Proceedings of the Standing Senate Committee on
Legal and
Constitutional Affairs
Issue 7 - Evidence
Ottawa, Thursday, April 25, 1996
[English]
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-8, an Act respecting the control of certain drugs, their precursors and other substances and to amend certain other Acts and repeal the Narcotic Control Act in consequence thereof, met this day, at 10:30 a.m., to give consideration to the bill.
Senator Sharon Carstairs (Chair) in the Chair.
The Chair: Good morning, senators. As you know, one of the issues that has been of great importance to us has been the issue of our international treaty obligations. One of the purposes of this bill is that we meet those treaty obligations.
In discussion with Senator Nolin last week, we decided that we would try to bring someone here who could talk about our treaty obligations and try to prove to us that we can amend the legislation and still meet those obligations. Needless to say, we will hear a contrary position from the Department of Justice.
As a result of that, we have invited back a witness whom we have heard before. Other than for Senator Doyle's question, we did not really spend much time with Mr. Gilmour at that time because he was with a number of other witnesses. I have asked him to come back this morning and to focus strictly on the issue of our international treaties; what those treaties are, what other countries are doing with those treaties and how this could impact upon us.
Following that, we will hear from the Department of Justice, Health Canada and the Solicitor General.
Welcome, Mr. Gilmour.
Senator Nolin: Before we start with Mr. Gilmour, would it be possible for him to remain after his testimony while we hear the representatives of the Department of Justice and Health Canada in order that he can participate in a debate on specific aspects of the interpretation of those treaties?
The Chair: Senator Nolin, we have anticipated that and have asked Mr. Gilmour if he can remain with us during the testimony of the departmental officials. He has agreed to do so and will answer any questions that may arise in that debate.
Mr. Gilmour, please begin your presentation.
Mr. Glenn A. Gilmour, Barrister and Solicitor, Canadian Foundation for Drug Policy: Thank you, Madam Chair. The issue here is what are the international conventions that Canada has entered into and what is their effect in this particular context.
We are talking about three major treaties. There is the Single Convention on Narcotic Drugs of 1961, the 1971 Convention on Psychotropic Substances which deals with synthetic hallucinogens and stimulants, the 1972 protocol which amended certain aspects of the Single Convention of 1961 and the 1971 convention, and finally there is the 1988 Convention on Prohibition Against Trafficking.
I intend to go through some of the major provisions of the treaties and outline some of the penalty sections and some of the qualifications to each of these treaties in order that you get some idea of the context of the treaties themselves.
The Single Convention on Narcotic Drugs of 1961 starts with the preamble:
Concerned with the health and welfare of mankind,
Recognizing that addiction to narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic danger to mankind,
It starts off with the perception or belief that addiction to narcotic drugs constitutes a serious evil. The question which may be asked is whether cannabis use is really such an evil as set out in the preamble. Is it not out of place in this particular context?
Nonetheless, Article 4 1.(c) provides that:
Subject to the provisions of this Convention -
- the parties are obligated -
- to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs.
It is clear that this treaty permits the use of drugs for medical and scientific purposes. This particular aspect is important from the point of view of possible heroin trials. Heroin trials are currently under way in Switzerland and there is a proposal for a heroin trial in the Australian Capital Territory. These would be clinical trials. There have been clinical trials in Switzerland. The purpose is to determine whether, in a clinical medical context, the provision of heroin to heroin users is beneficial to them and to society at large.
Trials have been going on for about two years in Switzerland. They have produced at least one interim report which has concluded that the results have been very satisfactory. The health of the drug user has improved and the social integration of the drug user with society has improved tremendously. The point is that such heroin trials as Switzerland is undergoing are perfectly consistent with the provisions of not only this treaty but the other treaties as well, because they all build into this initial medical and scientific purpose exemption.
You may want to ask the Department of Justice about this aspect of heroin trials for heroin users.
Senator Nolin: That is exactly the point I was trying to make before. If there is a point of which you think we should be aware, and you think that the answer of the department would enlighten us, you will have the ability to ask them.
Mr. Gilmour: Yes.
I will move on to the penal provision in Article 36 1 of the Single Convention, 1961. It reads:
Subject to its constitutional limitations, each Party shall adopt such measures as will ensure that cultivation, production, manufacture, extraction, preparation, possession, offering, offering for sale, distribution, purchase, sale...transport, importation and exportation of drugs contrary to the provisions of this Convention...shall be punishable offences when committed intentionally, and that serious offences shall be liable to adequate punishment particularly by imprisonment or other penalties of deprivation of liberty.
Two issues arise here. The first is a clear distinction that is made in the 1961 Single Convention between punishable offences and serious offences that shall be liable to adequate punishment, particularly by imprisonment or other penalties of deprivation of liberty. This appears to be a clear demarkation or division between what one would describe as regulatory offences and criminal offences.
The commentary by the United Nations to the 1961 Single Convention is basically that while Article 4 refers to both kinds of possession, whether that provision must be implemented by imposing penal sanctions on possession for personal consumption is a question that may be answered differently in different countries. Some governments hold that they are not bound to punish addicts who legally possess drugs for their personal use.
In other words, the intent of this particular prohibition is in the context of possession in the context of illicit trafficking. This is one possible interpretation, and one we would hold to.
However, it also provides that parties who do not share this view and believe that such persons must be punished under Article 36 may chose to impose only minor penalties such as fines or even censure. In other words, they can chose to categorize this as a minor kind of offence rather than a major serious offence for which you are liable to be imprisoned. It is also important that in 1972 this particular treaty was amended by a protocol which provides a clear alternative. It states that when abusers of the drugs have committed such offences, the parties may provide, either as an alternative to conviction or punishment or in addition to conviction or punishment, measures of treatment, education, rehabilitation. So, instead of conviction or punishment, the treaty now provides an alternative. This is a theme which will continue through the other two major conventions.
It goes on to say in the following article that nothing in this article shall affect the principle that the offences to which it refers shall be defined, prosecuted and punished in conformity with the domestic law of the country.
One of the major countries which has differed from the prohibitionist approach taken in the United States is the Netherlands. They have a system of de facto criminalization. The crime is on the books, but a series of guidelines have been set up which allows for the creation of coffee shops within which marijuana can be sold and consumed. It also allows for a certain amount of discretion with regard to personal possession.
Senator Jessiman: Are they considered to be in contravention of the convention?
Mr. Gilmour: That is the point I am coming to.
The other day I read a chapter entitled `Enforcing Drugs Laws in the Netherlands' in a book by Mr. Jos Silvas entitled Between Prohibition and Legalization: The Dutch Experiment in Drug Policy. It provides the following:
There are about 1500 coffee drugs in the Netherlands where soft drugs may be bought. How is that practice reconcilable with international obligations? The Single Convention and the obligations of the Illicit Trafficking Convention of 1988 do demand criminalization of possession, trafficking, dealing, cultivating and producing of soft drugs as well as of hard drugs. This obligation is met in Dutch legislation in the Opium Act.
As I mentioned, they have it in their criminal code.
But there are no clauses in the relevant UN drug conventions that concern the actual enforcement of the legislation. The Single Convention acknowledges explicitly that enforcement of statutes may be limited on the basis of principles that are a fundamental part of a nation's sovereignty. This clause provides the latitude the Dutch have been using in their drug policy:
There are specific provisions in their code of criminal procedure that allow prosecutors to determine whether to prosecute. They can refuse to prosecute if they consider it not to be in the public interest, and the guidelines flesh that out.
- by interpreting the legal principle of expediency as a fundamental sovereign principle, the Dutch have been able to develop a policy of (partial) non-enforcement of violations of the Opium Act.
This is a situation where the particular criminal justice system of the country gives rise to a particular principle that is used to determine whether the convention itself is violated. The argument here is that it is consistent with the sovereignty principle; the Dutch do not violate the conventions. I will move later to the 1988 convention to make that point as well.
The 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances focuses largely on this impression of the illicit trafficking of drugs.
I will move on to the scope of the convention. It states:
The purpose of this Convention is to promote co-operation among the Parties so that they may address more effectively the various aspects of illicit traffic in narcotic drugs and psychotropic substances having an international dimension. In carrying out their obligations under the Convention, the Parties shall take necessary measures, including legislative and administrative measures, in conformity with the fundamental provisions of their respective domestic legislative systems.
A series of offences are set out in the 1988 convention. The first series of offences deals exclusively with trafficking, including cultivation of cannabis. There is then a second major provision which deals exclusively with the offence of consumption for personal use. I will read that article to you to give you an idea of the some of the qualifications set out in it.
Article 3 2. of that convention provides:
Subject to its constitutional principles and the basic concepts of its legal system, each Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law, when committed intentionally, the possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention.
This provision was essentially the result of horse trading. During the creation of the 1988 convention, Mexico apparently raised the objection that the burden seemed to be placed too heavily on the producing nations and insisted that there be some kind of balance put in. As a result, this provision was inserted in the treaty.
Note the qualifications here. This obligation is made subject to the constitutional principles and the basic concepts of the state's legal system. As well, it only applies to personal consumption that is contrary to the 1961 convention. It picks up on the exemption for medical and scientific purposes.
One of the issues here is this phrase "subject to the constitutional principles and the basic concepts of each state's system". A decision in Germany in 1994 dealt with the issue of whether their drug statute was unconstitutional. The court held that it was but also held that the police and prosecutors should refrain from enforcement where cannabis was possessed in small amounts and exclusively for personal consumption. They based this interpretation again on certain aspects of their legal system; their principles of appropriateness and relativity. They concluded that there should be a proportionality test between the offence and the punishment.
It is my understanding that while the German constitutional court has not ruled their basic drug law unconstitutional, it has nonetheless provided a judicial decision that prosecutors should not pursue prosecution for possession of small amounts of cannabis for personal use alone.
I mentioned that the alternatives are a constant theme throughout these conventions. With regard to the minor trafficking offences it provides that parties may provide, as alternatives to conviction or punishment, measures such as education and rehabilitation. The same provision applies to the personal consumption offence. Indeed, it is broader. Article 3 4.(d) reads:
The Parties may provide, either as an alternative to conviction or punishment, or in addition to conviction or punishment of an offence...measures for the treatment, education...or social reintegration of the offender.
