Chapter 13
Regulating Therapeutic Use of Cannabis
As
discussed in Chapter 9, cannabis has an extremely long history of therapeutic
use, going back several thousands of years. It was often used for the same
medical conditions it is used for today. With the development of the
pharmaceutical industry in the last century, the medical community has gradually
discontinued its use. Various factors may explain this. Developments in the
pharmaceutical industry provided the medical community with more stable and
better tested medication. The practice of medicine itself has changed and so has
our conception of health. Then, at the turn of the 20th century, the
plants from which opium, cocaine and cannabis are derived were banned by the
international community, except for medical and scientific purposes. In the case
of cannabis, no rigorous study had been done, until recently.
Further
to the social rediscovery of cannabis and the identification of its molecular
composition and chemical elements in the 1960s, renewed interest in the
therapeutic applications of cannabis grew in the early 1970s. More people began
using the plant for its therapeutic benefits and many demanded a relaxation of
the prohibitionist rules governing cannabis.
Because
its safety and effectiveness have yet to be reviewed in clinical trials,
cannabis has not been approved for sale in Canada as a medical product.[1]
Despite this lack of approval, many use cannabis for its therapeutic purposes
without legal authorization. In addition, because of the many claims regarding
its therapeutic benefit, a growing number of people have called for a less
restrictive approach and are demanding access to cannabis for people who could
benefit from its use.
This
chapter reviews the events that prompted the recent enactment of the Marihuana
Medical Access Regulations. One of the objectives of the regulations is to
provide a compassionate framework of access to marijuana for seriously ill
Canadians while research regarding its therapeutic application continues. Also
discussed is the implementation of these regulations, which came into force on
30 July 2001.
Background
to the recent regulations
Section
56 – Controlled Drugs and Substances Act
The Controlled
Drugs and Substances Act [2]
(CDSA) prohibits a series of activities relating to psychoactive substances,
including: possession; cultivation; trafficking; possession for the purposes of
trafficking; importation; and exportation. These activities are illegal unless
authorized by regulations made under the CDSA. For example, the Narcotic
Control Regulations regulate the legal distribution of narcotic drugs.[3]
In addition, before a drug may be marketed in Canada, it must be approved for
sale under the Food and Drugs Act[4]
(FDA) and its regulations. The regulations under that Act set out controls
dealing with, among others, the safety, efficacy and quality of therapeutic
products. To market marijuana as a drug in Canada, a sponsor would have to file
a “New Drug Submission” with the Therapeutic Products Programme of Health
Canada. Submitted data would be evaluated to assess the potential benefits and
risks of the drug before the drug would be approved for sale.
Other
mechanisms authorize certain otherwise prohibited activities. Pursuant to
section 56 of the CDSA, the Minister of Health is authorized to grant exemptions
if, in his or her opinion, such an exemption is necessary for a medical or
scientific purpose or is otherwise in the public interest. Thus, any person or
class of persons may be exempted from the application of all or any of the
provisions of the CDSA in these specified circumstances. These circumstances
include both the cultivation and possession of marijuana, activities that are
otherwise prohibited by the legislation.
In
response to the growing demand for access to cannabis for therapeutic purposes
and to Charter challenges in relation to therapeutic use, Health Canada
published an Interim Guidance Document in May 1999. This document set out a
process enabling Canadians to apply for an exemption to possess and cultivate
marijuana for therapeutic purposes under the authority provided in section 56 of
the CDSA. Applicants were required to demonstrate that the exemption was
necessary for such purposes and required a statement from a physician in support
of the application, along with details of their
medical and drug therapy histories. Health Canada reviewed the
applications on a case-by-case basis, taking into account the medical necessity
of the applicant. The first exemption was issued in June 1999. As of 3 May 2002,
658 exemptions had been granted under the authority of section 56, and 501
were still active. With respect to the other 157 persons with exemptions,
some are now authorized to possess the substance under the recently enacted Marihuana
Medical Access Regulations and others may no longer need marijuana for
therapeutic purposes. Under this process, persons with exemptions were required
to limit their cultivation to the quantity specified in their exemption letter.[5]
In
February 2000, as part of a commitment to public consultation in relation to the
section 56 exemption program, a multi-stakeholder consultation workshop was
held. The participants[6] identified the following
issues as priorities:
v Obtaining a legal source of marijuana for persons exempted under section 56;
v Exemptions for caregivers;
v Addressing the need for more information on the use of marijuana for medical purposes;
v Addressing concerns of law enforcement agencies;
v Improvement of the process and tools for section 56 applications; and
v Communications regarding the section 56 process and Health Canada’s activities regarding marijuana for medical purposes.[7]
The
information gathered at these consultations was later used for the development
of the Marihuana Medical Access
Regulations.
Charter
challenges – therapeutic use of marijuana [8]
Charter
challenges to prohibitions with
respect to marijuana by those using
the substance for therapeutic purposes have met with some success. In Wakeford
v. Canada (1998),[9]
a person suffering from AIDS and using marijuana to fight nausea and loss of
appetite, which were side-effects of the drugs he was taking to fight AIDS,
sought a constitutional exemption from the prohibitions with respect to
marijuana in the CDSA. The Ontario Court, General Division, found that by
denying the individual the autonomy to choose how to treat his illness, the law
infringed his rights to liberty and security of the person under the Charter.
The Court indicated that the prohibition on marijuana was not arbitrary inasmuch
as there is some risk of harm associated with its use.[10]
Thus, the Court found that in its general application, the law was consistent
with the principles of fundamental justice as set out in section 7 of the
Charter. However, the law’s impact on medical users raised additional
considerations. As applied to these users, the blanket prohibition is over-broad
and does not support the state’s rationale for prohibition.
The
Court held that it would be contrary to the principles of fundamental justice to
prohibit the use of marijuana where it can be shown to be a significant medical
treatment for a debilitating and deadly disease and where there was no
procedural process for obtaining an exemption from prosecution.[11]
However, the Court noted that such a process was provided for in section 56
of the CDSA. Therefore, the Court found that the law was in accordance with
fundamental justice – even in respect of medical users – and denied Mr. Wakeford
a constitutional exemption. It emphasized that, without a ministerial exemption
process for medical users, the case would have been decided differently.[12]
Later, Mr. Wakeford was granted an interim constitutional exemption with respect
to the offences of possession and production/cultivation of marijuana on the
basis of “fresh evidence” indicating that no real process had been
established to deal with applications for exemptions under section 56 of the
CDSA. Because the statutory exemption turned out to be “illusory,” the Court
reopened the case and granted the exemption. It would remain in effect until the
Minister of Health had made a decision on Mr. Wakeford’s application for an
exemption under section 56 of the CDSA.[13]
In R.
v. Parker (2000),[14]
the Ontario Court of Appeal reached a similar conclusion with respect to the
impact of the blanket prohibition on marijuana use on the “liberty and
security of the person” interests of medical users. In Parker, the accused–who had been charged with cultivation and
possession of marijuana–grew and used marijuana to control his epileptic
seizures. The Court held that the criminal prohibition on the use of marijuana,
vis-à-vis bona fide medical users,
engaged their section 7 right to liberty because of the possibility of
imprisonment. In addition, by depriving such individuals of the ability to
choose marijuana as medication to alleviate the effects of a serious illness,
the prohibition also infringed their rights to liberty and security of the
person, independent of the potential for imprisonment. The Court in Parker
further concluded that the blanket prohibition on marijuana possession did
not accord with the principles of fundamental justice. The Court of Appeal made
reference to the findings of the trial judge with respect to the medical
conditions and symptoms for which cannabis has a therapeutic effect:
Based
on the evidence adduced at trial, the trial judge found that the defence had
established that smoking marihuana has a therapeutic effect in the treatment of
nausea and vomiting particularly related to chemotherapy, intraocular pressure
from glaucoma, muscle spasticity from spinal cord injuries or multiple
sclerosis, migraine headaches, epileptic seizures and chronic pain. [15]
Of
significance to this chapter, the Court in Parker
concluded that the exceptions and exemptions contemplated by the legislation
that could cover approved medical use were contrary to the principles of
fundamental justice. Firstly, although the legislation theoretically
contemplated that a person could obtain marijuana with a doctor’s
prescription, the evidence in the case established that no pharmacist would fill
such a prescription; the government would not look favourably on any physician
who prescribed marijuana; and it was practically impossible to find a legal
source of marijuana in Canada.[16]
Thus, this exception to the prohibition was held by the Court to be illusory.[17]
Secondly,
with respect to ministerial exemptions under section 56 of the CDSA, the Court
found this procedure to be inadequate and not in accordance with the principles
of fundamental justice. The Court ruled that, under section 56, unfettered
discretion was vested in the Minister of Health, an inappropriate basis for
decisions relating to the security or liberty of the person in the context of
access to medical treatment to alleviate the effects of serious illness.[18]
Key issues relating to the section 56 exemption
process included: the broad discretion given to the Minister under the CDSA;
transparency of the process; and a clear definition of medical necessity.
In the
end, the Court concluded that the broad prohibition on possession of marijuana
was contrary to section 7 of the Charter and did not constitute a reasonable and
justified limit under section 1 of the Charter.[19]
The Court then declared the prohibition on the
possession of marijuana to be unconstitutional and of no force and effect.
However, the Court suspended the declaration of
invalidity for one year in order to give Parliament the opportunity to
amend the law to include adequate exemptions for medical use. In the interim,
Mr. Parker was granted a personal exemption from the prohibition on possession
of marijuana. The Court in Parker suggested
its finding that the prohibition on possession of marijuana violated section 7
of the Charter would likely apply to the prohibition on cultivation as well.[20]
Government
reaction
In
September 2000, while an appeal was still under consideration, the government
announced its intention to establish a new regulatory approach, which would
define the circumstances and the manner in which the use of marijuana for
therapeutic purposes would be authorized.[21]
A Notice of Intent was published on 6
January 2001 and meetings were held with key stakeholders as identified by
Health Canada.[22]
In
April 2001, the government unveiled proposed regulations governing the
possession and production of marijuana for therapeutic purposes. The proposed
regulations were designed to address the key issues raised by the Ontario Court
of Appeal in relation to the section 56 exemption process. There were two parts
to the draft regulations: (1) authorization to possess and (2) licence
to produce.
The
30-day regulatory consultation period, during which Health Canada received
comments from 139 individuals and groups, resulted in the following changes
being made to the proposed regulations: the application process would be managed
by the individual applicant instead of by a medical practitioner; restrictions
on growing locations would be relaxed
and would no longer include a one-kilometre restriction on cultivation outdoors
near schools and other places frequented by children; the formula to calculate
the number of plants permitted under a licence to produce would be adjusted to
reflect estimated indoor and outdoor growing yields and margins of error; and
transitional provisions would be included to extend all current exemptions by
six months with the objective of ensuring patients would be afforded ample
opportunity to comply with the new regulations.[23]
On
4 July 2001, the government announced that the regulations governing the
possession and production of marijuana for therapeutic purposes would come into
effect on 30 July 2001.
Marihuana medical access regulations
As
stated above, there are two parts to the Marihuana
Medical Access Regulations (MMAR): part 1, authorization to possess, and
part 2, licence to produce. One of the objectives of the regulations is to
provide a compassionate framework to allow
access to marijuana for medical purposes.
The regulations establish a compassionate framework to allow the use of
marijuana by people who are suffering from serious illnesses, where conventional
treatments are inappropriate or are not providing adequate relief of the
symptoms related to the medical condition or its treatment, and where the use of
marijuana is expected to have some medical benefit that outweighs the risk of
its use.[24]
As
will be reviewed in detail, the MMAR are intended to provide access to marijuana
in special circumstances only: in the case of serious medical conditions where
conventional treatment may not provide adequate symptomatic relief. Health
Canada explains that this limitation is due to “the
health risks associated with the smoked form in particular, and due to the lack
of evidence supporting the claimed health benefits.”[25]
Significantly,
the application of the MMAR is limited to “Cannabis (marihuana)” as referred
to in sub-item 1(2) of Schedule II of the CDSA. Thus, the regulations do not
provide access to other cannabis-related products.
The
key provisions of the MMAR are as follows.
Authorization to possess
Three
distinct categories have been established in relation to authorization to
possess dried marijuana, each with its own application requirements. In each
case, the application is to be submitted by the patient, whose declaration must
include information identifying the applicant and indicating that:
v
The applicant is aware that
no notice of compliance has been issued under the Food
and Drugs Act concerning the safety and effectiveness of marijuana as a drug
and that the applicant understands the significance of that fact; and
v
The applicant has discussed
the risks of using marijuana with a medical practitioner and consents to using
it for the recommended medical purpose.
Category 1
v
Eligibility: Applicants who
suffer from a symptom associated with a medical condition for which the prognosis
is death within 12 months.
v
Conditions: A medical
practitioner must provide a medical declaration indicating, among other
things:
·
The
applicant’s medical condition and the symptom that is associated with that
condition or its treatment;
·
The applicant
suffers from a terminal illness;
·
All
conventional treatments for the symptom have been tried or considered;
·
The recommended
use of marijuana would mitigate the symptom;
·
The benefits
from the applicant’s recommended use of marijuana would outweigh any risks
associated with that use;
·
The medical
practitioner is aware that no notice of compliance has been issued under the Food
and Drug Regulations concerning the safety and effectiveness of marijuana as
a drug;
·
The
applicant’s recommended daily dosage and period of use.
Category 2
v
Eligibility: Applicants who
suffer from specific symptoms associated with some serious medical conditions,
specially:
·
Multiple
sclerosis: severe
pain and/or persistent muscle spasms;
·
Spinal
cord injury:
severe pain and/or persistent muscle spasms;
·
Spinal
cord disease:
severe pain and/or persistent muscle spasms;
·
Cancer:
severe pain, cachexia, anorexia, weight loss, and/or severe nausea;
·
AIDS/HIV
infection: severe
pain, cachexia, anorexia, weight loss, and/or severe nausea;
·
Severe forms of
arthritis: severe pain; and
·
Epilepsy:
seizures.[26]
Source: Application for Authorization to Possess Dried Marihuana,
Category 2 – Medical Specialist Form
v
Conditions: Applicants must
provide a declaration from a medical specialist to support their application, indicating, among
other things:
·
The
applicant’s medical condition and the symptom that is associated with that
condition or its treatment;
·
The specialist
practises in an area of medicine that is relevant to the treatment of the
applicant’s medical condition;
·
All
conventional treatments for the symptoms have been tried or considered and were
found to be medically inappropriate for reasons outlined in the Regulations;
·
The recommended
use of marijuana would mitigate the symptom;
·
The benefits
from the applicant’s recommended use of marijuana would outweigh any risks
associated with that use, including risks associated with long-term use of
marijuana;
·
The medical
specialist is aware that no notice of compliance has been issued under the Food
and Drug Regulations concerning the safety and effectiveness of marijuana as
a drug; and
·
The
applicant’s recommended daily dosage and period of use.
Category 3
v
Eligibility: Applicants who
have symptoms associated with a medical condition, other
than those described in Categories 1 and 2.
v
Conditions: Declarations
from two medical specialists must
accompany the application. The first declaration must indicate all information
required under Category 2; all
conventional treatments that have been tried or considered for the symptom; and
the reasons, from those outlined in the Regulations, why the medical specialist
considers that those treatments are medically inappropriate.
Source: Application for Authorization to Possess Dried
Marihuana, Category 3 – First Medical Specialist Form
v The second declaration must indicate that, among other thingss: the specialist has reviewed the applicant’s medical file and the reasons why the conventional treatments are considered to be medically inappropriate; the specialist has discussed the applicant’s case with the first specialist and agrees that the recommended use of marijuana would mitigate the symptom, and the benefits of the applicant’s recommended use of marijuana would outweigh any risks associated with that use, including the risks associated with long-term use of marijuana; and the second specialist is aware that no notice of compliance has been issued under the Food and Drug Regulations concerning the safety and effectiveness of marijuana as a drug.
Dosage
The
medical practitioner or specialist sets the daily dosage. If the recommended
daily dosage is more than 5 grams per day, the medical practitioner or
specialist must indicate that he or she has considered the risks associated with
an elevated daily dosage of marijuana, including risks with respect to the
effect on the applicant’s cardio-vascular, pulmonary and immune systems and
psychomotor performance, as well as the potential for drug dependency; and that
in his or her medical opinion, the benefits of the applicant’s use of
marijuana according to the recommended daily dosage would outweigh the risks
associated with that dosage, including risks associated with the long-term use
of marijuana.
Maximum
quantity possessed
The
authorization to possess specifies the amount that may be possessed at any given
time is a 30-day treatment supply. As explained above, the medical practitioner
or specialist sets the daily dosage used to determine the 30-day treatment
supply.
Duration
Generally,
authorizations to possess are valid for one year and may be renewed.
Licence to produce
There
are currently two possible legal sources for holders of an authorization to
possess: they can grow their own supply or they can designate someone else to
grow it for them. Health Canada has stated that, in the future, they should also
be able to obtain it from a licensed supplier.
Only
holders of an authorization to possess (personal-use production licence) or
someone who has been designated as their representative (designated-person
production licence) are eligible to hold a licence to produce. A designated
person cannot be remunerated for their activities.
Conditions
for obtaining a licence to produce include the following:
v
A person cannot be the
holder of more than one licence to produce;
v
One site may be used for
the production of marijuana under a maximum of three separate licences;
v
The holder of a licence to
produce must maintain measures necessary to ensure the security of the product;
v
The production of marijuana
outdoors is not permitted if the production site is adjacent to a school, public
playground, day care facility or other public place frequented mainly by persons
under 18 years of age;
v
A person is ineligible for
a designated-person production licence, who has been found guilty of a
designated drug offence in the previous 10 years.
The
licence specifies the maximum number of plants that may be cultivated. The
licence also deals with the maximum quantity of dried marijuana that may be kept
in storage and, in the case of a designated representative, the transportation
of marijuana. The maximum amount of marijuana that may be cultivated and stored
at any time depends on the daily dosage that has been set by the medical
practitioner or specialist, and whether plants are grown indoors or outside. The
regulations also deal with inspection powers and record-keeping requirements.
Other provisions
There
are also provisions dealing with matters such as: measures to ensure the
security of the marijuana in the possession of an authorized person; the
revocation of licences; the showing of documents to police officers; the
referral to police of complaints received by inspectors; and the disclosure of
information about a medical practitioner to provincial licensing authorities of
medicine. Of note is a transitional provision extending section 56 exemptions
for an extra six months after the date of their expiry.
Health
Canada has established an ongoing review process to monitor the effectiveness
and application of the MMAR and provide advice on future measures related to the
manufacture, distribution and sale of marijuana for medical purposes. This
process involves a series of activities intended to collect information and seek
input on various aspects of the MMAR. A 15-member committee representing a
number of different stakeholder groups is currently being established, with a
its first meeting planned in October 2002.
Compassionate access?
One
of the objectives of the MMAR was to provide a compassionate framework for
medical access to marijuana. In addition, one of the criteria used in choosing
the current regulatory approach was that it “must
not unduly restrict the availability of marihuana to patients who may receive
health benefits from its use.”[27]
While
a process that authorizes the possession and production of marijuana has been
established in Canada, this has not ensured that cannabis is suitably available
to those in need. After careful review of the MMAR and thorough consideration of
the evidence submitted to us, it is apparent that the MMAR have become a barrier
to access. Rather than providing a compassionate framework, the regulations are
unduly restricting the availability of cannabis to those who may receive health
benefits from its use.
The
following was stated in the Regulatory Impact Analysis Statement that
accompanied the publication of the MMAR.
Due to anticipated increased visibility and efficiency of the new
regulatory scheme and increased awareness of the potential uses or medical
benefits of marihuana, it can reasonably be expected that the numbers of
applicants will increase significantly.
(emphasis added)
As
reported to us by Health Canada, as of 3 May 2002, 658 exemptions had been
granted under the authority of section 56, and 501 were still active. In terms
of the MMAR, 498 applications were received and 255 had been authorized as of
the same date. In addition, 164 personal production licences and 11 designated
personal licences have been issued. The rest of the files are open and are
incomplete, awaiting more information or undergoing review.[28]
Thus,
almost one year after the MMAR came into force, only
255 people have been authorized to possess marijuana for therapeutic purposes
and only 498 applications have been received. These numbers are significantly
lower than the number of exemptions that were granted under section 56 of the
CDSA. Although 501 exemptions under section 56 are still active, it is clear
that the number of applicants has not increased significantly as could
“reasonably be expected” under the MMAR. In fact, the stated efficiency of
the new regulatory scheme should be viewed with much scepticism. The low
participation rate, in itself, should raise serious concerns among those
sincerely aiming to provide compassionate access to cannabis for therapeutic
purposes. In addition, the following sections will set out some of the specific
problems that must be addressed if the regulatory scheme is to be truly
efficient and compassionate.
Eligibility
The
current framework requires an applicant to obtain a declaration from a medical
practitioner (or one or two specialists) indicating that the
recommended use of marijuana would mitigate the applicant’s symptom and that
the benefits from the applicant’s recommended use of marijuana would outweigh
any risks associated with that use. The medical practitioner must also determine
the applicant’s recommended daily dosage and period of use. A medical
practitioner is defined as someone who is authorized under the laws of a
province to practise medicine.
It is clear to everyone that requiring medical
practitioners to act as “gatekeepers” in the use of marijuana for
therapeutic purposes has created a major impediment to access, or, as Health
Canada states, “there is a conundrum”. The Canadian Medical Association and many other professional medical
organizations have refused to support the new federal application process
because of issues of patient safety, dosages, and the legal liability of
physicians prescribing cannabis.
This reluctance should not have come as a surprise to
Health Canada. During the consultation process with regard to the proposed
regulations, two medical associations and two provincial licensing authorities
opposed the use of smoked marijuana for medical purposes. Their reasons
included:
·
The lack of
scientific evidence supporting its use;
·
The fact that
marijuana is not an approved drug product;
·
The view that
the use of smoked marijuana is not an acceptable form of drug administration;
and
·
The view that
the responsibility placed on doctors to support the use of marijuana for medical
purposes may place them in conflict with professional conduct rules relating to
the use of unapproved or “alternative” medicines.[29]
The
position taken by the Canadian Medical Protective Association (CMPA) is fairly
reflective of the positions taken by other individuals and organizations in the
medical community. The CMPA is a medical mutual defence organization with 60,000 members–about
95 per cent of the physicians practising in Canada. It has warned its members
that they could expose themselves to liability or professional misconduct
complaints if they prescribe marijuana without “detailed knowledge” of the
drug’s risks and benefits and the appropriate dosage. The following was stated
in an information sheet sent to members:
Section
69 of the regulations allows a medical licensing authority to request from the
federal health minister information regarding a specific medical practitioner,
which may be provided if the minister has reasonable grounds to believe the
medical practitioner has made a false statement under the regulations. This is a
significant concern, as physicians may unknowingly make a false statement
because they are being asked to attest to matters that may go beyond the scope
of their expertise. As a result, the risk that physicians could be reported to
their College is increased.
The
fact that marijuana is not an approved drug product may lead some to conclude
marijuana is an alternative medicine. This raises the important point as
to whether the Colleges would consider physicians’ involvement in the
application for a licence to possess marijuana as requiring them to comply with
the policy of that College concerning alternative or complementary medicines.
The CMPA advises physicians to ascertain from their regulatory authority what
their position is in this regard.
Given
the consequences that may befall physicians with respect to their licensing
body, or potential medico-legal liability, physicians will want to be very
careful when determining whether to assist a patient in making an application
under these regulations. [30]
The CMPA
has also stated that the information about the effectiveness of medical
marijuana in each patient’s case, the relative risks and benefits of the drug
and what dosage would be appropriate is “simply is not available,” making it
nearly impossible for the vast majority of doctors to comply with requirements
of the MMAR. It views the MMAR as placing “an
unacceptable burden on member physicians” and states that, since “many
physicians would not have the necessary knowledge about the effectiveness, risks
or benefits of marijuana, we believe it is unreasonable to make physicians
gatekeepers in this process.”[31]
The CMPA advised its members as follows:
As
you will see from the attached Information Sheet, now in the hands of our
members, we have advised those physicians who are not or do not feel qualified
to make those assessments to refrain from signing a declaration for a patient.
We also advised our members to explain to their patients why they do not have
the knowledge about marijuana, and to refer the patient to another physician, if
known, with more experience in the medical use of marijuana.
