OUR POSITION FOR A CANADIAN PUBLIC POLICY
REPORT OF THE SENATE SPECIAL COMMITTEE ON ILLEGAL DRUGS
VOLUME I : PARTS I and II
Chairman: Pierre Claude Nolin
Deputy Chairman: Colin Kenny
Extract from the Journals of the
Senate of March 15, 2001:
Resuming debate on the motion of the
Honourable Senator Nolin, seconded by the Honourable Senator Molgat:
That aspecial committee of
the Senate be struck to examine:
- The approach taken by Canada to
cannabis, its preparations, derivatives and similar synthetic preparations, in
- The effectiveness of this
approach, the means used to implement it and the monitoring of its application;
- The related official policies
adopted by other countries;
- Canada's international role and
obligations under United Nations agreements and conventions on narcotics, in
connection with cannabis, the Universal Declaration of Human Rights and other
related treaties; and
- The social and health impacts of
cannabis and the possible consequences of different policies;
That the special committee consist
of five senators, three of whom shall constitute a quorum;
That the Honourable Senators Banks,
Kenny, Nolin, Rossiter and (a fifth Senator to be named by the Chief Government
Whip) be named to the committee.
That the committee be authorized to
send for persons, papers and records, to hear witnesses, to report from time to
time, and to print from day to day such papers and evidence as may be ordered by
That the briefs and evidence heard
during consideration of Bill C-8, An Act respecting the control of certain
drugs, their precursors and other substances and to amend certain other Acts and
repeal the Narcotic Control Act in consequence thereof, by the Standing
Senate Committee on Legal and Constitutional Affairs during the Second Session
of the Thirty-fifth Parliament be referred to the committee;
That the documents and evidence
compiled on this matter and the work accomplished by the Special Senate
Committee on Illegal Drugs during the Second Session of the Thirty-sixth
Parliament be referred to the committee;
That the committee be empowered to
authorize, if deemed appropriate, the broadcasting on radio and/or television
and the coverage via electronic media of all or a part of its proceedings and
the information it holds;
That the committee present its final
report no later than August 31, 2002; and that the committee retain the powers
necessary to publicize its findings for distribution of the study contained in
its final report for 30 days after the tabling of that report;
That the committee be authorized,
notwithstanding customary practice, to table its report to the Clerk of the
Senate if the Senate is not sitting, and that a report so tabled be deemed to
have been tabled in the Senate.
The question then being put on the
main motion as amended, it was adopted.
Extract from the Journals of the
Senate of May 9, 2002:
The Honourable Senator Nolin moved,
seconded by the Honourable Senator Stratton,
That the date of presentation by the
Special Senate Committee on Illegal Drugs of the final report on its study into
reassessing Canada's anti-drug legislation and policies, which was authorized by
the Senate on March 15, 2001, be extended from August 31, 2002 to September 13,
The question being put on the
motion, it was adopted.
of the Senate
am very proud of the report on cannabis being made public today by the Senate
Special Committee on Illegal Drugs. It
marks a stage in Canada's public policy on drugs, and I have no doubt that it
will find an attentive readership, despite its impressive size.
report is the product of a team effort over a period of two years.
At the risk of leaving anyone out, and I hope I will be pardoned should I
do so, I would like to express my gratitude to those most closely involved with
would first thank all Canadians, who, from near and far, shared in our efforts,
by writing us, by attending our hearings and our open forums in the regions, by
watching us on television and, quite simply, by taking the time to learn about
this important social policy issue. Their
contributions, their questions and their comments were a source of inspiration.
We will not forget the welcome given us by the Chiefs of the Piapot tribe
in Saskatchewan. The ceremony they
held for us was truly healing.
Committee could not have done its work without the immense contribution of its
research team. This small group was
under the able direction of sociologist Dr Daniel Sansfaçon, whose rigour and
devotion enabled the Committee to meet the highest standards of quality in its
work and in the drafting of its report. Mr
Gérald Lafrenière and Ms Chantal Collin, researchers with the Parliamentary
Research Branch of the Library of Parliament working with him, provided
invaluable support. I would take
the opportunity to thank the Parliamentary Research Branch and its Director
General specifically for their diligence and professionalism in responding to
our imposing program of work. Finally,
I wish to mention the contributions by Ms Barbara Buston Wheelok, assistant to
Senator Rossiter, to Mr François Dubois, my research assistant, and to Messrs
Jean-Guy Desgagné and David Newman in Communications.
Committee benefited in its work from the expertise and the generosity of the
many experts who testified before it or whom it met privately, and whose names
are appended. I would thank them
one and all.
were also able to draw on the competence of the committee clerks and on the
efficiency of their administrative personnel in organizing our many working and
public meetings. My thanks to Blair Armitage, Daniel Charbonneau and Adam
report, with its great concern for transparency and rigour, exemplifies the
highest standards maintained by the Senate.
I would thank my colleagues in the Senate, who entrusted us with this
mandate. In concluding, I would
like to express my gratitude to my colleagues who took part in our work and
especially to each of the members of the Senate Special Committee on Illegal
Drugs: its Deputy Chair, Senator Colin Kenny, and Senators Tommy Banks, Shirley
Maheu and Eileen Rossiter. They did a remarkable job.
colleagues, I believe Canadians may rightly be proud of our parliamentary
Pierre Claude Nolin
Chair, Senate Special Committee on Illegal Drugs
OF THE SENATE SPECIAL COMMITTEE ON ILLEGAL DRUGS
MEMBERS OF THE SENATE SPECIAL COMMITTEE ON ILLEGAL DRUGS
Pierre Claude Nolin
John Lynch-Staunton *
Sharon Carstairs, P.C.* **
Noël A. Kinsella *
Fernand Robichaud, P.C. *
2. OTHER SENATORS WHO
PARTICIPATED IN THE PROCEEDINGS OF THE COMMITTEE
Pat Carney, P.C.
Edward M. Lawson
Ethel M. Cochrane
Pierre De Bané, P.C., Q.C.
Lucie Pépin ***
Consiglio Di Nino
Joyce Fairbairn, P.C.
Marcel Prud’homme, P.C.
Sheila Finestone, P.C.
Gerry St. Germain, P.C.
J. Michael Forrestall
Peter A. Stollery
Jerahmiel S. Grafstein, Q.C.
Mobina S.B. Jaffer
Lois M. Wilson
* Ex Officio Members
** The Honourable Sharon Carstairs was a member of the Committee from April 2000
to October 2000
*** The Honourable Lucie Pépin was a member of the Committee from April 2000 to
- Our Work Two Working Principles
The Challenge of Synthesis
Taking Opinions into Account
Interpreting in Light of Principles
3 - Our guiding principles Ethics, or the principle of reciprocal autonomy
Governance: maximizing the actions of individuals
Governance of the self
The role of governance
Criminal law and the limits of
Requirement for distinctions
Criteria for distinction
Application to illegal drugs issues
Science or approximate knowledge
- A Changing Context Changes in the International Sphere
Globalization and Integration
Difficulties of the Security Debate
From Anti-Drug Policies to Drug Policies
Changes in Canada
A National Crime Prevention Strategy
The Fight Against Organized Crime
A Societal Debate
CHAPTER 6 - USERS AND USES: FORM, PRACTICE, CONTEXT
PATTERNS OF USE
Consumption by the population as a whole
Consumption among young people
Use patterns in other countries
PATTERNS AND CIRCUMSTANCES OF USE
Cannabis in History
Trajectories of Use
Factors Related to Use
STEPPING STONE TOWARDS OTHER DRUGS?
CANNABIS, VIOLENCE AND CRIME
CHAPTER 7 - CANNABIS: EFFECTS AND CONSEQUENCES EFFECTS AND CONSEQUENCES OF CANNABIS: WHAT WE WERE TOLD
ACUTE EFFECTS OF CANNABIS
CONSEQUENCES OF CHRONIC USE
Physiological Consequences of Chronic Use
Cognitive and Psychological Consequences
Behavioural and Social Consequences
TOLERANCE AND DEPENDENCE
Severity of Dependence
CHAPTER 8 - DRIVING UNDER THE INFLUENCE OF CANNABIS FORMS OF TESTING
Studies not involving accidents
Studies where an accident was involved
Epidemiological studies on youth
CHAPTER 11 - A NATIONAL DRUG STRATEGY?
PHASE I - DEVELOPMENT AND IMPLEMENTATION
Creation of the Canadian Centre on Substance Abuse
Creation of Canada's Drug Strategy Secretariat
PHASE II - RENEWAL
PHASE III - RENEWAL WITHOUT SPECIFIED FUNDING
CANADA'S DRUG STRATEGY - A SUCCESS?
CHAPTER 12 - THE NATIONAL LEGISLATIVE CONTEXT
Opium Act, 1908
The Opium and Narcotic Drug Act, 1911
Amendments to the Opium and Narcotic Drug Act (1920-1938)
Amendments to the Act to Amend the Opium and Narcotic Drug Act in 1954
Senate Report of 1955
FROM 1960 TO THE LE DAIN COMMISSION: THE SEARCH FOR REASONS
Narcotic Control Act (1961)
An Act respecting Food and Drugs and Barbiturates (1961)
The Le Dain Commission (1969-1973)
Bill S?19 and Cannabis
AFTER LE DAIN: FORGING AHEAD REGARDLESS
Controlled Drugs and Substances Act
CHAPTER 13 - REGULATING THERAPEUTIC USE OF CANNABIS
BACKGROUND TO THE RECENT REGULATIONS
Section 56 - Controlled Drugs and Substances Act
Charter Challenges - Therapeutic Use of Marijuana
MARIHUANA MEDICAL ACCESS REGULATIONS
Authorization to Possess
Licence to Produce
Access to cannabis
CHAPTER 14 - POLICE PRACTICES ENFORCEMENT AGENCIES
CHARGES UNDER THE CONTROLLED DRUGS AND SUBSTANCES ACT IN 1999
TheCanada Customs and Revenue Agency
Provincial and Municipal Police
Searches and Seizures
Entrapment and Illegal Activity
Customs Act - Fines
CHAPTER 16 - PREVENTION
INITIATIVES THAT FALL SHORT OF THE MARK
Not enough prevention
Prevention lacks focus
There is not enough evaluation of preventive measures
Preventive and social messages in contradiction
There is a body of knowledge on which we have to draw
PREVENTING WHAT AND HOW?
RISK REDUCTION AND HARM REDUCTION
CHAPTER 19 - THE INTERNATIONAL LEGAL ENVIRONMENT
The 1909 Shanghai Conference
The 1912 Hague International Opium Convention
The 1925 Geneva Opium Conventions
The 1931 Geneva Narcotics Manufacturing and Distribution Limitation Convention / 1931 Bangkok Opium Smoking Agreement
The 1936 Geneva Convention for the Suppression of the Illicit Traffic in Dangerous Drugs
The Second World War
The 1946 Lake Success Protocol
The 1948 Paris Protocol
The 1953 New York Opium Protocol
THE THREE CURRENT CONVENTIONS
The Single Convention on Narcotic Drugs, 1961
Convention on Psychotropic Substances
Protocol amending the Single Convention on Narcotic Drugs, 1961
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
CHAPTER 20 - PUBLIC POLICIES IN OTHER COUNTRIES
Different Forms of Logic
An Integrated Public Policy
Statistics on Use and Offences
Essential Experts Reports
The Coffee Shop System
Data on Use
Ten-Year Strategy to Battle Drugs
Other Relevant Legislation in the Field of Drug Misuse
Debate in the UK
Recent Key Reports and Studies
Debate in Sweden
A Harm Reduction Policy
The Legal Framework
A Bill to Decriminalize Cannabis
Administration of Swiss Drug Policy
Statistics on Narcotics Use and Offences under the Narcotics Act
National Drug Strategy
Decriminilization in Australia
The Federal-State Legislative Framework
Current Legislation and Enforcement
Federal Drug Policy Goals and Objectives
Administration of the Policy
Current Issues and Debates
CHAPTER 21 - PUBLIC POLICY OPTIONS INEFFECTIVENESS OF CRIMINAL POLICIES
Impact on Consumption
Impact on Supply
GENERAL ECONOMY OF A PUBLIC POLICY ON CANNABIS
COMPONENTS OF A PUBLIC POLICY
Strong Decision-making Body
A Shared Definition of Shared Objectives
Clarification of criminology
Criteria for a Legal Policy on Cannabis
LE DAIN - ALREADY THIRTY YEARS AGO
INEFFECTIVENESS OF THE CURRENT APPROACH
PUBLIC POLICY BASED ON GUIDING PRINCIPLES
A CLEAR AND COHERENT FEDERAL STRATEGY
NATIONAL STRATEGY SUSTAINED BY ADEQUATE RESOURCES AND TOOLS
A PUBLIC HEALTH POLICY
A REGULATORY APPROACH TO CANNABIS
A COMPASSION-BASED APPROACH FOR THERAPEUTIC USE
PROVISIONS FOR OPERATING A VEHICLE UNDER THE INFLUENCE OF CANNABIS
CANADA'S INTERNATIONAL POSITION
Vague term with a variety of meanings depending on the social, medical
and legal contexts. Some equate any use of illicit drugs to abuse: for example,
the international conventions consider that any use of drugs other than for
medical or scientific purposes is abuse. The Diagnosis and Statistical Manual of
the American Psychiatric Association defines abuse as a maladaptive pattern of
substance use leading to clinically significant impairment or distress as
defined by one or more of four criteria (see chapter 7). In the report, we
prefer the term excessive use (or harmful use).
Refers to effects resulting from the administration of any drug and
specifically to its short term effects. These effects are distinguished between
central (cerebral functions) and peripheral (nervous system). Effects are
General term referring to the concepts of tolerance and dependency.
According to WHO addiction is the repeated use of a psychoactive substance to
the extent that the user is periodically or chronically intoxicated, shows a
compulsion to take the preferred substance, has great difficulty in voluntarily
ceasing or modifying substance use, and exhibits determination to obtain the
substance by almost any means. Some authors prefer the term addiction to
dependence, because the former also refers to the evolutive process preceding
A substance that acts on receptor sites to
produce certain responses.
Agonist neurotransmitter of the endogenous cannabinoid system. Although
not yet fully understood in research, these neurotransmitters seem to act as
modulators, THC increasing the liberation of dopamine in nucleus
accumbens and cerebral
Use behaviour which makes users at-risk of
developing dependence to the substance.
receptors of the active cannabis molecules, particularly 9-THC. Two endogenous
receptors have been identified: CB1 densely concentrated in the hippacampus,
basal ganglia, cerebellum and cerebral cortex, and CB2
particularly abundant in the immune system. The central effects of cannabis
appear to be related only to CB1.
Three varieties of the cannabis plant exist: cannabis sativa, cannabis
indica, and cannabis ruredalis. Cannabis
sativa is the most commonly found, growing in almost any soil condition. The
cannabis plant has been known in China for about 6000 years. The flowering tops
and leaves are used to produce the smoked cannabis. Common terms used to refer
to cannabis are pot, marihuana, dope, ganja, hemp. Hashish is produced from the
extracted resin. Classified as a psychotropic drugs,
cannabis is a modulator of the central nervous system. It contains over 460
known chemicals, of which 60 are cannabinoids. Delta-9-tétrahydrocannabinol,
referred to as THC, is the principal active ingredient of cannabis. Other
components such delta-8-tétrahydrocannabinol, cannabinol and cannabidiol are
present in smaller quantities and have no significant impacts on behaviour or
perception. However, they may modulate the overall effects of the substance.
Refers to effects which are delayed or develop after repeated use. In the
report we prefer to use the term consequences of repeated use rather than
on narcotic drugs (CND)
The Commission on Narcotic Drugs (CND) was established in 1946 by the
Economic and Social Council of the United Nations. It is the central
policy-making body within the UN system for dealing with all drug-related
matters. The Commission analyses the world drug abuse situation and develops
proposals to strengthen international drug control.
Removal of a behaviour or activity from the scope of the criminal justice
system. A distinction is usually made between de jure decriminalization, which entails an amendment to criminal
legislation, and de facto
decriminalization, which involves an administrative decision not to
prosecute acts that nonetheless remain against the law. Decriminalization
concerns only criminal legislation, and does not mean that the legal system has
no further jurisdiction of any kind in this regard: other, non-criminal, laws
may regulate the behaviour or activity that has been decriminalized (civil or
regulatory offences, etc.).
The use of measures other than prosecution or a criminal conviction for
an act that nonetheless remains against the law. Diversion can take place before
a charge is formally laid, for example if the accused person agrees to undergo
treatment. It can also occur at the time of sentencing, when community service
or treatment may be imposed rather than incarceration.
Modification of the sentences provided in criminal legislation for a
particular behaviour In the case of cannabis, it generally refers to the removal
of custodial sentences.
State where the user continues its use of the substance despite
significant health, psychological, relational, familial or social problems.
Dependence is a complex phenomenon which may have genetic components.
Psychological dependence refers to the psychological symptoms associated with
craving and physical dependence to tolerance and the adaptation of the organism
to chronic use. The American Psychiatric Association has proposed seven criteria
(see chapter 7).
Neuromediator involved in the mechanisms of pleasure.
Generally used to refer to illicit rather than licit substances such
as nicotine, alcohol or medicines.
