchewan–278.4; Alberta–235.3; Yukon –478.5; Northwest Territories–597.2; and Nunavut–806.1. It is obvious that the level of drug-related crime varies considerably from one province and territory to another.

 

Charges

From the available data presented in the following figure, it would seem that trafficking and possession charges for drug-related offences have declined noticeably since 1997. It should be remembered that the number of reported incidents (discussed previously) is not equivalent to the number of charges that are laid by the police. In some cases, the police will report a drug incident to Statistics Canada but will decide not to charge the offender. The wide discretion given to police can lead to serious concerns regarding the enforcement of the legislation. These concerns are discussed later in this chapter. The reader should be aware that this figure does not include data from three provinces (New Brunswick, Manitoba and British Columbia) and from one territory (Nunavut). In addition, data from certain courts in Quebec are not included.[72] 

Because data from three provinces are not included–in particular, British Columbia–the actual number of drug charges in Canada was actually much higher than the figure suggests. As was previously explained, British Columbia has, in the past, consistently reported the highest rate of drug crime. 

 

 

Statistics from 1997 show, however, that with respect to charging drug offenders, British Columbia is more lenient than other provinces: 

 

Among provinces and territories, police departments in British Columbia reported the lowest charge rate (47%) for drug offences. Only 35% of cannabis incidents and 36% of “other drug” incidents resulted in charges, compared to 79% and 81% for all the other provinces combined. [73] 

 

For example, Superintendent Ward Clapham of the Richmond RCMP indicated that, for possession of marijuana under 30 grams, only 40 people were charged out of 700 reported cases in the year 2000; and in 2001, only 30 people were charged out of 605 reported cases. Once again, it is clear that the enforcement of the legislation varies considerably from one area of the country to another. 

With respect to cannabis offences in 2001, the male population was much more likely to be charged with an offence. For both youths (12 to 17) and adults, 88% of the people charged with cannabis offences are male.[74] In addition, while adults are much more likely to be charged than youths, 18% of cannabis-related charges relate to youths.[75]

While the previous figure seems to indicate that there were fewer than 20,000 drug-related charges in 1999, the Auditor General’s 2001 report indicates that during that year, just under 50,000 people were charged with drug offences under the CDSA (in cases where the most serious offence was drug-related). One of the drawbacks of recording offence statistics according to the most serious offence is that this leads to severe underreporting of offences, particularly offences with less severe penalties. In the hierarchy of criminal offences (of which there are 152), marijuana offences are ranked as follows: importation or exportation– 44; trafficking of more than 3,000 grams–46; production–52; trafficking of 3,000 grams or less–59; possession of more than 30 grams–120; and possession of 30 grams or less--121.     

Of the approximately 50,000 drug-related charges laid in 1999, cannabis was involved in 70% of the charges. In 43% of the drug-related cases (21,381), the charge was for possession of cannabis. Overall, 54% of the drug offences were for possession. Since the number of reported incidents has continued to climb, one can only assume that today even more people are being charged with drug offences, particularly cannabis offences.

With over 34,000 charges per year for cannabis-related offences and with over 21,000 charges per year for possession of cannabis, can one conclude that police are actively seeking out cannabis possession offences? After reviewing the evidence, we do not believe this to be the case. Nonetheless, over 21,000 people per year enter the criminal justice system in cases where their most serious offence was that of possession of cannabis. It bears repeating that these statistics are based on the most serious offence in a given incident.

Several reasons were advanced to explain the high number of possession offences. Those enforcing the CDSA stated that they do not actively seek out such offences, but rather they are discovered in the normal course of their duties. This was repeated time and time again. While we do not doubt the sincerity of these statements, in certain cases–as will be discussed below–police tactics can be questioned. In addition, we were told that while the offence of trafficking, if it occurs over a period of time, is recorded as one offence–the continuing offence rule–this rule does not apply to possession offences.

 

Concerns

While there may be valid reasons for the high incidence of possession charges, many have raised serious concerns with respect to the discretion used by the police in regard to drug-related possession charges – in particular, cannabis possession cases. As mentioned earlier, the number of reported incidents and the charge rate vary considerably from province to province. 

The uneven application of the drug legislation in the various provinces, even within the same province, raises serious concerns. Mr. Kash Heed from the Vancouver Police Department indicated that small-scale possession of any drug in Vancouver is virtually unenforced by the police department unless there are aggravating circumstances. Their focus is on those who profit–traffickers and producers. He added that the number of prosecutions in British Columbia for cannabis possession is quite small in comparison to other provinces. He concluded that total prohibition had “resulted in costly enforcement, alienation of groups of people, discriminatory enforcement, little deterrence in supply, and minimal deterrence of use.” Heed added that, even in British Columbia there are discrepancies–centres outside of Vancouver having higher rates of prosecution for possession of cannabis than does the City of Vancouver. 

We have estimated that approximately 2.5 million people in Canada used cannabis in the last year. In 1999, 21,381 people were charged with the possession of cannabis. This means that only 0.85% of cannabis users were actually charged with possession. It is also important to remember that of the number of people who used cannabis in the last year, many would have used it more than once. As a result, the actual chance of being charged for possession of cannabis in relation to the actual number of offences is in all likelihood much lower than 1%. This certainly raises concerns regarding fairness. In addition, both the effectiveness of the legislation and any deterrent effect it may have are seriously in doubt.

So what are the potential consequences of uneven enforcement of the legislation and unfettered discretion as to whether or not to proceed with laying a charge? Marie‑Andrée Bertrand, referring to a paper prepared by Nicolas Carrier[76] stated the following:

 

A recent qualitative study of members of the Montreal Urban Community Police Department underscores the ambivalence and confusions of frontline police officers and their varied reactions to the “drug problem.” The extent of the problem is perceived quite differently depending on the officers in question and the neighbourhoods they patrol.  In the minds of some, particularly in the case of young drug users and “exchangers”, although “the law is the law” and must undoubtedly be enforced, drug possession and use do not really concern the police. The prohibition is simply not enforceable. It is impossible to determine cases of possession in the absence of search and seizure powers, except “on a hunch” or in arresting suspects for other “crimes”. Once possession cases and drug deals in public places are discovered either by accident or in the course of investigating other offences, police officers react in various ways depending on their professional aspirations. Those seeking promotion and specialization (who want to join the drug or victimless crimes squads) pass the information along to the appropriate divisions. Patrolmen who intend to remain patrolmen close their eyes or question suspects to obtain trafficking information in exchange for promises of immunity, or else take substances abusers to treatment services, call the parents of a minor, etc.  [77]

 

The uneven application of the legislation is one of our greatest concerns, for a variety of reasons. First, there is the danger that this can lead to discriminatory enforcement, where certain people are more likely to be charged than others because of their personal characteristics. While current national statistics do not allow such an analysis, there is some evidence that the law is applied discriminatorily.

The Carrier paper discussed above was the result of interviews with 21 Montreal area patrol officers. It discusses the difficulties of detecting possession offences due to the lack of a “victim,” the discreetness of the offences and the constitutional limits on unwarranted searches. The paper explains that a police officer’s actions depend on several factors, such as how serious the officer perceives the drug problem to be and what are the officer’s career aspirations–those wanting promotions respond more proactively to drug offences than those wishing to remain as patrol officers, who tend to be more reactive. Police are generally frustrated by the limits imposed on searches. 

So how do they go about detecting possession offences? The officers indicated that most possession offences are detected when a person is stopped for another criminal matter–the arrest allowing an officer to conduct a search of the person. On rare occasions, officers detected the offence when a person openly flouted the law. 

Of note, officers also indicated that certain people attracted their attention and some indicated that there are “signs” which lead them to believe that people are in possession of illegal substances. With respect to people in cars, the following factors were mentioned: the appearance of passengers in a vehicle; the vehicle’s model and value; the person’s driving habits; and a computer check of the licence plate indicating that the owner had a criminal record. Officers are allowed to stop people to ensure they have the proper documentation, and this may lead to the discovery of an offence that would result in a search. With respect to pedestrians, the following factors were mentioned: the person is known as a drug user; physical appearance; the person’s activities; associating with other “suspects”; and association with dwellings suspected for trafficking. Certain officers indicated that questioning such suspects can lead to an arrest–for example, an outstanding warrant of arrest–and a search. Officers also indicated that on occasion they selectively applied municipal by-laws and other provincial legislation in order to obtain a person’s name, after which the person can be investigated. If a person refuses to give his or her name, the person may be arrested and searched. Officers also indicated they had used techniques to “go fishing.” While the evidence would not be admissible in court, in certain circumstances it allowed the officer to obtain information from the person in exchange for “not laying a charge,” or allowed the officer to seize the illegal substance.

While this study is of limited scope, it does provide an indication of how police discretion in enforcing drug legislation may lead to discrimination based on factors such as a person’s appearance.

Another concern is the danger of alienating certain groups of society. Those targeted by enforcement may lose respect for police and the criminal justice system in general. Inconsistent legal responses are likely to create an atmosphere that brings the administration of justice into disrepute. As Parliamentarians, we find this unacceptable. 

Finally, there is the basic issue of fairness and justice. No one seems able to explain why some people are charged and others are not. It is not surprising that this legislation faces such fierce criticism.

