[39] Ibid., page 22.

---

Chapter 12

The National Legislative Context

Drugs have been prohibited for fewer than one hundred years; cannabis for slightly more than 75. It is tempting to think that the decisions made over the years to use criminal law to fight the production and use of certain drugs are in keeping with social progress and the advancement of scientific knowledge about drugs.  Pre-twentieth century societies were less “advanced” and did not have the sophisticated tools that medicine, molecular biology and biochemistry, psychology and the cognitive sciences have provided over the course of this century of technological revolution. The prohibition measures adopted by parliaments, and on a wider scale, by the international community were therefore a more or less accurate reflection of the knowledge gradually acquired by scientists. The gradual conquest of territory occupied not so long ago by the irrational and its gang of charlatans and other shamans continued, for the greater good of humanity. As proof, phenomenal  technical advances in medicine and pharmacology over the course of this century have resulted in increased longevity and decreased infant mortality in Western countries.

But is this really the case? Is civilization one long march towards progress, towards greater, and increasingly invincible, rationality? If we consider the state of the planet and the alarms sounded by more than one scientist today, we may have our doubts. From a social standpoint, the twentieth century has not brought fewer wars, less destruction, or more equality between people than previous centuries. With respect to drugs, is the legislation a more or less faithful translation of scientific knowledge for the greater good of all? Can we discern a rational structure in the national laws and international conventions that govern certain drugs and other substances? Are they based on knowledge of the effects of drugs on the psyche and human behaviour? Do they reflect the desire to ensure the well-being of the public?

The history of legislation governing illegal drugs in Canada, like the analysis in Chapter 19 of the structure of international conventions, suggests that this is highly doubtful. We do not deny that knowledge has advanced; the second part of our report testifies to this. But scientific knowledge itself is a structure that develops in a given historical context and responds to paradigms in the way problems are posed and research is conducted. The dominant scientific positivism is a temporary result in the long evolution of knowledge. It is not the “end of the story”. Within the scientific process, a “selection” is made of pertinent questions and ways in which to ask them, such that any question is not necessarily a good question and certain ways of answering are more acceptable to the community of researchers.

Moreover, legislation adopted by parliaments is influenced at least as much by prejudices and preconceptions resulting from “pop science” as by partisan, personal and international considerations. In this sense, the parliamentarian is no different from any other citizen, as we pointed out in the report’s general introduction.

We were told several times that we could not compare the effects of cannabis to those of alcohol or tobacco. And yet, even at the risk of being unreadable if not unacceptable to the community, public policy on “drugs” must propose some rationale of the type: “this is prohibited, because…, and this is not, because…”. Most of the time the “reason” – or the justification? – is presented as risks or dangers on the one hand and as medical usefulness on the other. Thus, under the current control regime, because of the risks or dangers they are believed to present, some drugs must be regulated, that is, they are not sold over the counter. When they present a danger and they have no known medical application, the regulatory controls prohibit their manufacture, production, growth, use, possession, etc., entirely. That is the case with the legislation and conventions governing opium and its derivatives (heroin), the coca plant and its derivatives (cocaine, crack) and the cannabis plant and its derivatives (marijuana, hashish). When the drug presents a danger but is medically useful, it is subject to more or less severe regulatory controls. That is the case with benzodiazepines and other powerful medications, which are sold by pharmacists and cannot be obtained without a medical prescription. Other drugs present a “health risk”: nicotine, alcohol, as well as several other over-the-counter drugs. The packaging must indicate the risks (except for alcohol – which is very telling) so as to “warn” the user.

To what extent is such reasoning really rational?

 

Three researchers at the University of Toronto (Lazarou, Pomeranz, Corey, 1998) have estimated that correctly prescribed legal medications kill, on average, 100,000 people a year in North America. Although for methodological reasons that figure was cut back by one half or two thirds, it nonetheless illustrates the enormous losses of human life that go undetected by any monitoring system, including the legal system. No one thinks that this danger should be avoided by prohibiting medical prescriptions - the risky decisions made by physicians - or denying the "right to use" medications. Why? Because we do not see how that solution could be preferable to the solution of taking risks responsibly. Knowing that this problem exists, we will try to find other solutions, such as better quality control for the products, etc. Nor (fortunately) do we consider assigning criminal responsibility to physicians for taking the risk of writing a correct prescription, knowing that even correctly prescribed medications can cause death. [1]

 

The 2001 report from the International Narcotics Control Board indicates a “worrisome” increase in the abuse of various prescription drugs in the United States and notes that several of these medications are found on the black market, in particular through the Internet.[2]

Tobacco use causes more than 400,000 deaths a year in the United States, and approximately 45,000 in Canada. As for alcohol, it is linked to physical aggression and violence, especially marital, and to road accidents, and its abuse causes thousands of deaths each year.

 

It is a mistake to see illegal drugs in a separate category from the legal drugs insofar as the history of criminalization is concerned. We have compounded that difficulty today because we do not tend to see the legal drugs in the same limelight as the illegal drugs. To demonstrate that, we use the phrase "alcohol and drugs" as if alcohol were not a drug, as if police officers who go to domestic disputes do not know already that the major drug problem they will likely find at that dispute is alcohol abuse, as if we do not already know that more than 70 per cent of all homicides involve alcohol abuse as a critical factor. For us to pretend that the consumption of alcohol is on a morally different plane from the consumption of illegal drugs seems to be a kind of cultural folly that speaks volumes about the cultural blinders we wear as we go about our business in everyday life. [3]

 

Is the rationale of the system of controls acceptable in the eyes of civil society, users as well as abstainers? What criteria motivated the legislators’ decisions? For that matter, were there any criteria? What motivated parliamentarians from Canada and elsewhere to prohibit certain substances, to control access to certain others, and to permit still others to be sold over the counter?

Knowing where you have been helps you to understand where you are going.  That is the goal of this chapter, which retraces the evolution of Canadian drug laws from 1908 to the present day.[4]  We have identified three legislative periods. The first, and longest, spans the years from 1908 to 1960. That is the period of hysteria. The second, which is much shorter, runs from 1961 to 1975 and is the period involving the search for lost reason. Lastly, the contemporary period, which really starts at the beginning of the 1980s, is the period of forging ahead regardless. As it would be too much to describe the different sections in the various bills adopted over the years, we have appended a table that explains and presents the clauses of the legislation adopted from 1908 to 1996 on the control of narcotics.

 

1908-1960:  Hysteria

 

At the time of  the Shanghai Conference on opium  in 1909[5], European societies had known for hundreds of years about opium, coca leaves, and cannabis, having discovered them through contact with other societies. These “drugs” were used in medical practice, as well as by a certain worldly or artistic elite, and especially as a commercial tool by colonial powers. In the midst of advances in chemistry, the 19^th century saw the arrival of a large number of new drugs–primarily opiate-based–and their enthusiastic adoption by physicians, pharmacists, general store owners and traveling salesmen as miracle elixirs. What happened so that Canada in 1908, and the seven countries gathered in Shanghai in 1909, decided to prohibit this “drug”? At least four factors figured in the game of chance and necessity that led to prohibition.

First of all, geopolitical issues, commercial dealings with China in particular and the political stability of the Middle Kingdom in general, played a considerable role, as shown in Chapter 19. But from a domestic standpoint, these factors do not explain everything, especially since the concerns of the Dominion of Canada and its people about international politics were still relatively minor.

Initially, physicians noticed, sometimes from their own experience as a user, that use of opium derivatives resulted in a certain degree of dependence and health problems.[6] At first, these cases of drug addiction were limited to the leisured classes and to artists, who were rarely labeled as “delinquents”. However, the increasing availability of these drugs[7] and the subsequent development of dependence problems within the working classes had a profound effect on public opinion about these drugs. There was no longer talk of “the ill” but rather of “delinquents” who [translation] “could not face up to the demands of life as a good citizen and worker”[8]. A few doctors, worried about protecting their monopoly, did not hesitate to demand laws from the government to restrict the use of drugs produced by pharmaceutical companies and thus avoid the propagation of this “scourge” that threatened the foundation of North American society.

Even though the use of opium did not result in a social crisis before the beginning of the 1880s, whites who frequented Chinese opium dens were often seen as suspicious or dangerous. At the time, [translation]“Frequenting the Chinese quarter and its opium dens is seen by several moral groups as a preference for the foreign, as willingly straying from white Anglo-Saxon values. This judgment is even more severe where women are concerned.” [9]

Associated with the problem of alcoholism in the working classes, the question of the use of drugs then became the metaphor par excellence for the decay of western Judeo-Christian civilization, and the favourite theme of temperance leagues in the United States as well as Canada. Born in the 19^th century, these movements had a very strong religious basis, especially in the protestant ethic of responsibility for personal health through work and self control: [translation]“work and sobriety were valued as a means to avoid loss of production and to maintain the economic superiority of the white Anglo-Saxon race.”[10] Waging “war” against alcohol that causes male violence and adultery, against drugs that kill young people, and also against prostitution, cigarettes and gambling suited these movements perfectly.[11] From community support groups designed to help those who wanted to break their bad habits, these leagues transformed themselves into powerful pressure groups demanding the complete prohibition of alcohol first, and then supporting the prohibition of opium and other drugs.

The third factor, closely related to the previous two, was population movement and especially Chinese immigration – it would be more accurate to talk about the importation of Chinese workers. The Chinese had immigrated to the United States in the middle of the 19th century to work in the mines and build the railroads in the American West. Once these large projects were completed, certain labour disputes broke out on the American West Coast, pitching the Chinese, who offered cheap labour to owners of agricultural enterprises, against powerful unions, largely composed of white workers. Following the appearance of the union-based anti-Chinese movement and legislation that prevented any further Chinese immigration, many Chinese had no choice but to develop the opium trade in the ghettos where they lived in large American cities. The temperance movement did not hesitate to adopt the racist feeling driving certain segments of American society in order to denounce the use of opium, seen as a scourge that promoted immorality, crime and the decline of the white Anglo-Saxon race. It was in this context of social unrest, although limited to the American West Coast, that the first American legislation governing the opium trade was adopted.

In Canada, in the middle of the 19th century, the Chinese became a major source of manpower for building the Canadian Pacific Railway. As the economy of British Columbia diversified, these immigrants found work in fish processing plants, coal mines and the forestry industry, although the jobs available to them remained limited. This worsened the competitiveness of the local labour market and increased their marginalization in society.[12] Beginning in the 1880s, the massive influx of Chinese juxtaposed with the economic slowdown brought on by the end of construction of the Canadian Pacific railway and the economic recession that marked the end of the 19^th century and the early years of the 20^th century caused several union and popular demonstrations demanding the end of Chinese immigration, the source of British Columbia’s economic and moral problems.

According to Giffen, this fear was not justified since white immigration from other regions of Canada more than offset the increase in British Columbia’s Chinese population. In fact, the proportion of Chinese in the province declined from 20% at the beginning of the 1880s to less than 6% in 1921[13], just before a clause in the Opium and Narcotic Drug Act was adopted authorizing the deportation of an immigrant found guilty of a drug-related offence.

But,

 

Tolerance for the habit of smoking opium lasted only as long as British Columbia’s tolerance for the Chinese. In the early years of the twentieth century, both a labour surplus and anti-Asian resentment developed. The Asiatic Exclusion League was formed, supported by an amalgamation of the Vancouver Trades and Labour Council and federal Conservative politicians. Opposed to the Liberals’ immigration policies [under Sir Wilfrid Laurier], the league demanded an end to immigration from Asia, claiming that the “yellow peril” was about to “swallow” a white British Columbia. [14]

 

In fact, well before the development of this “social crisis”, the British Columbia government had tried to halt Asian immigration by adopting the Chinese Immigration Act in 1884, which imposed an annual tax of $10 on the Chinese and other Asians living in British Columbia and prohibited them from buying land belonging to the province. The federal government disallowed this Act, but in 1885 it created a Royal Commission to investigate Chinese immigration and this commission recommended imposing a $10 entry tax on every Asian immigrant. In 1885, as a result of public pressure, the federal government adopted the Chinese Immigration Act, which imposed a $50 entry tax that was increased to $500 in 1904, as many had criticized the fact that despite the imposed tariff, 20,000 Asians had immigrated to the country between 1889 and 1900.

A major incident in 1907 led the federal government to intervene in matters of Chinese immigration and labour disputes in British Columbia. During the year, a demonstration organized by the Asiatic Exclusion League and attended by more than 10,000 people, most of whom were union workers and members of the middle class, turned into a riot when the angry crowd headed into Vancouver’s Chinese district, attacking people and causing serious property damage. After convincing Prime Minister Laurier of the wisdom of compensating the Chinese, William L. Mackenzie King, then Deputy Minister of Labour, returned to Vancouver in the Spring of 1908, where he wrote a report[15] that would lead to the adoption of the Opium Act. Based primarily on moral, ethical, political, diplomatic and ethnic considerations, Mackenzie King’s report, rather than attacking labour disputes between white and Chinese workers, shifted the problem to opium use by Asian foreigners.