In pharmacology, the term refers to any chemical agent that alters the
biochemical or physiological processes of tissues or organisms. In this sense,
the term drug refers better to any substance which is principally used for its
European Monitoring Centre on
Drugs and Drug Addiction(EMCDDA)
The European Monitoring Centre was created in 1993 to provide member
states objective, reliable and comparable information within the EU on drugs,
drug addictions and their consequences. Statistical information, documents and
techniques developed in the EMCDDA are designed to give a broad perspective on
drug issues in Europe. The Centre only deals with information. It relies on
national focal points in each of the Member States.
Characteristic of a substance to irrigate quickly the tissues. THC is
Theory suggesting a sequential pattern in involvement in drug use from
nicotine to alcohol, to cannabis and then “hard” drugs. The theory rests on
a statistical association between the use of hard drugs and the fact that these
users have generally used cannabis as their first illicit drug. This theory has
not been validated by empirical research and is considered outdated.
needed for the concentration of a particular drug in blood to decline to half
its maximum level. The half-life of THC is 4.3 days on average but is faster in
regular than in occasional users. Because it is highly fat soluble, THC is
stored in fatty tissues, thus increasing its half life to as much as 7 to 12
days. Prolonged use of cannabis increases the period of time needed to eliminate
is from the system. Even one week after use, THC metabolites may remain in the
system. They are gradually metabolised in the urine (one third) and in feces
(two thirds). Traces on inactive THC metabolites can be detected as many as 30
days after use.
Resinous extract from the flowering tops of the
cannabis plant and transformed into a paste.
Various international conventions have been adopted by the international
community since 1912, first under the Society of Nations and then under the
United Nations, to regulate the possession, use, production, distribution, sale,
etc., of various psychotropic substances. Currently, the three main conventions
are the 1961 Single Convention, the 1971 Convention on Psychotropic Substance
and the 1988 Convention against Illicit Traffic. Canada is a signatory to all
three conventions. Subject to countries’ national constitutions, these
conventions establish a system of regulation where only medical and scientific
uses are permitted. This system is based on the prohibition of source plants
(coca, opium and cannabis) and the regulation of synthetic chemicals produced by
Narcotics Control Board (INCB)
The Board is an independent, quasi-judicial organisation responsible for
monitoring the implementation of the UN conventions on drugs. It was created in
1968 as a follow up to the 1961 Single Convention, but had predecessors as early
as the 1930s. The Board makes recommendations to the UN Commission on Narcotics
with respect to additions or deletions in the appendices of the conventions.
Disturbance of the physiological and psychological systems resulting from
a substance. Pharmacology generally distinguishes four levels: light, moderate,
serious and fatal.
Cigarette of marijuana or hashish with or without tobacco. Because joints
are never identical, scientific analyses of the effects of THC are more
difficult, especially in trying to determine the therapeutic benefits of
cannabis and to examine its effects on driving.
Regulatory system allowing the culture, production, marketing, sale and
use of substances. Although none currently exist in relation to « street-drugs »
(as opposed to alcohol or tobacco which are regulated products), a legalisation
system could take two forms: without any state control (free markets) and with
state controls (regulatory regime).
Mexican term originally referring to a cigarette of poor quality. Has now
become equivalent for cannabis.
Substance which can induce stupor or artificial sleep. Usually restricted
to designate opiates. Sometimes used incorrectly to refer to all drugs capable
of inducing dependence.
Office of national drug
control policy (ONDCP) USA
Created in 1984 under the Reagan presidency, the Office is under the
direct authority of the White House. It coordinates US policy on drugs. Its
budget is currently US $18 billion.
Substance derived from the opium poppy. The term opiate excludes
synthetic opioids such as heroin and methadone.
Historically, the term designates the period of national interdiction of
alcohol sales in the United States between 1919 and 1933. By analogy, the term
is now used to describe UN and State policies aiming for a drug-free society.
Prohibition is based on the interdiction to cultivate, produce, fabricate, sell,
possess, use, etc., some substances except for medical and scientific purposes.
Substance which alters mental processes such as thinking or emotions.
More neutral than the term “drug” because it does not refer to the legal
status of the substance, it is the term we prefer to use.
Psychotropic substance (see
Much the same as psychoactive substance. More specifically however, the
term refers to drugs primarily used in the treatment of mental disorders, such
as anxiolytic, sedatives, neuroleptics, etc. More specifically, refers to the
substances covered in the 1971 Convention on Psychotropic Substances.
Control system specifying the conditions under which the cultivation,
production, marketing, prescription, sales, possession or use of a substance are
allowed. Regulatory approaches may rest on interdiction (as for illegal drugs)
or controlled access (as for medical drugs or alcohol). Our proposal of an
exemption regime under the current legislation is a regulatory regime.
of Nations (SDN)
International organisation of States until 1938;
now the United Nations.
Main active component of cannabis, D9-THC is very fat-soluble and has a lengthy half-life. Its psychoactive
effects are modulated by other active components in cannabis. In its natural
state, cannabis contains between 0.5% to 5% THC. Sophisticated cultivation
methods and plant selection, especially female plants, leads to higher levels of
Reduced response of the organisms and increased capacity to support its
effects after a more or less lengthy period of use. Tolerance levels are
extremely variable between substances, and tolerance to cannabis is believed to
be lower than for most other drugs, including tobacco and alcohol.
Characteristic of a substance which induces intoxication, i.e.,
“poisoning”. Many substances, including some common foods, have some level
of toxicity. Cannabis presents almost no toxicity and cannot lead to an
Nations Drug Control Program (UNDCP)
Established in 1991, the Programme works to educate the world about the
dangers of drug abuse. The Programme aims to strengthen international action
against drug production, trafficking and drug-related crime through alternative
development projects, crop monitoring and anti-money laundering programmes.
UNDCP also provides accurate statistics through the Global Assessment Programme
(GAP) and helps to draft legislation and train judicial officials as part of its
Legal Assistance Programme. UNDCP is part of the UN Office for Drug Control and
the Prevention of Crime.
World Health Organization
The World Health Organization, the United Nations specialized agency for
health, was established on 7 April 1948. WHO’s objective, as set out in its
Constitution, is the attainment by all peoples of the highest possible level of
health. Health is defined in WHO’s Constitution as a state of complete
physical, mental and social well-being and not merely the absence of disease or
question of illegal drugs is one of the societal issues that can readily become
a moral and indeed emotional matter. Who among us does not have an opinion on
drugs and "drug addicts"? Who does not have a parent, friend, young
cousin or uncle who has had personal problems at school or at work, perhaps even
run-ins with the police and the criminal justice system, as a result of
using drugs? Who has not heard of drug traffickers, veritable anti-heroes,
whom we find both repulsive and fascinating, all of whom we consider the worst
kind of scum, who grow rich by selling adulterated and dangerous products to our
children? Every day brings its share of newspaper articles and television news
reports on anti-drug operations conducted by police forces: sometimes massive,
and almost always spectacular arrests, huge seizures of drugs, cash and weapons
of all kinds. Every day we also see articles on money laundering and the
corruption of honest men through the illegal drug market. Even closer to home,
the events of September 11 shed new light on the ambiguous and alleged
relations between the drug trafficking world and the financing of
"terrorist" networks. Security
is now the key buzz word.
The drug issue involves
the political values of life in society. In what kind of society do we want to
live? What place should, and can, drugs occupy in it? For some, drugs are
substances that keep individuals in a state of dependence. Using them weakens
their moral fibre, makes them more malleable, more subject in particular to
(bad) outside influences, and reduces their ability to be productive individuals
in society. If they don't bring about human downfall, drugs do prevent the full
achievement and realization of human potential. For others, drugs are tools to
achieving greater productivity, being more competitive and thus better
positioned in a hyper-competitive world. The obvious example of this is doping
among elite athletes. For still others, drugs are a preferred means of entering
into contact with other aspects of their being, spiritual, artistic aspects, or
simply peace and serenity. The history of art is full of examples. These almost
diametrically opposed conceptions often leave little room for dialogue and
result in considerable prejudice on all sides.
In the past 20 years, we
have introduced stringent anti-tobacco programs. And we have definitely achieved
a measure of success. We have also adopted stricter measures to put a stop to
impaired driving. Here too, we believe we have made significant inroads. The
fight against drugs is a kind of metaphor for the type of social policies we
expect of governments: policies based on the improved well-being of citizens.
Of course, everything
depends on what each person means by the word "drugs". The term is
clearly not neutral: it elicits varying degrees of fear and anxiety. And we do
not necessarily all include the same substances under that heading. The examples
cited above concern illegal drugs, alcohol, tobacco and performance-enhancing
substances. A number of psychotropic drugs could also be included. And yet, when
we think of drugs, the first things that come to mind are illegal substances:
cocaine and heroin, of course, crack and amphetamines for the more sophisticated
among us, and, obviously, cannabis and hashish. However, an increasing number of
scientific studies and government policies strive to show the interrelationships
between different drugs, discussing at-risk behaviours in relation to each drug.
As will be seen below, the mere fact of considering alcohol as one drug among
others signifies a genuine cultural revolution in a country such as France, a
major producer and consumer of wine. And tobacco companies would certainly
object to comparing nicotine to heroine.
The members of the Senate
Special Committee on Illegal Drugs addressed the question of drugs as
everyone else does, that is to say with the same preconceptions, with the same
basic attitudes, the same fears and the same anxieties. Of course, we had at our
disposal the study which a number of our colleagues had conducted in 1996 on
government legislation dealing with illegal drugs, which had enabled them to
hear a number of witnesses over several months. We also knew at the outset that
research expertise would be available to us, but let there be no mistake, it is
nevertheless difficult to go beyond attitudes and opinions that have long been
taken for granted. Whether one is in favour of enhanced enforcement or, on the
contrary, greater liberalization, opinions tend to resist the facts,
particularly since, in a field such as this, the production of facts, even
through scientific research, is not necessarily a neutral enterprise. It follows
then that we too, like you, have our prejudices and preconceptions. And together
we must make the effort to go beyond them. That is one of the objectives of this
Our report is divided into
four parts. Part I outlines our general orientations and comprises four
chapters. Chapter 1 describes the Committee's origins and mandate, while
Chapter 2 outlines the work we have undertaken, explaining certain choices
we have made. Chapter 3 is central to the entire architecture of the report
and, as it were, provides a "reading grid". In it, we state what we
have called the guiding principles for a public policy on illegal drugs. Lastly,
Chapter 4 offers a broad overview of the present situation with regard to
illegal drugs, placing our efforts in the context of the changes that are
occurring in various countries and on the international scene more generally.
Part II is the heart
of our report. It provides a comprehensive outline of scientific research
findings and the opinions of the experts we heard. Chapter 5 describes the
plant from which smokable cannabis and hashish are derived and the
pharmacological properties of the cannabinoids, which are their active
ingredient. It also provides some figures on sources of production of cannabis
and its main trafficking routes. Chapter 6 contains information on uses and
users: who uses cannabis, in what circumstances, what do we know about their
user trajectories and, in particular, the highly controversial question as to
whether cannabis use leads to the use of other drugs. Chapter 7 describes
the physiological and psychological effects and consequences of cannabis,
focusing as well on the important issues of cannabis dependence and tolerance.
Chapter 8 deals specifically with the important issue of driving under the
influence of cannabis. Given the current debates on the issue of therapeutic
uses of cannabis, Chapter 9 reviews existing findings. Chapter 10, the
last chapter in the section, addresses public opinion, outlining public opinion
polls and surveys, reporting also what we were told in the consultations we held
in the regions following the publication of our discussion paper in May 2002.
Part III concerns
public policy and practices in Canada. When we think of drugs, we immediately
think of the legislation governing them. In so doing, we forget that the law is
never more than one of a number of elements involved in a public policy. Chapter 11
focuses on the National Drug Strategy, which was in effect in Canada between
1987 and 1997. It must be considered since only in this period in the history of
our public drug policies was an attempt made to adopt a comprehensive and
integrated strategy. Chapter 12 then describes the history of Canadian drug
legislation. Chapter 13 examines the current regulatory regime for
therapeutic uses of cannabis. The following four chapters deal with the various
components of the implementation of the public policies on illegal drugs.
Chapters 14 and 15 discuss respectively police practices and legal practices
central to the implementation of those statutory provisions, while Chapters 16
and 17 briefly examine prevention practices and health care practices. Finally,
in Chapter 18, we conclude this third part of our report with a series of three
observations on these practices, examining in particular the economic costs and
unexpected consequences of current public policies.
Part IV addresses public
policy options. When it comes to drugs, we cannot avoid the architecture of the
international conventions that have governed these substances since 1912. This
is the subject of Chapter 19. However, beyond this global framework,
countries have chosen different approaches to respond to drug related issues and
problems. Chapter 20 describes in detail the public policy frameworks in
seven industrialized countries. Finally, chapter 21 is key to understanding
our recommendations and their links with our guiding principles. This chapter
shows that the criminal law is but one of the tools of public policy in this
field. It then distinguishes between the various legal options and clarifies
heavily loaded terms such as decriminalisation and legalisation. Finally, based
on the accumulated knowledge, our reading of public opinion and our principles,
this chapter explains our framework for a comprehensive public policy on
Based on all this
knowledge gathered, we state a certain number of conclusions and offer our
recommendations, which express the fundamental premise underlying our report: in a free and democratic society, which recognizes fundamentally but not
exclusively the rule of law as the source of normative rules and in which
government must promote autonomy insofar as possible and therefore make only
sparing use of the instruments of constraint, public policy on psychoactive
substances must be structured around guiding principles respecting the life,
health, security and rights and freedoms of individuals, who, naturally and
legitimately, seek their own well-being and development and can recognize the
presence, difference and equivalence of others.
are aware, as much now as we were at the start of our work, that there is no
pre-established consensus in Canadian society on public policy choices in
the area of drugs. In fact, as we have seen, there are few societies where there
is a broadly shared consensus among the general public and between the public
and experts. We are also aware, perhaps more so than at the outset, that the
question of illegal drugs, viewed from the standpoint of the public policies
that govern them, is part of a broader international context and that we cannot
think or act in isolation. We are aware that our proposals are provocative, that
they may meet with some resistance. However, we are convinced that Canadian
society has the maturity and openness to welcome this informed debate.
In this, as in so many
other areas of public policy, we say that action must be taken and that the
knowledge accumulated fully supports the orientations we propose, but that first
and foremost the sharing of knowledge and public debate are both necessary and
desirable in the democratic life in our society.
April 16, 2000, pursuant to a motion by Senator Pierre Claude Nolin,
the Senate adopted the following order of reference:
That a Special Committee of the Senate be appointed to reassess Canada's
anti-drug legislation and policies, to carry out a broad consultation of the
Canadian public to determine the specific needs of various regions of the
country, where social problems associated with the trafficking and use of
illegal drugs are more in evidence, to develop proposals to disseminate
information about Canada's anti-drug policy and, finally, to make
recommendations for an anti-drug strategy developed by and for Canadians under
which all levels of government work closely together to reduce the harm
associated with the use of illegal drugs;
That, without being limited in its mandate by the following, the
committee be authorized to:
federal government's policy on illegal drugs in Canada, its effectiveness, and
the extent to which it is fairly enforced;
national harm reduction policy in order to lessen the negative impact of illegal
drugs in Canada, and make recommendations regarding the enforcement of this
policy, specifically the possibility of
focusing on use and abuse of drugs as a social and health problem;
reduction models adopted by other countries and determine if there is a need to
implement them wholly or partially in Canada;
Canada's international role and obligations under United Nations conventions on
narcotics and the Universal Declaration of Human Rights and other related
treaties in order to determine whether these treaties authorize it to take
action other than laying criminal charges and imposing sentences at the
effects of cannabis on health and examine whether alternative policy on cannabis
would lead to increased harm in the short and long term;
possibility of the government using its regulatory power under the
Contraventions Act as an additional means of implementing a harm reduction
policy, as is done in other jurisdictions;
other issue respecting Canada's anti-drug policy that the committee considers
appropriate to the completion of its mandate.
adoption of the motion, the Committee chairman asked the Senate to name the
members who would form the Committee. The following senators were thus
appointed: Pierre Claude Nolin, Chair, Sharon Carstairs, Deputy
Chair, Colin Kenny, Lucie Pépin and Eileen Rossiter.
Committee thus constituted approved a work program and a budget, which it then
submitted to its peers in the upper Chamber. The Committee's budget was approved
in June 2000, thus making it possible to hire the scientific and administrative
personnel who would support its work. The Committee organized its program of
hearings of expert witnesses and held its first hearings on October 16,
the Committee was dissolved when the general election was called in October
2000, and restruck on March 15, 2001, but with an amended mandate: the
scope of its work was now restricted to cannabis. The Committee's mandate in its
present form therefore reads as follows:
a special committee of the Senate be struck to examine:
taken by Canada to cannabis, its preparations, derivatives and similar synthetic
preparations, in context;
effectiveness of this approach, the means used to implement it and the
monitoring of its application;
official policies adopted by other countries;
international role and obligations under United Nations agreements and
conventions on narcotics, in connection with cannabis, the Universal Declaration
of Human Rights and other related treaties; and
The social and
health impacts of cannabis and the possible consequences of different policies;
the special committee consist of five senators, three of whom shall constitute a
the Honourable Senators Banks, Kenny, Nolin, Rossiter and (a fifth Senator to be
named by the Chief Government Whip) be named to the committee;
the committee be authorized to send for persons, papers and records, to hear
witnesses, to report from time to time, and to print from day to day such papers
and evidence as may be ordered by it;
the briefs and evidence heard during consideration of Bill C‑8, An
Act respecting the control of certain drugs, their precursors and other
substances and to amend certain other Acts and repeal the Narcotic Control Act
in consequence thereof, by the Standing Senate Committee on Legal and
Constitutional Affairs during the 2nd Session of the 35th Parliament
be referred to the committee;
documents and evidence compiled on this matter and the work accomplished by the
Special Senate Committee on Illegal Drugs during the 2nd Session of the
36th Parliament be referred to the committee;
the committee be empowered to authorize, if deemed appropriate, the broadcasting
on radio and/or television and the coverage via electronic media of all or part
of its proceedings and the information it holds;
the committee present its final report no later than August 31, 2002; and
that the committee retain the powers necessary to publicize its findings for
distribution of the study contained in its final report for 30 days after
the tabling of that report;
the committee be authorized, notwithstanding customary practice, to table its
report to the Clerk of the Senate if the Senate is not sitting, and that a
report so tabled be deemed to have been tabled in the Senate.
