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Articles - Law and treaties
Written by Benedikt Fischer   
Monday, 25 November 1996 00:00

THE INTERNATIONAL JOURNAL OF DRUG POLICY, VOL 7, NO 3,1996

THE NEW CANADIAN DRUG LAW:


ONE STEP FORWARD, TWO STEPS BACKWARD


Benedikt Fischer, Patricia G. E:rickson and Reginald Smart, Social Evaluation and Research Department, Addiction Research Foundation, Toronto, Canada*

*Any views expressed are those of the authors and not necessarily those of the ARF.

In autumn of 1996, a new drug control law, first introduced as Bill C-7, comes into being in Canada. The pending statute of the Controlled Drugs and Substances Act (CDSA) is particularly important for the future profile of the country's drug policy, as it constitutes the central element of criminal definitions and measures aimed at 'illicit drugs', and their primary control by law enforcement. Furthern tore, Canadian drug laws are not being changed very often. The previous drug control law, the Narcotic Control Act (NCA) was introduced some four decades ago, with some minor revisions in 196 1. The new drug law constitutes a watershed in the evolution of Canadian drug policy: will Canada enter the twenty-first century guided by a 'harra reduction' law and policy, or will it continue on its traditional path of criminal repression of illicit drugs and their users? This paper will provide an introduction to the history of Canadian drug law up to the passage of CDSA. We will outline the central features of Bill C-7, especially as it compares to the NCA. The authors are critical of the proposed law on the grounds that it contradicts fundamental principles of 'harm reduction' and perpetuates a failing, nearly century-old policy.


OVERVIEW-SOME HISTORY AND THE RECENT LEGAL CONTEXT

Canada's response to 'illicit' drugs has traditionally been dominated by a strong enforcement emphasis. In the first half of the century, a complex and powerfut drug enforcement network in combination with an existing strong't-norat crusader' ideology facititated a repressive approach primarily against opiurn, opiates and cocaine (Giffen et al., 1991). In the mid1900s, an evolving 'treatment movement', building on the ideology of drug use as pathological, argued for a reorientation of 'rehabilitation instead of punishment'for drug users. These substantial ideological shifts, however, were never incorporated into the Canadian drug control taw (G iffen et al., 199 1; Solomon and Green, 1988). The NCA established in the early 1960s confirmed the punitive approach against illicit drug use and supply. The'cannabis use
wave' of the mid- 1960s onward triggered a large-scale enforcement response, criminalising tens of thousands of cannabis users and producing largely harsh sentences mainly against young offenders (Fischer, 1994a, 1994b). A number of political efforts, including the Le Dain Commission in early 1970s, pursued a more rational response to various substances (especially cannabis), but did not change the overall governing scheme of legal repression (Erickson and Fischer, 1995; Fischer, 1994b; Le Dain Commission, 197 2). By the early 1990s, some 600 000 Canadians had received criminal records for cannabis-related offences, about 35 000 offences were processed for drug possession for personal use annually, and some 14% of the Canadian prison population were incarcerated for drug offences (Erickson, 1992).

The Canadian Conservative government announced anew drug pot icy initiative in 1987 titled 'Canada's Drug Strategy'. The large majority of its programme funds-some 70%-was to be dirz~cted towards'd emand red Lict ion'(ed ucation, preven t ion, treatment and rehabilitation programmes), The Strategy communicated aharm reduction' message and aimed at a 'balanced approach between sipply and demand reduction' as its central principles (Fischer, 1994a; Single et al., 199 1). It announced that a new drug control statute would constitu Le the 'legal backbone' of this new drug policy initiative (Beatty, 199 1; Government of Canada, 1992).

This proposed law, tabled in 1991, triggered confusion: Bill C,85 (then called the Psychoactive Substances Control Act) was a modernised NCA, featuring the old ideology and instruments of drug user criminalisation, comprehensive cannabis repression, and harsh maximum sentences, leaving old pharmacological ittogicalities unchanged. It was, according to critics, 'badly drafted' and a retrograde step (ARF, 1993; Usprich and Solomon, 1993). Bill C-85 encountered substantial resistance in the partiamentary hearings, whilst the government was trying to defend it asa'legal housekeeping'exercise, not 2. a policy initiative (Erickson, 1993).-It eventually died on the order paper in the fall of 1993, when the Conservative government lost office.

