|Section VII Control of the User|
|Written by Administrator|
|Wednesday, 24 March 2010 00:00|
Section VII Control of the User
THE REQUIREMENTS OF THE INTERNATIONAL CONVENTIONS
Reference has been made in the previous section to the provisions of the Single Convention on Narcotic Drugs, 1961, and the Convention on Psycho-tropic Substances, 1971, with respect to the control of availability. It is necessary here to direct attention to the provisions which contemplate control of the user.
It will be recalled that the Single Convention requires the parties to take such legislative and administrative measures as may be necessary "to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs". Article 36, which provides for penal provisions, does not explicitly require that use as such be made a punishable offence.' It refers to "possession", and it could be argued that it is possession in the context of distribution. This is a reasonable inference from the fact that all the other acts specified by Article 36 are acts of production or distribution, and such a construction is reinforced by the use of the word detention for possession in the French version of the article. Some have taken the position that Article 36 does not contemplate simple possession for use. The prevailing view in the international community, however, appears to be that the Convention requires parties to make simple possession a punishable offence. It is to be noted that Article 36 requires not only certain specified acts to be made punishable offences, but also "any other action which in the opinion of such Party may be contrary to the provisions of this Convention". Thus the parties are given considerable scope to determine the range of penal offences which they think is necessary to achieve the objectives of the Convention. As far as we are able to ascertain, most parties to the Convention have made simple possession or use a penal offence. Thus, by their own legislative behaviour, states have tended to give this construction to their obligations under Article 36, although on the basis of technical interpretation a good case could be made for limiting the meaning of possession to possession for the purpose of trafficking.
There has been increasing concern in the international community to distinguish between trafficking and use, and to encourage the application of non-penal measures to the user. This shift in emphasis is reflected in the following provision in Article 22 of the Convention on Psychotropic Substances, 1971:
. . . when abusers of psychotropic substances have committed such offences, the Parties may provide, either as an alternative to conviction or punishment or in addition to punishment, that such abusers undergo measures of treatment, education, after-care, rehabilitation and social reintegration ....
This provision, which could be applied to persons convicted of trafficking offences as well as those convicted of simple possession or use, reflects the thinking that it may be more appropriate to apply non-penal measures to the drug-dependent person, regardless of his offence. Its purpose is to give states more flexibility in social policy with respect to the user. It is to be noted, however, that this alternative necessarily involves some degree of compulsion or coercion of the user.
The Single Convention has not contained this provision until recently, although the lack of it has not prevented the development of compulsory treatment as an alternative to imprisonment in several states. Formerly, the only reference to treatment in the Single Convention was Article 38, which reads:
1. The Parties shall give special attention to the provision of facilities for the medical treatment, care and rehabilitation of drug addicts.
The amendments to the Single Convention adopted in March 1972 incorporate the above provision of the Convention on Psychotropic Substances, 1971, concerning alternatives to punishment. Article 38 of the Single Convention, as amended, applies the language of Article 20 of the Convention on Psycho-tropic Substances, 1971 to narcotic drugs as follows:
1. The Parties shall give special attention to and take all practicable measures for the prevention of abuse of narcotic drugs and for the early identification, treatment, education, after-care, rehabilitation and social reintegration of the persons involved and shall co-ordinate their efforts to these ends.
CANADIAN LAW AND LAW ENFORCEMENT WITH RESPECT TO CONTROL OF THE USER
Under Canadian federal law, the unauthorized possession for purposes other than trafficking of the drugs covered by the Narcotic Control Act and Part IV of the Food and Drugs Act is a criminal offence. These include the opiate narcotics, cocaine, cannabis, and the strong hallucinogens. The simple possession without authorization of the controlled drugs (amphetamines and barbiturates) in Schedule G of Part III of the Food and Drugs Act and of the prescription drugs (various sedatives, tranquilizers, stimulants, analgesics, and other substances) covered by Schedule F of the Food and Drug Regulations is not an offence.
Under the Narcotic Control Regulations "prescription shopping" or "double doctoring" is made an offence in the following terms:
A person in whose favour a prescription or a narcotic has been issued shall not seek or receive another prescription or a narcotic from a different practitioner without disclosing to that practitioner particulars of every prescription or narcotic that he has obtained within the previous thirty days.4
There is no such offence for controlled drugs (amphetamines or barbiturates) under Part III of the Food and Drugs Act, nor for drugs covered by Schedule F of the Food and Drug Regulations.
The offence of simple possession is punishable under the Narcotic Control Act as follows:
Upon indictment, by a maximum of seven years' imprisonment; and
Upon summary conviction, on first offence, by imprisonment for a term not exceeding six months or a fine not exceeding $1,000 or both, and on a subsequent offence, by imprisonment for a term not exceeding one year or by a fine not exceeding $2,000 or both.°
On indictment, the court may also impose a fine in any amount which it judges appropriate, in addition to imprisonment, but it may not impose a fine in lieu of imprisonment, where, as in this case, the offence is punishable by imprisonment for more than five years.°
The simple possession without authorization of the restricted drugs (LSD, etc.) in Schedule H of Part IV of the Food and Drugs Act is punishable as follows:
Upon summary conviction, for a first offence, by a fine not exceeding $1,000 or by imprisonment for a term not exceeding six months, or by both, and for a subsequent offence, by a fine not exceeding $2,000 or by imprisonment for a term not exceeding one year, or both; and
Upon conviction on indictment, by a fine not exceeding $5,000 or by imprisonment for a term not exceeding three years, or by both.?
Reference is made to Appendix F.3 for further details on the law respecting the offence of simple possession under the Narcotic Control Act and Part IV of the Food and Drugs Act.
For the policy governing the decision as to whether to proceed by indictment or summary conviction see Appendix F.7 Prosecution in Drug Cases.
The number of convictions for the offence of simple possession of drugs other than cannabis under the Narcotic Control Act and of the restricted drugs under Part IV of the Food and Drugs Act reflect in some measure the level, or relative intensity, of law enforcement against the user.
The opiate narcotics. The vast majority of the convictions for simple possession of drugs other than cannabis under the Narcotic Control Act have, of course, involved heroin. Up to the end of 1970 the convictions for simple possession of heroin remained at a fairly stable level of about 200 per annum, as indicated by the following figures: 1968 — 202; 1969 —192; 1970 — 201. The number of convictions showed a marked rise in 1971, and again in 1972, as indicated by the following figures: 1971 — 378; 1972 —630.
The figure for 1972 is under four per cent of the estimated total of at least 15,000 heroin-dependent persons in the country, and possibly under one per cent of the total number of heroin users. (See Appendix C Extent
The number of convictions for simple possession of drugs other than heroin (and cannabis) under the Narcotic Control Act has been relatively small, although it has been steadily increasing, as indicated by the following figures: 1970 — 57; 1971 — 73; 1972 — 106. Of these drugs, methadone and cocaine have accounted for the highest proportion of convictions.
The number of convictions for "prescription shopping" or "double doctoring" under Section 3(3) of the Narcotic Control Regulations has been as follows: 1970 — 12; 1971 — 46; 1972 — 38. (See Appendix E Conviction Statistics for Drug Offences, Tables E.1 to E.3 inclusive.) Methadone has been the drug most heavily involved.
In view of the conviction figures some general observations are in order concerning the impact of the criminal law system upon the total population of heroin-dependent persons. The policy of law enforcement against the heroin addict has traditionally been one of containment. There has been a selective policy of harrassment and arrest. Police have not wanted to drive the phenomenon underground or to disperse it too much. They have sought to keep it concentrated, visible and contained. Law enforcement against the user of opiate narcotics takes the form of careful surveillance of well-established meeting places, where distribution takes place, and observation of the subsequent movements of the user with a view to apprehending him in the act of possession. The chief concern of the police is to avoid an ill-timed encounter with the user that will enable him to swallow or otherwise dispose of the substance before it can be seized. The police usually attempt to apprehend the user when he has prepared the substance for use, and is about to use it. Thus the whole approach to apprehension of the user is one which is conditioned by the need to take hold of the substance before it is placed beyond reach. This accounts for the kind of surveillance that is practised, the need to be able to break into premises without warning, and the resort to force to recover the substance when the person in possession attempts to swallow or otherwise dispose of it. The police do not enforce the law against simple possession as intensively as they could, but do so on a selective basis. They are more concerned to know where the user is, and to keep him under surveillance, than to seize every opportunity to arrest him.