Committee's mandate is a continuation of the history of drug legislation passed
by the Parliament of Canada in 1996, the Controlled
Drugs and Substances Act. That legislation, which revised drug statutes in
Canada by repealing the Narcotic Control
Act and certain sections of the Food
and Drugs Act, grew out of a relatively lengthy history of which we will
provide only a brief overview here, since Chapter 12 is devoted to a
detailed history of drug laws in Canada.
which was tabled by the newly elected government in February 1994, proposed a
revision of illegal drug legislation, in particular to make it more coherent and
to render national legislation consistent with Canada's obligations under the United
Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances signed in 1988. Following prorogation, it was reintroduced in the
House of Commons at the start of the 2nd Session, on March 6, 1996, as
Bill C‑8. It was adopted by the House on the same day and was
referred to the Standing Senate Committee on Legal and Constitutional Affairs
which conducted a detailed study of it and heard a number of witnesses.
its report, the Senate Committee on Legal and Constitutional Affairs proposed 15 amendments
as well as the striking of a joint parliamentary committee of the House of
Commons and the Senate, which would review Canada's drug policy. Bill C‑8
was passed and received Royal Assent on June 20, 1996, and is thus
Canada’s current illegal drug legislation.
this legislation was being studied by the Sub-Committee on Bill C-7 of the
Standing Committee on Health of the House of Commons in 1994 and 1995, "the
vast majority of witnesses (…) were highly critical of the bill. The most
general criticisms concerned three points: first, the lack of basic principles
or an express statement as to the purpose of the act; second, the fact that the
bill followed the prohibition system of the 1920s, subsequently codified in the
Narcotic Control Act, and third, the absence of any emphasis on damage reduction
and prevention criteria which form the basis of Canada's Drug Strategy."
Despite the amendments made by the Sub‑Committee of the House, the
testimony of the persons heard by the Senate Committee was equally critical.
Witnesses noted that the Act did not categorize drugs on the basis of the
dangers they represented, that it did not contain any specific, rational
criteria and that it was impossible, particularly in view of the Act's
complexity, to determine how it would be implemented in practice.
these criticisms led the Senate Committee to "propose energetically" the creation of a Joint Committee of the
House of Commons and the Senate that would review all Canadian drug legislation,
policies and programs.
the 1997 federal election rendered this suggestion moot. Senator Nolin,
convinced of the need for action and faced with the inaction of the House of
Commons, thus tabled his first motion in 1999 - that a Senate Committee be
struck and given a mandate to examine the legislation, policies and programs on
illegal drugs in Canada. The motion was adopted by the Senate in April 2000. In
support of the motion, Senator Nolin had commissioned a study on drugs and
drug policy in Canada. The purpose of this study, in particular, was "to
assist in analyzing policy on the control of drug use from a new angle, without
being influenced by the often unfounded prejudices that Canadian society has of
Senator Nolin wrote further that a Senate Special Committee "would
be charged, first, with transmitting to the Canadian public accurate and
objective information on the use of illegal drugs, their effects on individuals
and society and control measures in place. Second, it could conduct
consultations on desirable amendments that Parliament should make to legislation
on the control of drug use in the years to come."
Examine the federal government policy on cannabis, the means used to
implement it, its control and its effectiveness;
policies and approaches followed in other countries;
implications of the international conventions and treaties; and
social and health effects of cannabis and the possible impacts of different
to interpret our mandate in the broadest manner possible. Some asked us whether
it was our ambition to be a second Le Dain Commission.
Others told us we did not have the resources to be so exhaustive and rigorous in
our examination. Still others regretted the fact that we were restricted in the
first phase of our work to cannabis, as though the various substances could be
separated and their users classified accordingly.
on our work program, will show that we were motivated by a desire to be rigorous
and to cast our net wide. We are nevertheless aware of the scope and limits of
our role as a Senate Committee, all the more so since the means put at our
disposal were as limited as our ambition was generous.
question of the distinction among substances is more problematical for various
reasons. First, recent research shows that it is more important to distinguish
between user behaviours than between substances. Based on this view, it is thus
not so much the drugs themselves that should be distinguished as the different
ways in which they are used and the environments in which those uses take place,
and hence the risks a certain number of users run. Here we will discuss at-risk
behaviours, which are not determined
so much by the characteristics of the substances as by those of the users and
the conditions in which they are used. Second, the distinctions between
substances have no clear scientific basis. Thus, entirely different
classifications are arrived at depending on how one views the pharmacological
properties of the various drugs, their effects on physical health and their
origins or cultivation methods. And third, a comprehensive and integrated drug
policy cannot be put forward on the basis of this distinction between
the result of this decision, which forced us to limit our work to cannabis, was
something more than just disadvantages and limits. We should admit, first of
all, that embracing the entire field of illegal drugs with so little in the way
of resources would have been a monumental undertaking. And as recent commissions
of inquiry and international scientific conferences have chosen, as we did, to
survey the state of knowledge on cannabis, we were able both to make use of
their work and to compare it to our own. Lastly, and more particularly,
experiments conducted in other countries, in particular the Netherlands,
demonstrate the merit in treating cannabis separately, in a "market
short, while restricting our work to cannabis, we invited the witnesses not to
limit themselves to it alone and to show us the links between it and the various
at-risk behaviours of users when they occur. We also bore in mind the necessity
of addressing drugs in the context of an integrated policy, particularly with
regard to the major parameters of public policy, legislation or knowledge
infrastructure, for example.
The Le Dain Commission, which investigated illegal drugs in the
early 1970s, will be discussed more fully in Chapter 12. See Canada
(1970), Interim Report of the
Commission of Inquiry into the Non-Medical Use of Drugs. (Le Dain
Commission) Ottawa: Queen's Printer.
See among others: Reynaud, M., P.J. Parquet et G. Lagrue (1999) Les
pratiques addictives. Usage, usage nocif et dépendance aux substances
psychoactives. Rapport préparé à la demande du Directeur général de
la Santé. Paris: Secrétariat d’État à la Santé et aux Affaires
developing and implementing public policy is the very essence of the role of
government, of political life in the broad sense. This fundamental activity
presupposes a choice between various alternatives and, in a democratic system,
an explanation and justification of the choice that has been made. A public
policy, regardless of its object, stands at the confluence of various
influences: partisan political considerations of course, economic considerations
as well, even increasingly so. However, if it lays claim to a certain degree of
rationality and citizen support, a public policy must also be based on rigorous
and objective data, preferably from scientific research, and on an understanding
of society's expectations and resistance. Lastly, a public policy, in our view,
should be founded on, and at the same time promote, guiding principles. By that,
we mean a clear and express vision of the principles that guided the choice
among various alternatives and that reflect a conception of government and of
the relationship between government institutions and civil society.
outset, our Committee chose to remain above partisan issues. This is the
advantage of belonging to the Senate, which makes it possible to take, on
various questions, a more objective view not influenced by concern for
re‑election. Economic considerations affected us in two different ways.
The first, a trivial matter, was related to the budgets allocated to us, which
necessarily limited the scope of our work, the second to the economic impact of
various public policy options which are discussed in Chapters 18 and 21.
thus focused on the other three sources that should influence a choice of public
policy on illegal drugs: knowledge, public opinion and guiding principles.
Committee's public hearings, the Chair presented the research program as
order to fully satisfy the mandate conferred upon the committee, the committee
has adopted an action plan. This plan centres around three challenges. The first
challenge is that of knowledge. We will be hearing from a wide variety of
experts, both from Canada and afar, from academic settings, the police, legal
specialists, medical specialists, the government sector and social workers.
second challenge, surely the most noble challenge, is that of sharing knowledge.
The committee hopes that Canadians from coast to coast will be able to learn and
share the information that we will have collected. In order to meet this
challenge, we will work to distribute this knowledge and make it accessible to
all. We would also like to hear the opinions of Canadians on this topic and in
order to do so, we will be holding public hearings in the spring of 2000
finally, the third challenge for this committee will be to examine and identify
the guiding principles on which Canada's public policy on drugs should be based.
chapter describes the various measures we took to ascertain the state of
knowledge and public opinion on cannabis and to determine guiding principles.
Chapter 3 presents our guiding principles in detail, while Parts II
and III outline all the information we were able to gather. First, however, a
few words on two working principles which we considered essential to the
complete realization of this Committee's mandate.
of the formulation of our mandate, which included an obligation to provide
Canadians with objective and rigorous information, we have emphasized rigour and
openness throughout the entire process.
all the more imperative that we do our work in a rigorous manner since opinions
on all sides of the illegal drugs issue are strong and often categorical. Like
everyone else, we too had our opinions and preconceptions regarding illegal
drugs when we began our work. How could it be otherwise? Like you, we have
children. We have had friends and relatives whose lives have been ruined by
addiction problems. Our study of the government bill (C-8), which afforded us
the opportunity to hear from a certain number of stakeholders and experts,
provided us with information, of course, but also revealed major gaps in our
knowledge. It then seemed clear to us that opinions were often based on partial
and at times incorrect information. On what basis can it be said that cannabis
leads to the use of other drugs? What is the empirical basis that supports the
notion of cannabis dependence? What leeway does a nation have under the
provisions of the international conventions governing the production,
trafficking in and possession of illegal drugs?
cannot assert both one thing and its opposite. However, on the subject of drugs,
and specifically cannabis, such very assertions were made to us, and with
conviction. How to determine who was right? And to tell opinions from facts?
findings convinced us that the highest degree of rigour was necessary in the
course of our work, as will be seen in the next section.
rigour is not enough. For this information to reach Canadians, we could not
reserve it for our exclusive use, hence the second principle that guided us:
openness. From the outset, we insisted that all our work be made available as
soon as possible on our Web site. There was nothing new in posting witnesses'
testimony to a Web site, since this is common practice for most parliamentary
committees. However, in addition to this testimony, we also posted a number of
studies we had commissioned, many from the Parliamentary Research Branch of the
Library of Parliament. These studies, which are often not made public until
after a Committee's report is published, were made available to Canadians as
they were completed.
legislators, we would of course like our work to have an impact on public
policy. We also believe it important to provide Canadians with information that
is as factual as possible to allow them to benefit from it.
Commission of Inquiry into the Non-medical Use of Drugs conducted its work in
the early 1970s, like most commissions of inquiry, it had a large staff and
budgets enabling it to carry out a vast research program. That was all the more
necessary since, at the time, no large pool of knowledge on illegal drugs
existed. Virtually nothing was known about the active ingredients of cannabis or
even about the pharmacological properties of more traditional drugs, such as
heroin and cocaine, and little was known about user trajectories; criminological
studies on the relationship between drugs and crime were virtually non-existent,
and public policy impact studies were in their earliest stages.
the situation has completely changed would be an understatement. In all
scientific disciplines, from molecular biology to anthropology, countless
studies have been conducted over the past 25 years on illegal drugs in
general, and cannabis in particular. They come from the United States, of
course, but also from Australia, England, France, Switzerland, Italy, Germany,
Sweden, Finland and Denmark to name only a few. They have been conducted by
academics interested in these questions on a purely individual basis, by
pharmacological laboratories and by research groups within organizations
operating in the drug addiction field and in the context of scientific
commissions appointed by the governments of various countries.
Committee asked the Parliamentary Research Branch to prepare a survey of illegal
drug research under way or completed in the past five years at the federal level
and in the provinces and territories.
That survey, which lays no claim to being exhaustive, but offers an overview of
the extent and scope of recent research, clearly shows that, despite minuscule
budgets compared to those allocated in the United States, research on illegal
drugs is doing relatively well in Canada. We can only imagine that it would be a
formidable task to survey the studies under way in the United States on the
question of illegal drugs.
the state of knowledge on the subject thus first meant finding the means to
prepare a rigorous synthesis. To that end, the Committee adopted a research
program focusing on all aspects. However, as it lacked the financial resources
to produce an extensive series of studies, and also wishing to ensure that the
information was broadly transmitted to the public, the Committee designed a
program of public hearings of expert witnesses who would likely be able to
assist in more clearly determining the state of current knowledge on the
Committee approved a research program divided into five major axes of knowledge,
sub-dividing each one into specific issues:
socio-historical, geopolitical, anthropological, criminological and economic
issues of the use and regulation of cannabis. This
axis of work will establish the context for a better understanding of modern
practices in the production and use of cannabis. The main questions are:
What are the
key historical patterns in the production, use, consumption and circulation of
Is there a
relationship between cannabis use and religious or cultural practices?
What are the
relationships between the production, use, consumption, and circulation of
cannabis and the socio-demographic characteristics of populations? More
specifically, what do we know about cannabis users?
What are the
key domestic and international drug routes and how are they related to national
and international political and policy issues?
What are the
relationships between various drugs and how have current distinctions between
licit and illicit drugs been created?
What are the
relationships between the production, use, consumption, circulation and
regulation of drugs and criminality?
What are the
key economic issues in the production, use, consumption, circulation and
regulation of cannabis?
medical and pharmacological aspects of the consumption, use and regulation of
cannabis. The use of cannabis for medicinal
purposes occupies an important place in current debates on regulatory systems
governing it. The idea here is to produce state of the art reviews on knowledge
related to the physiological and psychological effects of various drugs. The key
research questions are:
cannabis been used for medicinal purposes?
What is the
state of knowledge on the therapeutic properties of cannabis?
What is the
state of knowledge on the physiological effects of cannabis, especially in
respect of addictive capacity?
What is the
state of knowledge on the psychological effects of cannabis, especially in
respect of dependence?
What is the
current state of knowledge on the effects of various forms of treatment for
dependence and addiction problems, their impacts and their costs?
aspects from a national perspective. Federal
legislative mechanisms exist in Canada to control the use, consumption,
production and circulation of drugs, even though treatment and other areas, for
example, are under the jurisdiction of the provinces and territories.
Additionally, the courts have interpreted the relevant acts and regulations,
particularly regarding policing powers. Overall, this section will examine the
legislative and control arsenal, its rationality and objectives, from the
standpoints of criminology, law, history, sociology and economics. The key
questions guiding this third axis of the research program are:
What are the
history of and logic to the different regulatory and control modes of cannabis
What are the
history and logic behind criminalization and penalization in Canada?
What is the
state of case law in respect of the legislative and regulatory arsenal relating
to the production, use, consumption and circulation of drugs in Canada?
What is the
state of case law on police powers and sentences in relation to drug issues?
What are the
effects of criminalization and penalization in matters of drugs on the justice
system (and its various components), the prison system and the criminal careers
What are the
economic and social costs of the various modes of regulation, control and
criminalization in matters of drugs?
What are the
relations among justice and public health policies and government departments in
matters of drugs?
and political issues in an international perspective.
Canada is a party to various treaties and conventions on the production,
trafficking and possession of psychoactive substances. It was important to
assess how precise and binding these instruments are on domestic legislation.
Also, these treaties and conventions are themselves part of a larger array of
international instruments, especially on human and political rights; it was
essential to determine the interrelationships between these instruments.
Finally, drugs are an issue in international relations, in particular in
relations between Canada and the United States. Although not legally binding,
these factors may influence policy reorientations and will thus be interesting
to look at. The key questions are:
What are the
main treaties and conventions in matters of drugs, their history and their
constraints, if any, do these treaties and conventions impose on Canada?
and conventions, what other aspects of international relations have implications
for Canada in adopting a regulatory mode in matters of drugs?
What are the
regulatory approaches adopted by other countries, what are their impacts, and to
what extent are they pertinent for Canada?
ethical issues and Canadians' moral and behavioural standards.
Ethical issues and knowledge of the standards adopted by Canadians are also
relevant in determining policy and legislative orientations. The key questions
What are the
ethical principles relevant to examining issues related to the production, use,
consumption, circulation and control of drugs?
What are the
pertinent ethical principles in relation to the medicinal use of cannabis and
the medical and psychological treatment of drug addictions and dependence?
What are the
current norms of behaviour of Canadians in relation to cannabis production,
consumption, use and circulation?
What are the
norms of tolerance of Canadians?
To what extent
do ethical principles and norms of tolerance in the population accord?
be seen, the undertaking was a vast one. In an attempt to answer these questions
in the most effective and most economical manner possible, the Committee agreed
to perform two tasks concurrently: conduct a research program and hear expert
both a research budget that would have enabled us to commission studies and a
full-time research staff, we asked the Parliamentary Research Branch to produce
syntheses and analyses of the relevant literature.