The Liberals, who had staunchly opposed Bill C-85, came into government power, and tabled Bill C-7 as their proposed version of a new drug law in early 1994 (Minister of Health, 1994). Although it had a new name, the Liberal bill, was an almost identical twin to Bill C-85 (Boyd, 1994). The basic features of the Controlled Drugs and Substances Act remained the same. The Liberal administration also cited 'strong pressure from the sides of international drug control authorities' as a major force behind the bill. Parliamentary hearings on C-7 started in summer 1994, and opposition to the law, mainly from the groups that had already resisted Bill C-85, was substantial (Minutes, quoted in Fischer, 1997). However, after lengthy committee hearings, the Canadian Parliament passed C-7 with minor amendments on October 30 1995. As a paradoxical concession, the government stated that it would initiate a drug 'policy review' after the bill had been passed (Erickson and Fischer, 1995; Hansard, 1995).

Bill C-7, after being passed by the House, moved into committee hearings in the Canadian Senate (which must approve it before it comes into effect). Again, the hearing process triggered a response by a large number of research and interest groups for testimony to initiate revisions on Bill C-7 before becoming Canadian criminal law. The Canadian Parliament was prorogued on February 2 1996, and the Bill died on the order paper. However, Bill C-7 was re- introduced as Bill G 8 as soon as the new Parliamentary session commenced. The Senate resumed hearings and eventually passed C-8 with very minor revisions injune 1996. The Bill has since received royal assent. When Parliament reconvenes in the autumn of 1996, the CDSA, will be proclaimed and be put into practice.

Core features of the CDSA, the new Canadian drug law:

1 . Prohibits the possession of amphetamines, cocaine or opiates (Schedule 1) with a maximum of 7 years imprisonment for an indictable offense, $2000 fine and/or 1 year imprisonment for a summary conviction offence.

2. Prohibits the possession of cannabis products with a maximum of 5 years less a day (excludes possibility for a jury trial) as an indict-able offence. As a summary offence, first offence maximum is $1000 and/or 6 months imprisonment, subsequent offence maximum is $2000 and/or I year.

3. Possession amounts of less than 30 g of marijuana, and 1 g of hashish carry a maximum $1000 fine and/or 6 months imprisonment under a summary offence.

4. Prohibits 'possession for the purpose of trafficking' of all drugs listed above (no explicit indication of what amounts constitute the offence); maximum of life imprisonment

5. Prohibits the trafficking, production, import or export of Schedule I drugs, maximum sentence of life imprisonment (exception clause for cannabis with 7 years maximum).

6. Prohibits the possession or distribution of 'drug containers' (posing a potential legal threat to tneedle and syringe exchange' programmes).

7. States that 'the fundamental purpose of any sentence for an offense . . . is to contribute to the respect of the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and the community'.

8. Provides a list of 'aggravating factors' for sentencing for possession offenses, including the fact that possession took place 'in or near a school ... or school grounds ... any other public place freqUented by persons under the age of 18' or that the offender 'was previously convicted of a designated substance offense'. judges will have to give reasons for not imposing a jail term if those circumstances exist ('convictions' include discharges).

9. Widens police and enforcement powers in regard to search, seizure or forfeiture of any drug-offence suspicion- related person or place. It waives the need for a search warrant 'if the conditions for obtaining a warrant exist, but by reason of exigent circumstances it would be impractical to obtain one'.

(CCSA, 1995; House of Commons, Canada, 1995)

WHY OPPOSITION TO THE CDSA?