It is clear that as an alternative to conviction or punishment under these treaties you may pursue other remedies, including educational remedies.
The phrase "subject to its constitutional principles and the basic concepts of its legal system" raises the obvious question of what are the basic concepts of our legal system in terms of our criminal justice system. My interpretation of the wording of the treaty is that if one could make the argument that it is perfectly consistent with our constitutional principles and perfectly consistent with our basic concepts of our criminal justice system that, for example, cannabis be decriminalized, then clearly it would not run afoul of the provisions of this section.
In 1976, the Law Reform Commission of Canada published a report entitled `Our Criminal Law' which set out a series of tests for when activities should be made criminal and when they should not be. Central to that discussion was the concept that the fundamental principle of restraint governed the application of the criminal law.
I argue that quite possibly the basic concepts of our criminal justice system include the fundamental principle of restraint in the application of the law and that, therefore, it would be perfectly appropriate for consideration to be given to whether we are fashioning our criminal law legislation with regard to drugs in accordance with that principle of restraint.
With regard to that particular principle, in 1981 the Department of Justice published in a paper in which they said that the Department of Justice approved the following principle with regard to what was called at that point the criminal law review which was set in place to fundamentally review the criminal law of Canada, which included the work by the Law Reform Commission. One of the principles they espoused in that document was that the criminal law should be employed to deal only with that conduct for which other means of social control are inadequate or inappropriate and which interferes with individual rights and freedoms only to the extent necessary for the attainment of its purpose.
Given these particular provisions in the treaties, what range of options are available? One of the best analyses that I have been able to discover in recent years is a monograph prepared for the Australian National Drug Strategy, a task force set up to examine cannabis and reforms which should be made to cannabis law in Australia. It canvassed the wide range of options available under that treaty. They concluded that there were a number of different interpretations possible with regard to all of these international conventions and cannabis use. The available options ranged from total prohibition - which is in effect the policy that the government is espousing now - to what is called a civil penalty. The civil penalty relates to two jurisdictions in Australia, those being the Australian Capital Territory and South Australia, where they have created fine expiation programs. It is akin to a parking ticket. The person receives a ticket and pays a minimal fine. The person does not have to go to court.
One of the obvious questions raised was whether such a scheme is consistent with the provisions of the international treaties. The Attorney General's department of Australia analyzed the provisions of the 1961 and 1988 conventions and made the following comments:
In relevant respects, the requirements of the 1961 and 1988 Conventions with respect to "personal consumption" conduct are not significantly different:
both require the elimination of all possession/or use (outside certain specified exceptions) -
I have gone into some of those exceptions.
neither therefore permits "legalization" of personal consumption;
both are aimed particularly at "trafficking" conduct -
Again, this aspect of aiming at trafficking conduct can be used as an interpretation guide as to the effect of the treaties.
It concludes:
neither requires criminal proceedings for personal consumption.
They go on to state that, as a result, in their view, these fine expiation programs were perfectly consistent with these conventions. In Australia, the position of the Attorney General's department is that such fine expiation programs, which are akin to a civil penalty rather than a criminal penalty, are perfectly consistent with the international conventions I just mentioned.
Senator Gigantès: I am puzzled by the use of the term "expiation".
Mr. Gilmour: The term is used because when you pay the fine, that is the end of it. It is my understanding that there is no criminal record.
Senator Gigantès: It is so Catholic a concept.
Mr. Gilmour: In addition to these international conventions dealing with drug use, there are a number of other international human rights conventions to which Canada is a signatory. It is essential to keep those in mind as well. I think in particular of the International Covenant on Civil and Political Rights. You may recall that that guarantees protection of life, liberty and security of the person. It also protects unwarranted attacks on privacy. The question which arises is whether there has been an attempt to strike a balance between these two types of conventions. This is something which might be raised later on. The argument would be that, consistent with our heritage as a people who believe in fundamental rights, the provisions of these international human rights treaties should be taken into account in determining the full scope to which we should be entering into drug conventions, international trafficking treaties and the like.
I have two more important points. All of these treaties provide clearly that parties may seek to amend provisions of the treaties. If they believe that the treaties are too harsh, there are procedures to attempt to amend. Alternatively if they feel that the treaties are too harsh, they can formally denounce the treaties and thereby withdraw from them.
As I mentioned, these international conventions have been subject to a variety of interpretations. One of the major criticisms made by some people in Australia is that these international conventions have effectively denied the ability of the parties to the conventions to determine their own domestic policy. In other words, they have become mixed up or turned around. I should like to quote a provision from that monograph of the Australian, 'Legislative options for cannabis in Australia' as follows:
An important question to be answered is whether Australian drug laws, so long dominated and directed by influences beyond our shores, and so little attuned to Australia's own circumstances, should continue to be determined externally. As cautious an inquiry as the Williams Royal Commission -
- that was a commission on drug use in Australia -
- commented, in relation to the Single Convention, that the spirit and intention of the treaty was "a secondary matter in the sense that Australia must first decide what is the correct domestic policy and then shape its international course accordingly".
I should just like to stress that aspect as well. We must also keep in mind that from the context of a harm reduction perspective there are a number of provisions in these treaties that allow the opportunity to seek alternatives other than conviction and punishment pursuant to the criminal law. I mentioned the fine expiation program that exists in Australia. I mentioned Holland's experience where they have de facto decriminalization but a policy of non-prosecution, in fact allowance for the sale of cannabis in coffee shops. I have also mentioned the German constitutional court decision.
I mentioned the Swiss heroin trial programs and the proposal for a heroin trial program in the Australian Capital Territory. It is clear that those would not be in breach of the international conventions.
I hope that gives you an overview of the effects of these treaties.
Senator Doyle: Thank you for a very clear and interesting overview of the situation.
We are aware that withdrawing and denouncing are available to us. Would you like to comment on the more subtle approach, country-to-country or department-to-department, about how laws should be enforced within the context, if you will, or without necessarily vacating the treaties?
Some of our witnesses have made it obvious that there are pressures brought to bear on people in the field here not to open the doors, not to decriminalize, not to become more liberal in interpretation of the law, and that to that extent we are pushed and shoved by our American cousins who may not be so concerned about what happens in Australia but regard us with the same affection they devote to Cuba, Mexico and other close neighbours in saying that if we change our interpretation of these treaties we are opening the door to difficulties in the arrangement of ordinary affairs back and forth.
Mr. Gilmour: Your comments remind me of a slight variation of one of my favourite Humphrey Bogart lines, which would be "Yankee spank".
Canada's obligation is to determine what is best for the people of Canada. I mentioned Australia mainly because, like us, it is a commonwealth country; like us, it is a multicultural country. It has about the same population as us. Its great advantage, of course, is that it is so far away from the United States.
However, in Europe, and in England, for example, tremendous change is taking place to the extent that I think it is fair to say that the United States is becoming a little more the odd man out.
For many years Holland has practised the policy of de facto decriminalization. However, in the context of the provision of heroin to heroin users, England, for example, has never in its entire history prohibited outright the ability of doctors to prescribe heroin to heroin users. That has always been part of their drug strategy.
I mentioned the decision of the German constitutional court. Increasingly at the local level in some of the major cities in Germany there is movement toward harm reduction and lobbying to change the law in a more substantive way.
In France, although the law has not been changed, a year and a half ago the Henrion Commission reported and recommended the decriminalization of small amounts of cannabis and even alluded to the possibility that at some point in time, depending upon how that worked, they may consider regulation of cannabis use.
We are seeing a movement toward a pragmatic harm reduction approach in many countries. We are so close to the United States which has for so long advanced the prohibitionist policy that sometimes it is difficult for us to look further afield and see what is happening. It is very healthy for us to consider what other jurisdictions are doing. Do not forget, as well, that it is possible that in the future the United States may change its minds with regard to prohibition. That is a possibility, not a probability, at this point, but it is fair to say that increasingly in the last few years more persons well known to the public have spoken out publicly against a strong prohibitionist approach. I think particularly of people such as William Freedman and William F. Buckley.
Senator Doyle: If you have been convicted of having even the smallest amount of cannabis on your person while crossing the border, you are no longer welcome in the United States. Experts in various fields who wish to attend conferences or meetings in the United States which are vital in their trades have had great difficulty breaching that wall if they have a record for even the tiniest of offences.
Are we likely to see an easing of that or an intensification of that if we move in the direction we are contemplating here today?
Mr. Gilmour: I am not sure I understood the question. Are you asking whether, if we create a provision whereby simple possession of cannabis does not result in a criminal record, that would facilitate the movement of Canadians to the United States and back?
Senator Doyle: I was merely using the movement across the border as an example of how tough they are in pursuing people who have any kind of criminal record.
Mr. Gilmour: They are very tough. I tried to make this point earlier and perhaps was not totally successful. I think it is most useful to consider in this context what the appropriate role of criminal law should be. If you compare our current drug legislation to the Criminal Code generally, you will find great disparity and, in my view, great incoherence. For example, in the provisions dealing with impaired driving, clearly Parliament attempted to strike a balance between the rights of an individual and the protection of society and decided that that balance was at the point in time when a person, when abusing himself or herself through alcohol, posed a danger to the public. That seems to me a perfectly legitimate response for the criminal law because, after all, the criminal law is the most punitive measure by which society condemns a person's actions.
When you compare that kind of approach to what has happened with regard to our drug legislation, great incoherence appears. Nowhere does the principle of restraint in the application of criminal law appear. Where is the aspect of individual privacy, for example? Where is the aspect of a person's liberty to move around when he is presenting no risk to others?
I simply say that there appears to be great incoherence between the two approaches. Perhaps it would be more appropriate if the general principles of criminal law were applied equally to all forms of criminal conduct, including the area of drug offences. That is why I tried to make the point in terms of this phrase "constitutional principles and basic concepts of our legal system".
I hope that has answered the question somewhat.
Senator Doyle: We have been told by another witnesses that we have right now, and without any action on the part of the government, a de facto variety of rates of enforcement in this country and that in the Vancouver area simple possession is totally ignored now by the police. If that is the case, how far can we go in just letting the law fall into disuse?