The research is divided into three major categories:
Legal studies: analyses of case law and
international conventions and treaties;
Socio-criminological studies: analyses of the
relationship between drugs and crime, of developments in denunciations, charges
and sentences; cannabis use practices; economic aspects of drugs;
Comparative studies: syntheses of public
policies in certain countries.
received a synthesis of the literature on the physiological and psychological
effects of cannabis.
Lastly, we commissioned a qualitative study on Canadians' opinions and attitudes
by a public survey firm.
the Committee received 23 reports and benefited from summaries of work
conducted in other countries, particularly through its attendance at
the research program's limits, and particularly of the need to question some of
the researchers whose work was cited in the studies conducted and to compare
their analyses with those of other researchers and with the positions of other
expert organizations (police forces, for example), we conducted a series of
hearings of expert witnesses in Ottawa and certain other cities across the
hearings began on October 16, 2000 during the 36th Parliament
and resumed on April 30, 2001, during the 37th. They ended on
June 10 of this year with presentations from the principal departments
responsible for illegal drug policy in Canada. As far as possible, the Committee
maintained a rate of one hearing every two weeks.
case, the Committee asked the witnesses to prepare a written brief responding to
specific questions. The Committee did not expect the experts to give their
opinion or tell it what to think. The expert witness hearings were part of an
effort to increase members' knowledge. Knowing that our ability to conduct
studies was limited and acknowledging that research data were incomplete, if not
contradictory, we wanted to take full advantage of this exceptional opportunity
to clarify and better disseminate certain findings.
these experts? How did the Committee select them? These are important questions
to the extent that a certain number of stakeholders questioned the Committee's
credibility as a result of certain choices it made. First, we wanted to cover
each of the major fields of investigation. Consequently, we heard sociologists
and lawyers, psychologists and physicians, police officers and criminologists.
Second, we wanted to hear as many Canadian experts as possible from those
various research areas. Third, for the most part, we selected experts known for
their publications in the field. The researchers included Professors Harold Kallant
and Marie‑Andrée Bertrand, who were closely involved in the work of
the Le Dain Commission 30 years ago and researchers closely associated with
such major institutes as the Ontario Centre on Mental Health and Addiction (the
former Addiction Research Foundation) and the Canadian Centre on Substance
Abuse. Lastly, we were interested in inviting experts who, in certain cases,
could speak on behalf of major institutions such as the Canadian Medical
Association, the Federation of Canadian Municipalities, the Canadian Association
of Chiefs of Police and the Royal Canadian Mounted Police. It will be seen from
a close look at the list of experts heard and the subjects of their
presentations that they coincided with all our areas of concern.
the hearings focused on the situation in other countries, we sought to strike a
balance between those persons who could describe public policy and researchers
whose work was recognized in their country and internationally. As the number
and length of our hearings were limited, we had to make choices. At most we
could hear four persons per hearing. As a general rule, we tried to choose
a senior government official and three researchers.
could also question our choice of countries heard: France, the Netherlands and
Switzerland. We had initially intended to hear representatives from England,
particularly because that country's public drug policies have been examined in
many high-quality studies. Unfortunately, changes under way in there prevented
us from holding those hearings. Similarly, we did not have enough time to hear
from Sweden or Australia. However, we had the Parliamentary Research Branch
prepare syntheses on each of those countries.
of the United States deserves particular attention. Chapter 20 describes
American drug policy. However, at our hearings on the United States, which is
much more complex and less monolithic than is often thought, we were unable to
hear from those responsible within the U.S. government, although not for lack of
trying. The Director of the prestigious National Institute on Drug Abuse (NIDA)
had tendered his resignation a week before the scheduled date of the hearings,
after accepting our invitation. And the Director of the Office of National Drug
Control Policy in Washington declined our invitation. In short, we are
dissatisfied at having been unable to hear the senior officials responsible for
drug policy in the United States. Nevertheless, on June 10 2002, we held a
private meeting with Dr. Hanson, the new Director of NIDA, and on June 11 we had
an in camera meeting with Mr. Walters,
the Director of ONDCP and some of his key advisors in Ottawa.
the Committee held more than 40 days of public hearings in Ottawa and other
Canadian cities, hearing more than 100 persons from all backgrounds.
further note. It can be said that we did not handle the testimony of researchers
and those of practising experts in the same way. That is true in part. To the
extent that researchers presented data lending itself to critical review,
containing verifiable data, which does not mean proof, on specific subjects,
making it gradually possible to answer our empirical questions, we attached a
certain degree of importance to them, which will be reflected in the passages
cited throughout this report. The information from practitioners is not in
itself any less significant or important in our view. However, the practitioners
more often tended to express opinions than to present study data. They also did
not have the same concern to give precise answers to the questions put to them.
Those opinions are important, as are those of the Canadians whom we heard and
who wrote to us, but they are nevertheless opinions, not cold hard data.
with this massive amount of information, the greatest challenge was to
synthesize it. The scientific literature on all of the topics addressed,
particularly those concerning the effects of cannabis and users and types of
use, is abundant. Experts reported to us on their research and that of other
researchers. The reports prepared at our request are full of information, and
our research team stayed on the look‑out for recent publications and
attended various international scientific conferences. In short, the task was to
make sense of all this data, which, in addition, contained contradictory
information at times.
same time, the data on certain subjects are still fragmentary. This is the case
of data on trends in the use of cannabis and other drugs in Canada (Chapter 6),
on the specific nature of therapeutic applications of cannabis, evidence of
which often does not go beyond the anecdotal (Chapter 9) and simply on
police practices (Chapter 14) or the decisions of Canadian courts (Chapter 15).
this information thus also meant making choices. While fully respecting the
diverse range of perspectives, we nevertheless had to draw conclusions,
accepting that some of the conclusions might be preliminary and that they might
be contradicted by subsequent research. It is in the very nature of science that
it is constantly in motion, and we accept that state of affairs. As a result, we
are aware that we have left ourselves open to criticism. So much the better, we
might add, first, because criticism will stimulate public debate, second,
because it will undoubtedly pique the curiosity of researchers, who will verify
some of our findings empirically, thus improving the state of our present
knowledge, and, third, because our choices will be made plain in light of the
guiding principles that are outlined in the next chapter.
opinion is hard to grasp, first, because it does not exist in itself but is
created by the manner in which the pollsters' questions are asked, by the manner
in which the media report a debate, and by a broader context of representations
the actual determinants of which are never precisely known.
public opinion on a complex subject such as drugs is not a simple matter such as
discovering what type of laundry detergent respondents will buy at the
supermarket. A seemingly simple question quickly becomes complex once Pandora's
box is opened. A public opinion poll may ask the public whether they are in
favour of decriminalizing cannabis. However, do we know whether every respondent
understands the term "decriminalization" in the same way? The complex
nature of this term is addressed in Chapter 21. Do we know whether
respondents are for or against decriminalization for the same reasons? And once
it has been determined that a majority is for or against it, do we know how that
public policy choice would be implemented?
If it is
the case, taking opinions into account is a necessity in a democracy. For us,
taking opinions into account meant we had two closely related responsibilities:
first, it meant we had a duty to inform, indeed to educate, although we hope
those who are offended by that term will pardon us for using it, but we are
convinced that on public policy topics, which are societal issues, it is the
duty of political leaders to transmit information that educates, not merely
convinces. The level of knowledge about drugs, even about cannabis which is the
best known drug, is often limited and wrapped up in numerous myths. Our second
responsibility in taking public opinion into account was to go and discover it.
We did so in three ways.
we publicized our work as widely and as openly as possible to enable everyone to
learn about it and react to it. Many chose to do so by writing to us, although
they were relatively few compared with the number of people in this country.
we commissioned a qualitative public opinion study. The focus groups conducted
across the country as part of that study are described in detail in Chapter 9.
we held public hearings in various cities across the country (eight in all),
thus enabling a certain number of citizens to come and tell us what they
thought, what they knew and what they had experienced.
aware that informing and seeking public opinion also means having a hand in
forming it. It is thus not a neutral activity.
knowledge, in the form of research and public opinion, still needs to be
interpreted. Scientific knowledge is subject to constant verification. It at
times contains contradictions, as will be seen in Chapters 7 and 8 in
particular. Knowledge of public opinion necessarily remains fragmentary and
evolving. Thus the importance of interpretation.
this, a public policy, as noted above, is not based on knowledge alone, no
matter how rigorous. Guiding principles are necessary, principles that can
permit an informed interpretation of data and assist in the establishment of
conclusions. This is the subject of the next chapter, which will describe the
method we used to determine our guiding principles and the principles
Senate of Canada (2001) The
Proceedings of the Special Committee on Illegal Drugs. Issue No. 1,
Leduc, D., et al., (2001) Federal
Research on Illegal Drugs and Related Issues. Ottawa: Library of
Parliament; and Miller Chenier, N., & S. Norris (2002) Territorial Research on Illegal Drugs and Related Issues. Ottawa:
Library of Parliament. Reports prepared for the Senate Special Committee on
Illegal Drugs. Available at www.parl.gc.ca/illegal-drugs.asp.
A complete list of the studies produced by the Parliamentary Research
Branch is provided in Appendix 3. All the research reports are
available on line at the Committee's Web site:
www.parl.gc.ca/illegal-drugs.asp. The Committee wishes to express its
appreciation of the work performed for it by the Parliamentary Research
Wheelock, B. (2002) The
Physiological and Psychological Effects of Cannabis: A Survey of the
Literature. Document prepared for the Senate Special Committee on
Illegal Drugs. (The Committee particularly wishes to thank Senator Rossiter,
who made the preparation of this paper possible.)
Léger Marketing (2002) An
Exploratory Study Among Canadians on the Use of Cannabis. Montréal:
author. Report prepared for the Senate Special Committee on Illegal Drugs.
Available at www.parl.gc.ca/illegal-drugs.asp.
A complete list of the witnesses heard as well as subjects, places
and dates is provided in Appendix 2. All the evidence and certain
supplementary documents provided by witnesses are available on line at the
Committee's Web Site.
should public policy on illegal drugs consist of, policy here being understood
in the strict sense of the word, as government through public debate and not
party politics? As we are part of the Senate of Canada and therefore of
Parliament, and having legislative authority, one might wonder why we ask
ourselves the question. As legislators, are we not guided by the principles of
good government, that is to say by public interest? In fact, what is public
interest, and how is it determined? Does our position as Senators give us the de
facto ability to say what is, or what should be, in the interest of Canada?
We do not believe so.
When faced with
social issues such as illegal drugs, we are like all Canadians, struggling with
our beliefs, our knowledge, our values, our doubts and our myths. Our special
access to some one hundred expert witnesses, our reading of numerous research
papers and our discussions with dozens of people across the country have forced
us to confront our preconceived ideas and images about drugs and to compare them
with those of “others”, and if not to change them, at least to refine them
along the way. However, this is not sufficient to determine what is in the
public interest. Experts, no more so than the many citizens we heard from, do
not determine what is in the public interest. Studies show only the most
superficial aspects of what Canadians think. In addition, when polls that are
more sophisticated provide us with a more in-depth picture of public opinion, we
will be no further ahead in trying to decide on the direction that public policy
on cannabis should take. This is primarily because the greater good is not
determined by polling to see which way the winds of public opinion are blowing,
and also because, as is the case with our personal opinions, public opinion
relies on unverified information, on preconceived ideas that are sometimes
biased, and on values that are not always clear.
We heard quite
frequently that the public policy decisions should be based on the future of our
children, on the kind of society in which we wish to live and that we wish to
leave them. Over the last two decades, Canadian society has implemented costly
anti‑smoking programs. Do we want to be in conflict with these by allowing
the smoking of cannabis? Cannabis is a psychoactive substance that can impair
certain cognitive abilities linked to learning in young people. Do we want to
send the message that it is okay for them to take drugs?
Others said that the
fundamental values of Canadian society, values of respect for people’s rights
and freedoms, of tolerance and openness towards diversity, were compromised by
existing legislation on cannabis. They added that these laws are no longer in
step with society, reflecting an inter-generational conflict between adults and
youth, they bring about more harmful consequences than good, and on top of being
ineffective they are iniquitous.
This is an issue of
values, therefore, which opposes various ideas about public health, of community
health, meaning both the physical well-being of people as well as of the entire
community, of its moral fiber as well as the model of inter-relationships that
it proposes. However, we do not all share the same values.
In the fragmented,
disillusioned world in which we live, a world open to the sharing of cultures
and of identities, albeit not always by choice, the issue of values is
constantly at stake, and from this the very meaning of social life. Even the
transcendental values that we all share, of sacred respect for life and of
immanent justice, are not readily turned into public policy: abortion or capital
punishment, for example. As for other values, such as freedom, truth or law,
they are the subjects of constant debate in democratic societies and they are
precisely the kinds of values that are at stake in a public policy on illegal
It has now been
thirty years since the Royal Commission of Inquiry on the Non‑Medical Use
of Drugs, the Le Dain Commission, named for its Chairman, studied issues
similar to those we are studying today. Its report on cannabis, whose scientific
conclusions on the effects of the drug were generally accepted by all members of
the commission, nevertheless led to … three reports: a majority report by
three of the members, and two minority reports. During our first day of public
hearings, Professor Line Beauchesne presented the fundamental differences of
opinion among the members:
dissension stems primarily from different visions of the values that should
underlie a drug policy. I will refer to the report to illustrate the three
positions that can be taken on drug use.
position, based on legal moralism, is that advocated by Ian Campbell. This
public policy approach founded on legal moralism justifies the current
prohibition and resulting repression on the grounds that it protects common
values. (…) Briefly put, the government is perceived as having the
responsibility of establishing common values, which are then imposed on society
with a view to achieving optimum social harmony. If everyone thinks the same
way, then there will be fewer problems.
second position, held by the majority of the Le Dain Commission members, is
based on legal paternalism. Public policy based on legal paternalism justifies
current prohibitions on the grounds that the State has a responsibility to
protect non-independent persons, particularly young persons.
When we come
to the third position, that taken by Marie-Andrée Bertrand advocating the
legalization of cannabis, this brings us around to the whole question of values
(…). Legal liberalism implies that the government maintains some
responsibility for preserving individual autonomy to the maximum extent
possible. (…) A public drug policy based on legal liberalism is founded on the
premise that the government’s role is to maximize opportunities for each
individual to be a full citizen and to ensure that criminal law is never used. 
an affirmation of a set of shared values. Paternalism is protection of the weak.
Liberalism is maximization of the independence of citizens. These three
categories do not include all of the possibilities: communitarianism, for
example, represents another approach. In some areas of public policy, at certain
times, these various approaches can co-exist. Nevertheless, each one expresses a
different concept of the role of the State and of criminal law, and the roles of
science and ethics in the choices that must be made.
Having examined each
of these subjects, we have elected to set down the guiding principles that
clarify the concept we have of the roles that the state, criminal law, science
and ethics must play in the development of a public policy on cannabis. These
principles will then help us in our analysis of the information resulting from
the research and current practices in Canada, and most of all, influence our
recommendations. In this way, the reader will have the benefit of our attempts
to make explicit the principles which all too often remain implicit, therefore
giving the opportunity to all to take us to task for inconsistency, or to voice
their disagreement with our conclusions, because they do not share these
principles. We feel this exercise has the virtue of being both clear and
In order to assist
our preparations for this work on the guiding principles, we asked four Canadian
academics, well known both in their respective fields and for their
independence, to prepare issue papers on each of the four main themes:
governance, criminal law, science and ethics.
We strongly encourage Canadians to read these texts, which are of an exceptional
richness and quality. We will use these texts freely, without pretending to
render the complexity of their thinking, but neither will we simply echo their
sentiments. Just as we did not ask witnesses to tell us what to think, but
rather to share their knowledge with us while being as rigorous and as precise
as possible, whether their knowledge comes from research or from experience, so
we asked for issue papers and not for answers to our questions. We must
formulate our own responses to the illegal drug issues before us, and that is
what is expected of us.
We will begin with a
reflection on ethics. We feel that such an examination, insofar as it affects
the very bedrock of our values, as it imposes a requirement for communication
is the cornerstone upon which the other guidelines are based. Our principles
dealing with governance – that is to say the role of the State – and with
criminal law as a tool for achieving social conditions, then, hinge on this
ethical concept. We will conclude with thoughts on the role of science, or more
specifically of knowledge.
Let us assume that
science, with supporting evidence, had shown the harmfulness of a given drug –
say tobacco – and that it is a “cause” of serious, indeed fatal illnesses.
To what extent are doctors, judges, and in the end, the State, authorized to go
to ensure that people do not smoke? What limits are there on intervention? This
is the question posed by ethics, more specifically the ethics of “health”.
Should we simply ban tobacco and punish both its users and its producers? Should
we educate people through prevention campaigns? Should we discourage smokers
through their pocketbooks, for example with a surtax for the hospital care that
their habit could make necessary?
We see that ethical
reflections take us through what is, through the realm of facts, to the realm of
what should be, of what would be desirable. Moving therefore from recognized
facts (that cigarettes “cause” lung cancer) to standards (the majority
recognizes that smoking is harmful), but, more important than standards, to
values (health is the greater good) and finally to the means of passing on and
above all implementing these values (smoking is forbidden and subject to a
fine). At any of these steps, one could speak out and say just a minute, I do
not agree. I do not agree with the statement of fact: what is the basis of, what
studies support this “finding”, one might ask. I do not agree with the
standard: even though a public opinion poll may show that most people believe
cigarettes cause lung cancer, is that reason enough to put an end to the debate?