 

[…] the amount [of opium] consumed in Canada, if know, would probably appall the ordinary citizen who is inclined to believe that the habit is confined to the Chinese, and by them indulged in only to a limited extent. The Chinese with whom I conversed on the subject, assured me that almost as much opium was sold to white people as to Chinese, and that the habit of smoking opium smoking was making headway, not only among white men and boys, but also among women and girls. [16]

 

As in the United States, Chinese immigrants brought with them not only their labour but also their practice of smoking opium. They preferred this practice to the widespread habit of white workers of using alcohol and opiate-based drugs to cure illnesses and to momentarily forget their social and working conditions.[17] Thus the first opium den opened its doors in Vancouver in 1870. Some Chinese even opened factories to produce opium for smoking; the opium was then used in opium dens in Vancouver’s Chinese district or was simply sold to white clientele. As Professor Boyd mentioned during his testimony before the Committee: 

 

Over time, equal amounts of smoking opium were sold to whites as to Chinese. If you look back through the issues of Vancouver Province or the Victoria Times Colonist, you find advertisements. You do not find any expression of concern or anger about those smoking opium establishments, but you find advertisements. [18]

 

In 1883, there were three factories producing smoking opium in Victoria and in 1891, there were more than 10 opium dens in the Chinese districts of large cities in the Canadian West.[19] The surge in this industry was beneficial to the British Columbia government since it imposed a customs tariff on crude opium of 10% to 25%.

 

If I could turn back the clock 100 years to Vancouver, Victoria and New Westminster, I could show you opium-smoking factories which were started in the late 1870s and persisted for 30 years without complaint. The labour surplus and the depression in the first decade of the 20th century led to concerns that led to the original legislation. It is noteworthy that the Opium and Narcotic Drug Act of 1908 was introduced by the Minister of Labour. When he introduced the act, he said, "We will get some good out of this riot yet," referring to the anti-Asiatic riot in Vancouver in September of 1907.

Imagine, today, the idea of illegal drug legislation coming forward from the Minister of Labour because he or she is seeking to get some good out of a labour crisis on Canada's West Coast. The situation in California was similar. [20]

 

Even though the Royal Commission of 1885 did not recommend specific measures governing the production or use of smoking opium, it did indicate that smoking such a substance was a pagan practice incompatible with the lifestyle of a Christian nation.[21] According to Line Beauchesne, the crusade against opium that followed this report gradually resulted in a decline in opium smoking.[22] The results of an investigation conducted by the American Pharmaceutical Association in 1903 into drug use claimed that drug consumption was  widespread throughout American society, but involved two social groups more specifically: Chinese immigrants and Blacks. This study probably influenced some federal politicians and temperance movements that used similar arguments until the beginning of the 1930s to justify the prohibition of opium and other drugs.[23]

In short, while economic considerations were at the heart of anti-Asian feeling, temperance movements and religious groups took advantage of the situation to promote their views, not only in the immediate area of British Columbia but also across the rest of the country. These events drew the public’s attention to the “dangers” of opium for Canadian society.

 

Opium Act, 1908

In the House of Commons on July 10, 1908, the Minister of Labour proposed the adoption of a motion prohibiting: “the importation, manufacture and sale of opium for other than medicinal purposes.”[24] The motion was adopted without debate. The Minister introduced Bill 205, An Act to prohibit the importation, manufacture and sale of opium for other than the medicinal purpose. (Opium Act, 1908).[25] The first section of the Act prohibited the importation of opium without authorization from the Minister of Customs. Additionally the drug could be used for medical purposes only. The manufacture, sale and possession for the purpose of selling crude opium or opium prepared for use by smokers was also prohibited. Whoever violated these provisions could be found guilty of a criminal offence punishable by a maximum prison term of three years and/or a minimum fine of $50 and not exceeding $1,000. Even though it prohibited the use of opium, the legislation was aimed at opium dealers, most of whom were Chinese, and not users. The bill was given Royal Assent on July 20, 1908.

 

The Opium and Narcotic Drug Act, 1911

The enactment of the Opium Act led to the introduction of 8 new bills intended to make it both more restrictive and effective on January 26, 1911, Mackenzie King, who had just become the Minister of Labour, introduced Bill 97, an Act to prohibit the improper use of Opium and other Drugs (the Opium and Narcotic Drug Act, 1911).[26] During the deliberations on second reading, Mackenzie King gave three reasons for introducing the bill: the Shanghai Commission, the panic in Montreal caused by cocaine use and the need to grant special powers to the police to ensure that the Act could be enforced effectively. The Shanghai Commission had adopted a number of non-binding resolutions, including: putting a gradual stop to the opium smoking habit, with due regard to the specific circumstances of each country; prohibiting the use of opium and its alkaloids and derivatives (morphine, heroin, etc.) and other drugs for non-medical purposes; and prohibiting the export of these substances to countries that prohibited their use. 

No member raised any objections about the four drugs added to the Schedule to the Act, namely cocaine, opium, morphine or eucaine. Section 14 of the Act also provided that the Governor in Council had the power to order any alkaloid, by-product or drug preparation added to the Schedule when its addition was deemed necessary in the public interest–a power which still exists today. The justification given for this was that if the use of a new drug were to become widespread in society, it would be possible to add it more quickly to the Schedule than by having to enact new legislation.[27] Other provisions of the Act related to the use of opium, search powers granted to the police, orders for the confiscation or restitution of seized drugs and a reverse onus for cases of simple possession of drugs. The possibility of requesting that a higher Court issue a writ of certiorari with respect to prosecutions carried out under this Act was eliminated. 

The post-war period led to a string of major amendments to the offences, penalties, police powers and criminal procedure provided in the Opium and Narcotic Drug Act. There are several factors to explain this legislative ferment:  the concerns raised by Emily Murphy’s writings about the extent of the “scourge” of drugs in Canada[28]; the renewed conflicts between Whites and Asians in British Columbia; the mobilization of doctors’ and pharmacists’ associations to prevent the Act from infringing on their activities; the establishment in 1919 of the Department of Health and the powerful Narcotics Division (the predecessor of the current (Office of Controlled Substances), which were responsible for enforcing international conventions on drugs in Canada; the establishment in 1919 of the Royal Canadian Mounted Police (RCMP), responsible for enforcing the Opium and Narcotic Drug Act; the enactment of the Harrison Narcotic Act in the United States in 1914; and the mobilization of the international community to enforce the International Opium Convention (The Hague - 1912) imposed on a number of countries by the 1919 Treaty of Versailles.

 

The establishment of the narcotics division

The enactment of the Harrison Narcotic Act in the United States and the mobilization of the international community to enforce The Hague Convention quickly brought to light three major shortcomings of the Opium and Narcotic Drug Act, 1911.[29]

The first problem appeared when the time came to control drug imports and exports. The Act had only vague instructions concerning trading in drugs for medical or scientific purposes. That being the case, customs officials were reluctant to seize cargo containing opium or other drugs.

The second problem stemmed from the enactment in the United States of the Harrison Narcotic Act, which was similar to the Act passed in Canada in 1911. However, it imposed a system of licences issued to businesses by the federal government authorizing them to import or export drugs. This led to a significant demand for illegal drugs in the United States. As the supply of these substances in Canada exceeded consumer demand, traffickers quickly took advantage of this business opportunity and exported their surpluses to the United States. This had become so profitable that in 1918, a committee of the US Senate filed an official complaint with the Canadian government concerning drug trafficking.

The third and final problem stemmed from the fact that traffickers quickly found ways to avoid the provisions of the 1911 Act because its enforcement was not centralized within a single government agency. On the one hand, Customs was attempting as best it could to control legal trade in drugs whereas on the other hand, municipal police departments handled illegal trafficking, which was becoming increasingly sophisticated every year, requiring that new powers be granted to the police.[30]

The many amendments to the Act to deal with these problems were orchestrated in part by F. W. Cowan the first Chief of the new Narcotics Division (1919-1927) of the Department of Health, and in particular by Colonel C. H. L. Sharman, the former RCMP officer who succeeded him (1927-1946). Cowan quickly understood after becoming Chief of the new division that he would have to centralize control over both legal and illegal trade in drugs to ensure that the Act could be enforced effectively, thereby assuring the long-term survival of his organization. During his tenure, an impressive communications network was created, and by the end of the 20s, it included the other divisions of the Department of Health, the Department of Justice and the lawyers hired to prosecute drug offences, the RCMP, the media, municipal police departments, associations representing doctors and pharmacists, governments and agencies responsible for enforcing the laws of other countries, including the United States, and international narcotics control agencies established by the League of Nations.

Under Sharman’s impetus, the administration of information  from all of these participants was eventually conducted solely by the Division, and no longer by the Department of Justice or the RCMP. This made it possible for the director to have an overall picture of the narcotics situation, thereby making him an “expert” in the field.  A former official of the Division described Colonel Sharman as “a Czar running an empire of his own.”[31] His influence grew when the Division was placed under the authority of the Deputy Minister of Health. The reorganization fostered a closer and more direct relationship with the Minister and Members of Parliament, making it possible for him to short-circuit proposals from other divisions within the Department. And when the time came to add further offences, penalties, criminal procedures or new police powers in the 20s, the Division never hesitated to take advantage of the “panic” generated by the media in Vancouver, or Emily Murphy’s writings, to justify such amendments.[32]

From the standpoint of enforcing the Act, this structure was very useful. For example, up until the 50s, from the moment a police officer or a lawyer, anywhere in Canada, informed the Chief of the Division of a weakness in the Act, he would draft proposed amendments, pass them on to his network for rapid consultation, and if necessary, he would encourage the Minister of Health to introduce a bill to correct the problem situation. The federal drug bureaucracy as we know it today was born!

In such a context, the establishment of a network like this had a significant impact on the direction that would be taken by Canadian narcotics legislation:

 

 In short, the establishment of an administrative organization to enforce narcotic law had the unintended consequence of creating a centralized pressure group which had the motivation and influence to play a major role in shaping the future course of the legislation. This centralization of power and expertise together with the fact that the resources were directed mainly at a socially powerless group helps to explain the virtual absence of an effective criticism and alternative proposals for control from 1920 to 1950. [33]

 

Amendments to the Opium and Narcotic Drug Act (1920-1938)

Many amendments were made to the 1911 Act prior to an in-depth overhaul of the Act in 1938. It was during this period that cannabis was added to the schedule of the Act.

Amendments to list of substances in schedule:  Addition of cannabis

From 1911 to 1938, many drugs were added to the schedule of the Opium and Narcotic Drug Act. The 1911 Act was introduced to control only four drugs. In 1938, when the Act to amend the Opium and Narcotic Drug Act[34] was enacted, the schedule listed more than 15 drugs, including derivatives or salts, one of which was cannabis, added in 1923.

During a sitting of the Committee of the Whole in connection with a review of the 1923 Act, Minister of Health Henri-Séverin Béland simply said about the substance that, “There is a new drug in the schedule.” [35] That is how cannabis ended up in the schedule to the Act. According to Giffen, the circumstances leading to the decision remain obscure because, until 1932, the issue of the effects of cannabis on people’s physical, psychological or mental health had never been raised in Parliament. Giffen described the criminalization of the drug as a solution without a problem.

In the United States, beginning in 1890, some American doctors were worried that the potency of cannabis appeared to be variable and that individual reactions when cannabis was taken orally appeared to be unpredictable. Thus despite the continued use of much more dangerous drugs like barbiturates and opiates, cannabis was abandoned by doctors. At the beginning of the century, the discovery of the hallucinogenic nature of cannabis contributed considerably to its reputation as a dangerous drug. However, the people who wrote the Harrison Narcotic Act had not deemed it appropriate to subject it to the controls provided in the Act.[36] But in 1915, California became the first American state to prohibit the use of marijuana, and in the early 20s, marijuana had “become a major ‘underground drug’ traced to an influx of Mexican workers into Southern United States in the 1910s and 1920s.”[37] As with opium, labour disputes, the economic interests of big business and morality served as catalysts to create a popular movement in favour of the prohibition of cannabis in the United States, which led to the passage of the Marijuana Tax Act in 1937, prohibiting the use and production of cannabis.

Unlike in the United States, there were no reliable accounts of the non-medical use of cannabis in Canada before the 1930s.[38] And unlike California, Canada was not faced with an influx of Mexican workers. Why then was cannabis added to the Opium Act schedule?

In 1922, Emily Murphy referred to the harmful effects of cannabis on human behaviour in her book The Black Candle, in which she worked over most of the articles she had published in MacLean’s magazine. In the chapter entitled “Marihuana – A New Menace” she reported comments made by the Chief of the Los Angeles Police Department, who described the terrible effects of cannabis.

But Giffen’s research in the archives of the Department of Health indicates that these scare tactics, which were steeped in morality, were not behind the placing of cannabis in the Opium and Narcotic Drug Act schedule, particularly given that at the time, it was virtually unknown in Canada and its use was not a problem.[39] This is confirmed in section 7 of the 1932 Act, which amended a provision of the 1920 Act by allowing the manufacture, sale or distribution, without a permit, of medicines if they contained only small quantities of certain drugs listed in the schedule. In 1932, the measure would henceforth apply to cannabis. During parliamentary debate on  the introduction of this statute, the discovery of the existence of this drug appeared to elicit the interest of certain parliamentarians. During Committee of the Whole, MP Ernest Lapointe asked the Minister of Health, “What is cannabis sativa?”, and the Minister replied “Hitherto this was a drug which was not included in the list which might be used.  It is one form of the drug used in India which, I believe, goes under the popular name of hashish. There is no objection to the use of it ….”[40]

In short, it is remarkable that, over seventy-five years later, we should still not know why cannabis was placed on the list of prohibited drugs. On the other hand, no shortage of “reasons” were found in the years that followed.

