Year	Opium	Morphine	Cocaine	Heroin	Cannabis	Other
1922	272	66	93	--	--	665
1923	155	79	43	--	--	564
1924	48	41	19	--	--	276
1925	51	33	12	--	--	285
1926	74	17	16	--	--	198
1927	27	20	18	--	--	92
1928	56	36	16	--	--	158
1929	56	26	10	12	--	109
1930	46	24	8	8	--	119
1931	58	14	4	10	--	121
1932
1933	53	3	5	6	--	52
1934	40	11	4	12	--	36
1935	34	7	--	15	--	40
1936	45	26	6	21	--	30
1937	39	23	3	64	4	18
1938	57	36	1	38	4	11
1939	51	23	2	65	12	5
1940	47	40	1	56	3	18
1941	103	73	2	27	--	21
1942	32	26	7	17	--	7
1943	14	65	2	14	2
1944	40	88	14	26	--	15
1945	34	77	--	50	--	28
1946	57	84	4	84	--	8
1947	50	108	11	141	--	13
1948	12	74	6	185	6	3
1949	6	37	--	287	5	5
1950	5	31	1	300
1951	3	21	1	312	5	2
1952	--	12	2	316	6	7
1953	1	8	--	286	7	9
1954	1	7	--	248	2	19
1955	2	7	--	242	8	34
1956	--	--	--	29	1	322
1957	--	6	--	274	5	31
1958	--	8	--	397	14	8
1959	--	7	--	470	22	11
1960	--	5	--	374	21	13
1961	--	2	2	385	17	10
1962	--	9	1	219	16	19
1963	--	15	1	222	29	26
1964	--	13	1	227	39	18
1965	--	20	2	222	42	35
1966	--	21	1	193	112	50
1967	--	16	--	281	447	55
1968	--	10	1	199	817	49
1969	--	6	2	185	1476	58
1970				201	5399
1971
1972				630 *	10695

APPENDIX 4  (continued)

Table 4.2

Convictions for offences involving narcotics in Canada, 1912-1972

1912              342

1913              684

1914              1044

1915              1375

1916              1165

1917              790

1918              915

1919              1195

1920              1797          % Chinese

1921              1864         

1922              1858          60.1

1923              1297          46.6

1924              997            66.5

1925              835            56.2

1926              743            66.6

1927              491            71.9

1928              608            67.8

1929              616            82.1

1930              461            60.9

1931              316            53.5

1932                            

1933              230            53.0

1934              218            57.3

1935              165            38.3

1936              182            30.2

1937              220            15.9

1938              183            21.9

1939              226            10.6

1940              234            13.7

1941              273            11.4

1942              136              3.7

1943              136              5.9

1944              194            13.9

1945              212              6.1

1946              247            10.9

1947              341              4.7

1948              316                --

1949              389              0.6

1950              417              1.4

1951              402              2.8

1952              511              1.4

1953              397              2.7

 

1954              361              3.6

1955              480              2.3

1956              451                --

1957              539              1.3

1958              569              0.2

1959              691              0.5

1960              510              0.6

1961              495              0.6

1962              418              0.3

1963              319              1.6

1964              261              2.5

1965              422

1966              486

1967              1056

1968              1461

1969              2367

1970              6745

1971              1889

1972              12811

 

The data for the years from 1912 to 1969 are from Crime Statistics in Canada and those for 1970, 1971 and 1972 from the Bureau of Dangerous Drugs and Health and Welfare Canada.  These data are taken from Giffen et al. (1991)

---

INTRODUCTION 

The domestic legislation on drugs in various countries offers an excellent opportunity to examine conflict and consensus in societies, two concepts that are of fundamental importance in the field of legal sociology.  Moreover, it is clear that in the area of drugs, domestic legislation does not develop in a vacuum; it is subject to the influence of international law – in varying degrees depending on the country and at different times.  What, however, is the real impact of international law on drugs in terms of Canadian law as far as domestic conflict and consensus are concerned?  While this document cannot claim to give a definitive answer to this question, it is nevertheless a first effort at thinking on this subject.  In the following pages I shall examine the implementation of and changes in the gradual assumption of authority for drug control in international and domestic law, striving at the same time to determine the relationship that exists between them and the influence of the former on the latter and as a source of domestic cohesion or dissension.

In this brief retrospective, I shall endeavour in short to define the markers in the development of international agreements and Canadian legislation concerning drugs during the 20th century.  To this end, I shall briefly begin by presenting the theory of social problems developed by Spector and Kitsuse during the 1970s because it seems to me that the “question of drugs”, their use and the trade in them clearly follow the theory, one of the trends in constructivism.  Parallel to the development of international law, I shall also analyse the situation on the Canadian stage in an attempt to identify the main players and interest groups involved in this assumption of authority over drugs by the criminal law and the international law.  Finally, I shall share with you a number of reflections that have been suggested by this project.

1- THEORETICAL FRAMEWORK

As indicated in the Introduction, I shall approach the assumption by international and domestic law of responsibility for the system of prohibiting certain drugs from the constructivist model and more specifically in light of the theory of social problems developed by Spector and Kitsuse (1977).  I shall define the major milestones in the creation of the “drug problem” by using two methods at the same time: 1- the first, a historical method consisting of secondary sources, which I shall use initially to trace the major outlines of the essential stages in the development of control and suppression of drugs on the international and Canadian stages; 2- the second, which is designed to familiarize myself with certain basic concepts in the theory of social problems, will help me to identify the social agents involved more directly in putting in place and in maintaining the system of drug prohibition in Canada as well as to delimit the dynamics involved in their interactions in the development of this phenomenon as a problem.  I shall briefly describe the approach used by Spector and Kitsuse in order to familiarize myself with it, initially with a view to applying it more substantially later, with the intention of using it more intensely in my thesis if I consider it relevant.

The theory of social problems

Spector and Kitsuse (1977) developed their theory in reaction to the functionalist theory, which they considered to be overly focused on the concepts of “objective conditions” and “consensus”.  This theoretical model also claims to be an extension of and complementary to the theoreticians of conflict, who, in the eyes of some, have deviated from their initial concern for looking at the process of defining problems rather than on so-called objective conditions as such.  Thus, if the theory of social problems is interested in the process of “problematization” (an expression I have borrowed from Glorie, 1983) and not in the objective situation as such, it is not even essential in fact for a “real problem”[2] to exist that is recognized by all in order for a phenomenon to attain status as a “social problem”.

Ascribing the values and interests underlying the actions of pressure groups is an integral part of the process of problematization and must accordingly be included in the analysis.  The emphasis was accordingly placed on the processes by which the members of a society are able to define a given situation as a “social problem” and then to have it recognized as such by public institutions.  Spector and Kitsuse define social problems as “… activities of individuals or groups making assertions of grievances and claims with respect to some putative conditions” (1977:75).

Spector and Kitsuse, who are at the same time interested in and inspired by the study of occupations and symbolic interactions, feel that various aspects of social problems can be discovered if an attempt is made to understand the role of those involved in various stages of the problematization process.  In their view, “... the central problem for a theory of social problems is to account for the emergence, nature and maintenance of social problems” (idem.:76).  This would explain therefore why the authors attempt to create a theory focused on what they call claims-making activities rather than on the conditions underlying those claims.  Thus, while they do not from the outset reject the existence of certain difficult conditions for some of the players in society, they are more interested in the discourse concerning these conditions than in the question of the strict validity of the discourse relating to them.  They have ignored the analysis of social conditions as such and have focused instead on the process of making claims, complaints and demands for change, which lies at the hear of claims-making activities.  It is those who make these claims who define the conditions as creating social problems and who attempt to draw the attention of decision-makers to these situations which they consider to be undesirable and who therefore wish to mobilize the institutions in actions designed to change the situation in their favour in a way that reflects their values and interests.