From the perspective of social science and the law, we believe that Bill C-7 is an inapprqpriate, and potentially harmful and costly instrurAent to deal with'illegal drug'use and supply in Canada. Our major concern with C-7 isthat it is a missed opportunity to reform a failing, nearly century old policy. The time is right to consider significant new approaches that will respond to Canadian drug problems in the 1990s. Most of the lessons learned from research and policy analyses since 1969 (when the drug law penalties in the NCA were last significantly modified) have been ignored in this Bill. Therefore, our f remost call is for a comprehensive drug policy review of existing policies and options. Ideally and logically, such a review would be conducted before the new legislation is passed, and the impetus for chan,,e is lost. The law is the strongest instrument of social policy, and it is paradoxical to suggest a 'drug policy' review be conducted after the law has been passed. Our position is guided by the principle that the purpose of drug control policy is to balance the costs of harmful drug use with the costs of the control policy intended to prevent or minimise these harms. We conclude that C-7 will perpetuate the harsh,'criminalization-centered' approach of previous drug laws and policy. It will also stigmatise and isolate drug users, waste resources on the futile pursuit of small, scale traffickers and provide few health, safety or public order benefits. On balance, it will probably generate as much harm as it will prevent. More specifically, we have the following concerns and crit, icisms about the proposed statute.


Current status of drug use and abuse in Canada

In general, most types of drug use and abuse have been declining despite some recent small increases. The Ontario Student Drug Use Survey, conducted from 1977 to 1995, showed that overall, drug use of alltypes is in a long-term decline since the peak at the end of the 1970s (Adlaf et al., 1995). The most recent survey, however, did show an increase in cannabis use, heavy drinking and injection drug use. While more students used drugs at least once in 1995 than in 1993, these increases were restricted to males, and those in grades 9 and 11. Students are not using drugs at younger ages, nor have specific problems with alcohol and other drugs increased. Among Ontario adults, rates of cannabis use in the past year have continued to decline, whilst those for cocaine have remained stable (Adlaf et al., 1994). Admissions of cocaine abusers to treatment at ARF went up in the 1980s but have declined since 1991 (Smart and Adlaf, 1990). Overall, admission rates to hospitals in Canada for drug related problems (licit and illicit combined) have not changed since 1986. With some exceptions it appears that drug abuse in Canada is in the midst of a long decline, with no major new epidemics. Compared with the USA, Canada has a relatively small illicit drug problem, which does not call for new powers and penalties: they are unnecessary for a drug abuse situation which is mainly under control. There is no evidence from the Parliamentary or Senate hearings on C-7/8 that this current picture of illicit drug use in Canada was considered by the policy makers.


Enforcement reality and supply-side bias

It has been suggested that C-7 is the legal instrument to go after the criminal'supply side'of the drug tradedealers, producers, importers and traffickers (Reimer, Rowsell in: Fischer,1997). However, the enforcement reality of the current NCA looks quite different: First, instead of targeting mainly the 'hard drugs', the law is primarily used against cannabis: Two-thirds of more than 50 000 drug offences in Canada per year involve cannabis related offences (Moreau 1995, RCMP 1993). Second, drug enforcement in Canada does not, and would not with Bill C-7, primarily target the'supply side'. Some 65% of all drug offences in this country are drug use offences, meaning enforcement aimed against simple drug possession. Such enforcement is often against addicted, dependent or underpriviteged drug users, or small-scale stree t- traffickers (Fischer, 1994a). The 'possession for the purpose oftrafficking'offence as copied from the NCA is broad in scope, and not clearly defined in terms of substance quantities, and thus can easily be targeted against users. In practice, the passing-on of a marij Liana cigarette can constitute a 'trafficking' situation. It is not clear if the general criminalisation of 'drug containers'also extends to needles and syringes, and thus may threaten the harm reduction efforts ofparaphernalia'exchanges (ARF, 1993). With the current design and use of the law, criminal justice agencies do not use these'supply-side'taws only or even primarily against the target groups for which they*Lre supposedly aimed. Bill C-7 then, in its theoretical design as well as its probable use, does not have the scope and effect of a'balanced approach between demand and supply reduction', which the policy-makers of Canada's Drug Strategy and others have been promoting (Beatty, 199 1; Government of Canada, 1992).


Deterrence

Deterrent effects of criminal sanctions are demonstrated when lower rates of offending are associated with higher certainty, severity or swiftness of punishment. There is a wealth of Canadian research evidence that failed to find any demonstrable gener, at or specific deterrent effects on decisions to use, or continued use of illicit drugs.

