IN THE SUPREME COURT OF CANADA
(On appeal from the Courts of Appeal for Ontario and British Columbia)
JOINT STATEMENT OF LEGISLATIVE FACTS
B E T W E E N:
CHRISTOPHER CLAY
#28189
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
- and between -
DAVID MALMO-LEVINE
#28026
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
- and between -
VICTOR EUGENE CAINE
#28148
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
JOINT STATEMENT OF LEGISLATIVE FACTS
JOINT STATEMENT OF LEGISLATIVE FACTS
A. The factual findings in the courts below concerning the the constitutional challenge
B. The recreational use of cannabis: past and present
C. The origins and development of the Canadian criminal prohibition of cannabis
D. Social science evidence demonstrating that it is the criminal prohibition of marijuana which causes significant social harm while providing little (if any) benefit to society
1. Who uses cannabis and how often?
2. The use of marijuana does not cause users to engage in criminal behaviour
3. The social harm caused by the criminalization of marijuana
4. The inefficacy of the criminal prohibition as a general or specific deterrent to the consumption of cannabisE. The evidence fails to establish that cannabis consumption is sufficiently harmful either to users or to others so as to justify the state resorting to a criminal prohibition
1. Physical dependence or addiction?
2. The 'Amotivation' Syndrome?
3. Effects on the fetus, fertility and conception?
4. Effects on the immune system?
5. Brain damage and mental disorder?
6. Pulmonary harm?
7. Toxicity?
8. Impairment of driving ability?
9. Other possible harms to non-consuming members of society?G. The LeDain Commission Report and the recent history of Canadian legislative reactions
H. Law reform in the international community
1. Decriminalization in the Netherlands
2. Decriminalization in the United States of America
3. Decriminalization in Australia
4. Decriminalization in Italy
5. Decriminalization in Germany
6. Decriminalization in Spain
7. Decriminalization in Columbia
8. Decriminalization in Great Britain and Ireland
9. Decriminalization in Switzerland, Belgium and Denmark
JOINT
STATEMENT OF LEGISLATIVE FACTS
A)
The factual findings in the courts below concerning the constitutional
challenge
1.The
trial Judges in Clay and Caine heard expert opinion evidence
from some of the world’s leading social scientists, all of whom had devoted
much time to studying the effects of cannabis and the criminal prohibition of
cannabis. After hearing from more than 10 expert witnesses and 5
civilian witnesses on issues relating to the botanical, pharmacological,
medicinal, sociological, criminological and historical aspects of cannabis and
the prohibition, the trial Judge in Clay concluded that the criminal
prohibition on the use of cannabis originated in a “climate of irrational
fears” and that the supporters of the prohibition based their arguments on
“wild and outlandish claims”. He also concluded that “Canada and the
United States appear to be somewhat out of step with the rest of the western
world” with respect to reforming the law relating to cannabis use.
The Ontario Court of Appeal endorsed those conclusions.
-
Reasons for Judgment at trial, Appellant’s Record in Clay, Volume
XVI, p.3347 et seq;
-
Reasons for Judgment on appeal, Appellant’s Record in Clay,
Volume XVI, p.3432 et seq.
2.
Based upon the evidence presented by a “most impressive number of
experts”, the trial judge in Clay made the following findings of
fact:
1.
Consumption of cannabis is relatively harmless compared to the
so-called hard drugs and including tobacco and alcohol;
2.
There exists no hard evidence demonstrating any irreversible organic or
mental damage from the consumption of cannabis;
3.
That cannabis does cause alteration of mental functions and as such, it
would not be prudent to drive a car while intoxicated;
4.
There is no hard evidence that cannabis consumption induces psychoses;
5.
Cannabis is not an addictive substance;
6.
Cannabis is not criminogenic in that there is no evidence of a causal
relationship between cannabis use and criminality;
7.
That the consumption of cannabis probably does not lead to “hard
drug” use for the vast majority of cannabis consumers, although there
appears to be a statistical relationship between the use of cannabis and a
variety of other psychoactive drugs;
8.
Cannabis does not make people more aggressive or violent;
9.
There have been no recorded deaths from the consumption of cannabis;
10.
There is no evidence that cannabis causes amotivational syndrome;
11.
Less that 1% of cannabis consumers are daily users;
12.
Consumption in so-called “de-criminalized states” does not increase
out of proportion to states where there is no decriminalization;
13.
Health related costs of cannabis use are negligible when compared to
the costs attributable to tobacco and alcohol consumption.
-
Reasons for Judgment at trial, Appellant’s Record in Clay, Volume
VII, p.3347 et seq.
3. The trial Judge in Clay, however, also took note of the “four major grounds for social concern” which the LeDain Commission had identified more than 25 years earlier:
...
the probably harmful effect of cannabis on the maturing process in
adolescence; the implications for safe driving arising from impairment of
cognitive functions and psycho motor abilities, for the additive interaction
of cannabis and alcohol and from the difficulties in recognizing or detecting
cannabis intoxication; the possibility, suggested by reports in other
countries and clinical observations on this continent, that the long-term,
heavy use of cannabis may result in a significant amount of
mental deterioration and disorder; and the role played by cannabis in the
development and spread of multi-drug use by stimulating a desire for drug
experience and lowering inhibitions about drug experimentation.
In
addition to accepting the trial Judge’s above-quoted findings in this case,
Rosenberg J.A., in the companion case of R. v. Parker, infra,
summarized the Ontario Court of Appeal’s conclusions on the level and cogency
of the potential harms associated with cannabis consumption as follows:
In
the companion case of R. v. Clay, I have reviewed at greater length the
state's objectives in prohibiting marihuana. First, the state has an interest
in protecting against the harmful effects of use of that drug. Those include
bronchial pulmonary harm to humans; psychomotor impairment from marihuana use
leading to a risk of automobile accidents and no simple screening device for
detection; possible precipitation of relapse in persons with
schizophrenia; possible negative effects on immune system;
possible long-term negative cognitive effects in children whose mothers used
marihuana while pregnant; possible long-term negative cognitive
effects in long-term users; and some evidence that some heavy
users may develop a dependency. The other objectives are: to
satisfy Canada's international treaty obligations and to control the domestic
and international trade in illicit drugs.... [Emphasis added.]
-
Reasons for Judgment at trial, Appellant’s Record in Clay, Volume
XVI, p. 3347 et seq;
-
Reasons for Judgment on appeal, Appellant’s Record in Clay, Volume
XVI, p. 3435;
-
R. v. Parker (2000), 146 C.C.C.(3d) 193 at 246 (Ont. C.A.).
4.
On the basis of evidence very similar to that presented to the trial
Judge in Clay, the trial Judge in Caine made “almost
identical” findings of fact to those which were made by the trial Judge in Clay:
1.
The occasional to moderate use of marihuana by a healthy adult is not
ordinarily harmful to health, even if used over a long period of time.
2. There is no conclusive evidence demonstrating any irreversible organic or mental damage to the user, except in relation to the lungs. Reports of lung damage are limited to chronic, heavy users such as a person who smokes at least 1 and probably 3-5 marihuana joints per day.
3. There is no evidence
demonstrating irreversible, organic or mental damage from the use of marihuana
by an ordinary healthy adult who uses occasionally or moderately.
4.
Marihuana use causes alteration of mental function and should not be
used in conjunction with driving, flying or operating complex machinery.
5.
There is no evidence that marihuana use induces psychosis in ordinary
healthy adults who use marihuana occasionally or moderately. In relation to
the heavy user, the evidence of marihuana psychosis appears to arise only in
those having a predisposition towards such a mental illness.
6.
Marihuana is not addictive.
7.
There is a concern over potential dependence in heavy users, but
marihuana is not a highly reinforcing type of drug, like heroin or cocaine.
Consequently, physical dependence is not a major problem. Psychological
dependence, however, may be a problem for the chronic user.
8.
There is no causal relationship between marihuana use and criminality.
9.
There is no evidence that marihuana is a gateway drug and the vast
majority of marihuana users do not go on to try hard drugs.
10.
Marihuana does not make people aggressive or violent, but on the
contrary it tends to make them passive and quiet.
11.
There have been no deaths from the use of marihuana.
12.
There is no evidence of an amotivational syndrome. Chronic use of
marihuana could decrease motivation, especially if such a user smokes so often
as to be in a state of chronic intoxication.
13.
Assuming current rates of consumption remain stable, the health related costs
of marihuana use are very, very small in comparison with those costs
associated with tobacco and alcohol consumption.
As
the B.C. Court of Appeal noted, the trial Judge in Caine did find that
cannabis is not a “completely harmless drug for all individual users” on
the basis of the concerns raised by the LeDain Commission.
The trial Judge in Caine also relied upon the 1994 Australian
“Hall Report” in concluding that there were some potential adverse health
effects associated with the chronic use of cannabis.
On the basis of the Hall Report, the trial Judge in Caine was
also satisfied that the "major probable adverse effects" for chronic
use include respiratory diseases, the development of a "cannabis
dependence syndrome", and "subtle forms of cognitive impairment,
most particularly of attention and memory, which persist while the user
remains chronically intoxicated, and may or may not be reversible after
prolonged abstinence from cannabis". Finally, as the B.C. Court of Appeal
observed, the trial Judge in Caine arrived at the following conclusions
concerning the potential harm to society from those who consume cannabis:
The
trial judge also considered the "risk of harm to others or to society as
a whole" from smoking marihuana. She found that the only such risk could
be from a person in a state of intoxication should he or she drive, fly, or
operate complex machinery. However, the trial judge noted that s. 253 of the
Criminal Code already prohibits such activities.
The
trial judge also considered the "burden upon society" brought about
by smoking marihuana. She concluded that current rates of marihuana
consumption have not caused any burden on the health-care system, particularly
when compared with the costs associated with alcohol or tobacco.
-
Reasons for Judgment on appeal, Appellant’s Record in Malmo-Levine,
Volume II p.273 et seq.
5.
Years prior to the decisions of the courts below, similar
constitutional challenges had been brought before the courts in B.C. and in
Quebec, though based on very different (i.e., minimal) evidentiary
records. In R. v. Hamon, infra,
the Quebec Court of Appeal dismissed the constitutional challenge to the
criminal prohibition on cannabis. The
only expert witness called by the Crown in both Clay and Caine, Dr.
Kalant, had also testified at trial for the Crown in the case of Hamon
in October, 1991. At trial in Caine,
Kalant testified here that, since the time when he had testified in Hamon,
there have been a number of significant developments reviewing and updating
our scientific knowledge with respect to cannabis.
Some of these reports and studies are as follows:
(i)
The review of the scientific evidence by Professor Zimmer and Dr.
Morgan entitled Marihuana Myths and Marihuana Facts;
(ii)
The 1994 study by Gruber and Pope which found no convincing evidence
that marihuana causes serious psychiatric problems;
(iii)
The study by Kouri and Pope in 1985 which found no difference in
psychiatric problems when heavy marihuana users were compared with infrequent
users;
(iv) The Australian (or “Hall”) Report and its review of recent scientific literature;
(v)
The Robbe studies in the Netherlands on driving while under the
influence of marihuana;
(vi)
The 1993 U.S. National Highway and Transportation Safety Study
examining the influence of marihuana on drivers;
(vii)
A study by Slicker in 1992 which looked at organic changes in the brain
and found no residual neuro-pathology or detectable bio-chemical differences;
(viii)
The study by Kouri and Pope in 1995 establishing that there is no
symptom or syndrome known as the “amotivational syndrome”;
(ix)
The New South Wales and Sydney Reports examining marihuana dependency
issues.
In
R. v. Cholette, infra, Dorgan J. also dismissed the constitutional
challenge. Most of the
above-noted new advances in the research also post-date Dorgan J.’s
decision.
-
R. v. Hamon (1993), 85 C.C.C.(3d) 490 (Que. C.A.);
- R. v. Cholette, [1993], B.C.J. 2616 (B.C.S.C.).
B)
The recreational use of cannabis: past and present
6.