I do not agree with the established values: freedom is the greater good and not
health - what is the use of being in good health under a totalitarian regime?
Finally, disagreeing with the means chosen to implement the value - it being
unacceptable to ban cigarettes under the pretext that they cause cancer because
the means is disproportionate to the fact.
Anyone who has
followed the debates on cannabis to any degree will have drawn a parallel.
Because cannabis “causes” health problems (both physical and moral), the
standard states that its use is “dangerous” and, under the banner of public
health values (and of the protection of the most vulnerable: children,
adolescents, etc.), its production, manufacture, sale and use, etc. will be
prohibited. This is the basis of the existing public policy.
As Professor Malherbe
reminds us, this way of setting out the cannabis problem – as in fact is true
for other substances – encourages us to rethink our ideas on health, medicine
and science. Moreover, going one step further, it obliges us to consider the
issue of risk and of life itself in society.
We live in a
risk-taking society, but in a paradoxical manner. On the one hand, we place
great value on risk-taking: venture capital, risk management, putting no limits
on success. We see this as much in the appreciation of certain kinds of
political or corporate decisions, as in the emulation of certain kinds of risky
activities, such as Formula 1 racing, paragliding, and other extreme
sports. On the other hand, we are becoming intolerant of risks of life in
society, of the risks that others represent to our individual lives. It is a
search for safety, both individually and collectively, vis-à-vis the smalltime
crook or the terrorist. Risk would be in conflict with safety and security as
illness would be in conflict with health.
Between these two
apparently opposed attitudes towards risk, a subtle change in connotation slips
in and partly explains the paradox. In the first sense (risks we like to take or
will accept others taking), the issue is clearly risk. Here, risk is seen as
being positive, and offers a number of options: when faced with this kind of
risk, the person can decide to forge ahead, to wait, or to give up. In any case,
there is a broadening of possibilities, therefore of autonomy, an extension that
is no doubt linked to the admiration these people elicit, which is also tinged
with envy as we observe this action that our position as “mere mortals”
rarely permits us. The shift in meaning happens with the second sense, which
does not relate to our ideas on safety but rather of danger. Safety is a
collective and individual good, as in food or occupational safety. Danger, on
the other hand, is usually a loss or a limitation of freedom of action: when
faced with danger, most of us stop, and withdraw from the scene. In this sense,
danger reduces the range of autonomy. Therefore, it is not safety that is in
conflict with risk, but rather danger.
The distinction is fundamental, because it refers us to the degree–whether
real or perceived–to which we control our own existence. We sense that the
“crazy Canuck” bombing down the slopes is at least in relative control of
the risks he is taking; danger is different in that it implies loss of control.
We are collectively
learning how to manage this risk/danger equation. The “risk” here, if one
can put it this way, is thinking of risk as a kind of acquired individual
autonomy, and of danger as a limitation of this very autonomy by “the
other”, bringing about in its wake withdrawal, intolerance, and concisely,
fear. For if risk is the source of intense pleasure, danger generally gives rise
to fear. If risk points to the improvement of the means that allow me to be more
in control of my safety, danger points to threats coming from the outside,
chiefly from the ‘other’, over which I have little control.
concepts in medicine, and in science in general, add to this paradox when they
address risk factors, such as when smoking is considered a risk factor for lung
cancer. This is also the case with delinquency: dropping out of school is a risk
factor as regards delinquency. Within these meanings, risk here becomes a danger
factor, the ultimate danger, of course, being death (cancer). This mechanistic
and causalist concept of prevention erases the fundamental difference between
the body-machine we occupy and the body-subject we are, to use the distinctions
proposed by Professor Malherbe. There is, in fact, no direct link between the
“objective” characteristics of our environment (including the personal
traits of genetic history, family and culture, etc.) and the subjective
perception we have of ourselves and of our relationship with our environment. In
other words, it is precisely why two children born in a similar environment, in
the same era and friends from a very young age, will take two entirely different
paths in life. We have a body with a genetic inheritance and pre-dispositions;
what we do with it and how we interact with others and our environment is
something else entirely. Just as there is no immediate transfer of the
recognized fact to the norm, neither is there any direct translating my
biopsychological make-up into actions and thoughts.
approach searching to identify a statistical “norm” – the correlation
between two facts – does not take into account the fact that we are not all
equal in the face of this risk/danger equation. What for some would constitute a
risk – going down an icy mountain on skis – would represent a real danger
[Translation] Despite all
we think we know about addiction, a considerable number of well-informed
subjects “happily continue committing suicide” through their dependencies.
While health education is largely thwarted, and not only in the field of toxic
substances, it is because human subjects are in fact subjects, that is to say
“subjective” beings whose behavioural reactions are linked much more to the
meaning they attach to their behaviours than to the objective mechanical-medical
consequences which statistical analysis claims to define.
are no doubt worth taking for life to be worth the trouble of being lived, for
it not to dissolve into a maniacal and fearful sequence of endless precautions
(…). Lastly, what is most human (the most autonomy, we dare wonder):
succumbing to fearful hypochondria and enclosing oneself in a cocoon of
universal prevention (to the point of death by asphyxiation and loss of will) or
living one’s life through risks freely chosen and accepted. 
This is where the
central position of the concept of autonomy comes in. Autonomy, however, is to
be understood here in a critical manner as reciprocal
autonomy, and not as autonomy where isolated individuals establish standards
to their own liking. It should be borne in mind that autonomy, etymologically
speaking, means “establishing one’s own laws”. This is not a question of
arbitrary legislation, created for oneself, but of laws that permit, whenever
possible, the successful interaction with others, which is the very bedrock of
society. This autonomy is based on the ability to recognize the existence, the
difference, and the equivalence of the other, allowing one to assume solitude,
finiteness and uncertainty, respectively, to then move on to practice
solidarity, dignity and liberty in return.
person is not autonomous, some would say. Indeed, in their dependency, the drug
addict, the alcoholic and the inveterate smoker are not. Neither the emotionally
dependent person nor the person addicted to gambling, money or sex is fully
autonomous. Next comes the question of the extent to which the state or society
can intervene to encourage the slow achievement of this autonomy, and how to go
about it. What are the respective roles of collective governance and criminal
law as mechanisms of this governance? How can science contribute to this
In any case, we note
Professor Malherbe’s comment, that:
[Translation] (…) the
fundamental problem of our civilization is not whether it is acceptable to
prohibit the trade in cannabis derivatives or even their use, but rather not to
repress the expression of anxiety when it arises and, even better, to invent new
ways of taming it. On this point, it is useful to recall that every unjustified
restriction, which adds to the already heavy burden of civilized individuals,
can only increase their sense of being the object of some form of
totalitarianism rather than the subject of their own destiny. From this
standpoint, anti-drug campaigns seem decidedly like attempts to deny death
rather than recognize its presence in collective and individual life. (…) In
this respect, we agree with N. Bensaïd, who says that preventive medicine
conceals our fear of death by making us die of fear. 
From this base ensues
a definition of ethics as “constant
work, to which we can consent and which we perform with one another in order to
reduce, as far as possible, the inevitable difference between our values as
practiced and our values as stated.”
With one another, indeed, thereby imposing constraints so that reciprocity and
equivalence of the ‘other’ can be realized; this is the role of governance.
As a guideline, we
will adopt the principle that an ethical public policy on illegal drugs, and on
cannabis in particular, must promote
reciprocal autonomy built through a constant exchange of dialogue within the
We are social beings.
It is a trivial assertion, however it must be stated because it means that, necessarily,
we always find ourselves in paradoxical situations where to a certain degree,
each person has the free will to make decisions, and makes free decisions for
himself, while at the same time, in order to regulate interactions with others,
rules are established, a normativity, that is more or less complex or more or
less formal, as is appropriate. This is true of relationships between couples,
families, in sports, and at work, as it is of relationships between citizens and
the government. Self‑governance – acquired through the arrival of
liberal democracy – is never complete and inevitably yields in part to the
governance of the community.
relatively easy to develop within simple relationships: within couples,
families, or businesses. This is not to say that its practice is easy: anyone
with any experience of relationships as a couple will be well aware of how
difficult it can be to make implicit rules explicit, and to agree on the rules
of a shared life. However, the standards that are established between friends,
between lovers, between parents and children, are in fact a set of relatively
simple rules, and most importantly, rules whose effectiveness does not require
the intervention of other parties, except in the case of a break-up or of abuse.
In feudal, pre-modern
or pre-democratic societies, the prevailing rules for even the simplest social
relationships were stipulated from the outside: by the sovereign, the lord, the
church representative, the father or forefather, the head of the business, each
one could issue orders and expect to be obeyed, being all powerful in his
domain. The establishment of normativity was largely done without the
involvement of “subjects”, without their consent, and without any input on
their part; they were excluded from the power relationship. Over the centuries,
during which our modern-day democracies were built, we have moved on to styles
of governance of ourselves and others that allow people to participate more and
more in the development of the rules of life, both personal and social. We have
also moved on from a situation whereby each person’s life was decided by his
or her destiny, and limited to the narrow prospects dictated by the place of
birth and status, to an “indeterminate” life situation, which is open to the
building a personal identity and history.
These are therefore
(1) changes in the sources of normativity and their operationalization in
society, and (2) changes in our relationship to these norms. In the first case,
we are slowly becoming involved in the external formalization of the sources of
behavioural norms. As they no longer ensue from divine right, from the sovereign
or the church prelate, they are built through the political manifestation of the
will of the people. They are entrenched in national constitutions, in legal
decisions (in British Common Law) or in legal codes (the Civil Code). It follows
that the supra-legal normativity (inherited from divine right) or the
infra-legal (not set out in law), lose both their symbolic value and their real
influence on social relationships, to the benefit of legal rules that are
registered according to a recognized and legitimate procedure in the social
system by means of statutory provisions. Modern societies are legal societies,
that is to say societies that base their management of relationships between
people and between individuals, groups and institutions, on the rule of law.
Never completely incorporated into the legal system, other sources of
normativity have not disappeared completely but the pre-legal or infra-legal
sources of normativity are less apparent, and sometimes less legitimate.
With this change of
source comes a change in operation: while the sovereign or the church
representative could convict, or even execute, without challenge to the
legitimacy or rationality of their decision – except by risking the same fate
– the means of expressing the will of the people, setting it out in the legal
system, is now in the hands of judges and the legal system entirely. The legal
establishment of norms is set in motion either by the public authority provided
in the legislation (civil and criminal cases, for example) or by citizens
themselves (private and civil lawsuits) and is put in effect primarily by the
courts. Remedies exist, and most importantly, these remedies are theoretically
the same for, and accessible to, one and all.
The relationship that
a person has to the norms, and through this to all aspects of social life, is
the third change. Choice and uncertainty have both increased, to the point that,
today, the connection is not so much to the other person, but to the risk
represented by being in contact with them. Normativity in and of itself is no
longer considered inevitable, nor even a duty. Without being rejected, social
normativity is called into question based on personal experience and worldview.
The gap between the subject of the norm and the norm itself seems to be
widening, while conflict resolution models are being made more formal.
conjunction of these processes, governance becomes more and more instrumental.
The mechanisms of formal normativity, i.e. lawyers, judges and the courts,
sometimes take on a greater importance than the actual substance of the norms
themselves: the immediate personal question is whether I have access to the
recognized mechanisms of conflict resolution, or if, through my condition or my
actions, I am excluded in one way or another. In other words, the means is
replacing the end, the rule of law is replacing the requirement for a connection
to the other, which is the very basis of normativity and of social life itself.
Modern societies are
therefore faced with a series of sometimes paradoxical injunctions. Collective
governance must: (1) allow social relationships to be regulated in the most
orderly but least restrictive manner possible, (2) give expression to the norms
and values shared by the community and (3) give each person the opportunity to
define themselves in relationship to these norms and values. How can these
seemingly obvious opposites be reconciled?
Based on Professor
we can say that there are two central spheres or preferred means of governance:
the governance of relationships with others, and the governance of the self. The
governance of collective relations is obviously part of the traditionally
recognized areas of intervention of the state, even if the form and substance
change. On the other hand, governance of the self does not come immediately or
systematically under the jurisdiction of the state.
The state is far from
the only source of normativity. But the fact that democratic states must act in
accordance with the law and that most public policies come in the form of
legislative texts, produces a kind of short-circuit whereby the source of law
and the state appear as one.
Yet, as Professor
MacDonald rightly points out, if the actions of the state are subject to the
rule of law, the legal sphere is not limited to the State. In all known
societies, rules have always been established for the governance of the self and
of collective relations. They are implicit or explicit, formal or informal,
all-encompassing or limited in their application, codified or recorded in the
collective memory, extensive or limited to certain spheres of activity. In every
case, whatever the nature or specific form of the rules, they serve to express
for members of the community the conditions of collective life. They deal with
marriage and parenthood, the ways in which one respects the life and property of
others, as well as the connections to the invisible and the beyond. They take
the form of prescriptions and bans, are implemented by the bishop or the mullah,
by the king or his representative, or by the judge. Much as we might like to
believe, we in modern times have not invented the codification of laws because
the first legal code goes back to Hammurabi, the King of Babylon. In Roman law,
Justinien was the first to suggest a code of laws, not to mention the Ten
Commandments “handed down” to Moses.
In this sense, we
agree with Professor MacDonald as concerns legal pluralism, according to which
there are multiple sources of normativity and therefore of rules of action that
are not exhausted by formal legislation. This is the distinction between law and
“juridicity”. As we mentioned above, juridicity can be derived as much from
the family as from business, from school as from the trade union, from political
parties as from religion. In this sense, juridicity “is the business of
subjecting action to rules-based governance”.
course, co-exists with other ways of governing individual and community actions:
the brute exercise of power and war are examples of other forms. One of the main
differences, however, between juridicity and other forms comes from the nature
and the origin of its legitimacy. The establishment of legal rules of action
involves a form of consent, if not of active participation, in the development
and implementation of the rule, qualities that are not needed nor sought out in
the case of domination by a tyrant or an occupying army.
The development of a
formal juridicity, in the form of legal texts passed by legislative assemblies
prescribing both objective and subjective rights, is at the very heart of
modernity. It is in fact around these kinds of issues that the more specific
question of the role of the State arises: when and to what extent should formal
legal rules be developed, and how should they be enforced?
Modern societies are
unique in that they have, amongst other things, given precedence to the formal
rule of law over other sources of juridicity as regards the governance of social
relationships, established the need for these formal laws to be adopted and
implemented by legislative and executive arms of the State, and set up
arbitration systems in the form of courts of law born of the State but having an
arm’s length relationship with the former two.
This formality of the
law, or to be more precise, the legal normativity found in the legislative texts
passed by the State, in no way signifies the disappearance of the other forms of
normativity. Here Professor MacDonald gives us a relevant example of this:
activity that the official criminal law sanctions and stigmatizes may be
rewarded and valued in certain other normative communities. In
socio-economically impoverished neighbourhoods where economic opportunities are
limited, the manufacture and sale of illicit drugs may be an attractive means of
escaping poverty. For those who are successful in the enterprise, the consequent
advancement in social standing may more than offset the potential harms visited
by criminal sanctions. Similarly, in an international context, in countries
where the raising of traditional crops which are capable of being converted into
illicit drugs is an indigenous cultural activity, and where conditions of
poverty are such that the attendant economic benefits are necessary for
subsistence, the criminal law (whether domestic or international) has little
In other words,
juridicity is not exhausted in the formal law, and the role of the State is not
limited to the processes of passing, enforcing and arbitrating formal
juridicity has often been equated with moral standards, or has tried to model
itself on them. These standards could come from religion, from philosophy, from
an ethic, or a universal theory of nature as in Plato. In every case, they tried
to say what constituted the “good life”, how to conform one’s life with
the immanent rules of life, ending the cycle of reincarnations, or avoiding
eternal damnation. In every case as well, the good life corresponded more or
less to “life” in the most abstract sense, that is to say the focus was not
so much on the destiny of the individual, but on that of the community, the
group, the clan.
It is only as
of the second half of the second millennium, during what we refer to as the Age
of Enlightenment, that individual life slowly began to register as a primary
concern in the governance of the community. This major change resulted in what
Taylor calls “ordinary life”, that of the “average sensual man”, at the
heart of which we find his connection to the world and his manner of connecting
with it through the agency of family and work, being suddenly recognized. Having
had no means by which to participate in the development of juridicity in general
until then, the “citizen” acquired some legal authority and right to active
participation (to simplify things, we could give as an example the right to
vote), not only as a member of the community but as a whole and unique
Up until that time,
communities had a juridicity that was largely based on relationships with
others, granting strong objective rights (the right to life: you shall not kill;
the right to property: you shall not steal; etc.), with a weak cognitive
component: while admitting that it continues (unfortunately one might add), to
pose certain problems (take racial or sexual inequality) even throughout the
twentieth century, - accepting respect for life as a universal norm has not met
with great opposition. It is in this sense that we speak here, particularly
following Pires’ work discussed in the following section, of norms with weak
cognitive components. These fundamental norms, which certain philosophers of law
have said are natural laws, do not require a strong empirical justification. The
same cannot be said of other norms concerning conduct such as homosexuality,
abortion… or taking drugs. These norms are an issue of what we might call
subjective rights that relate to individual behaviours that express personal
choices achieved through a consensual exchange and thus being of little or less
direct concern to the community. This is why we could say this is an issue of
norms with a strong cognitive component: in order to be imposed as negative
laws, that is to say as constraints or prohibitions, these standards need an
exogenous justification drawn from the external knowledge of juridicity itself.
