Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 3 - Evidence
Ottawa, Thursday, March 28, 1996
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-8, respecting the control of certain drugs, their precursors and other substances and to amend certain other Acts and repeal the Narcotic Control Act in consequence thereof, met this day at 9:30 a.m. to give consideration to the bill.
Senator Sharon Carstairs (Chair) in the Chair.
[English]
The Chair: I call to order the meeting of the Standing Committee on Legal and Constitutional Affairs which is considering Bill C-8. We will hear this morning from the Canadian Bar Association and also from the Criminal Lawyers' Association of Ontario. It is my understanding that we will hear first from Tamra Thomson, Director, Legislative and Law Reform. We will then hear from John Conroy, Chair, Committee on Imprisonment & Release. Then, from the Criminal Lawyers' Association, we will hear from Irwin Koziebrocki, Treasurer.
Please begin, Ms Thomson, with the caveat that we hope that your presentations will leave us plenty of time to ask questions.
Ms Tamra Thomson, Director, Legislative and Law Reform, Canadian Bar Association: Thank you, Madam Chair. The Canadian Bar Association is pleased to be here. This is our first appearance before this committee since you have become the chairman of it. We wish you all the best in your new task and look forward to working with you.
The Canadian Bar Association is a national association representing over 34,000 jurists, including lawyers, notaries, law teachers, students and judges from across Canada. It is with pleasure that we appear today on behalf of the Committee on Imprisonment & Release of the National Criminal Justice Section of the association.
The National Criminal Justice Section has more than 1,200 members representing both defence and Crown counsel. The primary objectives of the Canadian Bar Association include the improvement of the law and the administration of justice, and the comments that we make to the Senate committee today are made in that context.
I will turn the floor over to Mr. John Conroy, who is the Chair of the Committee on Imprisonment & Release, and ask him to make the substantive remarks on the bill.
Mr. John Conroy, Chair, Committee on Imprisonment and Release, Canadian Bar Association: The legal profession is often much maligned. As you have just been told, we consist of prosecutors, defence counsel and judges. We are very much involved in the prosecution and defence of people charged with offences which arise under this type of legislation. In the materials we have given you are a letter from the Bar Association and the brief we submitted in May of 1994, when this bill was called C-7, as well as some additional materials which we have attached for background information. There are two articles; one by the American Bar Association and a document by Zimmer and Morgan, "Exposing Marijuana Myths: A Review of the Scientific Evidence". That goes up to October of 1995.
We took the position in our previous brief that this legislation is continually heading in the wrong direction, that it will result in more criminalization and incarceration rather than focusing on harm reduction. We submit that it is in the public interest to take the harm-reduction approach rather than the criminalization approach. It will mean, of course, less work for lawyers if we are successful in convincing you that that is the direction in which we should go. We believe that it is in the public interest to move away from the approach we have had for the last 73 years.
In our materials, particularly the May, 1994 brief, you will see many statistics showing, first, that the Bar Association has been on record since 1974 as being in favour of a heroin maintenance type of model, which is a harm-reduction model. We have been in favour, since 1978, of decriminalization of simple possession of marijuana, cultivation and non-profit transfers for personal use. We have taken this position for a long time.
Recent statistics show that the great majority of people convicted of drug offences are convicted of simple possession. In 1990, 50 per cent of the people convicted were convicted of simple possession of marijuana, and 33 per cent of them went to prison.
In addition, we have discovered that surveys done of Canadian users show that there are a large number of users but that a very small percentage of users are charged and convicted, so there is a very unequal application of the law as well. The American statistics show that the situation is even worse there.
We submit that it is folly to continue in the present direction. We submit that you should be listening to people in the field, not only members of the bar but also police forces.
You will see that in our May, 1994 brief we have quotations from a number of former drug agents, both from Canada and elsewhere, as well as a quotation from the chief of police in Ottawa. People who have been working in the field are saying that this continued approach does not work; it is doing more harm than good; rather than using the criminal law to deter people from use, we should be focusing on the harm that can be caused by individual drugs and on trying to look at that from a health and social policy perspective in terms of reduction of harm.
This is what has been occurring in many European countries, particularly the Netherlands, but also in various projects in England, Italy, Spain and Germany. It appears to be working in the sense that they do not have a number of the problems that we have.
I should like to touch on one point on which we focus in both our letter and our brief, and that has to do with the issue of criminal records. I know this has come up a number of times.
With regard to the clause of this bill dealing with possession of marijuana under 30 grams, it has been said that because it is a summary-conviction-only offence, offenders will not be subject to the provisions of the Identification of Criminals Act. They will not have to be fingerprinted and photographed and, therefore, it is said that they will not get a traceable criminal record. This is wrong, in our view. The Criminal Records Act still applies. A person still gets a record. It is hard to imagine that someone at the border, on being asked if they have a record, would lie about it, or that counsel in court, on being asked by the court whether their client has a record would say, "No traceable record, Your Honour." Either you have a record or you do not have a record.
Governments have tried now three times to decriminalize marijuana in the sense of removing criminal records. In 1972, the Trudeau government, following the Le Dain Commission recommendations, introduced absolute and conditional discharges and represented this as a way that people would not get criminal records. Of course, the Criminal Records Act still applied and many provinces quickly amended their legislation to ensure that if a person got a discharge, they still got a record; so that did not work.