Thus, the problematization of a situation is always a form of interaction: a demand made by one party to another asking it to respond to a particular situation.  The result of the interactions relating to a situation will determine whether this situation is confirmed or rejected as a social problem.  For Spector and Kitsuse, the creation of problems is very ominous in terms of morals and values; it is therefore essential to pay very special attention to these factors when situations that have become social problems are analysed.  Finally, the authors identify two types of groups or individuals involved in claims-making processes : those who are personally interested (pressure and interest groups, lobbies, professional governing bodies, etc)  and those who engage in the struggle out of principle or conviction, without necessarily being directly and as closely involved on a personal level (for example, reformers or moral campaigners, members of the clergy, etc.), who act or claim to act in the name of superior values.

The four stages in the Spector and Kitsuse model

What follows in summary form are the four stages in the Spector and Kitsuse model, as well as the factors to be considered in an examination of each of these stages.

1- Attempts to legitimize a situation considered to be undesirable or harmful by one or more groups as against the institutions:

• the complaint- or claims-making process

• the power of the claims-making groups

• the nature and variety of the complaints

• the pressure mechanisms

• documentation concerning the complaint

2- Recognition of the claims-making groups by the official authorities or institutions, which may involve an official investigation, reform proposal and/or creation of an official structure to respond to these claims.

••• The claims-making process may stop here when the institutional structures appropriate the claims and respond satisfactorily to the initial demands of the claimant groups.  Some official agencies will then develop specific interests in the assumption of responsibility for these complaints or claims. However, some situations may lead to the following stages when there is dissatisfaction in some of the claims-making groups.

3- Re-emergence of claims and demands by one or more of the initial groups (or by other groups) that express dissatisfaction with the arrangements made to correct the situation (unsatisfactory processing of the complaints by government officials, existence of mistrust in the structures put in place, etc... )

4- Rejection of institutional structures by the claims-making groups, which feel that the response of the authorities to their demands is inadequate, which can lead to the development of parallel or alternative structures in reaction to the official procedures.

2-   REVIEW OF THE ORIGINS OF AND CHANGES IN THE INTERNATIONAL PROHIBITION SYSTEM

In line with the constructivist perspective, I shall begin by recounting the history of the assumption by international law of authority over drugs and then take a look at the situation in Canada.  It is essential to look at to the origins of the internationalization of control over drugs if we wish to understand Canadian policies and adequately locate the existing Canadian legislation in the broader international framework that influenced Canada early on in its attempts to control drugs.

China, the British and opium

According to Glorie (1984), the control of narcotics came into play in the 19th century in China.  Smokable opium, which was at the time grown in large quantities in India by the British, was introduced into China by the British with a view to using the profits from the sale in China of opium grown in India to pay for the large cargoes of tea imported into Britain from China:

[TRANSLATION]

... it was in fact a simple exchange that enabled the British to market Indian products at great profit ... China was faced with extensive imports of opium that were not only international, since it involved several producing countries and importers, but also had profound economic consequences (C.-N. Robert, 1989:6).

It was accordingly in the forced acceptance by the Chinese, imposed by the British (Treaty of Nanking in 1842), of controls on opium that the process first took concrete form.  Later, imports of opium grew substantially and some estimate that the proportion of the Chinese population that was affected by opium addiction at between 5% and 20%.  This would amount to between twenty-five and one hundred million people.  The real extent of this consumption, however, is subject to widely differing estimates depending on the authors in question but, like Spector and Kitsuse, we shall pass over the subject of the “presumed” objective condition and focus instead on the control mechanisms.  From 1836, therefore, England and China were the first and main players to be involved in the early attempts at control over drugs.  However, they were not the only powers involved because the French, the Spaniards and the Dutch were also involved in the opium trade at that time.

The reaction of China and Great Britain to the actions of the British took some 25 years to take concrete form.  In 1908, following a return to traditional values advocated by various reform movements in China as well as under the powerful Quaker lobby in Britain, the British and the Chinese governments signed an agreement to provide for the gradual suppression of opium.  At the Shanghai Conference (to be discussed later) in 1909, the first instrument concerning drugs that had a truly international scope, first saw the light of day (Caballero, 1989).  Later, as far as China was concerned, the overthrow of the Empire and the civil wars of 1911 led to the abandonment of the agreement in that country (Glorie, 1984).

The internationalization of drug control in the 20th century

A number of the authors consulted are agreed that from the very beginning of the 20th century, the United States was the main instigator of the historical movement that led to the development of the criminal regulation of drugs that spread throughout the whole world (Morgan, 1981; Musto, 1973; Glorie, 1984; Nadelmann, 1990; Caballero, 1989).  The conclusion of international anti-drug agreements is more specifically part of a dual intertwined movement that has its direct origins in the United States and that made an impact on both the national and the international stages: 1- domestically, the arrival of a reform movement that enshrines the actions of the authorities in American society and the birth of moral movements that brought new actors or social groups into play, namely “moral entrepreneurs” (Lowenthal, 1974, in Glorie, 1984).  2- on the international level, the beginning of the imperialist phase of American foreign politics under the influence [TRANSLATION] “... [of] a new colonial generation consisting of religious benefactors filled with altruism and feelings of superiority that discovered on some of the missions it sent forth the problems caused by opium in the Philippines” (Glorie, 1984:72).  Two Americans were particularly involved in this process: Bishop Charles Brent, who was at the head of the American anti-opium movement at the time and was joined in his crusade by Dr. Hamilton Wright, whose objective it was to [TRANSLATION] “combine international action against opium with a vote in favour of more general federal [American] regulations” (ibid.).  Glorie also attributes to Wright [TRANSLATION] “… the paternity of international agreements and American laws ... the legal and ideological basis for most of the forms of drug control that currently exist throughout the world” (ibid.).  Thus, it was the pressure exerted by the church – as well as by the temperance leagues whose members were close to the church – that apparently helped to persuade puritanical America to initiate a worldwide anti-drug crusade.  In fact, the American initiative apparently was a response to three imperatives or dynamics: one-third humanitarian morality, one-third racist xenophobia and one-third geographic interests (Caballero, 1989).

It was following the anti-drug crusade that Brent and Wright issued invitations to an international diplomatic conference.  The Shanghai Conference, presided over by Bishop Charles Brent, was attended by thirteen delegations[3] with a view to initiating discussions on international trade and on the use of opium in the colonies belonging to certain colonial powers (Glorie, idem.).  Given the resistance of some countries to reaching agreement in specific recommendations for reasons that vary from one country to another - prohibition of international trade, on the one hand, protection of certain interests, on the other – the meeting ended merely with a few declarations of principle that, according to Glorie (1984 :72) referring to Tisseyre (1977):

[TRANSLATION]

... invited the interested powers immediately to ban the use of opium, to enforce in the colonies the laws that are in effect in the mother country as well as to ban exports of opium to countries that prohibit imports thereof.

Following a host of compromises, the United States thus persuaded the participants to accept the two foundations of their policy of international control, namely the principle of limiting trade for medical purposes and reducing exports of opium (Caballero, 1989).   Nor was Britain dissatisfied with the results of the Shanghai Conference, since it retained its bilateral agreements with China intact while avoiding having to accept an obligation to submit to a specific policy (Glorie, 1984).

1912: The Hague International Convention on Opium

The participants in the Shanghai Conference in 1909 met again in 1911 in the Hague in the Netherlands, once again on the initiative of the Americans.  Like the previous meeting, this gathering was marked by negotiations that were extremely arduous as a result of the widely differing interests and requirements of the participants (Glorie: 1984).  Resistance came from the representatives of Great Britain. which required that regulations on the manufacture of morphine and cocaine be included on the agenda, while the [TRANSLATION] “German, French, Dutch, Portuguese, Persian and Japanese delegations had an interest in protecting either their industries involved in the manufacture of morphine, heroin and cocaine or their local or colonial drug production” (Glorie, idem:72).  Despite these differences of view, the International Opium Convention was concluded on January 23, 1912, thanks to “the charisma of Wright and the common sense of Brent” (Glorie, ibid.:72).