 

Customs Act - fines

In general, when one thinks of drug enforcement, one thinks of charges laid by police under the CDSA and seizures made by them. Other legislation can be applied in certain circumstances, however. For example, the Customs Act allows for the seizure of prohibited goods and also of vehicles used in contravention of that act. In this case, a civil "penalty" may be imposed against the importer, because a Customs officer may return the vehicle to the importer only upon payment of the assessed monetary penalty. The penalty is based on the quantity of drugs found.


 

Amount

Marihuana

Hashish

Hashish oil

Controlled drugs

Hallucinogens

CocaineOpiates

*$220

over 8 grams not over 15 grams

over 2 grams not over 4 grams

over 1 gram or less

over 10 pills not over 20 pills

over 1 dosage not over 4 dosages

 

1 gram or less $400

$440

over 15 grams not over 30 grams

over 4 grams not over 8 grams

over 1 gram not over 2 grams

over 20 pills not over 40 pills

over 4 dosages not over 8 dosages

 

 

$550

over 30 grams not over 60 grams

over 8 grams not over 16 grams

over 2 grams not over 4 grams

over 40 pills not over 60 pills

over 8 dosages not over 12 dosages

 

 

$660

over 60 grams not over 100 grams

over 16 grams not over 24 grams

over 4 grams not over 6 grams

over 60 pills not over 80 pills

over 12 dosages not over 16 dosages

 

 

$770

over 100 grams not over 150 grams

over 24 grams not over 32 grams

over 6 grams not over 8 grams

over 80 pills not over 110 pills

over 16 dosages not over 20 dosages

 

 

$880

over 150 grams not over 200 grams

over 32 grams not over 40 grams

Over 8 grams not over 10 grams

over 110 pills not over 140 pills

over 20 dosages not over 24 dosages

 

 

$990

over 200 grams not over 250 grams

over 40 grams not over 46 grams

Over 10 grams not over 12 grams

over 140 pills not over 160 pills

over 24 dosages not over 28 dosages

 

 

$1100

over 250 grams not over 300 grams

over 46 grams not over 56 grams

Over 12 grams not over 14 grams

over 160 pills not over 180 pills

over 28 dosages not over 32 dosages

 

 

 

For amounts in excess of the above stated sums:

 

 

over 300 grams: $4 for each addi-tional gram

over 56 grams: $20 for each additional gram

over 14 grams: $70 for each additional gram

over 180 pills: $8 for each addi-tional pill

over 32 dosages: $40 for each addi-tional dosage

over 1 gram: $400 for each gram

 

The CCRA will also arrest the importer, under the authority of the Customs Act, for smuggling goods into Canada, that are prohibited, restricted or controlled by the Act or by any other Act of Parliament (for example, the CDSA). Once the CCRA has seized the drugs and made an arrest, the responsible police force is contacted and will decide whether or not to proceed and lay charges. As will be discussed later, in some cases, the CCRA has entered into Criminal Charge Agreements with police forces. The Crown Attorney will then decide whether or not to prosecute, based on case-by-case specifics.

Under section 6 of the CDSA importing drugs, except as authorized under the regulations, is an offence regardless of quantity. Therefore, in the case of importing, there is no "threshold" in the CDSA below which a lesser sentence or fine can be imposed. However, if the amount imported is of a quantity normal for personal use, rather than resale, the Crown may choose to prosecute for possession rather than importing.

The CCRA in Windsor has a Criminal Charge Agreement with the Windsor RCMP which sets out guidelines for criminal prosecution for border seizures. The amounts are to be used only as a guide, but generally a person will not be charged by the RCMP for importation of less than 50 grams of marijuana, less than 20 grams of hashish or less than 15 grams of hash oil. In these cases, enforcement will be done under the Customs Act.  From 1996 to 2001, almost 99% of the 4,055 marijuana seizures in the Southern Ontario region were for less than 50 grams. 

 

 

Seizures

The following table provides information on seizures made by the RCMP, CCRA, Sûreté du Québec, Ontario Provincial Police and the municipal police forces of Montreal, Laval and Toronto.  

 

Drugs Seized in Canada: 1993–2001

 

1993

1994

1995

1996

1997

1998

1999

2000

2001

heroin

153

85

128

83

95

105

88

168

74

cocaine

2,731

7,915

1,544

3,110

2,090

2,604

1,116

1,851

1,783

ecstasy

 

 

 

1,221

10,222

68,496

400,000

2,069,709

1,871,627

marihuana (kg)

7,314

6,472

5,500

17,234

50,624

29,598

23,829

21,703

28,746

marihuana
(plants)

238,601

288,578

295,999

675,863

689,239

1,025,808

954,781

1,102,198

1,367,321

hashish

56,721

36,614

21,504

25,155

6,118

15,924

6,477

21,973

6,677

liquid hashish

669

659

663

805

824

852

434

1,240

397

(Weights in kilograms; Ecstasy in dosage units)

 

According to Professor Steve Pudney, Public Sector Economics Research Centre, Department of Economics, Leicester University, “seizure data provide the most direct information on availability of drugs even though drugs seized are not contributing to the available supply.”[78] If one looks at RCMP drug seizure trends, however, it becomes obvious that the data must be used cautiously, because the number of interceptions or the amount seized in one year is not necessarily a true indicator of an increase or decrease in the drug situation. Rather, it is an indication of the impact of active and passive policing. 

 

Seizures are likely to be passive in the sense that there is a more or less constant seizure rate achieved by routine monitoring and investigation. The greater the amount of drugs entering the market, the greater the background level of seizures, on a purely statistical basis. Passive seizures are thus a positive indicator of the size of the market. However, drug policing also has active aspects. Investigations based on criminal intelligence often lead to the closing down of pipelines of supply and the removal of significant quantities of the product from the domestic market. Seizures of this type are negatively related to market size in the sense that a large seizure, rather than being an indicator of supply growth, is a cause of supply contraction. When these two aspects are present, it is difficult to draw any clear conclusion about supply from information on seizures. [79]

 

While passive seizures may indeed be a positive indicator of the size of the drug market, one must remember that passive seizures may also be somewhat inaccurate, because Canada’s vast borders and coastline make it difficult for Canadian officials to make consistent interceptions and seizures each year. Importers continually find new ways of avoiding authorities by means of different ports of entry, as well as larger, infrequent shipments or vice versa.

Despite these problems with seizure data, the trends indicate that the seizures of cannabis, both in kilos and plants, have seen a fairly significant increase in the last few years, particularly when compared to seizures relating to cocaine and heroin.   

What is clear from the seizure data is that police have, in recent years, placed increased emphasis on marijuana cultivation offences. In 1993, police seized fewer than 250,000 marijuana plants, while seizures in 2001 totalled more than 1,350,000 plants. This would seem to suggest an increase in cultivation in Canada and also a shift in police priorities to cultivation offences. 

 

Conclusions 

Conclusions of Chapter 14

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ø      Annual costs for drug enforcement in Canada can be estimated at between $700 million and $1 billion.

Ø      Reduced law enforcement activities resulting from amendments to the drug legislation on cannabis could produce either substantial savings or significant reallocations of funds by police forces to other priorities.

Ø      Due to the consensual nature of drug offences, police have been granted substantial enforcement powers and have adopted highly intrusive investigative techniques; these powers are not unlimited, however, and are subject to review by Canadian courts.

Ø      Over 90,000 drug-related incidents are reported annually by police; more than three-quarters of these incidents relate to cannabis and over 50% of all drug-related incidents involve possession of cannabis.

Ø      From 1991 to 2001, the percentage change in rate per 100,000 people for cannabis-related offences is +91.5–thus, the rate of reported cannabis-related offences has almost doubled in the last decade. 

Ø      Reported incidents related to the cultivation of cannabis have seen a dramatic increase in the last decade.

Ø      Reported incident rates vary widely from province to province.

Ø      Cannabis was involved in 70% of the approximately 50,000 charges in 1999.  In 43% of cases (21,381), the charge was for possession of cannabis.

Ø      Charge rates for drug offences vary significantly from province to province.

Ø      The uneven application of the law is of great concern and may lead to discriminatory enforcement, alienation of certain groups within society, and creation of an atmosphere of disrespect for the law; in general, it raises the issue of fairness and justice.

Ø      Seizure statistics would seem to confirm an increase in cannabis cultivation in Canada and also a shift in police priorities regarding this offence. 

 


[1] R..G. Lesser, Chief Superintendent, RCMP, Proceedings of the Special Committee on Illegal Drugs, Senate of Canada, First Session, Thirty-seventh Parliament, 2001, Issue no. 8, page 11.

[2]  DARE is discussed in greater detail in Chapter 17.

[3] Presentation submitted to the Committee on 5 June 2002.

[4] Report of the Auditor General of Canada to the House of Commons, 2001, Chapter 11, “Illicit Drugs: The Federal Government’s Role,” p. 11.

[5] This section relies to a great extent on the testimony of Mark Connolly, Director General, Contraband and Intelligence Services Directorate, Customs Branch, Canada Customs and Revenue Agency, Proceedings of the Special Committee on Illegal Drugs, Senate of Canada, First Session, Thirty-seventh Parliament, 2001, Issue no. 8, pages 33-39.

[6] This section relies to some extent on The Costs of Drug Abuse and Drug Policy, a paper prepared for the Special Senate Committee on Illegal Drugs by Antony G. Jackson, Economics Division, Parliamentary Research Branch, Library of Parliament, 22 April 2002.