In 1975, the Trudeau government introduced Bill S-19. When that came before the Senate, the Senate amended that bill. That bill had provided, as does this one, that simple possession would be a summary-conviction type of penalty. In fact, it was only summary conviction. This bill still has an indictable section.
The Senate sent back an amendment so that if a person was given a discharge for a summary conviction plea or finding of guilt, they would be deemed to be pardoned under the Criminal Records Act. That bill died on the Order Paper, so it never became law either. That was the second attempt to try to decriminalize, even though it was not really decriminalizing, because again the Criminal Records Act would still apply.
Now there is the attempt here under Bill C-8, which we note contains the same old summary conviction penalties that have applied for many years. We wonder why we are still going in this direction so many years later. We are not reflecting penalties that are actually being applied or close to what is actually being applied by the courts and by the police.
While legislation had been very severe starting in 1961 and most of the amendments thereafter have been ameliorating legislation, especially in relation to simple possession, the rates of use, at least in relation to marijuana, peaked around 1979 and started to decline. They have only very recently, in 1990, started to rise again. There does not seem to be any relationship between the rates of use and the penalties the law provides, whether they are severe or seen to be lessening. The user rates are affected by different factors.
It is important that this bill does not deal with people who have been convicted in the past and have criminal records. It is completely silent about that. There are many Canadians who still suffer considerable disabilities as a result.
I should like to tell you quickly about one case which was brought to my attention recently, the case of a Billy Morash. He met a woman in the United States when he was working down there. They fell in love and decided to get married. Shortly before they got married, there was the Reagan/Bush change in approach, providing for zero tolerance. After many visits to the States, on one occasion he was stopped and refused entry because he had pled guilty many years ago, in 1978, to simple possession of hashish. He had not retained counsel but instead had represented himself, and he received a $100 fine. He has, ever since 1991, I believe, been banned from entering the States. His wife lives in Albany, New York, and has a thriving medical practice. She visits him on weekends. They just had a baby in July. This family is now kept apart simply because of the present American attitude regarding simple possession of marijuana.
There is a search for a remedy for this situation, and it is very convoluted and complicated. He has obtained a pardon, but that is not good enough for the United States. There is some suggestion that if he had a discharge, that might be sufficient. Must he get his pardon revoked and appeal this very old case and try to get in front of the courts to get a discharge so that the family can come together? It seems to us, with respect, to be a very disproportionate burden resulting from this very old offence. We ask you to take that into account.
One of the justifications for this bill that is often put forward is that we need to comply with our international obligations. It is our submission that Canada should take a leadership role and withdraw from many of these international treaties. We should follow the lead of some countries in Europe rather than the American pressure in terms of their war on drugs.
We should have a made-in-Canada policy that is a true harm-reduction policy. There are provisions in our international treaties, particularly in the 1988 convention, and more particularly with respect to simple possession, that allow governments, subject to their constitutional limits or constitutional powers, to provide for approaches to drug use that do not involve prohibition and conviction but do involve education, rehabilitation, attempting to reintegrate people, and things of that nature. These are much more constructive approaches than the use of the criminal law.
We are giving you a very broad position in relation to this bill, but we say that the old approach simply has not worked over the years and that one should take a different approach. We ask you to consider the approach taken with regard to tobacco products. Canada has been quite effective in using a non-criminal-law approach to educate people to reduce tobacco consumption, and we hope that efforts aimed at reducing advertising, discouraging use, and so on will continue. That approach could equally be applied in the drug area, without having to resort to the criminal law.
I should now tell honourable senators some specific concerns we have in relation to the bill. We note that in clause 4, dealing with possession of a Schedule II substance, even though it is very rare to charge anyone with simple possession of cannabis on indictment, the penalty has been reduced from seven years to five years less a day. While we are greatly in favour of reductions in penalties for this type of offence, one cannot help but note that this amendment will have the result of simply taking away the right to a jury that is provided in the Constitution if there is a penalty of more than five years.
We wonder if the government is becoming opposed to rational, informed juries. Under Bill C-42, many Criminal Code offences were hybridized in order to allow the prosecution to elect to proceed summarily. The penalties in summary conviction offences have been increased so they are very close in some cases to what they are on indictments, so the Crown will inevitably proceed that way. It has the effect of taking away a person's right to a jury. For economic reasons, to save costs, we seem to be getting rid of the jury rather than increasing the public's involvement in the criminal justice system. We say that we should not have fewer juries, but more.
We also note that for some reason, in clause 4(6), which relates to Schedule III drugs such as amphetamines, LSD, and barbiturates, the maximum penalty is three years. We wonder why maximum penalties for drugs of that kind, which have traditionally been considered more serious in terms of harm or potential for harm, are less than those provided for marijuana, which is considered to be the most benign.
We submit that the whole approach is wrong. We should be looking at decriminalization. We should be looking at heroin maintenance types of models and other approaches that are more effective, and focus on treatment and health. We submit that a thorough review of this whole area, and a consideration of each particular drug, should take place before this bill is passed. Thank you.