1919: The Treaty of Versailles

1919, which marks the end of the First World War, was a seminal moment in terms of the internationalization of policies on drugs and this was so for reasons that had nothing to do with the problems of drugs in the member countries or even in their colonies.  In fact, while only a few countries signed the Hague Convention of 1912, many countries were involved in the Treaty of Versailles in 1919.  This Treaty, which marked the official end of the War, also referred to the question of the international use of drugs and more specifically to the opium trade.  In this regard, Silvis (1994:42) notes article 295 of the Treaty, which reads as follows:

Those, of the High Contracting Parties who have not yet signed, or who have signed but not ratified, the Opium Convention ... agree to bring the said Convention into force and for this purpose to enact the necessary legislation without delay ....  Furthermore, for those Powers which have not yet ratified the Opium Convention, ratification of the present Treaty should be deemed in all respects equivalent to the ratification of that Convention ....

Responsibility for following the recommendations in this agreement lay at that time with the League of Nations, a task it had been given at the end of the First World War  under the Treaty of Versailles.  This responsibility was later transferred to the United Nations Organization (UNO), specifically to the Narcotics Commission of the Economic and Social Council (UNESC).  It is still the UNESC that ensures compliance with international agreements as well as having a mandate to provide advice and make recommendations to the Council and to governments.[4]

1925: The Geneva Conventions

The Geneva Conference, organized by the League of Nations following the Hague Agreement and the Treaty of Versailles, gave rise in 1925 to two separate Conventions, namely the Convention on the Suppression of the Trade in and Use of Prepared Opium and the Convention on Raw Opium and Other Drugs (or International Opium Convention).  This meeting brought home the deep division of the participants into two camps with different philosophies: on the one side the realists, who were in favour of regulating the distribution of opium and, on the other, the idealists, who favoured a total ban (Caballero, 1989).  The former held the upper hand during the period from 1925 to 1961.

The Convention on the Suppression of the Trade in and the Use of Prepared Opium made it possible to adopt a production and distribution system that was controlled by a government monopoly, with certain measures such as a ban on sales to minors, restrictions on the number of places where the drug could be smoked, a reduction in cultivation of the substance, etc...  The main signatories – namely the representatives of Great Britain, France and India – were convinced that opium was not very harmful in the Far East, where it was a custom and, in any event, it was not possible to suppress its use by means of an international agreement.  One argument advanced by these countries was to the effect that [TRANSLATION] “prohibition would lead … to smuggling and trafficking” (Caballero, 1989:47).  It seems clear that history has proved them right.

In fact, the International Opium Convention of 1925, despite its title, goes beyond the restricted framework of controlling opium and in fact applies to the three major “natural” drugs, namely opium, coca and cannabis, as well as their main derivatives.  For the first time it imposes a duty on the Parties [TRANSLATION] “… to provide assessments of their needs for drugs and to submit each operation of production, importation and exportation to appropriate authority” (Caballero, 1989:47).  This Convention also marks the creation of the Permanent Central Committee, which became the official agency for regulating drugs with responsibility for “centralizing statistics concerning the production, inventories, seizures, imports and exports of the substances subject to the Convention” (Caballero, ibid.).  Between 1931 and 1953, no fewer than six Conventions were ratified for the purpose of supplementing the instruments that already existed.  The following is a brief summary of these Conventions, taken from Caballero (1989:45-48):

1931: Geneva Convention: extends the area controlled to manufactured drugs, introduces a classification of substances and clearly imposes the principle of limiting drugs to medical and scientific needs.  It is designed primarily to prevent transfers from the legal to the illegal market.

1931: Bangkok Convention: since it applied solely to the Powers that had possessions in the Far East, it adopted rules governing the operations of opium dens (ban on sales to minors, cash sales, etc.) and recommended systems for registering smokers in such a way as to organize a gradual rationing of amounts to the persons registered.

1936: Geneva Convention: made effective the application of the earlier Conventions and was designed to emphasize the suppression of unlawful trafficking of so-called “harmful” drugs.  It also provided for certain forms of international control (extradition of traffickers, organization of a specialized police force in each signatory country).

1946: Lake Success Protocol: transferred responsibilities for drug control from the League of Nations to the UN.

1948: Paris Protocol: made it possible to place new synthetic substances that had not been covered previously under international control.

1953: New York Protocol:  Extended the international control measures to cultivation of the opium poppy and the cultivation of opium in the interests of cutting off supplies at the source.

Summary of the period from 1912 to 1961

It was therefore primarily under the influence of the United States that measures to control trafficking, cultivating and production were gradually put in place during the first half of the century; what these six Conventions all had in common was their aim of [TRANSLATION] “reinforcing the constraints and penalties on drugs” (Caballero, 1989:47).  A number of the other authors consulted (Beauchesne, 1988; Bertrand, 1989; Solomon and Green, 1988; Caballero, 1989; Glorie, 1984; Nadelmann, 1992) assert that the period between 1912 and 1961 led to an ongoing intensification of controls at the same time as international agreements were expanded, ranging from control of the production of opium to a gradual criminalization of increasing numbers of “behaviours” associated with substances that were now “illicit”, in both quantitative and qualitative terms.  Thus, from the time of the earliest conventions, a growing number of countries had become signatories of the treaties and growing numbers of substances were subject to controls while control mechanisms became more specialized and the level of penalties rose.  In addition, the purpose of the controls, which initially applied solely to production, first of all of opium and later of other substances, gradually involved the criminalization of individuals and increased numbers of behaviours that were classified as offences (Hulsman and Van Ransbeek, 1983).

1961: The Single Convention on Drugs

The era of general and absolute prohibition desired by the United States really took off with the 1961 Convention, when many regulatory organizations were given responsibility for monitoring the proper application of the Convention (Caballero, 1989).  However, it is possible to cast doubt on the realism of a truly effective global ban since only one or a few states had to refuse to apply the Convention and the illegal drug trade would expand.  Global controls were also hobbled in two ways: by the possibility given to some states of acceding to the Convention while expressing reservations or not acceding to it; some countries claimed this right on the pretext that the treaty failed to take their specific national characteristics into account.  Finally, we should note that, according to Caballero, the regulatory agency has the power to apply the measures provided for in the Convention even to those States that are not parties to it (Caballero, idem.).

This Convention is designed primarily to impose strict controls on three of the drugs that are traditionally produced and consumed in so-called “under-developed” areas, namely, opium, coca and cannabis.  The United States, which felt at the time that the enforcement of the Convention was too permissive on the ground that it left too much room for trafficking in clandestine products as a result of the overly soft enforcement policies of some countries, insisted that controls be imposed on production at source.  This was in fact the watchword of the American delegation.  It was precisely this kind of pressure that finally led to the Geneva Protocol in 1972 (see below), which was designed to strengthen even further the strictness of international controls (Caballero, idem.).

The following is a summary of the different subjects covered by the Single Convention  (taken from the Final Report of the LeDain Commission, 1973):

• define the acts and behaviours that should be criminalized;

• draw up lists of the substances to be prohibited;

• determine the duties and responsibilities of the signatory countries;

• list the means of prevention;

• determine the maximum quantities of drugs to be produced;

• dictate to the member countries the means of suppression to be adopted with respect to drugs;

• provide for mandatory use of prison sentences for offenders;

• announce their program for reducing drug use in the world.

