The following submission was made in December 1995 to the Senate Standing Committee on Legal and Constitutional Affairs regarding Bill C-7, the Controlled Drugs and Substances Act. Our brief is divided into two parts: Part I deals with specific aspects of the Bill while Part II explains our general opposition to the criminalization of drug use, production and distribution. As is more fully developed in Part I, the B.C. Civil Liberties Association has opposed the criminalization of possession, production or distribution of marijuana for over 25 years. Our comments regarding the specific provisions of Bill C-7 should be read with this fact in mind.
Specific Comments Regarding Bill C-7
Criminal Records
The BCCLA supports the amendments to Bill C-7, now before the Senate, to the extent that they will prevent those convicted of possession of marijuana from having a traceable criminal record.
We understand that this will be accomplished by making possession of under 30 grams of marijuana or less than one gram of cannabis resin a summary conviction offence rather than a hybrid offence, as under existing law. Law enforcement authorities will thus not be authorized to collect fingerprints under the Identification of Criminals Act, as this Act has been interpreted by the courts.
Notwithstanding our support above, we believe that the proposed law will have only a limited effect in preventing the negative impacts of a charge or conviction of possession of marijuana. We perceive several problems with this approach. First, a record of a conviction will continue to exist even though it may not be accessible under the Canadian Police Information Centre (CPIC) data base. American or other authorities may still be able to obtain from their Canadian counterparts information regarding convictions or charges.
Second, we are fearful that law enforcement authorities will, on occasion, continue to fingerprint, even if not authorized to do so. Our experience with authorities indicates a predisposition towards creating traceable records; this attitude will likely continue despite any changes in the law. Significant education of police authorities, together with auditing, will need to be done to ensure that such unauthorized fingerprinting (and creation of traceable criminal records) does not occur. We are skeptical that such “quality control” initiatives will be implemented.
Third, in examining the practical benefits of the proposed amendments, the Association queries whether these provisions would prevent someone who was convicted from being stopped at the American border. If American authorities obtain information regarding an arrest or conviction, it is likely irrelevant to them that the person has no record available on the CPIC database. As noted above, while this change may make it more difficult to determine whether a person has in fact been convicted of possession, it still may be possible to get this information, either directly from the person or indirectly through Canadian authorities outside of CPIC. More specifically, American authorities may require persons seeking to enter the U.S. to report convictions or arrests for possession of cannabis. Of course, those who have been arrested or convicted would not have to tell the truth; but they would be faced with the difficult dilemma of breaking American law in order to possibly avoid detection. In that sense, even if the Bill has some limited beneficial impact, it may place individuals in even greater jeopardy given that they, if asked, risk being caught if they do not tell the truth.
Ultimately, as set out in Part II of our submission, the Association is opposed to the criminalization of possession, production or distribution of marijuana. To that degree, we naturally perceive the tinkering found in Bill C-7 to be inadequate from a civil liberties perspective.
Sentencing
We have several concerns regarding section 10 of Bill C-7.
First, the Association finds that the designated purpose of sentencing is too vague and ambiguous to be of assistance to a court of law or legal counsel in sentencing proceedings. Further, we question whether the purpose as articulated in section 10(1) is even relevant for specific offences. For example, it is difficult to understand how section 10(1) applies to a person convicted of simple possession of cannabis, since there is no “harm” done to “victims and the community” by possessing the substance.
Second, the Association finds that the wording in section 10(2) too vague. For example, in section 10(2)(a)(iii), a person may have no intention to traffic drugs to school children or minors, yet may sell drugs in an area near a school, which would appear to be enough under the legislation to make a finding of an aggravating factor. In fact, even if a person took care to ensure that no customers were minors, that fact would be irrelevant in determining whether an aggravating factor exists. To that extent, this provision is deficient and should be changed to require that the Crown establish that the person ought to have known or suspected that customers were minors. Though we understand and support the intent of this provision (see Part II, where we suggest distribution of cannabis to children should be prohibited), we believe that the means chosen for sentencing of those who sell to minors too broad.
Third, with respect to section 10(3), the Association believes that this provision is contrary to the traditional principle that the court has discretion to sentence. While we believe that it may provide some measure of accountability, it may do so at the expense of undermining the court’s traditional discretion to sentence. This provision suggests that the imprisonment should be the appropriate sentence if there is an aggravating factor. We believe that this suggestion runs contrary to the discretion the court has traditionally exercised in determining an appropriate sentence.