Cannabis has been around for at least 12,000 years.
It is believed that people have been cultivating cannabis sativa for
over 5,000 years.
There is definitive proof that it was being cultivated by the year
4,000 B.C. in China and by 3,000 B.C. in Turkestan.
It has been used as an ingredient in cloth, rope, paper and oils for
industrial purposes.
It has long been used as a medicine in India, China, the Middle East,
South East Asia, South East Africa, and South America.
The first evidence of the medicinal use of cannabis is found in a
document entitled Herbal (an ancient equivalent of the U.S.
Pharmacopoeia) that was published in China.
This document recommended cannabis for malaria, constipation, rheumatic
pain, absent-mindedness and female disorders.
In India, cannabis was recommended to quicken the mind, lower fevers,
induce sleep, cure dysentery, stimulate appetite, improve digestion, relieve
headaches and cure venereal disease.
In Africa, it was used for dysentery, malaria and other fevers.
Cannabis was also considered by Galen and other physicians of the
classical and Hellenistic eras to be a remedy for various ailments.
-
Dr. L. Grinspoon Affidavit, Appellant’s Record in Clay, Volume
XI, p.2218;
-
Reasons for Judgment on appeal, Appellant’s Record in Clay,
Volume XVI, p.3432.
7.
Historically, the consumption of “hemp” (i.e., cannabis) was
only ever associated with its positive effects.
In ancient Summer, hemp was called the "plant of forgetting
worries" and the "old men are young again" plant.
In Herodotus's "Nine Books of History", the founder of
ethnography relates how the Scythians
would "howl with joy" after enjoying a hemp
"smoke-bath" in tents they made for the event. Democritus - the
"laughing philosopher" of ancient Greece - noticed that hemp based
beverages promoted "immoderate laughter".
Arab doctors in the twelfth century advised that eating "a
little" cannabis does help "against sorrow". Tibetan
pharmacopias state that hemp produces feelings of "elation".
In India, cannabis was called "the giver of delight" and the
"soother of distress" from ancient times onward.
Linnaeus wrote that cannabis had the effect of "chasing away
melancholy", making you "happy and funny".
-
Dr. L. Grinspoon Affidavit, Appellant’s Record in Clay, Volume
XI, p.2418.
8.
Throughout the 19th century, and the early part of the 20th
century, cannabis was primarily used for medicinal purposes; however, in the
19th century, cannabis became the subject of recreational
experimentation among the literary giants of France and England, including
Baudelaire, Gauthier, Balzac, and Hugo.
In the 1840's, these writers would ingest hashish brought from Egypt
and then record their observations on how this substance affected their
literary muse.
In America, the recreational use of cannabis was limited to a small
group of jazz musicians and itinerant Mexican workers crossing the border from
Mexico into Texas.
-
Dr. L. Grinspoon Affidavit, Appellant’s Record in Clay, Volume
XI, p.2418.
9.
More modern sources of evidence of the uplifting effect of consuming
cannabis can be found in the Indian Hemp Drug Commission Report (1893) and all
of the subsequent major commissions which have studied the effects of cannabis
consumption. It
is now known that the cannabis plant contains many chemical compounds and
particularly a number of cannabinoids.
The cannabinoid primarily responsible for cannabis’s psychoactive
effects is delta-9-tetrahydrocannabinol 9"THC”).
When smoked, the THC enters the systemic circulatory system and is
distributed to the fatty tissue, including the brain.
It then slowly diffuses from the tissue into blood and is then
metabolised and excreted in urine and faeces.
The distribution phase lasts approximately 30 minutes and the
elimination phase over several days.
The LeDain Commission described the psychoactive effects of cannabis
consumption as follows:
A
cannabis ‘high’ typically involves several phases.
The initial effects are often somewhat stimulating and, in some
individuals, may elicit mild tension or anxiety which usually is replaced by a
pleasant feeling of well-being.
The later effects usually tend to make the user introspective and
tranquil. Rapid
mood changes often occur.
A period of enormous hilarity may be followed by a contemplative
silence.
Psychological
effects which are typically reported by users include: happiness, increased
conviviality, a feeling of enhanced interpersonal rapport and communication,
heightened sensitivity to humour, free play of the imagination, unusual
cognitive and ideational associations, a sense of extra-ordinary reality, a
tendency to notice aspects of the environment of which one is normally
unaware, enhanced visual imagery, an altered sense of time in which minutes
may seem like hours, changes in visually perceived spatial relations,
enrichment of sensory experiences (subjective aspects of sound and taste
perception are often particularly enhanced), increased personal understanding
and religious insight, mild excitement and energy (or just the opposite),
increased or decreased behavioural activity, increased or decreased verbal
fluency and talkativeness, lessening of inhibitions, and at higher doses, a
tendency to lose or digress from one’s train of thought.
Feelings of enhanced spontaneity and creativity are often described,
although an actual increase in creativity is difficult to establish
scientifically.
While most experts agree that cannabis has little specific aphrodisiac
(sex stimulating) effect, many users report increased enjoyment of sex and
other intimate human contact while under the influence of the drug.
Recently,
naturally occurring cannabinoid receptors have been identified in the human
body, especially the brain.
The naturally occurring substance, an endogenous ligand, which is
responsible for generating chemical reactions within the body’s biochemical
system has been named “anandamide”.
-
LeDain Commission, Interim Report of the Commission of Inquiry into the
Non-Medical Use of Drugs (1970), at pp.78-9 and 202;
-
B. Beyerstein, Examination-in-chief, Appellant’s Record in Caine,
Volume I, p.22 to p.24;
-
Dr. H. Kalant, Cross-examination, Appellant’s Record in Caine,
Volume V, p.795 to p.799.
C) The origins and
development of the Canadian criminal prohibition of cannabis
10.
The 1911 Opium and Drug Act was Canada’s first criminal
prohibition on narcotics. The 1911 Act contained no reference to cannabis or marijuana.
In Canada, cannabis was not classified as a prohibited substance until 1923. When the amendment was first introduced to Parliament there
was not one word of debate or discussion.
The historical record does not provide any clear indication of why this
substance was prohibited in 1923; however, it is clear that the inclusion was
not in response to a real or perceived social problem.
On the other hand, the historical record does suggest that the creation
of the prohibition flowed from the many exaggerated and patently false claims
concerning the dangers of cannabis that had been published in the 1920's and
1930's in both Canada and the U.S.
-
J. Giffen Affidavit, Appellant’s Record in Clay, Volume VII,
p.1497;
- E. Oscapella, Examination in-chief, Appellant’s
Record in Clay, Volume III, p.710;
11.
For example, in 1923 the previously obscure plant, cannabis sativa,
was demonized by the writings of Emily Murphy, Canada’s first female judge.
Her book, “The Black
Candle”, spoke of marijuana as a “new menace to society” and claimed
that:
... persons using this narcotic plant smoke the dried
leaves of the plant, which has the effect of driving them completely insane.
The addict loses all sense of moral responsibility. Addicts to this drug,
while under its influence, are immune to pain, and could be severely injured
without having any realization of their condition. While in this condition
they become raving maniacs, and liable to kill, or indulge in any form of
violence to other persons, using the most savage methods of cruelty...
Murphy’s
writings, based on wild and outlandish claims of U.S. police officials,
greatly influenced the Canadian Government’s decision to include cannabis as
a criminally prohibited narcotic.
-
N. Boyd, Examination in-chief, Appellant’s Record in Clay, Volume
IV, p.831 to p.832;
- E. Oscapella, Examination in-chief, Appellant’s Record in Clay,
Volume III, p.712 to p.714.
12.
Despite the putative need to prohibit the use of cannabis in 1923, no
one in Canada was convicted of such an offence before 1937.
Then, for the next 25 years, there were but a handful of convictions in
any given year (approximately 12 per year).
By the 1960's, because foreign travel was no longer an activity
reserved to the rich, more and more Canadians were venturing out into other
parts of the world. During this
time period, cannabis became firmly associated with the “hippie movement”
and the opposition to the Vietnam war.
-
N. Boyd, Examination-in-chief, Appellant’s Record in Clay, Volume
IV, p.833 to p.835;
-
B. Beyerstein, Examination-in-chief, Appellant’s Record in Caine,
Volume I, p. 22 to p.33;
-
N. Boyd, Examination-in-chief, Appellant’s Record in Caine,
p.73 to p.104;
-
Dr. H. Kalant, Examination-in-chief and cross-examination, Appellant’s
Record in Caine, Volume
IV, p.906; Volume VII, p.1105;
-
Giffen, P.J., Endicott, S., Lambert S., Panic and Indifference – the
Politics of Canada’s Drug Laws – a Study in the Sociology of Law
(Ottawa: Canadian Centre on Substance Abuse, 1991. [part of Exhibit 18 at
trial in Caine; namely, Appellant Caine’s “Brandeis
Brief”);
-
Robbe, H.W.J. Influence of Marihuana on Driving, Chapter 2, General
Introduction, pp.13-16 – 2.1 History of Cannabis Use, Institute of Human
Pharmacology, University of Limberg, Maastricht (1994) [Exhibit 40 at trial in
Caine];
-
Hansard, House of Commons Debates [Exhibit 38 at trial in Caine];
-
Exhibit 18 at trial in Caine - “Brandeis Brief” Materials:
(Tab
2) Boyd, N. “The Origins of Canadian Narcotics Legislation:
The Process of Criminalization in Historical Context”, 8 Dalhousie
Law Journal 102
(Tab
3) Bryan, M.C., “Cannabis Canada – a decade of indecision”, Federal
Legal Publications, Inc. (1980)
(Tab
8) Oscapella, E., “Witch Hunts
and Chemical McCarthyism: The Criminal Law and Twentieth Century Canadian Drug
Policy” (Ottawa: June,1993)
(Tab
14) Abel, E.L. Marihuana: The First 12,000 Years (New York: Plenum
Press, 1980)
(Tab
16) Boyd, N. High Society:
Legal and Illegal Drugs in Canada (Toronto: Key Porter Books, 1991)
pp.9-11
(Tab19) LeDain
Commission, Cannabis: A Report of the Commission of Inquiry into the
Non-Medical Use of Drugs (Ottawa: Information Canada, 1972).
13.
Originally, the vast majority of cannabis was imported from South
America, India, Mexico, Thailand, Lebanon and other nearby countries.
By the 1980's, the domestic production of cannabis began to take hold. According to RCMP intelligence reports, it was estimated that
by 1980, over 80% of Canada’s cannabis was being domestically produced.
People began cultivating the substance in their homes and in their
backyards. In fact, the
cultivation of cannabis has been, and continues to be, the largest crop grown
in British Columbia.
- N. Boyd,
Examination-in-chief, Appellant’s Record in Clay, Volume IV,
p.835 to p.837.
14.
While the domestic production and consumption levels grew, so too did
the mobilization of the criminal justice system.
By 1979, more than 200,000 Canadians, about 85% of whom were under 25
years of age, had been found guilty of the criminal offence of possessing
cannabis. It is estimated that approximately (if not more than) 600,000
Canadians have now been saddled with criminal records for simple (i.e.,
personal) possession of cannabis. Unlike
the illicit trade in other “hard” drugs, violence has rarely been a
component of the illicit trade in cannabis; though violence is part and parcel
of cannabis law enforcement.
-
P. Erickson Affidavit, Appellant’s Record in Clay, Volume
VIII, p.1638;
- N. Boyd, Examination in-chief, Appellant’s
Record in Clay, Volume IV, p. 848.
D) Social science evidence demonstrating that it is the criminal prohibition of cannabis which causes significant social harm while providing little (if any) benefit to society
1)
Who uses cannabis and how often?
15.
The cannabis consumer in Canada generally has been described as a young
single male. He does not belong
to any one identifiable occupational or educational group. Over the past 30
years, the recreational use of cannabis has become widespread throughout
Canada insofar as its use is not restricted to any particular socioeconomic
group. The rate of cannabis
consumption is particularly high amongst professional groups: a recent survey
reported 54% of lawyers admitting having used cannabis along with 33% of
physicians. An informal survey of
law students in 1977 at Osgoode Hall Law School showed that 85% of the
graduating class admitted using cannabis and 70% professed an intention to
continue their use after graduation.