Bertrand (1989:31) regards the Single Convention as a [TRANSLATION] “declaration of war on drugs” that had very concrete consequences on the Canadian approach.  Through the controls, penalties, specifications and behaviours for which it made provision, the Single Convention was not merely designed to control the trade in and production of drugs but to ban the possession and use of drugs, even for scientific and medical purposes.  Among the acts and behaviours referred to were possession and holding of drugs, including cannabis.  This was the start of a system of prohibition.

1971: The Vienna Convention on Psychotropic Substances

Adopted ten years after the Single Convention, this Convention resembled its model even though it differed from it in several essential respects.  Thus, unlike the Single Convention, which relates primarily to the opium poppy, coca, and cannabis and their derivatives, the later agreement also applies to a range of more than 65 other substances, all of industrial or synthetic origin, arranged in four tables (hallucinogens, amphetamines, barbiturates and tranquillizers) (Caballero, 1989, see also Table 1.2 in Appendix 1).  According to Caballero, the fact that these substances are produced in the West explains why different controls are imposed on drugs other than the “narcotics” of oriental origin, compared with 1961; on this occasion it was the producing countries – with Europe and the United States at the forefront – that attempted to secure a reduction in the constraints, precisely what the developing countries had requested in 1961.  Finally, it was considerations that had nothing to do with public health that won out and led to the adoption of a much less harsh documents than the Single Convention.

Under this Convention, besides limitations of an administrative nature on illegal trading, there are also provisions concerning the suppression of illegal trafficking and the battle against the use of psychotropic drugs.  The provisions relating to suppression are less harsh with respect to drugs other than narcotics than those laid down in the Single Convention in terms of penalties for serious offences as well as in terms of international co-operation.  As far as abuse is concerned, it reproduces and extends the classic preventive measures such as treatment, education, aftercare and social rehabilitation (Caballero, idem.).  It is interesting to note that no formal penalties are provided for the offence of possession in the case of these “new” psychotropic drugs.

As far as the classification of substances is concerned, this Convention first makes an erroneous distinction between narcotics and non-narcotics, and then blurs the boundary between drug dependence and non-drug dependence.  Thus, only use for medical or scientific purposes is permitted (article 5) while all other use is prohibited.  With the exception of the hallucinogens in Table I (LSD, mescaline, psilocybin ...), which are of little or no therapeutic use, the substances in the other groups are all products of the pharmaceutical industry (Caballero, 1989).  The ban applies therefore only to abnormal use of the products and not their normal use.

1972: Geneva Protocol Amending the Single Convention

Out of dissatisfaction with the “softness” of some of the provisions in the Single Convention of 1961, the Americans requested amendments until 1972, especially to strengthen the powers of the Drug-Producing Countries Agency.  However, they came up against the block of developing countries, supported by the countries in the east block, in their attempt to strengthen the powers of the Drug-Producing Countries Agency.  Thus, the amendments designed to give the regulatory agency the power to collect its information from sources other than those of the signatory governments, to inspect crops in the producing countries, to correct their evaluations and to order an embargo on their imports of narcotics was rejected (Caballero, 1989).  The countries that ratified the Protocol, which came into force in 1975, accordingly agreed that they would propose only minor changes that fell well below the expectations of the United States.  What emerges from the provisions as a whole is the principle of co-operation between the Agency and the states (idem.).  However, this Protocol contains a major addition: it is now possible to contemplate non-criminal treatment measures for individuals who abuse narcotics when they commit “other” offences:

 [TRANSLATION]

... if abusers (of opiates, cannabis and cocaine) commit such offences, the Parties may instead of criminal charges and punishment or, concurrently with them, adopt measures requiring these persons to undergo treatment, education, aftercare, rehabilitation and reintegration into society... (from Caballero, 1989:54).

 

1988: The Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances

The last of the international drug conventions, the 1988 Convention is designed to strengthen and supplement the provisions in effect under the 1961 and 1971 Conventions.  By ratifying it, the signatories agreed to commit themselves even further to suppression of illicit trafficking in drugs and psychotropic substances.  The Parties aim in particular to circumvent the international organizations of traffickers by coming to grips with the profits derived from trafficking and creating the offence of money-laundering, primarily through greater international co-operation for the purpose of suppression.  This agreement also aims to eliminate the causes of drug and hallucinogen abuse at the source by attempting to reduce demand and giving the police additional powers.  Finally, there was also a desire to implement measures to control certain substances that were not previously subject to the previous agreements, including precursors, chemical agents and solvents, all of which are products used in the manufacture of certain drugs and other psychotropic substances.

In short, from the adoption of the Single Convention of 1961 until the Convention Against Illicit Traffic of 1988, passing through the Convention on Psychotropic Substances of 1971 and the 1972 Protocol amending the Single Convention, we find an acceleration of the regulatory process and a growing desire in an increasing number of parties to impose legal controls through the criminal law not only on production, importation and trafficking but also on simple possession of a growing number of opiates and other psychotropic substances of all kinds (Bertrand, 1997), as well as severely punishing the said offences by economic sanctions and the seizure of property.

 

3- SHORT HISTORY OF THE PROHIBITION OF DRUGS IN CANADA

The stage for the initial legislation

Before 1880 in Canada, opium smokers enjoyed a fair amount of freedom.  It was only after that time that puritanical moral groups, especially Methodist evangelists, began to advocate less broad tolerance of the use of opium, alcohol and sex, which were, in their view, [TRANSLATION] “major sources of vice and sin” (Beauchesne, 1988).  The earliest temperance movements (which brought together various puritanical moral groups, as noted earlier) focused on defence of the white Anglo-Saxon Protestant race and it is to these groups that we owe the first movements toward formal control of certain psychotropic substances in Canada.  At the time, the Chinese, who had introduced opium dens into the Victoria and Vancouver areas, of corrupting the way of life of a Christian nation and it was for these reasons that drug legislation was enacted by the Parliament of Canada.  It was primarily as a result of the increase in Chinese immigration that the question of race, which had previously merely underlined the debate, came into the open with the publication of the report of the Royal Commission on Chinese Immigration in 1885, which asserted that [TRANSLATION] “the use of opium was a pagan habit incompatible with the way of life of a Christian nation” (Beauchesne, 1988:127-128).

The campaign against drugs, which was under way at the same time in the United States, had a certain impact on Canada’s crusade against opium (Beauchesne, 1988, Bertrand, 1989, Giffen et al., 1991, Solomon and Green, 1988).  The US campaign, which led to the ban on sales of opium for non-medical purposes in some states, led to a reduction in opium stocks in the United States, which also produced a shortage in Canada, which, when combined with the crusade against drugs, had the effect of forcing some opium dens in Victoria to close.  That was the point at which opium smuggling began (Beauchesne, 1988).  Somewhat later, the results of an inquiry by the American Pharmaceutical Association into drug use in 1903, which asserted that drug use was widespread throughout US society but especially in two social groups, Chinese immigrants and Blacks, also had an impact on Canadian policy and public opinion.  Canadian moral groups based their views on similar arguments in demanding legislation designed to eliminate this “scourge”.

1908: The Opium Act in Canada

Prior to 1908, there were very few legal restrictions on the use of drugs for non-medical purposes in Canada (Solomon and Green, 1988).  According to Beauchesne (1989), the usual customs duties applying to imported goods constituted the only regulation of drugs.  In her view, in fact, it was the Opium Act of 1908 that [TRANSLATION] “still today forms the basis for Canadian legislation on drugs; the amendments that were made later would apply solely to the process of enforcing the laws and the number of drugs involved” (1988:126).  Moreover, it was this Act which formally instituted controls on the non-medical use of drugs and which was passed without debate in the House of Commons and without opposition in the Senate.  Giffen et al. (1991), for their part, suggest that the Act was the product of a combination of factors that included an atmosphere of general moral reform in North America, an international movement designed to put an end to the opium trade out of China as well as hostility toward Chinese immigrants in Canada.