Mr. Gilmour: I would think that rather than letting the law fall into disuse it would be more constructive to fashion a law in such a way that it is clear to all the citizens of Canada exactly under what circumstances conduct is criminal. As I mentioned before, criminal sanctions are the most severe way by which society denounces an individual's conduct. They are not akin to regulatory offences. The state is saying, "You have breached a fundamental value of our society." I am somewhat at a loss to determine exactly what fundamental value has been breached in these particular circumstances.
Nonetheless, perhaps another alternative could be to follow what Holland has done. The Dutch have been able to create guidelines which have been uniformly applied by prosecutors. Perhaps the same kind of arrangement could be made in Canada to make certain that it is not only the police in Vancouver that are not prosecuting for small amounts, but that it is uniform application all across the country. If we have an inconsistent approach if terms of prosecutions, the impact of unbalanced and unfettered prosecutorial discretion is creating an unjust situation. Why should someone in Halifax, under the very same circumstances, be at risk of his or her liberty? Even if liberty is not at risk; even if we know that at the end of the day the person will only get a criminal fine, he or she has still been brought into the criminal courts and denounced as a criminal. That is why we have criminal law.
Senator Milne: Mr. Gilmour, yesterday we heard from two witnesses who very strongly represented that decriminalization of the possession of marijuana would result in an explosion of drug use among our young people. One of the them stated in a fairly heated manner, when asked about the results of the Dutch experiment, that unfortunately Amsterdam, which used to be a wonderful city, has been "destroyed" by their drug policies.
Could you respond to these two statements?
Mr. Gilmour: I would have assumed that if their policy had destroyed Amsterdam, the public officials in Holland would have responded by changing the policy. In fact, the opposite has happened. Recently the French government has publicly denounced Holland's approach, yet the Dutch have stood firm and said that they will continue this route. In fact, I read last week in Time magazine a column which made specific mention of a study just completed by the Dutch government. It would be most useful for this committee if officials of the Department of Justice or Health Canada could obtain for the committee a copy of that study - in English if possible - in order that you can determine whether such a comment is founded on fact.
Senator Milne: Has there been any indication of an increase in drug use among young people in Australia?
Mr. Gilmour: I cannot comment authoritatively on that. This document, `Legislative options for cannabis in Australia', analyzes some of the studies that have been done on the fine expiation programs. My recollection is that there has not been a major increase. If there was an increase, it would have been only initially. I would have to get back to the committee on that.
I received some material a couple of years ago from the Dutch ministry of health relating to personal consumption of cannabis in Holland. There has been no increase there according to that material. I will double check that. If you wish, I will provide you with copies of that material.
I suspect that when you look at the material provided by the studies themselves you will find that there has been no dramatic increase of drug use among youth at all. In fact, for comparative purposes it would be useful to look not only at those states that have adopted a decriminalization policy but also at those states which have continued a policy of prohibition. I suspect that if you look at those states in the United States which have continued a policy of criminalization, you will find that there has been perhaps an even greater increase in drug use. There are a few states in the United States which have adopted a policy of decriminalization. I will try to provide that information to you.
Senator Jessiman: Mr. Gilmour, what is the Canadian Foundation for Drug Policy and how does it function?
Mr. Gilmour: The foundation was set up a couple of years ago with a group of experts in a variety of areas relating to drug use and the law. Mr. Eugene Oscapella and Ms Diane Riley are both here today. Ms Riley is an expert on drugs and pharmacology and also very much an expert on practices in other jurisdictions. Mr. Oscapella is a long-time researcher in the area of criminal laws and drugs.
As for my own background, for 11 years I worked with the Law Reform Commission of Canada in its attempt to rewrite the Criminal Code and bring it into the 21st century. So my perspective is largely one of criminal policy and when it is appropriate to use the criminal law, not only in relation to drugs offences but to all crimes.
There are others with the foundation as well. It is a non-profit organization.
Senator Jessiman: How many people are involved?
Mr. Gilmour: I believe there are 11 people.
Senator Jessiman: Where is your head office?
Mr. Gilmour: It is here in Ottawa.
Senator Jessiman: Are you counsel on their behalf? Do you work for the foundation full time?
Mr. Gilmour: I work with the foundation free of charge in the evenings and weekends outside of my regular job.
Senator Jessiman: Are there similar foundations in other countries?
Mr. Gilmour: There are as a matter of fact. There is a foundation in New York City called the Lindesmith Institute which is dedicated to the cause of criminal law reform. It contains a wealth of knowledge in terms of obtaining recent reports from around the world. There are as well foundations here in Canada; the Addictions Research Foundation and the Canadian Centre for Substance Abuse. There are similar organizations in Europe.
Senator Jessiman: Do you exchange information between foundations?
Mr. Gilmour: Yes, we do.
Senator Jessiman: Do you meet at any time during the year?
Mr. Gilmour: I have not this year.
Senator Jessiman: Do the foundations meet?
Mr. Gilmour: I am not so sure that they meet in person, but by virtue of the magic of the Internet there is quite regular contact. We contact each other to find out what is currently happening in the various jurisdictions. We attempt to keep up to date on what is happening in other jurisdictions around the world and to provide up-to-date information to the Canadian public on this important issue.
Senator Jessiman: The two gentlemen who testified yesterday were against any kind of possession. The material often refers to "small amounts" of marijuana. Thirty grams seems to be what is considered a small amount. One of the gentlemen provided us with a large cache of what I guess were joints. They looked like cigarettes. He said that the number of joints rolled from this 30 grams could not be for personal use, that there was just too much, that before it lost its power it would have to be shared with others.
Is 30 grams a large amount? It certainly looked like a lot of cigarettes.
Mr. Gilmour: One of my major weaknesses is that I never converted easily to the metric system.
You could look at the legislation in Australia dealing with the fine expiation schemes to get an idea of the type of limit they set with regard to this.
Senator Jessiman: They said that cannabis, or marijuana, are three times as addictive as cigarettes or alcohol. Have you ever heard that?
Mr. Gilmour: I have not heard that before. We previously provided the committee with some material which contains a recent article about the harmful effects of marijuana being a myth.
You may be aware as well of recent articles in the British Medical Association journal and another English medical journal which was very critical of the criminal prohibition of cannabis. I believe that if you were to look at the most recent medical literature with regard to this, you would find that that kind of statement is inaccurate.
There are a series of four monographs accompanying the report with regard to the Australian study which contain an analysis of the medical effects of marijuana as well. I can provide that to the committee later as well.
Senator Jessiman: You said that England provides heroin to addicts. How do they deal with marijuana and/or cannabis?
Mr. Gilmour: I believe that cannabis is treated much the same as it is here in Canada. I think it is primarily with regard to heroin and not cannabis. In a sense, England has one foot in the prohibitionist camp and one foot out of it.
Senator Lewis: Mr. Gilmour, I got the impression from what you told us earlier, and from looking at the 1961 Single Convention, that the obligation on Canada under this convention is to ensure that offences are punishable when committed intentionally and that serious offences are liable to adequate punishment particularly by imprisonment or other penalties of deprivation of liberty.
This is made subject to its constitutional limitations. Article 36 4 provides:
Nothing contained in this article shall affect the principle that the offences to which it refers shall be defined, prosecuted and punished in conformity with the domestic law of a Party.
I get the impression that the obligation is to provide for punishable offences and then to provide the penalties, but that there can be a range of what those penalties are. The convention does not set out what the penalties must be. Within that context, we would be observing our obligations if our own domestic law provides this range of penalties, but, curiously, it says "but in the case of serious offences". It does not define serious offences. Then, of course, we must provide for imprisonment.
Does this bill conform with these provisions? The bill does provide for the range of penalties and I believe that in the case of what we might consider serious it provides for imprisonment. Does the bill, in that sense, seem to conform with the convention?
Mr. Gilmour: You may be missing the fact that the 1961 convention also allows for alternative remedies other than conviction or punishment. There are two important aspects here. First, instead of conviction or punishment, alternative remedy could be provided under the 1961 convention and the other conventions. If you look strictly at the penalty provisions as defined in Article 36 of the Single Convention, they do appear to make a distinction between what I would call regulatory offences or administrative offences and serious offences. Therefore, it would be consistent at least with the 1961 convention to consider possible schemes whereby you could conceive of simple possession of a lesser amount of cannabis as being more of an administrative offence rather than a criminal offence.
There is the other aspect of constitutional limitations. It is interesting to note the difference between that phrase and the broader phrase used in the 1988 convention with regard to personal consumption which talks about constitutional principles and basic concepts of the legal system.
Our approach would be to advocate that in this particular context, given the alternative remedies available, given the distinction between lesser offences and more serious ones, it would be more consistent with the thrust of the 1961 convention to move away from criminal prohibition and criminal punishment.
Senator Lewis: Of course, these conventions have to be rather general in one sense, do they not? That is why that provision is there. It provides that nothing contained in the article shall affect the principle that the offences to which it refers shall be defined, prosecuted and punished in conformity with the domestic law of the parties, so it leaves it up to the parties. It would have to, of course.
Mr. Gilmour: The Department of Justice might disagree with me on this, but I think it does give a certain leeway and flexibility to the domestic party to determine precisely how to define the offence and perhaps possible defences.
Senator Lewis: Senator Doyle referred to the situation in Vancouver where we understand that many of these offences are being ignored. The conventions only provide that a party shall adopt such measures providing for punishment. They say nothing about enforcement. There is a difference between having the provision and the actual enforcement.
Mr. Gilmour: That appears to be the approach of the Attorney General's department with regard to the fine expiation programs and their assessment of whether they run afoul of the 1988 and 1961 conventions. As I mentioned, they came to the conclusion that although the conventions may oblige that the offences be created, there is no necessity to prosecute.
In Holland, they have the law on the books, but in accordance with their principles of criminal justice they have determined that the more appropriate response is to carve out an area in which those who wish to use cannabis in small amounts may do so. They do it for a very valid reason, that is, to separate out what they consider to be the more harmful effects of hard drugs from the lesser effects of the soft drugs. Their view is that that is a means by which to reduce the amount of harm that drug use causes in society.