-
P. Erickson, Examination-in-chief, Appellant’s Record in Clay,
Volume II, p.471to p.473;
- N. Boyd, Examination-in-chief, Appellant’s
Record in Clay, Volume IV, p.846.
16.
National surveys demonstrate that one out of five adult Canadians has,
at some time in their life, consumed cannabis; that is, between 4-5 million
Canadians have consumed cannabis. The
vast majority of these people, however, have ceased using the drug as they
grew older. National surveys
suggest that only 4-6% continue to use cannabis throughout the course of their
life. Furthermore, of the 22.7%
who reported using cannabis in 1995, only 4.4% said that they had used
cannabis 40 or more times in the year, and only 1.6% were daily users.
In Ontario, surveys have documented that while 29.6% of adults had
smoked cannabis at least once in the lives,
only 9% of adults in Ontario had reported using cannabis during 1994.
The vast majority of those adult users reported using cannabis less
often than once per month. Of the
9% that reported using cannabis in 1994, only 2.1% of these adults reported
using cannabis at least once a week and only 0.4% reported using it on a daily
basis.
- P. Erickson, Examination-in-chief, Appellant’s
Record in Clay, Volume
II,
p.474 to p.476;
-
The Adolescent Health Survey, Province of British Columbia [Exhibit 14 at
trial in Caine];
-
National Alcohol and other Drugs Survey (1990), Health and Welfare Canada
[Exhibit 15 at trial in Caine];
-
Chapter 4, Licit and Illicit Drugs, CCSA/ARF 1995 Canadian Profile
[Exhibit 16 at trial in Caine];
- Licit and Illicit Drugs in Canada,
Part II: “Illicit Drug Use” (Health and Welfare Canada, 1989)
[Exhibit 17 at trial in Caine];
- Report of the Task Force into Illicit Narcotic
Overdose Deaths in British Columbia, Office of the Chief Coroner, Ministry
of the Attorney General, September 6, 1994, (in particular pp.85-94) [Exhibit
19 at trial in Caine].
17.
According to Dr. H. Kalant, the Federal government’s only expert
witness in both Clay and Caine, the total current marihuana
using population is estimated to be about 1 million Canadians or 4.2% of the
total population aged 15 or older. Of
that total group Dr. Kalant estimated that 95% of them were
low/occasional/moderate users for whom there were no significant health risks,
so long as they were healthy adults and did not fall into one of the
vulnerable groups, namely immature youths, pregnant women and the mentally
ill. He estimated the remaining
5% to be chronic users for whom there is a significant health risk primarily
from the process of smoking. Kalant
defined a chronic user to be a person who uses 1 or more marihuana joints
(cigarettes) per day. He agreed
that 5% of the total current user population (i.e., 4.2% of Canadians)
would amount to .21% or 1/5 of 1% of Canadians; that is, roughly 30,000
people. Kalant agreed that this
was a very small group of people. Leaving
aside potential harm to others from the acute effects of a user driving,
flying, or operating complex machinery, Dr. Kalant confirmed that his concern
in regards to this small group is the harm to their health as chronic users
and that their use did not involve harm to others or significant harm to
society as a whole. He also agreed that those chronic users could
substantially reduce the health risks to themselves by using marihuana joints
that were more tightly packed to reduce combustion temperatures, contained a
filter, were not smoked down to the end (roach) and were not smoked by deep
lung inhalation.
-
Dr. H. Kalant, Cross-examination, Appellant’s Record in Caine,
Volume VI, p.880, p.889, p.894 to p.898 and p.907;
-
B. Beyerstein, Examination-in-chief, Appellant’s Record in Caine,
Volume I, p. 49 to p.53 and p.130 to p.131; Volume II, p.301 and
317 to 319; Volume III, p.404 and p.414;
-
N. Boyd, Examination-in-chief, Appellant’s Record in Caine, Volume
I, p.84, p.86, p.88, p.92 to 97, p.106 to p.111, p.115, p.117 and p.127
to128; Volume III, p.404 and p.414;
-
Dr. A. Connolly, Examination-in-chief and Cross-examination, Appellant’s
Record in Caine, Volume III, p.489 to p.493 and p.522 to
p.526; Volume IV, p.555 to
p.557;
-
Exhibit 18 at trial in Caine - “ Brief” Materials:
(Tab
1) Boyd, N. “The Question of Marihuana Control:
Is De Minimis Appropriate, your Honour?” (1982), 24 Criminal Law
Quarterly 212
(Tab
2) Boyd, N. “The Origins of Canadian Narcotics Legislation: The Process of
Criminalization in Historical Context”, 8 Dalhousie Law Journal 102
(Tab
3) Bryan, M.C., “Cannabis Canada – a decade of indecision” (Federal
Legal Publications, Inc. 1980)
(Tab
7) Nadelmann, E., et al., “The Harm Reduction Approach to Drug Control:
International Progress” (New Jersey, 1994)
(Tab
8) Oscapella, E., “Witch Hunts and Chemical McCarthyism: The Criminal Law
and Twentieth Century Canadian Drug Policy” (Ottawa, 1993)
(Tab
13) “Submission on Bill C-7 the Controlled Drugs and Substances Act”,
National Criminal Justice Section of the Canadian Bar Association (May 1994)
(Tab
14) Abel, E.L. Marihuana: The
First 12,000 Years (New York: Plenum Press, 1980)
(Tab
16) Boyd, N., High Society: Legal
and Illegal Drugs in Canada (Toronto: Key Porter Books, 1991), pp. 106-107
(Tab
17) Erickson, P.G., Cannabis Criminals (Toronto: A.R.F. 1980)
(Tab
19) LeDain Commission, Cannabis: A
Report of the Commission of Inquiry into the Non-Medical Use of Drugs
(Ottawa: Information Canada, 1972)
(Tab
20) LeDain Commission, Final Report of the Commission of Inquiry into the
Non-Medical Use of Drugs (Ottawa: Information Canada, 1972).
180
Survey respondents have indicated that the drug is used predominantly
as a social activity engaged in with friends and partners during evenings,
weekends, and other leisure time. Most
users did not consume the drug while at work.
When asked about the specific benefits derived from cannabis use, the
most commonly mentioned response was relaxation (69%), followed by euphoria,
recreation, creativity, insight, pleasure and escapism (by between 12%-24%).
-
P. Erickson, Examination-in-chief, Appellant’s Record in Clay,
Volume II, p.479 to p.482;
-
P. Erickson Affidavit, Appellant’s Record in Clay, Volume
VIII, p.1638.
2) The use of cannabis does not cause users to engage in criminal behaviour
190
Prohibitionists often refer to the “gateway theory” as the
principal evil that justifies the criminalization of cannabis.
The gateway theory suggests that by taking one kind of drug (i.e.,
cannabis), an individual increases his/her risk of taking another
significantly harmful drug (e.g., cocaine and/or heroin).
However, research has shown that the vast majority of cannabis users
never go on to use and possess hard drugs.
The research has shown that there is nothing magical about the
“gateway theory” and there seems to be a complex constellation of social
and psychological factors involved in predicting the degree of deviant
behaviour a person might pursue.
A recent high school survey done in the United States revealed that, of
the of graduates who tried cannabis, only 16% of them went on to later try
cocaine. Thus,
for 84% of high school seniors, cannabis was a terminus, as opposed to a
gateway, drug.
In Canada, only 1 in 7 cannabis users have reported going on to try
cocaine and only 1 in 20 cannabis users have said that they went on to try
heroin. The
Crown’s own expert testified that he was satisfied that recent studies had
refuted the “gateway theory”.
-
P. Erickson, Examination in-chief, Appellant’s Record in Clay,
Volume II, p.484 to p.485;
-
P. Erickson Affidavit, Appellant’s Record in Clay, Volume
VIII, p.1638;
-
Dr. J. Morgan Affidavit, Appellant’s Record in Clay, Volume
XII, p.2585.
200
In addition, cannabis prohibitionists claim that the use of cannabis
somehow encourages criminal behaviour.
In fact, there is no proven criminogenic potential associated with
cannabis use. There
is no documented evidence suggesting that the consumption of cannabis drives
individuals to a life of crime or that users commit crimes in order to satisfy
their need to consume cannabis.
Indeed, cannabis is one of the few intoxicating substances that has
proven (in both human and animal research) to be negatively correlated with
violence. For
a majority of cannabis smokers, cannabis use constitutes their major risk
taking activity.
According to a survey conducted by Eric Single and Patricia Erickson,
it was found that cannabis users do not generally disrespect the law (although
they do tend to lack respect for the criminal prohibition on cannabis).
-
P. Erickson Affidavit, Appellant’s Record in Clay, Volume
VIII, p.1638;
-
E. Single, Examination-in-chief, Appellant’s Record in Clay, Volume
IV, p.803.
210
Intoxicated offenders are most often intoxicated by alcohol.
Alcohol acts as a disinhibitor and, thus, offenders often use alcohol
as a means of abandoning social restraints.
In contrast, cannabis is an inhibitor which generally exerts a calming
influence on the user.
In the British jail system, the prison guards have objected strongly to
screening out cannabis use because they find that the prisoners who smoke
cannabis are calm and restrained.
Cannabis use is believed to lower the incidence of aggression in the
jails.
-
D. Riley, Examination-in-chief, Appellant’s Record in Clay, Volume
III, p.597 to p.598.
3) The social harm caused by making cannabis consumption a criminal offence
220
The criminal justice system has devoted an enormous amount of its
limited resources to the fight to prohibit the personal and private use of
cannabis. A recent report on
Canada’s criminal prohibition of cannabis noted that “Canada annually
arrests more of its citizens per capita for cannabis possession than any other
country in the world.” It has
been estimated that by the 1990’s over 600,000 Canadians have received
criminal records for cannabis related offences. In recent years, convictions
for cannabis possession have fluctuated between 29,119 (1989) and 35,587
(1984), and on average 2,128 individuals/year have been incarcerated for
possession of cannabis (note: disposition
statistics for marihuana possession have not been published by the government
since 1985). Between 1977-1985,
93% of all cannabis convictions have been for simple possession and the
majority of all narcotics convictions have been for cannabis-related offences. In 1990, convictions for possession accounted for 50% of all
drug related convictions compared to 44% in 1981.
In 1990, the most recent statistics for convictions, 33% of the
convictions for possession resulted in custodial sentences.
Still, only a very small number of admitted cannabis users are
confronted by the criminal justice system and they are disproportionately
members of disadvantaged groups.
-
B. Beyerstein, Examination-in-chief, Appellant’s Record in Caine,
Volume I, p.51 to p.53;
-
N. Boyd, Examination-in-chief and Re-examination, Appellant’s Record in Caine,
Volume I, p.79 to p.87, p.91 to p.94, p.104, p.107, p.115 to p.116 and
p.126 to p.128; Volume III, p.395 to p.397;
-
Dr. A. Connolly, Examination-in-chief, Appellant’s Record in Caine,
Volume III, p.524 to p.525;
-
Dr. H. Kalant, Cross-examination, Appellant’s Record in Caine,
Volume V, p.865 to p.869; Volume VI, p.889 and p.895 to p.898; Volume
VII, p.1061 to p.1062 and p.1102
-
Chapter 4, Licit and Illicit Drugs, CCSA/ARF 1995 Canadian Profile
[Exhibit 16 at trial in Caine];
-
Licit and Illicit Drugs in Canada , Part II: Illicit Drug Use (Health
and Welfare Canada, 1989) [Exhibit 17 at trial in Caine].
230
The use of marihuana increased dramatically commencing in 1966 and
appeared to peak around 1979. Use
then appeared to decrease until about 1990 when a further increase was noted,
particularly among youths. However,
the 1993 General Social Survey (a
report prepared for the Studies Unit, Health Promotion Directorate of Health
Canada) reported that the current rate of use in 1993 was about 1 million, or
4.2% of, Canadians age 15 and older. This
represents a reduction in use from the 6.5% of those Canadians
who reportedly had used cannabis in 1990.
