LPPANS: “Cannabis Legalization:

Community Impacts”

November 22, 2017

THE WAR ON DRUGS AND THE

PARTIAL CEASEFIRE OF CANNABIS

LEGALIZATION: ENSURING

CONSISTENT REGULATION

H. Archibald Kaiser

Professor, Schulich School of Law

Dalhousie University

<archie.kaiser@dal.ca>

Modern Limits of the Criminal Law in Canada

Restraint as a Common Theme

The Ouimet Report (1969)

• Using the criminal law “to control anti-social behaviour should be a last step”

The Law Reform Commission of Canada (1976)

• Criminal law is a “blunt and costly instrument”

• “Used as little as possible”

Government of Canada Statement: “The Criminal Law in Canadian Society” (1982)

• Confine the criminal law to “conduct for which other means of social control are

inadequate or inappropriate”2

Anchoring Canadian Drug Policy in the Criminal Law

• Prior legal laissez-faire attitude had ancient foundations

• Drugs were used for pain relief; relaxation; physical stimulation; spiritual

enhancement; food source; a means of exchange and a source of economic activity

• Criminalization is a relatively recent phenomenon

• Until the early 1900’s, even opiates were unregulated

• Alcohol and tobacco were considered to be more severe threats to public health

and morals

• The twentieth century use of the criminal law to control psychoactive substances:

• Not the last step

• Not an unavoidable necessity:

• Drugs could have been controlled, in part by social forces and regulatory law

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The Rise of Regulation after 1900: The Gradual Embrace of the Criminal Law

• New or invigorated notions of restraint and sobriety, in part religiously fuelled

• Redefinition of some substances as evil, addictive, productivity-sapping, unhealthy and

degenerate

• Racial discrimination and political scapegoating propelled criminalization, forces

which endure

• Canada marched in lockstep with the world stage

• A signatory to the International Drug Control Conventions

Criminalization Creep in Canada

• The Opium and Drug Act

• Opium prohibited in 1908;

• Cocaine in 1911;

• Marijuana 1908 to 1923

• New waves of more punitive legislation followed with regularity 5

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Ongoing Discrimination in the War on Drugs

The War on Drugs: Oxygenating the Criminal Law

• In the 1980’s, Canada , like many other nations, subscribed to a war agenda

• Even Canadian courts seem to have been swept up in this metaphor

• War was declared before other options were explored

• What may have started as a metaphor was transformed to:

• “a very real and deadly global military and law enforcement offensive”

(Ben Mostyn, et al.)

7

Problems with the War Ethos

• What is the true “enemy”?

• Where is the tabulation of the cost?

• Is the scope of the war contained or is it widening?

• How is progress being assessed?

• What is the exit strategy?

• How can collateral damage be reduced?

• What is the place of evidence and analysis?

• Does the war sensibility encourage delusion rather than clarity of observation and

reality testing?

8

The Futility of the War on Drugs

• Prohibition was intended to reduce supply and demand

• No appreciable gain on either front

• Supply largely unimpeded

• Production has increased

• Prices have declined

• Potency has been upgraded

• Demand relatively stable

• Roughly as many users now of cocaine and heroin

• More cannabis users

• “Canadian illicit drug market has remained relatively

stable” (RCMP, 2009)

• Despite the enormous investment by the justice system

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The Effects of Overgeneralizing and Mislabeling

• Users are “blamed for their own economic, health and criminal problems”

• Without “exploring the state’s responsibilities”

(Edgar-André Montigny)

• Demonization fuels more aggressive criminalization

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Intrusion Upon Decision-Making of Adults

• Liberty and autonomy are important

• Liberty “more than freedom from physical restraint …”

• “the right to an irreducible sphere of personal autonomy wherein individuals may

make inherently private choices free from state interference”

(Malmo-Levine, SCC, 85)

• Criminal law does not normally interfere with adult decisions which may only

minimally damage one’s own health or social or vocational interests

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Harms to Families and Communities of the War

