Some intractable social problems have non-medical use of drugs as one aspect, and the criminal law has been used extensively, with very questionable success, in the effort to alleviate the problems by controlling the drugs. Naturally, the B.C. Civil Liberties Association does not pretend to offer solutions to the social problems. But such problems do create a standing temptation to invade the liberties of the citizen. Our object is to provide a principled discussion of these liberties and of the limits of legitimate use of criminal sanctions. Respect for these limits must, on grounds of justice, control the long attempt to solve drug problems; but will in addition, we believe, actually contribute to an earlier solution.
In this brief, for the present hearings, we state general principles and then apply them, first, to the question of possession laws in general, and after that, to just two very different specific drugs, heroin and marijuana.
The B.C. Civil Liberties Association strongly endorses the statement of principles in the second chapter of the report of the Ouimet committee (Report of the Canadian Committee on Connections,Toward Unity: Criminal Justice and Corrections, Ottawa, The Queen’s Printer, 1969, chapter 2, ‘Basic principles and purposes of criminal justice’).
In particular, a statement of three principles to delimit the kinds of conduct falling within the legitimate sphere of the criminal law, which had been independently drafted within our Association, was found to coincide almost exactly with the Canadian Committee on Corrections’ three criteria for the scope of criminal law. These we quote in full:
The Committee adopts the following criteria as properly indicating the scope of criminal law:
- No act should be criminally prosecuted unless its incidence, actual or potential, is substantially damaging to society.
- No act should be criminally prohibited where its incidence may adequately be controlled by social forces other than the criminal process. Public opinion may be enough to curtail certain kinds of behaviour. Other kinds of behaviour may be appropriately dealt with by non-criminal legal processes, e.g. by legislation relating to mental health or social or economic condition.
- No law should give rise to social or personal damage greater than that it was designed to prevent.
Use and possession of drugs in general
One issue cuts across the field of drug legislation from heroin to marijuana, but is curiously neglected in both the criticism and the defence of existing law. Neither use nor possession of any drugs now controlled is in itself harmful to other people or substantially damaging to society. Further, we must recognize, in direct application of the first of the Canadian Committee on Corrections’ principles, that a user of a drug has a right to damage oneself if he or she chooses to do so. To quote one of the courses of this principle in the liberal tradition:
…the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm from others. His own good, whether physical or moral, is not sufficient warrant.
J.S. Mill, On Liberty, Everyman, p. 17
There is accordingly a strong presumption that any law which makes possession (or use) of any drug an offence is an invasion of civil liberties. This presumption can be upset only by weighty arguments. The arguments in favour of possession laws are rarely stated, perhaps because, when they are stated, they are visibly insufficient.
What is required is a demonstration (as distinct from a belief popular among law enforcement authorities) that it is impossible to prevent social damage except by prohibition of conduct which in itself is not harmful. Such a demonstration might be attempted for possession of explosives or firearms. But it is totally inadequate merely to point out that possession of some substance is a step on the way to use, and use is sometimes a step on the way to harmful conduct, when that harmful conduct is already subject to direct control. Thus drinking alcohol rightly remains in the sphere of the individual’s discretion, even though impaired driving rightly does not. The failure to maintain similar distinctions for the use of other drugs is a leading defect of the present law.
It is sometimes said that a person does not have the right to be a user because he may become a charge on public funds. This argument can be taken seriously only when it is made a criminal offence to smoke, take sudden exercise, work too hard, or drop out of school. Its discriminatory application to drug users exposes it as little more than callous hypocrisy.
The main motive for insistence on possession laws is obviously the convenience of the enforcement agencies. Possession is easier to establish than trafficking, and in particular cases may make it impossible for a realistic policeman to doubt that the man he has arrested is trafficking. On such a basis one can justify an offence of possession for the purpose of trafficking, since this is directed against the trafficker rather than the user, and since proof of the offence will in practice require something close to proof of trafficking. But there is no excuse for giving the police control over harmless conduct, and over user and pusher indiscriminately, on the grounds that without discretion to substitute the extra offence of possession they are unable to suppress the primary offence of trafficking.