User rates today remain substantially lower than those recorded in the
late 1960’s and early 1970’s. Use
among 12-17 year olds in 1992 was 8% compared to 24% in 1979.
Use among 18-25 year old was 23% in 1992 compared to 46.9% in 1979.
- N. Boyd, Examination-in-chief, Appellant’s
Record in Clay, Volume IV,
p.847 to p.848;
-
N. Boyd Affidavit, Appellant’s Record in Clay, Volume IX,
pp. 1844, 1857, 1870 and 1918;
-
P. Erickson Affidavit, Appellant’s Record in Clay, Volume
VIII, p.1638;
-
P. Erickson, Cross Examination, Appellant’s Record in Clay, Volume
III, p.503;
-
Alcohol and Drug Use Results from the 1993 General Social Survey,
Report prepared for the Studies Unit, Health Promotion Directorate, Health
Canada, January, 1995 by Eric Single, Joan Brewster, Patricia McNeil, Jeffrey
Hatcher and Katherine Trainer [Exhibit 47 at trial in Caine];
-
The Adolescent Health Survey, Province of British Columbia, Chapter 10
“Substance Use and Abuse” [Exhibit 14 at trial in Caine];
-
National Alcohol and other Drugs Survey (1990), Health and Welfare
Canada, Part 2, Other Drugs [Exhibit 15 at trial in Caine];
-
Chapter 4, Licit and Illicit Drugs, Addiction Research Foundation
CCSA/ARF 1995 Canadian Profile [Exhibit 16 at trial in Caine];
-
Licit and Illicit Drugs in Canada (1989), Health and Welfare Canada,
Part II, “Illicit Drug Use” [Exhibit 17 at trial in Caine].
240
It is commonly asserted that the criminal justice system has now taken
account of the minimal social harm associated with, and the growing public
tolerance of, cannabis consumption by imposing more lenient sentences, such as
discharges. However, the trend
towards more lenient sentences has been marked by gross inconsistencies from
province to province and from year to year.
Since 1970, the absolute discharge was used in less than 10% of the
cannabis possession cases in Alberta, British Columbia and Quebec, whereas in
1983, 32% and 38% of cannabis users found guilty in Ontario and Manitoba were
so sentenced. A fine was imposed
in 44% of all cases in both Ontario and Manitoba during this time frame,
whereas the fine was imposed in 74% of all such cases in Alberta.
-
N. Boyd, Examination-in-chief, Appellant’s Record in Clay, Volume
IV, p.848 to p.849;
-
Exhibit 18 at trial in Caine - “Brandeis Brief” Materials:
(Tab
1) Boyd, N., “The Question fo Marihuana Control: De Minimis Appropriate,
Your Honour?” (1982), 24 Criminal Law Quarterly 212
(Tab
2) Boyd, N., “The Origins of Canadian Narcotics Legislation: The Process of Criminalization in Historical Context”, 8 Dalhousie
Law Journal 102
(Tab
3) Bryan, M.C., “Cannabis Canada – a decade of indecision”, Federal
Legal Publications, Inc. (1980)
(Tab
4) Erickson, P.G. and Fischer, B., “Canadian Cannabis Policy: The Impact of
Criminalization, the Current Reality and Future Policy Options” (Toronto:
A.R.F., 1995)
(Tab
8) Oscapella, E., “Witch Hunts
and Chemical McCarthyism: The Criminal Law and Twentieth Century Canadian Drug
Policy” (Ottawa: June,1993)
(Tab
10) Smith, R., “Prohibition isn’t working – some legislation will
help”, (1995), 211 British Medical Journal pp.23-30
(Tab
13) “Submissions on Bill C-7, the Controlled Drugs and Substances Act”,
National Criminal Justice Section of the Canadian Bar Association (May, 1994)
(Tab
16) Boyd, N. High Society:
Legal and Illegal Drugs in Canada (Toronto: Key Porter Books, 1991)
pp.9-11
(Tab
17) Erickson, P.G., Cannabis Criminals (Toronto: A.R.F., 1980)
(Tab
18) Apap et al., Questioning Prohibition (Brussels:
International Antiprohibitionist League, 1994), at p. 271 and p.275
(Tab
19) LeDain Commission, Cannabis:
A Report of the Commission of Inquiry into the Non-Medical Use of Drugs
(Ottawa: Information Canada, 1972), at p.265 to p.310 and p.301 to p.302 and
p. 310
(Tab
20) LeDain Commission, Final
Report of the Commission of Inquiry into the Non-Medical Use of Drugs
(Ottawa: Information Canada, 1973).
250
Although sentencing of cannabis users (i.e,. those found guilty
of simple possession) is now often tempered by leniency, a significant number
of Canadians continue to be incarcerated for possessing cannabis.
Prison sentences for possession of cannabis have been used more
frequently in Quebec than anywhere else in Canada, comprising over 20% of all
such sentences there. While the
absolute number of Canadian offenders being incarcerated for simple possession
was decreasing in the 1970's and early 1980's, the rate of incarceration for
simple possession was actually rising. In
1981, the incarceration rate stood at 6.7%.
By 1984, the total number of persons sent to jail for cannabis had
decreased, but the percentage of those being incarcerated rose to 8.8%.
Unfortunately, it is impossible to provide the Court with more current
figures for the rate of incarceration for cannabis offences because in 1985
the Bureau of Dangerous Drugs deliberately discontinued the publication of
statistics relating to the disposition of cannabis offences.
-
N. Boyd, Examination-in-chief, Appellant’s Record in Clay, Volume
IV, p.849 to p.852.
260
The impact of criminal convictions on the futures of young Canadians
has historically been identified as one of the most serious social harms
generated by the criminal prohibition of cannabis.
Upon being charged, tremendous costs are incurred during the pre-trial
period, costs which tend to have a much more dramatic impact on young people.
Most of the young people charged with cannabis offences are on the low
end of the socioeconomic scale and, thus, for them the financial burden is
particularly onerous. Once a
person is found guilty of a cannabis charge, s/he must confront the additional
adverse effects associated with having a criminal record for such an offence.
At trial in Clay, Mr. J.J. Shurie provided a detailed account of
the impact of being charged for his personal use of cannabis in the privacy of
his own home. Prior to being
charged with cultivating some cannabis plants in his basement, he was always
considered to be a model teacher. His
yearly performance evaluations were always positive and his students referred
to him as a motivator and role model. Even
before being convicted, Mr. Shurie was fired from his teaching position.
-
P. Erickson, Examination-in-chief, Appellant’s Record in Clay,
Volume II, p.489, p.490, and p.491.
-
P. Erickson Affidavit, Appellant’s Record in Clay, Volume
VIII, p.1638;
-
J.J. Shure, Examination-in-chief, Appellant’s Record in Clay, Volume
III, p.551 to p.560;
270
At trial in Caine, Dr. Kalant testified that one of the major
probable adverse effects of marihuana legal and social policy is the law
itself in terms of its disproportionate adverse impact on people caught using.
Both the B.C. Court of Appeal and the Ontario Court of Appeal,
acknowledged the existence of such a harm, as well as its seriousness.
Kalant also pointed out the negative effects which the criminal
prohibition has on the ability of scientists to conduct the research that they
would like to in order to resolve some of the questions that they still have.
He noted that some deaths in the drug field are because of prohibition
itself. He agreed that some of
the social problems relating to drug use are as a result of the social policy
itself. That the law is doing
more harm than good is one of the consistent underlying factors forming the
basis for the recommendations of various commissions and inquiries to
decriminalize simple possession of marihuana.
Professor Beyerstein testified at trial in Caine that there is
an emerging consensus amongst legal scholars, medical scholars, psychologists,
sociologists and others, that not only has prohibition been
counter-productive, but it has not reached its goals, has exacted a terrible
price in various ways that make it really intolerable and that a harm
reduction approach should be instituted in its place.
The end effect is that the “criminal justice” approach exacerbates
the health problems as well as making it more difficult for health
professionals to gather reliable data to analyze and assist in understanding
and solving the problem, if any.
-
Reasons for Judgment on appeal, Appellant’s Record in Clay,
Volume XVI, p.3432 et seq
-
Reasons for Judgment on appeal, Appellant’s Record in Malmo-Levine,
Volume II p.273 et seq;
-
B. Beyerstein, Examination-in-chief, Appellant’s Record in Caine,
Volume II, p.233; Volume II, p.315;
-
Dr. H. Kalant, Cross-examination, Appellant’s Record in Caine,
Volume VI, p.901 to p.902; Volume VII, p.1080;
-
Dr. A. Connolly, Examination-in-chief, Appellant’s Record in Caine,
Volume IV, p.526, p.547 and p.565;
-
Drug Prohibition in the U.S. Cost Consequences and Alternatives
[Exhibit 21 at trial in Caine];
-
“Avoiding Folly” [Exhibit 24 at trial in Caine];
-
Report of the Task Force into Illicit Narcotic Overdose Deaths in British
Columbia, Office of the Chief Coroner, Ministry of the Attorney General,
September 6, 199 [Exhibit 19 at trial in Caine];
-
Exhibit 18 at trial in Caine - “Brandeis Brief” Materials:
(Tab
4) Erickson, P.G. and Fischer, B., “Canadian Cannabis Policy: The Impact of
Criminalization, the Current Reality and Future Policy Options” (Toronto:
A.R.F., 1995)
(Tab
7) Nadelmann, E., et al., “The Harm Reduction Approach to Drug Control:
International Progress” (New Jersey, 1994)
(Tab
10) Smith, R., “Prohibition isn’t working – some legislation will
help”, (1995), 211 British Medical Journal pp.23-30
(Tab
13) “Submission on Bill C-7 the Controlled Drugs and Substances Act”,
National Criminal Justice Section of the Canadian Bar Association (May 1994)
(Tab
14) Abel, E.L. Marihuana: The
First 12,000 Years (New York: Plenum Press, 1980)
(Tab
16) Boyd, N., High Society: Legal
and Illegal Drugs in Canada (Toronto: Key Porter Books, 1991), pp. 106-107
(Tab
18) Apap et al., Questioning Prohibition (Brussels:
International Antiprohibitionist League, 1994), at p. 271 and p.275
(Tab
21) Weil, A. and Rosen, W., Chocolate to Morphine:
Undertaking Mind-Active Drugs (Boston: Houghton Mifflin, 1985),
Chapter 9.
280
In spite of the criminal prohibition and the adverse social effects
associated with a charge of cannabis possession, 92% of those who were charged
with cannabis offences continue to use cannabis, in much the same way as they
had been using it before becoming entangled with the criminal justice system.
Studies have shown that the intervention by the criminal justice system
simply “engineered them into a desire to avoid being caught again and gave
them ideas about how to be more careful”.
Actual sanctions and the threat of punishment were ineffective
deterrents: those who were most likely to continue using cannabis
actually perceived a greater risk of re-arrest and a more severe punishment
upon a subsequent conviction. The continued upward trend in cannabis use among
Canadians, notwithstanding the continuation of the criminal prohibition,
demonstrates that the prohibition
has been completely ineffective as a general deterrent.
In study of a group of older, regular cannabis users (averaging 13
years of use), the group reported no difficulty in obtaining a regular source
of supply and expressed little or no concern over the possibility of arrest
and prosecution. Conversely, the failure of the criminal prohibition as a
specific or general deterrent has translated into an opportunity for some
jurisdictions to liberalize the prohibition without increasing the rate of
consumption that increasing rates of cannabis consumption are not triggered by
legal reform which has moved in
the direction of decriminalizing.
-
P. Erickson Examination-in-chief, Appellant’s
Record in Clay, Volume II,
p.494;
-
P. Erickson Affidavit, Appellant’s Record in Clay, Volume
VIII, p.1638;
-
E. Single, Examination-in-chief, Appellant’s Record in Clay, Volume
IV, p.797 to p.803.