• Criminal law affects most marginalized people

most severely

• Poverty, unemployment, destabilization may

already describe their daily lives

• Maladaptive incentives to commit to drug

enterprises

• Police attention heightened

• Crime prevention and community development

can be ignored

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Adverse Health Effects

• A major cost of concentrating on enforcement, rather than public health

• Spread of HIV

• Overdose deaths

• Aggravation of physical health problems

• See the Insite case (PHS Community Services, SCC 2011)

• “the need for an immediate fix or the fear of police discovering and confiscating

drugs can override even ingrained safety habits” (80)

• “Livid prohibitionist claims of the past are increasingly inappropriate in the

contemporary context of national debate” (Hathaway and Erickson)

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Justice System Distortions and Failures

• The black market “produces crime, violence and corruption” (Heath Officers Council of

BC)

• Overdependence in the criminal law erodes public and police reverence for the law

• People are exposed to extensive intrusions in the name of public security

• Citizens are marked with the less eradicable stain of a criminal record

• Users are labelled as criminals, although the public does not associate their behaviour with

conventional perceptions of criminality

Police Loss of Vision and Aspirations

• Message which devalue drug participants caused amnesia among many police forces

• Loss of aspirations for the restrained and respectful use of police powers

• Racial profiling, brutality, diminished respect for privacy, corruption may appear

• Increasing disrespect of the law 16

Final Assessments

• “WOD has proven ineffective … resulted in much health-related harm” (Akwatu

Khenti)

• “no hope the battle will ever be won” (Rany Odch)

• Canada has partially retreated from its “revitalized ‘war on drugs’” (Elaine

Hyshka) with the legalization of cannabis

• “over-reliance on the criminal law”

• “causing more harm than good”

• “join forces around the world calling for change” (CDPC)

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The Complexities of Cannabis Legalization

• Identifying Harms

• What are the harms associated with marijuana?

• Legal Responses

• What is the residual role of the criminal law?

• What are the federal, provincial and municipal responses to the regulatory

issues?

• Production; profit; promotion; prevention; potency; purity; price;

distribution

• An Alternative Approach: Use Public Health Principles

• UK DPC

• Prospective positive function of law

• Use regulatory law:

• Encourage responsible behavior;

• Tackle structural problems;

• Use evidence-based prevention programs

• Reconceptualize most problems associated with drugs as public health challenges

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Liberate Discourse

• Face the now deeply embedded untruths about the war

• “Break the Taboo”; “Pursue an open debate” (GCDP)

• Stop insisting on elimination and abstinence

• All drug use is not invariably problematic

• “problems appear to be linked to inequality and social

exclusion”

• Stop seeing users as pariahs and outcasts to be vilified and

imprisoned

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Asserting General Principles in the Ceasefire Era as New Law Emerges

• Insist on evidence as a base for policies

• Ensure protection and promotion of human rights and equality

• Establish new indicators of success

• Let public health principles and agencies take lead roles

• Provide high quality treatment and rehabilitation programs, non-coercively

• Innovate, but always to reduce harm

• Create special programs for vulnerable groups

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Asserting General Principles in the Ceasefire Era as New Law Emerges

• Experiment as befits Canada’s needs

• Scale up investments in health promotion and social services

• Work to eliminate stigma, discrimination and social and health inequities

• Modernize legislation and regulations

• Steadily retreat from the use of the criminal law with its correlative insistence

on abstinence

• In substantive law, policy and enforcement

• In the tenor of new regulatory structures 22

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Enable Harm Reduction, Prevention and Treatment

Harm Reduction

• Find “humane and effective ways to reduce the harm caused by drugs to people and

societies” (GCDP)

• “Decrease the negative consequences of substance misuse”

• “reduce the health and social problems associated with the use and control of alcohol

and other drugs among individual families and societies” (Canadian Centre on Substance

Use, 2006)

• Promotion of health and welfare is sought, including techniques of harm reduction

• “prohibition itself … dramatically and demonstrably drives and exacerbates so

many of these harms”

• “What is required is an end to prohibition” (Jay Levy)24

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Purpose of Bill C-45: the Cannabis Act

s. 7 (paraphrased)

a) protect the health of youth by restricting access;

b) protect youth from inducements to use;

c) provide for legal production, reducing illicit activities;

d) deter criminals through appropriate punishments;

e) reduce the cannabis-related burden on the criminal justice system;

f) provide quality-controlled access;

g) enhance public awareness of health risks

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Highlights of Bill C-45: The Cannabis Act