The strategy of containment requires a certain toleration of established and localized patterns of dealing in order to be able to keep the using population under observation. In recent years this strategy of containment has been undermined by the spread of opiate narcotic use beyond the traditional areas of concentration. This has arisen in part because of the increase of such use among younger multi-drug users. The police no longer have the same sense of having the phenomenon under close observation and effective containment. As one officer in Vancouver put it to a member of the Commission's research staff:
Three or four years ago, the heroin scene was totally under control. We knew every addict and we kept them confined to Main and Hastings (known as the corner). If we saw a new face we could really jump the guy and keep him under pressure and maybe convince him to remain "unwired". We had a list of new addicts which we kept at the station. There were 325 addicts on the street, 400 addicts in jail, 400 chipping, and 400 ex-addicts. We were able to keep the number of addicts down.'
It is possible that little more than ten per cent of the opiate-dependent population is under the control of the criminal justice and correctional system at any one time. In the fall of 1972 our investigations suggested that there were not more than about 1,550 known opiate dependents in the correctional system in this country. There appeared to be about 450 on probation (of whom just over 70 per cent were in British Columbia) and about 100 on parole (of whom over 90 per cent resided in British Columbia). The number of known 'addicts' believed to be in federal penitentiaries was about 330, and the number in provincial correctional institutions to be about 670. Some of those in correctional institutions were probably dependent on drugs other than the opiate narcotics.°
There may, of course, be many other opiate-dependent persons within the correctional system who are not known as such to the authorities. Except for cases involving an offence under the Narcotic Control Act, in which a presumption of heroin use is raised at the point of contact with the criminal law system, knowledge of drug use among persons convicted of criminal offences is generally obtained from admission by the offender. What may be said is that the criminal law and correctional system is apparently not aware of exercising control over much more than ten per cent of the addict population. It may be safely asserted that at any one time the vast majority of addicts are on the street.
The maximum penalties in Canada for the simple possession of the opiate narcotics fall within the general range of severity of the penalties in the United States'° and Great Britain". and are, generally speaking, more severe than those in Western Europe," Australia" and New Zealand.'}
About forty per cent of the convictions for the simple possession of heroin are disposed of by fine, suspended sentence, probation, and absolute or conditional discharge. (See Table E.15.) Of the remaining 60 per cent of the cases, in which there is a sentence to imprisonment, about 90 per cent of the sentences are for a period under two years, and more than half of the others are for a period under three years.
The restricted drugs. The total numbers of convictions for simple possession of "restricted drugs" (the strong hallucinogens) in recent years are as follows: 1970 — 1,009; 1971 — 1,253; 1972 — 1,216. The highest proportion of these convictions has been for LSD: 1970 — 956; 1971 — 1,065; 1972 — 830. The next most important drug, in terms of total number of convictions for simple possession, has been MDA, as follows: 1970 — 58; 1971 — 251; 1972 — 379. (See Tables E.66 to E.68 inclusive.) Thus, the convictions for LSD have shown a relative decline, while those for MDA have shown a steady increase. The latter have grown from slightly under six per cent of the number of convictions for simple possession of restricted drugs in 1970 to 31 per cent in 1972.
The proportion of the convictions for the simple possession of LSD which have been disposed of by imprisonment has dropped from about 23 per cent in 1970 to about 12 per cent in 1972. (See Tables E.57 to E.59 inclusive.) The remainder are disposed of by fine, suspended sentence, probation, and absolute or conditional discharge. Over 44 per cent of the convictions and about 50 per cent of the sentences of imprisonment for the simple possession of LSD involve persons under twenty-one years of age. (See Table E.59.) The majority of sentences to imprisonment are for periods under six months and all are under two years. Essentially the same observations apply to convictions for the simple possession of MDA, although the proportion of those under twenty-one years of age is somewhat lower. (See Table E.71.)
OTHER LEGISLATION WITH RESPECT TO THE USER
There are various other federal and provincial legislative provisions prohibiting drug-related conduct. For applicable provisions of the Criminal Code of Canada and the role of the Juvenile Delinquents Act the reader is referred to Appendices F.4 and F.5, respectively. Reference is made later in this section to the federal Tobacco Restraint Act which prohibits the possession, and use in public, of tobacco by persons under the age of 16.
THE ISSUES WITH RESPECT TO CONTROL OF THE USER
The issues with respect to legal control of the user are whether there is to be an offence of simple possession or use for a particular category of nonmedical drug use, what the maximum penalties for such an offence are to be, and whether any control or coercion is to be exercised with respect to the user for other purposes such as quarantine, treatment or indoctrination. In Section V we considered the use of law with respect to the non-medical use of drugs as a matter of general principle, the general effectiveness of the criminal law in controlling availability and use, and the costs of using the criminal law in this field. In this section we wish to look more closely at the issues with respect to control of the user in certain categories of drug use.
Despite the limitations and drawbacks of the criminal justice system in the field of non-medical drug use the majority advocate some control over the drug offender, particularly the user of heroin. The avowed purpose of such control is not merely to prevent the offender from continuing to violate the drug laws and to commit drug-related crime but also to reduce his contact with prospective users. It is felt that users spread drug use by encouraging or facilitating the use of others. In this sense it is argued that they are "contagious" or "infectious". A further reason for seeking control is to direct the user into treatment. It is said that the user often lacks motivation for treatment and needs to be encouraged to seek it.
Others dispute the assumptions underlying the case for control. They do not deny that control may reduce the offender's drug use, although they point out that drugs circulate in most institutions in which there is confinement. They also observe that while the offender's ability to influence the drug use of persons outside the institution may be severely reduced or virtually eliminated, he remains in contact with many prospective drug users within the institution. In any event, however, they dispute the contagion thesis. While they do not deny that drug users may facilitate the initial use of others, they contend that other factors must intervene as the more direct cause of harmful drug use. Finally, they take issue with the assumption that persons can be properly motivated for treatment by coercion. They contend that the person who is compelled to submit to treatment lacks the motivation which is essential for the successful treatment of drug dependence.
The feasibility and apparent success of such a system depend very much on the criteria of sufficient compliance and the severity or indulgence with which they are enforced. If one wishes to avoid a high rate of failure and the necessity of the repeated confinement of a large proportion of offenders one will adjust the criteria of compliance and their application to the realities of the situation. In the case of drug dependence, strict criteria strictly enforced will call for extensive use of confinement.
There have been varying systems of control and varying rates of success with them. In speaking of success we must keep clearly in mind the distinction between the various objectives of control: deterrence, isolation or quarantine, and treatment and rehabilitation. Deterrence is the principal object of punishment. Punishment is meant to persuade others that it does not pay to engage in the prohibited behaviour, and it is also meant to teach a similar lesson to the offender. Criminologists speak of general deterrence, which is the deterrence of others, and special deterrence, which is the deterrence of the offender. Short of capital punishment, deprivation of liberty is the most severe punishment we can impose. Deprivation of liberty not only serves the function of punishment but it protects others from being exposed to the offender. This is the function which we refer to as isolation or quarantine. It is often referred to as incapacitation. In the case of drug use, as we have said, it is advocated quite literally as a measure of quarantine on the ground that certain drug users are contagious or infectious. Deprivation of liberty is also seen as a means of submitting the offender to treatment with a view to rehabilitating him as a law-abiding citizen. In the case of the drug offender the emphasis is on curing his drug dependence or managing it in such a way that he is able to function reasonably effectively in a law-abiding way.
We have commented on the relative effectiveness of the criminal law as a deterrent in the field of non-medical drug use. For all of the reasons mentioned in that discussion advocates of control will often concede that the criminal law is likely to be less effective as a deterrent against the drug user than against many other kinds of offender, but they will state that they are more concerned with isolation or quarantine. At the same time, if there is not a sufficient risk of apprehension and imprisonment to make the law an effective deterrent, then it can hardly be an effective measure of isolation and quarantine. To be an effective measure of quarantine the law must be able to assure the removal of a high proportion of offenders from contact with prospective users. It may be argued that the reason the law would appear to be a relatively ineffective deterrent in the case of drug use is not so much the small proportion liable to be detected as the very strong attraction of the prohibited behaviour, particularly in the case of dependence; and that while the threat of deprivation of liberty may be a relatively weak deterrent, the actual deprivation of liberty may be an effective measure of isolation or quarantine. Total numbers are nevertheless important where quarantine is concerned. If any substantial numbers escape the quarantine the spread of the disease will continue more or less unchecked. If the epidemic theory holds true then it is logically necessary to isolate a high proportion of the infected population if we want to check the spread of the disease and not merely to slow its rate of spread. Actually, there has not been a serious, thorough-going attempt in Western societies to check drug use by a system of quarantine. It is a policy which is still being advocated and debated.