Finally,
recognizing that some physicians, out of compassion for their patients, may
believe in good faith that their medical condition would benefit from marijuana,
we have advised them to complete only Parts 1 and 2 of the form and to NOT
complete Parts 3, 4 and 5, leaving Health Canada to decide whether to process an
incomplete application. [32]
Clearly,
under these circumstances, patients will have
difficulty finding a medical practitioner willing to complete the required
declaration forms, and even more difficulty accessing the appropriate
specialists. This situation has created an unacceptable barrier to access and
one must conclude that physicians should not be the “gatekeepers” under the
MMAR, a responsibility that they themselves do not desire. Even Health Canada
recognizes that there is a problem.
Without
that scientific evidence, the doctors are in a legitimate quandary. For other
therapeutic products, doctors rely on information that Health Canada either
develops or analyzes through the drug review process. That is the basis for
doctors’ understanding of the particular products. They do not have that
analysis in this particular situation.
Through
the marijuana medical access regulations, we have eliminated the criminality of
possessing and growing for your own purposes. That is the regulatory regime that
is in place. We are working with Prairie Plant Systems, as Ms Lynch has
said, to develop a research source for this product that will be made available
through legitimate clinical trials for patients.
Until
such time as we can begin to get the results of the research and until the
medical community can determine whether it will prescribe this in legitimate
circumstances, there is a conundrum. [33]
The
involvement of physicians in the process is not questioned–what must be
determined is their proper role with respect to use of cannabis for therapeutic
purposes. Physicians are trained to provide a diagnosis of a person’s medical
conditions and symptoms and to determine how to treat these conditions and
symptoms medically. Most do not have, however, adequate knowledge of the
therapeutic benefits of cannabis and are reluctant to associate themselves with
this product for a variety of reasons, including its illegality. In our view,
and as we have explained in detail in Chapter 9, a distinction must be made
between an approved medicine per se and a substance that has, at the very least,
potential therapeutic applications–although these may not have been
“scientifically” confirmed to date. Chapter 9 enumerates the conditions
and symptoms for which cannabis has potential therapeutic applications.
Let us be clear: we do not view cannabis as a “miracle” substance
that will treat or cure numerous medical conditions or symptoms. It is a
substance, however, that is known to provide effective relief of certain medical
conditions and symptoms, thus improving the quality of life of many individuals.
In these
circumstances, the proper role of the physician should be to make a diagnosis of
the patient’s medical conditions or symptoms. If the condition or symptom is
one where cannabis has potential therapeutic applications, the patient would be
authorized to use the therapeutic product of his or her choice, including
cannabis. This would also mean eliminating the current requirement that all
other “conventional treatments” have been tried or
considered before the use of cannabis is authorized. There is no justification
for making cannabis an option of “last resort.”
The
requirement for specialist involvement in the current scheme clearly can lead to
long delays. To make matters worse, the stated positions of medical
organizations would make it very difficult to get two specialists to make the
required declarations. This creates
another unwarranted barrier.
The
requirement to involve a medical specialist in the authorization of possession
of medicinal cannabis is unjustified, unfounded, unrealistic and punitive. It
negates timely access, and places au unjustified burden on both the patient and
the Health Care system. Many patients already wait from nine months to a year to
see a specialist. This means that those waiting for authorization to access
medicinal cannabis may be on hold for upwards of a year. This is an inhumane
wait to force upon those in dire medical need. In addition, it will
unnecessarily exacerbate already extensive waiting lists for specialists,
meaning those in genuine need of the specialists will unduly suffer. [34]
The
conditions and symptoms for which cannabis use would be authorized are set out
in Chapter 9. New
conditions or symptoms would be added based on ongoing research.
We
are aware that the 1961 Single Convention
on Narcotic Drugs would seem to require medical prescriptions for the supply or dispensation of drugs to
individuals.[35] We make two comments:
·
International
conventions are generally subject to a country’s constitutional provisions. As
previously discussed, courts in Canada have found that depriving an individual
of the ability to choose marijuana as medication to alleviate the effects of a
serious illness does violate the rights protected under the Canadian
Charter of Rights and Freedoms unless there is a statutory exemption scheme
authorizing such use. The courts have indicated that, where a statutory
exemption scheme turns out to be “illusory,” a constitutional exemption will
be granted. The stated positions of Canadian medical organizations may make the
current MMAR exemption scheme turn out to be “illusory.”
·
It is better to
look to the spirit rather than the letter of the Convention.
While cannabis may not be an approved medicine per se, there is no
doubting its potential therapeutic applications. Thus, the Government of Canada
should advise the international community that we will not strictly adhere to
this requirement and that we will be requesting appropriate amendments to the
international conventions.
Access to cannabis
Concerns
regarding patients’ ability to grow marijuana on their own or to find a person
willing and able to do it for them were often raised. This problem is compounded
by the condition in the MMAR that a person cannot be the holder of more than one
licence to produce. Problems associated with the present scheme include
a lack of experience in cultivation; products of unknown potency and
quality; security risks related to cultivation of marijuana; etc.
Undoubtedly,
patients must have access to safe and high-quality cannabis products. The
current option of self-cultivation should remain open for those who prefer this
avenue. In such cases, the patient would register directly with Health Canada.
In cases where self-cultivation is not appropriate or feasible, access should be
permitted through properly regulated Dedicated
Cannabis Distribution Centres. These centres would be staffed by personnel
with knowledge of the therapeutic use of cannabis, who could advise patients on
the dosage, strain and potency best suited for their particular conditions. The
failure to obtain a domestic source of research-grade marijuana, as had been
planned, provides further justification for allowing distribution centres to
dispense high-quality cannabis to eligible patients. In addition, we are
convinced that the government should not be the only distributor of cannabis
intended for therapeutic purposes. Currently, Compassion Clubs play a very
important role in distributing cannabis to those who need it for therapeutic
purposes. For example, the B.C. Compassion Club Society is a registered non-profit society that has
been distributing cannabis for medical use since 1997.
It employs a
staff of 28 and serves a membership of approximately 1,600 people. Before
registering a member, the club requires a confirmation of diagnosis and a
recommendation for cannabis from a physician, naturopathic doctor or a
psychiatrist. If a doctor will not sign a recommendation solely because he or
she is uncomfortable with the legal status of cannabis, or has concerns about
professional retribution, the club may register the patient without a doctor’s
recommendation, depending on the severity of the diagnosis. Similar Compassion
Clubs exist elsewhere in Canada.[36]
Access
to a variety of strains of cannabis with varying levels of potency is crucial.
For example, the B.C. Compassion Club Society currently stocks many varieties of
cannabis products.
Our
daily menu usually has seven to ten varieties of cannabis, one or two varieties
of hashish, cannabis tincture and baked goods. It is important that medicinal
users have access to a variety of strains, as the effect of cannabis varies
depending on which strain is being used and the method of ingestion. Our members
are made aware of the differences and can then select the best strain of
cannabis to most effectively treat their symptoms. [37]
High-quality
products would be ensured through proper testing. The importance of testing was
raised as a key issue.
It
is absolutely crucial in the developments on which we are working – and that
we would like to continue – to have strict guidelines in terms of moulds and
mildews, pesticides, fungicides, heavy metals and the kinds of things – which
can be very dangerous – that you find in non-organic cannabis. Even in organic
cannabis, some of those elements of microbiology can be very harmful to people,
especially for people with depleted immune systems. We can only develop such
standards when the medical marijuana community has access to laboratories. I
think that there are all kinds of standards that can be developed in terms of
safety and cleanliness in growing and distribution. [38]
Despite
what most would view as laudable motives–distributing cannabis to patients in
order to alleviate their suffering–most of the existing clubs have faced or
are facing difficulties with the justice system. Because they are operating in a
grey area, those involved in these clubs are subject to prosecution and have in
fact been prosecuted. For example, we heard from Philippe Lucas, director of the
Vancouver Island Compassion Society (VICS), who indicated that he had been
arrested and charged with possession for the purposes of trafficking because of
his work with VICS. Mr. Lucas pleaded guilty to the charge but was recently
granted an absolute discharge. Some of the comments made by the judge at
sentencing are certainly relevant to this chapter. On the question of
eligibility, the judge stated the following:
This
case must be viewed in a broad context, in which to date, the combination of
federal regulations and College of Physicians trepidation has made it extremely
difficult for applicants to obtain approval to use marijuana. [39]
He added
the following with respect to access to marijuana:
Further,
the federal government has so far been unable to ensure any legal supply of
marijuana to those whom Health Canada thinks need it as a therapy. This is a
particular hardship for those who cannot grow it.
…the
Crown cannot rely upon the argument that there is a lawful option for those in
need of the drug when the evidence establishes that the drug is only
theoretically available through legitimate sources. [40]
In
conclusion the judge stated the following.
I
find that while there is no doubt that Mr. Lucas offended against the law by
providing marijuana to others, his actions were intended to ameliorate the
suffering of others. His conduct did ameliorate the suffering of others. By this
Court’s analysis, Mr. Lucas enhanced other peoples’ lives at minimal or no
risk to society, although he did it outside any legal framework. He provided
that which the Government was unable to provide a safe and high quality supply
of marijuana to those needing it for medicinal purposes. He did this openly, and
with reasonable safeguards. The fact that he has stated he will continue this
activity points to the sincerity of his principles, and points to our need as a
society to get this thorny issue resolved quickly by either Parliament or the
Supreme Court of Canada. If he re-offends, he will have to argue his case again,
and may find a discharge difficult to obtain in the future. This court hopes
that cooler heads will prevail pending the final resolution of issues regarding
the medical and non‑medical use of marijuana. [41]
In
Montreal, we heard how two volunteers of the Club
Compassion de Montréal had been arrested only three months after they
started operations. A decision is expected by the end of August 2002.
Encouragingly, Hilary Black, founder and director of the B.C. Compassion
Club Society, stated that the local police had generally been “wonderfully supportive of their work.” However, her next
statement reveals readily apparent contradictions.
Police
who have come to the Compassion Club Society have told me what great work we are
doing, and have, on one occasion, protected a safe full of cannabis on our
behalf. However, I have had a police gun held to my head for being at a growing
facility. While I met with the federal health minister, Alan Rock, to give
recommendations and information Health Canada had requested from us, the RCMP
raided a greenhouse that was growing low cost, organic cannabis for the
Compassion Club Society. While I am here before you, sharing our information as
experts in the distribution of medicinal cannabis, my colleagues risk arrest,
imprisonment, their ability to travel, to be employed, and their freedom to
distribute cannabis to those in need. Prohibition is not protecting Canadians
from the evils of cannabis; prohibition is destroying Canadians’ lives. [42]
Because
these organizations are presently operating in a grey area we would hope that
those in charge of enforcement would use their discretion powers liberally and
that cooler heads will prevail. Some of the statements made by Hilary Black led
us to be optimistic in this area. Clearly, in other areas of the country, the
political climate will have to change.
In
order to create a transparent therapeutic distribution system, these centres
should be licensed and properly regulated. The conditions of their operation
should include a requirement that they be authorized only to distribute cannabis
for therapeutic purposes to those who have been diagnosed as having an
enumerated condition or symptom. In addition, the distribution centres would be
required to keep suitable records and make periodic reports. The purpose of such
information would be to keep Health Canada informed of the centres’ members
for registration purposes and also to provide valuable information for
scientific research. Thus, the records would include information on a
patient’s medical condition and its evolution, the amounts consumed and the
observed effects on the patient. The centres would also be required to ensure
that security measures are in place and would be subject to inspections to
ensure compliance with the regulations.
While
added regulation will increase the costs of these distribution centres, this is
essential to ensure proper controls over therapeutic use of medicinal cannabis.
We insist that the costs of this regulatory scheme be kept to a minimum so as
not to impede access to cannabis through inflated prices.
With
respect to obtaining products, centres would agree to be supplied only by
licensed producers. Such producers would be able to cultivate cannabis only for
therapeutic purposes–since the separation of the therapeutic system from the
recreational system is crucial. Licensed producers would be properly
regulated–in particular, to ensure adequate safety measures are in place–and
would be required to produce safe, high-quality products.
Products
Currently,
the MMAR authorize possession of only dried marijuana, and not other cannabis
products. We do not feel that this is justified and would recommend that the
scheme be expanded to cover other cannabis derivatives .
Costs
We
heard on several occasions that patients using cannabis for therapeutic purposes
were often suffering from serious debilitating diseases, which negatively
affected their financial situations. We recognize that drug coverage by
insurance plans is generally a provincial responsibility. However, we believe
that the purchase of marijuana for therapeutic purposes, and the purchase of
equipment necessary for its cultivation, should be considered a medical expense
for the purposes of the Income Tax Act.
|
Marihuana Medical Access Regulations |
Committee
Proposals |
|
Eligibility
|
Eligibility
|
|
Access ·
Patients are limited to growing
their own supply or designating someone to grow it for them |
Access ·
Patients would be allowed to grow
cannabis themselves or obtain it from dedicated distribution centres
supplied by licensed producers |
|
Products
|
Products
|
|
Dosage ·
Set by medical practitioner |
Dosage ·
Would be determined by patient in
association with the dedicated distribution centre |
Research plan
Health
Canada’s Office of Cannabis Medical Access is responsible for the
administration of the MMAR. It also co-ordinates other initiatives related to
cannabis, including research on the safety and effectiveness of marijuana used
for therapeutic purposes and the establishment of a reliable Canadian source of
research-grade marijuana.
As
stated previously, Health Canada released a report in June 1999 announcing a
research plan for the therapeutic use of marijuana. The document[43]
laid out a five-year research plan for evaluating the risks and benefits of the
use of marijuana for medical purposes. The plan included the following elements:
v
a research agenda composed
of projects to address the issues of safety and efficacy of smoked marijuana and
cannabinoids;
v
mechanisms for medical
access to marijuana outside the projects (for example section 56 exemptions
discussed previously in this chapter); and
v
the development of a
Canadian source of research-grade marijuana.
Scientific
research
As
part of the government’s strategy to address the issue of medical marijuana,
Health Canada decided to sponsor research activities to evaluate the safety and
efficacy of smoked marijuana and of cannabinoids. Health Canada was concerned
that the evidence of the therapeutic value of smoked marijuana was heavily
anecdotal and that the scientific studies supporting the safety and efficacy of
marijuana for therapeutic claims were inconclusive. Health Canada was also
concerned about the health risks associated with the use of marijuana,
especially in smoked form.
The
strategy has been developed with advice from the Therapeutic Products
Programme’s (TPP) Expert Advisory Committee on New Active Substances, an
external body of scientific and medical experts who provided advice to the TPP.
Currently,
there is a partnership program between Health Canada and the Canadian
Institutes of Health Research (CIHR), a granting agency. This is to
ensure scientific validity of the studies. The Health
Canada/CIHR Medical Marijuana Research Program (MMRP) has been established as a
five-year research plan with estimated funding of up to $7.5 million. The
initial focus is on the smoked form of marijuana, although future initiatives
are also to focus on non-smoked marijuana and
cannabinoids.
We are
aware of at least two studies that have been planned:
v In July 2001, Health Canada and the CIHR announced a contribution of $235,000 to fund a pilot study at McGill, with about 32 patients, aimed at evaluating the effects of smoked marijuana for chronic neuropathic pain.
v
In June 2001, Health Canada announced funding
of $840,000 to support a research project by the Community Research Initiative
of Toronto (CRIT) on the efficacy of smoked marijuana in the treatment of
wasting syndrome in those living with HIV/AIDS. At the time, it was entering the
second phase of a three-part research project on smoked marijuana – The
acute effects of smoked cannabis on appetite in persons living with HIV/AIDs
(PHAs): A randomized, double-blind, placebo-controlled, crossover pilot study.
It
should be noted, however, that neither of these projects is currently under way
because they do not have access to marijuana.
In
addition to pilot projects, Health Canada has announced that research-grade
marijuana will be provided to eligible individuals who agree to provide health
information for monitoring and research purposes. Health Canada will collect and
analyse this information for research purposes. Once again, Health Canada has
yet to provide marijuana to authorized users.
Health
Canada has indicated that the knowledge gained from the overall research program
will be used, in part, to amend the MMAR if necessary. For example, category 2
symptoms may need to be adjusted or the daily dosage may need to be more
precisely determined. Health Canada also indicated that if no benefits were
shown, the continued need of the MMAR would be in doubt.
Clearly,
research on the therapeutic aspects of marijuana is essential. While Health
Canada should be applauded for establishing a research plan, what is less
commendable is the pace at which the research is progressing. As stated, the
authorized pilot projects have yet to commence their research because Canada
must rely on an American source for research-grade marijuana. This means that
American institutions, in particular the National Institute on Drug Abuse, are
entitled to review Canadian research protocols to determine whether or not they
will deliver their marijuana products to Canadian researchers.
Our
first source or our first attempt at sourcing the marijuana for research
purposes was through NIDA, the National Institute on Drug Abuse in the States.
They have seed and dried product. We are still negotiating with them to get some
dry product.
In
order to use their product, we have to have the protocols that the product will
be used for approved by both the health department there and NIDA themselves.
Once they have approved the actual scientific protocol, then it has to go to the
DEA to see if they will allow the export. [44]
While
further research is essential, it does not suggest that therapeutic use is not
justified in specified circumstances. The ongoing research should focus on
confirming its justification and on
identifying new medical conditions or symptoms for which cannabis has
therapeutic value. Research to determine the value of cannabis as a medicine per
se should also be a priority, as should finding alternative delivery systems
that are as effective as smoked cannabis.
Before leaving the issue of research, mention should be
made of the considerable
expertise and knowledge currently residing in the Compassion Clubs, which have
become established outside of the legal system. This source of valuable
information and expertise has not been acknowledged under Health Canada’s
current research plan. We feel strongly that the
information they have must be gathered and analysed for research purposes. The
validity of ongoing research using what some consider to be low-quality,
low-potency cannabis imported from the National Institute on Drug Abuse or
similar type of product that may be produced in Canada must also be called into
question. Hilary Black, founder and co-director of the B.C. Compassion Club
Society, stated the following.
We
created a research proposal with a team of research scientists from Vancouver.
However, we were turned down because we refuse to facilitate a study using a
placebo or low-quality, low-potency cannabis imported from the US National
Institute on Drug Abuse. Any study attempting to prove the efficacy of cannabis
as a medicine using such a low-potency herb, or unknown strains such as those
currently being grown in Canada by Plant Prairie Systems, is destined to fail.
There is no need to import cannabis for research, considering the high quality
and huge quantity of cannabis being produced in Canada. The information we could
gather is being requested by doctors, patients, pharmaceutical companies, Plant
Prairie Systems and Health Canada, yet we are not financially empowered to
facilitate this research. [45]
Research-grade marijuana
As
was previously stated, another priority in Health Canada’s research plan was
the development of a Canadian source of research-grade marijuana. A request for
proposal (RFP) was released on 5 May 2000 through Public Works and Government
Services Canada. The purpose of the RFP was to establish a Canadian source of
quality, standardized, affordable, research-grade marijuana for scientific
research. Originally, the marijuana was to be made available only to qualified,
approved scientists for research. A number of proposals were received by the
closing date of 28 June 2000. The evaluation criteria included: financial
status, qualifications of personnel, security requirements respecting personnel,
etc. No experience in growing marijuana was required, although there was a
requirement for experience in growing plant material for human consumption.
In
December 2000, a contract was awarded to Prairie Plant Systems Inc. of Saskatoon
(PPS) to provide Health Canada with a reliable source of affordable, quality,
standardized marijuana for medical and research purposes. Health Canada also
announced that until the domestic supply was established, it would submit
requests to the U.S. National Institute of Drug Abuse to obtain research-grade
marijuana for clinical trials being conducted in Canada on behalf of
researchers.
PPS met
the contract requirements for security and was given authorization to begin
growing marijuana. The site chosen for the cultivation of research-grade
marijuana in Canada was an abandoned mine in Flin Flon, Manitoba. While to some
this appears comical, Health Canada justifies this decision because of the
security this location provides and the opportunity to control the temperature,
the humidity and the growing conditions.
The
first product was expected to be delivered to Health Canada by early 2002. Under
the terms of the five-year, $5.7 million contract that Prairie Plant
Systems Inc. signed with Health Canada, the company would
v Set up and operate a marijuana growing, processing, fabrication and storage establishment;
v Conduct laboratory testing and quality control of marijuana throughout the product life cycle;
v Fabricate, package, label and store marijuana material;
v Distribute marijuana product to recipients authorized by Health Canada; and
v Conform to the requirements of the CDSA including stringent security and physical measures.
Health
Canada also announced that this product would, in addition to use for research
purposes, be made available to authorized Canadians using it for medical
purposes who agree to provide information to Health Canada for monitoring and
research purposes.
This
spring, Health Canada revealed that the first crop could not be used for
research purposes because of the varying quality. While they had hoped to obtain
seeds from the National Institute on Drug Abuse, the
seeds that were used were obtained from police seizures in Canada. This led to a
collection of marijuana with different strains and characteristics. Health
Canada states the importance of research-grade marijuana as follows:
Going
back to the comments we made earlier on why Health Canada is involved in the
study of medical marijuana, it is to determine whether to develop the scientific
evidence that is required to determine whether there is a benefit. In order to
develop that scientific evidence, one must have a base product that meets
research standards. It was not a question of whether Prairie Plant Systems did
in fact grow marijuana; it was a question of whether the product they developed
was consistent, research‑grade standard such that it could be used in
legitimate scientific research. [46]
While we
are sympathetic to this argument, there would appear to be no justification for
not supplying this product to those who have been authorized to do so under the
CDSA, particularly since the safety of the product, in regard to pesticides,
moulds, etc., should not be in question.
Conclusions
We
would like to emphasize that the changes we propose to the MMAR still ensure
that therapeutic use is limited to cases of legitimate medical need and that
distribution and production is done under governmental licence.
|
Conclusions of Chapter 13 |
|
|
|
Ø
The MMAR
are not providing a compassionate framework for access to marijuana for
therapeutic purposes and are unduly restricting the availability of
marijuana to patients who may receive health benefits from its use. Ø
The
refusal of the medical community to act as gatekeepers and the lack of
access to legal sources of cannabis appear to make the current regulatory
scheme an “illusory” legislative exemption and raises serious Charter
implications. Ø
In almost
one year, only 255 people have been authorized to possess marijuana for
therapeutic purposes under the MMAR and only 498 applications have been
received – this low participation rate is of concern. Ø
Changes
are urgently needed with regard to who is eligible to use cannabis for
therapeutic purposes and how such people gain access to cannabis. Ø
Research
on the safety and efficacy of cannabis has not commenced in Canada because
researchers are unable to obtain the product needed to conduct their
trials. Ø
No
attempt has been made in Health Canada’s current research plan to
acknowledge the considerable expertise currently residing in the
compassion clubs. Ø
The
development of a Canadian source of research-grade marijuana has been a
failure. |
[1]
Two commercially available drugs related to cannabis have been approved for
sale in Canada: Marinol, which
contains chemically synthesized THC; and Cesamet, a synthetic cannaboid. Both may be prescribed by physicians.
[2]
S.C. 1996, Chapter 19.
[3]
These drugs are set out in the schedule and include opium,
codeine, morphine, heroin, cocaine, and cannabis.
[4]
R.S.C.
1985, Chapter F-27.
[5]
In June 1999, Health Canada released a report announcing a research
plan for the use of marijuana for therapeutic purposes and stating that
steps would be taken to establish a domestic source of research-grade
marijuana. Both of these initiatives are discussed in more detail in
subsequent sections of this chapter.
[6]
Participants included representatives from law enforcement,
practicing physicians, research clinicians, National Association of Pharmacy
Regulatory Authorities, Health Canada and others of unknown affiliation.
[7]
Regulatory Impact Analysis Statement accompanying the Marihuana
Medical Access Regulations, p. 17.
[8]
This section is based largely on Drug
Prohibition and the Constitution, a paper prepared for the Senate
Special Committee on Illegal Drugs, by David Goetz, Law and Government
Division, Parliamentary Research Branch, Library of Parliament, 1 March
2001.
[9]
[1998] O.J. No. 3522 (Ont. Gen. Div.).
[10]
Ibid.,
at paras. 49-50.
[11]
Ibid.,
at para. 54.
[12]
Ibid.,
at para. 66.
[13]
[1999] O.J. No.
1574, at paras. 11, 31 and 32.
[14]
49 O.R. (3d) 481.
[15]
Ibid.
[16]
Ibid., at
para. 155.
[17]
Ibid.,
at para. 163.