This is the adoption of procedures by the criminal justice system in at least one state in order to accommodate what they consider to be a pragmatic response to reduce the harm of drug use in society. I argue strongly that the same kind of flexibility is available to us. Again, the Department of Justice may disagree.
Senator Nolin: We have a résumé of the Le Dain report of 1973. This résumé does not seem to be bothered by the convention of 1961. Are you aware of the reason for that?
Mr. Gilmour: I read part of the Le Dain report the other day to get a sense of their interpretation of the 1961 convention. I believe that in their analysis of the international conventions they recognized the possibility of two different interpretations of the 1961 convention, those being total prohibition or prohibition only of possession for the purpose of distributing. I think that at the end of the day they interpreted the treaty as being more prohibitionist than not. Nonetheless, it is interesting that they did propose that.
A recent study done in the Australian Capital Territory advocated that possession and cultivation of small amounts of cannabis should be completely decriminalized and completely allowed, notwithstanding the fact that Australia was clearly subject to the international conventions.
I think there is an acknowledgment by those who have studied the issue very thoroughly that criminalization of small amounts of cannabis simply is not justified in terms of their own personal assessment of other values; in other words, the proper role of the criminal law and the aspect of harm that the use of the criminal law in this context can cause people. All commissions which have studied drug use over the last 25 years have uniformly, I believe, come to the view that the total prohibitionist approach is wrong-headed.
I have offered to provide the committee a list of the various commissions that have reported on this issue over the last 20 years or so. Perhaps you can get access to these studies. I doubt very much that you would find that any one of them concluded that total prohibition is the right way to go. I think you would find that they always concluded that we have to do something about this, that this does not seem right.
As I mentioned, the Australian Capital Territory set up a commission that looked into this. As I also mentioned, over the last four years, in the context of heroin trials, the National Centre for Epidemiology and Population Health in the Australian Capital Territory published a series of reports and working papers which concluded that it was perfectly feasible and entirely proper to conduct this type of heroin trial from the point of view of harm reduction. As I emphasized, they concluded that it does not run afoul of the international conventions at all.
Senator Bryden: I have in mind two competing issues. The first is that based on respect for the law, Canada is a pretty law abiding society. It has very little to do with police forces and offences; it comes down to that issue.
I am greatly concerned that the unevenness of the administration of the law against simple possession of drugs will bring that law into disrespect among our young people and that, if they disrespect that law, they will then disrespect others. To me that is a very big argument for ensuring that this is handled in an even-handed manner. On the other hand, as was indicated to us yesterday, we live in the real world where possession is a criminal offence.
We tend to think of peer pressure as pressure to get people to use drugs. However, there are many circles in which young people move in which they would be terribly embarrassed and ostracized if their friends read in the local paper that they had been charged for possession of marijuana, liquor or whatever.
If we decriminalize it, what effect will that have on the willingness of additional young people to experiment because the risk of the criminal record would be removed as well as the peer pressure? I have a great deal of difficulty balancing those two situations.
Mr. Gilmour: I will first give you an anecdotal personal response. When I was in first year university, I was probably the only guy on the floor who did not try marijuana. I was around 18 or 19. I felt sort of strange; the odd man out in a way. The fact that there was a criminal law prohibiting the use of marijuana did not stop my friends from experimenting with it. In fact, I think the fact that simple possession of cannabis is outlawed has a certain attraction. By decriminalizing, you may run the risk of an initial increase. However, it may be the case that the allure of trying something that is forbidden - the forbidden fruit syndrome - will no longer be there.
An excellent way to get an understanding of this is to look at the experience in the Netherlands. I will try to get material for you on that. My understanding is that there has been no major increase in cannabis use there at all. In fact, cannabis rates may have gone up in countries surrounding Holland. I am not absolutely certain on that but I will try to find that information for you.
One way of studying this issue is to find out what has happened in places which have de facto decriminalized; what the effect has been on the young people there. You would have to compare it to jurisdictions surrounding it to see what happened there. If use did increase in a jurisdiction which had decriminalized, but increased even more in a jurisdiction right next door which maintained criminal prohibition offences, what would that say about a policy of decriminalization?
I will try to get some figures for you on that. I would emphasize the aspect of forbidden fruit. There is also the aspect of disrespect for the law in the sense that it is perceived to be wrong not to be able to smoke a joint while at the same time parents are drinking alcohol and getting drunk or friends are smoking tobacco and killing themselves by getting lung cancer. Perhaps that causes a certain amount of disrespect for a law that seems to be hypocritical in its response.
Senator Bryden: Probably because of the budget restraints and not because of some sort of social conscience, various jurisdictions are de facto not prosecuting for possession. They do not have the court time, the police and so on. On the other hand, there are a good number of jurisdictions where that has not happened. I happen to live in a nice community where the RCMP detachment is bored most of the time.
Something must be done for consistency within the administration. It appears as though the only way we can get consistency is to decriminalize it so that everyone does what some jurisdictions must do for financial reasons.
Mr. Gilmour: That is very clear. If you were to decriminalize certain amounts of marijuana, there would be a clear message that everyone will be treated equally in the sense that they do not have to worry about whether a law enforcement officer will exercise a certain amount of discretion differently in one part of the country than in another. I think it is fundamentally unfair that there should be an official policy of non-prosecution in one part of the country and not in another. That is fundamentally unfair with regard to any crime, but here it is particularly evident.
It also raises an important point. You were talking about Vancouver. On a somewhat related issue, you may recall that about a year and a half ago the chief coroner of British Columbia published a report about the epidemic of heroin deaths in which he recommended moving toward a kind of Swiss model where you have a heroin trial situation in order to prevent people from killing themselves by injecting themselves with impure products.
That is another aspect of this issue of criminalization versus decriminalization and the kind of harms that a full policy of criminalization can cause. I ask you to consider that particular aspect as well.
Under the criminal law, the argument would be that, by virtue of a policy of prohibition with regard to heroin users which fails to allow doctors to prescribe heroin to users for whom methadone is not effective, the criminal law may be harming too many people in society. If that is in fact the case, as I suggest it is, Canadians have a responsibility to ensure that the criminal law is changed in such a way that such harm does not occur.
Senator Gigantès: I tend toward decriminalization. You said in your argument that they may be smoking it because it is a forbidden fruit. If we stop it from being a forbidden fruit, will they turn to an even more dangerous forbidden fruit?
Mr. Gilmour: It is possible they will turn to cigarettes.
Senator Gigantès: I am thinking of crack.
Mr. Gilmour: That is not very likely, in my opinion. Again, I offer to try to obtain information for you with regard to that. I do not think that is very likely. You would need to look at the most recent publications which have been done in the area of marijuana use and see what they say in terms of the harmful effects.
You are talking about marijuana as a gateway drug. Usually, at least when I was younger, we talked about marijuana as a gateway to heroin and cocaine. Now we talk about it as a gateway drug to crack. Perhaps the question is, which is the greater gateway drug? Is it marijuana or alcohol, or is it a combination of alcohol and something else? I will try to get information for you on that.
Senator Gigantès: There are people who, having just reached the legal drinking age, drink a lot even though it is not a forbidden fruit.
Mr. Gilmour: That is true. There will always be people like that with regard to any substance. That is part and parcel of human nature. Some people will want to abuse themselves when it is legal to do so, just as some people will when it is illegal. I doubt that whether or not it is a crime will have much of a deterrent effect.
There are likely causes for substance abuse other than the law itself. There are a whole host of things tied in here. In my case, my dad made the difference. When I promised my father that I would not use cannabis, that was enough for me. It varies from person to person.
One cannot make a broad judgment. I make a commitment to try to find the most recent information available on that particular topic. These are legitimate criticisms but I doubt very much they are supportable by the facts available right now.
The Chair: Thank you, Mr. Gilmour.
Honourable senators, we have witnesses now from the Departments of Justice, Health and the Solicitor General. I understand they have no presentation but will go directly to questions.
Mr. Gilmour is still here and can be re-called if some controversial debate is generated. We can begin with questions on our treaty obligations.
Mr. Saint-Denis, can you explain for us the position of the Department of Justice in its view of the treaties and particularly address why the view of the department is different from that held by Mr. Gilmour, if indeed it is different from that held by Mr. Gilmour?
Mr. Bruce Rowsell, Director, Bureau of Drug Surveillance, Department of Health: To introduce Mr. Saint-Denis in his first appearance before this committee, he was asked by the United Nations in the mid 1980s to be a drafter of the 1988 convention. He has spent considerable time in Vienna with the United Nations commission on that 1988 convention as well as being involved with the revisions to the 1971 convention. He does have first-hand awareness of these conventions. He was also designated by the Government of Canada to be the person to sign those conventions on behalf of our country.
Mr. Paul Saint-Denis, Senior Counsel, Department of Justice: Honourable senators, the position of the Department of Justice with respect to these conventions is that the possession of cannabis - which is your key issue as far as I can discern from the discussions here - should be made a criminal offence.
In looking at the various provisions described by Mr. Gilmour, there is no getting around the fairly clear statement, particularly in the 1988 convention, that the offence of possession, purchase and cultivation of a narcotic drug, in this case cannabis, for personal consumption must be made a criminal offence. The wording of that provision is fairly clear on its face.
In the presentations made to you over the last few meetings, there have been a number of references to what has been happening in the Netherlands, in Germany, in Australia and in Switzerland. All these countries have in common with Canada the fact that they are prohibitionist states to the extent that they have made it an offence to possess or, in some cases, to consume or use marijuana. Where they differ is in the application or enforcement of that provision.
The city of Amsterdam in the Netherlands has adopted a non-enforcement approach and, in fact, has set up a fairly interesting regime whereby the drug may be consumed and sold in coffeehouses, I suspect in small quantities. I do not know if that regime extends beyond Amsterdam in the Netherlands.
The use of cannabis is criminalized and enforced very rigorously in some countries, less rigorously in others, and in the case of Amsterdam, it seems not at all. However, all of these countries do have on the books an offence of possession. In that regard, they are all prohibitionist.