[7] Single, E., et al., (1996) The Costs of Substance Abuse in Canada: A Cost Estimation Study, Ottawa: Canadian Centre on Substance Abuse.

[8] Report of the Auditor General of Canada to the House of Commons, 2001, Chapter 11, “Illicit Drugs: The Federal Government’s Role,” page 17.

[9] Paul E. Kennedy, Senior Assistant Deputy Solicitor General, Policing and Security Branch, Department of the Solicitor General, Proceedings of the Special Committee on Illegal Drugs, Senate of Canada, First Session, Thirty-seventh Parliament, 2001-02, Issue no. 22, pages 9-10.

[10] Chief Julian Fantino, Toronto Police Service, Proceedings of the Special Committee on Illegal Drugs, Senate of Canada, First Session, Thirty-seventh Parliament, 2001, Issue no. 5, page 11.

[11] Chief Cal Johnston, Regina Police Service, Proceedings of the Special Committee on Illegal Drugs, Senate of Canada, First Session, Thirty-seventh Parliament, 2001-02, Issue no. 16, page 31.

[12] Ibid., page 33.

[13] Report of the Auditor General of Canada to the House of Commons, 2001, Chapter 11, “Illicit Drugs: The Federal Government’s Role,” page 16.

[14] Statistics Canada, Canadian Centre for Justice Statistics, Juristat, Justice Spending in Canada, Catalogue no. 85-002-XIE, Vol. 19, No. 12, pages 4-6.

[15] Statistics Canada, Canadian Centre for Justice Statistics, Juristat, Crime Statistics in Canada - 2001, page 14.

[16] Kash Heed, Vice Drugs Section, Proceedings of the Special Committee on Illegal Drugs, Senate of Canada, First Session, Thirty-seventh Parliament, 2001, Issue no. 10, page 62.

[17] This section is in essence a summary of Police Powers and Drug-Related Offences, a paper prepared for the Special Senate Committee on Illegal Drugs by Gérald Lafrenière, Law and Government Division, Parliamentary Research Branch, Library of Parliament, 6 March 2001.

[18] R. v. Dyment, (1988) 45 C.C.C. (3d) 244 at p. 254 (S.C.C.).

[19] Other consensual offences include gambling and prostitution.

[20] R. v. Kirzner (1977) 38 C.C.C. (2d) 131 (S.C.C.) at page 135.

[21] Commission of Inquiry into the Non-medical Use of Drugs (1972) Cannabis, A Report, Ottawa, page 239.

[22] Brucker, T. (2002) The Practical Guide to the Controlled Drugs and Substances Act, Third Edition, Carswell, page 101.

[23] In R. v. Feeney, the Supreme Court of Canada refused to deal with the issue because, according to the Court, exigent circumstances did not exist when the arrest was made. 

[24] R. v. Godoy, (1999) 131 C.C.C. (3d) 129 (S.C.C.).

[25] See Controlled Drugs and Substances Act, section 11(6).

[26] See Controlled Drugs and Substances Act, section 11(8).

[27] Hunter (Director of Investigation & Research) v. Southam Inc. (1984) 14 C.C.C. (3d) 97 (S.C.C.).

[28] R. v. Grant (1993) 84 C.C.C. (3d) 173 (S.C.C.) at p. 188.

[29] Ibid., page 189.

[30] (1991) 65 C.C.C. (3d) 15 (B.C.C.A).

[31] Fontana, J.A. (1997) The Law of Search and Seizure in Canada, Fourth Edition, Butterworths, page 396.

[32] R. v. Simmons, (1988) 45 C.C.C. (3d) 296 (S.C.C.).

[33] Ibid.

[34] Cloutier (1990) 53 C.C.C. (3d) 257 (SCC) at pages 277-278.

[35] (1998) 126 C.C.C. (3d) 321 (Ont. C.A.).

[36] 2001 SCC 83.

[37] Ibid., para. 83.

[38] Ibid., para. 116.

[39] [1998] 3 S.C.R. 393.

[40] S.C. 1986 c. 1.

[41] R. v. Monney, (1999) 133 C.C.C. 129 (S.C.C.).

[42] The Customs Act also contains many other provisions dealing with powers of customs officers.  These are not discussed.

[43] (1988) 45 C.C.C. 296 (S.C.C.).

[44] Ibid., at pages 320-321.

[45] (1999) 133 C.C.C. 129 (S.C.C.).

[46] Ibid., at page 152.

[47] Ibid., at page 151.

[48] See Criminal Code section 183.

[49] R. v. Duarte, (1990) 53 C.C.C (3d) 1 (S.C.C.) at page 11.

[50] (1990) 53 C.C.C. (3d) 1 (S.C.C.).

[51] [1990] 1 S.C.R. 30.

[52] (2000) S.C.C. 65.

[53] Stuart, D. (1999) “The Unfortunate Dilution of Section 8 Protection,” Queens Law Journal, Volume 25, Number 1, page 68.

[54] (1988) 44 C.C.C. (3d) 513 (S.C.C.).

[55] Ibid., at page 560.

[56] Ibid., at page 560.

[57] Ibid., at page 567.

[58] Ibid., at page 69.

[59] (1991) 66 C.C.C. (3d) 1 (S.C.C.).

[60] Mewett, A.W. and S. Nakatsuru, (2000) An Introduction to the Criminal Process in Canada, Fourth Edition, Carswell, page 180.

[61] Illegal activities by a police officer also raise the issue of whether the police officer may be liable to prosecution. The issue is beyond the scope of this paper.

[62] (1999) 133 C.C.C. (3d) 257 (S.C.C.).

[63] Ibid., at page 282.

[64] SC 2001, Chapter 32.

[65] R. v. Silveira, (1995) 97 C.C.C. (3d) 450 at page 496.

[66] R. v. Grant, (1993) 84 C.C.C. (7d) 173.

[67] The Canadian Centre for Justice Statistics warns that crime statistics may be influenced by many factors, including: reporting by the public to the police; reporting by the police to the Canadian Centre for Justice Statistics; the impact of new initiatives such as changes in legislation, police or enforcement practices; and social, economic and demographic changes. 

[68] Statistics Canada, Canadian Centre for Justice Statistics, Juristat, Crime Statistics in Canada - 2001, Catalogue no. 85-002-XIE Vol. 22, no. 6, page 11.

[69] Ibid.

[70] Plecas, D., et. alii., (2002) Marihuana Growing Operations in British Columbia – An Empirical Survey (1997-2000), Department of Criminology and Criminal Justice – University College of the Fraser Valley and International Centre for Criminal Law Reform and Criminal Justice Policy.

[71] It should be noted that in 1997 the rate in both Yukon and Northwest Territories was even higher than in British Columbia.

[72] Also, the data prior to 1995 are based on approximations made from the average distribution of charges during the period covering the years 1995 to 2000. 

[73] Statistics Canada, Canadian Centre for Justice Statistics, Juristat, Illicit Drugs and Crime in Canada, Catalogue no. 85-002-XIE, Vol. 19, No. 1, page 5. In this case, “other drugs” means: 1) illegal drugs other than cannabis, cocaine or heroin, and 2) controlled drugs.

[74] Statistics Canada, Canadian Centre for Justice Statistics, Juristat, Crime Statistics in Canada - 2001, Catalogue no. 85-002-XIE, Vol. 22, No. 6, page 19.

[75] Ibid.

[76] Carrier, N. (2000) Discours de patrouilleurs montréalais sur la détection de l’infraction de possession de drogues prohibées.  Mémoire de maîtrise. École de criminologie, Université de Montréal.

[77] Voir aussi la discussion qu’en fait M. Guy Ati-Dion lors de son témoignage devant le Comité spécial du Sénat sur les drogues illicites, Sénat du Canada, première session de la trente-septième législature, 29 octobre 2001, fascicule 8, pages 73-74.

[78] Appendix B. ‘Referee’s Comments.’ In Bramley-Harker (2001) Sizing the UK market for illicit drugs. London: Home Office. RDS Occasional Paper no 74.

[79] Ibid.


Chapter 15

The Criminal Justice System

The previous chapter examined how people first come into contact with the criminal justice system through the enforcement of criminal legislation. Several questions remain, however. What happens once a person has been charged with a drug offence? Who is responsible for prosecuting drug cases? What type of punishment do people receive? Who ends up with a criminal record? Have there been any challenges to the constitutional validity of drug legislation? These issues and others related to the criminal justice system are reviewed in this chapter. 

 

Prosecution 

The Federal Prosecution Service (FPS) is the lead prosecution agency with respect to drug offences in Canada. Its mandate is to prosecute offences in every province and territory under a variety of federal statutes, including the CDSA. Its work consists mostly of drug prosecutions.

Under the CDSA, provinces can exercise jurisdiction to prosecute if a drug proceeding was commenced at the instance of the provincial government. Presently, only two provinces–Quebec, and to a lesser extent New Brunswick–have exercised this jurisdiction. Thus, in Quebec, the FPS prosecutes only offences that have been investigated by the RCMP. In the rest of Canada – apart from New Brunswick – the service prosecutes drug offences that have been investigated by a provincial or municipal police force or the RCMP.  