Mr. Irwin Koziebrocki, Treasurer, Criminal Lawyers' Association of Ontario: Madam chairman, I represent the Criminal Lawyers' Association. We are an association of lawyers who practice mainly criminal law in the Province of Ontario. We have approximately 1,000 members. As part of our function, we comment on proposed legislation. On a number of occasions, we have appeared before the Senate and the House of Commons, and we have had consultations with the Department of Justice with respect to proposed criminal law legislation.
I am on the executive of that association. I hold the position of treasurer, and I am also the chair of the legislation committee. I have practised criminal law for approximately 20 years, in the first part of my career as a Crown counsel with the Crown law office, criminal, Ministry of the Attorney General, and latterly, in private practice as a defence counsel.
The Criminal Lawyers' Association recognizes the purpose of this particular act, which is, as we see it, a consolidation of the present law with respect to narcotics and controlled drugs. We concur that there is a need for consolidation, given the various existing acts. We also understand that it was not intended in Bill C-8 to undertake a review of drug legislation, nor to undertake a study of the propriety of such legislation and the social policy involved, although we, as does the Canadian Bar Association, feel that it is appropriate that that kind of review take place.
It may well be that it ought to be reviewed prior to the passing of this legislation, but I would expect that would be wishful thinking in these circumstances.
Having said that, in our view, important issues arise from this legislation by the very nature of the categorization in the proposed legislation and the various powers given to both the police and the courts, some of which may raise issues of charter violation.
With respect to the issues of classification of substances and the penalties they attract, there appears to be some attempt in this legislation to define the seriousness or severity of certain substances. Classification, in our view, must be based on the degree of harmfulness of the substance being considered. There is no question that there is a harmful effect from drugs such as opiates and cocaine. They require severe sanctions to protect the community. With respect to drugs such as marijuana and hashish, there is a real question as to their harmful nature. One must question the continued criminality of simple possession of small quantities of those substances for personal use.
Another matter that is of importance in this particular legislation is the apportionment of penalties. For example, why does trafficking or possession for the purpose of trafficking of three kilos of marijuana merit a maximum of life imprisonment similar to that of heroin or cocaine? I venture to say that you will never see a case where trafficking in marijuana merits life imprisonment. There appears to be some issue here of classification based on the harmfulness; therefore, there must be a reconsideration of the type of penalties imposed.
The Criminal Lawyers' Association suggested in its submission to the House of Commons that the nature of liability be changed with respect to marijuana and hashish possession in small quantities. The community is concerned that young people are involved in this particular situation. It would appear that they are not particularly deterred by the laws that criminally prohibit the possession of marijuana. The end result is that there may be a dramatic effect on their future with respect to a conviction for possession of marijuana in small quantities. It will clearly affect their future employment. It may well affect their ability to enter professional schools. It may well affect their ability to enter certain professions, such as policing. It would be rather difficult for a young man or woman who decided at some point in their lives that they wanted to go into policing to enter that profession having been convicted for possession of marijuana as a youthful experiment. As we have heard, it can result in tremendous restrictions on one's ability to travel.
Since it appears that the government wishes to differentiate between various drugs - for example, by changing the marijuana aspect of the substance abuse sections to provide for a summary conviction offence - one would also have to consider whether there are other ways of avoiding criminal conviction.
The House of Commons passed an act called the Contraventions Act, although it has not been proclaimed. It allows contraventions which are not defined as criminal to be treated in such a way that they are ticketed offences. In other words, they can result in a fine; but it is made quite clear that they are not criminal contraventions. That is a way for Parliament to recognize the fact that there is a difference between one substance and another, and to indicate that there will be some kind of liability for the use of the less harmful substance. However, it will not have the same criminal law effect as a contravention of the Criminal Code or criminal substance legislation.
It appears that marijuana is not foreign to young people. Walking through the Rideau Centre yesterday, I passed three young people who were openly discussing the merits of smoking a joint. Last week, I asked my son - who goes to a reputable school in Toronto - if he could obtain this type of substance. He told me that it was very easy to do so if one was so inclined. In big centres such as Toronto, we are not seeing marijuana charges being laid anymore, whereas I suspect that if you go to smaller centres, you may well see marijuana charges being laid. There appears to be a differentiation in various areas as to how this particular offence is dealt with by the authorities. In Toronto, it appears that they have what they might consider to be better things to do with their police officers. That is a matter that I suggest you address.
Certain sentencing principles are set out in clause 10 of the proposed legislation. There is a statement of principle, which is clearly meritorious. However, in clause 10, there is no recognition that addiction is an illness. I think you should take cognizance of that. There is a list of aggravating factors, yet there is no list of mitigating factors. One would think that an accused addict's need for treatment might well be a factor that would mitigate a penalty. Those are matters you ought to address.
There are certain matters regarding search and seizure which I wish to address. Although Bill C-8 appears to be a consolidation of many provisions of the Narcotics Control Act and other legislation, there appears to be an expansion of certain rights and powers of police officers and courts in this bill at the expense of individual rights and liberties.