In Canada, we have set up a system whereby it is an offence in our statute. After that, we have provided for maximum penalties with a tremendous amount of discretion on the part of the judges for imposing the types of penalties which they believe are required in the circumstances. These range from an absolute discharge where there is no record of conviction, although there is a finding of guilt. The other end of the range, usually for repeat possession offences, can be serious; rather large fines or even, in some cases, minor periods of imprisonment.
On the whole, the possession offence in Canada is treated as a fairly minor offence in spite of the maximum that is now available in the statutes. The courts have viewed this offence, and rightly so in my view, as something to be dealt with as a fairly minor matter and have never imposed anything near the maximum penalty which is available if the offence proceeded by indictment. To my knowledge, that has not happened in at least 15 years.
With respect to the activity of possession, the conventions are fairly clear, particularly the 1988 convention. If one were to focus exclusively on the 1961 convention, there would perhaps be some ambiguity, although in my mind that ambiguity is not as obvious as some people would like us to believe.
The 1961 convention very clearly states that the drugs are to be used exclusively for medical and scientific purposes. That does not leave a whole lot of room for things such as recreational use, use for personal consumption or anything else. The obligation is limited to two things; medical purposes and scientific research purposes.
If you add to the 1961 convention the provisions in the 1988 convention, there is very little doubt about the expectations upon countries with respect to possession.
Mr. Gilmour earlier referred to paragraph 2 of Article 3 of the 1988 convention. That paragraph does deal exclusively with possession, consumption and use of the drugs. His observation was that this paragraph is the result of some horse trading between Mexico, in particular, and other countries, and that this was a sort of compromise position to please or assuage producing countries. In point of fact, that is not quite what happened.
Mexico and a few other countries, particularly Latin American ones, wanted possession and consumption of marijuana - and all of the other narcotics by the way - to be an integral part of the 1988 convention. Although I am limiting my comments to marijuana because it forms the basis for our discussions today, they apply to all of the drugs that are governed by the conventions.
The reasoning for this was that the 1988 convention deals with trafficking. The buying for personal consumption of a narcotic is the counter-image of trafficking. You cannot have a buy without someone selling.
In the view of the Mexican delegation, it was the other side of the coin. You had the trafficker who sold but you had someone who was buying at the same time. If there were no buyers, there would be no traffickers, the Mexicans quite reasonably argued.
Our concern was that this convention was initially thought of as dealing primarily with the seller of the drug. We had to come up with a method which would accommodate the Mexicans and other Latin American countries on one hand, but also would not impose upon the offence of possession or consumption all of the measures that are contained in here, things such as extradition and mutual legal assistance and so on.
In fact, paragraph 2 was the solution that the experts provided. I have to tell you that paragraph 2 is actually my humble contribution to this convention. I conceived of an idea where we could have an obligation to create an offence regarding possession, such as was requested by Mexico, but by extracting it from the main provisions dealing with trafficking we could isolate the offence of possession and thus not have the remainder of the provisions of this convention apply to possession for personal consumption. All of the remaining provisions of this convention would apply to paragraph 1 of Article 3.
If you look through the convention, by and large the only references to offences are offences included in paragraph 1 of Article 3. That article deals with things like production, sale and transport; the types of activities normally found in commercial trafficking, if you wish.
There is no doubt that the intent was to criminalize the concept of consumption or possession for personal use. It is clearly open to all countries that we need not sentence an individual found guilty of possession to a specific penalty. All the countries have a tremendous amount of latitude in how they will deal with that offender.
To a certain extent, the types of measures which have been adopted by the Dutch in Amsterdam, and perhaps in other countries, fall within that scope which is open to countries in dealing with a person who is found to have committed the offence of possession.
In Canada, we have done that to a certain extent. We are proposing through this bill to do that even more by carving out the possessors of 30 grams or less and subjecting them to a reduced maximum penalty.
In my view, to outright decriminalize - that is, remove the offence for possession of 30 grams such that there would be no offence vis-à-vis this particular activity - would be counter to the conventions, particularly the 1988 convention.
However, if we have the offence of possession, it is open to us to deal with that offence and that offender in the manner we think most appropriate.
Senator Gigantès: I know young people who smoked marijuana for a little while then stopped. It would be deplorable if one of them had been caught and acquired a criminal record as a result. Is there any way of keeping that offence but making sure that simple possession does not lead to a criminal record?
Mr. Saint-Denis: There is. However, we do tend to bandy around the expression "criminal record." There is no official definition of what constitutes a criminal record. There are different types of records. There is the record of the police agency or department who picked up the person and registered the charge in their books. If he or she is convicted, a court record will demonstrate a record of conviction. There is also the type of record which is maintained by the RCMP in their centralized computer system. That is essentially a fingerprint-based system, a data information system.
Under the kind of offence contemplated by this bill, fingerprinting would not be permissible because it is a summary conviction offence exclusively. You can only fingerprint individuals for charges which are of an indictable or a hybrid nature. A hybrid crime can be prosecuted either summarily or through indictment.
The Chair: Just for clarification, does it prohibit fingerprinting? I thought it prohibited the information being given to CPIC.
Mr. Saint-Denis: The Criminal Identification Act only allows for fingerprinting of individuals charged with either an indictable offence or, as a result of the Interpretation Act, a mixed offence. A mixed offence is like the present possession offence in the Narcotic Control Act which can be prosecuted either on indictment or through a summary conviction procedure.
For an offence that is exclusively a summary conviction offence - such as the new possession of 30 grams offence - the police have no authorization to fingerprint. In fact, if someone convicted of a summary conviction offence were fingerprinted, that individual would be absolutely within his or her rights to demand that the fingerprint record be removed.
The possession offence that we now have for 30 grams or less is a straight summary conviction offence for which no fingerprint can be taken. That means there is no record in the RCMP's general database. It would not mean that there would be no record in the court if the individual is convicted. The court records exist. They simply cannot be expunged, nor are the courts particularly well-organized to go back in time to do so.
Senator Bryden: On an application for a visa to a foreign country you are asked the question, "Have you ever been convicted of a criminal offence?" If you answer that question truthfully, in the situation you describe the answer to that is yes.
Mr. Saint-Denis: No, not necessarily.
Senator Bryden: Well, you have been convicted of a summary conviction offence. As I said earlier, Canadians tend to be law-abiding citizens. They tend to want to answer questions truthfully. It is my understanding that the truthful answer to that question is, "Yes, I have been convicted of a criminal offence", and as a result our zero-tolerance, war-against-drugs friends in the U.S. will not let us in.
Mr. Saint-Denis: That is correct. However, I should point out that the kind of offence being contemplated for 30 grams or less would be a straight summary conviction offence. Most of these offences - not all, obviously - would be dealt with through either an absolute discharge or a conditional discharge. Someone who is given an absolute or conditional discharge is not deemed to have been convicted.
Either he pleads guilty or the court declares him to be guilty. There is a finding of guilt but he is not convicted so he could truthfully answer, "I have not been convicted."
Senator Bryden: It is my understanding that if you are convicted and given an absolute discharge by a court, you have been convicted of a criminal offence. The discharge allows you the opportunity to have any record removed - something like getting a complete pardon - after two years. Is that not right?
Mr. Saint-Denis: No, it is not, sir, with all due respect. Someone who is given an absolute or conditional discharge is not convicted. The legislation is quite clear on that. A person is found guilty but there is no conviction.
It is a technical point, to be sure, but it is an important point for those who are interested in being able to answer truthfully as to whether they have been convicted.
Senator Bryden: Why do we not include in our schedule of penalties the choice of absolute discharge or a minimum fine of $100, for example?
Mr. Saint-Denis: It is included inherently in the penalties which a judge can impose. The discharge provisions are in the Criminal Code. They apply to and are dispensed for all manner of offences.
Senator Bryden: I realize that. It seems we are trying to comply with our international obligations without giving any particularly serious treatment to simple possession of marijuana. It would be good direction to the courts if absolute discharge were included in the list of penalties along with fines of $1,000, jail in lieu or whatever.
I realize that in the general law any judge has the right to give an absolute discharge. It would be a very useful indication to judges of the intention of Parliament on how seriously to treat this charge if the first choice were absolute discharge.
Mr. Saint-Denis: The technical problem that arises is that if an absolute or conditional discharge is given, a fine cannot be imposed. A fine can only be imposed after someone is convicted.
Perhaps there is another solution available. I do not know whether this can be done presently. I am sure you are aware of the Contraventions Act. Amendments to it will be coming before you for your consideration. Those amendments provide that, by referring certain offences to an annex to the Contraventions Act, there will be, in effect, no criminal record. People will be deemed either not to have been convicted or, if convicted, to not have their conviction recorded.
Senator Jessiman: Are you suggesting that possession might be one of those? I do not know how many hundreds of thousands of offences there are. There are 12 different departments.
From what I have read about this bill and the earlier one which has not yet been proclaimed, since 1992, the many hundreds of thousands of offences are now down to about 4,000. I am hoping that, by now, a list has been prepared. In 1992, they did not have one. When the Senate was asked to approve it, some senators responded by asking for that list. They were told that the list is a kind of a moving target.
Four years have passed since 1992. I will request that list today in the Senate and again in this committee when we get the bill.
That list will form part of the regulations, not the actual bill. They are envisioning offences like taking some flowers from a federal park, overstaying your time in a parking area, or speeding on a federal road.
Because of things I have learned in this committee, I believe that the use of marijuana should be decriminalized. I would like to think it could be, but that is not possible with the way it is now worded.
Senator Gigantès: I will cite as an example a case I encountered. A lady physician got a three-month visa for a friend to come to Canada. He happened to be black; she happened to be white and getting on in years.
The immigration people at the Ottawa airport accused him of being a paid gigolo, refused him entry and put him on the next plane back. I was asked to intervene. I intervened because his visa was perfectly legitimate. He was only coming for three months. He came in and left three months later.
The next year, he tried to enter the United States, but on the computers of the U.S. immigration service was the fact that he had been refused entry to Canada.
The police play these little games, one with the other. You may say that there is no official criminal record, but if a policeman from Seattle phones his pals in Vancouver, they will tell whether they have anything on a particular person.
We have no control over the behaviour of the police in many cases, not only in this country but everywhere. They are a law unto themselves and they are very often unlawful in their acts.