(See Bill Summary)

• (a) Establishes smaller range of criminal prohibitions: unlawful transactions

• (b) Minister can authorize some activities: possession, distribution, sale, import/export

• (c) Permits limited, authorized possession, selling and distribution, under Provincial Acts,

with standards

• (d) Prohibits youth appealing promotions, while providing useful information

• (e) Inspection powers and non-criminal offences for lower range infringements

• (f) Dealing with seized material

• Broad Ministerial and Cabinet regulatory authority

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Bill C-45:

A Sample of New Criminal Offences

• s. 8: Possession offences

• s. 9: Distribution offences

• s. 10: Selling offences

• s. 11: Import/export offences

• s. 12: Production offences

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New Ticketable Offences

• s. 52: Purpose

• “Marginal” contraventions of main possession, distribution, selling and offences

• No imprisonment available except for wilful default of fine

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A Clean Policy Slate for Other Drugs

• We need the same prioritization of public health, human rights, while

preserving public safety, even as other substances may require a different

equilibrium between legalization and decriminalization.

• The cannabis ceasefire should be extended to a generalized peace treaty.

• The blunt weapon of the criminal law should be largely sheathed

• We can reduce harm and protect public health and the social order differently

for other now prohibited substances.

Encourage Safer Practices, Especially for Harder Drugs:

• Consider decriminalization or partial legalization

• Safe injection in the community and institutions

• Needle exchange programs

• Treatment using substitute substances

• Heroin prescription

• Use of oral rather than injectable drugs

• Reduction of quantities used

• Abstinence for some

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Safer Practices, for Harder Drugs

• Bleach and paraphernalia distribution

• Drug content testing

• Straws and foil for some types of ingestion

• Information dissemination

• Peer education regarding risk

• Condoms

• Counselling and testing

• Legal Services

• Overdose prevention drugs (naloxone)

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The Times Are Changing: Emerging Trends in Liberalization

• “a new wave of countries have moved toward decriminalization”

• “recognition of the failures of the criminalization approach”

• “strengthening political wind blowing in the direction of an historic paradigm

shift” (Quiet Revolution, 11)

• The following states are chosen from a partial list that have moved towards

liberalization

• Responses and effectiveness of models vary, but, for Canada, there are

many lessons to be learned

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Some Examples of Drug Liberalization in Other Countries

Portugal

• Decriminalized drug possession and use in 2001

• Re-focused on a public health model

• Harm reduction measures:

• Drop-in centres, shelters, mobile units

• Prescription programmes, needle exchange

• Some data indicates:

• Decline in use, HIV, deaths

• Increases in treatment

• Need for careful examination

• Police may refer persons with more than 10 days supply to dissuasion commissions

• Focus on health, with range of sanctions

• Possessions of larger quantities may be referred to criminal courts

35

Italy

• Decriminalization over 30 years ago

• Some fluctuations between harsh and lenient penalties

• 1990: administrative sanctions for small quantities, based on a daily average dose

guide, increased penalties

• 1991: judges given more flexibility in determining intent to sell

• 1993: referendum eliminated custodial measures and extended judicial discretion

• 2006: Parliamentary reinstitution of stricter measures for quantities above the

maximum allowed

• Neither harshness nor leniency has had much of an impact

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The Netherlands

• Legal distinction between hard and soft drugs

• Enforcement guidelines (1976): deprioritized prosecution for amounts below

threshold

• Not statutorily decriminalized; fines still available

• Low death rates due to hard drugs

• Low numbers of young problematic offenders

• Low injection prevalence

• Some increase in cannabis use, in part due to rise of “coffee shops”, now under stricter

controls

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Czech Republic

• Formal decriminalization of possession in 2010

• Penalization had not affected availability

• Drug use was increasing

• Social costs of prohibition were increasing

• Public health predominated: low imprisonment rates for users

• Administrative (non-criminal) offences for small quantities of drugs

• All sales and possession of larger amounts remain criminal

• No explosion of drug use

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Uruguay

• Uruguay never criminalized possession for personal use; trafficking still an offence