Apart from the contagion theory, however, control is seen as an essential measure to take drug-dependent persons "off the street" and to reduce their drug-related crime, which in some large American urban centres has reached very serious proportions. Indeed, many consider this the most serious consequence of heroin dependence: the amount of property crime that heroin-dependent persons are obliged to commit to support their habit,17 and the amount of fear and general insecurity which is generated by their drug-related criminal activity, including an increasing amount of violence. In the measure that control reduces this crime it is deemed to serve a sufficient function to justify its use.
There are various models of control. There is regular imprisonment and special treatment programs in an institutional setting such as those conducted in the American federal hospitals at Lexington and Fort Worth and at the Matsqui Institution in Canada (see Appendix I Treatment of Opiate Dependents in Federal Penitentiaries in Canada). There is the model offered by Part II of the Narcotic Control Act (which has never been put into force) of sentence to custody for treatment for an indeterminate period in a penal institution. (For discussion of these provisions see Appendix F.1 The Constitutional Framework and Appendix J Probation for Heroin Dependents in Canada.) Other models of institutional control are to be found in the civil commitment programs which exist at the federal and state levels in the United States. One of the most important of these—the California Civil Addict Program—is described in detail in Appendix L.
The basic model for civil commitment in Canada is the provision under provincial mental health statutes for the compulsory confinement of persons suffering from mental disorder. There is legislation providing for such commitment in every province. The ground for commitment in most cases is that the person suffers from mental disorder to such a degree that hospitalization is required for his own protection or welfare or the protection of others, or, as it is expressed in some provinces, in the interests of his own safety or that of others. Commitment is usually upon a doctor's certificate, although there is also provision in most provincial legislation for commitment by court order. Commitment may be renewed for successive periods by doctor's certificate. There is generally provision for independent review of the justification for commitment. In most provinces a person with drug-related problems must fall within the general definition of mental disorder to be eligible for commitment. In some cases the definition expressly includes dependence or addiction." Apart from the question of dependence, certain kinds of drug use may produce or be accompanied by a mental condition included in the definition of mental disorder.
In 1971 there was a total of 18,573 admissions to psychiatric facilities in Canada with a diagnosis of alcoholic psychosis or alcoholism, of which 2,909 involved involuntary commitment.2° There were 2,179 admissions with a diagnosis of drug dependence (excluding alcohol) of which 420 involved involuntary commitment. The order of relative importance (along with the number of admissions) in the drug dependence categories was as follows: 1. amphetamine and related stimulants (383); 2. natural and synthetic opiate narcotics (239) ; 3. hallucinogens [excluding cannabis] (204) ; 4. barbiturates (126); 5. other sedative-hypnotics and tranquilizers (84); 6. cannabis (28); and 7. cocaine (4). There was a large number of admissions classified as "other" (300) or for which the drugs involved were unspecified (811). (These data are discussed in more detail in Appendix A The Drugs and Their Effects.)
In some cases provincial legislation expressly provides for the compulsory treatment of alcoholism for periods ranging from ninety days to one year.21 In a few cases there is special legislation for the commitment of opiate-dependent persons, although it does not appear to have been used.22
Other models of control are parole (see Appendix K Parole of Heroin Dependents in Canada), probation (see Appendix J Probation for Heroin Dependents in Canada), and conditional discharge (see Appendix F.8 Sentencing). These all involve supervision in the community rather than institutionalization.
There has been growing resort in the United States to court referral or "diversion" from the criminal justice system to treatment. A typical diversion program is the Court Referral Project of the Addiction Services Agency in the City of New York.23 This project has developed partly out of the unwillingness of persons involved in the criminal justice system to resort to the commitment program of the Narcotic Addiction Control Commission. It has been estimated that only seven per cent of the addict population which is not incarcerated nor participating in other treatment programs is presently on civil commitment status in New York State. There are several reasons for this reluctance: the over-crowding of court facilities; and the negative attitude towards the civil commitment program of opiate dependents, legal aid lawyers (who represent more than 90 per cent of the defendants), and lawyers in the district attorneys' offices. A defendant, who may have only been charged with a misdemeanour, may request a jury trial on the issue of addiction, and the district attorney's office is often unwilling or unable to devote the necessary resources for such trials because of a backlog of felony charges and more serious cases. In such cases non-addiction is conceded and the defendant is sentenced to a correctional institution.
A common pre-trial disposition of misdemeanour cases involving opiate-dependent persons in New York City has been to adjourn the case and refer the opiate dependant to a private agency for treatment. The court discharges the defendant if he is still successful in the program after a year or so (during which time progress reports will have been received) or will have him returned to stand trial for the criminal charge if he is unsuccessful or absconds from the program.
The New York Court Project was established to formalize this diversion of opiate-dependent persons out of the criminal justice system into treatment. About two-thirds of the referrals are post-trial, where the convicted defendant goes into a treatment program on probation. If he is successful in the program (by the program's standards) he is not sent to jail. One-third of the referrals occur before trial, and the charges are dropped against the defendant if he is successful.
Another model of control is the new approach adopted in recent years by several of the provinces towards the treatment of public drunkenness." Where a police officer finds a person who appears to be intoxicated in a public place, he may, instead of charging him with the offence of public drunkenness, take him into custody for detoxification treatment. The police officer is given a statutory immunity from liability if he acts in good faith. The law may also provide immunity from liability to any physician or any hospital for the examination or treatment of the individual who is brought to a detoxification centre by a police officer. Generally, the law stipulates a maximum period, ranging from twenty-four to seventy-two hours, for which the individual may be detained. The law may provide for a longer period of detention upon application to a judge or magistrate for a confirming order.
Most of the provincial mental health acts which provide for civil commitment of persons suffering from mental disorder contain a similar provision giving power to police officers to take into custody and detain for medical examination any person whom they observe to be apparently suffering from mental disorder and acting in a disorderly or dangerous manner. This power exists for cases where it is not practicable to attempt to obtain the order of a judge or magistrate upon information under oath. A person apprehended and detained for examination in this manner may be committed upon the examining physician's certificate.
There has been considerable experience with deprivation of liberty as a means of facilitating treatment and rehabilitation, but on the whole the results have not been very encouraging. The experience with treatment in prison-like settings of confinement has definitely been unsatisfactory. This is borne out by the Canadian and American experience with treatment in penal institutions.25 What they show is a very high rate of relapse and recidivism. It should be noted, however, that these treatment programs were committed to a goal of abstinence or cure. They were not experiments with the use of methadone maintenance as a means of managing opiate dependence. There is no reason to believe that their rate of failure with a drug-free goal is likely to be much higher than that of other abstinence programs. They do tend to emphasize two things, however: bringing addicts together in a long period of confinement tends to reinforce them in their commitment to drugs and a drug-using criminal subculture, and secondly, there must be long-term aftercare and follow-up to help the addict restructure his life, if there is to be any hope of success. According to Isbell the chief limitations of the American programs in the federal hospitals at Lexington and Fort Worth were a lack of control over voluntary patients,* a high proportion of whom left the program prematurely, and a lack of follow-up in the community.26 The American civil commitment programs, particularly the California and federal programs, were designed to meet these requirements of control and follow-up. Their results have not been dramatically better than those in regular penal institutions, but again, at least until fairly recently, they have not permitted methadone maintenance. (See Appendix L Civil Commitment in California.)
In Matsqui Institution (see Appendix I Treatment of Opiate Dependents in Federal Penitentiaries in Canada), a hospital-like complex established as a result of the recommendations of the Fauteux Report and conceived of as a forerunner of a system of treatment facilities which would permit the introduction of compulsory treatment under Part II of the Narcotic Control Act, a carefully controlled experiment was conducted to determine the success of a special form of therapeutic community treatment as compared to the regular treatment program in the institution. A comparison was not made with the results of imprisonment without treatment. In the result, those who were subjected to what might be called the "advanced" or "progressive" form of treatment with a less authoritarian and more participatory group therapy atmosphere and a greater emphasis on the upgrading of skills, turned out worse than those in the regular treatment program. They appear to have become more skilful in leading the life of a criminal addict. What the Matsqui experiment tends to emphasize is the role which prison, even with well-intentioned treatment efforts, can play in strengthening the criminal inclinations and capacities of offenders. It may also suggest that more authoritarian techniques are more effective with the criminal addict than more permissive ones.