If that person has done nothing wrong, if that person is in lawful possession of whatever goods we are talking about, and the court finds that it is appropriate to return those goods to that person who is innocent of any criminal wrongdoing, and if there is no other reason to keep that property, then why would you impose upon an innocent person some form of recognizance and put him or her on conditions such that, if at some point in time that recognizance is breached, that person effectively commits a criminal act under the Criminal Code and could be convicted of such and have a criminal record for something that is absolutely lawful? Why, with respect to this substance legislation, would you have that kind of provision, when it is not in the Criminal Code? There should be no difference in terms of how you treat this type of property.
Those are the types of things that you ought to consider. There are some other issues, but those are the highlights which I wish to address. Thank you.
The Chair: Thank you very much.
Senator Beaudoin: I am always pleased to see the Canadian Bar Association before this committee. It is imperative because we deal with the Criminal Code, the Constitution and so on. I am also pleased to see the Criminal Lawyers' Association represented.
I have one question on the Charter and one on the division of powers. With regard to the Charter, you raised some points about some clauses in the act. We have many cases before the Supreme Court on this and we must dig into this more deeply.
I understand that the Canadian Bar Association is satisfied that the Department of Justice has issued a certificate saying that this bill does not violate in any way the Charter of Rights and Freedoms. Perhaps I should ask this question of the Minister of Justice or of officials from the Justice Department. However, what is your general reaction to that? You did not pinpoint any possibility.
Mr. Conroy: We agree with the Criminal Lawyers' Association that there are many clauses of the bill which will probably run afoul of the Charter. We have not prepared a detailed submission for you that picks apart the search and seizure provisions. We think that the search and seizure provisions are unreasonable.
I understand that there is a clause in the bill pertaining to marijuana growers with regard to fortified drug houses. If they modify a house in some way to grow marijuana and are convicted - again we take a page out of the American book - they will forfeit their house and land for doing so. That does not happen with regard to heroin or cocaine, or if you murder or rape someone in your house. However, if you grow marijuana, you may lose your property. We think such measures are Draconian and disproportionate. We do not say that this bill complies with the Charter of Rights, but we are more concerned with the overall thrust of it. That is why we take a much broader position before you.
Senator Beaudoin: I am sure that my colleagues will come back to this very important point of whether it goes against various sections of the Charter.
My second point is the division of powers. You say it falls under peace, order and good government. That may be true, but it is also criminal law, so it is covered by section 91.27. I do not see in your very good presentation reference to the Hauser case regarding peace, order and good government. You relied mostly on the tobacco case, which is, of course, the more recent one.
Mr. Conroy: In our first brief we did not yet have the Supreme Court of Canada decision in MacDonald, the tobacco advertising case. That decision of November of last year summarizes quite nicely the issue of division of powers. It is our view that this really falls under health. We know there is no clear head under section 91 or 92 dealing with health, and that both the federal government and provincial governments play a role in health. However, at the moment, narcotics legislation has been upheld in Hauser. We say that there is nothing that has reached that sort of national dimension to warrant the use of peace, order and good government. The Supreme Court of Canada has said this. They looked at Hauser and said that if that issue came before them, they would likely find it to be criminal law, not peace, order and good government. If you jump ahead to MacDonald, it seems to be clear that criminal law is not passed in a vacuum. There must be some issue of public order, public health, public security, or something affecting the rights of others, to warrant the use of the criminal law. There must be some significant public health issue to warrant federal jurisdiction in this area.
There are far more significant harms documented from the use of tobacco and alcohol than from any of the drugs that are dealt with in this legislation. One must ask why it is that the province has such a big role in those areas and not in this area. There is a total inconsistency or hypocrisy in the approaches to the legislation.
It is hard to determine exactly where the dividing line is between federal and provincial powers on an issue such as health. If this bill did decriminalize the personal use of a number of substances, then arguably the provinces could consider them from a health perspective, and we submit that would be the appropriate approach.
Senator Beaudoin: Just for the purpose of the record, I am not too worried about the question of the division of powers in this case. I think the Parliament of Canada has the right to do this. I am a little more worried about the Charter, but that is another point.
On the division of powers, of course health is provincial. It is a priority. There is no doubt in the world about that. However, there is no doubt also that the control of narcotics is under federal authority under peace, order and good government, and also under section 91.27. I am not too worried about the question of the division of powers. If it is decriminalized, then it comes back to the provinces, to a certain extent. I shall just say, for the purposes of the record, that because of the Hauser case, the control of drugs comes under peace, order and good government, but the crimes also come under federal authority under 91.27. On the whole I do not see much of a problem here in that particular field.
Does your recommendation at page 13 still stand, that we identify all substances to which the prohibitions will apply?
Mr. Conroy: Yes. In the earlier version of the bill - and I think it is carried over into the new version - it was provided that substances similar to various substances defined in the act could suddenly be included. Our concern was that if you are going to prohibit something under pain of deprivation of liberty, people are entitled to know beforehand what substances are prohibited. We cannot have a situation where something is suddenly held to be so sufficiently similar to the other substances that it becomes illegal. The principle of legality requires us to know ahead of time what we can and cannot do. We are saying there that you must specifically identify those substances ahead of time.
Senator Beaudoin: I agree with that.