Specific deterrent effects are virtually nonexistent. One year after being sentenced for simple possession of cannabis, 92% of first offenders were still using it (Erickson, 1980). No relationship was found betweenquitting and either perceived risk of re-arrest orsentence severity. The small proportion who ceased use were either the least frequent users before being caught, or else those who said they 'lost interest'.

When this study was replicated 7 years later, the findings were essentially the same, except that the courts became more efficient (Erickson and Murray, 1986).

The current increase in cannabis use among students in Canada and the figures for adult use despite the consistently severe penalties on the books suggests a tack of general deterrence. A study of a group of older, regular cannabis users, with an average his, tory of 13 yearsuse, reported no difficulty obtaining a regular source of supply and indicated little concern for detection (Erickson, 1989).

What has been consistently associated with lower levels of drug use is not the legal threat but the concern with adverse health consequences. A group of cannabis users considered the risk of harming themselves with all drugs except cannabis was much greater than the risk of arrest (Erickson, 1982). Simitarly among cocaine users, intention to continue cocaine use was influenced far more by the perceived health risk than the possibility of a jail sentence if they are caught (Erickson and Murray, 1989).

The lack of a deterrent effect of the threat of criminal taw to drug users indicates that a minimal penalty could be applied without fear of inflating use levels. As drug use is carried out, for the most part, in private, among consenting individuals who engage voluntarily in the activity, there are seldom com, ptainants. Hence, the behaviour is out of the reach of normal law enforcement activity, and extraordinary powers of search and seizure are needed for the police to make arrests. The increases in the certainty and severity of punishment needed to achieve any deter, rent effect would have to be of a magnitude that would be acceptable only in a totalitarian regime or in a state that convinced its citizens that drugs posed a major threat to health, safety or wellbeing. Neither of these conditions describes current Canadian society.


Sentencing and treatment

C-7 retains severe criminal penalties for most offences. There is little concrete consideration of public health, diversion or treatment issues, compared with the heavy emphasis on imprisonment. The specification of 'aggravating' factors seems intended to promote punitiveness even on the basis of a prior record of discharge. The 'aggravating'factor of dealing to minors or on school grounds aims harshness at young people, who are often the ones whoare supplying their peers with illicit substances. The maxii-num sentences proposed are almost never applied in practice, and are not in scale with the seriousness of most offences, as they are predominantly for cannabis and other drug possession and small scale trafficking. Such offences often involve individuals addicted to opiates and cocaine. The continued imposition of a criminal record for all convicted drug possession offenders is not without repercussions, and poses a substantial 'harm potential' imposed by punitive cannabis control itself, producing deviants and'outsiders'(Becker, 196 1). This was illustrated by a study of the reaction of potential employers to applicants with criminal records for cannabis possession: 88% of those with no criminal history, compared with 45% of those with a conviction, and 68% of those with a discharge, received favourable replies (Erickson and Goodstadt, 1979).

Section 10(1) of the bill symbolically encourages 'rehabilitation and treatment in appropriate circumstances' as goals for sentencing. Ho ' wever, these sentencing alternatives are vaguely phrased, do not provide any specific guidelines for what makes an offence or an offender 'appropriate' for alternatives, and leaves excessive discretion for criminal justice authorities. Alternative sentencing provisions should be clearly specified for the context of possession offence or offender. Section 10(1) does not specify for whom treatment should be given or under what conditions. It does not specify how offenders are to be assessed for their need for treatment, how much treatment is to be given, whether it should be done before, after or during
sentencing or incarceration, nor whether treatment could be a substitute for incarceration or other penalties. In that regard, the new law misses an important opportunity to humanise drug legislation in Canada and provide care for seriously ill offenders.