One cannot deny all efficacy to these experiments with treatment in a prison setting. A case can be made for the contention that they effected a marginal improvement, and, of course, had the merit, while the offenders were in confinement, of keeping them out of drug-related crime and out of contact with law-abiding non-users.
Valliant has also observed that a long-term follow-up of those released from the federal hospital at Lexington showed that a certain proportion,—about two per cent—had become abstinent each year.27 Whether this can be attributed in some measure to the treatment program which they received or to the phenomenon of "maturing out", or to other factors, is not clear.
In any event, there seems to be a general acknowledgement that imprisonment or other forms of confinement, whatever we choose to call them, do not increase the chances of successful outcome with an abstinence form of treatment. As a result, there has been a very definite movement away from confinement or inpatient status to outpatient or probationary status. This reflects the general trend of thinking in penology and mental health policy in favour of more rehabilitation or treatment in the community. In the drug field this trend has been particularly marked in the California civil commitment program (see Appendix L). There has been a steady tendency in recent years to reduce the period of time required to be spent in inpatient status, and to increase the relative proportion of time spent in the community. The initial mandatory period of six months confinement in inpatient status is no longer compulsory for everyone. The program now includes a "Direct Release" experiment in which a certain number are permitted to go directly from commitment to outpatient status on methadone maintenance.
In Canada, there has been limited experience with the use of probation and parole in the management of heroin dependence. (See Appendices J and K.) In particular, the potential of these forms of control, in association with methadone maintenance, has not been fully tested. The availability of methadone justifies further experiment with these forms of supervision in the community, particularly probation. There are special problems concerning parole arising from the effect of imprisonment on the heroin dependent and the implications of forfeiture and revocation of parole.
Certain problems have arisen in connection with the relationship between the law enforcement and treatment authorities. The first involves the decision as to who is to be accepted for treatment and the second the decision as to whether a person's probation or parole should be revoked for violation of the conditions of release. The courts may be increasingly prepared to place drug-dependent offenders in a probationary status on treatment rather than sentence them to imprisonment or release them into the community again without any attempt at treatment. On the other hand, the treatment agencies point out that not all drug users are suitable for certain kinds of treatment, and that the treatment authorities must have the final word as to who is to be accepted. The law enforcement authorities are interested in effective control—in removing the drug-dependent person from the illicit market and from drug-related crime; the treatment agencies are interested in successful treatment, or at least treatment with a reasonable chance of success. There is often a tension or conflict between these two concerns—control and effective treatment. A court may wish to place a convicted offender on probation on condition that he report to a certain agency for treatment, but the agency may not wish to accept him because they do not consider him a good prospect for treatment or, for example, they consider it premature to place him on methadone maintenance.
This kind of problem can be largely resolved by proper consultation between lawyers, judge, probation officer and treatment agency before the decision is taken to place an offender on probation on condition that he submit to treatment. But it is well to face the fact that so long as the control and treatment concerns are handled by essentially independent and separate agencies the perspectives which each will bring to the problem will often be in some conflict.
Another kind of problem that arises in the relations between the law enforcement and correctional authorities, on the one hand, and treatment agencies, on the other, is conflict over responsibility for enforcement of the conditions of probation or parole. In order for control to be effective—that is, to keep the offender out of the illicit market and drug-related crime as well as association with drug users and influence upon prospective users—it is necessary that the conditions of probation or parole be strictly enforced. If they are not strictly enforced and the offender knows there is really no sanction for violation, he will tend to revert to all the conduct which the control is intended to prevent. Those who are concerned primarily with control tend to emphasize strict enforcement of the conditions of probation or parole, although they themselves also develop some realism about what it is reasonable to expect in the way of substantial compliance if the system is to work at all. The role expected of the treatment agency in relation to enforcement is to establish by regular or spot urine tests whether the patient is abstaining from the use of prohibited drugs and otherwise complying with the conditions of the treatment program. The problem arises when the treatment agency is called on to furnish evidence of violation of the conditions of probation or parole. Persons engaged in treatment do not feel that this function is compatible with the relationship of trust which they must establish with the patient. Moreover, they are concerned with trying to help the patient and do not like to be involved in inflicting the harm of incarceration. Treatment agencies must, of course, establish some standards of compliance and must be prepared to drop hopeless cases from their programs. But it is one thing to drop a patient from treatment; it is another thing to send him to prison. Persons engaged in treatment find this possibility distasteful and to some extent in conflict with their commitment to heal, and those responsible for enforcement of the conditions of probation or parole sometimes complain of a lack of cooperation from treatment agencies in establishing the necessary proof of violation. Again, this problem could probably only be completely resolved by having the correctional and treatment responsibilities, or at least the control and monitoring functions, under a single authority. For a recent development giving police the power to require probationers to submit to urinalysis, see Appendix J Probation for Heroin Dependents in Canada.
There have been proposals from time to time for the complete isolation of heroin addicts in therapeutic colonies. Nils Bejerot, the Swedish drug expert who has been a vigorous exponent of the contagion or epidemic theory of drug dependence, has advocated this form of isolation or quarantine.28 Similar suggestions have been made from time to time in North America. Several of the police officers who testified before the Special Senate Committee on the Traffic in Narcotic Drugs in Canada in 1955 made a recommendation along these lines. For example, Commissioner Nicholson of the R.C.M. Police said: "I therefore feel—and I think this view is held by many if not most other police officials—that the only hope for the possible rehabilitation of these addicts and for the eradication of the drug traffic is that they be compulsorily isolated or quarantined."29 When introducing the Narcotic Control Act in 1961, the Minister of Justice of Canada referred to these suggestions but rejected the notion of life-time confinement on the ground that it would destroy all hope and motivation.30 At the same time, Part II of the Act seemed to adopt the principle of isolation or quarantine by providing for indefinite confinement for treatment. The distinction stressed by the Minister of Justice was that under these provisions the inmate could be released on parole as soon as he had made sufficient progress in rehabilitation. But presumably most proposals for isolation or quarantine contemplate the release of the drug-dependent person when it is considered safe. The isolation or quarantine is not seen as a life-time punishment for having once become drug dependent, but as a measure of protection of others.
Opiate dependents are still imprisoned, and to this extent, subjected to a degree of isolation or quarantine for limited periods. But the use of imprisonment for the simple possession of opiates has declined somewhat in recent years, and sentences tend to be for shorter periods than in the past. The actual time spent in prison, at least initially, is also frequently shortened by parole, although in the end the high rate of revocation or forfeiture of parole and the consequence thereof may have the effect of actually increasing the total period of imprisonment. (See Appendix K Parole of Heroin Dependents in Canada.) Moreover, only a comparatively small proportion of the estimated opiate-dependent population is convicted and sentenced to prison each year. As indicated above, little more than 10 per cent of this population are in penal institutions in Canada at any one time. Thus the present control system does not perform an effective function of isolation or quarantine. One thing is clear, that a policy of isolation or quarantine for the present population of opiate dependents, if it were to be considered acceptable on other grounds, would require much greater resources of law enforcement personnel and custodial and treatment facilities than are currently available.
With respect to the relationship between control and treatment, the essential question is how far effective treatment is promoted or impeded by the exercise of some degree of control or coercion. There have been no satisfactory studies of the effect of control upon the treatment of drug dependence. It has been observed that there has been a high rate of premature withdrawal from voluntary treatment programs. As previously stated, this was the experience with voluntary patients at Lexington, and it has been the experience in other jurisdictions, such as New York, where voluntary programs have been tried. However, in most of these cases treatment was being carried out in an institutional setting. As we noted above, the lack of some means of keeping voluntary patients in treatment for a reasonable period of time was felt to be a serious weakness of the Lexington program. It is no doubt to meet this objection that modern civil commitment programs quite often provide that a person who voluntarily has himself committed is obliged to remain in the program for a certain minimum period. The decision to apply for commitment is voluntary, but once the commitment is ordered it becomes compulsory. The maximum period for voluntary patients is generally shorter, however, than the maximum period for involuntary patients, and this difference is intended to encourage voluntary commitment. The control in this case is exercised not to compel the patient to accept treatment, at least initially, but to remain with it for a certain minimum period of time.