In the opposite direction from our criticism is the view of the Narcotic Addiction Foundation of British Columbia (in its brief to the Honourable John Munro, Minister of Health and Welfare, “An Assessment of the Current Drug Dependency Situation, Capabilities, and Requirements”, January 1969). The Foundation argues that it is excessive to have to prove possession. Since laboratory tests can establish use of many drugs, including heroin, the Foundation thinks it possible to institute compulsory treatment, with criminal sanctions for those who decline or abuse a treatment program.
If we accept the promise that the drug user (as opposed to the distributor or trafficker) is a sick person, then he or she should be directed into treatment, and the above tests carried out in an authorized laboratory (p. 10).
This proposal would not only make the user as such subject to legal coercion, it would make people subject to compulsory examination for determining whether they were users—all in the name of regarding users as sick. Such moral confusion reflects the admitted intractability of the addiction problem. For the Foundation’s proposal and the present possession laws have this in common: they are repressive reactions to the failure of a policy which combines extreme sanctions against trafficking, denial of legal supply, and inadequate health and welfare facilities. But this is not a justification for abridging freedom. Rather, the pressure to abridge freedom shows the unworkability of existing policies.
We recommend that the law be so amended that simple possession of a drug (as distinct from possession for the purpose of trafficking) shall in no case be a criminal offence.
The approach to heroin in the U.S. and Canada is a standing encouragement to the erosion of freedom by law and to the use of violence by police. Historically, the handling of it has established many of the untested assumptions which govern the legislation on other mind-altering drugs. By the second and third of our general principles stated above, it is necessary, in order to assess the justice of criminal sanctions, to consider the actual effectiveness of the social policies which they serve, the damage they give rise to as side effects, and the possibility of alternative ways of controlling the behaviour in question.
In the atmosphere of holy war against the narcotics business, it needs to be recalled that the consequences of heroin addiction, however grave for some individuals, are comparable to those of alcoholism, given the availability of unrestricted medical care. For many addicts, they would be less grave, both physically and psychologically. It is also true that under existing law, and with highly restricted access to treatment, addiction normally implies disruption of life, acute danger to health, and extreme pressure to engage in criminal activity. But to the extent that these aspects of the addict’s problem are due to the law and its administration, the severity of the personal damage attributable to trafficking is on balance an argument against present policy rather than for it.
It is still more obvious, as many have pointed out, that present policy is self-defeating with respect to social damage from criminal activity in the drug subculture. The extraordinary level of theft by addicts and the vitality and profitability of the heroin business no doubt rest on several factors. But it is reasonable to believe that a major factor in both is the inaccessibility to the addict of adequate, lawful voluntary means to secure treatment or obtain supervised maintenance.
In the range of expert opinion on drug addiction there is ample and well-argued support for the view that the only possible long term solutions to the problem are essentially medical and rehabilitative, and that such solutions must rest mainly on voluntary participation. We regard this point of view as sufficiently obvious to form the basis of a position on civil liberties, and to guide official policy on the use of criminal sanctions, quite independently of unresolved debates about particular methods.
Our argument is that a rational and humane approach to heroin can eliminate the pressure to invade civil liberties; and that respect for civil liberties, including the repeal of possession laws and the opening of legal routes to medical and social treatment, can form part of a more promising integrated approach to heroin. Narrowed scope for enforcement activity has as its other side the removal from enforcement agencies of the unfair burden of solving a social problem by police methods.
We agree with the Narcotic Addiction Foundation of British Columbia that the present activities of relevant agencies (including the police, correctional institutions, treatment facilities, the medical profession, social work agencies, and the administration of licensing and control) are chaotically unrelated. It also seems probable that treatment facilities deserve enormously increased financial support. But we wish, in opposition to the Foundation’s view, to argue that the drug user must be made less subject to legal coercion rather than more. We see the increased health and welfare effort, recommended by all, as part of a different strategy of control. The strategy can be outlined as follows:
a) The function of police enforcement against distribution and trafficking should be defined as that of holding the line, while other agencies address themselves to the solution of the problem. It should be frankly admitted that a necessary condition of eradicating this profitable enterprise is to destroy its market. This is not a question of altering the law on illegal distribution and trafficking, but only of making clear that it is not reasonable to expect enforcement agencies either to cure addiction or to eradicate trafficking on their own.