• Exemption from punishment (1974) for “reasonable quantity … for personal

consumption”

• Harm reduction strategies accompanied policy

• Administration of justice issues have complicated reform: selective enforcement; bail

denial

• 2013: parliament legalized production, sale, use of marijuana; implementation

postponed

• Seen as an experiment by government

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Mexico

• 2009 decriminalization of drugs for immediate consumption and personal use

under the General Health Law

• No prosecution for small quantities of cannabis, cocaine or heroin

• Encouragement of treatment, more intensively if caught more often

• Controversy over low maximum quantity threshold

• Low limits and ambiguities may increase corruption and imprisonment

40

United States

• Extremely harsh drug laws and over-incarceration has been the trend until very

recently

• Trend toward legalization of medical marijuana and personal use

• Complexities surrounding conflicts between federal prohibitions and state

liberalization

• 2012: Colorado and Washington legalized possession of small amounts of cannabis

and regulated growing and distribution

• “drug law reform sweeps like falling dominoes”, (Mostyn et al., “The

Criminalization of Drugs and the Search for Alternative Approaches”,

269)

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Colorado

• Department of Revenue spearheaded legislative reform

• Localities can set regulations and may prohibit operations

• Licencing system for growers, manufacturers, transporters, sellers

• Need to keep concentration on:

• Public health issues

• Competitive illicit market

• Lessons previously learned from tobacco and alcohol regulation

42

Australia

• Three states have decriminalized aspects of cannabis use and distribution

• Decriminalization has not resulted in explosion of consumption; most studies show

little impact on use

• Historically, high rates of cannabis use

• Decriminalization does keep people out the criminal justice

• People who are criminalized

• Experience negative employment, relationship and accommodation

consequences and come into more contact with the justice system

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South Australia

• Cannabis Expiation Notices (1987) result in civil fines

• Many kept out of the criminal justice system

• Little impact on use

• Savings in law enforcement costs

• Non-cannabis: simple possession may result in referral to services by Drug Assessment

Panel

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Western Australia

• 2004-8 Cannabis Infringement Notices for small quantities

• Low fine or attendance at education session

• Some evidence of decline in prevalence

• No change or decline in use of non-cannabis drugs

• 2011: New government lowered threshold limit (30 grams reduced to 10)

• More people prosecuted for possession

• Even possessors with less than 10 grams are given a caution and required to attend a

Cannabis Intervention Session

• Higher penalties for other cannabis offences

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Glossary

Drugs

• Illicit (or illegal drugs or psychotropic substances or narcotic drugs)

• “controlled substances” as included within Schedules I-V of Canada’s Controlled Drug

and Substances Act (CDSA)

• Schedule II: Cannabis

• The Cannabis Act amends the CDSA (and other statutes)

47

Drug Policy

• “about dealing with problems directly associated with the non-medically authorized

use of drugs that might cause serious harm to users and to society”

• “for historical reasons, this excludes some, such as alcohol and tobacco, which

logically fall into” the harm causing category (UK Drug Policy Comm., 67)

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Criminalization

• “setting out … acts or omissions that are prohibited, together with ranges of sanctions”

• Imposing sentence upon those it convicts “drawn from a specified range” (Simester and

Von Hirsch, Crimes, Harms and Wrongs …, 3)

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Decriminalization

• “removal of sanctions under the criminal law”

• “with optional use of administrative sanctions (e.g. provision of civil fines or

court-ordered therapeutic responses)” (A Quiet Revolution … 11)

50

Legalization

• “covers a wide variety of proposals”

• “a system in which the production and sale of drugs are not criminal offences”

(The Legalization of Drugs, 3)

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Public Health Measures

• “generally referred to as harm reduction”

(War on Drugs, Global Commission on Drug Policy, 2011, 5)

• Public health systems may be undermined “when law enforcement drives drug users

away from prevention and care service” (The Vienna Declaration)

Harm Reduction

• “seeks to reduce the individual and social costs of abuse rather than to eliminate all

drug use”

• Emphasizes “scientific standards of rationality … rather than in terms of ideology”

(Hathaway and Erickson, 2003)