There is good reason to believe that control can have an important bearing on the ability to retain drug-dependent persons in a treatment program. This is an important issue of motivation, although it is not the only one. It is important that patients be willing to give treatment an opportunity, and it is also important that they be willing to cooperate with it while it is going on. There is the willingness to spend the required time in treatment to give it a reasonable chance of success, and there is also the determination to respond to treatment in an effort to make it as effective as possible. The two do not necessarily go together. A person may be coerced into spending the necessary time in a program, but he may not have the necessary will to respond or cooperate. Or his response may be perfunctory or feigned in order to obtain the favours that flow from compliance with the program. The effect of control or coercion on this second, and essential, aspect of motivation is not so clear. Everyone agrees that such motivation is essential if there is to be any chance of success. The question is whether control or coercion has a positive or negative effect upon it. There is no clear evidence either way, but there are divided opinions. The experience with treatment in prison settings is by no means conclusive. The high rate of failure in such cases may be attributed to the compulsory aspect, but it may also be attributed to the lack of an effective means of treatment. If we compare the rate of success claimed by certain therapeutic communities operating on a voluntary basis with the rate of success in prison settings we may be led to the conclusion that an essential difference must be one of motivation. But it may be a difference in motivation resulting from a difference in the two kinds of population. The therapeutic community attracts a type of person who is highly motivated to respond to that form of treatment. It is not acceptable to a high proportion of drug users. It has a high rate of initial drop-out. What remains is a group of people who are reasonably well adjusted to it as a form of treatment. The voluntary patients in a therapeutic community are self-selected. Prison receives a cross-section of drug-dependent persons who vary considerably in their capacity for response to a particular form of treatment. It may well be that it is not so much compelling a person to accept treatment of some kind that adversely affects motivation as poor selection of the form of treatment. The decision to accept some treatment may be constructively reinforced by a degree of control or compulsion, but motivation to respond to treatment may be reinforced by allowing the patient to choose the form of treatment that seems to be most congenial to him. Those who favour some degree of control or compulsion in support of treatment express the opinion that most chronic drug users do not have much motivation to seek treatment. They need to be encouraged to do so. But once they have been helped by a little direction to make that essential decision to seek help, their motivation can be aroused and strengthened by involving them in the process of choosing and shaping their own treatment program. There is no doubt that little can be done with someone who refuses to cooperate, who sullenly refuses to be helped. But an initial use of compulsion in opening the door to treatment would not seem to rule out the subsequent possibility of arousing the necessary motivation to respond to the particular form of treatment chosen by the patient. Compulsory treatment does not mean the physical or psychological coercion of the patient on each occasion of treatment. It means making or compelling the original decision to undergo treatment.
CONCLUSIONS AND RECOMMENDATIONS WITH RESPECT TO CONTROL OF THE USER
THE OFFENCE OF SIMPLE POSSESSION
The offence of simple possession has not prevented an increase in the various forms of non-medical drug use to which it applies. There has obviously been a very marked increase in recent years in the non-medical use of heroin, other opiate narcotics, such as illicit methadone, and cocaine. The use of LSD appears to have levelled off, and perhaps even decreased in the last year or two, but there has been an increase in the use of other hallucinogens, such as MDA. There is also every reason to believe that the use of cannabis has continued to increase, although the rate of increase may have declined in the last year or so.
What we do not know—and can never determine—is to what extent, if any, the increase in these various forms of non-medical drug use would have been greater if there had not been an offence of simple possession. Nor can we say how far the apparent levelling off, or decrease, in the use of LSD should be attributed to the offence of simple possession. There is no way of determining the effect which the absence of an offence of simple possession may have had on other forms of non-medical drug use.
There has not been an offence of simple possession for the controlled drugs (the amphetamines and barbiturates) or for the drugs on Schedule F of the Food and Drug Regulations, including certain amphetamine-like drugs (e.g., Ritalin®), minor tranquilizers (e.g., Librium® and Valium®), sedativehypnotics (e.g., Mandrax®) and hallucinogens (PCP and mescaline). Notwithstanding the absence of an offence of simple possession, there has been an apparent levelling off, and possibly even a decrease in the total numbers involved in intravenous use of methamphetamine or 'speed'. On the other hand, there has been an apparent increase in the oral non-medical use of amphetamines obtained in an illicit market, and in the non-medical use, supplied from an illicit market of phenmetrazine (Preludin®), methaqualone (e.g., Mandrax®) and PCP. There has not been an offence of simple possession or use with respect to volatile solvents, except in one province, but their use for purposes of intoxication appears to have levelled off, and perhaps even declined, in recent years.
There is no obvious general conclusion to be drawn from these facts concerning the deterrent effect of an offence of simple possession. One might be led to conclude, however, that it has relatively little influence on the extent of use. The extent of use appears to be influenced more by other factors, chiefly availability, contact with users, and their opinions and perception of the risks or possible harm involved in a particular form of drug use. There are also changing fashions in non-medical drug use, as in other forms of behaviour. As we suggested in Section V The Use of the Criminal Law Against Non-Medical Drug Use, there is reason to believe that the deterrent effect of the criminal law with respect to the simple possession of drugs for non-medical use is much less than it is with most other offences. The main reason is the difficulty of detection and apprehension. There are relatively large numbers involved in the prohibited behaviour in relation to the available law enforcement resources, and there are special difficulties of detection arising from the fact that the behaviour can be carried out in private and there is seldom anyone to complain. These difficulties oblige the police to resort to special methods of enforcement which are regarded as distasteful by the general public: writs of assistance, use of force to break into premises and to recover evidence, undercover agents, informers, and encouragement of offences. These methods severely limit the extent to which the law can be applied in practice to large elements of the drug-using population. It is felt by some that by its mere existence the law exerts some moral influence and exercises a deterrent effect, apart from the actual risk of detection. We may assume that many are deterred from the prohibited conduct by the mere existence of the law, but by and large they do not appear to be the individuals about whom there is most reason for concern: those who are not deterred by the risks or dangers of heavy, chronic drug use. Those who are not deterred by the harmful consequences of such drug use are not likely to be deterred by the relatively slight risk of detection and apprehension, and even less by the moral stigma of the law. Moreover, there is a significant minority of the population who appear to consider the law against certain forms of nonmedical drug use as lacking the moral authority which entitles it to respect.
The adverse effects, or costs, of enforcement of the offence of simple possession far outweigh the benefits which it yields. Because of the difficulties referred to above, the offence of simple possession is necessarily enforced in a haphazard manner. Its enforcement falls with great uneveness on the population of drug users, and this gives rise to a well-founded sense of injustice. Society could not afford the manpower, much less the methods, required to enforce the offence of simple possession in anything like a systematic and thorough-going manner.
While it may be permissible in theory to use the criminal law to prevent a person from doing harm to himself, the moral authority of the offence of simple possession, and the support which it commands, is weakened by the fact that the extent of the harm caused to the user, to third persons and to society generally by certain kinds of drug use varies considerably. The offence of simple possession does not distinguish between different levels of use, and in its effects it often appears to be grossly out of proportion to the effect of the conduct against which it is directed. The consequences of criminal conviction are clearly out of proportion to the effect of an occasional or experimental use of most drugs.
Even if imprisonment is not imposed, criminal prosecution and conviction can have serious psychological effects, causing mental suffering to the offender and members of his family, and can have an adverse effect on his prospects for employment and other opportunities. The effect of the law has been mitigated to some extent by the provision for absolute and conditional discharge and for early pardon. But in cases of absolute and conditional discharge there is still a finding or plea of guilt and the stigma of a criminal record. Early pardon may remove the official record, but it cannot remove the fact of a finding of guilt or a conviction and the prejudicial uses to which it can be put in the future by persons who are able to obtain knowledge of it. There is no way in which the memory of a criminal prosecution and finding of guilt or a conviction can be erased. So long as such knowledge exists it may always be a basis for action detrimental to the individual.