Under the influence of American media campaigns, which were taken up by Canadian newspapers, and of horrifying accounts by police officers about young Canadians who were physically and mentally destroyed after using cannabis, the attitude of federal parliamentarians towards the drug would become less and less tolerant. The 1938 Act, enacted one year after the passage of the Marijuana Tax Act in the United States, was the end result of this “new panic”. Section 3 of the Act prohibited anyone from growing cannabis or opium poppy without first having obtained a permit from the Department of Health. The penalties for this new offence were the same as those provided for  trafficking in, and simple possession of, cannabis. This measure was unusual because Canada, for the first time, had climate conditions conducive to the growing and production of a drug, which it did not for the other drugs in the schedule.  An analysis of parliamentary debates shows that the Department of Agriculture conducted scientific experiments on industrial hemp by growing cannabis at the Experimental Farm in Ottawa and at another research centre near Montreal. A number of entrepreneurs in Ontario were still growing hemp. The 1938 Act put an end  to the practice.

Following the introduction of the Bill, Minister of Health Charles Power said in connection with section 3: “The proposed amendments deal to a considerable extent with the attempt which is being made by the department to control what, though it cannot be called a new drug, is a new menace to the youth of the country”.[41] Later, he said that it was very dangerous to smoke marijuana cigarettes. To demonstrate his comment, he cited a report prepared by Harry J. Anslinger, the first commissioner of the Federal Bureau of Narcotics, in which the drug was described as, “the assassin of youth ... one of the greatest menaces which has ever struck that country.”[42] The Minister of Health nevertheless said that the situation in Canada was not as serious as in the United States. The statements by the Minister of Health about the harmfulness of cannabis were not disputed by any members, even though no research was put forward in defence of the statements made.

The most important amendments to the schedule were made in 1932, following the enactment of the Act to amend the Opium and Narcotic Drug Act, 1932.[43] In the amendments, over 10 psychoactive substances were added to the schedule, both natural drugs (like coca leaf) and synthetic drugs. The inclusion of these substances coincided with the adoption in 1931 of the Geneva Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs, with Colonel Sharman making a major contribution to the negotiations leading to the signing of the convention. It was also at this time that Canada had begun to play an active role internationally with respect to drugs in support of the efforts of the United States and Harry J. Anslinger to better control international drug trafficking, particularly in the producing countries.[44]

During the debates on the enactment of the 1932 Act, which would implement the provisions of the 1931 Convention into Canadian law, no questions were asked of the Minister of Health, Murray McLaren, concerning the reasons leading the Minister to include the above-mentioned drugs in the schedule.

 

Amendment of penalties

The penalties for trafficking or illegal possession of narcotic drugs were amended several times during this period. Furthermore, other offences were created as trafficking techniques to get around the law became increasingly sophisticated. According to Giffen, there were several reasons why the authorities responsible for enforcing the Act wanted more flexibility:

 

“Latitude in regard to penalties helped to overcome the reluctance of the courts to convict in cases of lesser culpability and respectable social status; such cases were inevitable in the early years when the addict population was still relatively heterogeneous. Moreover, popular support for the law was more likely to be maintained if sentences that were regarded as unjust by local people could be avoided.” [45]

 

This flexibility gave more options to the police and Crown attorneys allowing them to negotiate guilty pleas more easily, to decide on the type of proceeding or to make use of people who had been charged as informers or undercover agents by promising them a reduced sentence or the withdrawal of the charges. In some instances, it also allowed for minimum sentence thereby reducing the Court’s discretion during sentencing. The increase in the severity of penalties  also sent a clear message to judges about the severity and level of social reprobation for drug offences. The possibility of proceeding by summary conviction also reduced the time period between the arrest and the sentencing. This made it possible to significantly increase the number of convictions. This was particularly important, because the higher the number of convictions, the more the people would be able to see the extent of the problem and the effectiveness of the act.[46]

The 1911 Act provided for a maximum sentence of imprisonment of one year and/or a maximum fine of $500. In 1920, after the Act to amend the Opium and Narcotic Drug Act, 1920, was passed[47], a minimum fine of $200 was assessed with the maximum increased to $1,000. In 1921, the Act to amend the Opium and Narcotic Drug Act, 1921,[48] significantly amended the penalty for this type of offence. Hybrid offences were created (summary conviction and indictment) for these two illegal activities. For an indictment, a maximum term of imprisonment of seven years could be imposed. For a proceeding by summary conviction, the maximum prison sentence was increased to 18 months, with the possibility of an additional 12 months for default of payment of any fine assessed by the Court. In 1922, the Act to amend the Opium and Narcotic Drug Act, 1922,[49] amended the sentence of imprisonment for a summary conviction by providing for the imposition of a minimum prison sentence of six months. In 1925, Parliament passed an amendment providing for the imposition, at the judge’s discretion, of a sentence of forced labour for a summary conviction, for simple possession of a drug.

In 1921, an offence was created for the sale, gift or distribution of drugs by a trafficker to a minor. In such cases, one could only proceed by way of indictment and anyone convicted could receive a maximum prison sentence of seven years. Following a highly emotional debate, the sentence of whipping, which had been suggested by a Member, was withdrawn. However, the next year, while reviewing the 1922 Act in the Committee of the Whole, the same member once again suggested the imposition of a sentence of whipping for traffickers selling drugs to minors. At the end of the debate, the Minister of Health agreed to add the penalty of whipping to the Act. In 1929, federal parliamentarians stated their opinions about extending the punishment of whipping to trafficking and simple possession of drugs, as provided for in the Act to amend and consolidate the Opium and Narcotic Drug Act, 1929.[50]

Another important penalty was introduced in the 1922 Act: the deportation of immigrants. Section 5 of this statute provided that, except as may otherwise be provided in the Immigration Act, any immigrant convicted of trafficking, simple possession or selling drugs to a minor could be deported from Canada. From 1922 to 1944, when the last immigrants were deported for drug offences, over 1,082 Chinese (82%) were deported, compared to 163 Americans (13%) and 68 other persons of various ethnic origins (5%), for a total of 1,313 deportations. In 1930, the “panic” in British Columbia was a thing of the past, but during the previous eight years, over 638 Chinese had been deported by the Canadian authorities.[51]

There were other offences as well in the legislation, for example possession of pipes, lamps or any other equipment for the preparation or use of opium; drug trafficking by mail; and obtaining drugs by consulting two doctors. Between 1922 and 1930, 7,096 persons were convicted for an offence under the Opium and Narcotic Drug Act. Of these, over 4,900 were Chinese, or 69%.[52]

 

Police powers

From 1920 to 1930, various amendments to the Opium and Narcotic Drug Act led to the police being granted new powers. These amendments specifically had to do with powers of search. Section 7 of the 1911 Act provided for the issuance of a search warrant authorizing police officers who had reasonable grounds to search the following kinds of premises: a dwelling-house, shop, boutique, warehouse, garden or ship, and to seize drugs found there as well as any containers in which the drugs had been found. Section 3 of the 1922 Act provided for the possibility of conducting a search for drugs without a warrant, either during the day or at night, in the above-mentioned premises. However, police officers were required to have a warrant to search a dwelling-house.

Section 8 of the 1911 Act provided that any drugs seized and the containers in which the drugs were found could be confiscated and delivered to the Court, and be destroyed after the accused’s conviction. However, section 9 imposed a number of conditions on the procedure provided under section 8. Indeed, if the person charged was acquitted, there was a three-month period during which the Court could be asked to issue an order to give back the seized drugs. If they were not claimed during this period, they were to be destroyed. The 1921 Act slightly amended these two provisions by specifying that henceforth, drugs and the containers in which they were found were to be confiscated and turned over to the Department of Health, which would dispose of them as it saw fit. This amendment was deemed necessary by the Narcotics Division because several judges, rather than order the destruction of the goods, sent them to hospitals. The Division was afraid that the drugs so returned might fall into the hands of traffickers.

In 1923, the powers to search and the orders of forfeiture were extended to vehicles in which drugs were found. In 1929, this procedure was extended to all traffickers’ vehicles, whether or not any such substances were found in them. The purpose of this was to impede the activities of traffickers and to prevent their vehicles from being used by other criminals after they were convicted. The procedure was later extended to aircraft. In 1925, Parliament, by enacting the Act to amend the Opium and Narcotic Drug Act, 1925,[53] authorized police officers to search any person found on the premises searched, with or without a warrant.

The 1929 Act granted special search powers to police officers. Section 22 of this statute allowed a writ of assistance to be issued to a police officer. This was a general power, without any restrictions of time or place, to remain valid throughout the career of the peace officer. Such a writ authorized its recipient to enter a dwelling-house at any time of the day or night accompanied by whatever persons were deemed necessary to conduct searches and seize drugs. The writ of assistance thus made it possible to get around the prohibition on searches and seizures of drugs in a dwelling-house without a warrant. At the same time, the Act was amended to authorize police officers, during searches or seizures, with or without a warrant, to use force if required to conduct a search and to be assisted by persons other than peace officers. 

 

Criminal procedure

In the 1920s, another major amendment was introduced to facilitate convictions in drug cases, a reverse onus provision. The onus was now on the accused, not on Crown prosecutors, to prove that he had not committed the crime with which he was charged. Under British criminal law, the task of proving an accused's guilt traditionally falls on the Crown, hence the expression "presumed innocent until proven guilty".

Section 10 of the Act of 1911 provided that, in a prosecution for drug possession or trafficking (with the exception of importing and exporting), in order to be acquitted, the accused had to prove that he had a legitimate excuse or that he had used such substances for therapeutic or scientific purposes. When Parliament amended the Opium and Narcotic Drug Act in 1920 to provide a better framework for dealing with importing and exporting, the manufacture, sale and prescription by physicians of scheduled drugs by means of a permit, the procedure established in 1911 was amended to specify that, in order to be acquitted, the accused had to prove that he had had a permit duly issued by the Department of Health.

Section 1 of the Act of 1921 expanded the application of the reverse onus to include any person who possessed or occupied a place (dwelling, store, boutique, warehouse, garden or ship) where drugs had been found. According to the wording of the section, that person was deemed to possess such a substance if he was unable to prove that it had been in that place without his consent or that he did not know that the drug was there.

The article also provided that this procedure would apply when a person was charged with trafficking in raw or prepared opium for smoking purposes without having first obtained a permit issued by federal authorities. In 1923, the Act to Prohibit the Improper Use of Opium and Other Drugs (Act of 1923)[54] extended application of the reverse onus to offences involving the import or export of drugs without a permit. In cases involving the prescription or administration of a scheduled substance for non-therapeutic purposes, a physician or pharmacist had to prove that that substance had been used solely for medical purposes.

The Act of 1923 also cancelled another fundamental legal guarantee, the right of appeal. Section 25 eliminated the right of appeal in summary conviction cases involving possession, drug trafficking without a permit or for the sale, gift or distribution of a drug to a minor, the latter being an indictable offence. Section 26 of the Act of 1929 expanded this procedure to include possession of or trafficking in a substance similar to a drug. This new procedure rendered moot the provision enacted in 1911 prohibiting any application for a writ of certiorari, and the Narcotics Division sought its removal from the act, which was actually done in 1929.[55]

Two other important amendments were made to the Opium and Narcotic Act between 1920 and 1930 to provide for the admissibility of the certificate of a federal analyst and the application of the Identification of Criminals Act to summary conviction offences. Section 1 of the Act of 1921 had amended the legal procedure applicable in drug prosecutions by making the certificate of a federal analyst admissible in evidence with respect to one or more drugs seized by police officers. However, the courts were reluctant to accept the certificate because they could not authenticate the analyst's signature[56] or confirm his appointment. In 1929, an amendment was made to the Opium and Narcotic Drug Act (section 18) providing that the certificate would henceforth constitute prima facie evidence of the status of the person who gave or issued it. In this context, proof of that person's appointment or authentication of his signature was no longer necessary.

In 1923, the Opium and Narcotic Drug Act was amended to apply the provisions of the Identification of Criminals Act to persons convicted of an offence by way of summary conviction. Section 2 of that act permitted police officers to fingerprint, photograph and measure the accused solely in cases where they were indicted. That information constituted the accused's official "criminal record", which was kept in the national police records, with all the consequences that entailed for social, professional or family stigmatization. However, from the standpoint of the Narcotics Division, this amendment would prove beneficial since it would henceforth make it possible to establish files and more effectively monitor drug addicts convicted by way of summary conviction.

 

Control measures

The Act to Amend the Opium and Narcotic Drug Act (Act of 1920)[57] established a control system for the legal trade in narcotics through a system of permits issued to businesses, pharmacists and physicians by the Department of Health in order to regulate Canada's supply of drugs for medical or scientific purposes. The Act provided for: a prohibition against importing or exporting drugs at a port not designated for that purpose by federal authorities; the issue of permits for the import, export, manufacture, sale and distribution of drugs; the imposition of criteria regarding packaging and labelling of packages containing such substances; an obligation for businesses to keep a record of their drug importing, exporting, manufacturing, sale and distribution activities duly authorized by federal authorities; an obligation for physicians to provide the information requested by federal authorities concerning the purchase, manufacture or prescription of medications containing drugs; an obligation for pharmacists to keep a record of their purchases and sales of drugs, the preparation of their own medications containing such substances and renewals of prescriptions signed by a physician;[58] and the authorization to sell medications (such as ointments and liniments) containing very small quantifies of scheduled drugs without a permit, provided they were not administered to children under two years of age and met certain labelling criteria.