Senator Jessiman: Mr. Conroy, you are here on behalf of the National Criminal Justice Section of the Canadian Bar Association. Does the Canadian bar, its executive or its membership, back this as well? Are you representing here just your section, or is it the executive of the bar? Do they agree with what you are saying? Does the entire general membership agree?
Ms Thomson: The brief outlines a number of things that have been endorsed by the council of the Canadian Bar Association, which is essentially the parliament of the association. In addition, there are specific things that are endorsed by the criminal justice section. However, in making a public statement, any of our individual sections must have that statement reviewed by the legislation and law reform committee and by the executive committee of the association.
This statement has been approved by the broader group as a statement of the criminal justice section.
Senator Jessiman: Have you ever mentioned at a general meeting this particular question about whether you should be able to buy marijuana or hashish?
Ms Thomson: Yes. In the general meetings of the council, indeed there has been a resolution passed calling for decriminalization of possession of cannabis.
Mr. Conroy: In 1974, there was heroin maintenance. It has been a position of the bar for a long time.
Senator Jessiman: Have you ever been able to convince any of the Attorneys General of any of the provinces?
Mr. Conroy: There are often public statements made, particularly at election time, that, yes, we are going to decriminalize, but inevitably, once the election is over, there are other more pressing priorities.
It seems that, because of the media hype and the emotion generated by such things as that old movie Reefer Madness and so on, people have a problem of not wanting to be the ones who are responsible for taking the next step. That is why we see attempts to ride the horse in both directions, to decriminalize but not decriminalize. The experts in the field who work with drugs and drug users say that this is crazy and that we should take a different approach. We are going the wrong way.
You are right: We have not been able to convince politicians to make change.
Senator Jessiman: What about the American bar? I know the American politicians are dead against decriminalization. They are spending billions of dollars in their war on drugs.
Mr. Conroy: We know it is not a government policy that initiated this legislation. It came from the bureaucracy.
We understand that, due to American pressure, different countries sign these conventions. The Americans spend a lot of time trying to get everyone to pass domestic legislation that fits with their war on drugs. No doubt they see Canada as being a weak link in North America in terms of their policies. The enormous influence of the United States and the huge media issue form part of the problem in terms of trying to take a different approach.
Senator Corbin: I should like to keep in focus the objective of this bill, and that is for Canada to conform to the international conventions of which it is a party. That should be first and foremost in our minds. Many witnesses have departed from the basic purpose of this legislation to go into areas and concerns which are certainly not illegitimate and should be raised somewhere and sometime.
Is it your feeling that the international conventions are passé and that we should go back to the drawing board? Some of them date back to 1961. Who knows how many years before that they put their heads together. Is that really part and parcel of the problem?
In the same breath, can there be adequate control, not necessarily world-wide but certainly among the signatory parties, if one goes one way and one goes the other? You seem to emphasize that we are being pushed around mainly by the United States. We were given evidence that the Home Office in the United Kingdom has also expressed concern that Canada is a conduit used by clandestine labs to manufacture illicit substances.
Putting aside some of the general end-of-the-century concerns about this tough debate, what do we do about the international conventions? Do we scrap them and start all over again? What is your preferred approach to the world-wide problem?
Mr. Conroy: We say you should withdraw from them. If you do not withdraw from them, looking at the most recent convention, the 1988 convention, you can still come up with non-criminal, non-prohibitionist approaches even within the convention because it is subject to the constitutional limits of a particular country. If we exercise our health powers, as we have done with other substances such as tobacco and alcohol, we can get around these conventions. We understand that the conventions are often mentioned, in the sense that we have signed them, so we should comply with them. We say we should withdraw. They are out of date. They do not fit with the Canadian reality and they continue this folly of making things worse.
The Netherlands is a signatory to many of these conventions. They were subject to complaints from many of their neighbouring countries, who felt that the Netherlands were too open and therefore there would be this massive problem. The Netherlands effectively decriminalized personal possession. They left the law on the books but do not enforce it. They have taken the "coffee shop" approach. People would be in these coffee shops where they cannot get alcohol, and would be away from areas where they could get heroin or cocaine or be exposed to other hard drugs. We know that while use went up there, it is not anywhere near the rates in countries, including Canada and the United States, where there is a prohibitionist approach.
In 1961, when we signed the single convention, marijuana use was not a big issue in Canada. It was not until 1966 that it took off. It went from something like 2,000 convictions per year to 40,000. The hard, tough approach that we were required to follow under the 1961 convention had no effect whatsoever in terms of discouraging use. It was exactly the opposite.
Why are we continuing to do this? We say Canada should withdraw and look at what the Europeans are doing. They are managing either to work within the conventions to come up with non-prohibitionist approaches or to withdraw from them. We say we should do the same thing.
Senator Doyle: Mr. Conroy, could you refer me to any substantial research that has been done or prognostications that have been made about what the consequences might be if we chose the path you have recommended? How would we expect our American cousins to respond? How would we expect our own crime rates to be affected here in Canada? What would the outcome of it be? We have had a long time to think about this. Surely someone has been doing some research.
Mr. Conroy: I do not know of any specific research that has been done specifically in terms of impact or reaction from the United States. Certainly there are large groups in the United States that would probably applaud.
