Introduction

On behalf of the British Columbia Civil Liberties Association, I would like to thank the Special Committee on the Non-Medical Use of Drugs for the opportunity to appear before you today.

The BCCLA is Canada’s oldest and most active autonomous civil liberties organization. It has been operating as a non-profit society since 1963. It has roughly 1100 members from diverse backgrounds.

The BCCLA has an extensive record of advocacy in defence of the constitutional rights and civil liberties of British Columbians. The BCCLA participates in public education, debate on government policy and legislation and legal advocacy.

The BCCLA has a long history of involvement in the area of drug use and the criminal law. Specifically, its involvement in public debate in the area dates back to its 1969 submissions to the LeDain Commission of Inquiry Into the Non-Medical Use of Drugs. In 1995, the BCCLA made submissions to the Senate Standing Committee on Legal and Constitutional Affairs regarding Bill C-7, the Controlled Drugs and Substances Act. Copies of both of those submissions, as well as our 1979 paper, Notes towards a BCCLA Position on Cannabis Law Reform, have been provided to members of this Committee.

Since 1969, the BCCLA’s consistent position has been that the criminalization of the possession and use of drugs is unjustifiable and should be eliminated. As I will discuss in greater detail, the basis of our opposition to the criminal prohibition of drug possession and use is essentially two fold. First, the BCCLA believes that respect for personal autonomy demands that the State not interfere with the personal choices made by individuals for the purposes of imposing a particular morality upon them. Second, the BCCLA believes that the imposition of criminal law prohibitions can only be justified where the impugned conduct presents some serious risk of harm to others, or society as a whole. The evidence does not support the view that the use or possession of drugs does present the risk of such serious harm to others. In fact, our collective experience under our current criminal law regime proves that the harms associated with the criminalization of drugs far outweigh any harm that might be caused to society by the use of drugs in the first place.

Respect for personal autonomy

In the BCCLA’s view, the essence of a truly free and democratic society subsists in the liberty of individual citizens to make decisions for themselves about what constitutes the good life. Our courts have recognized this principle as one which underlies the Charter of Rights and Freedoms. As stated by Wilson J. in R. v. Morgentaler, [1988] 1 S.C.R. 30. “The state will respect choices made by individuals and, to the greatest extent possible, will avoid subordinating those choices to any one conception of the good life.”

We are each entitled to a sphere of privacy within which we can decide what we wish to believe and how we wish to behave. Within that private sphere we are entitled to make choices which others may disagree with and which may even be harmful to ourselves. As J.S. Mill wrote nearly a hundred and fifty years ago in On Liberty:

The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. (at p. 73)

Thus, to impose criminal sanctions on drug use is to interfere, in the most profound and invasive way which the State can, with a personal decision which is, most simply stated, none of the State’s business. To use the coercive power of the criminal law as a means of influencing individuals’ decision about whether to use drugs is unsupportable on the basis of respect for human dignity and autonomy.

The harm principle

Following upon the principle of respect for individual autonomy is the equally important principle that citizens ought to be subject to the criminal law only in circumstances where the conduct in question presents some serious risk of harm to others. Majoritarian opinions about the morality or immorality of a given act are no basis upon which to impose criminal prohibitions on such acts. While this principle finds its genesis as far back as the thought of Jeremy Bentham, a more modern expression of it may be found in the report of the 1969 Ouimet Committee on Corrections, Toward Unity: Criminal Justice and Corrections, in which the following three criteria were adopted for determining the proper scope of the criminal law:

• No act should be criminally proscribed 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 and economic condition.
• No law should give rise to social or personal damage greater than that it was designed to prevent. (at p. 12).

The application of these criteria to the possession and use of drugs leads ineluctably to the conclusion that their criminalization cannot be supported and that other mechanisms, such as education, prevention, treatment and harm reduction programs and regulation ought to be employed.