The main cost of the use of the criminal law against non-medical drug use is that it falls with particular severity upon the young. A high proportion of the convictions for simple possession involve persons under twenty-one years of age, and the vast majority are under twenty-five. This is particularly true of cannabis, but it is also true of the restricted drugs and to some extent of the opiate narcotics.
For all of these reasons we strongly recommend against any further extension of the offence of simple possession. We believe that we should gradually withdraw from the use of the criminal law against the non-medical user of drugs rather than extend its application. A policy to extend its application would be a policy of futility. There is virtually no limit to the number of drugs to which it would have to be applied if it were to be pursued to its logical conclusions. We would have to be prepared to apply it not only to the controlled drugs in Schedule G of the Food and Drugs Act but also to drugs with an abuse potential which are presently on Schedule F of the Food and Drug Regulations. As we have indicated above, several of these drugs have been the subject of an increasing non-medical use supplied by an illicit market. The technical capacity exists to produce an infinite variety of drugs of abuse. This capacity is not the monopoly of a few responsible organizations but is widely accessible. Even if it were possible to suppress one drug there would be many others to take its place.
In the course of our inquiry many have urged that there be an offence of simple possession for the amphetamines, particularly for methamphetamine or 'speed'. This is a reflection of the concern for the dangerous effects of `speed'. Law enforcement officials have urged that there be an offence of simple possession for the controlled drugs in general. They have stated that they are handicapped by the lack of such an offence in their enforcement of the laws against trafficking. While this opinion is entitled to great respect, there is no way of testing its validity. As we have indicated above, the use of 'speed' appears to have levelled off, and even decreased, in recent years despite the absence of an offence of simple possession. Convictions for trafficking offences involving 'speed' have steadily increased until they have approximated the total number of convictions for trafficking offences involving heroin. In 1971, they exceeded them, and in 1972, when there was a very marked increase in heroin convictions, they were about 85 per cent of the number. It is, of course, impossible to say whether the existence of an offence of simple possession for 'speed' would have made a significant difference to law enforcement against trafficking—at least, one which would have justified the cost of this extension of the criminal law. Given the fact, however, that the total number using 'speed' appears to have stabilized, and possibly even declined, and given the apparent level of law enforcement against trafficking, we do not believe that there is any compelling reason for the creation of an offence of simple possession for this particular form of drug use. The total amount of 'speed' use is controlled by other factors: the poor opinion of it in the drug subculture, the perception of its potential for harm, and the self-limiting nature of the phenomenon. (See Appendix C Extent and Patterns of Drug Use.) Although the violence associated with the use of 'speed' is cited as a reason for creating an offence of simple possession, we are still of the opinion, expressed in our Interim Report, that because of the paranoia of the 'speed freak', such a step would lead to an increase in tension and violence between the police and the drug subculture.
A decision was taken deliberately in 1961 not to create an offence of simple possession for the controlled drugs on the ground that in many cases the unauthorized possession of them would result from a member of a family obtaining access to a supply of drugs which another member had obtained on prescription.* This is still likely to be the case very often for both the controlled drugs and the drugs with stimulant or sedative-like action on Schedule F of the Food and Drug Regulations. The extensive use of many of these drugs by adults, the easy accessibility of others to them, and the often questionable nature of the distinction between their medical and non-medical use would all contribute to a difficult and discriminatory application of an offence of simple possession. It is likely that the law would fall, as in the case of cannabis, on young people who happen to come into contact with the police. The likelihood of a discriminatory application of the law would be increased rather than diminished by the restrictions recently placed upon the medical use of the amphetamines and amphetamine-like drugs in Schedule G of the Food and Drugs Act. Because of the widespread desire of adults, including housewives, businessmen and athletes, to make use of these drugs for their stimulant effects, it is likely that there will be an illicit market in them. It is not likely, however, that enforcement of an offence of simple possession would reach large segments of the adult using population, any more than it has reached them in the case of cannabis.
While we are opposed to any extension of the offence of simple possession, we recognize that it may be necessary to take a somewhat different view of a proposed elimination of this offence in particular cases. This arises from the effect which such a proposed change in the law may have on attitudes and behaviour with respect to a particular form of non-medical drug use. There is clearly a difference in this respect between a proposal to extend the application of the criminal law and a proposal to reduce its application. The existing situation is not adversely affected by a refusal to extend its application, but it may be adversely affected by a change in the law which reduces its application. While the offence of simple possession may have relatively little effect as a deterrent of use, it undoubtedly has some, and what is more important, its elimination is likely to have some effect on the perception of harm. It is inevitable that many will infer from such a change that the potential for harm must not be as serious as was originally contended.
In each case, the issue must be decided, as we stated in our Cannabis Report, on an estimate of the balance of benefit and cost. We conceded at that time that the elimination of the offence of simple possession of cannabis would probably result in some increase in use and some effect on perception of harm, but having regard to the relative potential for harm of cannabis, the degree to which the law regarding it was at variance with the facts, and the costs of applying the criminal law to thousands of young people, we concluded on balance in favour of the elimination of the offence of simple possession of cannabis.
Despite our general misgivings about the offence of simple possession we do not believe that it would be prudent to remove it at this time with respect to the strong hallucinogens classified as "restricted drugs" in Schedule H of the Food and Drugs Act. While the use of these drugs is generally experimental or occasional, rather than regular, any use of them is potentially dangerous or hazardous. The effects of the strong hallucinogens are unpredictable, and adverse psychological reactions can arise from occasional as well as chronic use. There is impressive clinical evidence to suggest that they can be a factor in precipitating mental illness or adverse personality change. The strong hallucinogens present an even greater danger of adverse effect on adolescent maturation than that about which we expressed concern in the Cannabis Report. There are also the hazards involved in the "echo effect" or "flashback", in which the effects of an hallucinogenic experience may recur under conditions which present a danger to the user or to others.
While the total number using LSD appears to have levelled off, and possibly even decreased somewhat, there is still a large population of youthful users, and there has been a marked increase in recent years in the use of MDA, a particularly dangerous hallucinogen with amphetamine-like properties. This drug appears to have resulted in several deaths from overdose. The potential for harm of the strong hallucinogens is much greater than that of cannabis.
The perception of this potential for harm is a factor which limits use. It would be unwise to make a change in the law that might seriously undermine this perception. Because of the perceived potential for harm of the restricted drugs, the present law with respect to them is not seen as being at variance with the facts to the same extent as the law regarding cannabis. The classification of cannabis with the opiate narcotics and the extreme nature of the maximum penalties involving cannabis have clearly called for some change in the law. For this reason we expressed the opinion in the Cannabis Report that substantial changes could be made in the law regarding cannabis in order to make it more rational without a seriously adverse effect on the caution with which cannabis should be treated. The same is not as true of the strong hallucinogens or "restricted drugs". The offence of simple possession for these drugs has only existed in Canada since August 1969, but, unlike the case of cannabis, it was deliberately introduced into the law after careful consideration of the apparent harm being caused by the strong hallucinogens and of the penalty structure that was appropriate for them. The penalty structure that was introduced for the restricted drugs was much less severe than that for cannabis, which was left with the same legal status as heroin. The maximum penalties for trafficking offences and for simple possession were much lower, there was not the mandatory minimum sentence of seven years' imprisonment for importing or exporting, and there was the option to proceed by way of indictment or summary conviction in cases of trafficking as well as simple possession. Thus any change in the law would likely be perceived as more closely related to a change in the perception of harm than to a grossly mistaken classification in the first instance, as in the case of cannabis.
At the same time, some reasonable balance must be struck between the need to retain the law in order to maintain the perception of harm, and the adverse effects inflicted by the law. For this reason we adhere to the opinion expressed in our Interim Report that there should not be liability to imprisonment for the simple possession of the restricted drugs. Having regard to the potential for harm of the restricted drugs, the age distribution of the majority of users involved, and the serious effects of imprisonment on persons in this age group, we do not believe that the courts should have the power to impose imprisonment in such cases. We are strengthened in this opinion by the very wide disparity in the approach to sentencing that has been disclosed by our studies. (See Appendix F.8 Sentencing.) Liability to imprisonment increases the possibility of injustice arising from this disparity. We do not believe that imprisonment is justified for the simple possession of restricted drugs, even in cases in which there is a previous criminal record. This offence should be judged on its own merits and should not be invested with the seriousness which may carry over from other cases.