The FPS has 300 full-time in-house lawyers in 13 offices across the country and approximately 750 standing agents from the private sector, who conduct drug prosecutions on behalf of the Attorney General of Canada. Generally, the police investigate an offence and lay a charge, which is followed by a prosecution. In certain provinces – such as British Columbia, Quebec and New Brunswick–the police are required to seek Crown approval before laying a charge.

While complex cases still represent a fairly small percentage of cases prosecuted by the FPS, they are becoming more common and are already very time consuming for prosecutors.

…Most cases are of low or medium complexity; however, the complexity of cases is increasing and complex cases are becoming more common. Currently, it is estimated that complex cases make up 7 percent of the caseload but use 60 percent of prosecutors' time. Complex organized crime cases require the involvement of Justice at an early stage because of the legal issues associated with the collection, organization, and admissibility of evidence. [1]

 

The total cost of drug-related prosecutions conducted by the FPS is approximately $57 million per year–$35 million for in-house counsels and $22 million for standing agents. The FPS estimates that for the year 2000-2001, the cost of prosecuting cannabis possession was approximately $5 million, or roughly 10% of the total budget of $57 million.[2]

 

 

Courts 

During our deliberations, we were not given much detail on the costs to the provincial court system of drug-related prosecutions. The 1996 study by CCSA already presented in a previous chapter[3] estimated court costs for 1992 at approximately $60 million. One would assume that, with nearly 50,000 people currently charged per year for drug offences, and with the increased complexity of these cases, court administration costs would be significantly higher than the amount estimated in 1992.

The Auditor General estimated that in 1999 Canadian criminal courts heard 34,000 drug cases that involved more than 400,000 court appearances.[4] Other court-related costs are the considerable resources spent on legal aid. While we did not receive information on how much of these costs should be allocated to drug-related offences, we do know that in 1996/1997, $860 million was spent on court administration costs, and that in 1997/1998, $455 million was spent on legal aid.[5] 

 

Drug treatment courts

Drug courts originated in the USA in the late 1980s as one of the measures in the “war on drugs”. The arrangement essentially involves permitting the judge hearing a case involving narcotics to order treatment measures instead of any other form of sentence. There are now approximately 2,000 drug courts in the USA and they have apparently dealt with about 200,000 individuals. The primary task of these courts is to deal with offenders whose offences did not involve violence and who have a history of drug use (including alcohol). Two approaches are taken: one is applied before sentencing and the other after sentencing. In the former case, the charges are suspended and in the latter case it is the sentence of probation or imprisonment that is suspended. Responses include intensive judicial supervision, long-term clinical treatment, frequent random urine tests, and related services (housing, employment, etc.). Various assessments of the system claim that the benefits include a reduction in drug use and delinquency as well as a reduction in the costs to the criminal justice system (it costs approximately US $2,000 to deal with a delinquent in the drug court system as compared with between US $20,000 and $50,000 for a criminal conviction combined with a prison sentence).[6]

Drug courts have also been established in Australia (1999), Ireland (1998) and England (1998).

The Committee visited Canada’s first drug treatment court (DTC) during its travels to Toronto. Established in 1998 as a pilot project with funding support from the National Strategy on Community Safety and Crime Prevention, this initiative brought together many players including Justice Canada, Solicitor General Canada, FPS, the Ontario government, the provincial court, the Centre for Addiction and Mental Health (CAMH), the Toronto Police Service, the City of Toronto Public Health Department and a range of community-based service organizations. The pilot project is currently funded to December 2004.

A second drug treatment court pilot project was established in Vancouver in December 2001. It also uses an inter-sectoral model and is intended to ensure intensive case management and linking of participants to community resources and skills development programs, as required. While the Toronto DTC uses the Centre for Addiction and Mental Health as its treatment provider, treatment providers in Vancouver tend to be more locally based.

Drug treatment courts are specifically designed to supervise cases of drug-dependent offenders and are based on knowledge that incarceration alone does not lead to a reduction in drug use and related criminal activity. Typically, the criminal justice system does not address substance abuse problems or the root causes of these problems – which may include unemployment, homelessness, physical and sexual child abuse histories, family discord and a range of mental and physical health problems. DTCs are based on research that demonstrates that offenders with substance abuse problems commit fewer crimes when they are enrolled in treatment programs.

 

Another underlying assumption is that through therapeutic jurisprudence approaches such as drug courts, which are intended to provide rehabilitative and reintegration outcomes for drug-addicted offenders, the criminal justice system, in partnership with treatment providers and community services, can act as a change agent in altering the course of the addict's life. [7]

 

The Toronto DTC provides court-supervised treatment for people who have a dependency on cocaine and/or opiates. Non-violent drug-dependent offenders charged with possession of, or trafficking in, small amounts of crack/cocaine or heroin, or with prostitution-related offences, are eligible for the program. In all cases, the offender is screened and assessed by a treatment provider. Admission is voluntary but must be approved by the Crown. Factors considered include other current criminal charges, the potential for risk to the community and the seriousness and circumstances of the offence. Two tracks have been established. In general, the first track is for those with limited or no criminal record and a charge of simple possession. They are eligible to enter the DTC prior to plea–once the program is completed, the charge is stayed or withdrawn. The second track is for those with more serious criminal records or a trafficking charge. They are required to plead guilty–once phase I of the program is completed, the offender receives a non-custodial sentence and is placed on probation (phase II). Failure to complete phase I results in the offender being expelled and sentenced. 

The system is based on close collaboration between the Court and treatment systems. The offenders attend court sessions on a regular basis–the court sits twice a week–where the judge, in consultation with the DTC treatment team, reviews their progress. The DTC team includes the DTC judge, crown prosecutor, duty counsel, a representative of probation services, court staff, community/court liaison staff and treatment staff. Decisions are made regarding future treatment and judicial involvement. Continued compliance is encouraged through a system of graduated incentives and sanctions–this is accomplished by releasing the offender on bail with appropriate conditions that must be satisfied. Relapses are anticipated as part of the recovery process and do not automatically lead to expulsion. Honesty and accountability are important, however. Failure to meet other conditions, such as attendance in court or providing a urine sample, can result in a range of sanctions, including revocation of bail for up to five days.

The offender is involved in a structured outpatient program geared to his or her specific needs. Treatment lasts approximately one year, during which the offender works closely with a case manager. Treatment includes: group and individual counselling, ongoing case management, regular and random drug screening, and addiction medicine services – including methadone maintenance where appropriate. Treatment staff also collaborate closely with community resources and agencies to meet the needs of participants. To complete the program, the offender must not have used crack/cocaine and/or heroin for an extended period of time and must also demonstrate a fundamental life-style change involving improved interpersonal skill development, stable and appropriate housing, and educational and vocational success.

The DTC initiative seems very encouraging although it is clear that evaluations will have to be conducted to ensure that these programs are effective. We were told that there are very few existing comprehensive, well-designed evaluations of drug treatment courts but that results of more comprehensive evaluation should be ready in 2002-2003. Problems to date include the following: most of the evaluations or research have taken place within very limited time frames; there has been no significant follow up to look at whether there has been re-use or abuse of drugs and criminal recidivism; and there has been a lack of adequate comparison groups from which to draw conclusions about the impact and effects of the program. Also discussed were differences from American drug courts, where mandatory minimum sentences and harsher penalties in general are a significant incentive for American participants to remain with the program.[8] Patricia Begin, Director of Research and Evaluation at the National Crime Prevention Centre, provided the following preliminary details of the Toronto DTC:

 

Briefly, the Toronto evaluation is using a quasi-experimental design. The comparison group is composed of those clients who were assessed as eligible to enter the program and made the decision not to participate in the drug treatment court, but rather go through the traditional criminal justice processing.

 

Between April 1999, when the evaluation data started to be collected, and October 5, 2001, there were 284 clients involved in the drug treatment court. Eighty-three per cent, or 234, are the experimental group, and 17 per cent constitute the comparison group of 50 clients.

 

In the experimental group, 16.7 per cent are still in the program; 13.7 or 14 per cent have graduated, which is 32 graduates; and 62 per cent have been expelled. The overall retention is 31 per cent.

 

One of the things the research has illuminated is that for those drug treatment court clients who make it past the three-month period, the retention rate rises to 50 per cent. The court is attempting, through the data, to better understand the characteristics of those clients who are deemed to be eligible but do not make it, and who are expelled or withdraw in the first three months.

 

…The evaluation has found that the comparison group is more likely than the experimental group to be younger, unemployed, have an income source from illegal activity, more criminal convictions, have been incarcerated more often and been charged with a new offence since admission to the drug treatment court. In many respects, the comparison group is at much higher risk than the experimental group.

Lower reoffending rates for those receiving the drug treatment court program and related services may be related to their level of risk. We would like to explore further whether it is participation in the program, or lower risk and motivation to change one's life that is accounting for these differences.

 

The evaluation data that we have to date has told us the following: The drug treatment court in Toronto is able to engage and retain offenders. Those who stay in the program tend to complete it and graduate, and the limited follow-up data that has been collected so far would indicate that they do have lower recidivism rates and reduced drug use.