It was primarily moral, cultural and ethnic considerations that inspired Mackenzie King, the federal Minister of Labour and the main architect of the initial process of legislation concerning drugs in this country (Beauchesne, 1988).  Rather than grappling with the conflict between, on the one hand, white workers and Asians and, on the other hand, unionized and non-unionized workers against employers, the Minister of Labour preferred to shift the problem “onto foreigners” of Asian origin (Comack, 1985).  Following the passage of the legislation in 1908, Mackenzie King was the Canadian government’s representative in the British delegation to the Shanghai Conference of 1909, where Canada was on many occasions referred to as a country that had brought opium trafficking under control.  It may be surprising that Mackenzie King, the then- Minister of Labour in the federal government, appeared as an expert on drugs.  While all the sources consulted point to the definite and on-going influence of the United States on Canadian policy throughout the 20th century, a quotation from Mackenzie King taken from a newspaper of that time, suggests that Canada might, in his view, have had a certain impact on US legislation at the turn of the century: “... it was also an interesting fact that the American delegation [to the Shanghai meeting] generously admitted that their legislation for the suppression of the traffic in the United States had been copied from Canada” (in Giffen et al. 1991:75).

Broadening of controls between 1911 and 1923

Mackenzie King returned from Shanghai basking in his reputation as an authority in the field of drugs.  It was this fame that enabled him to play a leading role when the Opium Act was amended in 1911 to become the Opium and Other Drugs Act, in order to include morphine and cocaine.  While the 1908 Act was the first to impose criminal penalties on drugs in the country, it was the 1911 Act that provided more serious confirmation of the role it was intended to give to the criminal law in the control of illicit drugs (Giffen et al., 1991).  Although proposals to the effect that the use and simple possession of opium should become criminal offences and that the powers of arrest and investigation of the police should be expanded and the penalties made more severe were advanced in the wording of the 1911 bill, only the criminalization of the use and simple possession of opium were included, although the others became part of the law later.

The 1911 Act was renamed the Opium and Narcotic Drugs Act in 1920 and many amendments were made to this statute between 1920 and 1923, including:

•    an increase in police powers of search;

•    the imposition of discriminatory penalties for certain categories of offenders;

•       deportation of foreigners who had broken the law and whipping for minors convicted of offences (Erickson, 1980).

The main events that may have encouraged the broadening of the Opium and Narcotic Drugs Act to include new substances and the tightening of criminal controls during this period included the following:

• greater efforts to mobilize international public opinion by the signatory countries as a result of the decisions of the Hague Conference, which were attached to the Treaty of Versailles and took effect following the First World War;

• creation in 1920 of the Canadian Department of Health, the federal Bureau of Drugs, responsible for international agreements as well as Royal Canadian Mounted Police (RCMP) responsibility for ensuring compliance with, among other things, federal legislation, including that on drugs;

• conflict between whites and Asians that was again flaring up on Canada’s west coast;

• the use of cannabis, which became “prominent on the American scene”[5] in a number of cities on the west coast in the period leading up to the 1920s and the widespread use of opium and heroin in various social groups (Bertrand, 1989).

In 1923, the 1920 Act was amended again to add codeine, heroin and cannabis.  As far as the inclusion of cannabis in the 1923 Act was concerned, the LeDain Commission stated the following:

[TRANSLATION]

...be that as it may, the decision was made without any obvious scientific justification or even any real awareness of a social problem, to place cannabis, as the Act is worded on the same level as opiate drugs such as heroin, and this is why it has been included in legislation ever since then. (Report on cannabis, 1972).

In 1929, the 1920 Act was renamed the Opium and Psychotropic Substances Act.  According to Solomon and Green (1988), this Act represented a codification of the six legislative revisions that had occurred between 1921 and 1927, which had extended the range of penalties, offences and sentences originally provided for.  Among the items included was whipping for the offences of possession and distributing, creating of the offence of aiding and abetting, which strengthened the police power to search without a warrant and the presumption of possession by anyone found in the presence of the incriminating substances unless that person could prove that he or she had no knowledge of them.  Bertrand (1989:26) comments as follows on  this Act:

[TRANSLATION]

... in 1929, Parliament to some extent codified the sentences ... in an act of unusual severity that violated several aspects of the rights of individuals or in any event moved away from the usual rules observed in criminal prosecutions.

Despite an increase in police powers that were supposed to facilitate the process of arrest, the number of convictions, which had peaked in the early 1920s, declined quickly to a level of approximately 200 toward the end of the decade (MacFarlane, 1986, in Solomon and Green, 1988:99).[6]  The primary reason for this decline was apparently the disappearance of the first generation of Chinese opium smokers, a group that at that time accounted for the vast majority of offenders (Solomon and Green, idem.).  The ban on immigration from China, which was accompanied by a punitive “head tax”, the deportation of more than 500 Chinese who had been convicted during the 1920s and the decline in public interest also contributed to this drop in the number of arrests.

Like what was happening on the international stage at the same time, the period from 1930 to 1952 witnessed a consolidation of federal bureaucracy for regulation and suppression of drugs because it was during this period that the offence of growing cannabis was introduced, in 1938, and new synthetic substances and compounds thereof were also included.  This approach that focused primarily on treating addicts as criminals first became subject to criticism in public opinion in the early years of the 1950s.  It was at that point that more serious discussion was first heard of “treatment” rather than strictly of criminal regulation (Solomon and Green, 1988).  However, the regulatory agencies raised a major counter-argument to this questioning of the criminalization of the offences of possession, trafficking, cultivating and importing, namely the spectre of organized crime. It was therefore on the basis of this kind of argument that it was possible to continue successfully to urge increasingly harsh controls.  The amendments made to the Act in 1954 were still broadly based on the wishes of RCMP officers, despite a growing desire in medical associations and social services to provide care for addicts.  Under the influence of the Kefauver Commission[7] in the United States, the federal government established the Special Senate Committee on Drug Trafficking in Canada in 1955 and it received submissions from various parties involved in the drug field in Canada from doctors to social workers including the police and ordinary citizens.  The committee considered four major topics (Solomon and Green, 1988:103-104):

1- the many problems involved in police work in their attempts to prevent drugs from entering the country;

2- the view of the police that addicts are in fact criminals and “social failures lacking in morals and principles” and also liars;

3- the failure of any attempt to establish clinics for individuals addicted to drugs;

4- the urgent need of the representatives of the police or consultation with a view to eliminating the demand for drugs by aggressively enforcing the offence of possession.

The members of the Senate Committee recommended harsher sentences for trafficking and stricter enforcement of the offence of possession and related offences such as prostitution and theft, thus accepting without demur the wishes expressed by the representatives of the police (Solomon and Green, 1988).  Moreover, several of the Senate Committee’s recommendations led to the enactment of the Narcotic Control Act in 1961 (Bertrand, 1989).

Summary of developments from 1908 to 1961

In short, between the coming into force of the Opium and Other Drugs Act in 1911 and the passage of the Narcotic Control Act in 1961, the various statutes were amended on sixteen occasions, sometimes very substantially.  The busiest period in terms of changes was undoubtedly that between 1919 and 1929, during which the regulatory system was consolidated and became more influential and when government officials gained increasing importance as initiators and arbitrators of legislative change (Giffen et al., 1991).

1961: The Canadian Narcotic Control Act (NCA)

The NCA was passed in 1961, the year in which the Single Convention on Narcotic Drugs  came into force.  From 1961 to 1997, when the Act was repealed and replaced by the Controlled Drugs and Substances Act (to be discussed later), no major changes were made to the NCA, although it was amended several times:

• changes in 1969 in the method of prosecution, which made it possible for accused to be tried under the summary conviction procedure in cases of simple possession of cannabis;

• abolition of the writ of assistance in 1992 (as a result of an earlier decision of the Supreme Court); and

• the 1988 amendment designed to penalize possession of the proceeds of crime, money laundering and organized crime offences (Bertrand, 1989).  On the other hand, although it did not lead to an amendment to the NCA, we should note the 1986 decision of the Supreme Court striking down the reverse onus of proof in the Act applicable in cases of possession for the purpose of trafficking.