Certainly the U.S. Drug Policy Foundation and others working with that foundation in terms of the harm-reduction approach would be happy to see Canada or some other country finally stand up to what we would say is an incorrect approach and look at it from a harm-reduction perspective. However, I am sure the American government would not be happy if Canada took that position. I do not know if we need any research into that, given their position. I am sure they would have quite a reaction. They have chosen to go down this path. Seventy per cent of federal prisoners are in jail because of the war on drugs, and the great majority are black. In the United States, one in every three young blacks between the ages of 18 and 25 in the United States are under some kind of correctional supervision because of the war on drugs. We know that their approach will lead to further massive problems down the road.
Senator Doyle: Are you suggesting that we might anticipate something along the line of a no-trading-with-Cuba reaction from the U.S. government?
Mr. Conroy: We have so many different relationships with the United States on so many different issues that it is hard to predict whether they will treat this one as a Cuban type of situation or an Inside Passage type of situation in B.C. I suppose that is possible, but hopefully we would exercise our sovereignty and show the Americans that we can adopt an approach to drugs that will reduce the harm and the problems that come from drug use. They will be able, then, to look at us and see that we were right and they were wrong.
Senator Pearson: Many of us are interested in the international implications. We presume that it is helpful to have some agreement on hard drugs, and it is useful to make the distinction between soft drugs, such as marijuana, and hard drugs. However, I am curious about these international conventions. You imply that they were pushed by the Americans. Has any country withdrawn from a convention after signing it? Are the conventions under the United Nations?
Mr. Conroy: They are United Nations' conventions, but I cannot give you an example of a specific country that has withdrawn. I think the Netherlands is still a signatory to many of them, even though it takes a different approach. I cannot tell you definitely, but we should look at what is being done in Spain, Italy, Germany and Switzerland. They are grappling with this problem as well. They are taking a different approach and moving in a different direction. I have not heard that the United States is taking a parallel Cuban-trade type of approach in reaction to what the Europeans are doing. The Europeans are clearly moving in a different direction.
You mentioned hard drugs versus soft drugs. I wish to make the point that the best arguments around are that we should come up with a different approach to heroin. We have historically seen this on the West Coast in greater degrees than perhaps elsewhere.
Senator Jessiman: And cocaine.
Mr. Conroy: Yes, but heroin in particular. It is such a powerful addiction for some people that they go to almost any lengths to get it. We know that a harm-reduction, heroin-maintenance approach - the old medical model from England - is far more successful in reducing the crime and health problems that result from abuse of that drug. There are good arguments for a totally different approach to heroin than perhaps the more popular soft drugs, such as marijuana. We do not say that you should still take this hard-line approach to what would be classified as hard drugs. We know that we can reduce the harm to the public and to individuals and their families by taking it out of the criminal culture, which prevents us, in many cases, from properly getting to the bottom of the problem and trying to solve it.
Senator Milne: Your brief has been very persuasive. I hesitate to ask a criminal lawyer this question, but I should like to know whether you feel this bill offers the Crown useful tools in plea bargaining?
Mr. Koziebrocki: The advantage in terms of plea bargaining is that there appears to be, more so than in the past, a differentiation between an indictable offence and a summary conviction offence. The parameters of summary conviction offences, in some cases, have been expanded. I think it would be a useful tool for a prosecutor to use, in the sense that someone who is prepared to plead guilty is more likely to plead guilty if it is a summary conviction offence than if it is an indictable offence. In that respect, once you expand the parameters of the summary conviction offences, the Crown feels less constrained to proceed in that way, in the sense that they know that their sentencing provision is broader and that they can ask for a wider range of sentencing. From a prosecutor's point of view, I would agree that this is a useful tool. From a defence counsel's point of view, it is a useful tool to some extent, when they wish to resolve matters of this type.
Mr. Conroy: If you look at the American approach, to the extent that there are heavier penalties - such as forfeiture of assets - a great many people plead guilty to avoid or to reduce the Draconian penalties. The Crown can say, "If you plead guilty, we will not take your house and property." The incentive is there for the person to plead guilty even if they may not be guilty. That is what is happening in the United States.
Senator Milne: Could you tell me more about this Contraventions Act? You say that it has been passed but not proclaimed. Why not, and when was it passed?
The Chair: A new Contraventions Act has been re-initiated in the House of Commons. Apparently it will go through first, second, and third readings on Friday and will come to us after the Easter recess. I do not know whether that is the same bill that was referred to earlier. I cannot tell you. I have not seen the legislation.
Mr. Koziebrocki: This was a 1992 act. My recollection is that it has not been proclaimed. I presume that what we are talking about is something very similar. We will have to wait until after Easter.
Senator Lewis: I would like to address clause 31. It deals with inspectors being appointed by the minister to enter premises. Under the definition section, "practitioner" is defined as "a person who is registered and entitled under the laws of a province to practise in that province the profession of medicine, dentistry or veterinary medicine, and includes any other person or class of persons prescribed as a practitioner." I presume "prescribed" refers to regulations. We realize that there will be regulations under the act, but we do not know what will be in those regulations.