 

There is also a reduction in drug use and criminal activity while offenders are in the program. There tend to be lower re-arrest rates for the experimental group compared with the expelled or the comparison group. One of the evaluation challenges over the next couple of years will be to try to identify a better matched group of offenders in order to define the outcomes, impacts and effects of the drug treatment court experience on some of the key outcome measures, which have to do with drug use, criminal activity, re‑insertion in a pro-social way into the community, family stability and things of that nature. [9]

 

We look forward to the results of more comprehensive evaluations. Of note, the cost of incarceration in Ontario is approximately $45,000 per year while treatment costs related to drug courts are estimated at $4,500 per year. Clearly, increased use of DTCs could lead to substantial savings to the criminal justice system while at the same time showing promising results in reducing substance abuse problems.

 

 

Disposition and sentencing 

While the quality of criminal justice statistics has been discussed in other chapters, the weakness in these numbers is particularly evident with respect to the disposition and sentencing of drug-related offences. This issue was also raised in the Auditor General's report for 2001. 

There are weaknesses in some aspects of law enforcement statistics. First, there are no national statistics on illicit drug convictions and sentencing. For example, British Columbia, Manitoba, New Brunswick, and Nunavut do not provide adult criminal court data to Statistics Canada. The use of statistics requires good analysis and interpretation to understand underlying trends and causes. Because Canada does not have national data, it cannot monitor important trends such as sentence lengths, emergence of new drugs, and regional differences… 

A second weakness is that the statistics on drug convictions and sentencing, which are reported according to the categories under the Controlled Drugs and Substances Act, are limited in detail. While the national statistics on police charges break down the number of drug charges by both type of substance (for example, heroin, cocaine, and cannabis) and act (for example, possession, trafficking, importation, and cultivation), the statistics on convictions are broken down into only two categories - possession and trafficking. The Inter-American Drug Abuse Control Commission's 1999-2000 report on Canada's progress in drug control stated that improvements were needed in the justice system's statistics on drug offences.[10]

 

Despite these weaknesses, data relating to the disposition and sentencing of drug-related offences will be reviewed. 

The following figure details the outcome of those charged with drug offences in selected provinces. It would appear that, from 1995 to 2000, there was a fairly significant increase in the percentage of cases in which the charges against the accused were either stayed or withdrawn. Not surprisingly, the percentage of people being found guilty of drug offences once they had been charged was lower. It is important to note, however, that this figure does not include data from three of the provinces (New Brunswick, Manitoba and British Columbia) and from one of the Territories (Nunavut); nor does it include data from certain courts in Quebec. Also, the data prior to 1995 are based on approximations of the average distribution of charges during the period covering the years 1995 to 2000. 

 

 

 

 

 

 

 

 

 

For the year 1996-1997, 64% of persons convicted of drug trafficking were sentenced to imprisonment. The median sentence was four months. Probation was imposed as the most serious sentence in 24% of these cases and fines, in 9%.[11] 

With respect to possession, a fine was imposed in 63% of the cases, with a median amount of $200. A fine was imposed as the most serious sentence in 55% of cases, probation in 22% and imprisonment in 13%.[12]

We were informed that the FPS is attempting to identify and implement alternatives to prosecution where appropriate. For example, “diversion” – whereby first-time offenders who have been charged with simple possession of cannabis are diverted out of the formal criminal justice system – was mentioned. Also discussed were the drug treatment court pilot projects in Toronto and Vancouver, whereby addicted offenders are referred to a fairly rigorous court-monitored treatment program. In addition, we were told about the recent implementation of the “deferred prosecution pilot project,” in which prosecutors post a peace bond for offenders who have been charged with possession of cannabis in Manitoba. In these cases, the charges would be stayed, and as long as the offender is not back before the court system within a period of one year, the matter would be discontinued. Other “diversion” programs across Canada were mentioned.[13]

While Canada’s disposition and sentencing data are incomplete, a few studies of limited scope suggest what is happening in Canada. A document prepared by the Comité permanent de lutte à la toxicomanie reviews police and judicial practices based on Quebec statistics from 1985 to 1998.[14] The report found that practices varied from one region to another in Canada and also from one region to another in Quebec. It notes that while there is a trend towards greater use of diversion in cannabis possession cases, it is far from being a standard practice. Diversion was used more often in the case of minors and, in their case, is on the rise (20.6 % in 1990, 48.2 % in 1995, 55.9 % in 1996 and 63 % in 1997). Once again, this varies considerably from one region to another.

Of those charged with cannabis possession, approximately 80% were adults and mostly male (roughly 90%). The report noted that penalties were not severe, particularly where it involved only one offence. For adults, the majority of the penalties imposed by the courts were fines and probation, and very rarely imprisonment. For minors, the most common penalty was community work or probation; detention was rarely imposed. Data from Montreal in 1998 indicate that incarceration for cannabis possession was less likely (13.8 % of all sentences) than for other substances, and that such penalties were shorter (50% were for 1 day and none was for more than 10 days). In addition, fines were smaller (average fines for cannabis were $186 while they were $277 for cocaine).

Patricia Erickson, a researcher from the Centre for Addiction and Mental Health, provided information on cannabis criminals based on three studies conducted in Toronto in 1974, 1981, and 1998. The studies indicate that cannabis criminals were overwhelmingly young men (about 90% were male and more than half were aged 21 years or less). Of the sample group, 80% were employed or in school and about half lived with parents. Most offenders were charged with only one count of simple possession and the amounts involved were small. In over 75% of the cases, charges were based on possession of less than 14 grams of cannabis. Of the whole sample interviewed in 1998, 50% had 1 gram or less of cannabis as the basis for their cannabis possession charges.

With respect to sentencing, in the first two studies, an absolute or conditional discharge was ordered in a large proportion of the cases. In 1998, 43% were diverted and the rest were awaiting disposition. It was indicated that penalties seemed to be given out randomly and that there “was no correlation between sentence received and the type of person they were, or the case characteristics, charge and amount of drug.”[15]

 Also discussed was the issue of deterrence. The first study noted that 92% were still users one year later (in the later studies, about 80% intended to use cannabis or were still using it). In addition, the studies noted that the severity of the penalty was not relevant in deciding whether to use it in the future. The factor that best predicted an end to use after the user was arrested was simply the quantity the offender had used in the past–the less used the more likely the user was to stop. There was also no evidence of general deterrence, although it was indicated that this is much more difficult to measure.

While diversion programs are certainly an improvement on the traditional justice system response, it would seem that these programs are being developed on an ad hoc basis and are not consistently available across the country. Thus, while some offenders may benefit, others are left to face the traditional criminal justice system. In addition, it is not clear whether the admission criteria are similar under the various diversion initiatives. This would suggest an uneven application of the criminal law with respect to offenders who have committed the same offence, with the disposition of a case based not on the offence itself but rather on where it was committed. 

 

 

Corrections 

Correctional Service Canada (CSC) is responsible for offenders serving sentences over two years, including individuals convicted of serious drug offences. CSC estimates that:

·        nearly 70% of federal offenders have problems with alcohol and/or drugs;

·        more than half used drugs or alcohol when they committed their current offence; and

·        approximately 20% of incarcerated offenders have been convicted of drug-related offences.

 

With such numbers, it is obvious that substance abuse should be a high priority for CSC. This raises two issues: (1) how to address the supply of drugs in federal institutions; and (2) how best to provide treatment and rehabilitation for offenders with substance abuse problems.

With respect to security measures, CSC conducts searches, does urinalyses and works with police to share intelligence about drug issues. In addition, ion scanners have recently been set up in every institution to help detect the introduction of drugs. There are also plans to have a drug detection dog in every institution. Despite all these security measures, it would be difficult for CSC to argue that it is successfully keeping psychoactive substances out of prisons. The national results from a random urinalysis sample program in 2000-2001 found that 12% of samples tested positive for at least one intoxicant.[16] In addition, a recent study in Quebec penitentiaries shows that 29% of inmates admit to illicit drug use, the majority of them taking cannabis. 

Imprisonment does not necessarily address the problem. A study that we conducted recently in Canadian penitentiaries in Quebec showed that inmates are taking drugs there too. We asked inmates to tell us about their drug use habits over the past three months of imprisonment. All the inmates were men. Sixteen per cent of them told us that they had consumed alcohol, whereas 29 per cent said that they had taken illicit drugs. In the majority of cases, these inmates were taking cannabis, whereas on the outside, the same inmates used to take cocaine. This is a significant change. Why were these people consuming cannabis, which is more readily detectable by its smell and by the traces it leaves in urine? Cannabis is detectable for 15 days after it was consumed, whereas cocaine can only be detected for 48 hours afterwards. Inmates want to escape. Cocaine is a stimulant which brings the inmate back to reality and this is not the desired effect. These people want to escape. Tranquillizing substances are the favourite. Sometimes they take benzodiazepine. However, they are easily able to get their hands on cannabis. [17]

 

CSC provides substance abuse and treatment programs to offenders with drug problems. A range of programs is available to help offenders break the cycle of addiction and safely reintegrate back into the community. Programs include the Offender Substance Abuse Prevention Program, the CHOICES Program and the Substance Abuse Program for Long-Term Offenders. CSC has also introduced Intensive Support Units, which include added searching and testing to support offender efforts to change substance abuse behaviour. The Auditor General estimates that 53% of offenders participate in substance abuse programs while serving their sentences.[18]

With respect to harm reduction, CSC provides methadone treatment to some opiate-addicted injection drug users and also makes bleach available in prisons to sterilize needles. CSC also has other initiatives to prevent the spread of infectious diseases, such as immunization for Hepatitis B. In early 2002, CSC announced an expanded methadone treatment program for federal prisoners addicted to heroin and other opiates.