[18]
Ibid.,
at paras. 184-185 and 188.
[19]
Ibid.,
at paras. 191-194.
[20]
Ibid.,
at para. 190.
[21]
Health Canada, News Release, Minister
Rock announces intention to develop new approach for the use of marihuana
for medical purposes, 14 September 2000.
[22]
Key stakeholders included representatives from the Canadian Medical
Association, the Canadian Pharmacists Association, the Canadian AIDS
Society, the RCMP, Solicitor General Canada, Department of Justice,
Correctional Service Canada and the Canadian Association of Chiefs of
Police.
[23]
Health Canada, Information, Marijuana
Medical Access Regulations – Amendments Resulting from Public
Consultations, July 2001.
[24]
Health Canada, Information, Medical
Access to Marijuana – How the Regulations Work, July 2001.
[25]
Regulatory Impact Analysis Statement accompanying the Marihuana
Medical Access Regulations, page 8.
[26]
These symptoms are listed in a Schedule to the MMAR and were selected based
on the outcome or conclusions of scientific and medical reports, although
seizures associated with epilepsy were added in view of the findings in the Parker
decision. This list is intended to be reviewed on a regular basis and is to
be amended as new information becomes available.
[27]
Regulatory Impact Analysis Statement accompanying the Marihuana
Medical Access Regulations, page 13.
[28]
Gillian Lynch,
Director General, Drug Strategy and Controlled Substances Programme, Health
Canada, Proceedings of the Special Committee on Illegal Drugs, Senate of
Canada, First Session, Thirty-Seventh Parliament, 2001-2002, Issue No. 22,
page 32.
[29]
Regulatory Impact Analysis Statement accompanying the Marihuana
Medical Access Regulations, p. 19.
[30] Canadian Medical Protective Association, What To Do When Your Patients Apply For A Licence To Possess Marijuana
For Medical Purposes, October 2001.
[31]
Canadian Medical Protective Association, letter to the Honourable Allan
Rock, Q.C., 8 November 2001.
[32]
Ibid.
[33]
Dann Nichols, Assistant Deputy Minister, Healthy Environments and Consumer
Safety Branch, Health Canada, Proceedings of the Special Committee on
Illegal Drugs, Senate of Canada, First Session, Thirty‑Seventh
Parliament, 2001-2002, Issue No. 22, pages 37-38.
[34]
B.C. Compassion Club Society, BCCCS
Response to Health Canada’s Proposed Medical Marijuana Access Regulations,
4 May 2001, page 4.
[35]
Single Convention on
Narcotic Drugs, 1961,
Article 30.2.b.i.
[36]
For example, the
Vancouver Island Compassion Society currently has 235 members and the Club
de compassion de Montréal has 130 members.
[37]
Proceedings of the Special Committee on Illegal Drugs, Senate of Canada,
First Session, Thirty-seventh Parliament, 2001, Issue no. 10, page 36
[38]
Ibid.,
page 44.
[39]
R.
v. Lucas, Provincial Court of British Columbia, Victoria, File No:
113701C, para. 47 (Honourable Judge Higinbotham).
[40]
Ibid.,
para. 47-48.
[41]
Ibid.,
para. 49
[42]
Proceedings of the Special Committee on Illegal Drugs, Senate of Canada,
First Session, Thirty-seventh Parliament, 2001, Issue no. 10, page 41.
[43]
Health Canada, Therapeutics Products Programme, Research
Plan for Marijuana for Medicinal Purposes : A Status Report, 9
June 1999.
[44]
Gillian Lynch, Director General, Drug Strategy and Controlled Substances
Programme, Health Canada, Proceedings of the Special Committee on Illegal
Drugs, Senate of Canada, First Session, Thirty-Seventh Parliament,
2001-2002, Issue No. 22, pp. 47-48.
[45]
Proceedings of the Special Committee on Illegal Drugs, Senate of Canada,
First Session, Thirty-seventh Parliament, 2001, Issue no. 10, p. 10 :38-10 :39.
[46]
Dann Nichols, Assistant Deputy Minister, Healthy Environments and Consumer
Safety Branch, Health Canada, Proceedings of the Special Committee on
Illegal Drugs, Senate of Canada, First Session, Thirty‑Seventh
Parliament, 2001-2002, Issue No. 22, page 46.
Chapter
14
Police
Practices
Views
on police priorities regarding enforcement of laws on illicit drugs are, at the
very least, inconsistent, if not completely contradictory. Some believe that too
much police time, effort and resources are spent in investigating illicit drug
offences and, more specifically, possession offences – even more specifically,
cannabis possession offences. Others–including the police themselves – claim
that police priorities are already focused on traffickers and producers, and
that possession charges are laid as a result of police presence to deal with
other criminal activity. Thus, they maintain that the vast majority of cannabis
possession charges are incidental to other police responsibilities.
This
chapter will review the key organizations that are responsible for enforcing
Canada’s current illicit drugs legislation, the Controlled Drugs and Substances Act (CDSA). It will include a
discussion of the powers they have been granted, and the investigative
techniques used, in relation to illicit drug investigations. Finally, key
police-related statistics will be explored. This information should help clarify
some of the misconceptions related to enforcement of laws on illicit drugs.
Enforcement
agencies
Several
organizations play a role in enforcing Canada’s illicit drug legislation.
This section will review three: the RCMP, the Canada Customs and Revenue
Agency (CCRA), and provincial and municipal police forces. These key players
co‑operate with many other organizations when required, such as National
Defence, Fisheries and Oceans, and the Canadian Coast Guard.
The
RCMP
The
RCMP’s role and mandate is to enforce laws, prevent crime, and maintain peace,
order and security. The RCMP is involved mainly in four components of Canada’s
Drug Strategy: enforcement and control; national co‑ordination;
international co-operation; and prevention programming.
At the
national level, the RCMP’s drug enforcement responsibilities are primarily
carried out by two groups:
v
The Drug Enforcement
Branch: with approximately 900 employees, this branch is responsible for drug
enforcement in Canada through its head office in Ottawa and its divisional drug
enforcement units located throughout the country. The Branch also provides rapid
communication to members of the international drug enforcement community.
v
Integrated Proceeds
of Crime Initiative: with about 415 employees, this group is responsible for
investigating persons for proceeds of crime and seizing assets obtained through
criminal activities. With an estimated 90 per cent of seizures related to drugs,
it is primarily a drug-related initiative. The 13 units are staffed with a mix
of: federal, provincial, and municipal police; Justice counsel; customs
officers; tax investigators; asset managers; and forensic accountants. Cases
tend to be complex and lengthy.
These
two services also receive assistance from other RCMP sections such as
intelligence and other specialized investigation services, including electronic
and physical surveillance. Their current priorities lie in the investigation and
arrest of upper echelon criminal organizations, involved in the drug trade, and
in the seizing of proceeds of crime. The RCMP has adopted an intelligence-driven
approach and conducts project-oriented investigations–for example, focusing on
organized crime. It gathers information that is fed through its intelligence
process to identify the main threats across the country. National priorities are
based on these threat assessments so that resources will be focussed on the
areas of greatest risk to Canadians. National priorities are reassessed,
modified and retargeted based on gathered intelligence. Within those national
priorities – for example, outlaw motorcycle gangs – particular groups will
be specifically targeted. This approach has resulted in cases that are complex
and lengthy and consume significant resources. Many of these investigations can
take many years to come to fruition.
When it
appeared before the Committee in October 2001, the RCMP set out the following
national priorities:
Our
current strategic national priorities are outlaw motorcycle gangs, Asian-based
organized crime, Italian-based organized crime, and Eastern European-based
organized crime. These are national targets; they are not drug targets. These
are the RCMP national targets. These groups are involved in all commodity areas.
However, you will notice that all four groups are involved in illicit drugs [1]
The RCMP
works closely with other national and international enforcement agencies in its
efforts to reduce the supply of drugs in Canada. In this function, it will
regularly participate in joint forces operations–which can be permanent
working groups or temporary operations aimed at a specific target–to
co-operatively investigate criminal activity and exchange intelligence. Liaison
is maintained with provincial and municipal police
departments, Interpol, the United Nations, the Organization of American States,
National Defence, Fisheries and Oceans, Correctional Service of Canada, the
Canadian Coast Guard, as well as Customs authorities and drug enforcement
agencies worldwide, such as the Drug Enforcement Administration, FBI and U.S.
Customs.
The RCMP
is also involved in drug prevention and has established a Drug Awareness
Service. With a budget of $4 million and 31 employees, this Service is
responsible for going into the community to educate students, parents, athletes,
coaches, employees, employers and community groups. The RCMP–including all
personnel and not only the 31 full-time employees–makes over 10,000
presentations per year. Programs include Drug Abuse Resistance Education (DARE)[2],
the Aboriginal Shields Program, the Two-way Street: Parents, Kids and Drugs, and
the Drugs and Sport Program.
In
addition to its federal responsibilities, the RCMP is involved in local
enforcement as part of the provincial and municipal policing responsibilities it
performs under contract. Sgt. MacEachern, Drug Enforcement Coordinator in New
Brunswick, provided the following explanation:
The
RCMP has a contractual obligation to the Province of New Brunswick and, as such,
we provide policing services to all rural areas of the province, a large number
of the smaller service districts and small municipalities, and as well a
significant number of larger municipalities. In addition, we have federal law
enforcement units throughout the province, and for drug enforcement we have
offices and suboffices in Bathurst, Moncton, Saint-Leonard, Saint John and
Fredericton.
Simply
put, our federal enforcement personnel dedicate themselves to larger scale
investigations involving organized criminal groups at the provincial,
interprovincial, national and international levels. Our provincial or contract
detachments are tasked with targeting local or street level drug traffickers,
but often, in the interests of addressing a significant local trafficking
situation, our federal units combine resources with our detachments to pursue a
specific goal. [3]
While
enforcement statistics are discussed in greater detail in following sections of
this chapter, it is interesting to note that, according to the following chart
from the Auditor General’s 2001 Report,[4]
the RCMP was responsible for approximately 24% of all charges under the Controlled
Drugs and Substances Act in 1999, with only 4% of the charges relating to
its federal policing services. In this chart, the number of persons charged is
according to the most serious offence in a given incident and means persons
charged by police or persons against whom the police recommended charges be
laid.
Charges under the Controlled
Drugs and Substances Act in 1999
The
Canada Customs and Revenue Agency
[5]
The
CCRA–currently with over 8000 employees–has always played a key role in drug
enforcement in Canada and is responsible for intercepting drugs at the point of
entry. This is a significant task because many of the illicit drugs found in
Canada are smuggled across our borders – although this statement may be less
accurate with respect to cannabis, because of local production.
The Customs
Act grants customs officers certain powers. Section 98 authorizes an officer
to search a person arriving in Canada if the officer
suspects on reasonable grounds that the person has secreted on or about his
person: anything in respect of which the Act has been or might be contravened;
anything that would afford evidence with respect to a contravention of this Act;
or any goods the importation or exportation of which is prohibited, controlled
or regulated under the Act or any other Act of Parliament. In addition, section
99 authorizes examination of goods that have been imported into Canada.
The CCRA
deals with several types of contraband, including firearms, alcohol, tobacco and
drugs. Like that of the RCMP, its work is intelligence-based, using information
gathered through its own extensive intelligence network and through other
enforcement agencies (both nationally and internationally). Thus, its contraband
and intelligence program works with national and international enforcement
agencies to develop information, indicators and trends to help identify
suspicious shipments and/or persons before they arrive at the border.
The
enforcement programs are based on strategic planning, risk management,
information gathering and dissemination, partnerships, and effective training of
personnel. The Contraband and Intelligence Services Directorate–with illegal
drugs as its first priority–is responsible for the design, development, and
implementation of strategies with regard to anti-smuggling and intelligence
programs. Due to increasing volume, the CCRA implemented the Customs Action
Plan–modernizing customs processes and introducing programs based on risk
management.
The CCRA
contraband and intelligence program is made up of intelligence officers,
analysts, and databases to support front-line customs inspectors in identifying
high-risk persons and goods at our borders. These units are responsible for
collecting and developing intelligence and disseminating it to the line officers
across the country.
The CCRA
maintains alliances with other customs administrations, national and
international law enforcement agencies, and external stakeholders in connection
with contraband, intelligence, strategic export and counter-terrorism programs.
It has also built important partnerships with other law enforcement agencies in
Canada, such as the RCMP and provincial and municipal police, and around the
world with other customs administrations and law enforcement agencies such as
the United States Customs Service, the Drug Enforcement Agency, the World
Customs Organization, the Caribbean Customs Law Enforcement Council, and
Interpol. The CCRA regularly participates in joint-force operations of both
short- and long-term duration. For example, the Integrated Border Enforcement
Teams (IBETS) is a multi-agency law enforcement initiative between Canada and
the United States to address cross-border crimes. In addition, the CCRA and
police pool resources on a daily basis with local, state and provincial
enforcement agencies to combine expertise and intelligence. The CCRA is also
part the Integrated Proceeds of Crime initiative discussed above.
Specific
activities in relation to drug enforcement include:
v
Use of highly
sophisticated contraband detection equipment to conduct non-intrusive
examinations to assist in the identification of narcotics – X-ray systems,
including baggage, mobile truck and rolling cargo systems; ion scans used to
detect trace amounts of narcotics on almost any surface; detector dog teams
deployed across the country; contraband detection kits that include a number of
useful tools such as probes and fibrescopes; and one submersible remote-operated
vehicle used to detect narcotics and other contraband attached to the hull of
ships, below the water level.
v
Emphasis on training
its customs inspectors in the area of contraband enforcement.
v
Use of several
enforcement systems and databases, both internal and external, which allow
customs officers and inspectors to identify the level of risk of travellers,
carriers and/or drivers.
v
Deployment of
dedicated enforcement personnel to enhance intelligence and interdiction in the
regions. Regional Intelligence Officers work with local police authorities,
targeters, investigators and customs officers to identify high-risk movement
across the border. Flexible Response Teams consist of highly trained customs
officers who have been placed across Canada to perform monitoring and compliance
verification activities, as well as sampling stints on travellers chosen on a
random basis. Regional Intelligence Analysts analyze large seizures to identify
links to organized crime; they also conduct threat assessments based on trends,
and help identify future risk.
The CCRA
estimates that it is responsible for approximately 50% of all drug seizures in
Canada.
Provincial
and municipal police
Provincial
and municipal police forces handle the majority of drug cases in Canada. They
are involved primarily in enforcing illicit drug legislation at the street
level. In addition, members of these forces are often involved in joint
operations with the RCMP and/or the CCRA and other enforcement agencies. For
example, the Committee was informed of joint operations currently being run with
the RCMP–and in certain cases other enforcement agencies–and the Toronto
Police Service, the Vancouver Police Department and the Regina Police Service.
Costs [6]
The
Committee had requested certain details from police forces such as the
proportion of time officers spend on drug-related cases, the number of officers
assigned to drug enforcement, etc. In most cases, we either received no response
to these questions or very general broad statements. Either the police forces
were not willing to share this information or police work does not lend itself
to these types of calculations and no one knows how much is spent on drug
enforcement. In either case, the lack of data makes it extremely difficult to
estimate how much of police budgets is allocated to drug-related matters and to
analyze whether or not public funds are efficiently allocated.
Estimating
the cost of drug enforcement is a fairly complex exercise. Questions raised
include: Which items should be included? Which items should be left out because
of a lack of data? How should each cost element be measured? Are such costs
truly avoidable? How are items to be costed? Finally, what is the effect of
these factors on the quality of the results?
The
Canadian Centre on Substance Abuse (CCSA) undertook the latest major study of
the costs of drug abuse in Canada.[7]
This study was published in 1996 and relates to 1992 data. Law enforcement costs
were estimated as:
Police
$208.3M
Courts
$59.2M
Corrections
(including probation) $123.8M
Customs
and Excise
$9.0M
Total law enforcement costs
$400.3M
Police
costs consisted of the costs for specialized law agencies such as the (then)
RCMP Narcotics Division, plus that fraction of the general costs of operations
that could be attributed to dealing with illicit drug crimes. Such crimes
included both direct violations of the drug laws and also that proportion of
general crimes that could reasonably be attributed to illicit drugs.
Data
existed on the proportion of homicide and assault cases in which the perpetrator
was under the influence of illicit drugs. The CCSA study estimated the
proportion of those cases where the assault or homicide could be causally
attributed to the drug intoxication of the perpetrator. Putting these two
together, it estimated that 8% of violent crimes were attributable to illicit
drugs in Canada. No such figure was estimated for property crimes.
The
measure of police output was the offence. To estimate policing costs, total
policing expenditures as reported by Statistics Canada were multiplied by the
percentage of offences that were estimated to be drug-related. The CCSA study
concluded that in 1992, 2.4% of all offences were attributable to illicit drug
use.
Policing
costs of enforcing federal drug laws
$168.4M
Policing
costs of 8% of violent crimes
$39.9M
Total policing costs
$208.3M
The
Customs and Excise figure excluded programs financed under the Drug Strategy.
While we
are unable to conduct an in-depth study of enforcement of laws on illicit drugs
costs in relation to the RCMP, the CCRA and provincial and municipal police, we
can assert with certainty that the current costs of enforcement of laws on
illicit drugs are significantly higher than the approximately $210 million
estimated in 1992.
The
Auditor General’s 2001 report estimated that the RCMP alone spent
approximately $164 million in 1999 on enforcement of laws on illicit drugs.[8]
This estimate was based on detailed expenditure data gathered by the federal
drug enforcement program. The amount included costs directly related to drug
enforcement as well as costs in related areas such as proceeds of crime and
customs and excise initiatives.
The
$164 million applies only to RCMP
federal policing services, however, and not to the policing services rendered by
the RCMP under contract to a province or municipality, which account for the
largest share of the force’s budget. We were told that, at present, it was not
possible to ascertain the costs related to the enforcement of laws on illicit
drugs for the latter functions.
In
the case of contract policing, enforcement of drug laws is rendered in
conjunction with a number of other services as, typically, the officers under
contract are performing uniform duty, that is, general policing duties in
communities. It is therefore difficult to determine what portion of their time
is spent doing which activity. This difficulty is enhanced when the drug offence
is incidental to another crime, which is often the case.
One
must consider that a large portion of the cost of any police service is the pay
and benefits extended to its members. In order to accurately determine the cost
of drug enforcement in contract policing, the amount of time devoted to the
effort must be measured.
While
this is done for members of the RCMP employed in the federal services, the
present system applied to contract policing is incapable of collecting this
information. An effort is being made to develop a new system that could possibly
capture this information. However, given the breadth of day-to-day contract
policing duties, it is a clear challenge to separate out, in a meaningful way,
drug-related activity.
…I
should like to speak now to the cost borne by provincial and municipal police
forces. We have recently begun a process to determine what information exists on
enforcement costs and where the gaps lie. Last month, at the most recent meeting
of the National Coordinating Committee on Organized Crime, which I chair, our
department distributed a questionnaire to collect existing information on the
cost of enforcement in the provinces and territories. The questionnaire has
since been distributed to police forces across the country through the Canadian
Association of Police Boards. We are very interested in analyzing the results
once we have received them. [9]
This
Committee is obviously also very interested in these results, since they would
provide the most accurate information available to date. As previously
explained, we found it extremely difficult, if not impossible, to obtain any
specific details on cost breakdowns for drug-related activities for provincial
and municipal police forces. While Chief Fantino of the Toronto Police Service
indicated that “probably one-third of our resources are sucked right up in
some form or another relating to drug work,”[10]
this type of statement is insufficient to permit concrete conclusions with
respect to policing costs. What we did hear was that drug investigations–in
particular those targeting trafficking networks–can be very resource-intensive
for police forces.
It
is a large pull on resources, due to the nature of the work. The work is complex
and, as you point out, it involves surveillance. It will sometimes involve
wiretap surveillance as well. It requires a network of people who work in a
clandestine fashion. It takes the police a long time to assemble credible
evidence to reveal the network, make the connections, and then to correlate all
of that for the court. It is a very resource-intensive aspect of policing,
therefore, it is very expensive to the police department. [11]
It is
not clear, however, whether the same rationale with respect to costs applies in
the case of cannabis possession.
Cannabis
use is, except as it is incidental to an encounter with a police officer, not a
target of police investigation at this time, at least not in this community. We
do not go out and seek people who are simply using cannabis. We do encounter
them, however, as we go about our business in many other circumstances. We
encounter them as one part of the drug investigation into trafficking, so we see
the users there and some charges arise. We see them in domestic disputes. We see
users in drinking establishment investigations and sometimes in
traffic-infraction situations. Their presence is incidental to the
investigation.
As
far as targeting cannabis trafficking and cannabis cultivation, that is a
mainstream of the drug investigations. The money from cannabis cultivation and
cannabis trafficking does flow into other aspects of crime. In some communities
it is most definitely formal, organized crime; in other communities it is groups
of affiliated criminals who are involved for profit only. We direct our activity
to those areas. [12]
With
respect to customs-related costs, the CCRA indicated that of its $410 million
budget for 2001-2002, it can be estimated that $75 million is dedicated to the
interdiction of illegal drugs, in areas such as: Flexible Response Teams;
district-targeting units; the container examination program; the marine centre
of expertise; regional intelligence analysts; and regional intelligence
officers. In addition, costs were associated with contraband detection
technology that includes: X-rays; ion-mobility spectrometers; and the Detector
Dog service. The CCRA did indicate that the officers involved in contraband
detection are not dedicated solely to drug enforcement but to contraband
enforcement in general–although illicit drug interdiction was their first
priority. The Auditor General’s 2001 report had estimated the CCRA’s
enforcement expenditures at between $14 and $36 million for illicit drug
interdiction.[13]
The
numbers indicated below have been selected from the following sources:
v
RCMP (federal
policing services) – Auditor General’s 2001 report and testimony before the
Committee;
v
Provincial and
municipal forces and RCMP (under contract) – by multiplying the estimated
total policing expenditures for municipal and provincial policing of $5.0 billion
(in 1997-1998, expenditures totalled $4.8 billion – excluding RCMP
federal policing services expenditures)[14]
by 3.5% (the percentage that illicit drug offences represented of all CDSA and Criminal
Code offences in 2001: 91,920 CDSA offences and 2,534,319 Criminal
Code offences = 2,626,239 total CDSA and Criminal Code offences)[15];
and
v
CCRA – based on an
estimate between figures provided in the Auditor General’s 2001 report ($14 to
$36 million) and the CCRA’s testimony before the committee ($75 million).
While
this is a crude and unscientific method of calculation and does not take into
account a series of factors that would certainly lead to adjustments, it does
provide some basis for comparison.
RCMP (Federal Services)
$164 million
Provincial
and municipal policing
$175 million
CCRA
$50 million
Total
$389 million
As
indicated above, given the fact that drug investigations are extremely
resource-intensive, drug enforcement may be assumed to represent much more than
3.5% of policing budgets. Chief Fantino of the Toronto Police Service indicated
that it was probably closer to 33% of his budget. Even if a conservative number
such as 15% were used, the figure for provincial and municipal policing costs
would increase to $750 million. This
would mean that almost $1 billion is being spent on drug enforcement in Canada
every year. Clearly, not all costs would be recoverable, even under a
legalized system. For example, already overburdened police forces would surely
redirect resources to other priorities. However, significant savings could reasonably
be expected, if the cannabis laws were relaxed.
…the
actual savings in law enforcement costs attributable to changing prohibition of
possession are hard to estimate. The difficulty occurs in part because cannabis
arrests have decreased in recent years in Vancouver reflecting the overall
tendency to relax enforcement for simple possession. Nevertheless, reduced
law enforcement activities would have substantial savings if the law was
repealed or changed.[16](emphasis
added)
Police
powers [17]
There
are those who argue that police have been granted powers that are far too
extensive in relation to drug enforcement and that in this fight against drugs,
society has come to tolerate a battery of investigative
techniques–wiretapping, strip-searches, the use of paid informants,
entrapment, etc–which are offensive to our basic notions of civil liberty. As
will be discussed in more detail, the nature of drug offences renders them
difficult to enforce. This results in police agencies requesting and using a
variety of unusual methods of enforcement. While there is a long history of
special police powers in relation to drug enforcement, this chapter will focus
primarily on modern police powers.
No one
questions the fact that police require powers for the maintenance of law and
order in our society. In investigating criminal offences, the police may use
less intrusive investigative techniques such as observation and interrogation.