 

Amendments to the Act to Amend the Opium and Narcotic Drug Act in 1954

In 1954, Parliament passed the Act to Amend the Opium and Narcotic Drug Act (Act of 1954),[59] repealing offences relating to opium use and the possession of equipment intended for that purpose, the sale of drugs to a minor and drug trafficking through the mail. It also made two other significant amendments to the act.

Under the impetus of R.E. Curran, Deputy Minister of Health, it now included a definition of the offence of drug trafficking in order to make the act more comprehensible and increased the maximum prison term for that offence from seven to 14 years. The minimum prison term of six months and the fine were repealed. Henceforth, this offence could only be prosecuted by way of indictment. However, a person convicted of the offence was still liable to whipping and deportation.[60]

Subsection 4(3) of the Act of 1954 created the offence of possession for the purpose of trafficking, for which the new penalties provided for drug trafficking applied. This new offence would mean that those possessing large quantities of narcotic drugs would no longer be convicted for simple possession. As we have seen, a reverse onus was part of Canada's drug legislation from 1911 to 1929. In 1954, subsection 4(4) added a new criminal procedure to facilitate convictions for possession of drugs for the purpose of trafficking.

Thus, in every criminal prosecution for this offence, Crown prosecutors first had to prove that the accused was illegally in possession of the drug. The defendant then had to prove that he had not possessed the substance for the purpose of trafficking. If he succeeded, he was found guilty of possession; otherwise he was convicted of trafficking. In this specific case, Canadian courts established a distinction between the so‑called secondary burden, which is to prove a specific fact (in this case the intention to traffic) and the primary burden (illegal possession), which consists in proving that fact where all the evidence is adduced. Thus the Crown prosecutor had the primary burden of establishing that an  offence was indeed committed. In this particular case, however, the Crown did not have to prove that the accused intended to engage in trafficking. Proof of illegal possession was sufficient for the court to conclude that there was an intention to traffic.

This amendment was enacted in response to the recommendation by the RCMP and the Narcotics Office (former Narcotics Division) since, failing an admission by the accused, it was very difficult to prove the intention to traffic. However, this new procedure considerably undermined the rights of the accused, particularly since the act did not specify the quantity of drugs necessary to determine whether the accused had actually possessed it for the purpose of trafficking. The accused was thus guilty of trafficking in the absence of evidence to the contrary.[61]

 

Senate report of 1955

On February 24, 1955, the Senate passed a motion creating a Special Committee of the Senate on the Traffic in Narcotic Drugs in Canada following the motion made a few weeks earlier by Senator Thomas Reid. At that time, Senator Reid had asked the Senate government leader, W. Ross MacDonald, whether the federal government intended to create such a committee since, based on his information, the traffic in opium and other narcotics in the City of Vancouver was beyond the control of police authorities. In debate on the motion, Senator MacDonald accurately summed up the task before the members of the Senate Special Committee as follows:

 

The work of the committee will largely be to consider the causes of this unfortunate problem with which this country is faced, to hear expert witnesses and to determine in what way the Government can make its most valuable contribution in resolving this unfortunate condition. The reports of this committee, based upon an objective, cautious and factual assessment of the problem, may well become a document of the utmost importance and have far-reaching consequences in helping to found policy upon which the successful solution of this problem can rest. [62]

 

Upon adoption of the motion, Senator Reid was appointed chairman of the Committee. From March 25 to June 17, 1955, the committee organized public hearings in Ottawa and was the first to travel outside the capital, holding meetings in Montreal, Toronto and Vancouver. In addition to specialists, public servants and police officers, the senators also met a group of 150 people suffering from a drug dependency at Oakalla Prison in Vancouver to gain a better understanding of the reasons leading them to use drugs. The Committee heard 52 witnesses: 13 from law enforcement agencies, 10 from the various federal departments concerned by the fight against drug trafficking and 12 addiction treatment specialists. On June 23, 1955, Senator Reid tabled the Committee's report containing a series of recommendations for the treatment of people suffering from a drug dependency and the fight against the traffic in narcotic drugs.

According to the report, the figures provided by the Department of Health revealed that there were 515 “medical addicts” in Canada, that is to say individuals who had become dependent on a drug as a result of treatment for a disease, 333 “professional addicts” (doctors, pharmacists and so on) and 2,364 “criminal addicts”, for a total of 3,212. Of the persons belonging to the last category, 1,101 were located in Vancouver.[63] Only 26 of the 2,364 “criminal addicts” were under 20 years of age.

To establish a relationship between crime and drug dependency and to explain the difficulties in establishing treatment programs, the Committee cited a study conducted by the RCMP noting that, of 2,009 “criminal addicts”, 341 had first been convicted of an offence under the Opium and Narcotic Drug Act, 1,220 had first been convicted for other crimes and 478 had already had a criminal record. Thus, 1,668 of the total 2,009 “drug addicts” were criminals, which was sufficient in the Committee's view to confirm the thesis of the “criminal” or “contaminating” user.[64] It was therefore clear that drug addiction was not a disease. In the Committee's view, most “addicts” came from disadvantaged backgrounds in which crime and family problems were omnipresent.

 

The evidence of medical authorities was to the effect that drug addiction is not a disease in itself. It is a symptom or manifestation of character weaknesses or personality defects in the individual. The addict is usually an emotionally insecure and unstable person who derives support from narcotic drugs. The Committee was gravely concerned to learn that relatively few cases could be authenticated where drug addicts, while out of custody, had been successful in abstaining from the use of drugs for any lengthy period of time. The complications and difficulties in the successful treatment of drug addiction, having regard to the pattern of development of the addict and his almost invariable criminal tendencies, cannot be too heavily stressed. [65]

 

In the circumstances, the Committee unanimously rejected the idea of creating government clinics which, on certain conditions, would provide “criminal addicts” with ambulatory treatment. The Committee moreover emphasized that a resolution adopted at the time at the tenth annual session of the United Nations Narcotic Drug Commission, stated that this form of treatment was not advisable.[66] It also rejected the United Kingdom's model after confirming, with the aid of British specialists, that doctors should not encourage drug addicts to persist in their addiction if they could not, even after lengthy treatment involving gradual reduction of the prescribed doses abstain from drugs. On this point, the report states: “[…] dangerous (narcotic) drugs in the United Kingdom are subject to a wide degree of control of the exacting standards demanded by the international agreements to which the United Kingdom, in common with Canada, is a party.”[67]

Considering that “addicts” were “basically criminals who daily violate the Opium and Narcotic Drug Act”, the Committee argued that municipal and police authorities, more particularly those of Vancouver, should more effectively invoke the provisions of the Criminal Code dealing with theft, vagrancy and prostitution. Citing the testimony of Harry J. Anslinger before a U.S. Congress committee, the Committee stated that such an initiative would solve much of the problem caused by drug addiction. Second, it noted that “the evidence of many witnesses recommended the compulsory segregation and isolation of all addicts for long periods of time for the purpose of treatment and possible rehabilitation.”[68]

Thus, to prevent this “scourge” from spreading in the penitentiaries and to cure “criminal addicts” convicted of crimes, the Committee suggested that “the penitentiary authorities might give further consideration to the particular problems presented by criminal addicts in terms of segregation, treatment including specialized training and rehabilitation and other measures necessary in view of the special problems which addiction superimposes.”[69] In fact, as Minister of Health, Paul Martin had done a year earlier, the Committee instead emphasized the limits of federal jurisdiction and the efforts the provinces should devote to the treatment of “drug addicts” who had not been convicted of a crime. Still advocating the segregation of these individuals, the Committee indicated that the federal government wanted to make available to British Columbia the federal William Head quarantine station on Vancouver Island so that it could transform it into a treatment centre similar to that in Lexington, Kentucky. It further proposed the creation of a national health program to provide financial support for provincial drug addiction initiatives.

The Committee also encouraged the creation of groups similar to Alcoholics Anonymous, but rejected the idea of national education campaigns for the general public and teenagers on the ground that “such programs should not be used where they would arouse undue curiosity on the part of impressionable persons or those of tender years”.[70] The Committee supported the position of the UN Narcotic Drug Commission, recommending instead that a “mental health” program be established to detect behaviour in the schools that might lead to drug addiction.

Since treatment programs could not cure all “drug addicts”, the Committee also proposed that certain measures be adopted to fight illegal trafficking in narcotics. It thus recommended:

·               that a separate offence be created for the illegal importing/exporting of narcotic drugs in order to put an end to drug smuggling;

·               that a maximum prison term be imposed of up to 25 years (life) for that new offence;

·               that the maximum prison term be increased from 14 to 25 years for trafficking offences; and

·               that it be possible to establish proof of a conspiracy in order to facilitate the conviction of the leaders of criminal organizations not directly involved in the sale of narcotics but which benefit therefrom.

 

In the Committee’s view, the severity of these penalties would “act as an effective deterrent to an individual in smuggling drugs into Canada for the profit of a ‘higher up.’”[71] Rather than waste police and court resources in trying to convict organized crime leaders who were the cause of the problem, an attempt had to be made to eliminate the “trafficker-distributors” in the neighbourhoods of the large cities and the problem would be solved.

Although the Committee's proposals were much more conservative than those advanced in the debates preceding its establishment, contrary to a number of other reports by parliamentary committees or royal commissions of inquiry, most of its recommendations would be followed by federal authorities. First, it contributed to a number of research projects in British Columbia and Ontario in 1956. And second, the Senate Committee’s report was at the origin of most of the new provisions of the Narcotic Control Act, which was passed in 1961 to replace the Opium and Narcotic Drug Act.

 

From 1960 to the Le Dain Commission: the search for reasons

 

The period following World War II witnessed new attitudes toward narcotic drug control that would call into question the approach adopted by Canada since 1908 in fighting the abuse of and trafficking in narcotic drugs. The international human rights movement, the creation of organizations dedicated to the defence of civil liberties, the gradual democratization of access to universities, the appearance and development of new disciplines in the social sciences such as criminology, psychology, sociology, political science and the sociology of law, scientific progress and research into drug addiction were factors in the creation of new pressure groups consisting of more articulate individuals who disputed the use of criminal law as a “miracle” solution in responding to drug problems. However, it was not until the explosive increase in drug use in the 1960s, the hippie protest movement and the work of the Le Dain Commission that these demands materialized.

 

Narcotic Control Act (1961)

Passage of the Narcotic Control Act (Act of 1961)[72] coincided with the coming into force of the Single Convention on Narcotic Drugs of 1961, which played an important role in the creation of the modern international narcotic drug control system, an extension and expansion of the international legal infrastructure developed between 1909 and 1953. Work to group together the nine multilateral treaties signed during that period into a single international enactment began in 1948, and Canada played a significant role in the negotiations and drafting that led to its adoption.

While the Act retains most of the criminal procedures and offences established over the previous years, two amendments formed the subject of major parliamentary debate: the creation of an offence for illegal importing or exporting of narcotics and the increase in penalties for the offence of trafficking, and the treatment of drug addicts?. The minimum prison term of six months for simple possession was repealed, as was the procedure that provided that the Identification of Criminals Act would apply in the case of a summary conviction and the provision eliminating the right of appeal for certain offences.

The Act of 1961 was divided into two parts: the first, entitled “Offences and Enforcement”, was placed under the authority of the Minister of Health, and the second, “Preventive Detention and Detention for Treatment”, was to be administered by the Minister of Justice.

As the Senate Committee had recommended, section 5 of the Act of 1961 created the offence of importing and exporting narcotic drugs. Whoever was convicted of that offence (solely by way of indictment) was liable to a minimum prison term of seven years to a maximum of 25 years. That provision was designed to combat drug smuggling between the United States and Canada and to comply with the international undertakings Canada had made in ratifying the Single Convention.[73]

In accordance with another recommendation from the Senate Committee report, section 4 of the Act of 1961 raised the maximum prison term for trafficking in narcotic drugs from 14 to 25 years. The provision for whipping was also repealed. These amendments also applied to the penalty provided for possession for the purposes of trafficking.

Part II of the Act, which comprised sections 15 to 19, defined the new federal policy regarding preventive detention and detention for treatment. First, the courts henceforth had the power to order that an individual convicted of trafficking, possession for the purpose of trafficking or importing/exporting drugs, and only if the accused had previously been convicted of similar offences, be placed in preventive detention for an indeterminate period of time. This measure replaced any other sentence which might have been imposed. Second, when a person was charged with simple possession, possession for the purpose of trafficking, trafficking or import/export, the court, at the request of Crown counsel or the accused, could order the accused detained for examination purposes to determine whether he was eligible for a drug addiction treatment program. If that was the case, the accused had to be sentenced to detention for treatment at a specialized federal institution for an indeterminate period of time in lieu of any other sentence provided for under the act. For a first offence, preventive detention could not exceed 10 years. The individual had a right of appeal, was subject to the Parole Act and could be referred to preventive detention at any time if he used drugs during his probation period.

Lastly, the Act of 1961 provided that, if a province adopted a preventive detention policy combined with a drug addiction treatment program (in cases not involving an offence under the act), the federal government could enter into an agreement with the competent authorities of that province to transfer drug addicts to the specialized federal institutions. These new provisions in fact enacted the Senate Committee's proposals.