One of the main attempts to amend the NCA was Bill S-19, tabled by the federal government in the Senate on November 26, 1974, the main purpose of which was to remove cannabis from the NCA and include it in a new Part V of the Food and Drugs Act (FDA).  Under the Bill, the Crown could only have applied the summary conviction procedure in cases of simple possession and the maximum sentences for all offences would have been reduced.  The Bill was passed by the Senate but never even reached the stage of First Reading in the House of Commons (Bryan and Crawshaw, 1988).

The establishment of the Commission of Inquiry into the Non-Medical Use of Drugs in Canada in 1969 – the LeDain Commission[8] – and the work it did – as well as Bill S-19 in 1974, show that the late 1960s and the early 1970s were a time in which the relevance of drug legislation in Canada, especially that relating to cannabis, was seriously questioned.  Despite these events, however, no new formal legislation designed to make the system more flexible was forthcoming.

 

1997: The Controlled Drugs and Substances Act

The Controlled Drugs and Substances Act came into force on May 14, 1997.  As a result, the NCA and Parts III and IV of the FDA were repealed.  The Canadian government justified replacing the NCA and certain parts of the FDA by the need to standardize Canadian policy on drug regulation to permit the country to meet its international obligations under various international agreements, especially the 1988 Convention.  According to Beauchesne (1997:12), the Act:

[TRANSLATION]

... consolidates the penalties contained in the Narcotic Control Act, increases the number of products subject to controls, solidifies the new offences relating to property linked to prohibited substances, provides for aggravating circumstances in some cases, consolidates the powers of search, seizure and forfeiture of property, legitimizes undercover operations and “sting” operations by the police, submits medical drugs to a finicky bureaucracy armed with excessive powers.

If this author is to be believed, the Controlled Drugs and Substances Act is marked by an expansion of controls.  Among the few new provisions that display a less restrictive attitude, there are reduced maximum sentences as well as summary conviction proceedings only for the offence of simple possession of less than 30 grams of cannabis; we should note, however, that a conviction for this offence still involves a criminal record.  On the other hand, the Act substantially increases police powers of search and investigation and still does not permit the medical use of cannabis.  In addition, it provides that homes in which cannabis is grown are now deemed to be “fortified drug houses”, and this makes it possible to seize the premises and even the whole property.  New provisions also permit police officers to testify by affidavit in certain parts of proceedings relating to drugs.  The Act also authorizes the laying of charges against persons found in possession of instruments or substances that may be used in the manufacture or use of illicit drugs.  In short, these new statutory provisions may have the effect of steering into the criminal justice system a potentially even greater number of individuals and this is completely in line with the tendency enshrined in the International Convention of 1988, which requires that traffickers be treated with increased severity (Beauchesne, 1997).

We should note in conclusion that Canadian policies relating to drugs are not expressed solely in the form of criminal legislation;  there are various forms of regulation such as pricing (in the case of legal substances such as alcohol and tobacco), dissemination of information concerning use of the product (legal products) and promotion of treatment for addiction and of prevention.  Thus, parallel to the Department of Justice and the Solicitor General, authorities that play a major role in administering and applying controls, the Department of Health is also involved in making policy on drugs.

Some criticisms of the Canadian legislation

During the last century, Canadian policies “...have proliferated in a piecemeal fashion, as crisis management rather than as comprehensive policy planning... further, drug lawmaking has traditionally been an expression of essentially moral concerns” (Blackwell and Erickson, 1988:69).  This “piecemeal” approach criticized by the authors is clearly evident in an analysis of the legislation and other forms of regulation in the drug field.  As policies have been developed in this area over the century, a number of specific factors have guided decision-makers in Canada: first of all, outside influences from neighbouring countries, especially the United States.  Inside the country, there is the presence of certain specific pressure groups, including some professional organizations, representatives of the police and prison guards, moral pundits and various bureaucracies.  These various initiatives and pressures have been exerted by these groups in an atmosphere of sensationalism stirred up by most of the media.

Bertrand (1989), for her part, feels that resistance to changes in drug legislation in Canada can be explained primarily by the actions of officials in the Department of Justice and the leaders of police forces across the country, including the RCMP and the Narcotic Control Directorate, the Association of Pharmacists, drug companies and the Canadian Medical Association.  She maintains that some of the players in Canada, including the RCMP, have been subject to the direct influence of their American counterparts.  Among others, she refers to Colonel Sharman, Director of the Canadian Division of Drug Control from 1927 to 1946, who was particularly influenced by Henry Anslinger, his American counterpart with whom he was in almost daily contact as the international conventions were being drafted (Bertrand, 1989:38).  The images, opinions and impressions of our American neighbours explain Canadian policies in part since they are marked to some extent by the “need” to be a good neighbour.  At the hearings of the LeDain Commission between 1969 and 1973, Bertrand also said that she had evidence of American influence in the many references to and reliance on US studies in the testimony and quotations heard;  prejudice of no scientific value and without any basis had apparently replaced the findings of experts and serious scientific studies in the making of recommendations and adoption of policies.  In her criticism of Canadian legislation on drugs, she stated that it [TRANSLATION] “got the better of constitutional guarantees of civil liberties enshrined in Canadian laws ... and succeeded in perverting, over the course of many years, from 1961 to 1985, the accusatorial system and the presumption of innocence” (1992:113).

4- DISCUSSION

Application of the theory of Spector and Kitsuse to the social structure of prohibition

All the commentators consulted confirm that moral reformers were involved in the initial application of measures to control and suppress drug use at the beginning of the century, especially in North America.  The different groups with a strong desire to ban the use of drugs generally relied on arguments based on the promotion, defence and maintenance of “prevailing” values – puritanical, white and Anglo-Saxon in the case of North America – the need to protect the children of the family, respect for Christian religious values and the prevention of the vice and immorality caused by the lifestyles of foreigners (especially the Chinese in Canada; the Chinese, Blacks and Mexicans on the other side of the border) (Musto, 1987).  On the international and North American stages, the initial development of drug legislation extended from the end of the 19th century into the 1930s.  After that period, it is possible to identify a period of “bureaucratic consolidation” extending from the 1930s into the 1960s, during which time it was the officials responsible for applying policies (police forces, officials and bureaucrats) who more actively supported the maintenance and expansion of control measures first implemented in the early part of the century.

Since the 1960s we have witnessed a dual movement: on the one hand, there is an intensification of controls as well as a tightening of the application of these controls on both the national and the international levels and, at the same time, an increasingly organized opposition is emerging to the prohibitionist system from various groups of individuals, academics and non-government treatment organizations.  On this last point, we note the gradual emergence of several international, national and local movements in favour of decriminalization and/or legalization of one or more drugs and a growing interest in the application of public health policies focused on reducing harm and having society take care of addicts.  The consensus that seemed to be complete during the first half of the century began to dissipate after the late 1950s.  The dispute can be seen in the conflicting conclusions in the Final Report of the LeDain Commission published in 1973 (conclusions that indicate a broadening of the conflict beyond the involvement of various interest groups) and in the fact that 17 countries established commissions of inquiry into drug use between 1965 and 1977, following the adoption of the Single Convention in 1961.  The collapse of the consensus was emphasized by the substantial increase during the 1960s in the number of young people from “traditional” families who experimented with recreational drugs and the numbers of these increased at the cost of the criminal justice system and as a result this led to an increase to unimagined levels of the statistics for drug offences, especially those for possession of cannabis.