In other cases, they may be required to use more intrusive methods such
as electronic surveillance and reverse sting operations. While such methods are
not limited to drug enforcement and may be used in other criminal matters, they
are certainly used much more extensively in drug investigations.
These
powers must be constrained, however, so as to protect individuals from excessive
police activity. As stated by La Forest J.: “The
restraints imposed on government to pry into the lives of the citizen go to the
essence of a democratic state.”[18]
In determining whether police conduct is acceptable, conflicting
interests generally have to be weighed. First, there are the individual’s
interests, including the interest of being free from state intrusion. Second,
there are the state’s interests, including that of protecting society from
crime. Because these interests generally conflict, it can sometimes be difficult
to agree on where the line should be drawn in relation to police conduct.
The
courts have recognized that, as crimes become more sophisticated, police must be
able to use more sophisticated investigative techniques to detect their
commission. In addition, with respect to drug-related offences and other
consensual types of offences,[19] it is acknowledged that
routine investigative techniques are often insufficient because of the
difficulty in detecting these activities. Generally, because there is no
“victim,” no one is there to complain or report the offence to police. Both
Parliament and the courts appear to agree that additional police powers may be
warranted in these circumstances. It is believed that police need to be
proactive, rather than reactive, as is generally the case for other
non-consensual offences. An example of this viewpoint is expressed in the
following statement by former Chief Justice Laskin of the Supreme Court of
Canada:
Methods
of detection of offences and of suspected offences and offenders necessarily
differ according to the class of crime. Where, for example, violence or
breaking, entering and theft are concerned, there will generally be external
evidence of an offence upon which the police can act in tracking down the
offenders; the victim or his family or the property owner, as the case may be,
may be expected to call in the police and provide some clues for the police to
pursue. When “consensual” crimes are committed, involving willing persons,
as is the case in prostitution, illegal gambling and drug offences, ordinary
methods of detection will not generally do. The participants, be they deemed
victims or not, do not usually complain or seek police aid; this is what they
wish to avoid. The police, if they are to respond to the public disapprobation
of such offences as reflected in existing law, must take some initiatives. [20]
The
Le Dain Commission had also recognized the special nature of drug offences.
The
peculiar nature of drug crimes–the fact that the people involved in them are
consenting and co-operative parties, and there is rarely, if ever, a victim who
has reason to complain, as in crimes against persons and property – makes
enforcement of the drug laws very difficult. The police are rarely assisted by
complainants. For the most part they have to make their own cases. Moreover, the
activity involved in non-medical drug use is relatively easy to conceal. It can
be carried on, by agreement of the parties involved, in places which are not
easily observed by the police. Further, the substances and equipment involved
are relatively easy to conceal or dispose of.
All
of these difficulties have given rise to the development of unusual methods of
enforcement. [21]
Searches
and seizures
Special
powers of search and seizure have long been part of drug law enforcement
practices. For example, before they were eliminated in 1985, writs of assistance
generally gave peace officers the power to search without first having to obtain
a warrant. Such powers were found in previous versions of the Customs
Act, the Excise Act, the Food and Drugs
Act and the Narcotic Control Act.
Before its repeal in 1985, section 10(1) of the Narcotic
Control Act allowed peace officers acting under “the
authority of a writ of assistance or a warrant” to enter and search a
dwelling-house “at any time,” so long as the peace officer had a reasonable
belief that there was a narcotic in the house “by means of or in respect of which” an offence under the Act
had been committed. Section 8 of the Charter eventually put an end to writs
of assistance.
Today,
the CDSA establishes a comprehensive search and seizure scheme for drug-related
offences. Although these provisions are similar to the search and seizure
provisions of the Criminal Code,
police have some additional powers under the illicit drug legislation. Section
11(1) allows a justice to issue a search warrant if he or she is satisfied by
information on oath that there are reasonable grounds to believe that specific
items are in a place. These items are:
v
A controlled
substance or precursor in respect of which the CDSA has been contravened;
v
Anything in which a
controlled substance or precursor referred to in the previous paragraph is
contained or concealed;
v
Offence-related
property; or
v Anything that will afford evidence in respect of an offence under the CDSA.
A
warrant may be obtained even though there is no reason to believe that there are
illicit drugs in the place being searched, so long as there are grounds
respecting the presence of one of the other three types of items.
The CDSA
authorizes a search “at any time.”
Thus, there is no requirement to obtain authorization to search at night, as in
the case of a search under the Criminal
Code.
Another
special power is found in subsection 11(5),
which allows the police to conduct
searches of the person in certain circumstances. This power is not found in
the Criminal Code, although the police
do have power of search incidental to arrest under common law. The CDSA gives
the police, in the process of executing a search warrant, the power to search a
person for a controlled substance or other specified items. This can be done
only if the officer has reasonable grounds to believe that the person found in
the place set out in the warrant has in his or her possession a controlled
substance or other specified items set out in the warrant. Thus, this provision
authorizes the police to conduct a search of the person even if no arrest is
made, but only for specified items and only if the police have reasonable belief
of certain facts.
Subsection
(7) allows the police to conduct a search described in subsections (1), (5) or
(6) without a warrant “if the conditions
for obtaining a warrant exist but by reason of exigent circumstances it would be
impractical to obtain a warrant.” As will be discussed later, warrantless
searches are presumed to be unreasonable, but the courts have allowed for
exceptions. The rules have been summarized as follows:
A
warrantless search has been justified where, based on the circumstances of the
search, it was not feasible to obtain the warrant; for example, where a vehicle,
airplane or other conveyance having the ability to change location is the
subject of the search. The onus in such cases is on the Crown to establish that
the obtaining of a warrant in the circumstances of the specific case would
impede the effectiveness of the enforcement of the law.
Where
there is no common law search power regarding searches in “exigent
circumstances”, the courts have held that it is necessary for the enabling
legislation to specifically refer to a warrantless search power in certain
circumstances, for example, exigent circumstances. Such legislative provisions
should narrowly define the type of investigation which would permit the use of a
warrantless search. [22]
Although
exigent circumstances may be created by the presence of drugs in a vehicle,
whether a warrantless search of a person’s home in exigent circumstances will
be found to be constitutional is still in doubt.[23]
The courts will require some public interest sufficiently compelling to override
the privacy interests attaching to the home. One example of such a compelling
interest is the preservation of human life or safety.[24]
The
legislation also allows: a police officer to seize things not specified in the
warrant if the officer believes on reasonable grounds that they are items
mentioned in subsection (1);[25]
and the power to seize anything that the officer believes on reasonable grounds
has been obtained by or used in the commission of an offence (not limited to
drug offences) or will afford evidence in respect of an offence.[26]
The CDSA
also deals with the use of force. Section 12 allows a police officer who is
executing a warrant to “enlist such assistance as the officer deems
necessary” and “use as much force as
is necessary in the circumstances.” It should be noted that the search
provisions in the Criminal Code do not
specify that force may be used, although this is set out in other sections of
the Criminal Code.
Things
seized under the CDSA can be classified as either offence-related property (for
example, money and automobiles) or controlled substances (“drugs”), with
specific rules regarding detention and forfeiture for each category. The
legislation also provides for the search, seizure, detention and forfeiture of
proceeds of crime in relation to drug-related offences by incorporating the
proceeds of crime provisions of the Criminal
Code.
Section 8 of the
Charter–warrantless searches
Section
8 of the Charter provides that everyone has the right to be secure against
unreasonable search and seizure. Court decisions have dealt with the question of
whether searches are reasonable in various situations and with the ancillary
question of whether evidence obtained during the searches can be adduced at
trial. A search will generally be reasonable if it is authorized by law, the law
itself is reasonable, and the search is carried out in a reasonable manner.
Section 8
protects the public’s reasonable expectation of privacy from state intrusions.
Thus, where there is no reasonable expectation of privacy, section 8 does
not apply. In addition, a diminished expectation of privacy (for example, in
prisons or at border crossings) will lower the standard of reasonableness (for
example, excusing the absence of a warrant or reducing the standard required for
justifying the search). A person’s home is where there would be the
greatest expectation of privacy and thus a
greater degree of constitutional protection.
Although
the Charter does not specifically require that police obtain a search warrant to
conduct a search, the Supreme Court of Canada in Hunter v. Southam Inc. has
established a presumption that a warrantless search is unreasonable.[27]
The general rule for a valid search is that the police will require prior
authorization to conduct the search (for example, by obtaining a search warrant)
and reasonable and probable grounds to justify it. This is to provide a
safeguard against unjustified state intrusion.
This is
the general rule; however, there are exceptions. It is recognized that a prior
authorization is not always feasible. With respect to these exceptions, the
courts require some authority, in statute or at common law, to conduct
warrantless searches. The existence of such authority is not enough, however,
because the courts will also review this authority to ensure that it is
reasonable. In defining what is reasonable, the courts have established that
warrantless searches should generally be limited “to situations in which exigent circumstances render obtaining a
warrant impracticable.”[28]
In R.
v. Grant, the Court stated:
To
sum up on this point, s. 10 may validly authorize a search or seizure without
warrant in exigent circumstances which render it impracticable to obtain a
warrant. Exigent circumstances will generally be held to exist if there is an
imminent danger of the loss, removal, destruction or disappearance of the
evidence if the search or seizure is delayed. While the fact that the evidence
sought is believed to be present on a motor vehicle, water vessel, aircraft or
other fast moving vehicle will often create exigent circumstances, no blanket
exception exists for such conveyances. [29]
While
every case will be reviewed on its merits, the greater the degree of urgency the
police can demonstrate in the circumstances, the more inclined a court will be
to find the warrantless search reasonable.
Searches of the person
Apart
from a few specific provisions, such as the one found in the CDSA, federal
criminal law does not provide authorization for a search of the person. The
common law does, however, allow a search of the person incidental to a lawful
arrest. This common law power is an exception to the general rule that a search
requires prior authorization to be reasonable. This is a very important
exception, because most searches of the person are done pursuant to this power.
As explained earlier, the CDSA does allow a police officer who is executing a
search warrant under that Act to search people who are present, under certain
conditions.
A person
may be searched under the common law power only for the purpose of locating
further evidence relating to the charge upon which he or she has been arrested
or to locate a weapon or some article that may assist him or her to escape or
commit violence. Although the power to search incidental to an arrest is fairly
broad, there is no automatic unrestricted right to search incidental to an
arrest.
Manner in which search
conducted
Courts
have shown a willingness to scrutinize the manner in which a search of the
person is conducted. For example, in Collins,
a British Columbia case, the accused was sitting in a bar that was said to be
frequented by heroin users and traffickers. The accused was seized by two police
officers; while one of them used a choke-hold that rendered her semi-conscious,
the other forced open her mouth. While this was happening, three caps of heroin
dropped out of the accused’s right hand. The Court held that the officers in
this case had not had reasonable and probable grounds to believe that narcotics
were in the accused’s mouth and that therefore the search was unlawful. The
Court went further and determined that to admit the evidence would bring the
administration of justice into disrepute, for it would condone and allow the
continuation of unacceptable conduct by the police. This decision was affirmed
on appeal by the Supreme Court of Canada. This does not mean that a choke-hold
will always be considered unreasonable. The following was stated in R.
v. Garcia-Guiterrez.[30]
“a choke-hold was used to prevent
the evidence from being swallowed and a punch to the solar plexus to force the
suspect to cough it up. Subject to a strongly worded dissenting opinion, the
majority of the B.C. Court of Appeal held that the choke-hold to preserve
evidence was acceptable in the circumstances.”[31]
Searches
of the person authorized by statute and the common law generally provide no
indication as to the scope of the search that can be carried out. As discussed
above, one of the requirements of a reasonable search is that it be executed in
a reasonable manner. With respect to searches of the person, the level of
intrusion may render the search unreasonable.
When
discussing body searches in border areas, the Supreme Court of Canada
distinguished between three categories of searches:
It
is, I think, of importance that the cases and the literature seem to recognize
three distinct types of border search. First is the routine of questioning which
every traveller undergoes at a port of entry, accompanied in some cases by a
search of baggage and perhaps a pat or frisk of outer clothing. No stigma is
attached to being one of the thousands of travellers who are daily routinely
checked in that manner upon entry to Canada and no constitutional issues are
raised. It would be absurd to suggest that a person in such circumstances is
detained in a constitutional sense and therefore entitled to be advised of his
or her right to counsel. The second type of border search is the strip or skin
search of the nature of that to which the present appellant was subjected,
conducted in a private room, after a secondary examination and with the
permission of a customs officer in authority. The third and most highly
intrusive type of search is that sometimes referred to as the body cavity
search, in which customs officers have recourse to medical doctors, to X-rays,
to emetics, and to other highly invasive means. [32]
In the Simmons
case, Dickson C.J.C. went on to add that the different types of searches raise
different issues and entirely different constitutional issues “for
it is obvious that the greater the intrusion, the greater must be the
justification and the greater the degree of constitutional protection.”[33]
This approach was confirmed in the 1999 Supreme Court of Canada decision in Monney
(discussed below). In both cases, the constitutionality of the third category of
searches was left open, while the first two categories were held to be
reasonable under section 8 even if based only on suspicion. It should be
noted that these cases were decided in the context of border searches.
The
Supreme Court of Canada indicated the following with respect to frisk searches
in the context of a search incidental to arrest:
A
“frisk” search incidental to a lawful arrest reconciles the public’s
interest in the effective and safe enforcement of the law on the one hand, and
on the other its interest in ensuring the freedom and dignity of individuals.
The minimal intrusion involved in the search is necessary to ensure that
criminal justice is properly administered. [34]
Thus,
when a search of the person is justified, a frisk search will generally be held
to be reasonable because it is the least intrusive means available to conduct
one.
Strip
searches were considered in R. v. Flintoff.[35]
A police officer arrested the accused at the scene of an accident for impaired
driving. The accused was strip-searched before the breath tests, pursuant to a
general police policy requiring all police officers to strip-search every person
brought into the station in custody, regardless of the circumstances of the case
or the individual. The Court held that the search was unreasonable and in
violation of section 8 of the Charter. The Court stated that the strip search
was not justified in law and was not incidental to an arrest. It found the
breach was “outrageous” and “flagrant”
and that it would shock the public. According to the Court, strip-searching “is one of the most intrusive manners of searching” and “one of
the most extreme exercises of police power.” Although the police can
search incidental to an arrest, “the
degree of intrusion must be reasonable and in pursuit of a valid objective such
as safety.”
The
recent Supreme Court of Canada decision in R.
v. Golden[36] reviews issues
surrounding searches incidental to arrest and the manner in which such a search
may be conducted. Mr. Golden was arrested following what police believed were
drug transactions in a restaurant. He was taken to a stairwell where the police
pulled down his pants and underwear and noticed a clear plastic wrap containing
a white substance in the anal area. The police tried to retrieve it but the
accused resisted. He was escorted back into the restaurant and patrons were told
to leave. The accused was forced to lean over a table and his pants and
underwear were lowered. He continued to resist police attempts to retrieve the
plastic wrap and accidentally defecated–which did not dislodge the plastic
wrap. The police retrieved a pair of rubber dishwashing gloves and removed the
package while the accused was face-down on the floor. The accused was
strip-searched again at the police station. The Supreme Court made the following
statement regarding strip searches:
While
the respondent and the interveners for the Crown sought to downplay the
intrusiveness of strip searches, in our view it is unquestionable that they
represent a significant invasion of privacy and are often a humiliating,
degrading and traumatic experience for individuals subject to them. Clearly, the
negative effects of a strip search can be minimized by the way in which they are
carried out, but even the most sensitively conducted strip search is highly
intrusive. Furthermore, we believe it is important to note the submissions of
the ACLC and the ALST that African Canadians and Aboriginal people are
overrepresented in the criminal justice system and are therefore likely to
represent a disproportionate number of those who are arrested by police and
subjected to personal searches, including strip searches... As a result, it is
necessary to develop an appropriate framework governing strip searches in order
to prevent unnecessary and unjustified strip searches before they occur. [37]
In Golden,
the Supreme Court of Canada found that the Crown had failed to prove that the
strip search of the appellant was carried out in a reasonable manner. It was of
the view that the evidence fell far short of establishing that a situation of
exigency existed so as to warrant a strip search outside of the police station,
particularly with the station two minutes away. Thus, the Court concluded that
this was not a case involving an urgent and necessary need to conduct a strip
search “in the field” for the purpose of preserving evidence.
The
Supreme Court also cautioned against the use of force in conducting a search:
We
particularly disagree with the suggestion that an arrested person's
non-cooperation and resistance necessarily entitles police to engage in
behaviour that disregards or compromises his or her physical and psychological
integrity and safety. If the general approach articulated in this case is not
followed, such that the search is unreasonable, there is no requirement that
anyone cooperate with the violation of his or her Charter rights. Any
application of force or violence must be both necessary and proportional in the
specific circumstances. In this case, the appellant’s refusal to relinquish
the evidence does not justify or mitigate the fact that he was strip searched in
a public place, and in a manner that showed considerable disregard for his
dignity and his physical integrity, despite the absence of reasonable and
probable grounds or exigent circumstances. [38]
The
importance of Golden is that the
Supreme Court adopted a “framework for
the police in deciding how best to conduct a strip search incident to arrest in
compliance with the Charter:” It set out the following questions:
1.
Can the strip search be conducted at the police station and, if not, why
not?
2.
Will the strip search be
conducted in a manner that ensures the health and safety of all involved?
3.
Will the strip search be
authorized by a police officer acting in a supervisory capacity?
4.
Has it been ensured that the police officer(s) carrying out the strip
search are of the same gender as the individual being searched?
5.
Will the number of police officers involved in the search be no more than
is reasonably necessary in the circumstances?
6.
What is the minimum of force
necessary to conduct the strip search?
7.
Will the strip search be carried out in a private area such that no one
other than the individuals engaged in the search can observe the search?
8.
Will the strip search be conducted as quickly as possible and in a way
that ensures that the person is not completely undressed at any one time?
9.
Will the strip search involve only a visual inspection of the arrestee's
genital and anal areas without any physical contact?
10. If the
visual inspection reveals the presence of a weapon or evidence in a body cavity
(not including the mouth), will the detainee be given the option of removing the
object himself or of having the object removed by a trained medical
professional?
11. Will a
proper record be kept of the reasons for and the manner in which the strip
search was conducted?
Because
of the nature of drug-related offences and the fact that the substance is more
easily concealed, it would appear that more intrusive searches may be allowed.
The courts are certainly aware of the tactics used by offenders to conceal drugs
and may be more willing to allow police conduct that would otherwise be
unreasonable. It is clear from the decisions, however, that the more intrusive
the search, the greater must be the justification and greater the constitutional
protection.
Schools
In R.
v. M.
(M.R.),[39]
in a majority decision, the Supreme Court of Canada has held that a student’s
reasonable expectation of privacy in the school environment is “significantly
diminished” because school authorities are responsible for “providing
a safe environment and maintaining order and discipline in the school.” In
the case of searches by school authorities (not the police), there is no
requirement for a warrant, and the standard is reasonable belief. The school
authority must not, however, be an agent of the police. The Court added that
students must know “that this may
sometimes require searches of students and their personal effects and the
seizure of prohibited items.” In the result, the Court held that the
seizure of marijuana from a student searched during a school dance did not
infringe his rights under section 8 of the Charter. While setting out the
parameters for a reasonable warrantless search in such circumstances, it must be
noted that the majority decision expressly limited its findings to the
elementary or secondary school milieu, with “no consideration” having been
given to a college or university setting.
Borders
Searches
conducted by customs officers at the border are an example of reduced
constitutional protections where the courts find that there is a lower
expectation of privacy based on the context. In such cases, the standards
established in Hunter may not apply.
Section
98 of the Customs Act[40]
allows an officer to search a person who has just arrived in Canada within a
reasonable time of the person's arrival, or a person who is about to leave, if
the officer suspects on reasonable grounds that the person has hidden
illegal items on his or her person. The Supreme Court of Canada has interpreted
this standard as one of reasonable suspicion and not the higher standard of
reasonable grounds.[41]
A person about to be searched can request to be taken before a senior officer
who will make a determination as to whether the search shall proceed.[42]
In R.
v. Simmons,[43] the accused was
required to submit to a strip search as the result of a customs officer’s
belief that she was carrying contraband. The Supreme Court’s decision
acknowledged Canada’s right as a sovereign state to control both who and what
crosses its boundaries. Even though the search power did not meet the standards
that it had set out in Hunter (for
example, prior authorization and reasonable grounds), the Court stated:
I
accept the proposition advanced by the Crown that the degree of personal privacy
reasonably expected at customs is lower than in most other situations. People do
not expect to be able to cross international borders free from scrutiny. It is
commonly accepted that sovereign states have the right to control both who and
what enters their boundaries. For the general welfare of the nation the state is
expected to perform this role. Without the ability to establish that all persons
who seek to cross its borders and their goods are legally entitled to enter the
country, the state would be precluded from performing this crucially important
function. Consequently, travellers seeking to cross national boundaries fully
expect to be subject to a screening process. This process will typically require
the production of proper identification and travel documentation and involve a
search process beginning with completion of a declaration of all goods being
brought into the country. Physical searches of luggage and of the person are
accepted aspects of the search process where there are grounds for suspecting
that a person has made a false declaration and is transporting prohibited goods.
In
my view, routine questioning by customs officers, searches of luggage, frisk or
pat searches, and the requirement to remove in private such articles of clothing
as will permit investigation of suspicious bodily bulges permitted by the
framers of ss. 143 and 144 of the Customs Act, are not unreasonable within the meaning of s. 8. Under the Customs
Act searches of the
person are not routine but are performed only after customs officers have formed
reasonable grounds for supposing that a person has contraband secreted about his
or her body. The decision to search is subject to review at the request of the
person to be searched. Though in some senses personal searches may be
embarrassing, they are conducted in private
search rooms by officers of the same sex. In these conditions, requiring a
person to remove pieces of clothing until such time as the presence or absence
of concealed goods can be ascertained is not so highly invasive of an
individual’s bodily integrity to be considered unreasonable under s. 8 of the
Charter.
I
also emphasize that, according to the sections in question: (i) before any
person can be searched the officer or person so searching must have reasonable
cause to suppose that the person searched has goods subject to entry at the
customs, or prohibited goods, secreted about his or her person, and (ii) before
any person can be searched, the person may require the officer to take him or
her before a police magistrate or justice of the peace or before the collector
or chief officer at the port or place who shall, if he or she sees no reasonable
cause for search, discharge the person.
In
light of the existing problems in controlling illicit narcotics trafficking and
the important government interest in enforcing our customs laws, and in light of
the lower expectation of privacy one has at any border crossing, I am of the
opinion that ss. 143 and 144 of the Customs Act are not inconsistent with s. 8 of the Charter. [44]
It is
noteworthy for our purposes that the Court mentioned the problems of controlling
illicit narcotics trafficking as a factor in determining that the search was
reasonable under section 8 of the Charter.
The fact
that those travelling through customs have a lower reasonable expectation of
privacy does not, however, diminish the obligation on state authorities to
adhere to the Charter, even if the grounds prompting the search are reasonable
and drugs are found as a result. Before any search, the inspectors must clearly
explain to the subject his/her rights under the Charter – especially the prior
right to consult a lawyer – and the right to have the search request reviewed
before complying with it, as provided in the Customs Act. In Simmons,
the subject remained ignorant of her legal position because she had not properly
been informed of her rights. As a result, the Supreme Court of Canada found that
the search was unreasonable; even so, the evidence was not excluded because the
customs officers had acted in good faith.
The
Supreme Court of Canada has determined that section 98 of the Customs Act, authorizing searches for contraband “secreted on or
about” the person, applies to contraband that a traveller has ingested. In R.
v. Monney,[45]
the Court concluded that a customs officer who has reasonable grounds to suspect
that contraband has been ingested is authorized by the Act to detain the
traveller in a “drug loo facility” until that suspicion can be confirmed or
dispelled. Although such action amounts to a search for the purposes of section
8 of the Charter, the Court confirmed that “the
degree of personal privacy reasonably expected at customs is lower than in most
other situations” and that the search in question was “reasonable for the
purposes.”