CSC’s Addictions Research Centre (ARC) opened in Montague, Prince Edward Island, in May 2001. The mandate of the ARC is to conduct applied research to assist the CSC in understanding issues surrounding substance abuse and to develop programs that assist offenders in breaking their drug dependency. It is the only research centre established by a correctional organization to specifically address the challenges of addictions. With a staff of 20, it currently focuses on four areas: program development – which is currently focused on culturally sensitive programs for women and Aboriginal offenders; program research – in areas such as community intervention, methadone maintenance, intensive support units and fetal alcohol syndrome; assessment and monitoring – to measure trends over time to evaluate the success of interventions; and knowledge dissemination. 

Obviously, CSC’s largest cost is related to incarceration. The Auditor General estimated that in 1999, CSC spent $169 million to deal with illicit drugs: $154 million to deal with offenders serving sentences in whole or in part for drug-related offences; $8 million on substance abuse programs (including alcohol); $4 million for treatment programs (e.g., methadone); $3 million on urinalysis testing.  The cost of other security measures to control supply in institutions were unknown.[19] Of the current population of approximately 13,000 federal inmates, roughly 7,000 participate in substance abuse programs while serving their sentences. About $1,150 is spent per participating offender on substance abuse programs.    

As of 31 December 2000, 5,779 convicted drug offenders were under federal jurisdiction (either serving their sentence: (1) in a federal institution or (2) on conditional release). Of these, 3,890 were serving sentences for trafficking, 621 for importation, 225 for cultivation and 2,221 for possession.[20] Inmates serving in federal institutions are those who have been sentenced to imprisonment for two years or more.

Of those same 5,779 convicted drug offenders serving their sentences as of 31 December 2000, 2,548 were in federal correctional institutions: 1,613 for trafficking, 113 for importation, 82 for cultivation and 1,318 for possession.[21] In addition, 3,231 were on conditional release: 2,312 for trafficking, 508 for importation, 145 for cultivation and 946 for possession.[22]

In the five-year period from 1995 to 2000, the total federal drug offender population increased by almost 9%. Most of the growth involved those on conditional release, as this population increased by 19% over this period. At the same time, the number of those serving their sentence in institutions decreased by 2%.[23]

At the end of 2000, the average time served by drug offenders in federal custody was 2.2 years. With respect to conditional release, the average time served was 3.7 years. While this figure is lower than the average for non-drug offences, it is interesting to note that the average time served in custody for possession offences was 2.52 years, while it was 1.89 years for trafficking, 1.48 years for importation and 0.88 years for cultivation. For those on conditional release, the average time served for importation was 4.6 years, while it was 3.6 years for possession, 3.5 years for trafficking and 2.2 years for cultivation.[24] CSC indicated the reason that offenders appeared to be serving longer sentences for possession offences than for other drug-related offences such as trafficking is that they may also be serving time for other more serious offences, a situation making comparisons extremely difficult.

The following figure provides details of the number of admissions by region in federal correctional institutions in relation to drug offences for the year 2000, and the number of inmates incarcerated in different regions of the country as of 31 December 2000.

 

 

Criminal record

 

So what are the consequences of a criminal conviction? There are pre-disposition costs related to the criminal justice system such as legal fees, time off from work, etc. Often, the liberty of the offender is compromised by virtue of having to go to the police station. There are also the emotional costs of worrying about having been charged with a criminal offence. Even if the charge is later withdrawn, offenders have experienced costs.[25]  

Sanctions imposed in court are another obvious cost to the offender. They could include probation, a fine or some other sentence. Finally, there are also post-conviction costs. For example, a criminal conviction can have a negative impact on a person’s employment opportunities and can be an impediment to travel to other countries. The general stigma of criminalization affects all offenders. Those offenders receiving harsher sentences generally feel unfairly treated, a feeling that can lead to a lack of respect for the administration of justice.[26]

Allan Young made the following statement  

I get two to three calls a week from otherwise law-abiding citizens who are pot smokers who have been fired from their jobs or have been denied entry into the United States or access to their children or government employment. These people have been treated like common criminals. This is the biggest problem with the marijuana prohibition: If you treat someone who is otherwise law-abiding as a common criminal, they will start to disrespect people like Chief Fantino and the other people who really do try to serve and protect our interests. [27] 

With respect to the costs of cannabis prohibition, Dr. Patricia Erickson indicated that we do have choices. 

It is evident in U.S. drug policy that, the people for whom drug use is a moral issue, the cost is unimportant. The costs are irrelevant to them. What is relevant is making sure that the use of drugs is seen as wrong. In Canada, however, we have always been more balanced and more evidence-based. That is a good distinction from the U.S. Canadians are at least able to measure and discuss the costs of policy and consider alternatives. We are not willing to pay any price. [28]

 

A criminal conviction can also be an important factor in future dealings with the criminal justice system. For example, a person's prior conviction: may influence a police officer to lay a charge in cases where he or she might otherwise have used their discretion not to lay a charge; may influence a crown prosecutor to proceed by indictment rather than by summary conviction; may be used in limited circumstances in subsequent criminal proceedings; and may lead a judge to impose a more severe sentence. These are not trivial matters for those who have been convicted of a drug-related offence–in particular, the offence of possession of cannabis.

What happens in the case of a conditional or an absolute discharge? Section 730 of the Criminal Code indicates that such a person is deemed not to have been convicted of the offence. However, such a person would in likelihood have to answer yes if he or she were asked whether they had ever been arrested for, found guilty of, or pleaded guilty to a criminal offence. 

A conviction does not necessarily mean that a person has a “criminal record,” that is, a record in the Canadian Police Information Centre (CPIC) System. This computerized information system for law enforcement use provides information on crimes and criminals. The Identification Data Bank–one of four CPIC data banks–contains the Criminal Record Synopsis File in which records are entered based on information contained on criminal fingerprint forms. This file contains tombstone data respecting the file–such as status of the record, subject description, subject history (record, offence type) and subject aliases – and the complete Criminal Record is available to all CPIC terminal agencies upon request.

In the case of adult offenders, the Criminal Record file will be destroyed the earlier of either three years after their death and the date the individual reaches 80 years of age (although this will not apply in certain circumstances, such as where the individual has been charged with an offence within the previous 10 years). Absolute and conditional discharges will be removed to an archive as follows: absolute discharge on or after 24 July 1992 upon the expiration of one year from the date of sentencing (it is archived for five years and then destroyed); and conditional discharge on or after 24 July 1992 upon the expiration of three years from the date of sentencing (it is archived for five years and then destroyed). Discharges prior to 24 July 1992 will be destroyed on written request. Where a pardon is granted, the information about this offence is removed from CPIC to secured storage, separate and apart from all other criminal records (it is destroyed following the guidelines set out above for regular criminal record files). In the case of a charge not resulting in a conviction, the accused may make a request to the police agency that handled the case to have the information removed from local police files and RCMP records. The RCMP will return a person’s fingerprints and remove the offence information from CPIC, only on the request of the police agency that handled the case. Special rules apply to young offenders.

As explained previously, even though a person does not have a “criminal record,” it does not mean that the person has not been convicted of a criminal offence. While the presence of a criminal record is more likely to lead to negative consequences for the individual, many of the issues raised above also apply to those who have been convicted of a criminal offence but who do not have a “criminal record.” Depending on the circumstances and on the way the question is formulated, the lack of a criminal record is irrelevant.

Because the offence of possession of less than 30 grams of marijuana is currently a summary conviction offence, a person should not be fingerprinted following arrest. Because fingerprints are the basis for a “criminal record,” no such record will be entered in CPIC based only on this offence. However, before 1996, people had a criminal record, and it has been indicated that by the early 1990s, over 500,000 Canadians had a criminal record for cannabis possession.[29] 

Because of the complexity of this issue, one wonders whether people who have been convicted of an offence, notwithstanding the sentence imposed or whether they have received a pardon, know their legal rights. For example, most people would probably have difficulty answering certain criminal-related questions found on employment application forms.

 

Court challenges [30] 

Not surprisingly, the cases that have challenged the substantive validity of drug prohibition laws under the Charter have so far specifically dealt with marijuana, rather than with harder drugs, such as cocaine and heroin. Cases dealing with the right to use cannabis for medical purposes have been discussed in Chapter 13. This section will review cases where a right to non-therapeutic (or recreational) drug use is claimed. Although the medical cases have met with greater success, Charter challenges to marijuana prohibition by recreational users have been taken more seriously by the courts than they were a few years ago.   

So far, Canada’s legislative prohibition on marijuana – as it relates to non‑therapeutic use – has been consistently upheld by the courts. However, the court’s reasons have become more elaborate and more extensive in recent cases than in earlier cases. Undoubtedly, this reflects, at least in part, a change in judicial perceptions of the scope of section 7 of the Charter.

No cases could be found which dealt with challenges to the ban on marijuana or other drugs under the Canadian Bill of Rights. Undoubtedly, this can at least in part be explained by the courts’ approach to the Bill of Rights generally, and to the “due process” clause specifically. The courts took a rather cautious approach to applying the Bill of Rights which, being an ordinary statute, was not taken to “reflect a clear constitutional mandate to make judicial decisions having the effect of limiting or qualifying the traditional sovereignty of Parliament.”[31] Moreover, the prevailing view of the “due process of law” standard was that it was restricted to procedural fairness, and the “liberty” interest was undoubtedly assumed to refer only to freedom from physical restraint.   