Criticism of the involvement of drugs users in the criminal justice system was also expressed by the Canadian Bar Association, doctors and social workers, who felt that the systematic use of the law as an instrument for the control of consumers counteracted efforts made to make contact with them.  Users stopped by the forces of law and order were not only strangers or outsides as had been the case earlier but they were also the “sons and daughters of good families” - many were the children of people belonging to groups that advocated prohibition – and this contributed to the increased questioning of the use made of the criminal law system to suppress drug use.

To come back to the theory of social problems, it was under the pressure of groups that initially favoured international prohibition that prohibitionist policies were implemented; these groups accordingly attained their objective with a certain degree of success in terms of their demands.  However, if we apply the four stages developed by Spector and Kitsuse to their actions, we find that the process by which prohibition became a problem does not necessarily stop after the second stage (1- attempts to legitimize an undesirable situation and 2- recognition of the demands of these groups by the authorities of official institutions) even though the international organizations and the Canadian and US governments gave a satisfactory – but temporary – response to their demands by implementing a legal system of prohibition, despite the reluctance that was displayed in the early part of the century by some countries that derived substantial profits from the opium trade.  In fact, on both the international level and in most individual countries, measures to suppress the problem were implemented fairly easily, without much resistance, since the punitive measure in question was proportional to the harm caused by the actions involved.  We merely have to note the sustained increase in the number of substances and behaviours prohibited and the expanding scope of the international agreements and domestic statutes to understand the extent of the development of this phenomenon.  Evidence of the fact that controls have continued to increase since 1961, the year in which the Single Convention came into force, is provided by the fact that two further Conventions were implemented in 1971 and 1988.  Thus a constant intensification of the control measures can be seen.

In this sense, Spector and Kitsuse note that following stage 2, some government agencies succeeded in developing specific interests in their treatment of complaints and demands.  In light of my reading, I feel that it was precisely this phenomenon of the assumption of responsibility by and specific interests within the regulatory agencies – both international and national – that explain the continuance and the strengthening of existing policies, the effectiveness of which was increasingly dubious  in dealing with the “drug problem”.  In the gradual and ongoing strengthening of the control structures and facilities, we can see phase 3 of the Spector and Kitsuse model, a phase that involves the re-emergence of demands.  At the present time, there is such a large number of players and organizations directly involved in the control and suppression of illegal substances that any change in practice is very difficult to bring about in the short term because the players concerned naturally tend to put up stiff resistance to any suggestion of change.  There is also an institutionalization of the control mechanisms, which tend to seek to expand their room for manœuvre.

In order to confirm this ongoing intensification of the control measures applied by the organizations in question (which measures increasingly go well beyond the suppression as such of activities that are directly linked with the substances – we merely need to think of money-laundering and possession of equipment used for consumption, among others), we should refer to the comments of the Canadian Foundation for Drug Policy (CFDP)[9] on the report published in 1997 by the International Narcotics Control Board of the UN.  In the CFDP’s view, this report to some extent recommended to the Parties, on the basis of paragraph 3 of the 1988 Convention, that they limit any debate in favour of prohibition at this time because such discussions offered “public encouragement to the illegal use of drugs”, an action that should be punished by the criminal law.  In other words, an attempt to advocate any approach other than one of “zero tolerance” and abstinence could eventually lead to such prosecutions.  Paragraph 13 of the same report implicitly invited governments of the countries that had not yet done so to include in the definition of “public encouragement” in their legislation the act of presenting any illegal use of drugs in a positive light, which can be interpreted in several different ways.  The same report also recommended that the Parties urge their telecommunications industries and suppliers of internet services to remove from their facilities any “illegal subject matter”, which yet again could indicate support for an approach other than suppression pure and simple.  It is possible to find in this increasing intolerance of any debate about drugs that would promote an alternative approach to prohibition an illustration of phase 4 of the Spector and Kitsuse model.

As far as the characteristics of the initial pressure groups at the beginning of the century are concerned, we have seen that they consisted primarily of moral reformers in association with religious authorities, organizations of parents of school children (who were also responsible for the establishment of the LeDain Commission ) and concerned mothers, businessmen and influential professionals in society, individuals who were close to the political authorities who were also defending values that were sacred in the eyes of public opinion.  At the time, they leapt to the defence of the prevailing values, values imbued with virtue and puritanical moral and thus not really open to debate until the 1960s on pain of being stigmatized by most of society.  In the absence of tangible evidence to this effect, it is easy to assume that their demands were based on a fear of change and evil, on irrationalism and ignorance.  We have seen that they were not inspired by accurate and reliable scientific data throughout the century (and even today); in fact, a great deal of erroneous information circulated in the media that over-dramatized the use of drugs.[10]  Furthermore, since society at that time was more homogenous than it is today, there was a greater likelihood that the demands would be acted upon because opposing groups were, if not completely absent, then at least very much in the minority and cut off from the ruling class.  We only need to think of the situation of the Chinese in North America in order to assume that it would have been extremely difficult if not impossible for them successfully to oppose those groups attempting to outlaw opium and to exclude Asians or at least to refuse to accept any more.

The influence of international law on Canadian policy

The Canadian government justified the recent implementation of the drug legislation of 1997 by the new requirements imposed by international agreements, especially the Convention of 1988.  I doubt that this factor had a particularly limiting effect on domestic policies because the Convention in question, like the earlier agreements, provides that the application of the provisions it contains must be legislated by each of the signatory Parties [TRANSLATION] “... subject to its constitutional provisions, its legal system and its domestic legislation”.  According to this provision, it would be perfectly legitimate if the Canadian authorities were to put a less restrictive system in place than is recommended by the Conventions, which is in fact what several producing and non-producing countries have done.  If we take as the basic reference for domestic jurisdiction the Canadian Charter of Rights and Freedoms, for example, which takes precedence over all other legislation in the country and which guarantees “the right to liberty of his person” (s. 7), it would probably be possible to decriminalize the offence of possession for personal use contained in the Conventions of 1961 and 1988 and enshrined in the Canadian legislation in 1961 and 1997.

We merely have to think for example of the particular application of the Opium Act in Holland by the courts in respect of cannabis or possession of any drug for personal use – despite the fact that Holland has signed the conventions – to see that it is possible to put in place a flexible regulatory system that reflects the national culture when a desire is present in the government to do so without violating any international conventions.  Moreover, some of the countries that signed the 1988 Convention claim or already apply exemptions.  However, the countries that take this approach must display political courage and accept the disapproval of (and possibly economic sanctions from) those countries that prefer complete prohibition as a strategy of control.

It is not possible therefore, solely on the basis of the argument of compliance with the international conventions, that such repressive domestic legislation as the Canadian Act needs to be enacted.  It seems more plausible to me to assume that as a neighbour of the United States, which shares more than 5,000 kms of common borders, Parliament feels “obligated” to comply with American “directives” in order to be a good neighhbour and to maintain good economic relations because a substantial majority of our exports go to our southern neighbour.  The historical facts show, moreover, American influence on Canadian drug policies from the beginning of the century, as well as its impact on the international stage as a whole.  Furthermore, the recent rise of the political rights and economic liberalism in North America has certainly promoted the establishment of this harsher new Act.

We have seen that Canada was the first country in the world to enact legislation to control opium in 1908, four years even before the first Hague International Convention came into effect in 1912.  A more detailed historical study would enable us to gain a better understanding of the reasons for this haste on Canada’s part to implement controls before other important members of the international community do so.   Various events occurring at that time explain Canada’s hasty use of this “innovative” act : pressure from Canadian temperance groups, labour disputes involving Chinese and Whites on the west coast, the efforts of Mackenzie King, the widespread moral reform movement in North America, not to mention the international movement for the control of opium.