The
Court did indicate that the different levels of intrusion raise different
constitutional issues (for example, by potentially requiring a higher standard
than reasonable suspicion). The Court stated: “the
potential degree of state interference with an individual’s bodily integrity
for searches in the third category requires a high threshold of constitutional
justification.”[46]
It is
clear that the courts apply a lower standard of constitutional protection for
searches at the border than elsewhere. As stated in Monney, “decisions of this
Court relating to the reasonableness of a search for the purposes of s. 8 in
general are not necessarily relevant in assessing the constitutionality of a
search conducted by customs officers at Canada’s border.”[47]
Electronic surveillance
Because
of the consensual nature of drug offences, police often resort to special
investigative techniques to detect these crimes, including the use of electronic
surveillance. The Supreme Court of Canada has stated that electronic
surveillance constitutes a search for the purposes of section 8 of the Charter,
and its decisions in this area have had a significant impact on the Criminal
Code provisions dealing with such techniques. Because electronic
surveillance is more invasive of privacy than actions under regular search
warrants, more procedural safeguards are provided in the legislation. Although
surreptitious interception is often used for drug offences, it can also be used
for many other serious offences under the Code
and other federal legislation.[48]
The Solicitor General’s 1998 report entitled Annual Report on the Use of Electronic Surveillance states the
following with respect to the importance of electronic surveillance as an
investigative tool:
Electronic
surveillance plays a crucial role in the battle against organized crime,
especially with respect to the offence of drug trafficking. In curtailing the
importation and distribution of illicit drugs in Canada, law enforcement
agencies rely heavily upon the interception of private communications. Section
III of this report demonstrates that the majority of authorizations granted by
the courts allow for the use of electronic surveillance in relation to
trafficking in a controlled substance. As in previous years, many of these
authorizations were related to criminal conspiracies, crimes which are difficult
for the police to detect, investigate and solve.
…The
use of electronic surveillance has led to a number of seizures of large
quantities of drugs in Canada. These seizures reduce the amount of drugs
available in streets and neighbourhoods, and assist in the prevention of crimes
associated with drug abuse. Without this crucial tool, the ability of the law
enforcement community to prevent crimes and ensuing social harm would be
seriously hindered.
Although
it is clear that electronic surveillance is an effective investigative tool, it
is also clear that it constitutes a dramatic infringement of the right to
privacy. The Supreme Court of Canada stated the following:
The
very efficacy of electronic surveillance is such that it has the potential, if
left unregulated, to annihilate any expectation that our communications will
remain private. A society which exposes us, at the whim of the state, to the
risk of having a permanent electronic recording made of our words every time we
opened our mouths might be superbly equipped to fight crime, but would be one in
which privacy no longer had any meaning. As Douglas J., dissenting in United
States v. White, supra, put it, at p. 756: “Electronic surveillance is the
greatest leveller of human privacy ever known.” If the state may arbitrarily
record and transmit our private communications, it is no longer possible to
strike an appropriate balance between the right of the individual to be left
alone and the right of the state to intrude on privacy in the furtherance of its
goals, notably the need to investigate and combat crime.
This
is not to deny that it is of vital importance that law enforcement agencies be
able to employ electronic surveillance in their investigation of crime.
Electronic surveillance plays an indispensable role in the detection of
sophisticated criminal enterprises. Its utility in the investigation of drug
related crimes, for example, has been proven time and again. But, for the
reasons I have touched on, it is unacceptable in a free society that the
agencies of the state be free to use this technology at their sole discretion.
The threat this would pose to privacy is wholly unacceptable. [49]
Because
electronic surveillance is more invasive of privacy than are actions permitted
under regular search warrants, more procedural safeguards are provided in the
legislation. Similar rules apply to video
surveillance.
The
Supreme Court of Canada decisions rendered on 25 January 1990 in the Duarte
and Wiggins cases had a significant impact on policing methods,
particularly undercover investigations involving drug and morality offences. In Duarte,[50]
the Court affirmed that electronic surveillance constitutes a search and seizure
within the meaning of section 8. This only occurs, however, where a reasonable
expectation of privacy exists. The Court said that unauthorized electronic
surveillance and interception “of
private communications by an instrumentality of the state with the consent of
the originator or intended recipient thereof, without prior judicial
authorization, does infringe the rights and freedoms guaranteed by section 8.”
Until then, it had been legal for the police to intercept such communications,
as long as one of the parties to the conversation consented. It is now necessary
for a judge to authorize such interception in the same way as interception of an
entirely private conversation (“wiretapping”) where neither party has given
prior consent. The Court also required that there be reasonable and probable
grounds, established on oath, to believe that there is evidence of an offence in
the place to be searched. Suspicion
would not satisfy this requirement.
In Duarte,
the Supreme Court of Canada said that “the primary value served by section 8
is privacy,” which it defined as “the
right of the individual to determine when, how, and to what extent he or she
will release personal information.” Accordingly, “one
can scarcely imagine a state activity more dangerous to individual privacy than
electronic surveillance and to which, in consequence, the protection accorded by
s. 8 should be more directly aimed.” The Court took the position that it
could no longer allow the police an “unfettered discretion ... to record and
transmit our words” without prior judicial authorization because this
widespread police practice represented an “insidious
danger” to the “very hallmark of a
free society,” namely, the “freedom
not to be compelled to share our confidences with others.” In Wiggins,[51]
the use of “body pack” microphones by police was also found to be
unconstitutional, for the reasons expressed in Duarte. The Duarte decision demonstrates that even if conduct is
authorized by legislation, this does not mean that it is reasonable under
section 8. The Code has since been
amended to provide for prior authorization of consent interceptions.
With
respect to surreptitious interceptions, a judge must ensure that: (1) the best
interests of the administration of justice would be served; and (2) other
investigative procedures (a) have been tried and have failed; or (b) are
unlikely to succeed; or (c) the situation is urgent. In 2000, the Supreme
Court of Canada in R. v.
Araujo[52]
interpreted the second requirement set out in the legislation. The Court
indicated that the standard for branch (b) was not one of “efficiency” but
rather “necessity.” The test is: There must be, practically speaking, no
other reasonable alternative method of investigation, in the circumstances of
the particular criminal inquiry.
Section 24
Section
24(1) of the Charter provides a course of action for accused persons whose
Charter rights have been infringed or denied. Under it, they can apply to a
“court of competent jurisdiction” for the “appropriate and just” remedy.
Section 24(2) allows a court to exclude evidence obtained in a manner that
infringed or denied Charter rights, if admitting it into evidence “would
bring the administration of justice into disrepute.” The
three primary factors to be considered are:
(a) does the admission of the evidence affect the fairness of the trial;
(b) how serious was the Charter breach; and (c) what would be the effect on the
system’s repute of excluding the evidence.
Some
have criticized the way these factors are applied to drug-related offences.
For example, Don Stuart stated the following:
The
impression left by these recent Supreme Court and Ontario Court of Appeal
rulings, especially in drug cases, is that these Courts seem generally
determined not to exclude real evidence found in violation of section 8. These
Courts tend to ratchet up the rhetoric respecting the third Collins factor about
the seriousness of the offence and the effect on the repute of the system if the
exclusion of reliable evidence were to result in acquittals. If this is the
major reason for admitting the evidence, it points to an irony and inconsistency
with the Stillman approach, in that the seriousness of the offence and
reliability are not relevant factors when evidence is characterized as going to trial
fairness. Canadian criminal trials under the Charter are no longer exclusively
concerned with determining guilt or innocence and it betrays respect for the
Charter to argue a return to the pre-Charter days where police conduct was not a
material consideration. Particular abhorrence of drug offences may well have
coloured consideration of the second Collins factor so that seriousness of the
violation is unduly de-emphasised. The Courts, as guardians of the Charter,
should be above the war against drugs. This one category of offences does not
require special and reduced Charter standards. [53]
The decision of whether the evidence should be excluded can be important;
if courts are
reluctant to exclude evidence, they may be sending conflicting messages to the
police. Although their conduct will have been found to breach a person’s
Charter rights, there may be little incentive for the police to adhere to the
limits imposed by the courts if the evidence is not excluded.
Entrapment
and illegal activity
Entrapment
and illegal police activity are both based on the doctrine of abuse of process.
Entrapment
In some
cases, police forces use informers (including paid informers) or undercover
police agents to obtain information about criminal offences. With consensual
offences such as those related to drugs, infiltrating a group and acting as a
consensual participant is often the only way for the police to obtain evidence
of an offence. They are generally there to observe the suspect and, in some
instances, may afford the suspect an opportunity to commit an offence
The police must ensure that the actions of the informer or the undercover
agent do not go too far. When police actions are excessive, the accused may
attempt to rely on the doctrine of entrapment. Although police tactics intended
to provide a person with the opportunity to commit an offence and illegal police
activities are not limited to drug offences, it is fair to state that these
tactics are probably much more prevalent in investigations of these types of
offences.
The
leading case in Canada on entrapment is the Supreme Court of Canada’s decision
in R. v. Mack.[54]
Lamer J., as he then was, delivered the unanimous judgement of the
Supreme Court of Canada. He explained that entrapment is not a substantive
defence (such as necessity or duress) and indicated that the rationale for this
defence is not a lack of culpability in the accused (because the essential
elements of the offence will generally be present). Rather, the rationale is
based on the need for the Court “to preserve the purity of the administration
of justice” and to prevent an abuse of the judicial process. Thus, entrapment
is based on the common law doctrine of abuse of process. According to Lamer J.,
entrapment occurs when the conduct of the police exceeds acceptable limits. This
is the case in the following circumstances:
v
The authorities
provide a person with an opportunity to commit an offence without acting on a
reasonable suspicion that this person is already engaged in criminal activity or
pursuant to a bona fide inquiry; or
v
Having a reasonable
suspicion or acting in the course of a bona fide inquiry, the police go beyond providing an opportunity and
induce the commission of an offence.
To
establish entrapment, the accused is required to demonstrate only that one of
the two branches of the test has been met. If successful, the remedy is a stay
of proceedings.
According
to the guidelines set out by the Supreme Court of Canada, the police are
required to have a reasonable suspicion that the accused is already engaged in
criminal activity, or must be acting pursuant to a bona fide inquiry. The rationale for requiring reasonable suspicion
is “because of the risk that the police
will attract people who would not otherwise have any involvement in a crime and
because it is not a proper use of the
police power to simply go out and test the virtue of people on a random
basis.”[55]
In
determining whether police conduct goes further than providing an opportunity, a
court will assess the following non-exhaustive list of factors:
v
The type of crime
being investigated and the availability of other techniques for the police
detection of its commission;
v
Whether an average
person, with both strengths and weaknesses, in the position of the accused would
be induced into the commission of a crime;
v
The persistence and
number of attempts made by the police before the accused agreed to commit the
offence;
v
The type of
inducement used by the police, including deceit, fraud, trickery or reward;
v
The timing of the
police conduct, in particular whether the police instigated the offence or
become involved in ongoing criminal activity;
v
Whether the police
conduct involves an exploitation of human characteristics such as the emotions
of compassion, sympathy and friendship;
v Whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction;
v
The proportionality
between the police involvement, as compared to that of the accused, including an
assessment of the degree of harm caused or risked by the police, as compared to
the accused, and the commission of any illegal acts by the police themselves;
v
The existence of any
threats, implied or express, made to the accused by the police or their agents;
and
v
Whether the police
conduct is directed at undermining other constitutional values.[56]
The
Supreme Court of Canada stated that the claim of entrapment is a very serious
allegation against the state, and that the state must be given substantial room
to develop techniques which assist in its fight against crime in society. It is
only when the police and their agents engage in conduct which offends basic
values of the community that the doctrine of entrapment should apply. The Court
indicated that a stay should be entered only in the “clearest of cases.”[57]
In Mack,
the Supreme Court of Canada stated that with respect to the crime of drug
trafficking, the state must be given substantial leeway. This offence “is
not one which lends itself to the traditional devices of police
investigation.” The Court added that it is a “crime
of enormous social consequence which causes a great deal of harm in society
generally.” The Court concluded “this
factor alone is very critical.”[58]
Although
the Supreme Court of Canada stated in Mack
that random virtue-testing will not be permitted because there is a risk of
attracting innocent individuals into the commission of an offence, it does make
an exception to the requirement to have reasonable suspicion with respect to the
individual in the case of a bona fide
investigation related to an area where it is reasonably suspected that criminal
activity is taking place.
It is
clear that such an exception can apply to known locations of drug trafficking.
An example of this can be seen in R.
v. Barnes.[59]
The accused was charged with a number of offences, including trafficking
in cannabis. An undercover police officer had approached the accused and his
friend because they generally fitted the description of persons who may possess
and sell drugs. After a short conversation, the accused agreed to sell hashish
to the undercover agent. The place where the arrest took place (a
six‑block pedestrian mall) was a well-known area where trafficking
occurred, and the police were conducting what are known as “buy-and-bust”
transactions. The accused relied on the defence of entrapment.
The
Supreme Court of Canada reiterated the circumstances when entrapment occurs.
Because in this case the police did not have reasonable suspicion of the
accused’s involvement in unlawful drug-related activity, its conduct would
amount to entrapment unless it was part of a bona
fide inquiry. Thus, although the basic rule is that the police may only
present the opportunity to commit an offence to a person for whom they have a
reasonable suspicion that they are already engaged in criminal activity, there
is an exception where the police conduct is part of a bona fide investigation directed in an area where it is reasonably
suspected that criminal activity is occurring. If the location is defined with “sufficient
precision,” the police may present any person associated with the area
with the opportunity to commit the particular offence. In these circumstances,
the police conduct would not be considered to be random virtue-testing.
In
summary, the key issue with respect to entrapment is whether the police had
reasonable grounds or suspicions to target an individual or were acting pursuant
to a bona fide inquiry. In addition,
even if the first branch of the test is satisfied, one must consider whether the
police conduct went beyond providing an opportunity by determining whether the
tactics used by the police were designed to induce an average person into the
commission of an offence. It is important to note, however, that with respect to
entrapment the “fact situations can vary
enormously, which is why, although the general principles are beginning to
emerge, their application is not always easy and can lead to disagreement.”[60]
The courts have indicated that each case must be determined on its own facts,
making it difficult to provide more precise rules regarding police conduct.
Illegal activities
As has
been discussed, as criminal offenders become more sophisticated, the police have
adopted new investigative tools in an attempt to keep pace (including cases
where police officers have breached the law while in the performance of their
duties). This occurs in drug investigations, for example, when police conduct
buy-and-bust operations and reverse sting operations. The use of illegal police
activity to combat crime raises the issue of whether such conduct leads to an
abuse of process such that a stay of proceedings will be granted. The Supreme
Court of Canada has stated that illegal police activity does not automatically
amount to an abuse of process. The legality of police actions is but a factor to
be considered, “albeit an important one.” Although the issue of illegal
police activity is important, it has less of an impact on the enforcement of
drug legislation. The reason is that the drug legislation provides police
immunity for activities such as buy-and-bust operations and reverse sting
operations.[61]
The
leading case with respect to illegal police activities is R. v. Campbell.[62]
The police in this case had conducted a reverse sting operation in which
undercover officers portrayed themselves as large-scale hashish vendors. The
accused argued that the police conduct was illegal because they had committed
the offence of trafficking themselves (the CDSA and the exemption it provides
for such police conduct having not yet been passed). They added that this
amounted to an abuse of process.
According
to the Supreme Court of Canada, the police are not immune from criminal
liability for acts committed in the course of an investigation, unless this is
authorized by legislation. The Court added that the issue should be left to
Parliament: “If some form of public
interest immunity is to be extended to the police to assist in the ‘war on
drugs,’ it should be left to Parliament to delineate the nature and scope of
the immunity and the circumstances in which it is available…”[63]
Where alleged illegal police activity is authorized within the legislative
scheme, there is no abuse of process issue. The Supreme Court of Canada added,
however, that illegal police activity does not automatically amount to an abuse
of process. The legality of police actions is but a factor to be considered,
“albeit an important one.”
Although
this decision may have had a significant impact on general law enforcement in
Canada, the impact was less severe in the case of drug enforcement. This is
because drug legislation was amended to allow police officers to conduct the
type of activities that were at issue in Campbell.
The CDSA
proscribes various activities such as possession, trafficking and manufacturing
of drugs, while allowing various regulatory exceptions, for example the
importation by licensed dealers and the sale by pharmacists. The Act also allows
for the making of regulations dealing with enforcement matters such as exempting
police officers from application of the Act on such terms and conditions as
specified in the regulations. In addition, the Act allows for the making of
regulations “that pertain to
investigations and other law enforcement activities conducted under this Act by
a member of a police force and other persons acting under the direction and
control of a member.” Thus, the regulations provide a legal framework for
specialized enforcement techniques (including buy-and-bust, and sting
operations) and set out the parameters for such activities. The police rely on
these regulations for protection against prosecution.
Section
3 of the Narcotic Control Regulations
authorizes members of police forces to possess narcotics where such “possession
is for the purposes of and in connection with such employment.” In
addition, the CDSA (Police Enforcement)
Regulations exempt police officers from the offences of trafficking,
importation or exportation and production. The regulations set out the
eligibility requirements for the exemption. Different rules apply depending on
the source of the drugs. At all times, the individual must be an active member
of a police force and must be acting in the course of his or her
responsibilities for the purposes of the particular investigation.
Thus,
special immunity for police officers is set out in the CDSA. Canadian criminal
legislation has recently been amended to provide a general exemption from
criminal liability for police officers. The legislation provides police with
protection from criminal liability for certain otherwise illegal acts committed
during the course of a bona fide
investigation or other law enforcement duties, as long as certain conditions are
met.[64]
Conclusion
Clearly,
Parliament and the courts have recognized that, as criminals become more
sophisticated, the police must be given more sophisticated tools to fight them.
In addition, they generally view the illegal drug trade as a serious challenge.
Courts often mention the sinister nature of the drug trade and the impact it has
on society in rendering their decisions. They may be influenced by these
concerns in determining where to draw the line with respect to police conduct.
They recognize the difficult job police have and are often willing to grant them
“considerable latitude.” An example of this attitude is the following
statement by the Supreme Court of Canada with respect to the selling of drugs: “It
is a crime that has devastating individual and social consequences. It is, as
well, often and tragically coupled with the use of firearms. This crime is a
blight on society and every effort must be undertaken to eradicate it.”[65]
In another case, the following was stated: “… this Court must also consider the societal interest in law enforcement,
especially with regard to the illicit drug trade. This pernicious scourge in our
society permits sophisticated criminals to profit by inflicting suffering on
others.”[66] However, the police have
not been given “carte blanche” to do what they want to solve a crime. Their
activities are scrutinized so as to ensure that their conduct does not shock the
community and in any way detract from the fairness of an accused’s trial.
Statistics
The
following sections will review key criminal statistics related to enforcement of
illicit drug legislation. This information must be carefully interpreted. It is
generally thought that police-reported crime statistics are much more a
reflection of police activity than actual societal changes, particularly in the
case of consensual type offences. As in many other drug related areas, Canadian
statistics are fairly weak–for example, other than fairly basic information,
it is very difficult if not impossible to identify some of the essential
characteristics of individuals entering the criminal justice system.
Reported incidents
[67]
Reported
incidents are incidents that come to the attention of the police and are
captured and forwarded to the Canadian Centre for Justice Statistics according
to a nationally approved set of common crime categories and definitions. Thus
the actual number of drug offences would be much higher, since it can be assumed
that most drug offences do not come to the attention of police. As with other
consensual types of offence, it is impossible to determine accurately the amount
of illegal activity. In addition, the survey counts only the most serious
offence committed in each criminal incident, which consequently underestimates
the total number of drug-related incidents, particularly offences with less
severe penalties. The number of reported incidents should also not be confused
with the number of charges that are laid by the police. Because police have wide
discretion in whether to lay a charge, it is clear that the number of charges
will be lower than the total reported incidents.
The
figure below shows trends in the number of incidents reported by police
according to the most serious crime. It reveals that, from 1983 to 1995,
incidents related to drug offences were relatively stable, hovering around
60,000 per year. However, from 1995 to 2000, there was an increase of
approximately 50%, with the number of reported incidents reaching nearly 88,000.
In 2001, the number reached 91,920, an increase of 3.3% in relation to the
previous year.
Most of the increase in recent years can be attributed to
cannabis-related offences. In 2001, these increased by 5.5% in relation to the previous year. These
offences account for the majority of all drug-related offences in Canada. In
2001, cannabis-related offences accounted for 71,624 of reported incidents, almost
77% of all drug-related incidents. Of those 71,624 offences, 70% were for
possession, 16% for trafficking, 13% for cultivation, and 1% for importation.[68]
This means that approximately 54% of all
reported drug-related offences are for the possession of cannabis. The
following are reported incident rates per 100,000 people for offences related to
cannabis, cocaine and all drugs.
Selected drug offences per
100,000, Canada 1994-2001
|
|
1994 |
1995 |
1996 |
1997 |
1998 |
1999 |
2000 |
2001 |
|
Cannabis
- possession |
138 97 |
148 103 |
157 110 |
160 108 |
168 115 |
197 130 |
215 147 |
227.22 |
|
Cocaine |
42 |
38 |
37 |
38 |
40 |
39 |
42 |
39.4 |
|
Total
all drugs |
207 |
208 |
217 |
222 |
235 |
263 |
286 |
295.7 |
From
1991 to 2001, the percentage change in rate per 100,000 people for
cannabis-related offences is +91.5; for cocaine-related offences, –31.5; for
heroin-related offences, –36.1; and for other drugs, +15.0. This means that, based on
the same population, reported cannabis-related offences have almost doubled in
the last decade.
In
recent years, the cultivation of cannabis, particularly in British Columbia, has
raised concerns. This type of offence has also seen a significant increase over
the past decade: from a rate of 7 incidents per 100,000 people in 1990 to 29 in
2001.[69]
A recent report indicates that in British Columbia, the number of growing
operations is increasing by an average of 36% per year and average size is
increasing at a rate of 40% per year. The report adds that the vast majority of
cases coming to the attention of the police in British Columbia do so as a
result of public complaints, meaning that the increase in cases is not due to
increased proactive police enforcement.[70]
The two
figures that follow provide information on the location of reported incidents
from 1988 to 1997. Not surprisingly, the most populated provinces are at the
top, with Ontario in the lead followed by British Columbia, Quebec and Alberta.
A better
indication of the level of crime in a province, however, is a calculation based
on rates per 100,000 population. British
Columbia has historically had the highest provincial rate of drug crime in the
country. [71] For example, in 2001, the rate was 563.5
incidents per 100,000, almost double the national figure of 295.7. The rates for
the other provinces and territories are as follows: Newfoundland and
Labrador–173.1; Prince Edward Island–192.0; Nova Scotia–218.3; New
Brunswick–346.9; Quebec–262.1; Ontario–256.1; Manitoba–215.9;
Saskatchewan–278.4; Alberta–235.3; Yukon –478.5; Northwest
Territories–597.2; and Nunavut–806.1. It is obvious that the level of
drug-related crime varies considerably from one province and territory to
another.
Charges
From the
available data presented in the following figure, it would seem that trafficking
and possession charges for drug-related offences have declined noticeably since
1997. It should be remembered that the number of reported incidents (discussed
previously) is not equivalent to the number of charges that are laid by the
police. In some cases, the police will report a drug incident to Statistics
Canada but will decide not to charge the offender. The wide discretion given to
police can lead to serious concerns regarding the enforcement of the
legislation. These concerns are discussed later in this chapter. The reader
should be aware that this figure does not include data from three provinces (New
Brunswick, Manitoba and British Columbia) and from one territory (Nunavut). In
addition, data from certain courts in Quebec are not included.[72]
Because
data from three provinces are not included–in particular, British
Columbia–the actual number of drug charges in Canada was actually much higher
than the figure suggests. As was previously explained, British Columbia has, in
the past, consistently reported the highest rate of drug crime.
Statistics
from 1997 show, however, that with respect to charging drug offenders, British
Columbia is more lenient than other provinces:
Among
provinces and territories, police departments in British Columbia reported the
lowest charge rate (47%) for drug offences. Only 35% of cannabis incidents and
36% of “other drug” incidents resulted in charges, compared to 79% and 81%
for all the other provinces combined. [73]
For
example, Superintendent Ward Clapham of the Richmond RCMP indicated that, for
possession of marijuana under 30 grams, only 40 people were charged out of 700
reported cases in the year 2000; and in 2001, only 30 people were charged out of
605 reported cases. Once again, it is clear that the enforcement of the
legislation varies considerably from one area of the country to another.