290
In 1995, Health Canada conducted its own opinion poll canvassing the
views of Canadians on cannabis and the law.
Of those surveyed, 27%
said they felt that possession of cannabis should be legal and 42% believed
that, while it should still be illegal, it should not be subject to custodial
sentences and (16.8% felt that it should still be illegal and, even with a
first offence, subject to a jail sentence).
The results of this poll are remarkably consistent with every other
poll conducted over the past 20 years in Canada. It is clear that 69% of the
Canadian population have been consistently in favour of some form of law
reform in the direction of increased leniency or decriminalization.
-E.
Single, Examination in-chief, Appellant’s Record in Clay, Volume
IV, p.808 to p.810.
E) The evidence fails to establish that cannabis consumption is sufficiently harmful either to users or to others so as to justify the state resorting to a criminal prohibition
300
The assessment of the medical harm related to the consumption of
cannabis is limited by the fact that virtually all of the existing studies
which are suggestive of medical harm are based upon exposing laboratory rats
to extremely large doses. The
findings with respect to laboratory rats have not been replicated in studies
of human populations. In fact,
the human population studies which have been conducted do not confirm the
suggestion by some “rat studies” that there is a higher risk of
disease and illness amongst the population of cannabis smokers.
By contrast, with respect to the harm associated with the smoking of
tobacco, the scientific community has only been prepared to endorse the
suggestion that it was harmful once the “rat studies” were confirmed in
large-scale, controlled, human population studies.
With respect to cannabis, the only harm for which some consensus has so
far been reached is that related to chronic bronchial inflammation resulting
from the mode of delivery, i.e., smoking.
Even then, as recently as 1995, the prestigious British medical
journal, The Lancet, concluded that “the smoking of cannabis, even
long term, is not harmful to health”.
Indeed, the only expert called by the Crown in the courts below, Dr.
Kalant, conceded that if cannabis is smoked in moderation there will be no
significant risk of harm to the user.
-
Dr. J. Morgan, Examination-in-chief, Appellant’s Record in Clay,
Volume V, p.1062 to p.1071;
-
Dr. H. Kalant, Cross-examination, Appellant’s Record in Clay, Volume
VI, p.1289 to p.1290.
310
In 1981, Dr. H. Kalant chaired the joint Addiction Research
Foundation-World Health Organization (ARF/WHO) scientific meeting on Adverse
Health and Behavioural Consequence of Cannabis Use.
At the time of his testimony at trial in Caine, he was serving
as the Chair of a Committee of the World Health Organizations (WHO) Program on
Substance Abuse (PSA) which was in the process of preparing a report entitled
“Health Implications of Cannabis Use”.
That Committee was formed as a result of requests from a number of
World Health Organization member States for further information on the health
implications of cannabis and as a result of the 1992 World Health Assembly
call for further studies on the use of cannabis.
The project commenced in 1993. At
the time of the trial in Caine, the Committee had yet to complete its
report because of some dissension as to the policy implications of the
proposed contents of the report. According
to Dr. Kalant’s testimony, it had been suggested that the American National
Institute on Drug Abuse (NIDA) was making efforts to suppress the
Committee’s proposed report as NIDA believed it would undermine American
legal and social policy in relation to cannabis use.
The World Health Organization, notwithstanding a request from the trial
Judge in Caine, declined to provide a copy of the draft report.
Nevertheless, Dr. Kalant kindly provided the Court with a complete set
of the proposed report’s references. Dr.
Kalant also testified that he did not expect any surprises from the report in
the sense of any additional acute or chronic effects that might give cause for
concern in terms of harm to users. On
the contrary, he testified that the current Committee did not think that the
possible adverse effects in chronic heavy users of an increased risk of
leukemia among offspring exposed while in utero would warrant mention
as a seriously entertained risk today. Similarly,
it was his view that the Committee would not consider as significant the risk
to pregnant women who smoke at the time of conception developing birth defects
to their child. In summary, Dr.
Kalant testified that apart from the concerns with respect to acute effects in
conjunction with driving or flying, etc., the major significant health threat,
apart from concerns to the high risk groups of immature adolescents, pregnant
women and the mentally ill, is that the chronic heavy user will develop
significant respiratory diseases as a result of smoking.
This has everything to do with pyrolisis and nothing to do with THC,
the active ingredient in marihuana. In
addition, Kalant was of the view that this significant risk could be
significantly reduced in the chronic heavy user by smoking a more tightly
packed cigarette with a filter and by not smoking it down to the very end and
by not taking deep lung inhalations.
-
Dr. H. Kalant, Cross-examination, Appellant’s Record in Caine,
Volume V, p.776 to p.877; Volume VI, p.878 to p.1058; Volume
VII, p.1061 to p.1117
-
Exhibit 5 at trial in Caine - Crown’s “Brandeis Brief” Materials:
(Tab 1).
320
Dr. S. Peck, the Deputy Provincial Health Officer for the Province of
British Columbia, charged with the responsibility under the Provincial Health
Act to investigate any health hazards, testified that his office had not
received any information to suggest there was a significant health problem as
a result of marihuana use in the Province of British Columbia.
He said that he operated with local health boards and health officers
and health officials across not only British Columbia, but across other
Provinces and organizations in Canada (as well as on a global level).
Marihuana use had not been brought to his attention as a significant
health problem. He referred to
the Annual Reports from the Provincial Health Officer from 1992, 1994, 1995
(Exhibits 11, 12, and 13 at trial in Caine) and confirmed that
marihuana use or marihuana health problems were not referred to in any of
those reports as representing any kind of significant health problem in B.C.
He said there is not a lot of evidence to show that cannabis use is
causing any harm in terms of hospitalisation or deaths or the poisoning of
children. He said that there was
no evidence of a “burden of illness” either to the cannabis user, to
others or to society as a whole.
-
B. Beyerstein, Examination-in-chief, Appellant’s Record in Caine,
Volume I, p.49 to p.53 and p.130 to p.131; Volume II, p.301 and
p.317 to p.319; Volume III, p.404 and p.414;
-
N. Boyd, Examination-in-chief, Appellant’s Record in Caine, Volume
I, p.84, p.86, p.88, p.92 to p.97, p.106 to p.111, p.115, p.117 and p.127
to p.128; Volume III, p.395, p.404, and p.414;
-
Dr. A. Connolly, Examination-in-chief and Cross-Examination, Appellant’s
Record in Caine, Volume III, p.489 to p.493 and p.522 to
p.526; Volume IV, p.555 to p.557;
-
Dr. S. Peck, Examination-in-chief, Appellant’s Record in Caine,
Volume II, p.159, p.169 to p.170, p.187, p.191, p.196, p.199, p.201,
p.202, p.204, p.205 to p.207 and p.230;
-
Adlaf, et al , Alcohol and other drug use (Toronto: A.R.F., 1994); Ontario
Student Drug Survey (Toronto: ARF, 1995);
-
Annual Report from the Provincial Health Officer, 1992 ; Annual Report
from the Provincial Health Officer, 1994; Annual Report from the
Provincial Health Officer, 1995 [Exhibits 11- 13 at trial in Caine];
- Alcohol and Drug Use Results from the 1993 General Social Survey, Report prepared for the Studies Unit, Health Promotion Director at Health Canada, January, 1995 by Eric Single, Joan Brewster, Patricia McNeil, Jeffrey Hatcher and Katherine Trainer [Exhibit 47 at trial in Caine].
1) Physical dependence or addiction?
330
There is very little evidence to demonstrate that there is anything
about the nature of the substance which can trigger a physical addiction to
cannabis. Indeed, the addiction potential of cannabis is so low that it is
generally considered to be inconsequential.
The vast majority of cannabis consumers never experience any type of
dependency. Studies show that
cannabis is the least likely psychoactive drug to cause dependency.
Caffeine is much more likely to produce dependence than cannabis.
According to The World Health Organization, the characteristics of an
addictive substance are: (1) an overpowering desire or need (compulsion) to
continue taking the drug and to obtain the drug and to obtain it by any means;
(2) a tendency to increase the dose; and (3) a psychological, and sometimes
physical, dependence on the effects of the drug. Cannabis does not exhibit any of these characteristics.
-
Dr. J. Morgan, Examination in-chief, Appellant’s Record in Clay,
Volume V, p.1093 to p.1098 and p.1182;
-
Dr. L. Grinspoon Affidavit, Appellant’s Record in Clay, Volume
XI, p.2418;
340
Reinforcement is a necessary condition of dependence; if a person does
not receive a reinforcing effect, there would be no reason to use the drug
again and therefore the question of physical dependence or addiction would be
non-existent. Studies have shown that cannabis is not a highly
rewarding drugs for animals, as assessed by the work effort taken by the
animal to obtain the substance. In
contrast, heroin is strongly rewarding or reinforcing, and cocaine is even
more so. Studies have not shown the presence of dramatic withdrawal symptoms
with cessation of cannabis use, such as those symptoms observed during the
withdrawal from heroin. In one
study, 16% of people who purported to experience withdrawal symptoms from a
cessation of cannabis consumption described experiencing nervousness, tension,
restlessness, sleep disturbance and appetite change, all of which were
considered to be very minor withdrawal symptoms as compared to those
associated with other drugs. There
appears to be little or no risk of physical addiction arising from cannabis
use; however, a small percentage of users do seemingly develop problems with
psychological dependence. Psychological
dependence can relate to many things in our lives.
For example, people commonly become dependent on exercise or other
forms of recreational pleasure. Psychological
dependence is reportedly experienced by only 2% of all cannabis users.
- D. Riley, Examination in-chief, Appellant’s Record in Clay,
Volume III, p.593 to p.594;
-
Dr. J. Morgan,
Examination in-chief, Appellant’s Record in Clay,
Volume V,
p.1182;
-
Dr. J. Morgan
Affidavit, Appellant’s Record in Clay,
Volume XII,
p.2585;
-
Dr. H. Kalant,
Examination-in-chief, Appellant’s Record in Clay,
Volume VI,
p.1272; p.1269 to p.1271;
-
Dr. L. Grinspoon
Affidavit, Appellant’s Record in Clay,
Volume XI,
p.2418.
2) The ‘Amotivational’ Syndrome?
350
There is no evidence to prove the development of an “amotivational
syndrome” in which cannabis users withdraw from the world and drift into
lethargy and ennui. Rather, diminished motivation may be a symptom of chronic intoxication but one which dissipates upon
cessation of use.
-
Dr. J. Morgan,
Examination in-chief, Appellant’s Record in Clay, Volume V,
p.1151 to p.1152;
-
Dr. H. Kalant,
Examination-in-chief, Appellant’s Record in Clay, Volume VI,
p.1252;
-
Dr. J. Morgan
Affidavit, Appellant’s Record in Clay, Volume XII,
p.2585.
3) Effects on the fetus, fertility and conception?
360
Despite some earlier literature suggesting that pregnant mothers who
smoke cannabis during pregnancy have babies who are small in terms of weight,
there is no convincing evidence that demonstrates that smoking cannabis causes
birth defects. The studies which
have been suggestive of underdeveloped babies
recently from cannabis are seriously undermined by virtue of the fact
that most of the women included in the studies were poverty stricken and were
already heavily involved with alcohol, cigarettes and other drugs.
Moreover, there is no credible social science evidence demonstration of
any major developmental effect in the newborn children of mothers who have
smoked cannabis. Psychologist
Peter Freid and his colleagues have collected longitudinal data on pre-natal
marihuana exposure. Over the
years they have studied these children and compared the to children with no
fetal exposure to cannabis and have found very few differences between those
exposed and not exposed to cannabis during pregnancy.
While some tests have shown some impairment of memory, verbal ability
and verbal expression of ideas in school age children, the changes were
measurably small. More
importantly, however, these minimal testing differences have not been linked
to poor school performance in later years.