Despite the intervention of two ministers,  this treatment policy,  based on a penal approach and, to a certain degree, oriented toward repression of the “contaminating user” or “criminal user”, failed to stir up interest among parliamentarians. The measures were passed without opposition but, for reasons that remain unclear, were never proclaimed. The Le Dain Commission moreover questioned this decision by the federal government: “Whether this is because of doubts about the constitutional validity of these provisions or the failure to develop suitable treatment methods and facilities or later reservations by the government as to the advisability of compulsory treatment in principle, or some combination of these, it’s not clear.”[74]

Another provision of the Act of 1961, but not the least, was passed by Parliament without debate: the schedule. The Single Convention of 1961 contained a series of schedules prepared by the World Health Organization containing the list of drugs subject to rigorous control for the purpose of preventing them from being used for other than medical or scientific purposes. Most were on the schedule to the Act of 1961, which now comprised more than 92 drugs and their derivatives, spread over 14 major classes (opium, cannabis, coca, phenypipedridine, and so on). No member of Parliament questioned the Minister of Health to determine the criteria or reasons advanced by his department for subjecting such a large number of substances to the restrictive provisions of the act.

 

An Act respecting Food and Drugs and Barbiturates (1961)

In the early 1960s, the use of drugs not included in the schedule to the Opium and Narcotic Drug Act, or, later, in the Narcotic Control Act, began to concern medical and government authorities. These drugs were barbituric acids or “goof balls”, amphetamines, methamphetamines and the salts and derivatives of those three substances. These so‑called psychotropic drugs could be used to reduce stress, eliminate insomnia, stimulate muscle and brain activity and eliminate appetite.

When physicians and other health professionals began to notice the number of barbiturate dependence cases and the serious secondary effects of those drugs in the 1950s, they asked the government to regulate their distribution and use more effectively. In addition, in 1957, following a Health Department survey of 2,500 pharmacies, more than 300 pharmacists were convicted for failing to comply with regulations respecting the prescription of barbiturates and amphetamines. This time, it should be pointed out, the position of health professionals had more influence on government authorities than the positions of police officers or the Narcotic Control Office. These substances were included in the Food and Drugs Act as “controlled drugs” and not in the Narcotic Control Act, for two reasons. First, certain harsh provisions of the Act of 1961 were coming under increasing criticism. Second, the use of those substances in a number of prescription medications meant that their use was widespread among the general public, particularly among persons holding good jobs, which ultimately was quite different from the unflattering picture hitherto painted of “drug addicts”. In the circumstances, having recourse to the provisions of the Act of 1961 was out of the question.[75]

In 1961, Parliament thus passed the Act to Amend the Food and Drugs Act (Food and Drugs Act of 1961)[76] to better regulate the trade in barbiturates and amphetamines. The new act created Part III concerning the “controlled drugs” listed in Schedule G. It also created the offence of trafficking or possession for the purpose of trafficking, for which an accused was liable to a maximum prison term of 10 years, if convicted by way of indictment, or 18 months by summary conviction. However, simple possession of the substances was not illegal. Furthermore, unlike the Narcotic Control Act, the definition of trafficking excluded the distribution or giving of a controlled drug, but included the offences of importing and exporting.

In the case of criminal procedures applicable in a trial, a number of aspects were retained from the Act of 1961, such as the procedure concerning the reverse onus in a prosecution for possession for the purpose of trafficking, the use of a certificate from a federal analyst to confirm the nature of the drug, search and seizure writs of assistance, and the forfeiture and restitution of seized substances.

Lastly, Schedule G of the Act included three drugs: amphetamines, barbituric acids and methamphetamines, as well as the salts and derivatives of those drugs. During the debates, one member asked why other similar substances were not included in the schedule. The Minister of Health answered that, based on scientific research, only those three drugs were considered dangerous to human health.[77] Furthermore, as had been the case with the Opium and Narcotic Drug Act and the new Narcotic Control Act, the Governor in Council could make regulations upon recommendation by the Minister of Health, and where the public interest warranted it, to amend the schedule.[78]

 

Food and Drugs Act and hallucinogenics (1969)

In 1969, Parliament extended the application of legislative and bureaucratic controls to hallucinogenic drugs by passing the Act to Amend the Food and Drugs Act (Food and Drugs Act of 1969).[79] That enactment created Part IV, which was to govern the use of and trade in “restricted drugs” enumerated in the new Schedule J. Those drugs were lysergic acid diethylamide (LSD), N-Diethyltryptamine (DET) and Methyl-2,5-dimethoxyamphetamine (STP).

To better control the use of and trade in hallucinogenic drugs, the act provided for the same offences and procedures as those applying to barbiturates. It also created an offence of possession in order to deter anyone from using such drugs. In that instance, an accused was liable, on summary conviction, to a maximum prison term of three years and a fine of $5,000.[80] If found guilty of a first offence, on summary conviction, an accused was liable to a prison term of up to six months or a maximum fine of $1,000. For subsequent convictions, the act provided for a maximum prison term of one year or a fine of $2,000.

 

Narcotic Control Act and the offence of possession of cannabis

In the parliamentary debates on the Food and Drugs Act of 1969, the Minister of Health moved a very important amendment to the Narcotic Control Act. From 1921 until the Narcotic Control Act was passed, Canadian legislation had provided for a hybrid offence in the case of simple possession of a drug. Since 1961, however, that offence was solely an indictable offence punishable by a prison term of up to seven years. The amendment proposed in 1969 maintained the offence, but again offered the option of proceeding by way of summary conviction, thus recreating a hybrid offence. In the case of a first offence in which an accused was found guilty on summary conviction, the Act provided for a maximum prison term of six months or a fine of up to $1,000, and a term of up to one year and a fine of $2,000 for subsequent offences. The amendment was considered necessary by the Minister of Health since the number of prosecutions for cannabis possession had increased from 493 in 1966 to 1,727 in 1969.[81] In his view

 

[…] in spite of the enormous variety of individual situations involved in that number of cases, the relevant section of that act provides very little scope for flexibility, either on the part of the Crown prosecutors or presiding judges or magistrates. There is no provision for the Crown to choose to proceed summarily. […] This rigidity has been the subject of increasing criticism from a wide variety of sources such as the addiction research agencies of several provinces. [82]

 

Lastly, the Food and Drugs Act of 1969 amended the procedure adopted in 1929 providing for the admissibility of a certificate from a federal analyst at trial for an offence involving a scheduled drug under the Narcotic Control Act or a Schedule G or J drug under the Food and Drugs Act. Crown prosecutors would henceforth be permitted to prove orally, under oath, by affidavit or solemn declaration, the status of the signatory of the certificate, who thus no longer had to appear in court. However, a judge could require the analyst to appear before him for examination or cross-examination to better assess the information contained in the affidavit or solemn declaration. The amendment was designed to ensure greater respect for the fundamental rights of the accused.

 

The Le Dain Commission (1969-1973)

When parliamentarians were examining the provisions of the Food and Drugs Act  in 1969, they asked that a special committee be struck to look into the issue of drug use in Canada, particularly the use of cannabis. On May 29, 1969, the Liberal government headed by Pierre Elliott Trudeau passed Order-in-Council P.C. 1969-1112, establishing the Commission of Inquiry into the Non-Medical Use of Drugs, more commonly known as the Le Dain Commission. One of the reasons put forward to justify its creation was:

 

That notwithstanding these measures and the competent enforcement thereof by the R.C.M. Police and other enforcement bodies, the incidence of possession and use of these substances for non-medical purposes has increased and the need for an investigation as to the cause of such increasing use has become imperative. [83]

 

The Commission’s activities and reports

The Commission carried out its activities from mid-October 1969 until December 14, 1973, when its final report was tabled. During this period, it heard from 639 groups and individuals: 295 organizations presented briefs and 43 appeared before the members of the Commission; 212 individuals made submissions and 89 gave oral presentations. In total, the Commission held public hearings in 27 cities, including Ottawa and the ten provincial capitals, travelling some 50,000 miles around the country. During its term, the Commission published four reports: an interim report (1970), a special report on cannabis (1972), a report on treatment (1972) and a final report (1973). In addition to its Chairman, Gerald Le Dain, the Commission comprised four members: Ian L Campbell, Heinz Lehman, Peter Stein and Marie-Andrée Bertrand.

Before reviewing the Commission’s recommendations in relation to cannabis, it is worthwhile to look into four aspects of the Commission’s work that Dr. Marie-Andrée Bertrand brought up at a hearing of our Committee.

The first relates to the Commission’s mandate, which was “extremely generous and broad.” She presented it thus:

 (a) to marshal from available sources, both in Canada and abroad, data and information comprising the present fund of knowledge concerning the non-medical use of sedative, stimulant, tranquillizing, hallucinogenic and other psycho tropic drugs and substances;

(b) to report on the current state of medical knowledge respecting the effect of the drugs...;

(c) to inquire into and report on the motivation underlying the non-medical use referred to in (a);

(d) to inquire into and report on the social, economic, educational and philosophical factors relating to the use for non-medical purposes... in particular, on the extent of the phenomenon, the social factors that have led to it, the age groups involved, and problems of communications; and

(e) to inquire into and recommend with respect to the ways or means by which the Federal Government can act, alone or in its relation with Government at other levels, in the reduction of the dimensions of the problems involved in such use.

 

 

Because the mandate was so broad, commissioners and the Commission's personnel got involved in a vast project which, in my opinion, had a great deal of impact on Canadian society. I am convinced that even though it had no influence at all on criminal legislation, the Le Dain Commission brought about a considerable change in the mentalities of Canadians, as it raised, for instance, awareness about the effects of traditional drugs.[84]  

 

Second, the method used by the Commission to seek the opinions of Canadians. After mentioning the Commission’s travel, she recalled that the public hearings gave the public an opportunity to ask questions and to confront the experts. 

 

Thus, we raised a wide national debate on the factors whereby Canadian society … can, frequently resort to psychotropic substances to alleviate some of its suffering. In my opinion, the generosity of the mandate, the method of consultation, the style and attitude of the commissioners - and more specifically those of the Commission's chairman - brought about an effervescence of ideas about democracy, about how the State functions, and about the feeling of alienation that many Canadians felt and still feel vis-à-vis their national, provincial or municipal government. [85] 

 

Third, the Commission’s research mandate. Dr. Bertrand stated that the Le Dain Commission, at the height of its mandate, employed 100 persons, 30 of whom were full-time researchers. These researchers basically worked on four targets: (1) the effects of the drugs – and especially of cannabis, (2) drug use, (3) treatment problems, and (4) the influence of the media on the phenomenon.

Fourth, the Commission’s impact. Dr. Bertrand believes that the democratic debate kicked off by the Commission had significant impact on knowledge about drugs. Many people came to understand that stereotypes of drug users as criminals were just that–stereotypes. The Commission also kicked off a deep debate about the factors pushing people to take drugs and increased awareness of these issues. What became apparent very quickly after the Commission started its work was Canadians’ feeling of alienation from Canadian politicians and lawmakers, and the frustration that ordinary people are not listened to in this country.

 

The special report on cannabis

Before presenting their recommendations in connection with a new public policy on cannabis, the Commissioners made a number of observations about Canadian cannabis legislation.

 

v     The decision to criminalize cannabis was made “without any apparent scientific basis nor even any real sense of social urgency […]”.[86]

v     The reversal of the evidentiary burden of proof for an offence of possession for the purpose of trafficking places a very heavy burden on the accused – significantly weakening the principle of the presumption of innocence – since he must prove that he did not intend to traffic by a preponderance of evidence, not just by raising a reasonable doubt in the mind of the judge or jury.

v     Law enforcement is made very difficult by the very nature of the offences that take place secretly and often on a consensual basis, and extraordinary methods of law enforcement must be used. However, “the combined effect of their use in connection with [drug] laws has been one of the chief causes of concern about the impact of the criminal law in this field.”[87]

v     RCMP officers and officers in the provincial or municipal police services do not have the necessary financial, human or technical resources to curb narcotics trafficking as well as dealing with simple possession offences. All too often, possession cases are discovered accidentally in the course of other police investigations or surveillance activities over several months, resulting in a discriminatory application of the law.

v     The decision as to whether to proceed by indictment or summary conviction varies considerably from one area to another of the country, and is influenced by the number of ongoing cases involving narcotics and the significant discretion exerted by crown attorneys. This inequitable application of the law can have extremely serious consequences on a defendant’s future, particularly if a criminal record is the outcome.[88] 

v     Sentencing practices in drug cases are characterized by a wide disparity across Canada because of individual judges’ perceptions about drug addiction, and their relative experience in criminal law and with cases involving simple possession or drug trafficking. According to the Commission’s research, judges with greater experience in these types of cases handed down more lenient sentences. For example, sentences for simple possession involved fines or probation when a defendant did not have a criminal record, and, in trafficking cases, imprisonment of less than two years;[89] and

v     From 1968 to 1971, the proportion of fines imposed for simple possession of cannabis increased from 1 % of all dispositions to more than 77 %.[90] 

 

While the Commissioners agreed with these observations, their conclusions and recommendations were not unanimous.