With
respect to cannabis offences in 2001, the male population was much more likely
to be charged with an offence. For both youths (12 to 17) and adults, 88% of the
people charged with cannabis offences are male.[74]
In addition, while adults are much more likely to be charged than youths, 18% of
cannabis-related charges relate to youths.[75]
While
the previous figure seems to indicate that there were fewer than 20,000
drug-related charges in 1999, the Auditor General’s 2001 report indicates that
during that year, just under 50,000 people were charged with drug offences under
the CDSA (in cases where the most serious offence was drug-related). One of the
drawbacks of recording offence statistics according to the most serious offence
is that this leads to severe underreporting of offences, particularly offences
with less severe penalties. In the hierarchy of criminal offences (of which
there are 152), marijuana offences are ranked as follows: importation or
exportation– 44; trafficking of more than 3,000 grams–46; production–52;
trafficking of 3,000 grams or less–59; possession of more than 30 grams–120;
and possession of 30 grams or less--121.
Of the
approximately 50,000 drug-related charges laid in 1999, cannabis was involved in
70% of the charges. In 43% of the
drug-related cases (21,381), the charge was for possession of cannabis.
Overall, 54% of the drug offences were for possession. Since the number of
reported incidents has continued to climb, one can only assume that today even
more people are being charged with drug offences, particularly cannabis
offences.
With
over 34,000 charges per year for cannabis-related offences and with over 21,000
charges per year for possession of cannabis, can one conclude that police are
actively seeking out cannabis possession offences? After reviewing the evidence,
we do not believe this to be the case. Nonetheless, over 21,000 people per year
enter the criminal justice system in cases where their most serious offence was
that of possession of cannabis. It bears repeating that these statistics are
based on the most serious offence in a given incident.
Several
reasons were advanced to explain the high number of possession offences. Those
enforcing the CDSA stated that they do not actively seek out such offences, but
rather they are discovered in the normal course of their duties. This was
repeated time and time again. While we do not doubt the sincerity of these
statements, in certain cases–as will be discussed below–police tactics can
be questioned. In addition, we were told that while the offence of trafficking,
if it occurs over a period of time, is recorded as one offence–the continuing
offence rule–this rule does not apply to possession offences.
Concerns
While
there may be valid reasons for the high incidence of possession charges, many
have raised serious concerns with respect to the discretion used by the police
in regard to drug-related possession charges – in particular, cannabis
possession cases. As mentioned earlier, the number of reported incidents and the
charge rate vary considerably from province to province.
The
uneven application of the drug legislation in the various provinces, even within
the same province, raises serious concerns. Mr. Kash Heed from the Vancouver
Police Department indicated that small-scale possession of any drug in Vancouver
is virtually unenforced by the police department unless there are aggravating
circumstances. Their focus is on those who profit–traffickers and producers.
He added that the number of prosecutions in British Columbia for cannabis
possession is quite small in comparison to other provinces. He concluded that
total prohibition had “resulted in costly enforcement, alienation of groups of
people, discriminatory enforcement, little deterrence in supply, and minimal
deterrence of use.” Heed added that, even in British Columbia there are
discrepancies–centres outside of Vancouver having higher rates of prosecution
for possession of cannabis than does the City of Vancouver.
We have
estimated that approximately 2.5 million people in Canada used cannabis in the
last year. In 1999, 21,381 people were charged with the possession of cannabis.
This means that only 0.85% of cannabis users were actually charged with
possession. It is also important to remember that of the number of people who
used cannabis in the last year, many would have used it more than once. As a
result, the actual chance of being charged for possession of cannabis in
relation to the actual number of offences is in all likelihood much lower than
1%. This certainly raises concerns regarding fairness. In addition, both the
effectiveness of the legislation and any deterrent effect it may have are
seriously in doubt.
So what
are the potential consequences of uneven enforcement of the legislation and
unfettered discretion as to whether or not to proceed with laying a charge?
Marie‑Andrée Bertrand, referring to a paper prepared by Nicolas Carrier[76]
stated the following:
A
recent qualitative study of members of the Montreal Urban Community Police
Department underscores the ambivalence and confusions of frontline police
officers and their varied reactions to the “drug problem.” The extent of the
problem is perceived quite differently depending on the officers in question and
the neighbourhoods they patrol. In
the minds of some, particularly in the case of young drug users and
“exchangers”, although “the law is the law” and must undoubtedly be
enforced, drug possession and use do not really concern the police. The
prohibition is simply not enforceable. It is impossible to determine cases of
possession in the absence of search and seizure powers, except “on a hunch”
or in arresting suspects for other “crimes”. Once possession cases and drug
deals in public places are discovered either by accident or in the course of
investigating other offences, police officers react in various ways depending on
their professional aspirations. Those seeking promotion and specialization (who
want to join the drug or victimless crimes squads) pass the information along to
the appropriate divisions. Patrolmen who intend to remain patrolmen close their
eyes or question suspects to obtain trafficking information in exchange for
promises of immunity, or else take substances abusers to treatment services,
call the parents of a minor, etc. [77]
The
uneven application of the legislation is one of our greatest concerns, for a
variety of reasons. First, there is the danger that this can lead to
discriminatory enforcement, where certain people are more likely to be charged
than others because of their personal characteristics. While current national
statistics do not allow such an analysis, there is some evidence that the law is
applied discriminatorily.
The
Carrier paper discussed above was the result of interviews with 21 Montreal area
patrol officers. It discusses the difficulties of detecting possession offences
due to the lack of a “victim,” the discreetness of the offences and the
constitutional limits on unwarranted searches. The paper explains that a police
officer’s actions depend on several factors, such as how serious the officer
perceives the drug problem to be and what are the officer’s career
aspirations–those wanting promotions respond more proactively to drug offences
than those wishing to remain as patrol officers, who tend to be more reactive.
Police are generally frustrated by the limits imposed on searches.
So
how do they go about detecting possession offences? The officers indicated that
most possession offences are detected when a person is stopped for another
criminal matter–the arrest allowing an officer to conduct a search of the
person. On rare occasions, officers detected the offence when a person openly
flouted the law.
Of
note, officers also indicated that certain people attracted their attention and
some indicated that there are “signs” which lead them to believe that people
are in possession of illegal substances. With respect to people in cars, the
following factors were mentioned: the appearance of passengers in a vehicle; the
vehicle’s model and value; the person’s driving habits; and a computer check
of the licence plate indicating that the owner had a criminal record. Officers
are allowed to stop people to ensure they have the proper documentation, and
this may lead to the discovery of an offence that would result in a search. With
respect to pedestrians, the following factors were mentioned: the person is
known as a drug user; physical appearance; the person’s activities;
associating with other “suspects”; and association with dwellings suspected
for trafficking. Certain officers indicated that questioning such suspects can
lead to an arrest–for example, an outstanding warrant of arrest–and a
search. Officers also indicated that on occasion they selectively applied
municipal by-laws and other provincial legislation in order to obtain a
person’s name, after which the person can be investigated. If a person refuses
to give his or her name, the person may be arrested and searched. Officers also
indicated they had used techniques to “go fishing.” While the evidence would
not be admissible in court, in certain circumstances it allowed the officer to
obtain information from the person in exchange for “not laying a charge,” or
allowed the officer to seize the illegal substance.
While
this study is of limited scope, it does provide an indication of how police
discretion in enforcing drug legislation may lead to discrimination based on
factors such as a person’s appearance.
Another
concern is the danger of alienating certain groups of society. Those targeted by
enforcement may lose respect for police and the criminal justice system in
general. Inconsistent legal responses are likely to create an atmosphere that
brings the administration of justice into disrepute. As Parliamentarians, we
find this unacceptable.
Finally,
there is the basic issue of fairness and justice. No one seems able to explain
why some people are charged and others are not. It is not surprising that this
legislation faces such fierce criticism.
Customs
Act - fines
In
general, when one thinks of drug enforcement, one thinks of charges laid by
police under the CDSA and seizures made by them. Other legislation can be
applied in certain circumstances, however. For example, the Customs
Act allows for the seizure of prohibited goods and also of vehicles used in
contravention of that act. In this case, a civil
"penalty" may be imposed against the importer, because a Customs
officer may return the vehicle to the importer only upon payment of the assessed
monetary penalty. The penalty is based on the quantity of drugs found.
|
Amount |
Marihuana |
Hashish |
Hashish oil |
Controlled
drugs |
Hallucinogens |
CocaineOpiates |
||||||
|
*$220 |
over 8 grams not over 15 grams |
over 2 grams not over 4 grams |
over 1 gram or less |
over 10 pills not over 20 pills |
over 1 dosage not over 4 dosages |
1 gram or less $400 |
||||||
|
$440 |
over 15 grams not over 30 grams |
over 4 grams not over 8 grams |
over 1 gram not over 2 grams |
over 20 pills not over 40 pills |
over 4 dosages not over 8 dosages |
|
||||||
|
$550 |
over 30 grams not over 60 grams |
over 8 grams not over 16 grams |
over 2 grams not over 4 grams |
over 40 pills not over 60 pills |
over 8 dosages not over 12 dosages |
|
||||||
|
$660 |
over 60 grams not over 100 grams |
over 16 grams not over 24 grams |
over 4 grams not over 6 grams |
over 60 pills not over 80 pills |
over 12 dosages not over 16 dosages |
|
||||||
|
$770 |
over 100 grams not over 150 grams |
over 24 grams not over 32 grams |
over 6 grams not over 8 grams |
over 80 pills not over 110 pills |
over 16 dosages not over 20 dosages |
|
||||||
|
$880 |
over 150 grams not over 200 grams |
over 32 grams not over 40 grams |
Over 8 grams not over 10 grams |
over 110 pills not over 140 pills |
over 20 dosages not over 24 dosages |
|
||||||
|
$990 |
over 200 grams not over 250 grams |
over 40 grams not over 46 grams |
Over 10 grams not over 12 grams |
over 140 pills not over 160 pills |
over 24 dosages not over 28 dosages |
|
||||||
|
$1100 |
over 250 grams not over 300 grams |
over 46 grams not over 56 grams |
Over 12 grams not over 14 grams |
over 160 pills not over 180 pills |
over 28 dosages not over 32 dosages |
|
||||||
|
For
amounts in excess of the above stated sums: |
||||||||||||
|
|
over 300 grams: $4 for each addi-tional gram |
over 56 grams: $20 for each additional gram |
over 14 grams: $70 for each additional gram |
over 180 pills: $8 for each addi-tional pill |
over 32 dosages: $40 for each addi-tional dosage |
over 1 gram: $400 for each gram |
||||||
The CCRA
will also arrest the importer, under the authority of the Customs Act, for smuggling goods into Canada, that are prohibited,
restricted or controlled by the Act or by any other Act of Parliament (for
example, the CDSA). Once the CCRA has seized the drugs and made an arrest, the
responsible police force is contacted and will decide whether or not to proceed
and lay charges. As will be discussed later, in some cases, the CCRA has entered
into Criminal Charge Agreements with police forces. The Crown Attorney will then
decide whether or not to prosecute, based on case-by-case specifics.
Under section 6 of
the CDSA importing drugs, except as authorized under the regulations, is an
offence regardless of quantity. Therefore, in the case of importing, there is no
"threshold" in the CDSA below which a lesser sentence or fine can be
imposed. However, if the amount imported is of a quantity normal for personal
use, rather than resale, the Crown may choose to prosecute for possession rather
than importing.
The CCRA
in Windsor has a Criminal Charge Agreement with the Windsor RCMP which sets out
guidelines for criminal prosecution for border seizures. The amounts are to be
used only as a guide, but generally a person will not be charged by the RCMP for
importation of less than 50 grams of marijuana, less than 20 grams of hashish or
less than 15 grams of hash oil. In these cases, enforcement will be done under
the Customs Act.
From 1996 to 2001, almost 99% of the 4,055 marijuana seizures in the
Southern Ontario region were for less than 50 grams.
Seizures
The
following table provides information on seizures made by the RCMP, CCRA, Sûreté
du Québec, Ontario Provincial Police and the municipal police forces of
Montreal, Laval and Toronto.
Drugs Seized in Canada:
1993–2001
|
|
1993 |
1994 |
1995 |
1996 |
1997 |
1998 |
1999 |
2000 |
2001 |
|
heroin |
153 |
85 |
128 |
83 |
95 |
105 |
88 |
168 |
74 |
|
cocaine |
2,731 |
7,915 |
1,544 |
3,110 |
2,090 |
2,604 |
1,116 |
1,851 |
1,783 |
|
ecstasy |
|
|
|
1,221 |
10,222 |
68,496 |
400,000 |
2,069,709 |
1,871,627 |
|
marihuana
(kg) |
7,314 |
6,472 |
5,500 |
17,234 |
50,624 |
29,598 |
23,829
|
21,703 |
28,746 |
|
marihuana |
238,601 |
288,578 |
295,999 |
675,863 |
689,239 |
1,025,808 |
954,781
|
1,102,198 |
1,367,321 |
|
hashish |
56,721 |
36,614 |
21,504 |
25,155 |
6,118 |
15,924 |
6,477 |
21,973 |
6,677 |
|
liquid
hashish |
669 |
659 |
663 |
805 |
824 |
852 |
434 |
1,240 |
397 |
(Weights in kilograms; Ecstasy in dosage units)
According
to Professor Steve Pudney, Public Sector Economics Research Centre, Department
of Economics, Leicester University, “seizure data provide the most direct
information on availability of drugs even though drugs seized are not
contributing to the available supply.”[78]
If one looks at RCMP drug seizure trends, however, it becomes obvious that the
data must be used cautiously, because the number of interceptions or the amount
seized in one year is not necessarily a true indicator of an increase or
decrease in the drug situation. Rather, it is an indication of the impact of
active and passive policing.
Seizures
are likely to be passive in the sense that there is a more or less constant
seizure rate achieved by routine monitoring and investigation. The greater the
amount of drugs entering the market, the greater the background level of
seizures, on a purely statistical basis. Passive seizures are thus a positive
indicator of the size of the market. However, drug policing also has active
aspects. Investigations based on criminal intelligence often lead to the closing
down of pipelines of supply and the removal of significant quantities of the
product from the domestic market. Seizures of this type are negatively related
to market size in the sense that a large seizure, rather than being an indicator
of supply growth, is a cause of supply contraction. When these two aspects are
present, it is difficult to draw any clear conclusion about supply from
information on seizures. [79]
While
passive seizures may indeed be a positive indicator of the size of the drug
market, one must remember that passive seizures may also be somewhat inaccurate,
because Canada’s vast borders and coastline make it difficult for Canadian
officials to make consistent interceptions and seizures each year. Importers
continually find new ways of avoiding authorities by means of different ports of
entry, as well as larger, infrequent shipments or vice versa.
Despite
these problems with seizure data, the trends indicate that the seizures of
cannabis, both in kilos and plants, have seen a fairly significant increase in
the last few years, particularly when compared to seizures relating to cocaine
and heroin.
What is
clear from the seizure data is that police have, in recent years, placed
increased emphasis on marijuana cultivation offences. In 1993, police seized
fewer than 250,000 marijuana plants, while seizures in 2001 totalled more than
1,350,000 plants. This would seem to suggest an increase in cultivation in
Canada and also a shift in police priorities to cultivation offences.
Conclusions
|
Conclusions
of Chapter 14 |
|
|
|
Ø Annual costs for drug enforcement in Canada can be estimated at between $700 million and $1 billion. Ø Reduced law enforcement activities resulting from amendments to the drug legislation on cannabis could produce either substantial savings or significant reallocations of funds by police forces to other priorities. Ø Due to the consensual nature of drug offences, police have been granted substantial enforcement powers and have adopted highly intrusive investigative techniques; these powers are not unlimited, however, and are subject to review by Canadian courts. Ø Over 90,000 drug-related incidents are reported annually by police; more than three-quarters of these incidents relate to cannabis and over 50% of all drug-related incidents involve possession of cannabis. Ø From 1991 to 2001, the percentage change in rate per 100,000 people for cannabis-related offences is +91.5–thus, the rate of reported cannabis-related offences has almost doubled in the last decade. Ø Reported incidents related to the cultivation of cannabis have seen a dramatic increase in the last decade. Ø Reported incident rates vary widely from province to province. Ø Cannabis was involved in 70% of the approximately 50,000 charges in 1999. In 43% of cases (21,381), the charge was for possession of cannabis. Ø Charge rates for drug offences vary significantly from province to province. Ø The uneven application of the law is of great concern and may lead to discriminatory enforcement, alienation of certain groups within society, and creation of an atmosphere of disrespect for the law; in general, it raises the issue of fairness and justice. Ø Seizure statistics would seem to confirm an increase in cannabis cultivation in Canada and also a shift in police priorities regarding this offence. |
[1]
R..G. Lesser, Chief Superintendent, RCMP, Proceedings of the Special
Committee on Illegal Drugs, Senate of Canada, First Session, Thirty-seventh
Parliament, 2001, Issue no. 8, page 11.
[2]
DARE is discussed in greater detail in Chapter 17.
[3]
Presentation submitted to the Committee on 5 June 2002.
[4]
Report of the Auditor
General of Canada to the House of Commons,
2001, Chapter 11, “Illicit Drugs: The Federal Government’s Role,” p.
11.
[5]
This section relies to a great extent on the testimony of Mark Connolly,
Director General, Contraband and Intelligence Services Directorate, Customs
Branch, Canada Customs and Revenue Agency, Proceedings of the Special
Committee on Illegal Drugs, Senate of Canada, First Session, Thirty-seventh
Parliament, 2001, Issue no. 8, pages 33-39.
[6]
This section relies to some extent on The
Costs of Drug Abuse and Drug Policy, a paper prepared for the Special
Senate Committee on Illegal Drugs by Antony G. Jackson, Economics Division,
Parliamentary Research Branch, Library of Parliament, 22 April 2002.
[7]
Single, E., et al., (1996) The
Costs of Substance Abuse in Canada: A Cost Estimation Study, Ottawa:
Canadian Centre on Substance Abuse.
[8]
Report of the Auditor
General of Canada to the House of Commons,
2001, Chapter 11, “Illicit Drugs: The Federal Government’s Role,” page
17.
[9]
Paul E. Kennedy,
Senior Assistant Deputy Solicitor General, Policing and Security Branch,
Department of the Solicitor General, Proceedings
of the Special Committee on Illegal Drugs, Senate of Canada, First Session,
Thirty-seventh Parliament, 2001-02, Issue no. 22, pages 9-10.
[10]
Chief Julian Fantino, Toronto Police Service, Proceedings of the Special
Committee on Illegal Drugs, Senate of Canada, First Session, Thirty-seventh
Parliament, 2001, Issue no. 5, page 11.
[11]
Chief Cal Johnston, Regina Police Service, Proceedings of the Special
Committee on Illegal Drugs, Senate of Canada, First Session, Thirty-seventh
Parliament, 2001-02, Issue no. 16, page 31.
[12]
Ibid.,
page 33.
[13]
Report of the Auditor
General of Canada to the House of Commons,
2001, Chapter 11, “Illicit Drugs: The Federal Government’s Role,” page
16.
[14]
Statistics Canada, Canadian Centre for Justice Statistics, Juristat,
Justice Spending in Canada, Catalogue no. 85-002-XIE, Vol. 19, No. 12, pages
4-6.
[15]
Statistics Canada, Canadian Centre for Justice Statistics, Juristat,
Crime Statistics in Canada - 2001, page 14.
[16]
Kash Heed, Vice Drugs Section, Proceedings of the Special Committee on
Illegal Drugs, Senate of Canada, First Session, Thirty-seventh Parliament,
2001, Issue no. 10, page 62.
[17]
This section is in essence a summary of Police
Powers and Drug-Related Offences, a paper prepared for the Special
Senate Committee on Illegal Drugs by Gérald Lafrenière, Law and Government
Division, Parliamentary Research Branch, Library of Parliament, 6 March
2001.
[18]
R.
v. Dyment, (1988) 45 C.C.C. (3d) 244 at p. 254 (S.C.C.).
[19]
Other consensual offences include gambling and prostitution.
[20]
R.
v. Kirzner (1977) 38 C.C.C. (2d) 131 (S.C.C.) at page 135.
[21]
Commission of Inquiry into the Non-medical Use of Drugs (1972) Cannabis,
A Report, Ottawa, page 239.
[22]
Brucker, T. (2002) The Practical Guide to the Controlled Drugs and Substances Act,
Third Edition, Carswell, page 101.
[23]
In R. v.
Feeney, the Supreme Court of Canada refused to deal with the issue
because, according to the Court, exigent circumstances did not exist when
the arrest was made.
[24]
R. v.
Godoy, (1999) 131 C.C.C. (3d) 129 (S.C.C.).
[25]
See Controlled Drugs and Substances Act, section 11(6).
[26]
See Controlled Drugs and Substances Act, section 11(8).
[27]
Hunter (Director of
Investigation & Research) v. Southam Inc. (1984) 14
C.C.C. (3d) 97 (S.C.C.).
[28]
R.
v. Grant (1993) 84 C.C.C. (3d) 173 (S.C.C.) at p. 188.
[29]
Ibid.,
page 189.
[30]
(1991) 65 C.C.C. (3d) 15 (B.C.C.A).
[31]
Fontana, J.A. (1997) The Law of Search
and Seizure in Canada, Fourth Edition, Butterworths, page 396.
[32]
R. v.
Simmons, (1988) 45 C.C.C. (3d) 296 (S.C.C.).
[33]
Ibid.
[34]
Cloutier
(1990) 53 C.C.C. (3d) 257 (SCC) at pages 277-278.
[35]
(1998) 126 C.C.C. (3d) 321 (Ont. C.A.).
[36]
2001 SCC 83.
[37]
Ibid., para. 83.
[38]
Ibid.,
para. 116.
[39]
[1998]
3 S.C.R. 393.
[40]
S.C. 1986 c. 1.
[41]
R. v.
Monney, (1999) 133 C.C.C. 129 (S.C.C.).
[42]
The Customs Act also contains many other provisions dealing with powers
of customs officers. These are
not discussed.
[43]
(1988) 45 C.C.C. 296 (S.C.C.).
[44]
Ibid.,
at pages 320-321.
[45]
(1999) 133 C.C.C. 129 (S.C.C.).
[46]
Ibid.,
at page 152.
[47]
Ibid.,
at page 151.
[48]
See Criminal Code section 183.
[49]
R. v. Duarte, (1990) 53 C.C.C (3d) 1 (S.C.C.) at page 11.
[50]
(1990) 53 C.C.C. (3d) 1 (S.C.C.).
[51]
[1990]
1 S.C.R. 30.
[52]
(2000) S.C.C. 65.
[53]
Stuart, D. (1999) “The Unfortunate Dilution of Section 8 Protection,” Queens
Law Journal, Volume 25, Number 1, page 68.
[54]
(1988) 44 C.C.C. (3d) 513 (S.C.C.).
[55]
Ibid.,
at page 560.
[56]
Ibid.,
at page 560.
[57]
Ibid.,
at page 567.
[58]
Ibid.,
at page 69.
[59]
(1991) 66 C.C.C. (3d) 1 (S.C.C.).
[60]
Mewett, A.W. and S. Nakatsuru, (2000) An
Introduction to the Criminal Process in Canada, Fourth Edition,
Carswell, page 180.
[61]
Illegal activities by a police officer also raise the issue of whether the
police officer may be liable to prosecution. The issue is beyond the scope
of this paper.
[62]
(1999) 133 C.C.C. (3d) 257 (S.C.C.).
[63]
Ibid.,
at page 282.
[64]
SC 2001, Chapter 32.
[65]
R. v.
Silveira, (1995) 97 C.C.C. (3d) 450 at page 496.
[66]
R. v. Grant, (1993) 84 C.C.C. (7d) 173.
[67]
The Canadian Centre for Justice Statistics warns that crime statistics may
be influenced by many factors, including: reporting by the public to the
police; reporting by the police to the Canadian Centre for Justice
Statistics; the impact of new initiatives such as changes in legislation,
police or enforcement practices; and social, economic and demographic
changes.
[68]
Statistics Canada, Canadian Centre for Justice Statistics, Juristat,
Crime Statistics in Canada - 2001, Catalogue no. 85-002-XIE Vol. 22, no. 6,
page 11.
[69]
Ibid.
[70]
Plecas, D., et. alii., (2002) Marihuana
Growing Operations in British Columbia – An Empirical Survey (1997-2000),
Department of Criminology and Criminal Justice – University College of the
Fraser Valley and International Centre for Criminal Law Reform and Criminal
Justice Policy.
[71]
It should be noted that in 1997 the rate in both Yukon and Northwest
Territories was even higher than in British Columbia.
[72]
Also, the data
prior to 1995 are based on approximations made from the average distribution
of charges during the period covering the years 1995 to 2000.