-
Dr. J. Morgan
Affidavit, Appellant’s Record in Clay,
Volume
XI, p.2585;
-
Dr. J. Morgan,
Examination in-chief, Appellant’s Record in Clay, Volume V,
p.1116 to p.1117.
370
There is no conclusive evidence to prove the contention that cannabis
harms sexual maturation and reproduction in humans.
There is no convincing evidence that cannabis reduces fertility in
males, or impairs conception in human females.
There may, however, be a brief or acute decrease of sex hormone level
in the brain, but this level soon returns to normal even without the complete
cessation of cannabis smoking.
-
Dr. J. Morgan
Affidavit, Appellant’s Record in Clay,
Volume XII,
p.2585;
-
Dr. J. Morgan,
Examination-in-chief, Appellant’s Record in Clay, Volume V.
p.1124 to p.1126;
-
Dr. H. Kalant,
Examination-in-chief and Cross-examination, Appellant’s Record in Clay,
Volume VI, p.1241 to p.1243; p.1395.
4) Effects on the immune system?
380
There is no sound social science data demonstrating that cannabis
impairs the functioning of the human immune system.
In the early 1970's, a well publicized study by Dr. Nahas created a
misconception that there was some impaired immune responsiveness associated
with the consumption of cannabis; however, Dr. Nahas has never been able to
replicate the results of that study, nor has any other scientist.
As far as all the other studies have shown, cannabis has no effect on
the human immune system. There are no studies of any sort which suggest that
there is an increased likelihood of a cannabis user contracting an illness
from a parasite, bacteria, or virus. There is no evidence of increased
infection of any sort in human cannabis smokers, nor of increased
susceptibility to infection.
-
Dr. J.
Morgan Affidavit, Appellant’s
Record in Clay,
Volume XII,
p.2585;
-
Dr. J. Morgan,
Examination-in-chief, Appellant’s Record in Clay, Volume V,
p.1102 to p.1109;
-
Dr. H. Kalant,
Examination in-chief, Appellant’s Record in Clay, Volume VI,
p.1255, to p.1256.
5) Brain damage and mental disorder?
390
There is no reliable evidence that cannabis consumption kills brain
cells or causes brain damage in human smokers.
In the early 1970's, Dr. Campbell conducted a study indicating
that some brain damage could be caused by the heavy consumption of
cannabis; however, hundreds of studies have since been done attempting to
replicate these results but without success.
In the late 1980's, the National Centre for Toxicology in Arkansas
conducted an experiment in which monkeys were exposed to large doses of
cannabis over the period of one year: there was no evidence of brain damage
from this exposure.
-
Dr. J. Morgan
Affidavit, Appellant’s Record in Clay,
Volume XII,
p.2585;
-
Dr. J. Morgan,
Examination-in-chief, Appellant’s Record in Clay, Volume V,
p.1138;
-
Dr. H. Kalant,
Examination-in-chief, Appellant’s Record in Clay, Volume VI,
p.1243 to p.1245.
400
Beyond the complete absence of convincing evidence that long term
cannabis use produces demonstrable organic change in the brain, there is also
no evidence that the use of cannabis leads to mental problems.
There is no convincing evidence that cannabis use is causally related
to the development of mental disorder.
Cannabis has not been shown to cause psychoses or schizophrenia,
although there is some question as to whether or not cannabis can modify the
course of a pre-existing psychosis. In
the few studies which claim that cannabis-use appeared to result in psychotic
behaviour, it is apparent that the individuals who demonstrated psychotic
behaviour were suffering from a pre-existing mental disorder.
There is no proof that the cannabis use actually provoked overt
schizophrenia. In fact, there is
also evidence that cannabis use is not psychologically destructive, but rather
restitutive or healing insofar as individuals report consuming cannabis as a
mechanism for dealing with conflict, anxiety and depression.
For example, the Shedler and Bloch study demonstrated that persons who
experiment with smoking cannabis were better adjusted in terms of this
adolescent development than were the class of abstainers.
Of course, the chronic users were the worst adjusted of all three
categories.
-
Dr. L. Grinspoon
Affidavit, Appellant’s Record in Clay,
Volume XI,
p.2418;
-
Dr. J. Morgan,
Examination-in-chief, Appellant’s Record in Clay, Volume V,
p.1163 to p.1164;
-
Dr. H. Kalant,
Examination in-chief, Appellant’s Record in Clay, Volume VI,
p.1250 to p.1251 and p.1281;
-
H. Lehman, Examination-in-chief, Appellant’s Record in Clay, Volume
IV, p.822 to p.823.
410
Studies have demonstrated that recreational use of cannabis holds much
less risk of harm for humans than the use of alcohol or tobacco.
Cannabis and tobacco smoke have very similar chemical compositions,
except that one contains cannabinoids and the other has nicotine. One must
consider that a “heavy” cannabis smoker may smoke five cannabis
"joints" per day (most smoke less) as compared to a heavy smoker who
smokes about 40 cigarettes per day. The
cigarette smoker gets a much larger dose of tar from the tobacco than a heavy
cannabis smoker. Therefore, it is
apparent that the heavy cigarette smoker deposits more irritants onto his/her
lungs than does the heavy cannabis smoker.
There has been no documented evidence of cancer in people smoking only
cannabis. Cigarette smoking has
been proven to cause not only cancer, but chronic bronchitis and emphysema,
neither of which are documented side effects of cannabis smoking.
There is now even reason to doubt whether chronic obstructive pulmonary
disease (emphysema) is associated with cannabis smoking, although a leading
expert, Dr. Tashkin has recently demonstrated that chronic cannabis smoking
will lead to chronic bronchial inflammation.
-
E. Single, Examination-in-chief, Appellant’s
Record in Clay, Volume IV,
p.793 to p.795;
-
Dr. J. Morgan, Examination-in-chief and Re-examination, Appellant’s
Record in Clay, Volume V, p.1061; p.1107 to p.1115; Volume VI,
p.1215 to p.1216;
-
Dr. J. Morgan Affidavit, Appellant’s Record in Clay, Volume
XII, p.2585;
-
Dr. H. Kalant, Examination in-chief, Appellant’s Record in Clay,
Volume VI, p.1235 to p.1236.
420
There has never been a death directly attributable to the consumption
of marihuana; after five thousand years of cannabis use by hundreds of
millions of people throughout the world, there is no credible evidence that
this drug has ever caused even a single death.
Scientists have yet to discover a “LD50” for cannabis (i.e., the
dose at which the substance will prove lethal for 50% of the population). By
contrast, there is even a “LD50" measurement for caffeine.
In
Canada, there are approximately 40,000 deaths per year from tobacco,
approximately 10,000 deaths per year from alcohol, and approximately 800
deaths from all other illicit drugs combined.
Neither alcohol or tobacco are the subject of absolute criminal
prohibitions.
-
Dr. J. Morgan,
Examination in-chief, Appellant’s Record in Clay,
Volume V,
p.1091 to p.1093;
-
Dr. L. Grinspoon
Affidavit, Appellant’s Record in Clay, Volume XI,
p.2418;
-
B. Beyerstein, Examination-in-chief, Appellant’s Record in Caine,
Volume I, p.22 to p.24;
-
Dr. H. Kalant, Cross-examination, Appellant’s Record in Caine,
Volume V, p.795 to p.799;
-
Exhibit 18 at trial in Caine - “Brandeis Brief” Materials:
(Tab
14) Abel, E.L. Marihuana: The
First 12,000 Years (New York, Plenum Press, 1980)
(Tab
21) Weil, A. and Rosen, W., Chocolate to Morphine:
Undertaking Mind-Active Drugs (Boston: Houghton Mifflin, 1985),
Chapter 9;
-
Robbe, H.W.J. Influence of Marihuana on Driving, Institute of Human
Pharmacology, University of Limberg, Maastricht (1994) pp.49-50 [Exhibit 40 in
Caine].
8)
Impairment of driving ability?
43.
Studies have not found gross disturbances in city driving while under
the influence of cannabis, but have noted a number of lapses in driving
performance which potentially could give rise to accidents.
The findings contained within the driving studies have not been very
dramatic. Most drug-related
accidents today involve alcohol, not cannabis.
Cannabis may be contributing to accidents, but we cannot really know
until larger scale studies are done with proper design characteristics.
- Dr. H. Kalant, Examination in-chief, Appellant’s
Record in Clay,
Volume VI, p.1237 to p.1239;
- Dr. J. Morgan Affidavit, Appellant’s
Record in Clay, Volume XII, p.2585.
44.
However, the fears and concerns with respect to marihuana use and
driving appear to have been overstated or exaggerated and the most recent
conclusions emanating from the Robbe study in the Netherlands are somewhat
reassuring and are as follows:
·
Current users of cannabis prefer THC doses of about 300 _g/kg
to achieve their desired ’high’.
·
It is possible to safely study the effects of cannabis on driving on
highways or city streets in the presence of other traffic.
·
Cannabis smoking impairs fundamental road tracking ability with the
degree of impairment increasing as a function of the consumed THC dose.
·
Cannabis smoking which delivers THC up to a 300
_g/kg
dose slightly impairs the ability to maintain a constant headway while
following another car.
·
A low THC dose (100 _g/kg)
does not impair driving ability in urban traffic to the same extent as a blood
alcohol concentration (BAC) of 0.04g%.
·
Drivers under the influence of cannabis tend to over-estimate the
adverse effects of the drug on their driving quality and compensate when they
can; e.g. by increasing effort to accomplish the task, increasing headway or
slowing down, or a combination of these.
·
Drivers under the influence of alcohol tend to under-estimate the
adverse effects of the drug on their driving quality and do not invest
compensatory effort.
·
The maximum road tracking impairment after the highest THC dose (300 _g/kg)
was within a range of effects
produced by many commonly used medicinal drugs and less than that associated
with a blood alcohol concentration (BAC) of 0.08g% in previous studies
employing the same test.
·
It is not possible to conclude anything about a driver’s impairment
on the basis of his/her plasma concentrations of THC and THC-COOH determined
in a single sample.
There
has been no indication in those countries and States where there has been
actual or de facto decriminalization of simple possession of an increase in
impaired driving or emergency room admissions.
As a result of the Robbe study and other studies, Morgan and Zimmer in
reviewing the scientific evidence on this issue concluded as follows:
There
is no compelling evidence that marijuana contributes substantially to traffic
accidents and fatalities. At some
doses, marijuana affects perceptions and psychomotor performance – changes
which could impair driving ability. However,
in driving studies, marijuana produces little or no car-handling impairment
– consistently less than that produced by low to moderate doses of alcohol
and many legal medications. In
contrast to alcohol, which tends to increase risky driving practices,
marijuana tends to make subjects more cautious.
Surveys of fatally injured drivers show that when THC is detected in
the blood, alcohol is almost always detected as well.
For some individuals, marijuana may play a role in bad driving.
The overall rate of highway accidents appears not to be significantly
affected by marijuana’s widespread use in society.
-
Dr. J. Morgan, Examination-in-chief, Appellant’s Record in Caine,
Volume IV, p. 691 to p.697; Volume V, p.714 to p.717 and p.750 .
9) Other possible harms to non-consuming members of society?
45.
The health care costs to society associated with tobacco and alcohol
are significantly higher than those associated with cannabis use.
In 1995, the Canadian Centre on Substance Abuse released a report
documenting the total cost of substance abuse in Canada.
The study examined morbidity, mortality, and economic costs associated
with the use of alcohol, tobacco, and illicit drugs.
The study concluded that the total cost of substance abuse in Canada,
in 1992, was $18.45 billion dollars. The
cost breakdown between alcohol, tobacco, and illicit drugs was as follows:
Alcohol
: $7.5 billion total
Tobacco
: $9.5 billion total
Illicit
drugs : $1.37 billion total
Of the $1.37 billion in costs attributable to illicit
drug use, it is virtually impossible to determine the proportion of costs
which is attributable to the use of cannabis; however, in 1992, there were
only 154 hospitalizations in all of Canada as a result of cannabis consumption
and this represented only 2.1% of all hospitalizations in Canada in 1992 due
to illicit drug use.