 

The majority opinion – the recommendations of Gerald Le Dain, Heinz Lehman and Peter Stein

In order to explain the underlying reasons for their recommendations, the majority based their conclusions on the concept of harm, considering this the most useful criterion for laying down a new social policy for cannabis. This principle is associated both with the harm caused to an individual who uses a harmful substance, particularly his physical or mental health, and with the harm the individual causes to society, i.e. the impact on his family and colleagues. The concept of harm was of significance to the majority, since it made it possible to assess whether society should be concerned about the adverse effects of cannabis on human health and on society and, if such were the case, to what extent should criminal law apply in order to reduce those adverse effects. Should one criminalize simple possession of cannabis or only trafficking? Should measures such as decriminalisation or legalization be considered?

Initially, the majority wanted to eliminate some of the myths about the danger of cannabis:

 

The evidence of the potential for harm of cannabis is far from complete and far from conclusive. It is possible to find some fault with the methodology or the chain of reasoning in virtually all of the evidence. […] On the whole, the physical and mental effects of cannabis, at the levels of use presently attained in North America, would appear to be much less serious than those which may result from excessive use of alcohol. However, there has not been sufficient experience with long-term, excessive use of cannabis under North American conditions to justify firm and final conclusions.  [91]

 

Regarding the amotivational syndrome, the Commission said it did not have conclusive data about personality change.

 

Some observers have spoken of apathy and a loss of goals, an absorption in the present with little or no thought for the future. All of these symptoms might be equally associated with a profound change of values and outlook which many might regard as salutary.[92] In our opinion, these concerns justify a social policy designed to discourage the use of cannabis as much as possible, particularly among adolescents. [93]

 

The Commission did not have specific and conclusive scientific data to identify the harmful or beneficial effects of cannabis. On the other hand, while it believed that the dangers of cannabis (particularly those involving operation of a motor vehicle, poly‑drug use, long-term mental deterioration and disorder, and criminality) were exaggerated, the Commission recognized that cannabis, like all other drugs, can have particularly harmful effects when it is used along with other drugs and that its use by adolescents could have a harmful effect on their maturation. The majority of members explained that, even if the use of cannabis is not a threat to the foundations of Canadian society or to our system of values based, for example, on a productive life, this element could not be excluded from the formulation of a new policy on cannabis.

Secondly, since, in addition to health problems, cannabis use entails significant costs to the family, to society and to the economy, the majority justified the use of the criminal law, stating:

 

In our opinion, the state has a responsibility to restrict the availability of harmful substances-and in particular to prevent the exposure of the young to them-and that such restriction is a proper object of the criminal law […]  where, in its opinion, the potential for harm appears to call for such a policy. [94]

 

For this reason, the majority rejected a public policy model based on legalization of the use and distribution. Even if legalization would have had the benefit of better controlling supply and quality, without a considerable increase in the number of long-term users, it could have led to some users moving on to hashish, with its higher concentration of THC, or encouraged users to smoke more marijuana or other cannabis products in order to obtain the desired psychoactive effect, and this would have cancelled out the effectiveness of control measures and increased the likelihood of abuse. [95]

Therefore, the majority recommended maintaining the offences of cannabis trafficking, of possession of cannabis for the purpose of trafficking, and importing and exporting cannabis. However, it adopted a much more liberal position with regard to controlling the demand:

 

The criminal law should not be used for the enforcement of morality without regard to potential for harm. […] If we admit the right of society to use the criminal law to restrict the availability of harmful substances in order to protect individuals (particularly young people) and society from resultant harm, it does not necessarily follow that the criminal law should be applied against the user as well as the distributor of such substances. [96]

 

In this context, the majority felt it was necessary to amend the Narcotic Control Act, because “we do not believe that a change in the law need have an adverse effect on a proper appreciation of the caution with which we believe cannabis should be treated.”[97] It was necessary to restore Canadians’ confidence in and respect for the cannabis policy by reclassifying the drugs listed in the appendix to the Act, particularly cannabis. The majority opinion was based on the fact that:

 

While the Single Convention groups cannabis with the opiate narcotics it does not insist that it be given identical treatment in the law of the member states. The Single Convention has certainly been responsible for reinforcing the erroneous impression that cannabis is to be assimilated to the opiate narcotics but it does not prevent domestic legislation from correcting this impression. Because the present classification and legislative treatment of cannabis is so generally recognized to be erroneous and indefensible, any change in it which corresponded more closely to the facts could be expected to command much more respect and careful attention [to the law]. [98]

 

Restoring Canadians’ confidence in the Narcotic Control Act also involved a comprehensive review of criminal penalties relating to cannabis. To justify this view, the majority pointed out that the harm caused by the criminal law, particularly on mere users, was more serious than the harm to their health and their environment caused by using the drug. In its analysis, the majority focussed on the consequences of sentences on young people, since over 85% of those convicted for cannabis possession or trafficking in 1970 and 1971 were under the age of 25.

A criminal record could have serious consequences for the future of young people, limiting the right to travel, and because of the family, social or professional stigma it caused. The majority were of the view that the possibility of obtaining a pardon is not sufficient to resolve this situation, since: “the knowledge which a lot of people invariably possess of a conviction and the knowledge which can be obtained by interested parties through careful investigation cannot be eliminated.” [99] In fact, the Criminal Records Act provides only for removing information about the criminal record stored in national police files following a pardon, but not information in police investigation reports, or in legal documents stored in the law courts about the trial and the sentence, let alone newspaper articles.

Moreover, the majority of members deplored the extreme severity of sentences for cannabis use, stating, “they are out of all proportion to the harm which could possibly be caused by cannabis. Moreover, they are excessive by comparison with those of most other nations.”[100] It disapproved of the maximum penalty of seven years' imprisonment for cannabis cultivation for one's own use, the mandatory minimum penalty of seven years' imprisonment for cannabis importing or exporting, as well as the possibility of life imprisonment for cannabis trafficking. The majority’s criticism also covered the definition of trafficking, which included giving or offering, so that people who are merely passing a joint among friends in an evening could be charged with trafficking. The majority also mentioned that these sentences were made even more severe because:

v     in the cases relating to possession of cannabis for the purpose of trafficking, the Crown could only proceed by way of indictment, with the consequence of more severe sentences; and

v     the enforcement of the Narcotic Control Act was discriminatory (police investigations, the Crown Attorneys’ discretion in deciding how to proceed, reversal of the burden of proof to the detriment of the accused, and judges’ past experience).

 

The criminalization of cannabis had another negative effect: the illegal nature of simple possession and cultivation was conducive to the development of an illicit market, where some people must engage in crime or at least deal with criminals in order to obtain a supply. In some cases, people were exposed to other, more dangerous drugs. According to the majority:

 

 Making cannabis legally available would not isolate people from contact with the illicit market in other drugs. From the point of view of influence, the important contacts are between drug users rather than between users and traffickers. Most users are initiated into new forms of drugs by other users. Interest in other drugs would not cease if cannabis were made legally available. [101]

 

Finally, the use of extraordinary police powers, such as writs of assistance, often against users, only discredited the law further and adversely affected the morale of law enforcement authorities.[102]

For all these reasons, the majority recommended:

 

v     that importing and exporting should be included in the definition of trafficking (as they are under the Food and Drugs Act), and they should not be subject to a mandatory minimum term of imprisonment;

v     that it be possible to proceed by indictment or summary conviction in the case of trafficking and possession for the purpose of trafficking, and, on indictment, the penalty for this offence should be five years, and on summary conviction, eighteen months. It should be possible in either case to impose fine in lieu of imprisonment;

v     that the prohibition against the simple possession of cannabis be repealed;

v     that trafficking should not include the giving, without exchange of value, of a quantity of cannabis which could reasonably be consumed on a single occasion;

v     that the prohibition against cultivating cannabis for personal use be repealed; and

v     that the burden of proof on a person charged with possession for the purposes of trafficking be lightened, by stipulating in the Act that it is sufficient for the accused to raise a reasonable doubt as to his intention to traffic.

 

Minority Opinion–the recommendations of Marie-Andrée Bertrand

According to Marie-Andrée Bertrand, Canada’s cannabis policy required an in-depth reform that went far beyond merely amending the Narcotic Control Act. Dr. Bertrand took a much more liberal approach than the majority, and particularly Ian L. Campbell, as we will see below. Dr. Bertrand wrote that the Commission’s research findings “establish that a large number of people have used cannabis-more than a million in Canada. Very few of them have ever required medical or psychological treatment as a consequence. Smoking marijuana or hashish generally produces no serious personal problems, nor does it result in criminality.”[103] Cases of habitual and excessive use were exceptional, as most users used cannabis recreationally. Any new public policy aiming at controlling cannabis use effectively without causing harm both to users and to society should consider these determinants. The use of the criminal law was out of the question. According to the Commissioner, there were several arguments in support of this conclusion.

Like the majority, she rejected a number of prejudices concerning harm caused by cannabis to human health, in particular its effects on brain activity and the ability to drive a vehicle, but recognized nevertheless that in large amounts cannabis could cause psychoses. While Marie-Andrée Bertrand commented that cannabis might have an effect on adolescent maturation, she said that very few facts supported the hypothesis put forward by the majority.[104] She also concluded that there was no relationship between cannabis use and criminality, aggression or the infamous amotivational syndrome.[105] Moreover, she rejected claims that cannabis use leads to poly-drug use in most users:

 

[…] a certain proportion of cannabis users take other drugs […]. We are not dealing with a phenomenon that is limited to cannabis, LSD and the amphetamines (which are used in combination by only a few), but with an almost indiscriminate use of mood-changing substances in our society. When we include alcohol, it can be said that Canadians consume great quantities of a variety of psychoactive drugs, even if cannabis is excluded.[106]

 

Second, users could not be sure of the quality of cannabis they bought, with all the concomitant repercussions, given the illicit and clandestine nature of production and distribution activities. Dr. Bertrand responded to the argument made by the majority that quality control of cannabis in a legal market would encourage a number of users to move to hashish by saying that no evidence points to such a possibility.[107]

Third, the prohibition of cannabis trade and illicit use was expensive and ineffective. Attempts to curb trafficking, despite all the efforts made by RCMP officers and municipal police forces, along with severe penal sanctions, were ineffective. The sentences provided for simple possession no longer had any dissuasive effect, since a million Canadians were using or had used cannabis.

Fourth, in its current form, the law had no educational or dissuasive impact, since Canadians’ perception of the harm caused by cannabis was no longer the same as the government’s. In this connection, Marie-Andrée Bertrand wrote:

 

A more important factor underlying problems in the application of the law is the gradual change in opinion taking place among Canadians regarding the harmfulness of this substance. The evidence has been taken into account - cannabis is not an opiate, its use does not induce physical dependence. The earlier opinions of society have been challenged and modified. […] However, the continued prohibition of cannabis has precipitated, among many users, a generalized disrespect for the law. [108]

 

For all these reasons, Marie-Andrée Bertrand recommended a “controlled legalization” policy for cannabis.  She concluded that the federal government should remove cannabis from the Narcotic Control Act and initiate discussions with the provinces to have the sale and use of cannabis placed under controls similar to those governing the sale and use of alcohol. Such a system would entail regulations prohibiting the sale or distribution of cannabis to minors, and governing the distribution of a quality product at a price that would make smuggling impractical. To guarantee the success of the new approach, the federal and provincial governments were to work together in developing all stages of the production and distribution of cannabis, while undertaking multidisciplinary epidemiological research to evaluate the repercussions of a controlled legalization policy on health and human behaviour and to monitor patterns of use.[109]

Lastly, Marie-Andrée Bertrand considered that this policy would prove beneficial, not only for users, but also for the federal and provincial governments because of the considerable revenue they might well derive from the sales taxes on such a popular product.[110]

 

Minority Opinion–the recommendations of Ian Campbell

In comparison with the very liberal recommendations made by Marie-Andrée Bertrand, the recommendations by Ian Campbell were much more conservative in tone. Although he was in almost full agreement with the conclusions of the majority, he firmly believed that decriminalizing simple possession of cannabis would be misinterpreted by the media and by Canadians. If cannabis were legalized, the signal that would be sent out to society, particularly to young people, would be that cannabis is harmless, and might eventually lead to the accepted use of other, much more dangerous drugs. In this regard, he stated that, in both cases:

I think there is also a risk that the repeal of the prohibition on the possession of cannabis, even by the young, would be misunderstood as indicating a willingness by the society to condone and accept the use of the drug. There is little evidence to suggest that such a willingness exists. […] The risk of such progression is probably not as great among those who have been deterred from use by the present law as among those who have already used cannabis. But the risk of progression is nonetheless real for some considerable number.[111]

 

He also felt that maintaining the prohibition had a positive benefit–that of protecting young people from the harm caused by cannabis:

 

The potential for harm from adult use of cannabis is probably very much less than from use by the young. But, I find sufficient reasons to recommend the continuation of the general prohibition. Not the least of these reasons is the practical impossibility, at this time, of using the law to convey a perception of the dangers of cannabis without maintaining the prohibition for all, whether young or old.  [112]

 

Against this backdrop, the law was in the interest of prevention and morality, protecting as it did both individuals and society. Continuing in this vein, Mr. Campbell spoke about cannabis and young people’s lack of maturity, saying:

 

We have properly been concerned about the damage done by placing too many duties and responsibilities on the individual too early. But it seems to me that recently we have been far too little concerned with the consequences of placing too many rights and freedoms on the shoulders of the young. [113]

 

Despite it all, like other members of the Commission, Mr. Campbell recognized that some penal sanctions provided by the law could cause harm that was disproportionate in comparison with the real harm caused by cannabis on human health and society. He therefore recommended that the prohibition on the possession of cannabis be maintained, with possession of cannabis being punishable, upon summary conviction, by a fine of $25.00 for the first offence and a fine of $100.00 for any subsequent offence. Maintaining the prohibition would benefit not only users, but also police officers, since it:

 

Is entirely reasonable to assume that a high proportion of those currently arrested for possession as a result of systematic police investigation are in fact guilty of trafficking.  [114]   

 

The work of the Le Dain Commission ended on December 14, 1973 when its final report was tabled. On July 31, 1972, John Munro, Minister of Health, revealed the policy that the federal government wanted to pursue following the tabling of the Commission’s special report on cannabis. Even though he refused to legalize the use of cannabis, the Minister stated his intention to remove cannabis from the Narcotics Control Act and place it under the Food and Drugs Act. This measure would be accompanied by lighter sentences for certain cannabis-related offences, research and education programs about its non-medical use, and less severe legal consequences for users. This measure would have covered hashish since the government “wanted to make a clear distinction between this drug [cannabis] and dangerous narcotics like heroin.”[115] Two years later, on November 26, 1974, the federal government met its commitments by tabling Bill S-19 in the Senate.