[73]
Statistics Canada, Canadian Centre for Justice Statistics, Juristat,
Illicit Drugs and Crime in Canada, Catalogue no. 85-002-XIE, Vol. 19, No. 1,
page 5. In this case, “other drugs” means: 1) illegal drugs other than
cannabis, cocaine or heroin, and 2) controlled drugs.
[74]
Statistics Canada, Canadian Centre for Justice Statistics, Juristat,
Crime Statistics in Canada - 2001, Catalogue no. 85-002-XIE, Vol. 22, No. 6,
page 19.
[75]
Ibid.
[76] Carrier, N. (2000) Discours de patrouilleurs montréalais sur la détection de l’infraction de possession de drogues prohibées. Mémoire de maîtrise. École de criminologie, Université de Montréal.
[77] Voir aussi la discussion qu’en fait M. Guy Ati-Dion lors de son témoignage devant le Comité spécial du Sénat sur les drogues illicites, Sénat du Canada, première session de la trente-septième législature, 29 octobre 2001, fascicule 8, pages 73-74.
[78]
Appendix
B. ‘Referee’s Comments.’ In Bramley-Harker (2001) Sizing the UK market for illicit drugs. London: Home Office. RDS
Occasional Paper no 74.
[79] Ibid.
Chapter
15
The
Criminal Justice System
The
previous chapter examined how people first come into contact with the criminal
justice system through the enforcement of criminal legislation. Several
questions remain, however. What happens once a person has been charged with a
drug offence? Who is responsible for prosecuting drug cases? What type of
punishment do people receive? Who ends up with a criminal record? Have there
been any challenges to the constitutional validity of drug legislation? These
issues and others related to the criminal justice system are reviewed in this
chapter.
Prosecution
The
Federal Prosecution Service (FPS) is the lead prosecution agency with respect to
drug offences in Canada. Its mandate is to prosecute offences in every province
and territory under a variety of federal statutes, including the CDSA. Its work
consists mostly of drug prosecutions.
Under
the CDSA, provinces can exercise jurisdiction to prosecute if a drug proceeding
was commenced at the instance of the provincial government. Presently, only two
provinces–Quebec, and to a lesser extent New Brunswick–have exercised this
jurisdiction. Thus, in Quebec, the FPS prosecutes only offences that have been
investigated by the RCMP. In the rest of Canada – apart from New Brunswick –
the service prosecutes drug offences that have been investigated by a provincial
or municipal police force or the RCMP.
The FPS
has 300 full-time in-house lawyers in 13 offices across the country and
approximately 750 standing agents from the private sector, who conduct drug
prosecutions on behalf of the Attorney General of Canada. Generally, the police
investigate an offence and lay a charge, which is followed by a prosecution. In
certain provinces – such as British Columbia, Quebec and New Brunswick–the
police are required to seek Crown approval before laying a charge.
While
complex cases still represent a fairly small percentage of cases prosecuted by
the FPS, they are becoming more common and are already very time consuming for
prosecutors.
…Most
cases are of low or medium complexity; however, the complexity of cases is
increasing and complex cases are becoming more common. Currently, it is
estimated that complex cases make up 7 percent of the caseload but use 60
percent of prosecutors' time. Complex organized crime cases require the
involvement of Justice at an early stage because of the legal issues associated
with the collection, organization, and admissibility of evidence. [1]
The
total cost of drug-related prosecutions conducted by the FPS is approximately
$57 million per year–$35 million for in-house counsels and $22 million for
standing agents. The FPS estimates that for the year 2000-2001, the cost of
prosecuting cannabis possession was approximately $5 million, or roughly 10% of
the total budget of $57 million.[2]
Courts
During
our deliberations, we were not given much detail on the costs to the provincial
court system of drug-related prosecutions. The 1996 study by CCSA already
presented in a previous chapter[3]
estimated court costs for 1992 at approximately $60 million. One would
assume that, with nearly 50,000 people currently charged per year for drug
offences, and with the increased complexity of these cases, court administration
costs would be significantly higher than the amount estimated in 1992.
The
Auditor General estimated that in 1999 Canadian criminal courts heard 34,000
drug cases that involved more than 400,000 court appearances.[4]
Other court-related costs are the considerable resources spent on legal aid.
While we did not receive information on how much of these costs should be
allocated to drug-related offences, we do know that in 1996/1997, $860 million
was spent on court administration costs, and that in 1997/1998, $455 million was
spent on legal aid.[5]
Drug
treatment courts
Drug courts
originated in the USA in the late 1980s as one of the measures in the “war on
drugs”. The arrangement essentially involves permitting the judge hearing a
case involving narcotics to order treatment measures instead of any other form
of sentence. There are now approximately 2,000 drug courts in the USA and they
have apparently dealt with about 200,000 individuals. The primary task of these
courts is to deal with offenders whose offences did not involve violence and who
have a history of drug use (including alcohol). Two approaches are taken: one is
applied before sentencing and the other after sentencing. In the former case,
the charges are suspended and in the latter case it is the sentence of probation
or imprisonment that is suspended. Responses include intensive judicial
supervision, long-term clinical treatment, frequent random urine tests, and
related services (housing, employment, etc.). Various assessments of the system
claim that the benefits include a reduction in drug use and delinquency as well
as a reduction in the costs to the criminal justice system (it costs
approximately US $2,000 to deal with a delinquent in the drug court system as
compared with between US $20,000 and $50,000 for a criminal conviction combined
with a prison sentence).[6]
Drug courts have also
been established in Australia (1999), Ireland (1998) and England (1998).
The
Committee visited Canada’s first drug treatment court (DTC) during its travels
to Toronto. Established in 1998 as a pilot project with funding support from the
National Strategy on Community Safety and Crime Prevention, this initiative
brought together many players including Justice Canada, Solicitor General
Canada, FPS, the Ontario government, the provincial court, the Centre for
Addiction and Mental Health (CAMH), the Toronto Police Service, the City of
Toronto Public Health Department and a range of community-based service
organizations. The pilot project is currently funded to December 2004.
A second
drug treatment court pilot project was established in Vancouver in December
2001. It also uses an inter-sectoral model and is intended to ensure intensive
case management and linking of participants to community resources and skills
development programs, as required. While the Toronto DTC uses the Centre for
Addiction and Mental Health as its treatment provider, treatment providers in
Vancouver tend to be more locally based.
Drug
treatment courts are specifically designed to supervise cases of drug-dependent
offenders and are based on knowledge that incarceration alone does not lead to a
reduction in drug use and related criminal activity. Typically, the criminal
justice system does not address substance abuse problems or the root causes of
these problems – which may include unemployment, homelessness, physical and
sexual child abuse histories, family discord and a range of mental and physical
health problems. DTCs are based on research that demonstrates that offenders
with substance abuse problems commit fewer crimes when they are enrolled in
treatment programs.
Another
underlying assumption is that through therapeutic jurisprudence approaches such
as drug courts, which are intended to provide rehabilitative and reintegration
outcomes for drug-addicted offenders, the criminal justice system, in
partnership with treatment providers and community services, can act as a change
agent in altering the course of the addict's life. [7]
The
Toronto DTC provides court-supervised treatment for people who have a dependency
on cocaine and/or opiates. Non-violent drug-dependent offenders charged with
possession of, or trafficking in, small amounts of crack/cocaine or heroin, or
with prostitution-related offences, are eligible for the program. In all cases,
the offender is screened and assessed by a treatment provider. Admission is
voluntary but must be approved by the Crown. Factors considered include other
current criminal charges, the potential for risk to the community and the
seriousness and circumstances of the offence. Two tracks have been established.
In general, the first track is for those with limited or no criminal record and
a charge of simple possession. They are eligible to enter the DTC prior to
plea–once the program is completed, the charge is stayed or withdrawn. The
second track is for those with more serious criminal records or a trafficking
charge. They are required to plead guilty–once phase I of the program is
completed, the offender receives a non-custodial sentence and is placed on
probation (phase II). Failure to complete phase I results in the offender being
expelled and sentenced.
The
system is based on close collaboration between the Court and treatment systems.
The offenders attend court sessions on a regular basis–the court sits twice a
week–where the judge, in consultation with the DTC treatment team, reviews
their progress. The DTC team includes the DTC judge, crown prosecutor, duty
counsel, a representative of probation services, court staff, community/court
liaison staff and treatment staff. Decisions are made regarding future treatment
and judicial involvement. Continued compliance is encouraged through a system of
graduated incentives and sanctions–this is accomplished by releasing the
offender on bail with appropriate conditions that must be satisfied. Relapses
are anticipated as part of the recovery process and do not automatically lead to
expulsion. Honesty and accountability are important, however. Failure to meet
other conditions, such as attendance in court or providing a urine sample, can
result in a range of sanctions, including revocation of bail for up to five
days.
The
offender is involved in a structured outpatient program geared to his or her
specific needs. Treatment lasts approximately one year, during which the
offender works closely with a case manager. Treatment includes: group and
individual counselling, ongoing case management, regular and random drug
screening, and addiction medicine services – including methadone maintenance
where appropriate. Treatment staff also collaborate closely with community
resources and agencies to meet the needs of participants. To complete the
program, the offender must not have used crack/cocaine and/or heroin for an
extended period of time and must also demonstrate a fundamental life-style
change involving improved interpersonal skill development, stable and
appropriate housing, and educational and vocational success.
The DTC
initiative seems very encouraging although it is clear that evaluations will
have to be conducted to ensure that these programs are effective. We were told
that there are very few existing comprehensive, well-designed evaluations of
drug treatment courts but that results of more comprehensive evaluation should
be ready in 2002-2003. Problems to date include the following: most of the
evaluations or research have taken place within very limited time frames; there
has been no significant follow up to look at whether there has been re-use
or abuse of drugs and criminal recidivism; and there has been a lack of adequate
comparison groups from which to draw conclusions about the impact and effects of
the program. Also discussed were differences from American drug courts, where
mandatory minimum sentences and harsher penalties in general are a significant
incentive for American participants to remain with the program.[8]
Patricia Begin, Director of Research and Evaluation at the National Crime
Prevention Centre, provided the following preliminary details of the Toronto
DTC:
Briefly,
the Toronto evaluation is using a quasi-experimental design. The comparison
group is composed of those clients who were assessed as eligible to enter the
program and made the decision not to participate in the drug treatment court,
but rather go through the traditional criminal justice processing.
Between
April 1999, when the evaluation data started to be collected, and October 5,
2001, there were 284 clients involved in the drug treatment court. Eighty-three
per cent, or 234, are the experimental group, and 17 per cent constitute the
comparison group of 50 clients.
In
the experimental group, 16.7 per cent are still in the program; 13.7 or 14 per
cent have graduated, which is 32 graduates; and 62 per cent have been expelled.
The overall retention is 31 per cent.
One
of the things the research has illuminated is that for those drug treatment
court clients who make it past the three-month period, the retention rate rises
to 50 per cent. The court is attempting, through the data, to better understand
the characteristics of those clients who are deemed to be eligible but do not
make it, and who are expelled or withdraw in the first three months.
…The
evaluation has found that the comparison group is more likely than the
experimental group to be younger, unemployed, have an income source from illegal
activity, more criminal convictions, have been incarcerated more often and been
charged with a new offence since admission to the drug treatment court. In many
respects, the comparison group is at much higher risk than the experimental
group.
Lower
reoffending rates for those receiving the drug treatment court program and
related services may be related to their level of risk. We would like to explore
further whether it is participation in the program, or lower risk and motivation
to change one's life that is accounting for these differences.
The
evaluation data that we have to date has told us the following: The drug
treatment court in Toronto is able to engage and retain offenders. Those who
stay in the program tend to complete it and graduate, and the limited follow-up
data that has been collected so far would indicate that they do have lower
recidivism rates and reduced drug use.
There
is also a reduction in drug use and criminal activity while offenders are in the
program. There tend to be lower re-arrest rates for the experimental group
compared with the expelled or the comparison group. One of the evaluation
challenges over the next couple of years will be to try to identify a better
matched group of offenders in order to define the outcomes, impacts and effects
of the drug treatment court experience on some of the key outcome measures,
which have to do with drug use, criminal activity, re‑insertion in a
pro-social way into the community, family stability and things of that nature. [9]
We look
forward to the results of more comprehensive evaluations. Of note, the cost of
incarceration in Ontario is approximately $45,000 per year while treatment costs
related to drug courts are estimated at $4,500 per year. Clearly, increased use
of DTCs could lead to substantial savings to the criminal justice system while
at the same time showing promising results in reducing substance abuse problems.
Disposition
and sentencing
While
the quality of criminal justice statistics has been discussed in other chapters,
the weakness in these numbers is particularly evident with respect to the
disposition and sentencing of drug-related offences. This issue was also raised
in the Auditor General's report for 2001.
There
are weaknesses in some aspects of law enforcement statistics. First, there are
no national statistics on illicit drug convictions and sentencing. For example,
British Columbia, Manitoba, New Brunswick, and Nunavut do not provide adult
criminal court data to Statistics Canada. The use of statistics requires good
analysis and interpretation to understand underlying trends and causes. Because
Canada does not have national data, it cannot monitor important trends such as
sentence lengths, emergence of new drugs, and regional differences…
A
second weakness is that the statistics on drug convictions and sentencing, which
are reported according to the categories under the Controlled Drugs and
Substances Act, are limited in detail. While the national statistics on police
charges break down the number of drug charges by both type of substance (for
example, heroin, cocaine, and cannabis) and act (for example, possession,
trafficking, importation, and cultivation), the statistics on convictions are
broken down into only two categories - possession and trafficking. The
Inter-American Drug Abuse Control Commission's 1999-2000 report on Canada's
progress in drug control stated that improvements were needed in the justice
system's statistics on drug offences.[10]
Despite
these weaknesses, data relating to the disposition and sentencing of
drug-related offences will be reviewed.
The
following figure details the outcome of those charged with drug offences in
selected provinces. It would appear that, from 1995 to 2000, there was a fairly
significant increase in the percentage of cases in which the charges against the
accused were either stayed or withdrawn. Not surprisingly, the percentage of
people being found guilty of drug offences once they had been charged was lower.
It is important to note, however, that this figure does not include data from
three of the provinces (New Brunswick, Manitoba and British Columbia) and from
one of the Territories (Nunavut); nor does it include data from certain courts
in Quebec. Also, the data prior to 1995 are based on approximations of the
average distribution of charges during the period covering the years 1995 to
2000.
For the
year 1996-1997, 64% of persons convicted of drug trafficking were sentenced to
imprisonment. The median sentence was four months. Probation was imposed as the
most serious sentence in 24% of these cases and fines, in 9%.[11]
With
respect to possession, a fine was imposed in 63% of the cases, with a median
amount of $200. A fine was imposed as the most serious sentence in 55% of cases,
probation in 22% and imprisonment in 13%.[12]
We were
informed that the FPS is attempting to identify and implement alternatives to
prosecution where appropriate. For example, “diversion” – whereby
first-time offenders who have been charged with simple possession of cannabis
are diverted out of the formal criminal justice system – was mentioned. Also
discussed were the drug treatment court pilot projects in Toronto and Vancouver,
whereby addicted offenders are referred to a fairly rigorous court-monitored
treatment program. In addition, we were told about the recent implementation of
the “deferred prosecution pilot project,” in which prosecutors post a peace
bond for offenders who have been charged with possession of cannabis in
Manitoba. In these cases, the charges would be stayed, and as long as the
offender is not back before the court system within a period of one year, the
matter would be discontinued. Other “diversion” programs across Canada were
mentioned.[13]
While
Canada’s disposition and sentencing data are incomplete, a few studies of
limited scope suggest what is happening in Canada. A document prepared by the Comité
permanent de lutte à la toxicomanie reviews police and judicial practices
based on Quebec statistics from 1985 to 1998.[14]
The report found that practices
varied from one region to another in Canada and also from one region to another
in Quebec. It notes that while there is a trend towards greater use of diversion
in cannabis possession cases, it is far from being a standard practice.
Diversion was used more often in the case of minors and, in their case, is on
the rise (20.6 % in 1990, 48.2 % in 1995, 55.9 % in 1996 and 63 % in 1997). Once
again, this varies considerably from one region to another.
Of those charged with
cannabis possession, approximately 80% were adults and mostly male (roughly
90%). The report noted that penalties were not severe, particularly where it
involved only one offence. For adults, the majority of the penalties imposed by
the courts were fines and probation, and very rarely imprisonment.
For minors, the most common penalty was community work or probation; detention
was rarely imposed. Data from Montreal in 1998 indicate that incarceration for
cannabis possession was less likely (13.8 % of all sentences) than for other
substances, and that such penalties were shorter (50% were for 1 day and none
was for more than 10 days). In addition, fines were smaller (average fines for
cannabis were $186 while they were $277 for cocaine).
Patricia
Erickson, a researcher from the Centre for Addiction and Mental Health, provided
information on cannabis criminals based on three studies conducted in Toronto in
1974, 1981, and 1998. The studies indicate that cannabis criminals were
overwhelmingly young men (about 90% were male and more than half were aged 21
years or less). Of the sample group, 80% were employed or in school and about
half lived with parents. Most offenders were charged with only one count of
simple possession and the amounts involved were small. In over 75% of the cases,
charges were based on possession of less than 14 grams of cannabis. Of the whole
sample interviewed in 1998, 50% had 1 gram or less of cannabis as the basis for
their cannabis possession charges.
With
respect to sentencing, in the first two studies, an absolute or conditional
discharge was ordered in a large proportion of the cases. In 1998, 43% were
diverted and the rest were awaiting disposition. It was indicated that penalties
seemed to be given out randomly and that there “was no correlation between sentence received and the type of person they
were, or the case characteristics, charge and amount of drug.”[15]
Also
discussed was the issue of deterrence. The first study noted that 92% were still
users one year later (in the later studies, about 80% intended to use cannabis
or were still using it). In addition, the studies noted that the severity of the
penalty was not relevant in deciding whether to use it in the future. The factor
that best predicted an end to use after the user was arrested was simply the
quantity the offender had used in the past–the less used the more likely the
user was to stop. There was also no evidence of general deterrence, although it
was indicated that this is much more difficult to measure.
While
diversion programs are certainly an improvement on the traditional justice
system response, it would seem that these programs are being developed on an ad
hoc basis and are not consistently available across the country. Thus, while
some offenders may benefit, others are left to face the traditional criminal
justice system. In addition, it is not clear whether the admission criteria are
similar under the various diversion initiatives. This would suggest an uneven
application of the criminal law with respect to offenders who have committed the
same offence, with the disposition of a case based not on the offence itself but
rather on where it was committed.
Corrections
Correctional
Service Canada (CSC) is responsible for offenders serving sentences over two
years, including individuals convicted of serious drug offences. CSC estimates
that:
·
nearly 70% of
federal offenders have problems with alcohol and/or drugs;
·
more than half
used drugs or alcohol when they committed their current offence; and
·
approximately
20% of incarcerated offenders have been convicted of drug-related offences.
With
such numbers, it is obvious that substance abuse should be a high priority for
CSC. This raises two issues: (1) how to address the supply of drugs in federal
institutions; and (2) how best to provide treatment and rehabilitation for
offenders with substance abuse problems.
With
respect to security measures, CSC conducts searches, does urinalyses and works
with police to share intelligence about drug issues. In addition, ion scanners
have recently been set up in every institution to help detect the introduction
of drugs. There are also plans to have a drug detection dog in every
institution. Despite all these security measures, it would be difficult for CSC
to argue that it is successfully keeping psychoactive substances out of prisons.
The national results from a random urinalysis sample program in 2000-2001 found
that 12% of samples tested positive for at least one intoxicant.[16]
In addition, a recent study in Quebec penitentiaries shows that 29% of
inmates admit to illicit drug use, the majority of them taking cannabis.
Imprisonment
does not necessarily address the problem. A study that we conducted recently in
Canadian penitentiaries in Quebec showed that inmates are taking drugs there
too. We asked inmates to tell us about their drug use habits over the past three
months of imprisonment. All the inmates were men. Sixteen per cent of them told
us that they had consumed alcohol, whereas 29 per cent said that they had taken
illicit drugs. In the majority of cases, these inmates were taking cannabis,
whereas on the outside, the same inmates used to take cocaine. This is a
significant change. Why were these people consuming cannabis, which is more
readily detectable by its smell and by the traces it leaves in urine? Cannabis
is detectable for 15 days after it was consumed, whereas cocaine can only be
detected for 48 hours afterwards. Inmates want to escape. Cocaine is a stimulant
which brings the inmate back to reality and this is not the desired effect.
These people want to escape. Tranquillizing substances are the favourite.
Sometimes they take benzodiazepine.
However, they are easily able to get their hands on cannabis. [17]
CSC
provides substance abuse and treatment programs to offenders with drug problems.
A range of programs is available to help offenders break the cycle of addiction
and safely reintegrate back into the community. Programs include the Offender
Substance Abuse Prevention Program, the CHOICES Program and the Substance Abuse
Program for Long-Term Offenders. CSC has also introduced Intensive Support
Units, which include added searching and testing to support offender efforts to
change substance abuse behaviour. The Auditor General estimates that 53% of
offenders participate in substance abuse programs while serving their sentences.[18]
With
respect to harm reduction, CSC provides methadone treatment to some
opiate-addicted injection drug users and also makes bleach available in prisons
to sterilize needles. CSC also has other initiatives to prevent the spread of
infectious diseases, such as immunization for Hepatitis B. In early 2002, CSC
announced an expanded methadone treatment program for federal prisoners addicted
to heroin and other opiates.
CSC’s
Addictions Research Centre (ARC) opened in Montague, Prince Edward Island, in
May 2001. The mandate of the ARC is to conduct applied research to assist the
CSC in understanding issues surrounding substance abuse and to develop programs
that assist offenders in breaking their drug dependency. It is the only research
centre established by a correctional organization to specifically address the
challenges of addictions. With a staff of 20, it currently focuses on four
areas: program development – which is currently focused on culturally
sensitive programs for women and Aboriginal offenders; program research – in
areas such as community intervention, methadone maintenance, intensive support
units and fetal alcohol syndrome; assessment and monitoring – to measure
trends over time to evaluate the success of interventions; and knowledge
dissemination.
Obviously,
CSC’s largest cost is related to incarceration. The Auditor General estimated
that in 1999, CSC spent $169 million to deal with illicit drugs: $154 million to
deal with offenders serving sentences in whole or in part for drug-related
offences; $8 million on substance abuse programs (including alcohol); $4 million
for treatment programs (e.g., methadone); $3 million on urinalysis testing.
The cost of other security measures to control supply in institutions
were unknown.[19]
Of the current population of approximately 13,000 federal inmates, roughly 7,000
participate in substance abuse programs while serving their sentences. About
$1,150 is spent per participating offender on substance abuse programs.
As of 31
December 2000, 5,779 convicted drug offenders were under federal jurisdiction
(either serving their sentence: (1) in a federal institution or (2) on
conditional release). Of these, 3,890 were serving sentences for trafficking,
621 for importation, 225 for cultivation and 2,221 for possession.[20]
Inmates serving in federal institutions are those who have been sentenced to
imprisonment for two years or more.
Of those
same 5,779 convicted drug offenders serving their sentences as of 31 December
2000, 2,548 were in federal correctional institutions: 1,613 for trafficking,
113 for importation, 82 for cultivation and 1,318 for possession.[21]
In addition, 3,231 were on conditional release: 2,312 for trafficking, 508 for
importation, 145 for cultivation and 946 for possession.[22]
In the
five-year period from 1995 to 2000, the total federal drug offender population
increased by almost 9%. Most of the growth involved those on conditional
release, as this population increased by 19% over this period. At the same time,
the number of those serving their sentence in institutions decreased by 2%.[23]
At the
end of 2000, the average time served by drug offenders in federal custody was
2.2 years. With respect to conditional release, the average time served was 3.7
years. While this figure is lower than the average for non-drug offences, it is
interesting to note that the average time served in custody for possession
offences was 2.52 years, while it was 1.89 years for trafficking, 1.48 years for
importation and 0.88 years for cultivation. For those on conditional release,
the average time served for importation was 4.6 years, while it was 3.6 years
for possession, 3.5 years for trafficking and 2.2 years for
cultivation.[24] CSC indicated the reason
that offenders appeared to be serving longer sentences for possession offences
than for other drug-related offences such as trafficking is that they may also
be serving time for other more serious offences, a situation making comparisons
extremely difficult.