Search and Seizure
The Association finds that Part II of the billv which deals with search and seizure is, to a large extent, a codification of the common law. We have only a few comments to make.
First, we suggest that the bill clarify that, in section 11(3), any justice who is reviewing a warrant granted in another province, retain the discretion not to endorse the warrant if, in his or her opinion, there is not an adequate basis to grant the warrant according to law.
Second, under section 11(7), the bill should be amended to require that the peace officer provide evidence of reasonable grounds for concluding that there were exigent circumstances for foregoing the requirement of obtaining a search warrant in order to exercise a power in sections 11(1), (5) or (6). Where the peace officer does not do so, it would open to defence counsel to apply for exclusion of such evidence, with a final determination to be made by the court according to law.
Third, we are concerned that the definition of “offence related property” is too broad since it refers, in paragraph (b) of the definition, to any property “that is used in any manner in connection with the commission of a designated substance offence…” Almost anything used in connection with an offence, no matter how remotely connected to the offence, could be subject to seizure. Given that under section 11(6)(c), it is a peace officer rather than a court that makes this assessment, we believe that there is significant danger of inappropriate seizure of property.
Finally, we are concerned that police are given greater powers of search and seizure in specific circumstances. For example, under Bill C-7, police can seize any property, excepting real property, used in relationship to possession or trafficking in drugs, and can confiscate real property if that property was built or significantly modified in order to carry on drug related activities. Under this provision, the police could conceivably confiscate a house in which a few plants were grown if, in their judgment, the house contained a greenhouse constructed in order to grow marijuana.
Medicinal Use of Marijuana
Bill C-7 makes no provision for improving the medical profession’s access to marijuana for medicinal uses, despite mounting knowledge of beneficial uses of the substance. Like the preceding law, the bill includes a clause that allows the Minister to make exemptions for medical or scientific purposes; but the process of getting such exemptions is so lengthy and complicated that doctors in fact rarely bother to do so for the benefit of their patients.
Part II: BCCLA General Opposition to Using the Criminal Law to Prohibit the Use/Production/Distribution of Marijuana
In the Association’s opinion, Bill C-7 does little to improve the status quo, and in some respects we fear it moves, or could be used to move, towards an American style war on drugs, resulting in putting more persons into prisons, and spending more of the country’s resources on prisons. The consequence is to sacrifice Canadian civil rights to use what medical research has found to be a substance less harmful than alcohol to the American pressure to have its near neighbour conform to the International Conventions it espouses.
This bill should not be passed; what should happen instead is the decriminalization of marijuana. The arguments the BCCLA made in 1969 against the criminalization of marijuana use still obtain. In that year the Report of the Ouimet Committee on Corrections set forth three conditions under which an act should be defined as criminal:
that it can be shown to be “substantially damaging to society”; that it demonstrably cannot be “dealt with by non-criminal legal processes”; and that it does not “give rise to social or personal damage greater than that it was designed to prevent”.
The criminalization of marijuana use, possession and distribution violates all three of these criteria. That the use of marijuana by adults does not substantially damage society, either indirectly by causing harm to the individuals who use it or directly, has been demonstrated by various studies, summarized by Paul Hager for the Indiana Civil Liberties Union in 1992.
The myths that marijuana causes brain damage, or injures the reproductive and immune systems have no foundation in fact; nor does it flatten brain waves, or impair short term memory beyond the time of its immediate impact. There is no indication that its use endangers society, for it has been shown to be less addictive than tobacco; it is not associated with violence, and while it is undesirable to drive while stoned, doing so causes fewer accidents than does drunk driving.
That its use by adults does not damage society has been made all the more obvious by the fact that in the all the intervening years during which it has been widely used, there is no indication that adults who use marijuana are thereby incapacitated from fulfilling their responsibilities, either in the work place or in the home. Unlike alcohol, marijuana does not encourage people to go on binges, during which they cease to perform their duties. Neither is there evidence that children suffer from their parents’ use of marijuana in the way that children of alcoholic parents suffer when a drunken parent seems to them suddenly to become a different, frightening and often violent person. There has not been a need for groups, such as Alanon, to deal with the damage done to children by parents who smoke marijuana.
It has been counter-argued that the marijuana available today is much stronger than that used previously; however, there has been no evidence that this stronger strain poses any greater dangers. (Since people using marijuana smoke typically only as much as they need to get high, it follows that they would smoke less of the stronger substance.)