Yesterday, we heard from representatives of the medical profession who expressed great concern with respect to clause 31. They have the feeling that it will adversely affect medical practitioners. When we look at this, it seems to me that it probably does not deal with that type of situation because it gives the right to an inspector to enter premises, presumably used for the purpose of conducting the business or professional practice of any person licensed or otherwise authorized under the regulations to deal in the controlled substance. Subclause (c) contains an exemption concerning the records of the medical condition of the persons involved.
You may not have had time to consider this matter carefully, and we do not know what will be in the regulations. However, it seems safe to presume that what is probably in mind is that under the regulations there will be people licensed or authorized to deal in a controlled substance. We do not know what "deal" means either.
Mr. Conroy: Would that not include all medical practitioners?
Senator Lewis: It could. That is what I am wondering. Yet, it does not state specifically "practitioner".
Mr. Conroy: I expect that it would include all medical practitioners.
Mr. Koziebrocki: As well as pharmacists.
Senator Lewis: Yes, that is right. This will really be restricted to those persons who become licensed or authorized under the regulations. In other words, if it did not have that qualification, it would apply to everyone. It seems to be restricted to those people whom they may in the future license.
Mr. Conroy: It seems to be clearly restricted to those persons conducting the business or professional practice who are licensed or otherwise authorized under the regulation. There will have to be that step before the section applies.
Mr. Koziebrocki: If the scheme of the legislation is to make illegal the possession of certain substances and then to allow for exemptions under the act, then you have to have some way of regulating those exemptions. This is one the ways you will do it.
Senator Lewis: We are talking about this when we do not even know what will be in the regulations.
Mr. Koziebrocki: I expect that you will find pharmacists, doctors and people of that ilk in the regulations.
Senator Lewis: There may be others.
Mr. Conroy: If this bill goes through, hopefully, there will be something more in the regulations to allow practitioners, particularly those in the medical profession, to use these drugs in a positive and therapeutic manner. There is nothing in the bill that seems to deal with that, which, in our view, is another defect.
If we are putting in new legislation to deal with new drug policy, then why do we not have that in it? The regulations in the Narcotic Control Act provide - or at least they used to - for a medical practitioner to be able to prescribe a narcotic where it was medically necessary. I think they still had to be licensed or authorized similarly to deal in it before they could do so.
The Chair: I believe Dr. Armstrong explained that very carefully yesterday when he said the very fact that he has a licence to practise medicine is also a licence to administer drugs, including narcotics.
Mr. Conroy: Was he saying that he could prescribe, for example, marijuana to an AIDS patient today?
The Chair: No. He was dealing with palliative drugs, including morphine, which he has a licence to administer as a practising physician.
Mr. Conroy: We often hear of people who really want to get marijuana because of its anti-nausea effects, in terms of AIDS or cancer. I have had a number of people approach me about that. The big problem is the inability to get a legal supply and a reluctance on the part of the medical profession to prescribe it for fear of what will happen to them if they do so.
The Chair: That is partly because the medical profession itself has not made the decision that these drugs are beneficial.
Mr. Conroy: Last fall, the association which represents professional health care givers in the United States passed a major resolution supporting the decriminalization of marijuana for therapeutic and medical uses. Many members of our medical profession are members of that association. It is an international organization. As I understand it, the evidence from the experts is quite clear. There are a number of very significant therapeutic uses for marijuana.
Senator Lewis: I am fascinated with the words "to deal in". It does not say "who has possession" but "to deal in". It almost sounds as though we are not concerned about whether you have it but only if you deal in it in some way. It refers to people who conduct a business or professional practice.
Senator Milne: Is prescribing considered dealing?
Senator Lewis: Perhaps the regulations will explain that.
Mr. Conroy: They often give the broadest definition so that we can refine them in the courts later.
Mr. Koziebrocki: You mean expand upon them.
Senator Corbin: The French text is extremely clear. It states "vente et commerce". It has nothing to do with the practice of medicine at that point.
Mr. Conroy: Arguably, prescribing is not dealing because you are not getting paid for it. The pharmacist gets paid, although I suppose it is still commerce.
The Chair: There are some areas of the country, however, in which the doctor is also the pharmacist. I can give you examples of cases in northern Manitoba where the nurse is the pharmacist. Again, it can become a more complex issue in remote communities than, perhaps, in our urban communities.
Senator Lewis: I have the feeling that it is not aimed at that but at drug dealers per se.
Senator Bryden: I should like to compliment the bar on the forward-looking and creative approach that you have developed over the years as a professional association. It is very rare that, as a lawyer, I get the opportunity to compliment my own profession because we are much maligned. This is my first opportunity since becoming a member of this committee to look at the policy of the bar in this regard. It is innovative and courageous.
From what you have said, you have been working on this matter since at least 1974. Obviously, you are far from winning the day on it. My question is this: In a society which, to me at least, appears to be increasingly law-and-order oriented, how does a government take initiatives in an area such as this? Do you have any suggestions for us? How do we prepare the ground so that the government, without getting thrown out of office as having gone off the deep end, introduce legislation or take an approach that would reflect what you are suggesting here?
Mr. Conroy: I think we have a systemic problem in our society. That is to say, most of us get our information about these issues from the media, whether it is the print media or the television medium. Inevitably, and understandably, the media focus on unusual and exceptional events. Therefore, we get a steady diet of unusual and exceptional events and many of us then start to think that that is the norm, the routine, the mundane. It is those events which start to drive public policy or prevent public policy from moving forward. After all, it often takes only one event in the criminal justice area to set back approaches for many months or many years. I think that is part of the problem.