b) The main direction of coordinated effort should be to maximize the opportunity for voluntary treatment and rehabilitation, with full involvement of the medical and other professions, while accepting the necessity, where it is found, of maintaining addicts or providing them with chronic medical care indefinitely. No assumption need be made about the size or nature of the hard core problems of addiction and criminality which would persist. The object is to secure what gains are possible, and to be able to isolate and study the residual problems.
c) The resulting problems of controlling treatment, whether clinical or private, and of regulating the legal sources of supply, should be accepted as the lesser of evils. Such control will be imperfect; but overall distribution will be much reduced.
d) Success of this approach within Canada might create problems of addict migration, especially from the United States. Efforts should be made to negotiate the cooperation of American authorities, but in the event that their reaction is to bring pressure against reform here rather than to engage in it themselves, these problems too must be accepted as a worthwhile cost of the overall strategy.
So many recent studies have provided factual and balanced assessments of the dangers of marijuana use that it is not necessary for our Association to develop an independent argument about that; it will be sufficient to quote the conclusions of some relevant authorities. The live issue is just what legal control should govern marijuana after the legislative reform that is obviously needed.
The BCCLA accepts the position set out in the report of the Drug Habituation Committee of the B.C. Medical Association adopted in 1967:
A more appropriate legal control [of marijuana] than the one presently in force would be control of its distribution in much the same way as alcohol is controlled. It may well be that this control should be exercised through the medium of some government agency such as a Marijuana Control Board.
British Columbia Medical Journal, Vol 9, September 1967, p. 313
Marijuana should, accordingly, be removed entirely from the Narcotic Control Act. As a food and drug matter, various means can be considered to protect juveniles and to warn adults of the properties of marijuana. But it would be consistent with these aims for the law to recognize the right of the adult to use or buy marijuana.
Of the risks of marijuana use, as assessed by reputable authorities, none can be regarded as very great. If some of the same authorities have advocated stringent control, it has not been in consequence of their medical or sociological opinions but rather of their paternalistic social philosophies. Perhaps the only issue still worth commenting on is the claim that marijuana users progress to heroin.
In the Cannabis Report by the Advisory Committee on Drug Dependence in England (1968), headed by Baroness Wooton, a table on p. 8 clearly illustrates that criminal proceedings have very little if any deterrent effect on marijuana use, and on p.13 the Committee concludes that “a risk of progression to heroin from cannabis is not a reason for retaining the control over the drug”.
The Task Force Report: Narcotics and Drug Abuse (The Presidents’ Commission on Law Enforcement and the Administration of Justice, Washington, 1967) says at pp. 13-14:
There is evidence that a majority of the heroin users who come to the attention of public authorities have, in fact, had some prior experience with marijuana. But this does not mean that one leads to the other in the sense that marijuana has an intrinsic quality that creates a heroin liability. There are too many marijuana users who do not graduate to heroin, and too many heroin addicts with no known prior marijuana use, to support such a theory. Moreover there is no scientific basis for such a theory. The basic text on pharmacology, Goodman and Oilman, The Pharmacological Basis of Therapeutics (MacMillan 1960), states quite explicitly that marijuana habituation does not lead to the use of heroin.
The most reasonable hypothesis here is that some people who are predisposed to marijuana are also predisposed to heroin use. It may also be that through the use of marijuana a person forms the personal associations that later expose him to heroin. The World Health Organization remarks:
Abuse of cannabis facilitates the association with social groups and subcultures involved with more dangerous drugs, such as opiates or barbiturates. Transition to the use of such drugs would be a consequence of this association rather than an inherent affect of cannabis.
Wooton Report, Appendix
To the extent that such associations might be expected to lead to such transitions, or can be locally observed to do so, we have a clear argument for reforming the law in the way we recommend. In order to get the marijuana user and the marijuana seller out of the criminal subculture, the first step is to take both the user and the seller out of the class of criminals.