Non-existent cannabis reform

Government officials have argued that the 'irrational scheduling' of previous drug laws has been remedied by the proposed regulation of cannabis possession through a separate schedule in C- 7 (Hansard, 199 5). This claim is misleading, in fact and practice, it has not. The proposed 'summary offence' prov is ion for possession of small cannabis amounts with a maximum penalty of 6 months imprisonment does not constitute a factual reduction of the severity of cannabis use repression. Under the N CA, no possession offence under the amounts defined is known to have been put to trial by indictment, and a repeat simple possession offence would never receive a penalty exceeding 6 months (Moreau, 1995). The proposed penalties for cannabis possession offences over the indicated amounts (maximum of 5 years imprisonment) have not changed the fundamental criminal status of the offence. The maxima are still extremely harsh, and by far exceed the practical range of punishments offend, ers have traditionally received in criminal justice practice. In terms of cannabis possession, the CDSA thus does not reform, but just confirms what the criminatjustice systernhas been practising for a longtime. The punishment provisions still entail full 'criminal' sanctions and have a labelling effect. All convicted offenders for cannabis possession leave court with a criminal record, and are stigmatised for the rest of their lives as official 'criminals' (Kellerman in: Standing Senate Committee, 1995). The possible elimination of fingerprinting through summary procedures does not affect this stigma. Other types of records are still kept. Over 500 000 other Canadians carry such a criminal label already (Kendall, 1995). These critninal consequences constitute overly harmful potentials for the individuals affected (Erickson, 1980).


International Treaties

The political creators of C-7 suggest that, even if desired, there are no possible alternatives for the harsh criminalisation of cannabis or other drug possession due to Canada's obligations to the international drug control treaties (Minutes in Fischer, 1997). Apparently, the conventions have not been examined closely. In fact, the 1988 Convention explicitly suggests non-criminal alternatives for the regulation of cannabis possession and use. In principle, it requires signatory states to regulate cannabis possession as a legal offence-provided that such an approach can be reconciled with national constitutional principles. Importantly, the Convention in article 3/4/d explicitly states that:

parties may provide, ( ... ) as an alternative to conviction or punishment ( ... ) of a [posses, sion] offense, measures for treatment, education, aftercare, rehabilitation or social reintegration of the offender. (Vienna Convention; United Nations, 1988)

The provisions made in the CDSA for the control of cannabis possession by far exceed the requirements set by the international drug control regime (MacDonald et at., 1995; INCB, 1992). More significantty, they ignore the spirit of the International Convention that explicitly allows for the establishment of non-criminal alternative sanctions for cannabis users. Though section 10(l) of C-7 suggests a vague hint in this direction by 'encouraging' alternatives, in order for significant change to occur, these would have to beoutlined clearly inthe statute, and applied in the courts.


Public opinion

Public opinion should be a guide on how to deal with and regulate cannabis possession. There is a persistent and strong public voice in Canada against the current options. For the past three decades, public opinion polls have shown that a majority of all Canadians opposes the harsh criminalisation of caryiiabis possession in particular. In 1977, a Galluppoll reported that: 36% of Canadians wanted to see cannabis possession sanctioned by a fine at the maximum; 23% thought it should not be an offence atall; and only 35% wanted it to be a full criminal offence (Gallup, 1985). This majority that indirectly opted for decriminalisation has been confirmed ina 1985 poll (Gallup, 1985).The most recent Canadian public opinion data indicates that almost 70% of all Canadians, more than twothirds of the entire population, think that, if legally regulated at all, cannabis possession should not be subject to incarceration, but regulated by a fine sanction at most (Health Canada, 1995). In more detail, 27% of Canadians believe that 'possession of marijuana should be legal', while 42. 1 % believe that it should'be illegal, but subject to a fine or a non-jail sentence'. Almost 70% of the population thus reject the harshness of the cannabis use control provisions enshrined in C-7. Canadian public opinion should encourage politicians to take seriously the alternative option suggested by the UN Conventions.


Harm reduction

The harm reduction perspective acknowledges the reality that, like it or not, drugs are here to stay; they cannot be eradicated in other countries, at our borders, or within our communities. As drugs, whether legal or illegal, pose threats to public health, a more pragmatic goal is to reduce the actual harms from using drugs. Harm reduction approaches focus on those users or drug use practices that are at particular risk, without adding on more harms from a punitive social policy (Erickson, 1995; Single, 1995).