Turning to the first criterion, there is no persuasive evidence that drug possession or use, in and of itself, is substantially damaging to society. It is likely, in fact, that the evils which are sometimes commonly associated with drug use, such as criminality and other anti-social behaviour, are the result of the criminalization of drugs and the resulting criminal sub-culture. In the absence of solid proof that drug use itself is causing societal harm, the imposition of criminal penalties cannot be justified. In this connection it is important to bear in mind that the vast majority of those who use drugs do so on a recreational basis and are able to manage their drug use in a manner which does not interfere with their ability to conduct their daily lives. To impose a blanket criminal law on all those who use drugs because of concerns about the harmful effects of drug use by a small minority of users is wrong as a matter of criminal law policy. If there is persuasive evidence of substantial societal harm related to particular drug related activity then the law should target that activity and only that activity. Thus, for example, the law can and should criminalize the act of driving a motor vehicle while impaired by drug use.

The second criterion has a clear role to play in any discussion of the appropriate societal response to drug use. Society can and should institute programs designed to educate the public about drug use, treatment and rehabilitation programs for those individuals who wish to participate in them and harm reduction programs to mitigate the potentially personally harmful effects of some forms of drug use, including for example, needle exchange programs and safe injection sites. Mention must also be made in this connection of social programs designed to target the underlying social and economic causes of drug abuse.

Finally, the third criterion also has special relevance to the question of the criminalization of drug use. This Committee is already familiar with some of the deleterious effects of the criminalization of drug possession and use. These include:

• the imposition of criminal records which can haunt a person in many areas of life, including obtaining employment and travel abroad;
• the creation of a criminal drug sub-culture in which users are forced to associate with criminals in order to obtain their drug of choice;
• the maintenance of a lucrative criminal drug distribution industry with all of its attendant vices;
• the creation of a marginalized class of persons who may have difficulty accessing necessary health care and other public services;
• vast expenditures of financial, structural and human resources in the so-called “war on drugs”, resources which could be better utilized to deal with the underlying social and economic causes of drug abuse and to assist those addicts who wish treatment;
• the authorization of extensive police intrusion into the private lives of citizens in order to investigate and prosecute drug offences;
• increased health risks to users due to the lack of any governmental quality control or monitoring of illegal drugs;
• the inability of the taxation system to tax the revenues of the trade in drugs;
• the risk of arbitrary, capricious or discriminatory application and enforcement of the law; and
• where discretion is employed not to prosecute drug offences, a contribution to a general lack of respect for the law and those charged with enforcing it.

Quite simply the personal and societal costs of the continued criminalization of drug use and possession far outweigh any hypothetical benefit to be derived therefrom. The criminal prohibition on drug use is not working. It is long past time to try another approach.

Conclusion

The BCCLA is heartened to see the growing appreciation among politicians of all stripes and at all levels, as well as within the population at large, that the traditional prohibition model of dealing with drug use is not working. This Committee, in particular, is to be congratulated for its willingness to examine all of the underlying issues related to the non-medical use of drugs in Canada and to look at innovative policies to address those issues.

One need look no further than the recent testimony of Inspector Kash Heed, Commanding Officer of the Vancouver Police Department’s Vice and Drug Section, before the Special Senate Committee on Illegal Drugs, in which he testified that the Vancouver Police Department has, as a matter of policy, chosen not to pursue simple possession charges for all drugs, and in which he urged the removal of criminal sanctions for marijuana use in particular, to see how widespread the understanding is that criminalizing the use of drugs is bad public policy.

On a daily basis we see stories in the media about the need for safe injection sites or the inadequate resources being devoted to the prevention of drug abuse and treatment for addicts. These are important issues, and they need to be addressed. But it is the BCCLA’s sincere hope that this Committee will take advantage of the present opportunity to make recommendations for principled and systematic reform of our nation’s drug laws, reform which will see the removal of all criminal sanctions for drug use and possession as part of a larger strategy to deal with the issues raised by the use of drugs in our society.

Submitted by Lindsay Lyster, Policy Director,

on behalf of the British Columbia Civil Liberties Association