In this way, parallel
to the process of legal formalization of the norms of governance in the
community described in the preceding sub-section, the modern individual has
acquired more and more room for governance of the self. This space is no longer,
as in the past, entirely dictated by the determinations stemming from one’s
birth in a given place, in a given family, with given genetic “baggage”.
Except in some totalitarian regimes, neither is this space for the governance of
the self entirely subjected to collective or religious rules. This space
consists of a vast area of uncertainty that, in part, precisely explains why it
is sometimes called “disenchantment with the world”, or more prosaically
“loss of sense” or “lack of values”. In fact, we would say that neither
comes into play, so much as a process of slow and hesitant reinvention of social
life, in and through new ways of relating as individuals.
Governance is part of
both the spheres of collective governance of the State and of governance of the
self. If the State’s chosen vehicle is formal law, the passing of legislation
does not exhaust all the possibilities in terms of collective governance.
Moreover, governance of the self is the slow discovery – in the strong sense
of the term - of the juridicity that underlies human action.
addresses the issue eloquently:
law and legal institutions to be deployed to achieve the symbolic governance of
human agency in a manner that facilitates the just achievement of individual and
collective human purposes? 
The issue brings us
back to the purposes of community governance, which is to facilitate human
relationships and self-realization, with a minimum of interference in such a way
as to stimulate individuals' discovery of the source of normativity rather than
having it dictated by an external body. It is not the responsibility of State
governance to ensure either the health or the happiness of its citizens. It is,
however, its duty to ensure that the rules that it enacts and the way in which
they are carried out do the least possible harm to the individual’s ability to
develop his or her own moral code. Not a single morality, or at least a morality
for everyone, as the majority position of the Le Dain report maintained,
but a facilitation of access to morality for citizens, morality here being
understood in the sense of the ethical discovery of fundamental laws regarding
relationships with others, as Professor Malherbe pointed out.
proposes a definition of governance that is drawn from the work of the Law
Reform Commission, which gives guidance: the goal of governance is freedom, and
not control. It is a question of defining the goals of society through policies
and action programs that are then implemented through systems and processes and
upheld by actors, allowing for the encouragement and affirmation of human
action. The law, vehicle of choice of governance, does not seek instrumental
purposes of simple expressiveness of rules or limitations passed for and on
behalf of citizens, but a reciprocal process of building social relationships
through which people, citizens and governments, can constantly adjust their
expectations in terms of behaviour.
We therefore accept
as a guiding principle for governance that all
of the means the State has at its disposal must work towards facilitating human
action, particularly the processes allowing for the building of arrangements
between collective government and governance of the self.
During the course of
this report, we will have plenty of opportunity to describe the degree to which
criminal law is at the very heart of any discussion of illegal drugs. It has
come to the point that debates between those we refer to as prohibitionists on
the one hand, and liberalists on the other, have overshadowed all other
considerations. The Italian sociologist Pareto (1848-1923), quoted by Professor
Pires in his issues paper, said of human beings that even if we would like to
believe that we are rational, we are above all argumentative beings, that is to
say that we want “to give a logical aspect to behaviours that do not have the
In the context of the debate on cannabis, this sentiment takes on its fullest
meaning: both sides hurling their arguments at the other, claiming they are
Any discussion on the
role and the place of criminal law as concerns illegal drugs, here being a
question of cannabis, in effect poses questions regarding principles of the
appropriateness of turning to criminal law. In general, both sides are quick to
escape this stringent argument on the principles to turn to justifications. As
is true of both sides, justification has nothing to do with the mechanism
itself, being the criminal law, but with the target, being cannabis. The result
is the litany of “proofs” of the effects of cannabis. For some, the effects
are significant enough to “justify” turning to the criminal law, and to list
the risks associated with the use of cannabis: addiction, learning difficulties,
delinquency, and impaired driving. For others, these same risks are so minimal,
or are already covered by other criminal legislation (driving under the
influence), that they do not justify the use of the criminal law. Whatever the
case may be, the debate is no longer in relation to the principles but on
This reflection on
the role of criminal legislation is specifically intended to bring us back to
principles of the appropriateness of turning to criminal law. The central issue
is to attempt to identify the criteria that will help us decide in what
circumstances society can–or must–turn to criminal law. It must then be
determined if these criteria justify the use of the criminal law in relation to
Raising the question
as to whether or not the use of criminal law as concerns cannabis is justified
necessarily brings us back to a primary observation: the use of criminal law is
not justified in all cases, but, in some cases, it must be. This observation is
supported by three findings: (1) that most social relationships are regulated
without the use of criminal law; (2) that certain behaviours are forcibly within
the sphere of criminal law; and (3) that certain behaviours legislation has
criminalized, at certain points in time, have since been excluded from this
domain. The possibility of including or excluding human actions from the sphere
of criminal legislation rests on the ability to make distinctions.
significant difficulty arises as soon as this principle of distinction is
accepted in practice, and not simply
in theory. Once an act has been recognized as being a “crime”, it becomes
part of the body of what defines all offences: behaviours against society.
According to the internal logic of criminal law, the only eligible distinction
would precede the decision to
incorporate a behaviour into the law or not. If the behaviour at issue is one
that goes against the common good, it is a crime. Otherwise, it would be an
uncivilized act, perhaps even an immoral one, but certainly not a crime.
Once such a decision is taken, the only remaining distinctions to make
would be with respect to form: the kind of procedure to follow and the severity
of the punishment according to the nature of the offence.
Everything is done as
if there were no positive distinctions made within criminal law between
offences, as if the distinction was made only from the outside, before making
the act an offence. In fact, distinctions between types of offences do exist.
These are the distinctions made by Professor Pires, between standard prohibited
behaviours and “two-sided” prohibited behaviours. It is more usual to
distinguish between “victimless” crimes and crimes “with victims”, but
this categorization is incorrect. On the one hand, under criminal law, the
victim is all of society. There are certainly individual victims, but by some
kind of extension, the harm has in fact been done to all of society. This would
explain the principle of deterrence, in criminal legal theory: by punishing a
guilty party, we try to dissuade all those who might be tempted to behave in the
On the other
hand, this categorization brings us back to a single aspect, the subject of the
offence, losing view of the other processes by which criminal law distinguishes
between different kinds of offences. In this way, another kind of distinction
that is intrinsic to criminal law falls under the modes of justification. A
decision to criminalize homicide does not require, as Professor Pires stresses,
the undertaking of comparative studies in order to determine if one kind of
murder is more or less harmful than another to the victim. The cognitive
component is weak: here, there is no need to turn to external arguments to
justify the criminalization. The act, in and of itself – this is the concept
of malum in se – is enough to
establish the legitimacy of the criminal standard. There is no such thing when
the issue is drugs: since the beginning of prohibition, external justifications
were needed regarding the harm caused by drug use. These subjects of
criminalization have a strong cognitive component, in that they require a higher
level of justification.
distinction between kinds of prohibitive behaviours is therefore an analytical
tool that is necessary in order to understand and think about the role of the
criminal law as concerns drugs. What then are the criteria we can use in order
to make these distinctions? This is the goal of the following sub-section.
proposes seven criteria allowing for distinctions to be made between the various
kinds of prohibitive behaviours in criminal law.
Seven criteria to
distinguish between offences
Nature of the offence
Is this an issue of a
conflict or an exchange?
Capacity of the law for
Can the law see a victim
and distinguish them from the deviant?
Is the actor able to
appreciate the consequences of his actions on another person?
Limitation on natural
Is it possible that there
could be limitation of the freedom of the person to act?
Justification of the
Must the law turn to
outside knowledge in order to justify the enacted standard?
Application of the law
Does application of the law
require any active intervention?
Effects of the law
Can the effects of applying
of the law compromise the standard?
We will briefly
examine these, one at a time.
The nature of the offence
In order for there to
be an offence, harm must have been done, which brings us to the victim. As we
said above, in the broadest sense, criminal law sees society as the ultimate
victim of any offence. The direct victim of an assault or theft is a witness, in
the technical sense of the law. However, at a concrete level, the law recognizes
direct victims. In certain cases, the concept of victim falls somewhere between
the two: it is the neighbourhood or the surrounding area, for example, in the
case of nuisance caused by solicitation for the purposes of prostitution.
However, these nuisance situations are themselves at the limit of criminal law,
in a sort of gray area between standard offences and two-sided offences.
What is remarkable is
that the criminal law cannot take all three levels into account at the same
time. If it recognizes the direct victim, then society becomes invisible. If it
considers the neighbourhood, it becomes even more evident that it can no longer
recognize a direct victim or society as a whole. Finally, and above all, if it
takes the perspective of society as a whole, then it loses sight of not only the
direct victim, but what is more, it loses its specificity. In effect, in the
latter case, one could say that civil law also protects society: without respect
for sales contracts and debts, society would go down the drain.
It is therefore not
only the harm caused, nor even the presence of a victim that gives certain acts
their criminal character, but the fact that they bear witness to conflict, abuse
of power, infringement of one social actor upon another. Obviously, civil law
also serves to resolve conflicts, from which comes the need for more criteria.
Capacity of the law for
law able to differentiate a victim from a perpetrator? In the case of standard
prohibited behaviours, it generally can. For example, the victim of a homicide
can clearly be distinguished from the perpetrator. Of course, there are
exceptions to these standard scenarios, for example, where the victims
themselves face criminal charges. A case in point would be where a victim of
sexual assault is convicted of contempt of court for refusing to testify against
faced with two-sided prohibited behaviours, criminal law is hard-pressed to
distinguish the victim from the perpetrator. Or, it finds the perpetrator to be
the victim that must be protected from himself. Consequently the perpetrator
becomes the victim of his/her own behaviour.
cognisant of the limitations and difficulty involved in punishing the victim -
for example, a prostitute - criminal law shifts from the phenomenological world
(the facts) to a different mode of reasoning. It moves from an analysis-based
mode of reasoning (evidence enabling deduction) to one based on consequentialism
or teleology (the goals underlying behaviour). For instance, criminal law
justifies its intervention by the need to protect children. Consequently, it
loses, and causes us to lose, sight of the (ultimately inexplicable) reasons why
the offence was brought before the courts in the first place.
term refers to the capacity of perpetrators of the offence to recognize
–despite “explanations”, denial or other self-justification methods - the
harm caused to others by their actions. Even in case of some borderline standard
prohibited behaviours, such as cruelty to animals, the perpetrator of the
offence – who, for example, has hanged his neighbour’s dog from a tree –
may recognize the harm caused by his/her action to the animal’s owner. The
criminal act in the case of two-sided prohibited behaviours may be
self-destructive, but is not motivated by maliciousness towards others, since it
does not create a direct relationship with others. Indeed, the sociologist A.
Ehrenberg raises the issue of the absence of a relationship with others
exhibited in all types of drug use when interpreted as a form of withdrawal from
the world. However, this is already beyond the issue of criminal law into to the
realm of political discussion on democracy.
Limitation on natural
deal only briefly with this issue here since it is discussed at greater length
later. Suffice it to say, however, that the law places special restrictions on
what Kant called the “unfettered freedom of action”: criminal law restricts
an individual’s liberty to take the life or property of others. Consequently,
it institutes specific rights and freedoms, i.e. the right to enjoy life and
property. Fundamental problems arise where the law seeks to restrict the very
rights and freedoms that it provides. A case in point is prostitution, where the
law seeks to restrict the very right to enjoy one’s own body and the freedom
provided for by the law.
Justification of the
law very seldom uses external sources to justify the criminalization of
offences. A good example to illustrate this is our original homicide scenario.
Criminal law does not refer to sociology, anthropology, history, economics or
medicine to establish the various effects of different types of homicides and
various ways of taking life. The same rationale can be applied to sexual
assaults, theft, fraud, etc. The cognitive component in the justification
process is weak. The rationale underpinning the standard prohibited behaviour is
deeply rooted in the social relationship. It is quite clear that any society
even considering legalizing homicide would become untenable and would cease to
be a society at all. Consequently, our society does not question the validity of
the criminalization of homicide. The sole issue that arises in some countries,
but which was addressed in Canada a long time ago, is the sentence society
imposes on murderers.
the opposite situation exists for two-sided prohibited behaviours. They require
empirical demonstration and justification with a strong cognitive component. As
one might expect, this issue is central to any debate on drugs. Indeed, this
report accords a great deal of importance to this matter.
professor Pires deals with this issue in graph form.
professor Pires points out, the criterion here is not to establish whether there
is consensus or “dissensus” on the criminal standard or on the terms
relating to the type and possibility of democratic debate but rather to
determine whether the source of the legitimacy of the standard is endogenous or
exogenous. In the case of standard prohibited behaviours, the source is
endogenous. In the case of two-sided prohibited behaviours, it is exogenous.
However, the criminal law creation process remains the same, i.e. democratic
debate resulting in the adoption of enabling legislation. It is for this reason
that it is all too easy to lose sight of the fact that the two types of offences
are not in fact of the same nature.
[Translation] The important point to remember is that all two-sided prohibited
behaviours to which this criterion applies exhibit certain specific problems.
(i) They all have a more precarious, more ideological or more fragile endogenous
basis because they are not rooted in a concrete, conflictual deviance and
because the norms are not sufficiently detached from certain forms of (purely
moral or religious) knowledge or are not sufficiently unaffected by knowledge of
facts. (ii) They are therefore more subject to a process of selection from the
available knowledge and to the actual value of the knowledge that we select or
that is available to us in respect of them at a particular point in time. That
means that a critical and serious examination of the knowledge is of crucial
importance. (iii) They are, to all intents and purposes, more polemical and
subject to public debate at a particular point in time, and more likely to be
based on major cultural or cognitive misapprehensions. 
Application of the law
vast majority of cases involving standard prohibited behaviours, offences are
brought to the attention of the police by way of a complaint. Complaints to the
police most often involve theft, sexual assault and homicide. Indeed,
approximately 90% all offences that come to the attention of the police do so
through complaints. In the case of two-sided prohibited behaviours, close to
100% of offences are discovered pro-actively.
might point to the increase in complaints from people living near cannabis
plantations in British Columbia. However, these people’s complaints perhaps
deal either with the very real danger of fire – since the illegal nature of
cannabis production forces producers to illegally tap into electricity lines –
or with pressure on them from criminals to keep quiet – also because producers
are forced to operate illegally.
pro-active application of the criminal law in the case of two-sided prohibited
behaviours has harmful consequences, including social and human costs but also
the possibility of discriminatory application of the law or police corruption.
This raises the question of whether the endogenous basis of the offence warrants
Effects of the law
effects of the law stem, to a certain extent, from the previous criterion and
all the others before it. This criterion relates to the legitimacy of the
standard. The difficulties and criticism arising from pro-active police action,
changes in social normativity or in the knowledge base, make the law
counter-productive, which, in turn, raises questions sui
generis as to its basic tenets and legitimacy.
have compiled Professor Pires’ suggested criteria under three headings. Each
criterion includes an “action-related” and a “law-related” element,
which can be used in distinguishing between various criminal offences.
of the offence.
The action here refers to the relationship between the “victim” and the “perpetrator”,
i.e. are they in a conflict or exchange-type situation? The law-related
criterion focuses on establishing whether criminal law is able to distinguish
between the victim and the perpetrator.
The action in this case is to determine whether perpetrators are able to
recognize the harm caused to others by their actions. The legal aspect of the
equation deals with determining the basis of the legitimacy of the standard.
The action relates to identifying whether the application of the appropriate
standard is triggered by the victim or witness or whether pro-active action is
required by law-enforcement agencies. The legal side of the equation is to
establish whether the enforcement of the standard could potentially sabotage
our view that the analysis of Criminal
Code offences based on these three criteria addresses the fundamental issue
of whether limiting the liberty of an individual to act is justified in the
criminal law. It is for this reason that we are less concerned about the
criteria themselves than about the result of the application of theses criteria
to the criminal law standard.
illegal-drug-related offences two-sided prohibited behaviours under criminal
law? Undoubtedly so.
offence created implies an exchange-type situation and it is relatively
unimportant whether the subject of the transaction is a prohibited substance or
not. It is deemed to be a consented exchange between two parties. In the case of
cannabis use – or the personal use of the opium or cocaine that just happens
to be growing in my garden, - no exchange with another party takes place.