The earliest case concerning a Charter challenge to the offence of possession of an illegal narcotic–in this case, marijuana–was the Quebec Superior Court judgement in R. v. Lepage (8 May 1989, unreported).[32] However, this case was unreported and a copy of the decision could not be found, so the reasons for the decision, including the provisions of the Charter under which the decision was made, are not available.

The British Columbia Supreme Court decision of R. v. Cholette (1993)[33] was the first case located that dealt squarely with a section 7 challenge to the ban on the use of marijuana. In this case, the accused claimed that the ban violated his right to security of the person under section 7. The accused cited the benefits which he derived from using marijuana and questioned the motivation of the government’s original decision to ban marijuana in 1923 (on the basis that it reflected anti-Asian bias and stereotyping), and its continued retention of the ban, on the grounds that there is no evidence of any significant harmful effect to society. Justice Dorgan rejected the accused’s argument and concluded that the accused had failed to demonstrate that the ban on marijuana “interferes in any real way with the right of access to medical treatment for a condition representing a danger to the life or health of the accused…”[34] 

Four months after the Cholette case, similar arguments were being weighed by the Quebec Court of Appeal in R. v. Hamon (1993).[35] This time, the accused relied on the broader conception of the liberty interest advanced by Wilson J. in Morgentaler arguing that the decision to use marijuana was a fundamental personal decision. He further claimed that, as marijuana is not really harmful to society – or, at least, no more harmful than tobacco or alcohol – the ban is arbitrary and irrational, and thus contrary to the principles of fundamental justice. Justice Beauregard, for the court, was prepared to assume that an arbitrary criminal prohibition would be contrary to the principles of fundamental justice.[36] However, the Court concluded that the ban was not arbitrary and accepted the expert evidence adduced by the government to the effect that cannabis use did have harmful effects on individual users and society.[37] Moreover, the court rejected the suggestion that there was anything unjust in the government’s decision to treat cannabis differently from tobacco or alcohol.[38] Leave to appeal this decision to the Supreme Court of Canada was refused.

In the 1997 case of R. v. Hunter,[39] Justice Drake of the British Columbia Supreme Court addressed a challenge to the prohibitions on marijuana and psilocybin under various Charter provisions. With respect to the accused’s arguments that the prohibitions violated his section 7 liberty and security of the person interests, Justice Drake summarily dismissed them, stating simply that “the two statutes contain reasonable prohibitions against certain conduct, and these are not unduly broad in their application” and referring with approval to the Quebec Court of Appeal decision in Hamon.[40]   

In the preceding cases involving challenges to the ban on marijuana (and psilocybin, in the case of Hunter) under section 7 of the Charter, the courts dismissed the arguments with little detailed reasoning. However, in two provincial courts of appeal decisions released in 2000, similar arguments were the subject of more extensive analysis.

The first of these two cases was R. v. Malmo-Levine (and its companion case of Regina v. Caine),[41] a decision of the British Columbia Court of Appeal released on 2 June 2000. In this case, a majority of the court upheld the criminal prohibition on simple possession of marijuana as being in conformity with section 7 of the Charter.

First, the Court decided that the accused’s section 7 liberty interest was engaged by the fact that the penalty for the offence provided for possible imprisonment; and that it was therefore unnecessary to decide whether personal recreational use of marijuana was independently protected as an element of “liberty.”[42]

Justice Braidwood, for the majority, then turned to the task of identifying and defining the principles of fundamental justice applicable in the case. After considering relevant common law and constitutional jurisprudence, scholarly legal and philosophical writings (in particular, those of John Stuart Mill), and law reform commission reports, the Court accepted the accused’s argument that the principles of fundamental justice as set out in section 7 of the Charter include a precept referred to as the “harm principle,” pursuant to which a person ought not to be imprisoned unless there is a potential that his or her activities will otherwise cause harm to others.[43] Moreover, this principle requires that the degree of harm involved “must be neither insignificant nor trivial.”[44] 

Recognition of the “harm principle” as a principle of fundamental justice is consistent with the assumption made by the Quebec Court of Appeal in Hamon, that a prohibition that was arbitrary and irrational would be contrary to section 7 of the Charter. 

As in Hamon, the majority of the Court in Malmo-Levine found that the prohibition was not arbitrary. Justice Braidwood, for the majority of the Court, held that the criminal prohibition on possession of marijuana satisfied the harm principle. The majority concluded that Parliament had a “reasonable basis” to ban marijuana based on the following findings concerning the health risks associated with its use: 

 

v     Impairment of ability to drive, fly, or operate complex machinery–in this regard, users represent a risk of harm to others in society as well as to themselves (however, the number of accidents attributable to marijuana use cannot be said to be significant).

v     Risk that the person will become a “chronic” user. Approximately 5% of marijuana users are chronic users; and it is impossible to tell in advance who is likely to become a chronic user. There is a risk that marijuana use, and with it the total number of chronic users, would increase if it were legalized. 

v     Increased health risks to “vulnerable persons” such as young adolescents. 

v     Risk of added costs to the health care and welfare system with increased use of marijuana (although, at current rates of use, such costs would be “negligible” compared with those associated with tobacco or alcohol use).[45]

 

Justice Braidwood then proceeded to weigh the interests of the state versus the rights of the individual, as prescribed by the Supreme Court of Canada in Cunningham, to determine if the criminal prohibition on marijuana possession struck “the right balance” between the individual and society. On the side of the individual, the Court weighed the deleterious effects on the individual and his or her family of imprisonment, and of having a criminal record. The Court also noted the disrespect and distrust for the drug laws fostered by the prohibition on marijuana possession. With respect to the state interest in retaining the ban on marijuana possession, the Court weighed the fact that it serves to minimize the harm to potential users and to society associated with cannabis use which, “however small, … is neither insignificant nor trivial.”[46] The Court also noted that, in practice, a person convicted of simple possession of marijuana can likely expect a minor fine or a discharge, unless the person is a repeat offender.[47] Nonetheless, the Court observed, the threat of imprisonment remains and, in any event, “every year thousands of Canadians are branded with criminal records for a ‘remarkably benign activity.’ ”[48] 

In the end, Justice Braidwood observed that the result of the balancing of interests was “quite close,” and that “there is no clear winner.”[49] However, he noted that Parliament is owed some deference in matters of public policy and returned to his conclusion that, although the threat posed by marijuana was not large, it did not need to be for Parliament to act.[50] The principles of fundamental justice demand only a “reasoned apprehension of harm.”[51] As this had been demonstrated, the majority dismissed the accused’s section 7 challenge to the prohibition on marijuana possession. 

In a dissenting opinion, Justice Prowse, while agreeing with much of Justice Braidwood’s analysis, found that section 7 and the harm principle required a greater degree of harm to justify a criminal prohibition than merely non-trivial or not insignificant. Because the accused was able to demonstrate the absence of evidence indicating a reasonable apprehension of “serious, substantial or significant” harm, Justice Prowse would have ruled that the criminal prohibition on simple possession violated section 7 of the Charter.[52]

The Ontario Court of Appeal decision in R. v. Clay,[53] released on 31 July 2000, dealt with almost the same issues and arguments as those in Malmo-Levine. Moreover, a unanimous panel of the Ontario Court of Appeal reached the same conclusion as the majority in the British Columbia Court of Appeal judgement released the previous month. 

In Clay, Justice Rosenberg, for the court, accepted the “harm principle” elucidated by Justice Braidwood in Malmo-Levine.[54] Justice Rosenberg noted, among other things, that the notion of a “harm principle” encompassed by section 7 would be consistent with Justice Sopinka’s statement in Rodriguez that where the “deprivation of the right in question does little or nothing to enhance the state’s interest (whatever it may be), it seems … that a breach of fundamental justice will be made out, as the individual’s rights will have been deprived for no valid purpose.”[55]

Moreover, in applying the “harm principle” to the criminal prohibition on marijuana possession, the Court came to the same conclusion as the majority in Malmo-Levine: Because there is some evidence of harm caused by marijuana use that is neither trivial nor insignificant, Parliament has a rational basis to act as it has done and the marijuana prohibition is therefore consistent with the principles of fundamental justice in section 7.[56] 

Justice Rosenberg, for the Court in Clay, noted that while the original basis for extending the ban on narcotics to include marijuana may have involved “racism” as well as “irrational, unproven and unfounded fears,” the valid objective of protecting Canadians from harm has remained constant.[57] The Court also rejected the relevance (for the purposes of constitutional analysis) of arguments and evidence showing that other legal substances, such as alcohol and tobacco, cause greater harm than marijuana: “[t]he fact that Parliament has been unable or unwilling to prohibit the use of other more dangerous substances does not preclude its intervention with respect to marijuana, provided Parliament had a rational basis for doing so.[58] The Court concluded that it did and upheld the prohibition on marijuana possession, except as it related to persons who need it for medical reasons (which was dealt with by the Court in the companion case of R. v. Parker–discussed below).[59] 

As in Malmo-Levine, the Court in Clay found that section 7 of the Charter was triggered by the possibility of imprisonment, which implicated the accused’s liberty interest. However, the Court in Clay went further and addressed the argument that personal use of marijuana per se was protected as an aspect of liberty and/or security of the person based on the expanded conception of these interests recognized by Justices of the Supreme Court of Canada in decisions such as:  B. (R.) v. Children’s Aid Society of Metropolitan Toronto; New Brunswick (Minister of Health and Community Services) v. G. (J.); and Rodriguez (all discussed above). The Court concluded that personal marijuana use (apart from its genuine medicinal use) did not engage the “wider aspect of liberty” which protected the freedom to make decisions of “fundamental personal importance.”[60] Nor did it fall within the sphere of personal autonomy, which encompassed the right to “make choices concerning one’s own body” and a right to “basic human dignity” as aspects of security of the person.[61]

The Malmo-Levine, Caine and Clay cases are currently before the Supreme Court of Canada. The cases will revolve around whether section 7 of the Charter contains the “harm principle” and the associated question of what is the appropriate threshold of harm: is it enough that the harm is “neither insignificant nor trivial” or must there be reasonable apprehension of serious, substantial or significant harm?