As we have indicated in the preceding discussion, there is no doubt about the adverse effect of imprisonment on drug offenders in reinforcing their preoccupation with drug use and their attachment to a drug-using and criminal subculture. Prison may interrupt drug use, but it does not cure drug dependence in the vast majority of cases. At the same time, an effective control system for the management of drug dependence must be backed up by the threat of confinement of some kind for failure to comply with the program. We believe that the courts should avoid the use of imprisonment as much as possible for opiate dependents, but that it must remain as a sanction for refusal to comply with the conditions of supervised release into the community. We recommend, however, that the maximum sentence to imprisonment for the simple possession of the opiate narcotics and cocaine be two years. As we have indicated above, about 90% of the sentences to imprisonment presently fall within this range.
There should be greater use of probation (or conditional discharge) on condition of compliance with an approved treatment program. The existence of methadone maintenance makes it more reasonable to impose treatment as a condition of probation. The opiate-dependent person may pursue a goal of abstinence in a therapeutic community or other treatment program, if he wishes, but he has a viable alternative in methadone maintenance. The range of options is likely to be enlarged in the near future by the availability of a satisfactory opiate antagonist.
There is no doubt that if there is a serious attempt to use the criminal law process for purposes of diversion to treatment or management of opiate dependence, instead of incarceration or other relatively ineffective sanction, there will have to be not only an increase in treatment facilities of all kinds, including specialized methadone units and therapeutic communities, but a considerable increase in the number of probation officers and others capable of assisting with the task of social rehabilitation.
The form of treatment which is to be followed by the probationer should be determined by the court after consultation involving the probationer, the probation officer, treatment personnel, and any others, such as police or social workers, who may have useful advice to offer. The probationer should be made fully aware of the nature and implications of the proposed course of treatment. It is important that expectations be clearly defined. Much dissatisfaction is created in practice by a vague transfer of responsibility from the judicial authorities to treatment institutions, accompanied by unrealistic expectations. At the same time, there should be sufficient flexibility to permit changes in the treatment program when these are considered to be desirable by the treatment staff and the patient. In other words, an agreed program should be defined in advance, based on adequate determination of the probationer's preferences, as well as relevant expert advice, but it should be capable of being modified by the treatment institution with the patient's consent. Probably the probation officer should be given discretion to approve such changes.
The question arises as to whether there should be provision for a program of compulsory management of opiate dependence outside of the criminal law process. For reasons indicated in Appendix F.1 The Constitutional Framework, it is doubtful if the Parliament of Canada has legislative jurisdiction for such purposes. (There is further discussion of this issue in Appendix I Probation for Heroin Dependents in Canada.) The general assumption is that compulsory treatment not related to the criminal law process falls within provincial jurisdiction. If the criminal law system is to be used to direct or encourage opiate dependents to submit to treatment, then it seems reasonable that we should make the catchment system as effective as possible by providing for a non-criminal form of compulsory treatment or management. Opponents of compulsory treatment tend to exaggerate the extent to which the opiate-dependent person is actually free from compulsion towards treatment. The difficulty of supporting his habit in the illicit market, and the danger of arrest and imprisonment are factors which, after a time, exert a compulsion to seek treatment. The heroin-dependent person who seeks methadone maintenance because he is tired of "hustling" in the illicit market is in effect being compelled to do so, whether he likes it or not. It is not the wholly free decision which some suggest is essential to a proper motivation for treatment.
While we do not see how, as a practical matter, we can withdraw at this time from the use of the criminal law against the user of opiate narcotics, we are not in favour of introducing long periods of civil commitment. We do not believe that the results obtained elsewhere with this approach justify the extended deprivation of liberty in cases in which there has not been a criminal conviction. We do believe, however, that there is a strong case to be made for the use of compulsory confinement for a short time to oblige the opiate dependent to confront his situation and to consider, in an atmosphere in which he is free from the pressures of "hustling" in the illicit market and has access to good diagnosis and advice, whether he desires to pursue one of the treatment or management options open to him.
We recommend that provincial legislation confer power on police officers to bring any person whom they have reasonable and probable grounds for believing to be dependent on opiate narcotics before a magistrate, in order that it may be determined, upon prima facie evidence, whether the person should be committed to custody for medical examination for a period up to seventy-two hours. If the person is found to be drug-dependent, the examining physician and another physician who confirms the diagnosis should have power to commit the person to a residential treatment facility for a period of not less than one month and not more than three months. The purpose of such confinement would be to permit further examination and observation of the drug-dependent person, to permit him to confront his situation and to consider the various treatment or management options open to him, and to afford an opportunity for a commencement of treatment including extended detoxification, the technique of the therapeutic community or stabilization on methadone maintenance. The chief purpose would be to acquaint the patient with the possibilities of treatment, to encourage him to decide in favour of some course of treatment, and to begin the treatment process. If, at the end of the stipulated period, the patient refuses to follow a course of treatment he should be discharged. The period of residential confinement would also afford an opportunity for advice and assistance with other problems having a bearing on the patient's drug use. The residential facility should have access to the necessary counselling personnel to assist with problems of social rehabilitation.
Such a policy would require sufficient residential capacity in close association with general hospital and methadone facilities. There should also be provision during the stipulated period of residential confinement for temporary release into the community under specified conditions and supervision. Police officers should have power, upon order of the head of the residential facility, to return the patient to confinement for violation of the conditions of release. In no case, however, should the total period of confinement be longer than that originally stipulated by the committing physicians. Moreover, where the confinement fails to produce constructive results on a first attempt, in the form of a decision to pursue treatment, the authorities would be well advised not to attempt it again, although this possibility should remain open. If a drug-dependent person fails to respond to this non-criminal law attempt to force him to confront his situation and elect treatment, then it would be better to leave further attempts at control to the criminal law system.
For the present, we would confine this experiment to cases of opiate dependence.* Since methadone maintenance offers the opiate-dependent person a viable option if he cannot accept treatment with a drug-free goal, there is some justification in a limited use of compulsion to encourage acceptance of treatment. In certain other forms of drug dependence, such as dependence on the intravenous use of amphetamines, there are no such viable options at the present time. Where there is no clearly effective treatment, there is no justification for the use of compulsion to direct persons into treatment. Moreover, the restless and obstreperous nature of the average 'speed freak' would make him much less amenable to the short compulsory period of residential confinement to permit him to consider his position and the options available to him. The difficulties involved in attempting to apply such compulsion to the `speed freak' would far outweigh any likely benefits.
The period of residential confinement should be presented to the opiate-dependent person as an opportunity for him to obtain good diagnosis of his drug-related problem, as well as advice and various forms of assistance, and to experiment with a serious attempt at treatment. Its purpose would be to precipitate the decision to withdraw for a period from involvement in the illicit market, to take stock, and to take a step in the direction of treatment and rehabilitation. The goal would be to replace the initial compulsion as soon as possible by voluntary acceptance of and response to treatment. The effectiveness of such an experiment would depend to a great extent on the manner in which it is administered by police officers acting in a public health role, and by the personnel involved in treatment and social rehabilitation. While being obliged to confront his situation with the assistance of expert advice, the opiate-dependent person should be encouraged to involve himself in the decision process. Ultimately the choice of whether to pursue the particular course of treatment must be his. We would not be in favour of compelling acceptance of a particular course of treatment or management, such as methadone maintenance or the administration of an opiate antagonist,* although we recognize that once compulsion is used the options available to the opiate-dependent person may necessarily have this tendency in some cases. It must be noted, however, that this proposal contemplates a definite limit of three months to the use of compulsion. It thus could not have the effect of an indefinite compulsion to accept a certain course of treatment.
If the experiment proved useful it could be applied to other forms of drug dependence, if, and when, viable treatment or management options are developed for them.
We recognize that this proposal for a limited period of compulsory residential confinement raises a serious question as to how and where the necessary facilities are to be provided. It would undoubtedly have to begin on a pilot project basis. The minimum security requirements would probably make it difficult or impracticable to establish these residential facilities under the supervision of specialized treatment units or general hospitals. At the same time, they would have to be sited in close proximity to the necessary services for treatment and social rehabilitation. The residential centres would require some permanent staff for diagnosis, counselling, and custody, with others associated on a non-resident basis. The power of original commitment should be restricted to physicians associated with diagnostic and treatment facilities properly equipped to confirm opiate dependence and to make an adequate evaluation of the patient's general condition and suitability for treatment. The residential facility would be a place where the opiate-dependent person would be accommodated and would receive counselling and various forms of vocational and recreational therapy, but he would also have access to nearby treatment facilities, such as a general hospital for acute problems of medical management, and to methadone maintenance if he elects to pursue that course of treatment. The decision to enter a therapeutic community would have to be a wholly voluntary one, after the patient had had au opportunity to consider its implications, and it would involve a transfer from one residential facility to another. Such transfer, prior to the expiry of the period of compulsory confinement, would have to be approved by the physicians who ordered the commitment.