Nevertheless, possession is prohibited in Canada, as is use in certain other
law is hard pressed to find a victim. With respect to impaired driving
endangering the lives of others, the Criminal
Code contains a provision for the punishment of an individual operating a
vehicle under the influence of any substance. The argument that cannabis poses
enforcement difficulties is not valid. The same difficulties apply to driving
under the influence of prescription drugs. What about the issue of children? It
is difficult to see how cannabis use harms children, except where an
“uncontrolled” market, brought about either by a lack of regulations or by
the current illegality of cannabis fostering illegal markets, does cause harm to
relation to referentiality, a user or even a seller does not see himself or
herself as causing harm to others. At least, this is the case for cannabis
derivatives. Of course, a situation where “grass” is mixed with other
substances and adulterated substances are sold to users is reminiscent of the
era of prohibition and is one of the reasons why prohibition was scrapped. To
justify behavioural standards and the offence, criminal law has to refer to
external sources over which – and the interpretation of which – it exerts no
operativity of the standard raises both application problems and on-going
questions as to the legitimacy of the standard itself.
the whole, the legal basis of the criminal law is weak where the prescribed
standard (1) does not concern a relationship with others and where the
characteristics of the relationship do not create a victim and a perpetrator
able to recognize his/her actions; (2) has to find its justification outside
fundamental social relationships; and (3) results in a form of enforcement, the
harmful effects of which, undermine and challenge the very legitimacy of the
law. (Where criminal law is involved in these issues, the very standard
prescribed by the law makes the perpetrator the victim and tries to protect him
from himself, which it can do only by producing a never-ending stream of
knowledge, which remains constantly out of his reach.)
analysis indicates to us that only
offences involving significant direct danger to others should be matters ofcriminal
public is generally willing to leave the choice of control methods to the
interaction between health care experts and government agencies because they
recognize that the drug is being used essentially for their well-being and they
rely on expert knowledge to decide the best way to protect that.
in formulating social policy on non-medical use, you must consider not only at
the harm done by the law or at the harm done by the drug, but as far as possible
a full cost/benefit analysis of drug use and the control measures, and any
change in control measures that you may contemplate. This is a matter for all of
society to decide - not for experts to decide as a matter of scientific
very outset of the Committee’s proceedings, we have been aware that knowledge
- even science-based, is not of itself a sufficient basis for the development of
public policy on illegal drugs, in particular cannabis. One might be tempted to
think that a Special Committee on Illegal Drugs - in this case, cannabis -
should base its conclusions and recommendations solely on knowledge. However, no
amount of knowledge alone could determine public policy. There are several
reasons for this.
the process of knowledge development is ongoing. This process is by definition a
continuing study of the unknown. The pursuit of knowledge, in view of the scale
and complexity of the task, is always approximate - or, as the French
anthropologist Claude Lévi-Strauss would have put it, cobbled-together. To
search for knowledge is to acknowledge our ignorance of fundamental questions,
which by definition remain open-ended. According to Professor de Koninck:
[Translation] It is appropriate for us to celebrate the ignorance we have at last
discovered because it is now part of our known ignorance (ordinary ignorance, in
the classical vocabulary), as opposed to unknown ignorance (twofold ignorance) -
thanks to neuroscience, oceanography, astrophysics, but also to depth
psychology, the history of religion (to cite only two of the advanced
"humanities") and to other disciplines which have particularly
progressed in our era. We must celebrate it with the wonder and puzzlement which
are still the necessary prerequisite of all discovery. 
situation might seem ironic, since never at any other time has such a wealth of
information been produced – in all areas of human culture but also
specifically on the issue of drugs – than in the modern era. So much knowledge
has been gained in fact, that experts, such as economists, sociologists,
criminologists, psychologists, and geneticists have become necessary players in
the whole public policy justification process. It is only thanks to the ability
of a team of scientists to successfully influence decision-makers that the
greenhouse effect and the global warming phenomena have been acknowledged as
real and that action has been taken to protect our environment. Governments'
macro-economic decisions will be explained to the public on the nightly news by
a senior economist. Where urban violence occurs or a serial killer is on the
rampage, psychologists and criminologists are brought in to explain what is
taking place, or to justify the thrust of criminal policy. The mass production
of information and reference to experts in policy development give the public
decision-making process at least credibility, if not legitimacy. Consequently,
people who feel disenfranchized or even disillusioned by what they perceive as
the disparity between the real world and the world presented to them in the
media, will feel less inclined to challenge political decisions which are based
on the “authority of knowledge”. Information is becoming knowledge, the
learned are becoming experts and politicians, (who are increasingly allergic to
independent reflection on principles and fundamental issues), have come to rely
on this handy army of “experts”, who are ever ready to proffer advice.
information is not knowledge. Indeed, knowledge cannot be reduced to mere
information. The Internet teams with information, but no one would dare contend
that all of it could be deemed knowledge.
the knowledge production process is fragmented and, like modern life itself, has
difficulty addressing the issue of meaning. No better knowledge is produced with
the addition of academic disciplines all studying issues through the lens of
their own field of expertise than is produced when one of these disciplines
works in isolation. The promotion of inter-disciplinary and trans-disciplinary
approaches will remain as meaningless as calls for a social “partnership”,
until there is genuine resolve to grasp the issues of meaning and comprehension.
Prestigious institutes such as NIDA may have huge research budgets and conduct
research, which in itself, is both fascinating and useful, but they function as
if their sole goal were to demonstrate the bio-psychological mechanisms of
“drug addiction” and the dangerous abuse that results from the consumption
of “drugs of abuse”, as they call them.
the reasons for particular practices cannot be reduced to the sum of their
constituent parts, or a jumble of re-enactments. Remarkable knowledge about cell
mechanisms and genetics does not provide answers to the ethical and political
issues raised by cloning. In the same way, knowledge about the mechanisms of the
atom and nuclear fission did not provide answers to the issue of the manufacture
and use of nuclear weapons. The highly abstract and math-based discipline of
economic “science” is so far removed from reality that it is no longer able
to explain the gulf that exists between nations or between extravagant wealth
and human misery.
seem more concerned with mathematical equations and abstractions, and as a
result, fail to ask fundamental questions. Their fields of knowledge are patchy
and highly compartmentalized and there often remains a confusion between
knowledge, information and technology. To ask fundamental questions, is to link
issues and to re-acknowledge the complex nature of these issues in an attempt to
identify the underlying reasons. There are on-going debates between scientists
and philosophers over linking issues and over the shift towards an integrated
knowledge base of human beings.
this raises the whole issue of the so-called “learned idiot”
is the right word (from the Latin idiota,
meaning "ignorant person", borrowed from the Greek idiôtês, of the same meaning, as opposed to pepaideumenos,
"cultivated man"). What is unfortunate is that their unearned
reputation as experts extends all the more the influence of this
"idiocy" in societies such as ours where "science" exercises
a magic power and "that power appears increasingly legitimized by 'learned'
experts," as Jacques Testart notes. "Indeed, the expert provides
reassurances and citizens are reluctant to decry the absurdity or cynicism of a
political decision approved by 'the most qualified experts'. 
are not trying to take issue with science but rather to challenge the difficulty
scientists have in reflecting on their research. It is one thing to conduct
cutting-edge research on specific issues, but it is quite another to claim to
use the resultant fragmented knowledge to provide “explanations”. It is yet
another to attempt to provide answers that science is quite simply not able to
provide. It is one thing to conduct studies of the behaviour of laboratory rats,
which have been administered a dose of Delta 9-THC (the principal active
component in cannabis), but it is quite another to claim that this type of
experiment is useful in understanding cannabis use and its effects on human
beings. It is still another issue to contend that this research can provide an
answer to cannabis public policy-related issues.
is a social action and forms part of a particular individual’s behavioural
pattern and as such, cannot be reduced to mere neuro-psychological mechanisms.
It might be useful to understand the mechanisms involved but this knowledge
alone will not explain the reasons underlying drug use in our society.
the colonization of the mind by the authority of experts-acting as mediators
between politicians and the community – equates to the dangerous colonization
of social sciences by natural sciences. This is nothing new. This process began
in the 19th century but significantly accelerated during the 20th
century. The most significant manifestation of this process is the ever-closer
links between psychology and neuro-science. Consequently, a transposition of
methods and problem-approach systems has taken place. As a result, human
sciences have now taken on a quantitivist-reductionist approach, which in turn
has led to a knowledge crisis. A sample of 100 young people chosen at
random to undergo a battery of psychological tests aimed at determining why they
use cannabis will provide apparently serious anecdotal research and a series of
correlations, which are unlikely to reveal the reasons behind drug use.
academic and decision-making circles, it is fashionable to refer to “evidence-based”
policies. By this, we mean policies based on “scientific” evidence of
approaches that work. One of the most striking examples of this approach was the
Crime Reduction Strategy implemented in the United Kingdom in 1998 by the then
newly-elected Labour government. Under this scheme, considerable money was
earmarked to support those crime prevention initiatives that studies had shown
to be effective with the goal of reducing various types of crime by a specified
percentage over a five-year period.
Despite this scheme, the United Kingdom is currently facing a crime
“crisis”, in part because crime rates have risen, and the Crime Reduction
Strategy is a shambles.
tempting to ask how the outcome could have been any different. Social
engineering strategies in areas such as population control and crime prevention
date back to the 19th century and have rarely provided tangible
results. These initiatives, which are built on one or two “formulae”,
themselves drawn from a small number of controlled experiments, do not take
account of the complex nature of the modern world, with its ever-growing,
increasingly fluid and intangible interdependent and multi‑level
relationships. Is it in an attempt to flee this reality that we seek refuge in
the mathematical abstraction of correlations between supposedly predictive
Committee’ report - especially the second part - has put great emphasis on
research-based knowledge. This focus is an attempt to do justice to the
knowledge that has been developed over the past few decades. We considered it
important and indeed necessary to give it detailed consideration. Indeed, the
Committee recommends that the drive for knowledge acquisition on specific issues
that we deem to be important be continued.
not claim, however, to have answered the fundamental question of why people
consume psychoactive substances, such as alcohol, drugs or medication. We were
indeed surprised, given the quantity of studies conducted each year on drugs,
that this area has not been covered. It is almost as if the quest for answers to
technical questions has caused science to lose sight of the basic issue!
knowledge cannot replace either reflection or the political decision-making
process. It supports the process. Indeed, we consider that its greatest
contribution to public drug policy is in doing so. Our guiding principle is that
science, which must continue to explore
specific areas of key issues and reflect on overarching questions, supports the
public policy-development process. No more, but no less.
the greatest challenges for modern societies is to collectively invent new forms
of social life and community belonging that stretch beyond the tools of formal
law. As individuals with objective and subjective rights, people can participate
fully in the development – we would even go as far as to say the conquest –
of the collective project of creating a society. It is no longer sufficient just
to develop legislation and for people to automatically accept this legislation
just because it was democratically decided by Parliament. We need to promote
ethical participation - through discussion - in the development of collective
and individual governance. The groups from civil society, whether they oppose
the “behind-closed-doors” globalization process or support promoting fair
and sustainable development, are asking how we can collectively develop a
joint-participation normativity process, in which collective governance and
individual governance are mutually supportive.
discussion brings us to the conclusion that public policy on illegal drugs, specifically cannabis, ought to be based
on an ethic of reciprocal autonomy and a resolve to foster human action. It
ought to defer to criminal law only where the behaviour involved poses a
significant direct danger to others. It ought to promote the development of
knowledge conducive to guiding and fostering reflection and action.
Professor Line Beauchesne, witness appearing before the Special
Committee on Illegal Drugs, Senate of Canada, Second session of the
Thirty-sixth Parliament, October 16, 2000, Issue 1, pages 33-36.
They are: R. Macdonald, Professor of Public and Constitutional Law,
McGill University, The Governance of
Human Agency; A.P. Pires, Professor of Criminology, University of
Ottawa, Legislative Policy and
“Two-Sided” Crimes: Some elements of a pluridimensional theory of the
criminal law; T. de Koninck, Professor of Philosophy, University of
Laval, The Role of Knowledge and Culture in Public Policy on Illegal Drugs;
and J.F. Malherbe, Professor of Social Work, Université du Québec à Montréal,
The Contribution of Ethics in Defining
Guiding Principles for a Public Drug Policy. These texts are available
on line at: www.parl.gc.ca/illegal-drugs.asp.
On this subject, see the work of the German sociologist and
philosopher Jürgen Habermas, particularly De
l’éthique de la discussion. Paris : Cerf. The author presents
the process of ethical discussion as follows: Through debates, all
participants must acknowledge that, in principle, each person participates
fully, freely and equally, in the cooperative search for truth in which the
unlimited strength of the best argument will carry the day. Practical
discussion is considered as a demanding form of argumentative training of
the will, which (…) must guarantee, through the universal presuppositions
on communication, the fairness of all possible normative agreements
negotiated under these conditions. (…) Furthermore, practical discussion
is considered to be a process of inter-comprehension in which, due to its
own nature, all participants ideally adopt a role. Therefore, the individual
and ideal adoption of a role played by each person in particular and privatim
is transformed into a practical public operation by all, intersubjectively
and in common. (pages 18-19).
There is an interesting discussion on the subject in Professor Pires:
pages 41 passim.
Evidence by Dr. Harold Kalant, professor at the University of
Toronto, before the Senate Special Committee on Illegal Drugs, Senate of
Canada, first session of the thirty-seventh Parliament, issue no 4, pages 69
Based on a very eloquent exchange between a philosopher and a
neurobiologist: Changeux, J.P. et P. Ricoeur (1998) What makes us Think (translation of: Ce qui nous fait penser. La
nature et la règle. Paris: Odile Jacob), pages
work is being conducted at a time in history, in a given historical period. That
history is not simply a field external to us, something outside us, exercising
no influence on what we do. It is closely bound up with our actions, influencing
them in various subtle ways. At the same time, because we are living through and
making that history, we do not have the necessary distance from it to
reconstitute all its elements or to understand all its implications. However, to
re-situate our work in its complexity and uncertainty, we have a responsibility
to attempt to ascertain certain elements of this history-in-the-making. This
brief chapter is an attempt to identify certain historical elements we think are
relevant to our effort. We have identified six elements which we have divided
into two spheres, international and national, recognizing that those two spheres
necessarily interact with each other. The international elements are: the
globalization of markets and the trend toward economic and even political
integration; the spiralling increase in discourse on safety and the drug-crime
equation; and the aspects of change becoming apparent in certain countries with
regard to drug policies. The national elements are judicial activism, which is
reflected in significant court decisions at least with regard to the therapeutic
use of cannabis; the adoption of the National Strategy on Community Safety and
Crime Prevention; and the fight against organized crime.
two decades have witnessed significant changes in the international arena and in
the structure of national states. The idea here is not to write the history of
or to analyze this period. A few of those changes, however, have had a definite
impact on drugs.
the early 1980s, with market deregulation, we have witnessed a globalization of
trade and a more significant degree of continental integration. The end of the
Cold War and the disappearance of the Soviet Bloc, as well as the opening of
China to capitalist markets, have merely increased the pace of these movements.
As a result, we have seen, in particular, an increasing degree of integration of
the European economy under the Maastricht accords and in the North American Free
Trade Agreement between Canada, the United States and Mexico.
same time, rapid technological change, particularly through the Internet and
satellite communications, has helped to further open borders, although in
varying ways and to various degrees, depending on the level of development in
the various countries, to the movement of goods and capital. Similarly, the
increase in population flows and travel has led, at times by default or even
against the will of certain states, to freer movement of people.
changes have had a significant impact on the illegal drug markets. The opening
of markets and borders has of course created new money laundering opportunities,
while making it more difficult to monitor borders and transportation. However,
we all too often forget certain effects of macro-economic policies governing
global capital flows and expected structural adjustments, particularly in
developing countries. One study produced for the United Nations International
Drug Control Program clearly shows this.
to achieve (balance of payments) stability often aim to reduce the external
deficit by reducing the level of domestic consumption. Macroeconomic
stabilization often requires a reduction in expenditure by government and/or the
situations of reduced money growth, an infusion of hard currency can bolster a
country’s foreign reserves, ease the hardship associated with
expenditure-related policies, and moderate foreign indebtedness. Drug money
could in this light be perceived as a potentially stabilizing force, a source of
capital without the strings of conditionality attached. Clearly, there are
"benefits" which accrue to countries which serve as reservoirs of the
revenues from the international drug trade. 
addition, the trend toward the privatization of entire sectors of national
economies, particularly in Eastern European countries after the fall of the
Berlin Wall, but also in a number of Latin American and Asian countries, in an
environment in which internal regulation measures are weak and bank credit
tight, fosters the inflow of money from organized crime particularly through the
laundering of drug money. It has been observed moreover that the concentration
of industrial production in those countries is not necessarily reduced following
privatization, thus further favouring penetration by organized crime.
also too often forget the role of investors from the developed countries, where
the push for deregulation and market liberalization originates. In those
countries, as Campodònico has noted, "(r)are
indeed are prosecutions against drug traffickers or financial institutions of
the industrialized world, which is precisely where most of the proceeds of drug
trafficking are kept."The result is a kind of dual discourse in which the necessity of
liberalization of capital for multinationals makes it impossible to distinguish
between clean and dirty money. The example of Peru developed by Campodònico and
that of Russia examined by Keh show striking structural similarities.
of the Cold War also meant that the countries allied to the Soviet Bloc, or
internal guerrilla groups, had to turn to other sources of financing. This is
the analysis of the Geopolitical Drug Watch and its founder Alain Labrousse,
who appeared before the Committee on May 28, 2001, citing the example of
happened in Kosovo is a good example in this regard. The creation of the KLA was
financed by intense heroin traffic from Istanbul. The heroin was sold in
Switzerland to buy Kalashnikovs and handguns. They were more or less freely
available and were stored in the Albanian part of Macedonia. 
though to make the connection with the perverse effects of liberalization and
the involvement of macroeconomics, Mr. Labrousse wrote in an earlier book:
estimates, drug trafficking in the world generates between 420 and 577 billion
francs in business annually. The growing role that these funds play in the
democratization and economic restructuring process is leading to an explosion in
drug production and trafficking in Asia, Africa and the East. It is this
windfall, drawn on by local powers of all kinds, that fuels nationalist, ethnic
and religious conflicts in the Third World and countries of the former Communist
Bloc. Drugs, an economic issue and a tool of power, are now a given in
international relations. Apart from a few major traffickers, the banking systems
of the rich countries, the IMF and the major international organizations are
other analysts, Mr. Labrousse observes that the developed countries are not
immune to criticism since they "close their eyes" when their
interests, particularly strategic and economic, are at stake.