 

Bill S‑19 and cannabis

Bill S‑19 created Part V of the Food and Drugs Act entitled “Cannabis”. Thus, as recommended in the majority opinion expressed in the Le Dain Commission’s special report, cannabis and cannabis users were no longer subject to the harsh provisions of the Narcotic Control Act.

Clause 7 of Bill S‑19 defined “cannabis” as hashish, marijuana, cannabidol and THC. It continued the offence of possession, which, however, could only be prosecuted summarily. Anyone convicted of a first offence would be liable to a maximum fine of $5000 or, failing payment, to a maximum prison term of six months. For repeat offences, the fine would be fixed at an amount not exceeding $1,000 or, failing payment, a prison term not exceeding six months could be imposed. As may be seen, fines were favoured over imprisonment for simple possession.

The Bill also maintained the offences of trafficking, possession for the purposes of trafficking and cultivation of cannabis without a permit provided for by the Narcotic Control Act, punishable on summary conviction by a maximum fine of $1,000 or a prison term of up to 18 months or, if prosecuted by way of indictment, by a prison term of up to 10 years. The penalties provided were thus less severe than those provided for by the Act of 1961, except for the cultivation of cannabis. Although Bill S‑19 created a dual-procedure offence for this crime, the maximum prison term was more severe (10 years rather than seven if prosecuted by way of indictment).

Lastly, a person convicted of importing or exporting cannabis was liable, on summary conviction, to a maximum prison term of two years or, if prosecuted by way of indictment, to a prison term of three to 14 years. Parliament thus wanted to show that cannabis trafficking and smuggling were crimes which it still considered very serious.

Apart from these offences, Bill S‑19 also contained the criminal procedures included in Parts III and IV of the Food and Drugs Act (evidence of possession for the purpose of trafficking, certificate of the analyst, police powers and so on). Lastly, the provisions respecting regulations that the governor in council may make concerning the issuing of cultivation permits and possession of cannabis were now contained in the new Part V.

The Bill was considered by the Senate Standing Committee on Legal and Constitutional Affairs, which, in its report, recommended three amendments. The first added a provision for an exception to the Criminal Records Act so that any person receiving an absolute or conditional discharge would be automatically pardoned. The purpose of this measure was to eliminate the possibility that a criminal record might remain with the Canadian Police Information Centre (CPIC) following discharge. The second amendment increased the maximum prison term for trafficking in a narcotic from 10 to 14 years less a day. The third repealed the minimum term of three years for smuggling.

Bill S‑19 was passed on third reading on June 15, 1975 and referred to the House of Commons, where it never passed second reading. In the fall of 1976, Mitchell Sharp stated in an interview that the bill would not be reintroduced since more important legislation was under consideration.

 

 

After Le Dain: forging ahead regardless

 

Throughout the 1970s, a number of federal politicians promised major reforms to lessen, even eliminate, the criminal penalties imposed on cannabis users. In 1972, the Liberal Party of Canada stated in its election platform that it intended to amend Canada's policy on marijuana,[116] which likely gave birth to Bill S‑19. In 1978, Joe Clark, Leader of the Progressive Conservative Party, declared that a government formed by his political party would decriminalize possession of that drug.[117] However, promises of reform ceased in the early 1980s.

In the mid-1980s, Canadians witnessed a significant change in the federal government's position on drugs. This new situation was perhaps not unrelated to the U.S. policy of "war on drugs" adopted in the early 1980s by President Ronald Reagan. The United States once again became very active within international drug control agencies to encourage the international community to take energetic measures to put an end to drug trafficking, which "threatened American youth".

In 1987, Canada became actively involved in the work of the International Conference on Drug Abuse and Illicit Trafficking.[118] Two important events occurred at that meeting organized under the aegis of the United Nations. First, delegates passed a full multidisciplinary plan for future activities to combat drug abuse encouraging the states to comply with their obligations under existing treaties. That initiative targeted four important areas: prevention and reduction of demand for illicit drugs, control of supply, suppression of illicit trafficking and treatment and rehabilitation. For the first time, international legal instruments made express provision for the reduction of supply. Second, delegates put the final touches on the treaty to suppress drug trafficking on a global scale. That treaty was passed in Vienna on December 20, 1988 as the Convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Convention of 1988).

In addition to taking part in the work leading to the adoption of that convention, starting in the mid‑1980s, Canada stepped up its international efforts with regard to drugs. In June 1987, it ratified the Convention on Psychotropic Substances of 1971[119] and promised to increase its financial participation in the United Nations Fund for Drug Abuse Control to $1 million by 1991. The Canadian government justified its participation in the international drug effort as follows:

 

“The Government is acting to stem the flow of drugs in and out of Canada, not only because Canadians are among the victims of drug abuse, but also because we have a role to play as responsible citizens of the world.” [120]

 

Canada was influenced by this international effort when, on September 13, 1988, before it had even signed or ratified the Convention of 1988 – which was not done until 1990 – Parliament passed Bill C‑61, designed to combat laundering of the proceeds of crime (money laundering, enterprise crime, etc.). The Bill was aimed at organized crime and the financing of its operations through drug trafficking. The Criminal Code and the Narcotic Control Act were thus amended to create two new offences: laundering of proceeds of crime and possession of property obtained through drug trafficking. These new provisions also applied to the illegal activities of drug cultivation, trafficking and importing and exporting in or outside Canada if they were committed by Canadian citizens. Parliament did not need to legislate to criminalize the other activities prohibited by the Convention of 1988 since, as noted above, many had already been covered since 1961.

 

Controlled Drugs and Substances Act

In accordance with the commitment the federal government made in 1987, Minister of Health Perrin Beatty tabled Bill C‑85, An Act respecting psychotropic substances, on June 11, 1992. It merged Parts III and IV of the Food and Drugs Act as well as the Narcotic Control Act into a single piece of legislation. Bill C‑85 never passed report stage and died on the Order Paper in September 1993, when the 34th Parliament was dissolved.

On February 2, 1994, the new Minister of Health, Diane Marleau, retabled the legislation proposed by the former government under a different name, the Controlled Drugs and Substances Act (CDSA), which was passed by the House of Commons on October 30, 1995. After the first session of the 35th Parliament was prorogued, the bill was reintroduced in the Senate on March 6, 1996, and renumbered Bill C‑8. The legislation went into effect on June 20, 1996.

This was the first major reform of Canada's drug legislation since the 1960s. Apart from the amendments made in 1988 under Bill C‑61, the Narcotic Control Act had been amended in 1985 to abolish the writ of assistance and the procedure for establishing proof of possession of narcotics for the purpose of trafficking. In 1987, in R. v. Smith, the Supreme Court of Canada ruled that the minimum prison term of seven years for importing or exporting was unconstitutional under section 12 of the Canadian Charter of Rights and Freedoms (cruel or unusual punishment), as a result of which it was repealed.

One of the objects of the bill was to meet Canada's international obligations under the Single Convention on Narcotic Drugs (1961), the Convention on Psychotropic Substances (1971), and the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna Convention, 1988). It was further designed to introduce a legislative framework for regulating the import, production, export, distribution and use of scheduled substances under previous acts. The following sections describe the main provisions of this legislation.

 

Substances

The merger of the schedule of the Narcotic Control Act with those of the Food and Drugs Acts of 1961 and 1969, combined with the addition of new substances such as benzodiazepines and the precursors of this long list of substances, considerably increased the number of drugs subject to the restrictive provisions and procedures of the CDSA.

The expression "controlled substance" means a substance included in Schedule I, II, III, IV or V. In addition, the Act defines the term "analogue" as any substance that, in relation to a controlled substance, has a substantially similar chemical structure. Furthermore, anything that contains or has on it a controlled substance and that is used or intended or designed for use in producing or introducing the substance into the human body will be treated in the same way as that illegal substance.

 

 

v     Schedule I:       narcotic drugs such as opium, morphine and cocaine.

v     Schedule II:      cannabis, hashish, cannabinol, etc.

v     Schedule III:    stimulants such as amphetamines, hallucinogenics, such as mescaline, LSD and DET, and sedatives such as methaqualone, commonly called quaalude.

v     Schedule IV:     among others, anabolic steroids, hypnotics such as barbiturates and benzodiazepines (better known by their trademarks Seconal, Luminal, Valium and Librium).

v     Schedule V:      enumerates other substances that may be abused.

v     Schedule VI:     precursors, which produce no effects on the mind but can be converted or used to produce designer drugs, "simili-drugs" or substances contained in the schedules under Canada's international obligations under the Single Convention on Narcotic Drugs (1961) and the Vienna Convention of 1988.

v     Schedules VII and VIII: concerning application of penalties for cannabis

                                                    offences.

 

A total of more than 150 drugs, psychotropic substances and precursors now appear in the schedules of the act. It should be noted that section 60 of the CDSA continues the provision adopted in 1911 that the Governor in Council may, by order, amend any one of the schedules of the act by adding or deleting one or more substances where the Governor in Council deems the amendment to be necessary in the public interest.

 

Part I: Offences and Punishment

Participation in the aforementioned activities would not necessarily result in criminal penalties. As will be seen below, the act provides for regulations authorizing the possession, import and export and production for medical, scientific, industrial purposes or for the purposes of the act. Part I of the CDSA enumerates a number of types of offences:

 

(1) Possession of a Schedule I, II or III substance (subsection 4(1)); obtaining or seeking to obtain a Schedule I, II, III or IV substance, or the order necessary to obtain it from a practitioner (subsection 4(2)). The following table shows the maximum penalties for the offence of possession:[121]  

Possession of a Schedule I Substance
Indictable offence Summary conviction Reoffence	Seven years' imprisonment Fine of $1,000 or 6 months' imprisonment or both Fine of $2,000 or one year's imprisonment or both
Possession of a Schedule II Substance (cannabis in all its forms):
Indictable offence Summary conviction Reoffence	Five years' imprisonment less a day Fine of $1,000 or 6 months' imprisonment or both Fine of $2,000 or one year's imprisonment or both
Possession of a Schedule VIII Offence (less than 1 g of cannabis resin (hashish) or less than 30 g of marijuana)
Summary conviction only	Fine of $1,000 or 6 months' imprisonment or both
Possession of a Schedule III Substance
Indictable offence Summary conviction Reoffence	3 years' imprisonment Fine of $1,000 or 6 months' imprisonment or both Fine of $2,000 or one year's imprisonment or both

 

The penalties imposed for the offence under subsection 4(2) are similar but slightly different from those provided for possession.

 

(2) Trafficking in a Schedule I, II, III or IV substance or any substance represented to be such a substance. Trafficking is defined as any transaction to sell, administer, give, transfer, transport, send or deliver a schedule substance, or to offer to do any one of those things. To “sell” means offering for sale, exposing for sale, having in one's possession for sale and distributing a substance, whether or not the distribution is made for consideration (subsection 5(1)); possessing any Schedule I, II, III or IV substance for the purpose of trafficking (subsection 5(2)). The following table shows the maximum penalties for these offences:

 

Trafficking in a Schedule I or Schedule II Substance (except in cases involving less than 3 kg of cannabis)
Indictable offence No summary conviction offence	Life imprisonment
Trafficking in a Schedule III Substance
Indictable offence Summary conviction	10 years' imprisonment 18 months' imprisonment
Trafficking in a Schedule IV Substance
Indictable offence Summary conviction	Fine of $1,000 or 6 months' imprisonment or both One year's imprisonment

 

Trafficking in cannabis is not always punishable by the maximum penalty of life imprisonment. In cases of trafficking involving less than 3 kg of cannabis, a person is guilty of an indictable offence and subject to a maximum term of five years’ imprisonment less a day.