Mr. Saint-Denis: You are right in saying that there are informal arrangements between police within the country and in different countries. Through personal contacts and so on, police can sometimes obtain informally what they may not be able to obtain formally. Sometimes police do act inappropriately and sometimes illegally.
I do not believe that is the norm; certainly not in this country. If your point is that we cannot regulate police behaviour in absolute terms, you are correct. This bill does not try to do that.
I wish to be very clear with regard to the criminal record. It does not propose to remove all notations in any form of the fact that a person has been charged with or convicted of an offence, wherever they may appear.
The offence of possession of 30 grams or less would not be a fingerprintable offence, which means that it does not make its way to the RCMP central data computer that is fingerprint based. That is all. The local police would have some records. The newspapers would have some records. The courthouse where the individual was tried would have a record.
Senator Gigantès: And when such a person tries to get into the U.S., they are refused entry. Mind you, this would be a good way of preventing the brain drain. We could have the RCMP slip little bits of marijuana into the pocket of every genius and then bust them. Then they would have to stay here and not go to Silicon Valley.
However, that is not satisfactory for the protection of an individual. If we do not think that simple possession is a major offence, then let us decriminalize it or find a way to ensure that there is no record of it.
You have just agreed that it will be on some record. Some cop south of the border will always hear about it from some cop north of the border, so let us decriminalize it.
Senator Milne: Administration of justice is a provincial matter in Canada. Probably the only way to guarantee equal application of the law across the country would be to decriminalize simple possession of marijuana.
Mr. Saint-Denis: Are you suggesting that we should also decriminalize or remove penalties for under-age drinking or for speeding or, in some cases, for shoplifting, because all of these and a great number of other types of offences are enforced differentially in different provinces? I do not think there is anything that one can do to ensure absolute equal application and enforcement of the law.
One of the senators earlier made the observation that one of the factors which contributes to an unequal application of the law is limitations on resources. There are other factors which also contribute. Different police forces have different priorities. Sometimes they reflect the concerns of the community they serve. Sometimes they reflect other things.
A number of factors come to bear on how the law is enforced. Sometimes there is an official position. For instance, in the late 1970s and early 1980s, the offence of abortion in Quebec was not enforced. This was an official provincial position. It was as a direct result of their inability to obtain a conviction against Dr. Morgentaler. They had two kicks at the can and were not successful. Although the offence was still on the books, the position of Quebec was that they would not enforce it.
Various provinces and municipalities have different factors which they must bear in mind in enforcement. No one can enforce all the laws all the time. It is not practical and it is not feasible.
Mr. Gérard Normand, Counsel, Department of Health: To continue with that answer, drug charges are prosecuted by federal Crown attorneys across Canada, except in Quebec where it is dealt with provincially. Although Criminal Code offences are dealt with by provincial attorneys general in each province, the Narcotic Control Act is applied by the federal government everywhere in Canada, except in Quebec.
Senator Milne: Mr. Saint-Denis, you mentioned "deeming". This term always puzzles me a bit. The House of Commons committee that studied this bill took out the deeming section before it came to us. I see on page 1 of the bill the word "analogue" and a definition for it. I cannot find the word "analogue" anywhere else in this bill. Why is it defined in here? Is this an attempt to slip in through the back door some kind of deeming?
Mr. Saint-Denis: No, it is not an attempt to do through the back door what should be done through the front door. You will find the term "analogue" exclusively in the schedules.
On page 57, Schedule I, item 3, deals with "intermediates, salts, derivatives and analogues."
Senator Gigantès: They are equivalents?
Mr. Saint-Denis: Analogues are chemical varieties. That term is included to deal with the manufacture of designer drugs. Designer drugs are drugs which are very close in chemical resemblance to the product which it tries to copy, giving virtually the same physical effects. Because it is chemically different, it is not covered by the substances listed here.
Very smart chemists can produce substances which give the same effect but do not meet the definition under the precise term of the law. The term "analogue" is there to deal with those chemically-created substances.
Mr. Normand: The deeming provision to which you refer in subsection 3(1) dealt with similarity in the effect of the substance. This term was seen as being wider. If you represented the substance as having the same effect, or if you show that a substance which was not listed had the same effect as a listed substance, it would have been covered. That clause was taken out. Now, only the chemical-structure similarity is left in, not the effect side.
[Translation]
Senator Nolin: If not for international treaties, why would we maintain those prohibitions? I trust that you have some medical reasons for doing so.
Mr. St-Denis: The treaties or conventions do not deal solely with cannabis. They cover a range of substances such as narcotics, hallucinogenics and psychotropic drugs. In some cases, using these substances is very dangerous, while in others, it is less so. To hear some people tell it, in some cases, the use of these substances poses no danger whatsoever. It all depends on how they are used.
Senator Nolin: I agree with you as far as heroine, cocaine and crack are concerned. Without having tried these drugs, I believe the people who say that they pose a threat to a person's health. The witnesses have referred to various studies. I found no reference to the myth surrounding the use of marijuana.
Do we make laws to restrict the consumption or possession of cannabis solely because we are a party to an international treaty which lists cannabis among a series of other drugs? Were it not for these conventions, would the ban on cannabis be maintained? Are there any medical reasons in Canada for maintaining the ban? Does the research conducted support the conclusion that the government must suppress the use of cannabis by an individual who has decided to risk his health, much the same as an alcoholic has?
Mr. Normand: This question was raised in a case not cited by any witness. I am referring to the 1993 decision of the Quebec Court of Appeal in the case of Mr. Hamon, who testified before the committee a few weeks ago. He claimed that marijuana possession and cultivation offences violated his rights under sections 7 and 15 of the Charter.
The appeal was rejected. I only have the English version of the ruling with me. Justice Beauregard was called upon to determine, after the original case had been heard, if indeed the prohibition was unreasonable pursuant to the terms of the Charter. Among the witnesses heard was Mr. Harold Kalant, considered a world expert on cannabis. Mr. Kalant is a psychopharmacologist with the Addiction Research Foundation in Toronto. The court also heard from a psychiatrist at Montreal General Hospital who treats people with drug and alcohol problems in a clinical setting. Another witness was Mr. Jones, a San Francisco psychiatrist who also does research and conducts experiments on the effects of THC on humans. These three individuals presented testimony on the harmful effects of marijuana.
These principles are described on page 492. On the bottom of this page, we note the following:
[English]
These witnesses demonstrated that abusive use of marijuana has detrimental effects on society.
[Translation]
In line 10 at the top of the page, we note the following:
[English]
Interference by the state to prevent a person from consuming some substance would not respect the principles of fundamental justice if the prohibition were unreasonable, that is, where the act prohibited is not truly detrimental to society.
[Translation]
This forms the basis of his argument. He starts out by saying that he called different specialists to testify.
Senator Nolin: We would have liked to hear from them as well. I am not criticizing Justice Beauregard's decision. Witnesses have spoken to the committee about the myth surrounding marijuana and about the fact that it is not as dangerous as we think. They have argued that if a person wants to use this substance and if it affects his ability to think clearly, then that is no one else's business. That is what we have been hearing for the past five or six meetings.
Is someone going to present the other side of the issue to us and tell us that cannabis is dangerous or that it can affect a person's liver and heart? I understand that Justice Beauregard heard from such witnesses, but we have not.
Mr. Normand: Those who want to present this viewpoint will ask to be heard. We on the government side are here to defend the bill, not to review policy. That is why we have no witnesses to present at this stage.
Senator Nolin: Perhaps we are not approaching this the right way. When we examine a bill, we have to look at its origins and objectives. Officials tell us that this is a political issue, one which the minister will address.
Do we need to ban the possession of cannabis for personal consumption? That is the question that we have been asking ourselves for the past three weeks. A series of witnesses have just about convinced us that this problem is not as serious as all that. I had almost convinced myself that you were going to state the opposite. I thought that you would arrive with witnesses. In any event, we will extend our study if necessary.
Senator Gigantès: Experiments conducted on animals have shown that if sufficient amounts of pure distilled water are injected into animals, they will become ill. Some people kill themselves by smoking. Others drink to excess, kill themselves or others and make life virtually impossible for their families. Do the effects of marijuana compare to the side effects of smoking and alcohol? We would like to hear from a few experts on this subject.
Senator Nolin: We are not so pressed for time that we would refuse to hear from witnesses who would wish to enlighten us on this matter. Getting back to the subject of international treaties, I have read some excerpts of the Le Dain report, although I have been unable to get my hand on a complete version of the main report. The five members of the commission do not appear to be concerned by the coexistence of this report and the 1961 convention. There is even a recommendation that the 1971 convention be signed. Would you care to comment on this?
Mr. St-Denis: The Le Dain Commission report were drafted prior to the signing of the 1988 convention. According to some people, the 1961 report is somewhat ambiguous on the subject of cannabis or heroine possession for personal consumption. In my opinion, the ambiguity is not that obvious. This being said, I find the 1988 convention very clear on this subject.
Possession for personal consumption is a criminal offence. There is no ambiguity here. Justice Le Dain did not have the benefit of this convention when he drafted his report.
Having to contend with the ambiguity surrounding the 1961 convention, he felt that he had a certain amount of room to manoeuvre. I am not convinced that the Le Dain report would have reached the same conclusions had the 1988 convention been in place.
Senator Nolin: Let us look at the problem from another angle. For the sake of discussion, these treaties prevent us to some extent from decriminalizing simple possession of cannabis. Have Canadian authorities held any talks with the parties that signed these various conventions and discussed the possibility of decriminalizing cannabis?
Mr. St-Denis: The 1988 convention is the most recent and the clearest document outlining the position of states on the possession of various substances, including cannabis, for personal consumption and so forth. It was drafted in 1988. The parties to the convention - we are talking about a relatively recent event, not about something that happened 20 or 30 years ago - agreed that this behaviour must be criminalized.
No formal discussions have been held recently, to my knowledge. Mr. Gilmour's group and others have been in contact with other informal groups.
Senator Nolin: I am talking about government-level talks.
Mr. St-Denis: There have been no such discussions.