[Translation] An incident occurred and was reported by the press when the international
financial action group prepared a list of countries suspected of engaging in
money laundering; it did not include either the Anglo-Norman island of Jersey or
the Principality of Monaco, which surprised everyone. It was subsequently
discovered that France and England had negotiated with each other to ensure
neither appeared on the relatively infamous list.
also the case of European interests in Morocco and Africa more generally, as
well as American interests elsewhere, in tax havens.
of the 2001 report of the International Narcotics Control Board (INCB), a UN
agency responsible for monitoring implementation of international drug control
treaties, concerns the effects of globalization and new technologies. The agency
writes that, apart from their "innumerable benefits" globalization and
new technologies have had perverse effects: undermined cultural identities,
political and social itemization, marginalization and growing poverty in certain
sectors. According to the Board, "these
disparities are exploited by drug dealers and traffickers in their attempts to
develop new markets. Moreover, in the course of the last decade, the growth in
trade and financial activity has provided criminals with greater possibilities
for concealing the illicit transfer of goods such as internationally controlled
drugs and precursor chemicals and for disguising the proceedings therefrom."
According to the report, drug traffickers use new technologies to enhance the
effectiveness of product delivery and distribution, to protect themselves and
their illegal activities and to commit conventional offences using new methods
or to commit new types of offences.
Among other things, the Board also notes:
Inter-American Drug Abuse Control Commission noted for 1999‑2000 that the
Internet had become the most widely used medium for expanding the production of
synthetic drugs in some countries of that region;
the International Criminal Police Organization (Interpol), in 2000, over
1,000 Web sites world-wide offered to sell illicit drugs, mostly cannabis;
recourse to electronic means of financial transfer, together with a massive
growth in the volume and speed of monetary flows, lead to reduced capability for
detecting illicit capital movements; and
Action Task Force on Money Laundering (FATF) has warned that there are three
characteristics of Internet use that could aggravate certain conventional
money-laundering risks: ease of access, depersonalization of contact and
rapidity of electronic transactions.
short, while the search for greater coherence, and indeed for better
predictability of international markets, is highly promising, particularly as
regards the developing countries, it also has untoward effects, regardless of
all other geopolitical considerations. Moreover, these characteristics also
afford “unexpected” benefits… for organized criminal groups.
same period, in various Western countries, a preoccupation for domestic security
has gradually arisen in response to the perceived or actual increase in crime
and to the public's feelings of insecurity. The effects of this have been
observed in election campaigns based on law and order and in a shift toward
measures considered repressive by some, such as zero-tolerance policies.
regard to drugs, this social discourse has had two main components. The first,
starting in the early 1980s under Ronald Reagan's presidency, was the
"war on drugs", which went far beyond U.S. borders. The second,
starting in the late 1980s, an attitude increasingly emerged that equated drugs
on drugs made it possible to allocate unprecedented resources to the effort. It
was at this time, it will be remembered, that Canada launched the first phase of
its anti-drug strategy with a budget of $210 million over five years.
In its "war on drugs" the United States allocated 17 times that
amount, increasing federal spending alone from $100 million in the early
1970s to more than $17 billion in 2002. The combined spending of the
federal government and the states on the war against drugs was estimated at more
than $40 billion in 2002.
As a result, that war led to a quadrupling of the American prison population,
from 500,000 inmates in the early 1980s to more than two million in
the late 1990s.
the 1990s, corrections constituted one of the fastest growing line items in
state budgets. On average, corrections consumed 7 percent of state budgets in 2000.
Today, it is costing states, counties and the federal government nearly $40 billion
to imprison approximately two million state and local inmates, up from $5 billion
in combined prison and jail expenditures in 1978. Twenty-four billion of
that was spent on the incarceration of non-violent offenders. Despite the modest
recent decline in state prison populations, the massive growth in state
prisoners over the past two decades has meant that one
out of every 14 general fund dollars spent in 2000 was spent on
prisons. (…)The expansion of
America’s prisons has been largely driven by the incarceration of non-violent
offenders. The percentage of violent offenders held in state prisons declined
from 57 percent in 1978 to 48 percent in 1999. From 1980 to 1997, the
number of violent offenders committed to state prison nearly doubled (up 82
percent), the number of non-violent offenders tripled (up 207 percent) while the
number of drug offenders increased 11-fold (up 1040 percent). 
Canada, as will be seen in Chapter 14, while the overall crime rate has
been declining regularly in the past 10 years, the percentage of
drug-related incidents has constantly increased, and the overall prison
population has remained stable. There are even grounds to suggest that the
percentage of inmates with addiction-related problems has in fact risen.
discourse has resulted in a host of national and international measures, in
particular increased policing powers in the war against drugs in various
countries, a reinforced international police infrastructure, use of the war
against drugs in international diplomacy and its reflection in UN proceedings,
particularly at the United Nations' extraordinary session on drugs in 1998.
other aspect of the debate is the drug-crime equation. For a significant
proportion of citizens, drug use is associated with crime, when it is not simply
reduced to one of its major causes. Witness the following comments:
cannot continue to apply policies and programs that do not deal with the root
causes of substance abuse and attendant crime. 
countries that have adopted permissive policies toward drug use, violent crime
and organized criminal activity have increased proportionately to the drug
social harm from other illicit drugs (such as cannabis - ed.) presents a
different picture. In some communities or neighbourhoods across the country, the
harm caused to innocent victims of violent crime and property crime is very
great. (…) This results from drug-addicted users committing crimes to get
money to feed their habit. 
rooted in perceptions and attitudes, this belief, which is discussed later in
Chapter 6, and which research data support only in part, has resulted in a
series of measures including the creation of special drug treatment courts and
the introduction of treatment orders for offenders with known dependence
problems, the spread of urine testing programs in the work place and in prisons,
as well as the remodelling of socio-community intake systems.
association of drugs and crime sprang from fertile ground, for a number of
reasons: changes caused by globalization and the realignment of the role of the
state, which explain at least in part the increased social and economic
inequalities between North and South, but also within countries, in the North
and in the South; the increased insecurity of general living conditions
following the 30 years, from 1945 to 1975, of unprecedented prosperity and
employment security; divisions within communities caused by uncertainty and
inability to manage mixed populations. For all these reasons the increase in
"ordinary" crime (break and enter, car theft, vandalism and so on) has
become the perfect metaphor for the insecurity of living conditions. Being an
easy target that has considerable, very real impact on everyday life in
neighbourhoods already subject to other social and economic problems, minor
crime now elicited a stern, repressive response. Hence, in all Western
countries, the number of prison terms and length of sentences increased starting
in the mid‑1980s. In addition to this collective security
"crisis", there was a division between generations, as a result of
which youths as a group came to be viewed as a source of concern, if not simply
potential criminals. For example, during that period, Canada experienced an
unprecedented increase in its reliance on detention for minors, placing it at
the top of the list of industrialized countries in that regard.
Since young people are the principal drug users, the rest of equation was
the advent of AIDS in the 1980s helped to cast doubt on prohibitionist policies
on illegal drugs. Toward the end of the decade, it was discovered that
intravenous drug users had a high rate of HIV and other pathologies such as
hepatitis. In fact, intravenous drug use was the second leading cause of
infection among men, after homosexual and bisexual practices, and the second
leading cause as well among heterosexual women.
Repressive policies, based on prohibition of use, do not make it possible to
adequately inform users or to adopt risk reduction and preventive measures, such
as needle exchanges or supervised injection sites. The increase in harm
reduction practices in a number of countries would be based on this new reality.
creation of agencies monitoring illegal drug use trends was another factor in
the questioning of drug policies. Until the mid‑1980s, the U.S.A., England
and Australia were virtually the only countries with systems for regular and
repeated epidemiological surveying of drug use trends in the population.
Starting in 1993, the European Union developed its tools to monitor trends in
use and policy responses with the establishment of the European Monitoring
Centre for Drugs and Drug Addiction and its focal points in individual EU
countries. This regular monitoring system showed, among other things, that drug
use trends may not vary so much with public policies as with social, cultural
and symbolic factors.
some states began to question their public policies on the basis of impact
assessment studies. That was the case in particular of Australia and Switzerland
as well as certain American states. Apart from the often emotional rhetoric, it
was discovered in those studies that, in addition to having little impact on
drug use, policies had significant untoward effects and high economic costs. It
was moreover the results of certain cost benefit studies that led California and
other U.S. states to review their highly repressive approaches (involving, for
example, automatic incarceration on the third offence, whatever it might be).
national legislation on illegal drugs, particularly cannabis, did not in fact
change, there was nevertheless a distinct trend toward questioning practices,
particularly legal practices, and seeking alternatives while still complying
with the international conventions. That was the case of Spain, Italy, certain
Australian states, Belgium and, more recently, Portugal and Switzerland.
identified three major causes of change in Canada over the same period which
have had at times paradoxical effects: the judicial activism resulting from the
coming into force of the Canadian Charter of Rights and Freedoms in 1982, the
adoption of the National Strategy on Community Safety and Crime Prevention and
the fight against organized crime. Since we will be discussing each of these
causes more fully in subsequent chapters of this report, we will only briefly
sketch out the broader context here.
regard to cannabis, there is undoubtedly no better example than the decision by
the Ontario Court of Appeal in the R.
In that case, the Ontario Appeal Court considered the constitutional validity of
the prohibition against marijuana under the Controlled Drugs and Substances Act in the context of its use for
medicinal purposes. The Court unanimously held that Terrance Parker's
allegations that the prohibition violated his fundamental rights under section 7
of the Canadian Charter of Rights and Freedoms were founded. Rosenberg J.A.,
writing for the majority, found that Mr. Parker needed marijuana to control
the symptoms of his epilepsy and that the prohibition against marijuana
possession was accordingly unconstitutional. The Court thus held that the
statutory provision was null and void. However, they suspended the declaration
of invalidity for one year, thus giving the government time to amend the act
accordingly. In July 2001, as a result of that decision, the government made
regulations circumscribing the use of cannabis for medicinal purposes.
judicial decisions altered the applicability of drug legislation in various
ways, particularly regarding police powers. Certain of these decisions are
briefly reviewed in Chapters 14 and 15.
speaking, it has been observed that, since the Charter came into force, the
courts have played an increasingly significant role in Canadian political life,
and the drug issue has not fallen outside the scope of this judicial activism.
Moreover, a decision on the issue of the use of cannabis for non-medicinal
purposes is to be rendered by the Supreme Court of Canada in the coming months.
as a result of the work of the National Crime Prevention Council, the federal
government introduced the National Strategy on Community Safety and Crime
Prevention. The purpose of this national strategy, originally allocated an
annual budget of $35 million, which increased to approximately $65 million
this year, is to prevent crime through social development actions in the
communities by taking action in particular on risk factors among children and
youths. While the Strategy does not specifically mention prevention of drug use,
a certain number of its projects and activities have focused on that issue in
Centre has seen fit to fund two special drug treatment court pilot projects, in
Toronto and Vancouver, for the purpose of preventing repeat drug abuse and
related criminality. The Centre also supports an initiative of the Federation of
Canadian Municipalities to introduce drug-free communities in a certain number
of cities. It is also supporting the evaluation of alternative measures programs
for youths accused of cannabis possession.
is one legal subject that has given rise to extensive public debate, led to the
passage of new legislation granting greater powers to police forces and resulted
in spectacular police operations and no less spectacular trials, it is organized
crime, in particular criminalized motorcycle gangs in Quebec, the
Italian-Canadian Mafia in Montreal and the Asian heroin rings on the West Coast.
Parliament passed Bill C‑95 granting police officers more effective
tools for investigating and prosecuting individuals taking part in gang
activities. Four years later, three problems led the government to propose
amendments to the Criminal Code and
other statutes: the problems involved in implementing the act, the growing
influence of organized crime in Canada and the illegal activities committed by
police officers in undercover operations. In 1999, in passing Bill C‑51
(an omnibus bill amending the Criminal
Code), Parliament granted immunity from prosecution to police officers who
had to commit offences related to money laundering in the course of an
investigation or in performing other duties. According to the government, the
purpose of that amendment was to support police officers in the fight against
organized crime and money laundering.
addition, on October 19, 2000, the Sub-Committee on Organized Crime of the
House of Commons Standing Committee on Justice and Human Rights tabled a report
proposing a series of amendments that could be made to the Criminal Code to facilitate the fight against criminal
organizations. The Sub-Committee began its work in April 2000, and, in view
of the nature of the subject under study, its members decided at the outset to
perform their work in camera. Among other things, the Committee recommended that
the Criminal Code be amended in such a
way as to group together all provisions concerning activities relating to
organized crime in a specific part entitled "Organized crime, designated
substance offences, gangs and money laundering". A number of the
Committee's recommendations were incorporated into Bill C‑24, which
received Royal Assent in December 2001.
considerations of the global environment help put the drug issue in context.
Always considered as a public security question, this issue more fundamentally
concerns the upheavals societies are currently experiencing as a result of
globalization. The place of drugs in those societies, which are shifting
painfully from the modern to the post-modern world, attempting to reinvent
society after individual destiny, so central to the cultural
"revolutions" of the 1960s, has replaced family and collective
destiny, raises questions about the boundaries of the individual and his
relationship to others and about the very possibility of community given the
significance of the individual. As the sociologist A. Ehrenberg has
[Translation] (…) drugs appear as the condenser of uncertain responsibility. For
democratic societies, it is the opportunity for a consideration of the limits of
private freedom, that is to say of the tension between minimum contact with
one's self, without which one cannot enter into relations with others, and
minimum distance from self, without which one cannot make a society. 
another way, this is also what B. Alexander said in a brief he submitted to
the Senate Committee:
western society is now based on free-market principles which mass-produce
dislocation, and because dislocation is the precursor to addiction, addiction to
drug use and to other substitute life styles within western society is not the
pathological state of a few, but, to a greater or lesser degree, the general
condition. Because free-market society increasingly provides the model for
globalization, addiction is becoming more and more prevalent everywhere on earth
be seen, the drug issue cannot simply be raised in terms of criminalization or
decriminalization because it refers to much deeper societal issues relating to
the role of government of the self in a context in which political government of
the community is changing, and to the relationship between the two. Reducing the
drug issue to a question of more or less repressive or more or less liberal
criminal legislation is to rule out broader questions and to play the game of
the particular interests of institutions which have every interest in reducing
the figure of the addict to that of the “other”, the deviant, the
pathological case, and drugs to mere illegal drugs, whereas the faces of drugs
are many and diverse. As the International Narcotics Control Board states in its 2000 report,
trafficking in licit psychoactive drugs and their increased use are, in many
respects, much more disturbing phenomena than the illegal drug market. There is
a great risk that we will mistake the tip of the iceberg for the iceberg as a
whole and allow ourselves to drift away on notions as simplifying as they are
dangerous for a true public policy on drugs.
Keh, D.I. (1996) Drug
Money in a Changing World. Economic Reform and Criminal Finance. Vienna:
UNDCP, technical paper no. 4.
Campodònico, H. (1996) "Drug trafficking, laundering and
neo-liberal economics: Perverse effects for a developing country." in
Dorn, N. et al. (eds) European
Drug Policies and Enforcement. London: Macmillan Press, page 231.
Senate of Canada (2001) Proceedings of the Special Committee on
Illegal Drugs, Ottawa: Senate of Canada, Issue No. 3, page 27. The
reports of the OGD may also be consulted at: www.ogd.fr.
Labrousse A. and A. Wallon (1993) La Planète des drogues: organisations criminelles, guerres et
blanchiment. Paris: Seuil.
On this point, see, for example, the work of Wacquant, L. (2000)
Les prisons de la misère. Paris.
McNamara, J.D. (2000) "Commentary: Criminalization of Drug
Use." Psychiatric Times, Vol. XVII,
Greene, J. and V. Schiraldi (2002) Cutting Correctly: New Prison Policies for Times of Fiscal Crisis.
Washington, D.C.: The Justice Policy Institute. See also Schiraldi, V.,
Holman, B. and P. Beatty (2000) Poor
Prescription: The Costs of Imprisoning Drug Offenders in the United States. Washington,
D.C.: Justice Policy Institute. Available on line at: www.cjcj.org.
McCaffrey, B.R., Remarks before the First Annual Criminal
Justice and Substance Abuse Conference, Albany, New York, June 29,
Testimony of Mr. Dale Orban, for the Canadian Police
Association, before the Senate Special Committee on Illegal Drugs, in Senate
of Canada, Issue No. 3, May 28, 2001, page 49.
Testimony of Mr. Michael J. Boyd, for the Canadian
Association of Chiefs of Police, before the Senate Special Committee on
Illegal Drugs, Senate of Canada, Issue No. 14, March 11, 2002,
On this point, see, inter alia,
the work of Bala, N. (2002) Juvenile
Justice Systems. An International Comparison of Problems and Solutions.
Toronto: Thompson Educational Publishing.
The Committee report is available in
PDF format(Portable Document Format). These type of electronic documents
retain the original look and feel -- complete with text, graphics, photos and colour -- of
their printed versions, and can be disseminated independently of computer platform or
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to view, navigate through and print any PDF document.
If you need more information on how to use this format or require a reader for your
platform, you may wish to visit Adobe Systems Incorporated.