Since using marijuana does not pose a danger to the user, nor to the medical system since it does not result in physical or mental disability, nor to the families of those who use it, the argument that adults should have the right to buy and use marijuana is even more compelling than that for the right to buy and use alcohol.
The Cain Report produced for the Chief Coroner’s Office of British Columbia in September 1994 recommended that the “Ministry of the Attorney General enter into discussions with the Federal ministers of Justice and Health on the propriety and feasibility of decriminalizing the possession and use of specified substances” by people addicted to those substances, and also there be serious inquiry into “the merits of legalizing the possession of some of the so-called soft drugs such as marijuana”. Clearly, there now is even more institutional support to legalize marijuana.
Any dangers that do result from the legal presence of marijuana in our country can and should be dealt with by non-criminal processes. The most obvious danger posed to society derives from use by children, for steady use by children is perhaps more seductive than alcohol consumption, and might seriously interfere with their education and induction into the normal modes of functioning in our society. However, it does not follow from this that it should be criminalized.
Rather, in accordance with the second principle regarding what actions should be criminalized, parents should be made aware of the need to restrict the use of marijuana by the young, and legislation should prevent its being sold to them. This goal could be achieved if society decriminalized marijuana.
Under the present circumstances, many children who obtain marijuana are brought into association with the underworld of drug and criminal culture, and there is no effective way to prevent their exposure to this aspect of society. Harsh law enforcement did not prevent children from using marijuana in the 1960s, and there is no reason to think that it will do so now.
Furthermore, while it may be that marijuana use in itself tends to undermine children’s desire to achieve, it may also be the case that the social milieu that is associated with the illegal use of marijuana contributes as much or more to undermining their motivations to win ordinary social approval.
Were marijuana legal, and controlled in a way analogous to the way liquor is controlled, perhaps through a branch of the Liquor Control board, some children would undoubtedly still find ways to obtain it despite prohibitions, just as they now obtain alcohol and cigarettes. However, we would argue that this effect would then be considerably less damaging than exists now, where the use of marijuana has the allure of the exotic, associates children with a criminal sub-culture, and encourages disrespect for the law as such. Furthermore, legalizing marijuana would be particularly beneficial to disadvantaged children, who are more likely than others to move from marijuana to hard drugs once they are brought into contact with the drug sub-culture.
If marijuana possession and use were decriminalized there would be little profit in selling it illegally on the streets, and it would be easier to keep it out of children’s hands. Ironically, the present criminalization of marijuana makes children more rather than less vulnerable to marijuana abuse.
Some of the popular fear of decriminalizing marijuana is based on the slippery slope argument, according to which the use of marijuana leads inevitably to use of (and addiction to) heroin and cocaine. Not only is there no evidence of such a link, recent research has found that in those states which have legalized marijuana, use of hard drugs and alcohol declined.
Under the present conditions young persons who obtain marijuana illegally are likely to be in the same drug subculture as those who push heroin and cocaine. Such children would therefore be more rather than less likely to try other drugs than they would be were marijuana set apart from those other drugs by being legal. In order to get the marijuana user and seller out of the criminal subculture, the necessary first step is to decriminalize marijuana use, possession and distribution.
Despite the strong arguments that marijuana should be legalized, a subcommittee of the Standing Committee on Health and Welfare did not change it. In following the example of the American war on drugs, as Bill C-7 does, the net affect of this law would be to imprison more Canadians for minor offenses, many of whom would belong to poor and ethnic minorities, to increase the size of the drug culture, and to continue to unnecessarily spend more public money on law enforcement and the prison system that do not work. Furthermore, since experience has proved that the law is unenforceable, it would bring the law itself into disrepute.
It injures us in two further ways: the bill continues to prevent the medical profession from making use of the substantial medicinal benefits of marijuana, and it deprives the federal coffers of much needed tax dollars that could be collected on legalized marijuana. Since the weight of professional opinion of every kind leans towards decriminalizing marijuana, it is hard to understand why our legislators would advance so unproductive a proposal.
In conclusion, the continued criminalization of marijuana violates a most fundamental principle of democratic societies, classically enunciated by John Stuart Mill, that the law should not interfere in the private lives of citizens except to prevent clear and serious social harm that cannot be addressed in any other than by legal means.
Since there is no evidence of any social harm deriving from the use of marijuana, and there is no evidence that its use harms the user, we urge the Senate to consider amendments to Bill C-7 that would significantly reduce the reliance on the criminal law to prohibit the use of marijuana.