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Mr. Rowsell: The World Health Organization is an advisor to the United Nations Commission on Narcotic Drugs. The commission will ask the World Health Organization in Geneva to set up a committee of experts to examine drugs on a periodic basis. To the best my knowledge, they have not asked the World Health Organization to examine cannabis, but they have looked at other psychoactive substances, mainly from a medical perspective.
This bill and its schedules list all the things you cannot do. Schedule N of the regulations lists all the substances that may be used for medical purposes. It includes codeine, morphine and other substances which physicians and pharmacists are allowed to handle in order to treat patients.
I admit that the World Health Organization focuses on the aspect of medical use; however, I see no difficulty in asking that organization to undertake an in-depth scientific review of cannabis.
I have listened to the hearings both here and in the House of Commons. I have heard the dilemma. I understand that you are all greatly concerned about how to deal with this issue of cannabis.
When the bill was introduced, the Department of Health was asking to consolidate the present Narcotic Control Act and Parts III and IV of the Food and Drugs Act, which deal with narcotics and controlled drugs. We were also not satisfying our obligations for the control of some drugs, such as the precursor substances, the designer drugs and the benzodiazepines, a group of tranquillizers that are widely in circulation for illicit purpose.
That was the intent of the Department of Health in coming forward with this bill. We recognize that there is a real concern amongst Canadians over how we deal with cannabis and its abuse potential. For that reason, we need a wide variety of expertise in examining this issue. We should have experts from the World Health Organization as well as from the commission in Vienna. We should bring in experts who have dealt with this in Amsterdam or Australia.
That is a very wide-ranging undertaking. That is why the House of Commons committee included in its report a recommendation for a drug policy review, to try to bring together all these parameters in a very widespread review of the policy. It would be very difficult for you to come to a decision now without having the capability of hearing all that advice.
I encourage you to join with the members of the House of Commons committee who will undertake that review through their standing committee on Health. The honourable Roger Simmons, the chair, has made a commitment that that review will take place.
The dilemma facing you is real; there is no question. However, it may be an opportune time for you to join with them and ensure that all of your concerns are addressed at the same time.
Senator Gigantès: Some years ago the Department of Health said that Nutrasweet presents less risks than saccharine, so I dutifully switched to Nutrasweet because sugar allegedly presented more risks to me than Nutrasweet. However, we have not made saccharine illegal. It is still sold; little packets of it are still offered in restaurants.
It is a question of evaluating the risk, as I have said before, but we must have some information. Is it more or less deadly than other things we allow like tobacco and alcohol? Unless we evaluate the risks, we are not doing our duty.
Senator Doyle: You have just finished speaking on the need for an in-depth, scientific study of cannabis, the dangers it presents and the methods of controlling it. We asked at the same time for an in-depth, scientific study on sentencing and what we have accomplished over the years with the law as it has stood at various times. This is the second time I have studied marijuana in this very committee over the last decade.
The first time I ever heard of marijuana was in a movie which was brought to my high school. The movie was titled Reefer Madness. Marijuana was shown as a thing that made you impossibly sexy and attractive and then, of course, brought you down. After using it you were no longer in the esteem of your parents; they were disgraced. All sorts of terrible things happened.
I can remember being impressed enough to want to find out more from someone who had used it. I could not find a soul who had used marijuana who was willing to talk to me. However, it was a "big problem", and so it has gone. The record now seems to show that anyone who was the age that I was when this confrontation came in high school who has not used marijuana would be more of the exception than the rule.
That, gentlemen, is the progress we have made over the years with a little bit of help from outside the country, a little bit of help from the Moonies and a little bit of interference because there is much money to be made out of trafficking in that substance. Yet, I cannot think of one thing that has been done in-depth or scientifically which has been successful. We are still talking about whether there ought to be a law against it.
When you are looking at it from the scientific point of view, can you get us a study on how changes in the law have affected it and how courts have responded to the law in different parts of this country? Sometimes there are differences in sentencing not only in different parts of the country but in the same city, depending on the judge.
If we are to impress anyone under 40 with the validity of our system on this and with the continued classification of marijuana as a prohibited substance, if we want them to believe in what we are doing, we need more facts than we now have and more experience than we are willing to admit.
Perhaps someone can tell me that such a study on sentencing and the effect of the law exists in the library, or that no such study exists but that one can be done.
Mr. Rowsell: You are a very wise man. There will never be "a" study. Without presupposing the intent of the undertaking of the house committee, it is not to do just a scientific study. My understanding is that it is their intention to look at all of the parameters that you have raised; that is, the social issues, the societal parameters, and the science of the substance itself. Their intention is to look at this in a very broad manner to cover all the issues you have raised.
Senator Doyle: I specifically asked for some kind of study of the law as it has stood, what effect it has had and how evenly it has been administered. That is not an unattainable study. I am only talking about the Canadian experience.
Mr. Saint-Denis: I am not sure that some of that is actually amenable to scientific study. Trying to determine a cause-effect relationship between the existence of a law and a lack of behaviour is not easy to do in the best of circumstances.
I do not think you need a scientific study to determine whether there are any qualities in the application of the law. As an operational hypothesis, you must accept that the law is applied unevenly across the country. It is not the same to say that it is applied unfairly, it is just not applied in the same way. There are factors that contribute to that, which have been alluded to by other speakers as well.
In terms of the impact the law has on an individual's behaviour, a lot of it is conjecture. Some will be impressed by the existence of a criminal sanction attached to a type of behaviour and will not enter into that behaviour. Others might be attracted by the very existence of a penal law or a penal sanction attached to a certain type of behaviour. For others, it is simply not an issue. It depends on the individual. There are so many factors. I am not sure that it can be condensed and reduced to a scientific equation.
Mr. Normand: The same could be said for other offences in the Criminal Code such as simple theft or break and enter. For some people, that is nothing; for others, it is serious. The fact that it is illegal will not stop some people from doing it. It is not something that is particular to the possession of drugs.
Senator Doyle: Why is it that we have this mystery about marijuana and other drugs but not about wine, for example, although wine probably accounts for as many victims, as much disaster and as much good merriment as marijuana ever will?
I think I understand what is going on there. I understand the risk taken, the penalties provided and the way the law is administered. It has been a long time since we have had a solid showing of concern about the way we handle wine under our law except, perhaps, here in Ontario, where people argue it should be sold in all commercial stores. However, on marijuana there are fierce positions pro and con and people who are in the middle and do not understand one way or the other. Why do we continue that? You are representing the Department of Justice. Show us the justice in what you propose.
Mr. Normand: You have discussions on marijuana because it is illegal. If wine was illegal, you would have the same discussion about it. At one point, a decision was taken by various countries to criminalize this drug, based on facts. I refer again to the Hamon case, where testimony was given by the Government of Canada which led the court to determine that making this a crime was not unreasonable as far as the Charter is concerned.
They talk also about tobacco and alcohol in this decision. Justice Beauregard looks at it in relation to behaviour. On page 494 he says that "one could answer that tobacco does not cause erratic behaviour in the user...", as opposed to drugs.
Justice Beauregard deals with alcohol by saying that it would probably be necessary to take into account our cultural traditions, which perhaps put a damper on the state's desire to prohibit the use of alcohol. That decision was given in the context of the Charter.
When something is illegal and is as predominant in public discussion as the topic of marijuana is today, you will definitely hear pros and cons. That is why the House accepted and recommended that an in-depth review of the policy be undertaken.
Senator Doyle: If we made marijuana legal, perhaps we would be able to find out how to regulate it, how to supply it as well as use it, and perhaps we would begin to have a certain amount of equanimity about it as we do with wine.
Senator Jessiman: On pages 492 and 493 of the Hamon decision it states:
It must be presumed that Parliament, in continuing to prohibit the cultivation and possession of marijuana, based its decision on the enlightened opinions and good faith of these specialists.
Here we are talking about that. We know from what people have told us that that is not the case at all. But courts say, "Parliament says it is so, therefore it must be so." You are saying the opposite. We hear both sides of it. From what we have heard, 90 per cent say that it is not detrimental. Before we pass this bill, we should have a study. If we pass this bill, the courts will depend upon it. We are making the law here, and it puts us in a difficult position.
The Chair: I would like to thank Mr. Saint-Denis for his clarity on summary conviction. Throughout the entire discussion on the gun bill, I was looking for that kind of statement. We were convinced by testimony that summary conviction would ensure that those fingerprints did not show up on CPIC. But no one, including officials from the Department of Justice, ever told the committee that fingerprints would never be taken. Thank you for that clarity. I am sure I will use it in my correspondence in the next few months.
I am concerned about the principle of absolute discharge. We know that anyone can apply for an absolute discharge, within reason.
Let me give you a classic example. A young person is arrested, charged and convicted for possession. He is representing himself. He knows the fine will probably be not more than $100. He will go to court, plead guilty, pay his fine and walk out the door. No one tells him about an absolute discharge. No one tells him he can apply for one. No one tells him that if he applies for an absolute discharge and it is granted, according to the information given here, he would have no criminal record.
What if we changed the law to say that an application for absolute discharge has to be made in each case of marijuana possession?
Mr. Saint-Denis: There is a small technical point. One does not apply for a conditional discharge. It is part of the range of sentences that a court can impose. The judge, either as a result of a submission by the Crown or the defence, or on his own, will conclude that in this case a conditional discharge or an absolute discharge is warranted and will simply act on that. Once a person has been convicted, there is no possibility to apply for a discharge; he has already been convicted.
The Chair: I realize that. But if the Crown is interested in absolute discharge, he will act. If the young person has hired counsel, he may act. But what about the case of the young person who has no knowledge whatsoever about an absolute discharge? The judge does not initiate it.
Mr. Saint-Denis: The judge can, on his own. If the judge is of the view that the offence is of such a minor nature that it does not require more than a discharge, he will do that. Whether or not there have been submissions to obtain such a discharge is irrelevant. The judge can act on his own.
The Chair: Can the law make it compulsory that it be considered?
Mr. Saint-Denis: Yes, technically it could. I am not sure exactly how one would do that.
The Chair: I am not either.