The
following figure provides details of the number of admissions by region in
federal correctional institutions in relation to drug offences for the year
2000, and the number of inmates incarcerated in different regions of the country
as of 31 December 2000.
Criminal
record
So what
are the consequences of a criminal conviction? There are pre-disposition costs
related to the criminal justice system such as legal fees, time off from work,
etc. Often, the liberty of the offender is compromised by virtue of having to go
to the police station. There are also the emotional costs of worrying about
having been charged with a criminal offence. Even if the charge is later
withdrawn, offenders have experienced costs.[25]
Sanctions
imposed in court are another obvious cost to the offender. They could include
probation, a fine or some other sentence. Finally, there are also
post-conviction costs. For example, a criminal conviction can have a negative
impact on a person’s employment opportunities and can be an impediment to
travel to other countries. The general stigma of criminalization affects all
offenders. Those offenders receiving harsher sentences generally feel unfairly
treated, a feeling that can lead to a lack of respect for the administration of
justice.[26]
Allan
Young made the following statement
I
get two to three calls a week from otherwise law-abiding citizens who are pot
smokers who have been fired from their jobs or have been denied entry into the
United States or access to their children or government employment. These people
have been treated like common criminals. This is the biggest problem with the
marijuana prohibition: If you treat someone who is otherwise law-abiding as a
common criminal, they will start to disrespect people like Chief Fantino and the
other people who really do try to serve and protect our interests. [27]
With
respect to the costs of cannabis prohibition, Dr. Patricia Erickson indicated
that we do have choices.
It
is evident in U.S. drug policy that, the people for whom drug use is a moral
issue, the cost is unimportant. The costs are irrelevant to them. What is
relevant is making sure that the use of drugs is seen as wrong. In Canada,
however, we have always been more balanced and more evidence-based. That is a
good distinction from the U.S. Canadians are at least able to measure and
discuss the costs of policy and consider alternatives. We are not willing to pay
any price. [28]
A
criminal conviction can also be an important factor in future dealings with the
criminal justice system. For example, a person's prior conviction: may influence
a police officer to lay a charge in cases where he or she might otherwise have
used their discretion not to lay a charge; may influence a crown prosecutor to
proceed by indictment rather than by summary conviction; may be used in limited
circumstances in subsequent criminal proceedings; and may lead a judge to impose
a more severe sentence. These are not trivial matters for those who have been
convicted of a drug-related offence–in particular, the offence of possession
of cannabis.
What
happens in the case of a conditional or an absolute discharge? Section 730 of
the Criminal Code indicates that such
a person is deemed not to have been convicted of the offence. However, such a
person would in likelihood have to answer yes if he or she were asked whether
they had ever been arrested for, found guilty of, or pleaded guilty to a
criminal offence.
A
conviction does not necessarily mean that a person has a “criminal record,”
that is, a record in the Canadian Police Information Centre (CPIC) System. This
computerized information system for law enforcement use provides information on
crimes and criminals. The Identification Data Bank–one of four CPIC data
banks–contains the Criminal Record Synopsis File in which records are entered
based on information contained on criminal fingerprint forms. This file contains
tombstone data respecting the file–such as status of the record, subject
description, subject history (record, offence type) and subject aliases – and
the complete Criminal Record is available to all CPIC terminal agencies upon
request.
In the
case of adult offenders, the Criminal Record file will be destroyed the earlier
of either three years after their death and the date the individual reaches 80
years of age (although this will not apply in certain circumstances, such as
where the individual has been charged with an offence within the previous 10
years). Absolute and conditional discharges will be removed to an archive as
follows: absolute discharge on or after 24 July 1992 upon the expiration of one
year from the date of sentencing (it is archived for five years and then
destroyed); and conditional discharge on or after 24 July 1992 upon the
expiration of three years from the date of sentencing (it is archived for five
years and then destroyed). Discharges prior to 24 July 1992 will be destroyed on
written request. Where a pardon is granted, the information about this offence
is removed from CPIC to secured storage, separate and apart from all other
criminal records (it is destroyed following the guidelines set out above for
regular criminal record files). In the case of a charge not resulting in a
conviction, the accused may make a request to the police agency that handled the
case to have the information removed from local police files and RCMP records.
The RCMP will return a person’s fingerprints and remove the offence
information from CPIC, only on the request of the police agency that handled the
case. Special rules apply to young offenders.
As
explained previously, even though a person does not have a “criminal
record,” it does not mean that the person has not been convicted of a criminal
offence. While the presence of a criminal record is more likely to lead to
negative consequences for the individual, many of the issues raised above also
apply to those who have been convicted of a criminal offence but who do not have
a “criminal record.” Depending on the circumstances and on the way the
question is formulated, the lack of a criminal record is irrelevant.
Because
the offence of possession of less than 30 grams of marijuana is currently a
summary conviction offence, a person should not be fingerprinted following
arrest. Because fingerprints are the basis for a “criminal record,” no such
record will be entered in CPIC based only on this offence. However, before 1996,
people had a criminal record, and it has been indicated that by the early 1990s,
over 500,000 Canadians had a criminal record for cannabis possession.[29]
Because
of the complexity of this issue, one wonders whether people who have been
convicted of an offence, notwithstanding the sentence imposed or whether they
have received a pardon, know their legal rights. For example, most people would
probably have difficulty answering certain criminal-related questions found on
employment application forms.
Court
challenges [30]
Not
surprisingly, the cases that have challenged the substantive validity of drug
prohibition laws under the Charter have so far specifically dealt with
marijuana, rather than with harder drugs, such as cocaine and heroin. Cases
dealing with the right to use cannabis for medical purposes have been discussed
in Chapter 13. This section will review cases where a right to non-therapeutic
(or recreational) drug use is claimed. Although the medical cases have met with
greater success, Charter challenges to marijuana prohibition by recreational
users have been taken more seriously by the courts than they were a few years
ago.
So far,
Canada’s legislative prohibition on marijuana – as it relates to
non‑therapeutic use – has been consistently upheld by the courts.
However, the court’s reasons have become more elaborate and more extensive in
recent cases than in earlier cases. Undoubtedly, this reflects, at least in
part, a change in judicial perceptions of the scope of section 7 of the
Charter.
No cases
could be found which dealt with challenges to the ban on marijuana or other
drugs under the Canadian Bill of Rights.
Undoubtedly, this can at least in part be explained by the courts’ approach to
the Bill of Rights generally, and to the “due process” clause specifically.
The courts took a rather cautious approach to applying the Bill of Rights which,
being an ordinary statute, was not taken to “reflect a clear constitutional
mandate to make judicial decisions having the effect of limiting or qualifying
the traditional sovereignty of Parliament.”[31]
Moreover, the prevailing view of the “due process of law” standard was that
it was restricted to procedural fairness, and the “liberty” interest was
undoubtedly assumed to refer only to freedom from physical restraint.
The
earliest case concerning a Charter challenge to the offence of possession of an
illegal narcotic–in this case, marijuana–was the Quebec Superior Court
judgement in R. v. Lepage (8 May 1989, unreported).[32]
However, this case was unreported and a copy of the decision could not be found,
so the reasons for the decision, including the provisions of the Charter under
which the decision was made, are not available.
The
British Columbia Supreme Court decision of R.
v. Cholette (1993)[33]
was the first case located that dealt squarely with a section 7 challenge to the
ban on the use of marijuana. In this case, the accused claimed that the ban
violated his right to security of the person under section 7. The accused cited
the benefits which he derived from using marijuana and questioned the motivation
of the government’s original decision to ban marijuana in 1923 (on the basis
that it reflected anti-Asian bias and stereotyping), and its continued retention
of the ban, on the grounds that there is no evidence of any significant harmful
effect to society. Justice Dorgan rejected the accused’s argument and
concluded that the accused had failed to demonstrate that the ban on marijuana
“interferes in any real way with the right of access to medical treatment for
a condition representing a danger to the life or health of the accused…”[34]
Four
months after the Cholette case,
similar arguments were being weighed by the Quebec Court of Appeal in R.
v. Hamon (1993).[35]
This time, the accused relied on the broader conception of the liberty interest
advanced by Wilson J. in Morgentaler
arguing that the decision to use marijuana was a fundamental personal decision.
He further claimed that, as marijuana is not really harmful to society – or,
at least, no more harmful than tobacco or alcohol – the ban is arbitrary and
irrational, and thus contrary to the principles of fundamental justice. Justice
Beauregard, for the court, was prepared to assume that an arbitrary criminal
prohibition would be contrary to the principles of fundamental justice.[36]
However, the Court concluded that the ban was not arbitrary and accepted the
expert evidence adduced by the government to the effect that cannabis use did
have harmful effects on individual users and society.[37]
Moreover, the court rejected the suggestion that there was anything unjust in
the government’s decision to treat cannabis differently from tobacco or
alcohol.[38] Leave to appeal this
decision to the Supreme Court of Canada was refused.
In the
1997 case of R. v. Hunter,[39]
Justice Drake of the British Columbia Supreme Court addressed a challenge to the
prohibitions on marijuana and psilocybin under various Charter provisions. With
respect to the accused’s arguments that the prohibitions violated his section
7 liberty and security of the person interests, Justice Drake summarily
dismissed them, stating simply that “the
two statutes contain reasonable prohibitions against certain conduct, and these
are not unduly broad in their application” and referring with approval to
the Quebec Court of Appeal decision in Hamon.[40]
In the
preceding cases involving challenges to the ban on marijuana (and psilocybin, in
the case of Hunter) under section 7 of
the Charter, the courts dismissed the arguments with little detailed reasoning.
However, in two provincial courts of appeal decisions released in 2000, similar
arguments were the subject of more extensive analysis.
The
first of these two cases was R. v.
Malmo-Levine (and its companion case of Regina v.
Caine),[41]
a decision of the British Columbia Court of Appeal released on 2 June 2000.
In this case, a majority of the court upheld the criminal prohibition on simple
possession of marijuana as being in conformity with section 7 of the Charter.
First,
the Court decided that the accused’s section 7 liberty interest was engaged by
the fact that the penalty for the offence provided for possible imprisonment;
and that it was therefore unnecessary to decide whether personal recreational
use of marijuana was independently protected as an element of “liberty.”[42]
Justice
Braidwood, for the majority, then turned to the task of identifying and defining
the principles of fundamental justice applicable in the case. After considering
relevant common law and constitutional jurisprudence, scholarly legal and
philosophical writings (in particular, those of John Stuart Mill), and law
reform commission reports, the Court accepted the accused’s argument that the
principles of fundamental justice as set out in section 7 of the Charter include
a precept referred to as the “harm principle,” pursuant to which a person
ought not to be imprisoned unless there is a potential that his or her
activities will otherwise cause harm to others.[43]
Moreover, this principle requires that the degree of harm involved “must be
neither insignificant nor trivial.”[44]
Recognition
of the “harm principle” as a principle of fundamental justice is consistent
with the assumption made by the Quebec Court of Appeal in Hamon, that a prohibition that was arbitrary and irrational would be
contrary to section 7 of the Charter.
As in Hamon,
the majority of the Court in Malmo-Levine
found that the prohibition was not arbitrary. Justice Braidwood, for the
majority of the Court, held that the criminal prohibition on possession of
marijuana satisfied the harm principle. The majority concluded that Parliament
had a “reasonable basis” to ban marijuana based on the following findings
concerning the health risks associated with its use:
v
Impairment of
ability to drive, fly, or operate complex machinery–in this regard, users
represent a risk of harm to others in society as well as to themselves (however,
the number of accidents attributable to marijuana use cannot be said to be
significant).
v
Risk that the
person will become a “chronic” user. Approximately 5% of marijuana users are
chronic users; and it is impossible to tell in advance who is likely to become a
chronic user. There is a risk that marijuana use, and with it the total number
of chronic users, would increase if it were legalized.
v
Increased
health risks to “vulnerable persons” such as young adolescents.
v
Risk of added
costs to the health care and welfare system with increased use of marijuana
(although, at current rates of use, such costs would be “negligible”
compared with those associated with tobacco or alcohol use).[45]
Justice
Braidwood then proceeded to weigh the interests of the state versus the rights
of the individual, as prescribed by the Supreme Court of Canada in Cunningham,
to determine if the criminal prohibition on marijuana possession struck “the
right balance” between the individual and society. On the side of the
individual, the Court weighed the deleterious effects on the individual and his
or her family of imprisonment, and of having a criminal record. The Court also
noted the disrespect and distrust for the drug laws fostered by the prohibition
on marijuana possession. With respect to the state interest in retaining the ban
on marijuana possession, the Court weighed the fact that it serves to minimize
the harm to potential users and to society associated with cannabis use which,
“however small, … is neither insignificant nor trivial.”[46]
The Court also noted that, in practice, a person convicted of simple possession
of marijuana can likely expect a minor fine or a discharge, unless the person is
a repeat offender.[47]
Nonetheless, the Court observed, the threat of imprisonment remains and, in any
event, “every year thousands of Canadians are branded with criminal records
for a ‘remarkably benign activity.’ ”[48]
In the
end, Justice Braidwood observed that the result of the balancing of interests
was “quite close,” and that “there is no clear winner.”[49]
However, he noted that Parliament is owed some deference in matters of public
policy and returned to his conclusion that, although the threat posed by
marijuana was not large, it did not need to be for Parliament to act.[50]
The principles of fundamental justice demand only a “reasoned apprehension of
harm.”[51]
As this had been demonstrated, the majority dismissed the accused’s section 7
challenge to the prohibition on marijuana possession.
In a
dissenting opinion, Justice Prowse, while agreeing with much of Justice
Braidwood’s analysis, found that section 7 and the harm principle required a
greater degree of harm to justify a criminal prohibition than merely non-trivial
or not insignificant. Because the accused was able to demonstrate the absence of
evidence indicating a reasonable apprehension of “serious, substantial or
significant” harm, Justice Prowse would have ruled that the criminal
prohibition on simple possession violated section 7 of the Charter.[52]
The
Ontario Court of Appeal decision in R. v.
Clay,[53]
released on 31 July 2000, dealt with almost the same issues and arguments as
those in Malmo-Levine. Moreover, a
unanimous panel of the Ontario Court of Appeal reached the same conclusion as
the majority in the British Columbia Court of Appeal judgement released the
previous month.
In Clay,
Justice Rosenberg, for the court, accepted the “harm principle” elucidated
by Justice Braidwood in Malmo-Levine.[54]
Justice Rosenberg noted, among other things, that the notion of a “harm
principle” encompassed by section 7 would be consistent with Justice
Sopinka’s statement in Rodriguez
that where the “deprivation of the right
in question does little or nothing to enhance the state’s interest (whatever
it may be), it seems … that a breach of fundamental justice will be made out,
as the individual’s rights will have been deprived for no valid purpose.”[55]
Moreover,
in applying the “harm principle” to the criminal prohibition on marijuana
possession, the Court came to the same conclusion as the majority in Malmo-Levine:
Because there is some evidence of harm caused by marijuana use that is neither
trivial nor insignificant, Parliament has a rational basis to act as it has done
and the marijuana prohibition is therefore consistent with the principles of
fundamental justice in section 7.[56]
Justice
Rosenberg, for the Court in Clay,
noted that while the original basis for extending the ban on narcotics to
include marijuana may have involved “racism”
as well as “irrational, unproven and
unfounded fears,” the valid objective of protecting Canadians from harm
has remained constant.[57]
The Court also rejected the relevance (for the purposes of constitutional
analysis) of arguments and evidence showing that other legal substances, such as
alcohol and tobacco, cause greater harm than marijuana: “[t]he fact that Parliament has been unable or unwilling to prohibit
the use of other more dangerous substances does not preclude its intervention
with respect to marijuana, provided Parliament had a rational basis for doing
so.”[58] The Court concluded that
it did and upheld the prohibition on marijuana possession, except as it related
to persons who need it for medical reasons (which was dealt with by the Court in
the companion case of R. v. Parker–discussed
below).[59]
As in Malmo-Levine,
the Court in Clay found that section 7
of the Charter was triggered by the possibility of imprisonment, which
implicated the accused’s liberty interest. However, the Court in Clay went further and addressed the argument that personal use of
marijuana per se was protected as an
aspect of liberty and/or security of the person based on the expanded conception
of these interests recognized by Justices of the Supreme Court of Canada in
decisions such as: B.
(R.) v. Children’s Aid Society of Metropolitan Toronto; New
Brunswick (Minister of Health and Community Services) v. G. (J.); and Rodriguez
(all discussed above). The Court concluded that personal marijuana use (apart
from its genuine medicinal use) did not engage the “wider
aspect of liberty” which protected the freedom to make decisions of “fundamental
personal importance.”[60]
Nor did it fall within the sphere of personal autonomy, which encompassed the
right to “make choices concerning one’s own body” and a right to “basic
human dignity” as aspects of security of the person.[61]
The Malmo-Levine,
Caine and Clay cases are currently
before the Supreme Court of Canada. The cases will revolve around whether
section 7 of the Charter contains the “harm principle” and the associated
question of what is the appropriate threshold of harm: is it enough that the
harm is “neither insignificant nor trivial” or must there be reasonable
apprehension of serious, substantial or significant harm?
Conclusions
|
Conclusions of Chapter 15 |
|
|
|
Ø The cost of prosecuting drug offences in 2000-2001 was $57 million with approximately $5 million or roughly 10% of the total budget relating to prosecuting cannabis possession offences. Ø In 1999, it is estimated Canadian criminal courts heard 34,000 drug cases that involved more than 400,000 court appearances. Ø The Drug Treatment Court initiatives seem very encouraging, although comprehensive evaluations are needed to ensure these programs are effective. Ø Disposition and sentencing data with respect to drug-related offences are incomplete and there is an urgent need to correct this situation. Ø Correctional Service Canada spends an estimated $169 million annually to address illicit drugs through incarceration, substance abuse programs, treatment programs and security measures; expenditures on substance abuse programs are unreasonably low, given the number of inmates who have substance-abuse dependence problems. Ø A criminal conviction can negatively affect a person’s financial situation and his or her career opportunities, and restrict travel. In addition, it can be an important factor in future dealings with the criminal justice system. Ø Provincial courts of appeal have so far maintained the constitutionality of cannabis prohibition. They have found that because there is some evidence of harm caused by marijuana use that is neither trivial nor insignificant, Parliament has a rational basis to act as it has done, and the marijuana prohibition is therefore consistent with the principles of fundamental justice in section 7 of the Charter. These decisions have been appealed, and the Supreme Court of Canada will soon decide whether cannabis prohibition is constitutionally sound. |
[1]
Report of the Auditor
General of Canada to the House of Commons,
2001, Chapter 11, “Illicit Drugs: The Federal Government’s Role”, page
12.
[2]
Croft Michaelson, Director and Senior General Counsel, Strategic Prosecution
Policy Section, Department of Justice, Proceedings of the Special Committee
on Illegal Drugs, Senate of Canada, First Session, Thirty-seventh
Parliament, 2001-02, Issue no. 22, page 54.
[3]
Single, E. et. al., (1996) op.
cit.
[4]
Report of the Auditor
General of Canada to the House of Commons,
2001, Chapter 11, “Illicit Drugs: The Federal Government’s Role”, page
4.
[5]
Statistics Canada, Canadian Centre for Justice Statistics, Juristat,
Justice Spending in Canada, Catalogue no. 85-002-XIE Vol. 19, no. 12, pages
7-9.
[6]
See, inter alia, the
document prepared by the Canadian Centre on Substance Abuse (2000) Drug
treatment courts: Substance abuse intervention within the justice system.
Ottawa: author.
[7]
Patricia Begin, Director, Research and Evaluation, National Crime Prevention
Centre, Proceedings of the Special Committee on Illegal Drugs, Senate of
Canada, First Session, Thirty-seventh Parliament, 2001-02, Issue no. 22,
page 57.
[8]
Ibid.,
page 8.
[9]
Ibid.,
pages58-60.
[10]
Report of the Auditor
General of Canada to the House of Commons,
2001, Chapter 11, “Illicit Drugs: The Federal Government’s Role”, page
15.
[11]
Statistic Canada, Canadian Centre for Justice Statistics, Juristat,
Illicit Drugs and Crime in Canada, February 1999, page 7.
[12]
Ibid.
[13]
Croft Michaelson, Director and Senior General Counsel, Strategic Prosecution
Policy Section, Department of Justice, Proceedings of the Special Committee
on Illegal Drugs, Senate of Canada, First Session, Thirty-seventh
Parliament, 2001-02, Issue no. 22, pages 54-55.
[14]
Comité
permanent de lutte à la toxicomanie, La
déjudiciarisation de la possession simple de cannabis, June 1999,
pages 11-13.
[15]
Dr. Patricia Erickson, Researcher, Centre for Addiction and Mental Health,
Proceedings of the Special Committee on Illegal Drugs, Senate of Canada,
First Session, Thirty-seventh Parliament, 2001, Issue no. 2, page 90.
[16]
Paul E. Kennedy, Senior Assistant Deputy Solicitor General, Policing and
Security Branch, Department of the Solicitor General, Proceedings of the
Special Committee on Illegal Drugs, Senate of Canada, First Session,
Thirty-seventh Parliament, 2001-02, Issue no. 22, page 10.
[17]
Serge Brochu, Professor, University of Montréal, Proceedings of the Special
Committee on Illegal Drugs, Senate of Canada, First Session, Thirty-seventh
Parliament, 2001, Issue no. 12, pages 23-24.
[18]
Report of the Auditor
General of Canada to the House of Commons,
2001, Chapter 11, “Illicit Drugs: The Federal Government’s Role”, page
13.
[19]
Report of the Auditor
General of Canada to the House of Commons,
2001, Chapter 11, “Illicit Drugs: The Federal Government’s Role”, page
16.
[20]
Correctional Service Canada, Forum on Corrections Research, Volume 13, no.
3, September 2001, page 25. Please note that possession for the purpose
of trafficking is included in the trafficking numbers.
[21]
Ibid.
It should be noted that some offenders might be represented in more than one
drug offence category.
[22]
Ibid.
It should be noted that some offenders might be represented in more than one
drug offence category.
[23]
Ibid.
[24]
Correctional Service Canada, Forum on
Corrections Research, Profiling the drug offender populations in
Canadian federal corrections, September 2001, Volume 13, Number 3, page 26.
[25]
Dr. Patricia Erickson, Researcher, Centre for Addiction and Mental Health,
Proceedings of the Special Committee on Illegal Drugs, Senate of Canada,
First Session, Thirty-seventh Parliament, 2001, Issue no. 2, pages 82-90.
[26]
Ibid.,
[27]
Alan Young, Associate Professor, Osgoode Hall Law School, Proceedings of the
Special Committee on Illegal Drugs, Senate of Canada, First Session,
Thirty-seventh Parliament, 2001, Issue no. 5, page 27.
[28]
Dr. Patricia Erickson, Researcher, Centre for Addiction and Mental Health,
Proceedings of the Special Committee on Illegal Drugs, Senate of Canada,
First Session, Thirty-seventh Parliament, 2001, Issue no. 2, page 99.
[29]
Patricia Erickson and Benedikt Fisher, Canadian Cannabis Policy: The Impact
of Criminalization, the Current Reality and Future Police Option, paper
presented an the International Symposium on Cannabis Policy, Criminal Law
and Human Rights, Bremen, Germany, October 5-7, 1995.
[30]
This section relies to a great extent on Drug
Prohibition and the Constitution, a paper prepared for the Special
Senate Committee on Illegal Drugs by David Goetz, Law and Government
Division, Parliamentary Research Branch, Library of Parliament, 1 March
2001.
[31]
R. v. Therens, [1985] 1 S.C.R. 613, at page 639, per Le Dain J.
[32]
Bruce
A. MacFarlane, Robert J. Frater and Chantal Proulx, Drug Offences in Canada, Aurora, Ont.: Canada Law Book, 1996 (rev.
November 2000) (loose-leaf), pages 4-27.
[33]
[1993]
B.C.J. No. 2616.
[34]
Ibid., at para. 9.
[35]
20
C.R.R. (2d) 181, [1993] A.Q. no. 1656.
[36]
Ibid., at p. 183 C.R.R. and
para. 14, [1993] A.Q.
[37]
Ibid., at p. 183-84 C.R.R.
and paras. 17-20, [1993] A.Q.
[38]
Ibid., at p. 185 C.R.R. and
paras. 22-26, [1993] A.Q.
[39]
[1997]
B.C.J. No. 1315.
[40]
Ibid., at para. 15.
[41]
[2000]
B.C.J. No. 1095.
[42]
Ibid., at para. 69.