The authorities in a country – whether Canada or another country – are still subject to a complex pincer-shaped pressure movement when they have to give concrete form to certain policy decisions in domestic legislation: on the one hand, they must take into account the reactions of neighbouring countries, their economic and diplomatic relations with various partners and the general impact that these decisions may have on the international level.  At the same time, however, it is also essential for political leaders to listen to the internal dynamics of their countries which consist of the interactions among the various pressure groups and corporate lobbies, public opinion (the importance of which will vary in line with election dates), not to mention the political ideas of the party in power, which is deemed to reflect the values of most of the population.  Thus, in order to understand the real impact of international law on our domestic political authorities in the case of drugs, it is essential to understand the complex international dynamic in this area and correctly to analyse Canada’s international relations with the most influential countries and its closest political partners.  In the field of drugs, however, an essential factor for consideration is obviously our relations with the United States because that country is the world leader in prohibition and an important and certainly not the least detail is the fact that it is our immediate neighbour.  The Americans would certainly not look with favour or without reacting on any attempt by Canada to move away too far from their prohibitionist line.  International law is accordingly an instrument that applies in connection with other factors of a geopolitical., economic and diplomatic nature.

There has been a lot of talk in recent years of globalization.  Measures to control drugs have played a pioneering role in this regard on the international scale.  At the same time, however, despite this apparent uniformity tending toward a global and universal model of prohibition, approved by international law, we find the emergence in a number of places of practices that are more geared and more sensitive to local reality.  We merely have to think of the various needle-exchange programs in various western countries or the recent projects to distribute heroin to addicts in Switzerland, Australia, Holland and England, to name only a few, to realize that there are several movements and practices that depart from the repressive approach that is advocated by the Americans and by the UN.  We hardly need to point out that Canada’s geographic position puts the authorities in a particular position that leaves very little room for manœuvre in the adoption of more liberal policies;  that would require solid and clear public support, which does not yet exist at this time since public opinion is divided, for example, on the question of decriminalizing cannabis.  Despite everything, law enforcement in Canada is less strict than in our neighbours.  It is worth noting that the Lindesmith Centre, an independent anti-prohibitionist organization, expressed its intention in 1998 to conduct a study of the controlled distribution of heroin in three Canadian cities (Montreal, Toronto and Vancouver) because the climate was not conducive to such an experiment in the United States.  Since the project is still only at the expression of intention stage, there will be an opportunity in the coming months to observe reactions in Canada and the United States.  It can be wagered that we shall see a great deal of pressure – both public and private – exerted by the American government on the Canadian authorities to put an end to such a project.

Comments on the scope of the international Conventions

The three main Conventions implemented since 1961 have implemented and strengthened a prohibitionist system for narcotics and other psychotropic substances that violates the fundamental principles of international law, which as a rule, cannot impose obligations on a third part state without its consent.  Outside the signatory countries, in fact, the Conventions are also binding on non-signatory countries.  The UN justifies this exception by the universality required for the smooth operation of international controls.  For example, the Single Convention provides for the extension of certain mitigating provisions to countries that are not signatories by inviting them to co-operate in the joint effort and indeed “... several have committed themselves to this in the hope of improving their political and economic relations with the signatory countries, which include all the rich countries and the former colonial powers” (Bertrand, 1997:16).  There accordingly seems to be a particularism that is unique to the treaties on drugs and psychotropic substances that constitutes one of the few areas where domestic law is to some extent a hostage to the international agreements.  However, we witnessed a possible temporary blockage last year of the Multilateral Agreement on Investment (MAI) that it is possible in other areas for governments to some extent to object to international agreements that are contrary to their national interests.  This objection becomes effective when the domestic pressure is too great.  Why, then, would the situation be any different for international agreements on drugs?  Is it because an excessive number of police forces, criminal organizations, the members of some international bureaucracies, medical associations, pharmacists, drug companies, banks and other financial organizations, breweries, distilleries and the media have a great interest in ensuring that the current legislative framework is not changed.  Or, on the other hand, is it a result of the fact that domestic public opinion is always complacent – whether out of ignorance or out of a feeling of security – in believing that the repressive measures are effective?  Or are people simply unaware of the real cost of prohibition in both human and public health terms and on the social and economic level?  Have we found ourselves a new scapegoat?  These questions require complex answers that vary in line with our position in society and our social and personal values, which is also one of the basic premises of the constructivist approach.

On the other hand, the strong pressure exerted by France and the Americans on the Netherlands to make their drug policies more punitive suggests that no liberalization of existing policies is possible in terms of international law without the agreement of a large number of the “most powerful” signatory countries.  Otherwise, we should see the concentration of “concentrated trafficking areas” located primarily in the more liberal areas.  To judge from the conclusions of the UN General Assembly in June 1998 (see below), we shall not see such changes in the short term, at least as far as the law is concerned.  However, it can be seen that it is possible after all for the parties to make their criminal law practices more flexible in light of their domestic realities without having to amend the existing international conventions and for them to adopt an approach that focuses more on public health when this is considered appropriate.  It is also possible to see a movement of this kind in several western states  with a growing trend toward harm-reduction practices at the same time as a strengthening of repressive criminal policies aimed at completely eliminating supply and demand.

Latest developments with respect to prohibition on the international stage

From June 8 to 10, 1998 a special session of the General Assembly organized by the International Narcotics Control Board (INCB) was held under the sponsorship of the UN in New York for the specific purpose of presenting a new anti-drug strategy for the next ten years.  Although the meeting, which brought together the representatives of over a hundred countries, did not lead to any new agreement, a strategic plan to add even more muscle to some of the provisions already included in the existing agreements was adopted, to cover money-laundering, elimination and replacement of illegal crops in the producing countries, rooting out of demand for narcotic drugs and psychotropic substances, international judicial co-operation in order to limit international drug trafficking, etc.  It would seem therefore that the UN opted not only for continuity but also for strengthening the interventionist approach, despite and possibly because of the extremely disappointing results achieved to date as a result of prohibition.  However, the dual movement referred to earlier is still obvious here:  more than 500 personalities – including former American Secretary of State George Schultz and former UN Secretary General Xavier Perez de Cuellar – submitted a petition to the current UN requesting the implementation of alternatives to the war on drugs.  Taking advantage of the great visibility of this UN Secretary General, the mere fact that the challenge was issued received international media coverage at the same time and was highly touted in the electronic media.

The role of criminal law in the area of drug control

How do we explain the fact that some drugs are today subject to the criminal law rather than public health policies whereas other similar substances require prescriptions or can be purchased freely?  Although these questions are beyond the scope of this document, it seems to me that in order properly to understand this phenomenon, it would be imperative to study the development of relations among the various players in the medical world (medical, psychiatric, pharmaceutical associations and other related organizations) and those from the world of politics and the police because medicine and pharmacy exercise obvious controls over psychotropic substances and the use made of them.  For example, it is probably possible to explain the fact that a number of doctors in Britain were able to prescribe drugs for addicts under the  British System whose medical usefulness was nevertheless highly limited to the resistance of the British medical profession.  In fact, the triad of medical profession, government bureaucracies and police forces makes up an amalgam of power that varies from one country to another and that is the product of a varying assumption of responsibility focusing variously on medicalization, criminalization or on something between these two extremes, depending on the interplay of national authority, local interests and international influences.  I propose to examine this medical power in another paper  to be submitted as part of the comprehensive examinations.

Limits of this document

Despite the fact that we already know that American policies have had certain effects on this side of the border, a more detailed study of the development of prohibition in the United States in the last century would certainly have enabled me to determine more accurately the influence of prohibition on legislative developments in Canada.  However, I decided to concentrate on the Canadian situation, which is the subject of my doctorate.

Finally, following the completion of this paper, I believe that the application of the theory of Spector and Kitsuse on the structure of social problems and an assessment of its relevance and applicability would require a thorough examination of primary sources, and this has in fact been done successfully by Giffen et al., 1991.