Senator Bryden: It says somewhere in the documents that this started out as a housekeeping bill. No one who has appeared before us thinks you are a very good housekeeper. No one is willing to support this bill unless something is fixed. The general position was one of very great concern.
We are trying to adhere to the 1961 treaty. Although it has been updated, that treaty was made 35 years ago. The treaty dealing with trafficking, importing and exporting was made in 1988.
The policies from which some of this flows are at least 35 years out of date. Those polices were probably in place 10 years before the convention stage was reached.
The 1988 treaty was made right in the middle of the war on drugs by the most powerful nation on earth. I would be willing to bet that the treaty was driven by the U.S.
I got the impression from what you said that marijuana was included in the treaty because Mexico was getting hammered for being the producers, importers, and so on. Basically, they were getting hammered for trafficking and importing. The Mexicans were saying, "If we did not have a market in the U.S., we would not be so bad."
Is it fair to say that marijuana was included at the instigation of Mexico as a quid pro quo for them signing the treaty?
Mr. Saint-Denis: No, it is not. You have raised two issues. The first is the age of the 1961 convention. It is 35 years old. It reflects concerns of that time, but perhaps things have changed since then. The 1961 convention is, in nature and purpose, considerably different from the 1988 convention. The 1961 convention and the 1971 convention, which deals with psychotropic substances, deal with the control, regulation and administration of trade, production and cultivation of narcotic drugs. Their purpose is to ensure that there is a coherent system for dealing with narcotic drugs worldwide.
The production of narcotic drugs is limited to a handful of countries. Approximately four or five countries produce the opium poppy, which is used to produce morphine, heroin and all of its derivatives; whereas only one or two countries produce the coca bush. We wanted to be sure that there existed a regime whereby the natural product could make its way to the rest of the world in an orderly fashion to be used for medication for the treatment of pain.
The 1961 convention did that. It is called the Single Convention because it gathered under one convention the provisions of several conventions before it. It unified the provisions of all these conventions into one single convention; hence the Single Convention. One of a great number of elements in this convention is the requirement for the criminalization of certain types of behaviour.
The 1988 convention is totally different. It is primarily preoccupied with the notion of law enforcement and the effort needed worldwide to deal with trafficking. The orientation and the philosophical underpinnings of the conventions are totally different.
Senator Bryden: Could we comply with the 1961 convention and not with the 1988 convention?
Mr. Saint-Denis: No. We have signed both.
Senator Bryden: Could we not comply with the 1961 convention while not being in complete compliance with the 1988 convention?
Mr. Rowsell: That is what we are doing now. We are in compliance with the 1961 convention, but not with the 1988 convention.
Mr. Saint-Denis: And with some elements of the 1971 convention, which is why this bill is here as well.
With respect to the Mexican question, Mexico is considered to be a producer country. The concern of Mexico was not really that the U.S. is a big consumer market and if there were no consumer they would not be tarred as a producer country and therefore, in order for them to have their say, that section must be included. That was not their position.
The Mexican delegation pointed out that trafficking is not a one-way street. In order for there to be a seller, there must be a buyer. It was not a remark directed at the U.S. It is a simple observation. They were saying that we must be able to deal with the issue of drugs from both sides. Buying is part and parcel of trafficking. As a criminological observation, that is quite right.
Senator Bryden: Perhaps so, but if there are no turnips, you do not have to control the turnip market. If no restricted drugs are being produced in Mexico, then Mexico does not have to worry about the market for those restricted drugs that is created in the United State.
Mr. Rowsell: But someone will import them.
Senator Bryden: You can control the substance by cutting off the supply or cutting off the market. If you cut off the market totally, no one will supply it.
Mr. Saint-Denis: The observation was not made as a result of Mexico being a producer country. They were supported by countries that were not producer countries or transit countries. The observation was made from the classical view of what constituted trafficking, which was always from the perspective that it involves selling and nothing else. They were saying that it is not just selling; it is also buying. The observation struck a sympathetic chord with a number of countries that have nothing to do with producing or transiting.
That is why we came up with this complex provision to include possession but to exclude it from the general operation of the convention. Everyone recognized that possession was relatively minor, particularly possession for the purpose of personal consumption. It was relatively minor compared to what we wanted this convention to deal with. It was simply an effort by Mexico to point out that trafficking is not just selling; it is also buying. They were adamant that the convention should apply to both equally. Others were equally adamant that it should not. The compromise was finding a way to say that while we must criminalize possession, the rest of the convention will not apply to that particular offence. We will just highlight it, make it clear that people have to criminalize that sort of activity, and then carve a niche for it outside the scope of the rest of the convention.
Senator Bryden: When I lived in the real world, I made a good part of my living negotiating labour contracts. The clause that gave us the most trouble was the final one that had to be done at midnight to get the deal done. I have the impression that that may be what happened here.
Mr. Saint-Denis: No. That particular clause was resolved about halfway through our discussions and negotiations. It was not a last-minute, horse-trading type of clause at all.
Senator Milne: Mr. Rowsell, I know that you are Director of the Bureau of Drug Surveillance, but you are here representing the Department of Health. Perhaps you can answer these questions for me.
We received a letter from a Dr. Riley who pointed out that the Canadian Drug Strategy was terminated a year ahead of schedule. She suggests in her letter that the decision to terminate was due to the program's variance with the health department's view on drugs. She summarizes her charges very well and states:
Because the policy arm of the CCSA did not toe the party line with regard to maintaining the status quo on drug policy issues, it has been effectively silenced.
The CCSA is the Canadian Centre on Substance Abuse. It receives its funding from the Canadian Drug Strategy. Dr. Riley was recently laid off when the termination of the CDS ended funding for this program.
Why was the Canadian Drug Strategy terminated a year ahead of schedule? How does the department respond to charges that the decision to terminate was an attempt to silence the Canadian Centre on Substance Abuse because it often took positions contrary to government policy?
Dr. Riley even goes so far as to claim in her letter to the chairman of this committee that she was threatened with having her employment reconsidered if she continued to be critical of the government's policies. Can you comment on this?
Mr. Rowsell: The review of the funding for the Canadian Drug Strategy was part of Program Review II, which is the government's decision to review all programs with regard to funding and how they were proceeding. The review for funding was part of that government-wide program.
To the best of my knowledge, not all funds were eliminated. There is still some funding of the Canadian Drug Strategy, but I am not familiar with the details. The assistant deputy minister of our health programs branch, Ms Kay Stanley, has responsibility for that program. I can try to find out for you how that was done.
I have no knowledge as to the implications for the Canadian Centre on Substance Abuse or anything beyond that.
Senator Milne: You have not answered my question.
Mr. Rowsell: I can try to find out for you.
Senator Milne: I know it is not your fault.
I have two other concerns. As I read through this bill, I felt that it is not a bill for improving Canadian health; rather, it is a punitive bill. That concerns me. How does Health Canada square that feeling with what Mr. Gilmour said earlier today, that the fundamental principle should be one of restraint with regard to the application of criminal law? This bill seems to run against that feeling of restraint.
Mr. Rowsell: With regard to the harm reduction approach to dealing with substance abuse, the bill talks about things you cannot do. It then makes provisions for regulations to be developed for things that can be done. Most of the things that can be done health-wise are in the regulations, such as authorizing physicians to prescribe, pharmacists to dispense and manufacturers to produce therapeutic substances. At the same time and in the context of the Canadian Drug Strategy, we look at this bill as part of the supply-control end of things.
The demand reduction side - education, treatment, prevention and rehabilitation - is something in which many partners across Canada are involved. You heard many witnesses say that people cannot get into treatment centres. We are putting them into jail when in fact they should be going in for treatment. There is likely no one here who would speak against that.
That is what we should be doing. However, there is no funding for the provinces to go into those things. Again, the delivery of health care is a provincial jurisdiction.
There have been debates on the subject of how we take money away from the penitentiary system and put it into the health care system.
Senator Milne: Or take people out of the penitentiary system.
Mr. Rowsell: Those debates go beyond anything that we can deal with. We are attempting to look at this from a health perspective.
The Chair: Senators, it is clear that our time is getting short. I think we will have to have these officials back to finish our questioning. The clerk will arrange a time convenient for the witnesses and for this committee.
[Translation]
Senator Nolin: You have attended all of the meetings that we have held. You have had access to all of the documentation. I would like to focus on a number of arguments that were raised by certain witnesses. Mr. Raymond, among others, referred to police corruption in his letter. Representatives of the hemp industry presented some very credible arguments to us. The briefs submitted by the Canadian Bar Association raised some incontrovertible facts. You will have to examine all of this information very carefully so that we can continue our study and arrive at the best possible position, which may mean not passing the bill as it now stands. There have been other commissions of inquiry. We have had a single convention for 35 years and it seems that we have been hearing for the past 35 years that cannabis is not a dangerous substance.
Will a study by the House of Commons really settle this argument? I have my doubts. We have a bill and a kind of bargaining chip which may move us a step closer to finding a solution to a problem which is by no means a purely medical one. I am concerned that we may be adopting this solution simply because all other countries are doing it. We will not be the first to break the ice. Make all the arrangements you need. This meeting will last two or three hours.
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Senator Milne: I have a question to which these gentlemen could bring back an answer.
Yesterday, we heard from some people who were very concerned. I asked them if they had the same concerns about substance abuse with regard to the agricultural growth of fibre hemp. One of them answered that, yes, a paste can be made from fibre hemp that is strongly hallucinogenic. When you come back I would like you to tell us whether that is true.
The Chair: A summary has been made of all the amendments that have been requested of this committee by various witnesses. We will share this document with you. It will be useful if you address every one of those requests for amendment at our next meeting.
Senator Nolin: If during the presentations made to this committee you have heard false information, please let us know. Do not think that if we do not ask questions we think the information is false. We think the opposite.
Mr. Rowsell: It has not been false, but it has been directed.
Senator Nolin: Then comment on it.
Senator Doyle: Does Health Canada or the Department of Justice have a list of various projects that have been launched to find out how we might change the law or adjust the law? We are constantly being told what they are doing in the Netherlands and Australia; then we are told what is happening out in Vancouver. However, what have we as a country been doing to find out more about the subject we are discussing?
The Chair: We will address that issue as well.
The committee adjourned.