We do not recommend the use of compulsion in non-criminal cases for purposes of education or indoctrination of persons engaged in the occasional use of drugs for non-medical purposes, particularly where the drugs do not have a significant dependence-producing potential. We would see no point, for example, in the use of a non-criminal form of compulsion for such purposes in the case of the occasional use of hallucinogens or the volatile solvents. We would very much doubt the efficacy of any such efforts. For such cases, informational and educational efforts are better left on a voluntary basis.
Because of the seriousness of the heroin problem in Canada the question is raised as to how law enforcement against the use of opiate narcotics can be made more effective. There is particular concern about how the police can be more effective in the apprehension and conviction of the experimental or occasional user of opiate narcotics who is considered by many to be more "contagious" than the person who has become dependent, because of his belief that he can experiment with opiate narcotics with impunity. It has been suggested that the police are seriously handicapped by the present offence of simple possession, and that they could be much more effective if there was an offence of use, backed up by the power to compel urinalysis as the means of proof.
Most countries rely on the offence of simple possession although there are several in which there is also an offence of use. American federal law uses the offence of simple possession as does the Canadian, but use is an offence under the laws of several of the states. Despite the decision of the Supreme Court of the United States in Robinson v. California,s' holding it to be unconstitutional to make addiction a crime, several states have retained this offence and apparently convictions will be upheld if they are sought only for "use" or "being under the influence" of a drug. The Uniform Controlled Substances Act drafted by the United States National Conference of Commissioners on Uniform State Laws relies, however, on an offence of simple possession, punishable as a misdemeanour. In most cases the maximum penalties for the offence of use under state legislation are lower than those for possession. In many cases, however, a distinction is not made, in respect of maximum penalties, between simple possession for use and possession for purposes of sale, which would account for a difference in the maximum penalties for use and possession. The maximum penalties for the offence of addiction or use range from 30 days to six years, but in most cases they are one year or less. We are informed that in practice the offence of use plays a relatively minor role, being resorted to mostly in cases where small quantities of the prohibited drug are involved. In Europe most countries appear to rely on the offence of possession to reach the user, but several countries punish use as well.32 In New Zealand use is an offence as well as possession."
In Canadian legislative history the only offence of use with respect to narcotics was the offence of smoking opium which was introduced by the Opium and Drug Act in 1911.34 The act created an offence of simple possession, which was punishable by imprisonment for not more than one year or a fine of not more than $500, or both, as well as an offence of smoking opium, which was punishable by imprisonment for not more than three months or a fine of not more than $50, or both. There is an offence to smoke or otherwise use prepared opium in the Misuse of Drugs Act 1971 of the United Kingdom which is subject to the same penalties as simple possession.
The reason for reliance on an offence of simple possession is that the prosecution must prove the nature of the drug involved, and generally it is necessary to have possession of a specimen of the drug for such purpose. The police have occasionally complained that they are handicapped by the need to obtain a specimen of the prohibited drug. They must surprise heroin addicts in the act of possession and sometimes must use force to prevent them from swallowing the evidence or otherwise disposing of it. What they have generally suggested as an alternative, however, is really an offence of addiction, for which the courts could impose confinement for an indeterminate period. There was testimony to this effect before the Special Senate Committee of 1955.36 To some extent this suggestion was reflected in Part II of the Narcotic Control Act (which has never been put into force), although the provisions of Part II would require a conviction for an offence under the Narcotic Control Act before addiction could be made the basis of a "sentence" to custody for treatment for an indeterminate period. There are serious doubts as to whether the Parliament of Canada has the legislative jurisdiction to make addiction an offence. (See the discussion in Appendix F.1 The Constitutional Framework.) In making addiction an offence, Parliament would be basing itself on a medical condition without any necessary reference to criminal conduct. If Parliament acted purely on the basis of a medical condition, such as addiction, without specific reference to prior or prospective criminality, it would probably be held to be acting unconstitutionally. In effect, it would have to be considered to be punishing the offender, not for the medical condition as such, for which it would be wholly inappropriate to hold him criminally responsible, but for the previous acts of use which gave rise to it. While technically there appear to be few limits to the kinds of conduct which Parliament can validly declare to be criminal, so long as it is clearly not making a "colourable" or disguised use of the criminal law power to usurp an area of provincial jurisdiction, legislative propriety would argue strongly against making addiction a crime.37 Whether or not our courts would apply the prohibition against cruel and unusual punishment in the Canadian Bill of Rights in the same manner as the Supreme Court of the United States did in Robinson v. California, the logic of such a challenge would remain to rebuke the propriety of the legislation as a matter of policy.
There would not appear to be any objection in principle to adding an offence of use as an alternative38 to the offence of simple possession. But with an offence of use it would still be necessary to prove the nature of the drug that had been used, and as a general rule this would require possession and analysis of a sample of the drug. This problem could only be overcome by the compulsory administration of a satisfactory test for the presence of the drug in the body. Urinalysis, as a test for determining the use of heroin by the presence of morphine in the human body, is by no means foolproof. Thin layer chromatography, the method most commonly used, is subject to error, including false positives as well as failure to detect. Further, it is typically only able to detect the presence of morphine in the body if the use of heroin has occurred within the previous 24 hours or so. Recently developed immunoassay techniques are apparently less subject to the possibility of false positives and can detect the drug in the urine for a significantly longer period after use. At the present time, however, they are not able to efficiently distinguish between the use of codeine, morphine and heroin, although it is believed that the simple identification of codeine by immunoassy will be possible in the near future. So long as there is a significant possibility of false positives, compulsory urinalysis must be ruled out as a sufficient basis for determining criminal liability. *
But even if we developed a foolproof method for identifying heroin in the body which could be made operational in a sufficiently practical form for law enforcement purposes, there would remain the problem of detecting the experimental or occasional user. The existence of compulsory urinalysis would not by itself make this task any easier. And detection would have to take place within a certain limited period after use. The occasional user of heroin is not exposed to police surveillance and detection in the same manner as the impaired driver. It would require much more intensive law enforcement, involving many more police and a greater use of informers and other distasteful methods to increase the chances of detecting occasional use, which is not only infrequent and unpredictable, but as a general rule private. We do not believe that the likely return in law enforcement effectiveness from an offence of use backed up by compulsory urinalysis would justify the creation of this additional means of interference with personal liberty and this additional risk of injustice. We are, therefore, opposed to the creation of an offence of use if it were made dependent on compulsory urinalysis. As we have indicated above, we are not in favour of extending the application of the criminal law against the user but rather of making an orderly withdrawal from it.
* Since the report on which this statement is based there has been a significant increase in the availability of places in treatment.
* The population in these hospitals consisted partly of prisoners and partly of voluntary patients.
* Debates, House of Commons, Canada, May 30th, 1961, p. 5595; Hammond, "The Control of Barbiturates and Amphetamines," (1964) 15 U. of T.L.J. 443 at 445.
* It could, however, also be applied to cases of alcoholism, although as indicated earlier there is presently provision in some of the provinces for the exercise of a non-criminal law form of control in such cases.
* The chief reason in the case of methadone maintenance is the seriousness of the decision to continue and confirm a form of opiate dependence, and in the case of an antagonist, the risk that such treatment may interfere, in an emergency, with the use of an opiate narcotic for the relief of pain.
* The use of urinalysis to monitor compliance with the conditions of probation or parole (see Appendix J Probation for Heroin Dependents in Canada) does not in our opinion present the same risks since there is opportunity for further tests to confirm a pattern of behaviour, and there is discretion to consider what action should be taken on the basis of positive urinalyses, in the light of all the other circumstances of the case. (As may be seen from the above appendix, it is not practicable for probation or parole officers, in the case of opiate dependence, to act on a single positive urinalysis.) There is an important difference in an initial finding of criminal responsibility and the question of whether a convicted offender should be permitted to remain in the community under supervision.
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