 

Conclusions 

Conclusions of Chapter 15

 

Ø      The cost of prosecuting drug offences in 2000-2001 was $57 million with approximately $5 million or roughly 10% of the total budget relating to prosecuting cannabis possession offences.

Ø      In 1999, it is estimated Canadian criminal courts heard 34,000 drug cases that involved more than 400,000 court appearances.

Ø      The Drug Treatment Court initiatives seem very encouraging, although comprehensive  evaluations are needed to ensure these programs are effective.

Ø      Disposition and sentencing data with respect to drug-related offences are incomplete and there is an urgent need to correct this situation.

Ø      Correctional Service Canada spends an estimated $169 million annually to address illicit drugs through incarceration, substance abuse programs, treatment programs and security measures; expenditures on substance abuse programs are unreasonably low, given the number of inmates who have substance-abuse dependence problems. 

Ø      A criminal conviction can negatively affect a person’s financial situation and his or her career opportunities, and restrict travel.  In addition, it can be an important factor in future dealings with the criminal justice system.

Ø      Provincial courts of appeal have so far maintained the constitutionality of cannabis prohibition.  They have found that because there is some evidence of harm caused by marijuana use that is neither trivial nor insignificant, Parliament has a rational basis to act as it has done, and the marijuana prohibition is therefore consistent with the principles of fundamental justice in section 7 of the Charter.  These decisions have been appealed, and the Supreme Court of Canada will soon decide whether cannabis prohibition is constitutionally sound. 

 

 



[1] Report of the Auditor General of Canada to the House of Commons, 2001, Chapter 11, “Illicit Drugs: The Federal Government’s Role”, page 12.

[2] Croft Michaelson, Director and Senior General Counsel, Strategic Prosecution Policy Section, Department of Justice, Proceedings of the Special Committee on Illegal Drugs, Senate of Canada, First Session, Thirty-seventh Parliament, 2001-02, Issue no. 22, page 54.

[3] Single, E. et. al., (1996) op. cit.

[4] Report of the Auditor General of Canada to the House of Commons, 2001, Chapter 11, “Illicit Drugs: The Federal Government’s Role”, page 4.

[5] Statistics Canada, Canadian Centre for Justice Statistics, Juristat, Justice Spending in Canada, Catalogue no. 85-002-XIE Vol. 19, no. 12, pages 7-9.

[6]  See, inter alia, the document prepared by the Canadian Centre on Substance Abuse (2000) Drug treatment courts: Substance abuse intervention within the justice system.  Ottawa: author.

[7] Patricia Begin, Director, Research and Evaluation, National Crime Prevention Centre, Proceedings of the Special Committee on Illegal Drugs, Senate of Canada, First Session, Thirty-seventh Parliament, 2001-02, Issue no. 22, page 57.

[8] Ibid., page 8.

[9] Ibid., pages58-60.

[10] Report of the Auditor General of Canada to the House of Commons, 2001, Chapter 11, “Illicit Drugs: The Federal Government’s Role”, page 15.

[11] Statistic Canada, Canadian Centre for Justice Statistics, Juristat, Illicit Drugs and Crime in Canada, February 1999, page 7.

[12] Ibid.

[13] Croft Michaelson, Director and Senior General Counsel, Strategic Prosecution Policy Section, Department of Justice, Proceedings of the Special Committee on Illegal Drugs, Senate of Canada, First Session, Thirty-seventh Parliament, 2001-02, Issue no. 22, pages 54-55.

[14] Comité permanent de lutte à la toxicomanie, La déjudiciarisation de la possession simple de cannabis, June 1999, pages 11-13.

 

[15] Dr. Patricia Erickson, Researcher, Centre for Addiction and Mental Health, Proceedings of the Special Committee on Illegal Drugs, Senate of Canada, First Session, Thirty-seventh Parliament, 2001, Issue no. 2, page 90.

[16] Paul E. Kennedy, Senior Assistant Deputy Solicitor General, Policing and Security Branch, Department of the Solicitor General, Proceedings of the Special Committee on Illegal Drugs, Senate of Canada, First Session, Thirty-seventh Parliament, 2001-02, Issue no. 22, page 10.

[17] Serge Brochu, Professor, University of Montréal, Proceedings of the Special Committee on Illegal Drugs, Senate of Canada, First Session, Thirty-seventh Parliament, 2001, Issue no. 12, pages 23-24.

[18] Report of the Auditor General of Canada to the House of Commons, 2001, Chapter 11, “Illicit Drugs: The Federal Government’s Role”, page 13.

[19] Report of the Auditor General of Canada to the House of Commons, 2001, Chapter 11, “Illicit Drugs: The Federal Government’s Role”, page 16.

[20] Correctional Service Canada, Forum on Corrections Research, Volume 13, no. 3, September 2001, page 25. Please note that possession for the purpose of trafficking is included in the trafficking numbers.

[21] Ibid. It should be noted that some offenders might be represented in more than one drug offence category.

[22] Ibid. It should be noted that some offenders might be represented in more than one drug offence category.

[23] Ibid.

[24] Correctional Service Canada, Forum on Corrections Research, Profiling the drug offender populations in Canadian federal corrections, September 2001, Volume 13, Number 3, page 26.

[25] Dr. Patricia Erickson, Researcher, Centre for Addiction and Mental Health, Proceedings of the Special Committee on Illegal Drugs, Senate of Canada, First Session, Thirty-seventh Parliament, 2001, Issue no. 2, pages 82-90.

[26] Ibid.,

[27] Alan Young, Associate Professor, Osgoode Hall Law School, Proceedings of the Special Committee on Illegal Drugs, Senate of Canada, First Session, Thirty-seventh Parliament, 2001, Issue no. 5, page 27.

[28] Dr. Patricia Erickson, Researcher, Centre for Addiction and Mental Health, Proceedings of the Special Committee on Illegal Drugs, Senate of Canada, First Session, Thirty-seventh Parliament, 2001, Issue no. 2, page 99.

[29] Patricia Erickson and Benedikt Fisher, Canadian Cannabis Policy: The Impact of Criminalization, the Current Reality and Future Police Option, paper presented an the International Symposium on Cannabis Policy, Criminal Law and Human Rights, Bremen, Germany, October 5-7, 1995.

[30] This section relies to a great extent on Drug Prohibition and the Constitution, a paper prepared for the Special Senate Committee on Illegal Drugs by David Goetz, Law and Government Division, Parliamentary Research Branch, Library of Parliament, 1 March 2001.

[31] R. v. Therens, [1985] 1 S.C.R. 613, at page 639, per Le Dain J.

[32] Bruce A. MacFarlane, Robert J. Frater and Chantal Proulx, Drug Offences in Canada, Aurora, Ont.: Canada Law Book, 1996 (rev. November 2000) (loose-leaf), pages 4-27.

[33] [1993] B.C.J. No. 2616.

[34] Ibid., at para. 9.

[35] 20 C.R.R. (2d) 181, [1993] A.Q. no. 1656.

[36] Ibid., at p. 183 C.R.R. and para. 14, [1993] A.Q.

[37] Ibid., at p. 183-84 C.R.R. and paras. 17-20, [1993] A.Q.

[38] Ibid., at p. 185 C.R.R. and paras. 22-26, [1993] A.Q.

[39] [1997] B.C.J. No. 1315.

[40] Ibid., at para. 15.

[41] [2000] B.C.J. No. 1095. 

[42] Ibid., at para. 69.

[43] Ibid., para. 134.

[44] Ibid., para. 138.

[45] Ibid., para. 142.

[46] Ibid., at para. 150.

[47] Ibid., at para. 153.

[48] Ibid., at para. 155.

[49] Ibid., at paras. 155 and 156.

[50] Ibid., at paras. 156 and 158.

[51] Ibid., at para. 158.

[52] Ibid., at paras. 165 and 167-86.

[53] (2000), 49 O.R. (3d) 577.

[54] Ibid., at paras. 28-31.

[55] Ibid., at para. 31. 

[56] Ibid., at paras. 34 and 37.

[57] Ibid., at para. 34.

[58] Ibid., at para. 36.

[59] Ibid., at paras. 37 and 38.

[60] Ibid., at para. 13.

[61] Ibid., at paras. 14-18.


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