- E. Single Affidavit, Appellant’s Record in Clay,
Volume XI, p.2322;
-
E. Single, Examination- in-chief, Appellant’s Record in Clay, Volume
IV, p.785 to p.793.
46.
When testifying at trial for the Crown in Caine, Dr. Kalant
agreed with the findings of Single’s study that the economic costs to
Canadian society from marihuana use would be minimal in comparison with the
costs associated with the use of alcohol and tobacco.
Dr. Peck, the Deputy Provincial Health Officer for the Province of
British Columbia charged with the responsibility under the Health Act of
British Columbia to investigate health hazards in the Province and who
operates with local health boards, health officers and health officials not
only within British Columbia but in other Provinces and organizations
throughout Canada and internationally was unaware of any significant health
problem in the Province of British Columbia from marihuana use.
He was at pains to try and find some significant health problems or
costs. He concluded that given the widespread use of marihuana, there is not a
lot of evidence to show that it is causing a great deal of harm in terms of
hospitalisation or death or poisoning in our society and if it is put in
perspective in relation to other causes of health problems in our society,
there is really no evidence of a burden of illness and cost to society at all.
- Dr. H. Kalant, Cross-examination, Appellant’s
Record in Caine, Volume V, p.776 to p.778, p.822 to p.825
and p.845; Volume VI, p.969 to p.983, p.989 and p.1003; Volume VII,
p.1061 to p.1117;
-
Dr. S. Peck, Examination-in-chief, Appellant’s Record in Caine,
Volume II , p.159, p.168 to p.170, p.187, p.191, p.196, p.199, p.201,
p.202, p.204, p.205 to p.207 and p.230
- Dr. A. Connolly, Examination-in-chief, Appellant’s
Record in Caine, Volume III, p.488 to p.527; Volume IV,
p.529 to p.570;
- Dr. H. Kalant, Cross-examination, Appellant’s
Record in Caine, Volume V, p.776 to p.877; Volume VI,
p.878 to p.1058; Volume VII, p.1061 to p.1117;
- Dr. J. Morgan, Examination-in-chief, Appellant’s
Record in Caine, Volume IV, p.573 to p.709, Volume V,
p.710 to p.733
- Dr. S. Peck, Examination-in-chief, Appellant’s
Record in Caine, Volume II, p.155 to p.230;
-
Kassirer, J., “Federal Foolishness and Marijuana” (January 30, 1997), The
New England Journal of Medicine, p. 366;
- New South Wales Report [Exhibit 51 at trial Caine];
- Health Implications of Cannabis Use [Exhibit 45 at
trial in Caine];
- Exhibit 18 at trial in Caine - “Brandeis
Brief” Materials:
(Tab
1) Boyd, N. “The Question of Marihuana Control:
Is De Minimis Appropriate, your Honour?” (1982), 24 Criminal Law
Quarterly 212
(Tab
6) Kouri, E. et al., “Attributes of Heavy Occasional Marijuana
Smokers in a College Population” (Massachusetts: Society of Biological
Psychiatry, 1995)
(Tab
12) “Deglamorising cannabis”, The Lancet Volume 346, No. 8985
(Tab
13) “Submission on Bill C-7 the Controlled Drugs and Substances Act”,
National Criminal Justice Section of the Canadian Bar Association (May 1994)
(Tab
21) Weil, A. and Rosen, W., Chocolate to Morphine: Undertaking Mind-Active
Drugs (Boston: Houghton Mifflin, 1985), Chapter 9.
F) The evidence demonstrates that the consumption of cannabis provides material benefits to some people who are very ill
47.
There is an overwhelming number of accounts by patients and their
caregivers reporting significant improvement in the symptomology of various
debilitating illnesses as a result of the smoking of cannabis. Cannabis also
has beneficial effects on patients with certain chronic neurological diseases
such as multiple sclerosis, cerebral palsy and spinal cord injury, since it
relieves muscle pain and helps relax muscle tone and spasms.
-
Dr. J. Morgan, Examination in-chief, Appellant’s Record in Clay,
Volume V, p.1188;
-
Dr. J. Morgan Affidavit, Appellant’s Record in Clay, Volume
XII, p.2585;
-
Dr. L. Grinspoon Affidavit, Appellant’s Record in Clay, Volume
XI, p.2418.
48.
A growing body of evidence has also emerged indicating that cannabis
has significant medical value with respect to the treatment of glaucoma as
well as an anti-emetic to reduce nausea and vomiting from chemotherapy related
to cancer treatment. In addition,
a significant number of AIDS patients have reported that they are able to use
cannabis, both as a treatment for nausea consequential to their disease and
their medication, and also as an appetite stimulant to combat AIDS-related
wasting syndrome. Although
patients have the option of using synthetic forms of THC (the primary
psychoactive ingredient in cannabis), many of them do not experience positive,
therapeutic effects when taking the synthetic counterparts.
When cannabis is inhaled it effectively reduces nausea and vomiting
almost immediately (within 5 to 10 minutes).
Many patients report that within 45 minutes to an hour of inhalation,
the desire to eat is stimulated. The
oral ingestion of Marinol by comparison, has very erratic bio-availability
properties. The oil soluble
nature of the medicine makes it difficult for the digestive system to access
the THC, which means the patient must wait 1 to 4 hours before the nausea
and/or vomiting are affected. In
nearly all studies where a comparison was made between synthetic counterparts
and cannabis, cannabis proved to be a far more reliable, predictable and
effective drug.
-
N. Tapiero, Examination in-chief, Appellant’s
Record in Clay, Volume V,
p.994;
-
Dr. J. Morgan,
Examination in-chief, Appellant’s Record in Clay, Volume V,
p.1185 to p.1186;
-
Dr. J. Morgan
Affidavit, Appellant’s Record in Clay, Volume XII,
p.2585;
-
Dr. L. Grinspoon
Affidavit, Appellant’s Record in Clay, Volume XI,
p.2418;
-
D. Riley, Examination in-chief, Appellant’s Record in Clay, Volume
IV, p.617;
-
Dr. H. Kalant,
Examination in-chief, Appellant’s Record in Clay, Volume VI,
p.1277;
-
R. Randall Affidavit, Appellant’s Record in Clay, Volume
XII, p.2449;
-
R. v. Parker, supra;
-
R. v. Wakeford (1999), 173, D.L.R.(4th) 726 (O.C.G.D.);
-
R. v. Wakeford (1998), 166
D.L.R.(4th) 131 (O.C.G.D.).
G)
The LeDain Commission
Report and the recent history of Canadian legislative reactions
49.
The only comprehensive study ever conducted in Canada regarding the use
and effects of cannabis was the Inquiry into the Non-Medical Use of Drugs
(“the LeDain Commission”) that was commissioned by the Canadian Government
in 1969. The Inquiry was commissioned in response to concern over the
growing use of cannabis and other hallucinogenic drugs by young people in
Canada. The Commission found that
the known, probable and possible side effects of the cannabis did not justify
the enforcement policies that were then (and, essentially, still are) in
place. Furthermore, the
Commission held that the costs of a policy of prohibition of simple
possession, in general, were not justified by the speculative harm of cannabis
use. After four years of hearings
and research, the majority of commissioners concluded that simple possession
of cannabis should not be a criminal offence.
-
M.A. Bertrand Affidavit, Appellant’s Record in Clay, Volume
VII, p.1546;
-
N. Boyd, Examination-in-chief, Appellant’s Record in Caine, Volume
I, p.88;
-
B. Beyerstein, Examination-in-chief, Appellant’s Record in Caine,
Volume I, p.18 to p.19;
- Exhibit 18 at trial in Caine - “Brandeis Brief” Materials:
(Tab
16) Boyd, N., High Society: Legal
and Illegal Drugs in Canada (Toronto: Key Porter Books, 1991), pp. 106-107
(Tab
19) LeDain Commission, Cannabis: A
Report of the Commission of Inquiry into the Non-Medical Use of Drugs
(Ottawa: Information Canada, 1972)
(Tab
20) LeDain Commission, Final Report of the Commission of Inquiry into the
Non-Medical Use of Drugs (Ottawa: Information Canada, 1972).
50.
In particular, the LeDain Commission concluded that:
(a)
cannabis is not a narcotic;
(b)
few acute physiological effects have been detected from current use in Canada;
(c)
that few consumers (less than 1%) of cannabis move on to use harder and more
dangerous drugs.
(d)
that there is no scientific evidence indicating that cannabis use is
responsible for other forms of criminal behaviour.
(e)
at present levels of use, the risks or harms from consumption of cannabis are
much less serious than the risks or harms from alcohol.
(f)
that the short term physical effects of cannabis are relatively insignificant
and there is no evidence of serious long term physical effects.
-
M.A. Bertrand, Examination in-chief, Appellant’s Record in Clay,
Volume III, p.664 to
p.666;
-
H. Lehmann, Examination in-chief, Appellant’s Record in Clay, Volume
IV, p.755 to p.762.
51.
The conclusions reached by the LeDain Commission are consistent with
virtually all of the other inquiries which have been commissioned around the
world. The following
government-sponsored reports have recommended decriminalization of cannabis in
light of their conclusion that cannabis use does not cause sufficient harm to
the individual or to society that could justify resort to the criminal
sanction:
Ø
1893 Indian Hemp Commission (British/Indian)
Ø
1925 Panama Canal Zone Report
Ø
1944 La Guardia Report (U.S.)
Ø
1967 President’s Commission on Law Enforcement (U.S.)
Ø
1968 Advisory Committee, the “Wooten Report” (British)
Ø
1972 Shafer Report (U.S.)
Ø
1972 Dutch Baan Commission
Ø
1979 & 1994 Australian and South Australian Reports
Ø
1995 Dutch Report
A
summary of the above-noted reports, prepared by the Appellant Clay, and
adopted by the trial Judge in Clay as accurate and reliable, are found
in the Appendix to the trial Judge’s Reasons for Judgment.
-
M.A. Bertrand, Examination in-chief, Appellant’s Record in Clay,
Volume III, p.668 to
p.672;
-
Dr. J. Morgan and L. Zimmer, Marihuana Myths, Marihuana Facts: A Review of
the Scientific Evidence, (New York: Lindesmith Centre, 1997), at p. i and
p.150 [Exhibit 39 at trial in Caine];
-
Reasons for Judgment at trial, Appellant’s Record in Clay, Volume
XVI, p.3347.
52.
Despite the LeDain’s Commission recommendations, there has not yet
been any meaningful reform of the law in Canada.
Yet, it was the LeDain Commission’s Report which led each federal
political party in the decade following to promise progressive law reform with
respect to the personal use of cannabis.
Those promises have remained unfulfilled.
Two years after the LeDain report, Bill S-19 was introduced which would
have made the possession of cannabis a summary offence only, would have moved
cannabis from the Narcotics Control Act to the Food and Drug Act,
would have reduced the penalties for all offences except cultivation, and
would have provided automatic pardons for all first offenders given a
discharge for possession. However,
this Bill was never enacted nor has it ever been resurrected, thereby leaving
the possession laws in virtually the same state as they were before the LeDain
Commission.
-
M.A. Bertrand Affidavit, Appellant’s Record in Clay, Volume
VII, p.1546;
-
E. Oscapella, Examination in-chief, Appellant’s Record in Clay,
Volume III, p.716;
-
J. Giffen Affidavit, Appellant’s Record in Clay, Volume VII,
p.1497;
-
N. Boyd, Examination-in-chief, Appellant’s Record in Caine, Volume
I, p.89, p.95, p.102 to p.105.
53.
More recently, in 1996 the Standing Senate Committee on Legal and
Constitutional Affairs, (chaired by Senator Sharon Carstairs) in reviewing the
merits of the new Controlled Drugs and Substances Act reached the
conclusion that decriminalization would be the best course of action for the
Government to take with respect to cannabis; however, in its official
recommendation to Parliament, the Committee stopped short of making this
recommendation. Instead the
Committee chose to advise the government that the LeDain Commission’s
findings should be revisited and that the Government should study whether or
not decriminalization would lead to increased use and abuse.