However, to a great degree, we have been successful in the courts and with the police. While the law has gone along this route since 1923, and in particular since 1961, what has been happening in practice in the courts is a reduction in penalties. For marijuana, you will normally get a discharge, a $100 fine or something of that nature. The police and the courts have been moving in this direction while the government has been going in the opposite direction. I think this is particularly so because of the Americans and the big fuss they have made. Other than going to public surveys and trying to get a good idea of what the public wants or is prepared to accept, it is difficult to act in a political manner.
Again, I think it just takes courage or standing up to countries like the U.S., as the Netherlands did. Certainly, what they did was not popular. Many other countries worried about what would happen in terms of their own situations.
My understanding of the surveys is that most members of the Canadian public do not really care about the marijuana issue. It is just not something that is part of their focus or interest at all. This is so because they have so much misinformation about other drugs, and they continue to get misinformation because of prohibition. Even the police officers who go to the schools to talk to kids about drugs often cannot say exactly what they really think because they have to maintain the status quo. Some change is needed in order for us to move further forward.
In many respects, the present system precludes us from moving forward. As I understand it, in the United States much of the research into marijuana suddenly stopped. They are not researching it anymore since the war on drugs took off.
However, you say to yourself, "We have known about this stuff for so many years, and we have had so much research done, surely, by now, if there were a significant public health problem, it would have been apparent regardless of the research." Yet, it seems that there is still this old thing that prevents us from doing something quite simple, that is, to start reversing the direction.
Senator Bryden: One of you indicated that it really does lead to some absurdities and that it holds the law up to considerable disrespect. I can remember as a Deputy Attorney General sitting with the police and the prosecutors in preparation for a rock festival coming into my province. A decision was made that the only way to manage what was about to happen was to ignore any use of marijuana or drugs because, otherwise, we ran the risk of causing a riot. The absurdity of it was that that same morning one of the constables who was sitting at the meeting had to leave because he was prosecuting a 17-year old for having smoked a joint. At some point, the criminal element, as well as the general public and youth, look at the way we administer our laws and see that it is so irrational that they lose respect for the laws. It is hard for me to see that a teenager smoking marijuana is some kind of threat to our society; yet we cannot seem to do anything about bike gangs that hold cities to ransom.
Mr. Conroy: By creating black markets instead of undoing them, we feed the bike gangs. Undoing them would take away from their profits.
Senator Bryden: It will take time, but it may be possible to follow a route different from the Americans. It has taken a long period of time - and the Chair will be interested in hearing me make this comment - for Canada to have taken a different route in relation to guns.
Mr. Conroy: It can be done.
Senator Bryden: It is to the point where people define a Canadian as an American armed only with a medicare card. It will take a concerted effort, not just by the Canadian Bar Association but by other groups as well, to move public opinion to the point where we can develop a different system and a different approach. Someone mentioned that one out of every three people in prison for drug abuse in the U.S. is black. We have a very serious situation in our own country in relation to certain offences, not just drug offences, wherein one in four people incarcerated is native. There is more to changing our approach than just as it relates to prohibited substances.
Mr. Conroy: When people look at the consequence of going to prison, they seem to think, "Oh, well, it is off to prison". What used to be six months as a maximum for summary conviction we now see in this legislation has become one year and 18 months. It is as if we will just add another six months here or there. The latest statistics show that it costs an average of $44,000 a year to keep a person in prison. Why are we just adding on an extra six months? Is there any evidence to suggest that an additional six months will be more effective in dealing with the problem? My understanding is exactly the opposite. The classic place for a person to want to alter his consciousness and get away from the drudgery and boredom in other parts of life is in a prison. The demand for drugs in prisons is greater probably than anywhere else because you want to escape. If you cannot do it physically, then you do it mentally. I am afraid that we are just perpetuating the situation.
The Chair: My question has to do with international conventions. I must say I am surprised that you suggest we should opt out of all these international agreements. As a general principle, I think that is not a good idea for a country like Canada. Why do you suggest that route rather than the route that the Netherlands has taken? They continue to be participants in those international conventions while at the same time they come up with their own made-in-the-Netherlands policy, which is harm reduction, an approach which I think is reasonable.
Mr. Conroy: We say that if you can do that within the conventions, then do so. I am not sure that the Netherlands is complying with the conventions. The objection that is presented here every time we have suggested decriminalization or opposed a bill is that we have to comply with our international conventions. We are really saying that in some measure you can do what we are suggesting consistent with the conventions, but on our reading of the conventions some of what we are suggesting you cannot do and be consistent with them. You would have to say, "We will sign it but turn a blind eye to it and go ahead with our own policy in order to show you that this is the wrong approach." We are saying that if we are to be consistent and really adopt a brand-new policy, we should withdraw from those conventions because they call for something different. We should be working toward, perhaps, developing other conventions that are totally harm-reduction oriented.
The Chair: Thank you all for being here today. You have helped us in our analysis of the legislation.
The committee adjourned.