 

(3) Importing or exporting any Schedule I to VI substance (subsection 6(1)); having in one’s possession any Schedule I to VI substance for the purpose of exporting it (subsection 6(2)). The following table shows the maximum penalties for these offences:

 

Importing or Exporting a Schedule I or II Substance
Indictable offence No summary conviction	Life imprisonment
Importing or Exporting a Schedule III or IV Substance
Indictable offence Summary conviction	10 years' imprisonment 18 months' imprisonment
Importing or Exporting a Schedule IV Substance
Indictable offence Summary conviction	3 years' imprisonment One year's imprisonment

 

(4) Producing a Schedule I, II, III or IV substance. The expression “produce” is defined as meaning to obtain a substance by any method or process including manufacturing, synthesizing or using any means of altering the chemical or physical properties of the substance, or cultivating, propagating or harvesting the substance or any living thing from which the substance may be extracted or otherwise obtained. The following table shows the maximum penalties for this offence:

 

Producing a Schedule I or II Substance (other than cannabis/marijuana)
Indictable offence No summary conviction	Life imprisonment
Producing cannabis (marijuana) (less than 1 g of cannabis resin (hashish) or less than 30 g of marijuana)
Indictable offence No summary conviction	7 years' imprisonment
Producing a Schedule III Substance
Indictable offence Summary conviction	10 years' imprisonment 18 months' imprisonment
Producing a Schedule IV Substance
Indictable offence Summary conviction	3 years' imprisonment One year's imprisonment

 

(5) Possession of property obtained by crime (section 8) and offences relating to the laundering of proceeds of crime (section 9).

 

The penalties are obviously closely related to the schedule in which the substance in question appears. Furthermore, the penalties determined for cannabis offences also vary considerably depending on the quantity involved, a subject discussed in greater detail below.

Section 10 of the Act states the purpose of sentencing, which is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. This section also provides a list of circumstances which the court is required to consider as “aggravating” factors in determining the sentence that shall be imposed on a person convicted of a designated substance offence. Those factors are: the use of a weapon or use of or threat to use violence, trafficking in a substance on or near school grounds or in or near any public place frequented by minors or by persons under the age of 18 years, and previous convictions of a designated substance offence. In addition, the use of the services of a minor in the commission of a designated substance offence is an aggravating factor. Any judge deciding not to sentence a person to imprisonment despite the presence of one or more aggravating factors is required to give reasons for that decision.

 

Part II: Enforcement

Sections 11 and 12 of the act concern search and seizure activities, which are discussed in greater detail in Chapter 14.

Section 13 incorporates certain Criminal Code provisions establishing a detailed plan for the return, reporting and detention of seized property. In the case of offence-related property, the Criminal Code provisions apply subject to sections 16 to 22 of the Act. Furthermore, a separate procedure is established under sections 24 to 29 to determine the disposal of controlled substances. It should be noted that section 14 provides for the issuing of a restraint order in respect of offence-related property.

Sections 16 and 17 concern the forfeiture of offence-related property. Offence-related property is defined as any property, within or outside Canada, by means of or in respect of which a designated substance offence is committed, that is used in any manner in connection with the commission of a designated substance offence, or that is intended for use for the purpose of committing a designated substance offence, but does not include a controlled substance or real property, other than real property built or significantly modified for the purpose of facilitating the commission of a designated substance offence. A court which convicts a person of a designated offence shall order the forfeiture of offence-related property where it is satisfied, on a balance of probabilities, that the property is offence-related property. Where the offence-related property cannot be related to the offence with which the person is charged, the court may nevertheless order its forfeiture. The court may make such order where it is satisfied, beyond a reasonable doubt, that it is offence-related property. Furthermore, offence-related property may be forfeited even if legal proceedings were never instituted. The court shall render an order of forfeiture of property if it is satisfied (1) beyond a reasonable doubt that any property is offence-related property, and (2) that proceedings in respect of a designated substance offence in relation to the property were commenced, and (3) that the accused charged with the offence has died or absconded.

Sections 18 to 22 are essentially a restatement of sections 462.4 to 462.45 of the Criminal Code. The purpose of these provisions is to protect the interests of innocent third parties and good-faith buyers. As a general rule, if the court is satisfied that the claim is lawful, it may order the return of the property (or payment of its value if restitution is impossible) to the person who is its legitimate owner or who is entitled to own it.

Section 23 merely incorporates the Criminal Code provisions on forfeiture of proceeds of crime. The same terms and conditions are thus established in the case of the forfeiture of the proceeds of designated offences.

 

Part III – Disposal of Controlled Substances

Under subsection 13(4) of the Act, where a controlled substance has been seized, a report identifying the place searched, the substance seized and the location where it is being detained shall be filed with the justice of the peace of the territorial division concerned. Sections 24 to 29 of the Act govern the disposal of controlled substances.

Section 24 establishes the pre‑trial procedure for the return of controlled substances. For example, any person may, within 60 days after the date of the seizure, finding or acquisition by a peace officer or inspector, apply to a justice of the peace for a restitution order. If the justice is satisfied that the application is valid, he shall order that the substance be returned to the applicant. In the opposite case, the justice orders forfeiture to the Crown. The substance is then disposed of in accordance with the applicable regulations or as the Minister directs. Where no application for return is made, the substance is delivered to the Minister and disposed of in accordance with the applicable regulations or, failing such regulations, in such manner as the Minister directs.

It should be noted that section 26 enables the Minister to ask the justice of the peace to order that a controlled substance be forfeited, at any time, if he has reasonable grounds to believe that it constitutes a potential security, public health or safety hazard. The application is essentially made ex parte. If the justice of the peace finds that the Minister has reasonable grounds to believe that the substance constitutes a potential security, public health or safety hazard, he orders its forfeiture. The substance is then disposed of in accordance with the applicable regulations or, if there are no applicable regulations, in such a manner as the Minister directs.

Section 27 regulates the post-trial procedure for returning controlled substances seized–the persons whose substances were seized is entitled to have them returned where the court rules his activities legitimate. Otherwise, the substance is returned to the true legitimate owner, provided that that person can be identified. If neither is possible, the substance is forfeited to the Crown, which disposes of it in accordance with the applicable regulations or, if there are no applicable regulations, in such manner as the Minister directs.

Section 28 enables the Minister to dispose of a controlled substance with the owner’s consent.

Lastly, under section 29, the Minister may destroy any plants from which a Schedule I, II, III or IV substance may be extracted and that is being produced without a regulatory licence or in violation thereof.

 

Part IV – Administration and Compliance

This part concerns the powers assigned to inspectors to ensure that holders of a regulatory authorization or licence to deal in controlled substances or precursors are complying with the regulations.

The inspector may, at any reasonable time, enter any place he believes on reasonable grounds is used for the purpose of conducting that person's business or professional practice. The Act authorizes inspectors to conduct a series of inspection acts, including seizing and holding any controlled substance or precursor which he deems on reasonable grounds must be seized or held. The Act makes provision for the return of seized property. It should be noted that, in the case of dwelling-places, the inspector must first obtain the occupant’s consent or hold a warrant.

 

Part V – Administrative Orders for Contraventions of Designated Regulations

This part makes provision for the administrative procedure that is to be followed where a regulation designated by the Governor in Council has been contravened. Under section 33 of the CSDA, the Governor in Council may proclaim certain regulations made under section 55 as “special regulations”. Non-compliance with those regulations may result in administrative orders providing for severe penalties, including revocation of the permit or licence issued by the Minister of Health (subsection 40(4)).

 

Part VI – General

Sections 44 to 60 are general provisions. For example, sections 44, 45 and 51 concern the designation of analysts, the scope of their duties and the admissibility of their reports at trial.

Section 46 creates a general penalty applying to anyone who contravenes a provision of the Act for which no penalty is specifically provided or contravenes a regulation. An indictable offence is punishable by a maximum fine of $5,000 and/or three years’ imprisonment. An offence punishable on summary conviction results in a $1,000 fine and/or six months' imprisonment.

Under section 47, summary convictions for certain offences under the act and regulations must be commenced within one year of the commission of the offence. All other summary procedures must be commenced within six months of the offence.

Other sections concern the following matters: that the prosecutor is not required, except by way of rebuttal, to prove that a certificate, licence, permit or other qualification does not operate in favour of the accused (section 48); that a copy of any document filed with a department is admissible in evidence without proof of the signature of the authority (section 49); that a certificate issued to a police officer exempting him from the act or its regulations is admissible in evidence at trial and, in the absence of evidence to the contrary, is proof that the certificate or other document was validly issued, without proof of the signature or official character of the person purporting to have certified it, although the defence may, with leave of the court, cross-examine the person who issued the certificate (section 50); that the giving of any document may be proved by oral evidence, affidavit or solemn declaration, even though the court may require the signatory to appear (section 52); that the continuity of possession of any exhibit tendered as evidence in a proceeding may be proved by the testimony, affidavit or solemn declaration of the person claiming to have had it in his possession (section 53); and that certified copies of records, books, electronic data or other documents seized may be presented as admissible evidence by the Minister's officer, the copied versions having the same probative force as the originals, unless the accused submits evidence to the contrary (section 54).

Subsection 55(1) establishes the power of the Governor in Council to make regulations. One of the objectives of Canada's drug policy was to monitor the legal trade in scheduled drugs for medical or scientific purposes. The CSDA significantly enhanced the Governor in Council's power to make regulations with respect to designated substances and precursors. The regulations made under the CSDA apply in particular to businesses, physicians and pharmacists. The Governor in Council may thus make regulations, with respect to the designated substances or precursors:

 

v     Governing, controlling, limiting, authorizing the importation and exportation, production, packaging, sending, transportation, delivery, sale, administration, possession or obtaining of those substances or precursors;

v     Issuing permits to businesses or persons permitting the aforementioned activities, defining the terms and conditions of payment and their revocation, and determining the qualifications required of permit holders;

v     Controlling the methods of production, storing, packaging and restricting the advertising, if necessary, for the sale of those substances;

v     Governing the books, records, electronic data or other documents that must be established by the businesses, physicians or pharmacists or any other permit holder engaged in the activities enumerated in the first point;

v     Authorizing, if necessary, the communication of information obtained through investigations conducted by the inspectors of the Department of Health to provincial authorities in respect of a serious contravention of the regulations concerning the activities defined in the first point so that they may take disciplinary measures;

v     Exempting, on conditions set out in the regulations, any person or class of persons from the application of section 55.

 

Under subsection 55(2), the Governor in Council, on the recommendation of the Solicitor General of Canada, may make regulations that pertain to investigations and other law enforcement activities. This includes regulations exempting police officers, in certain circumstances, from the application of Part I of the Act (Offences and Penalties).

Under section 56, the Minister may, on such terms and conditions as the Minister deems necessary, exempt any person or class of persons or any controlled substance or precursor or any class thereof from the application of all or any of the provisions of the act or the regulations if, in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest. Section 57 concerns the delegation of the powers of the Minister and the Solicitor General.

Section 58 provides that the provisions of the act and the regulations made under it prevail over any incompatible provisions of the Food and Drugs Act or its regulations.

Section 59 makes it an offence to make or assent to the making of a false or misleading statement in any book, record, return or other document that must be made under the act or regulations.

As mentioned, under section 60, the Governor in Council may amend any schedule to add or delete a controlled substance.

 

The specific case of cannabis

In the first version of the CSDA, cannabis was cited in the schedule containing the most dangerous drugs to which the most severe criminal penalties described above applied. To allay criticism, the government agreed to withdraw cannabis from Schedule I and created Schedules II, VII and VIII, which concern that drug exclusively. Schedule II defines cannabis as marijuana, cannabis resin (hashish) cannabinol, and so on. Schedule VII established at three kilograms of cannabis or hashish the maximum quantity for the imposition of a less severe penalty for trafficking or possession for the purpose of trafficking in that substance. Lastly, Schedule VIII provided that a person who had less than one gram of hashish or less than 30 grams of cannabis in his possession for his own personal use was liable to less severe criminal penalties than those provided for in Schedule II.

As a result, if a person is convicted of possession, possession for the purpose of trafficking or possession of a quantity greater than that defined in Schedules VII and VIII, the more severe penalties provided for in Part I for Schedule I or II substances apply. Otherwise, the CSDA defines new criminal penalties. As regards Schedule VIII, section 4 of the CSDA provides that a person charged with simple possession of cannabis may be prosecuted summarily and provides for a maximum term of six months’ imprisonment, a maximum fine of $1,000 or both. Contrary to the majority recommendation made in the 1972 special report of the Le Dain Commission respecting the reduction of the penalty imposed for importing and exporting cannabis, life imprisonment still applies. Lastly, the maximum prison term of seven years provided for by the Narcotic Control Act for the offence of cultivation (production) of that drug remains unchanged under the CSDA.

 

Conclusions 

Conclusions of Chapter 12

Ø      Early drug legislation was largely based largely on a moral panic, racist sentiment and a notorious absence of debate. Ø      Drug legislation often contained particularly severe provisions, such as reverse onus and cruel and unusual sentences. Ø      The work of the Le Dain Commission laid the foundation for a more rational approach to illegal drug policy by attempting to rely on research data. Ø      The Le Dain Commission's work had no legislative outcome, except in 1996, in certain provisions of the Controlled Drugs and Substances Act, particularly with regard to cannabis. Ø      No action was taken on the reform proposals introduced in the 1970s, particularly for the decriminalization of cannabis. Ø      Thirty years after the Le Dain Commission, the legislation and its application have had no notable effect on the supply and demand of cannabis. Ø      The present act Act takes no account of data from research on the comparative effects of various substances, particularly the effects of cannabis.