A House of Commons Standing Committee on Health was then set up to
undertake a review of Canada’s drug policies; however, the Committee’s
mandate did not include the task of reviewing the LeDain Commission’s
finding nor did it specifically
require the exploration of any issues specific to cannabis use.
-
M.A. Bertrand Affidavit, Appellant’s Record in Clay, Volume
VII, p.1546;
-
E. Oscapella, Examination in-chief, Appellant’s Record in Clay,
Volume III, p.735 to p.736;
-
S. Carstairs Affidavit, Appellant’s Record in Clay, Volume
XVI, p.3214
-
Exhibit 18 at trial in Caine - “Brandeis Brief” Materials:
(Tab
13) “Submission on Bill C-7 the Controlled Drugs and Substances Act”,
National Criminal Justice Section of the Canadian Bar Association (May 1994).
H)
Law reform in the international community
54.
Jurisdictions which have decriminalized cannabis use have not seen an
exponential growth in rates of consumption.
For the most part, consumption rates remained stable after
decriminalization. Numerous
jurisdictions have already decriminalized the personal use of cannabis,
including Holland, Spain, Germany, Italy, South Australia, the Australian
Capital Territory and 11 American states.
1) Decriminalization in the Netherlands
55.
The main objective of drug policy in the Netherlands is to ultimately
reduce the risks that drug abuse poses for the user, his/her immediate
environment and society as a whole. While
legislation in the Netherlands is considered useful, greater value is attached
to organized social control. In
the Netherlands, the local drug control act was amended in 1976, and since
that time, there has been a policy of non-enforcement of the law as it relates
to cannabis use and possession. In
fact, cannabis and hashish can be openly purchased in numerous licenced cafes.
-
D. Riley, Examination-in-chief, Appellant’s Record in Clay, Volume
III, p.603;
-
M.A. Bertrand, Examination-in-chief, Appellant’s Record in Clay,
Volume III, p.680.
56.
The amended Dutch Opium Act and prosecution policy in the
Netherlands have created a de facto decriminalization of the use of
cannabis and other cannabis products. These
changes have resulted in reduced penalties for small scale cannabis
cultivation and use but increased penalties for wholesale dealers and
international traffickers. There is undisturbed sale of cannabis in coffee shops, where
the use of alcohol and hard drugs are prohibited.
The authorities monitor the coffee shops and youth centres to ensure
that there is no sale of large quantities, no sale of other drugs, no
advertisements, no encouragement to use and no sale to minors.
The aim of this policy is to separate the markets of hard and soft
drugs so that cannabis use does not become intertwined with the use of other
harmful drugs.
-
D. Riley Affidavit, Appellant’s Record in Clay, Volume
VIII, p.1775;
-
D. Riley, Cross-examination, Appellant’s Record in Clay, Volume
III, p.646 to p.647;
-
M.A. Bertrand, Examination-in-chief, Appellant’s Record in Clay,
Volume III, p.681.
57.
Studies have shown that since 1976 the consumption of cannabis and
hashish in the Netherlands has not significantly increased.
Furthermore, the consumption of cannabis in the Netherlands is
substantially lower than that in the United States.
Only 12% of high school students in the Netherlands have used cannabis
at least once as compared to of 59%, in the United States in the 1970's.
Current use by high school students in the Netherlands is also much
lower than use in the United States (5.4% versus 29%, respectively).
-
D. Riley Affidavit, Appellant’s Record in Clay, Volume
VIII, p.1775.
58.
In the Netherlands, cannabis products are now generally viewed as
substances that do not cause unacceptable risks.
Despite partial decriminalization, cannabis is used infrequently.
More importantly, users are not socially marginalised, have access to
services and are not at the same kind of health risks as they would be if
forced underground. The
Netherlands strategy of de facto decriminalization appears to have been
very successful. The Dutch
government recently reviewed the policy and has decided to continue along this
path.
-
Hans Jorg Albrecht Affidavit, Appellant’s Record in Clay, Volume
VII, p.1577.
2)
Decriminalization in the United States of America
59.
In 1970 there was a movement throughout North America to reform
cannabis laws. The widespread and increasing use of cannabis, despite its
criminalization, had led to high enforcement and court costs.
Public attitudes were becoming more tolerant of cannabis use and there
was a distinct trend towards the decriminalization of possession of small
amounts for personal use. In
October 1973, the state of Oregon reduced the offence of possessing less than
one ounce of cannabis to a civil violation, with a maximum penalty of $100.00,
thus protecting the cannabis user from the deleterious impact of the criminal
record.
-
D. Riley, Examination in-chief, Appellant’s Record in Clay, Volume
III, p.622;
-
D. Riley Affidavit, Appellant’s Record in Clay, Volume
VIII, p. 1775.
60.
Within 5 years, 10 other states had enacted similar legislation.
By 1978, 11 states representing one third of the American population
had decriminalized cannabis use. Thirty
other states had provisions for conditional discharges and twelve states made
provision for purging of records for first possession offenders. The states varied in the extent of decriminalization and in
the reduction of penalties. In
some of the states the offences became misdemeanours, in others they became
civil violations.
-
E. Single, Examination in-chief, Appellant’s Record in Clay, Volume
IV, p.795 to p.796.
61.
In 1989, there were various assessments made of the impact of
decriminalization on consumption rates. Eric
Single’s studies found that rates of consumption may have marginally
increased in the “decriminalization” states, but more surprisingly, these
increases paled in comparison to increases experienced by the
non-decriminalization states. Available evidence supports the conclusion that
decriminalization measures have had little or no impact on rates of use but
that they have substantially reduced the social costs associated with
the enforcement of cannabis laws. The
State of California has saved a minimum of one billion dollars since 1976 as a
result of making possession of an ounce or less of cannabis a minor
misdemeanour instead of a felony. This
one billion dollars should be considered a minimum estimate of savings because
the study did not include savings in the cost of county jails, prosecutors,
public defenders, probation departments, misdemeanour court dispositions,
juvenile facilities, or peripheral parts of the criminal justice system.
- D. Riley Affidavit, Appellant’s Record in Clay, Volume
VIII, p.1775;
-
E. Single, Examination in-chief, Appellant’s Record in Clay, Volume
IV, p.797;
-
E. Single Affidavit, Appellant’s Record in Clay, Volume
XI, p.1322.
3) Decriminalization
in Australia
62.
The Cannabis Expiation Notice System came into effect in South
Australia on April 30, 1987, and in the Australian Capital Territory in 1992.
The expiation approach was introduced after local authorities had
studied the effects of decriminalization in North America and the Netherlands.
Under this system, adults found to be possessing, cultivating or
privately using small amounts of cannabis (up to 100 grams) are issued with an
expiation notice (citation). Provided
the recipient pays the prescribed fee within 60 days of receiving the notice,
the offence is not prosecuted in court, and no conviction is recorded.
-
D. Riley, Cross-examination, Appellant’s Record in Clay, Volume
III, p.647;
-
D. Riley Affidavit, Appellant’s Record in Clay, Volume
VIII, p.1775;
- Hans-Jorg Albrecht Affidavit, Appellant’s Record in Clay,
Volume VII, p.1577.
63.
Rates of cannabis use in South Australia have not changed since the
introduction of this new system. All
surveys indicated that there were no changes in South Australia’s rates of
cannabis use related to the introduction of on the spot fines and there were
no significant differences in rates of use between South Australia and other
Australian states which had not changed their legislation
-
D.
Riley, Examination-in-chief, Appellant’s Record in Clay, Volume
III, p.622;
-
D. Riley Affidavit, Appellant’s Record in Clay, Volume
VIII, p.1775.
64.
In Italy, there has been a movement towards replacing the criminal
sanctions for drug use and possession with an administrative sanction.
There was a popular referendum on April 18, 1993 in which 700,000
signatures were in favour of the decriminalization of possession, and
reclassification of cannabis. This
referendum resulted in the abolishment of all remaining penal sanctions for
possession of any narcotic or psychotropic substance.
Now it is incumbent upon the presiding magistrate to determine if the
drugs possessed were for personal use, or for drug dealing.
Essentially the Italian drug laws put the recreational user of drugs
beyond the reach of the criminal law by creating drug law exemptions for
possession, purchase and import of drugs for personal use, while still keeping
the drug user under administrative controls.
-
M.A. Bertrand, Examination-in-chief, Appellant’s Record in Clay,
Volume III, p.682 to 683;
-
Hans-Jorg Albrecht Affidavit, Appellant’s Record in Clay, Volume
VII, p.1577.
5) Decriminalization in Germany
65.
In Germany, public prosecutors have been given discretion to
dismiss minor cases of drug
possession
unconditionally or on condition that a fine be paid or that community service
be completed. Prosecutors have
used this discretionary power to dismiss minor drug cases in which the
offender purchased, or was in possession of, drugs for personal use.
Each state has developed its own guidelines as to when it would be
permissible to dismiss a drug case. Some
states have adopted guidelines requiring non-prosecution in cases involving
10-30 grams of cannabis, while other states have not yet issued written
guidelines. Most recently, the state of Schesweig-Holstein has
implemented a five year pilot project in which small amounts of cannabis will
be distributed by local pharmacies.
-
Hans-Jorg Albrecht Affidavit, Appellant’s Record in Clay, Volume
VII, p.1577;
-
M.A. Bertrand, Examination-in-chief, Appellant’s Record in Clay,
Volume III, p.685.
66.
In 1994, the German Constitutional Court concluded that the manner in
which the cannabis prohibition was enforced could potentially violate the
constitutional principles of equality and proportionality.
In particular, the court was concerned about the fact that
non-prosecution policies in various states were not uniform and this disparity
should not be tolerated in the face of the German Constitution.
Accordingly, the Court urged the Ministries of Justice of the various
states to implement uniform rules with respect to non-prosecution for minor
cannabis offences. The Court
concluded that the failure of a state to implement a policy of unconditional
dismissal or non-prosecution of minor cannabis offences could result in a
violation of constitutional rights.
-
M.A. Bertrand, Examination in-chief, Appellant’s Record in Clay,
Volume III, p.685 to p.686;
- Hans-Jorg Albrecht Affidavit, Appellant’s Record in Clay,
Volume VII, p.1577;
-
Prof. Dr. jur. Lorenz Böllinger, Symbolic Criminal Law without Limits,
Commentary on the Cannabis decision of the German Federal Constitutional
Court.
67.
As a result of a 1995 amendment to the Penal Code, possession of
cannabis for personal use is no longer a criminal offence. Possession of
cannabis is only criminalized upon proof of a subjective intent to traffic.
-
Hans-Jorg Albrecht Affidavit, Appellant’s Record in Clay, Volume
VII, p.1577;
-
M.A. Bertrand, Examination-in-chief, Appellant’s Record in Clay,
Volume III, p.684 to p.685.
7)
Decriminalization in Colombia
68.
In Colombia on May 5th, 1994, the Constitutional Court of
the Republic of Colombia declared that the prohibition against possession for
personal use was unconstitutional according to the Colombian Constitution.
-
In re: Alexandre Sochandamandou, Constitutional Court Sentence number
C-221/94 ref: record number D-429, May 5th, 1994, Plenary Session
of the Constitutional Court of the Republic of Colombia.
8)
Decriminalization in Great Britain and Ireland
69.
There are no criminal penalties for cannabis possession in Ireland and
police generally ignore small scale dealers if they conduct their business in
a way that does not disrupt public order.
Since the hearing of the appeals in the courts below, both the police
and the legislature in England have begun to take steps towards
decriminalizing the simple possession of cannabis.
9)
Decriminalization in Switzerland, Belgium and Denmark
70.
All of these countries have either already taken steps towards
decriminalizing the simple possession of cannabis or they are in the process of
implementing those legislative changes.
-
Cannabis Report of the Swiss Federal Commission for Drug Issues (Swiss Federal Printing and Supplies Office,
1999), Chapter 4.
ALL
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