Aggressive enforcement has led to illicit substances becoming purer, more potent, and cheaper in recent years, without restricting availability to those who desire them. In other words, harm potential can be increased by criminalisation (Erickson and Ottaway, 1994). Clear demonstration of such harm augmentation is found in the preventable tragedies of HIV transmission among injection drug users, and deaths caused by overdose or contamination with illegal drugs of unknown potency and purity. 'The impact of criminal conviction on young lives, as the Le Dain Commission described the issue of cannabis criminal isat ion, has not been ameliorated by the new law (Le Dain Commission, 1972).

Despite the stated harm reduction goals of Canada's Drug Strategy, the CDSA is not a law that is compatible with such a direction. Nor, as was stated by one Member of Parliament, is it possible to'fight the war on drugs from a harm reduction perspective'. The drug war reinforced by C- 7 is a war on Canada's own citizens, driven by bureaucratic needs and foreign influence, and it will create casualties. Why should Canadians be asked to pay this price?


RECOMMENDATIONS FOR A NEW LAW

In conclusion, we point out some major issues that should be addressed whenever another drug control bill is considered in Canada, and also if the government does follow through with a policy review after the CDSA becomes law.

1 . We recommend that possible, non-criminal alternatives for drug users as suggested by the
1988 Convention be explored, some of them alluded to in C-7's section 10(1), which provides
a significant opportunity for such reform. These could mean a 'de-emphasis of the criminal status of drug possession offenses' by various degrees, or the provision of non-criminal sanctions (education, rehabilitation, treatment, social reintegration., etc.). These alternative provisions and the parame, ters of their applicability should be explicitly written into the law in order to prevent excessive discretion in the criminal justice system. The courts should be given a clear mandate to use treatment, rehabilitation, diversion and education as substitutes for criminal penalties. Also, the law shoulc', specify methods of assessing the offenders' need for such approaches based on their drug dependence, criminal history, amounts of substances involved in their offence, etc. In general, we see the necessity for a drug control taw to separately handle the distinct challenges of drug control. Drug use and related harms and problems would be dealt with both social and health-oriented measures, and only major supply issues would be dealt with primarily through the powers of law enforcement.

2. We urge a re-scheduling of controlled substances in a more pharmacologically and health-related rationat way, that also takes a comprehensive look at all psychoactive drug use, including legal and prescription drugs. A comprehensive scheduling model is needed that balanees drug effects, patterns of use and adverse social, health and legal consequences (Green, 1988). Currentty, the different schedules of the NCA and the CDSA combined substances without any consistent structure based on their pharmacological characteristics. Rational drug scheduling, as Green has suggested, would take into consideration the adverse harm and health effects of the substances controlled on an individual and soci, etal level. It would also reflect basic pharmacological categories, i.e. separating narcotics from cannabinoids. The level of harm as reflected in the different schedules should be related to the level of punitiveness stipulated in the control laws, and to provide a reasonable balance between positive and negative effects of both drug use and control provisions.

3. The criminal status of the cannabis possession offence should be reduced by sentencing alternatives specified in the law: The following three pragmatic steps are suggested as independent options, or as changes to be introduced in conjunction with each other:

(a) The possession for personal use of cannabis should not be subject to imprisonment, but be limited to a fine at the maximum. Provisions are also needed to prevent drug possession offenders from ending up in jail due to fine default. This could be implemented by rendering cannabis possession a ticketing offence (similar to the South Australian 'expiation notice' model, see MacDonald et al., 1995). This cost-effective model of drug possession control would set a ticketing offence for simple drug possession, and not entail any criminal proceedings.

(b) In case of drug possession maintained as a criminal offence, the automatic consequence of a criminal record should be eliminated by explicit provision.

(c) The establishment of a full discharge provision for cannabis possession with no criminal consequences attached, so that judges can fully acquit drug using offenders of any criminal liability without legal consequences if they deem alternative measures appropriate.

These modest steps would not create a 'perfect' drug law, but would be a marked advance on the CDSA. After 5 years of discussion, the new law is a step backwards into Canada's past of myths, fears and ignorance about illicit drugs and their users.


Benedikt Fischer,
Addiction Research Foundation, 33 Russell St, Toronto, Ontario, M5S 2S 1, Canada
e-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

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Our valuable member Benedikt Fischer has been with us since Sunday, 19 December 2010.

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