The BCCLA first submitted its position on cannabis to Parliament almost exactly 34 years ago, on October 30, 1969, in connection with the Le Dain Commission inquiry. Then, as now, we argued that the continued prohibition of cannabis offends deeply rooted civil liberties principles of freedom and personal autonomy. Then, as now, we urged Parliament to use the standard of harm as a benchmark for the invocation of the criminal law; only activities that present a risk of significant harm to society ought to be the subject of criminal sanction. Ultimately, the Le Dain Commission recommended reforming the law by, among other things, entirely removing the prohibition on possessing and cultivating cannabis for personal use.
Unfortunately, more than thirty years after the Le Dain Commission recommended changing the law, no progress has been made. During that time, hundreds of thousands of Canadians have had their lives disrupted, their futures threatened and their freedom restricted. Research has demonstrated that many of the arguments in favor of cannabis prohibition are fallacies; yet they persist and are repeated as truths. Reform has been proposed, repeatedly, and yet has never come to pass. In the meantime, the investigations, indictments and incarcerations continue unabated, save for a brief period of true legalization this past summer in Ontario (and elsewhere) that came not as a result of legislative leadership, but instead from the courts. Parenthetically, despite months of legalization, the sky did not fall in Ontario; usage rates did not jump dramatically, people did not pass through the mythical gateway into heroin use and thousands of people did not take to their cars and drive erratically through the streets.
The BCCLA supports decriminalization of cannabis. But we support only true decriminalization. This means ending all criminal sanctions associated with cannabis. We further support outright legalization and regulation of the industry. What we cannot support is legislation that, though billed as decriminalization, has the potential to do more harm than good. We fear that Bill C-38 is just such a counter-productive law.
Our submission will consist of three parts. First, we will very briefly rebut the typical prohibitionist arguments against reform. Next, we explain our concerns with the provisions of this Bill, and media reports of amendments that may be sought. Finally, we conclude by offering suggestions for true reform.
Prohibitionist Mythology
The rhetoric often advanced by opponents of reform, unfortunately, has significant public appeal. This is because the speakers are often cloaked in the respectability offered by their positions as members of law enforcement or, for that matter, members of Parliament. But an attractive cover belies the paucity of logic and scientific support for the views expressed.
Cannabis is a “gateway” drug that causes users to try other, more dangerous, drugs.
This myth is perhaps the most widely circulated reason for continued prohibition of cannabis. The gateway myth has been propagated to this committee by law enforcement, and even by some members. In his book “Understanding Marijuana,” author Mitch Earleywine summarizes the results of literally hundreds of studies of cannabis. The conclusion is that “[t]here is no evidence that cannabis creates physiological changes that increase the desire for drugs. The idea that marijuana causes subsequent drug use also appears unfounded…only a minority of marijuana smokers try cocaine, crack or heroin.” (1) The gateway myth has been refuted over and over again.
But there is a true gateway effect associated with cannabis. People who, as a result of prohibition, are forced to purchase cannabis on the black market are much more likely to come into contact with other drugs. The Netherlands recognized this truth long ago and, in an effort to stem a growing problem with injection drug use, essentially legalized the sale of cannabis in established coffeshops. The result was a break between the cannabis and hard drug markets with a corresponding decline in the number of new hard drug users. Indeed, in 1999 the average age of a heroin addict in the Netherlands was 36 and the total number of addicts, despite ready access to cannabis (the supposed gateway drug), had remained constant for years. (2) The solution to cannabis’ gateway effect is not continued prohibition (indeed, that is the problem) but rather legalization and regulation of the industry.
Decriminalization, or legalization, will lead to increased use and thereby harm society.
Both premises in this statement are faulty. It is far from apparent that decriminalization leads to increased use. But even assuming that use rates would rise, the overall harm to society decreases when prohibition of cannabis is removed. Increased use simply does not translate into increased harm. Proper cannabis use is relatively harmless.
International treaties prohibit cannabis reform.
This topic was, I believe, adequately addressed on your first day of hearings by representatives of the Department of Foreign Affairs and Trade. Simply put, Canada is able to decriminalize possession with no international ramifications. Moreover, as our system of government embodies constitutional principles of freedom, autonomy and a limiting the criminal law punish only offences that cause significant harm to others (not oneself), it is arguable that outright legalization would similarly not violate international treaties.
Finally, the BCCLA submits that other international agreements, such as the conventions on human rights to which Canada is a signatory, auger in favor of ending prohibition. If the prohibitionist treaties we signed prevent reform that will benefit Canada and its citizens, then we ought to remove ourselves from the agreements. The agreements have provisions allowing Canada to opt out. For a more detailed analysis, I recommend the report of the Senate Special Committee that investigated cannabis prohibition.
Reform would “send the wrong message” to our youth.
The BCCLA submits that we are currently sending our youth the wrong message. When we lie to them about the purported dangers of cannabis, we send a message that deception is acceptable. When we incarcerate people for activity that harms no one but themselves (if that), we send the message that freedom and personal autonomy are of secondary importance to waging a pointless and ineffective battle against a simple plant.
By contrast, true reform would send a very powerful and very positive message. It would tell our youth that we value personal autonomy and decision making. It would tell our youth that we are unafraid to risk our neighbor’s displeasure when we disagree with their failed and counter-productive policies. It would send our youth the message that unjust laws can be changed. Finally, it would let our youth know that the persecution of a group of people as a result of private activity that causes no harm to others is unacceptable in a society that values freedom.
Problems with Bill C-38
The proposed legislation is problematic for several reasons. Worse, amendments have been suggested that take this flawed law and make it dramatically worse. In the opinion of the BCCLA, the Bill, as it stands, has the following difficulties:
The Net-Widening Effect
The principal problem with Bill C-38 is that it will almost certainly lead to increased enforcement and, therefore, increased citizen contact with the criminal justice system. Results from a system of fines imposed in South Australia demonstrate that contacts with the criminal justice system increased dramatically mainly due to the greater ease associated with ticketing:
The CEN scheme in South Australia had a major unanticipated effect on rates of minor cannabis offence detection. The number of offences for which cannabis expiation notices were issued increased from around 6,000 in 1987/88 to approximately 17,000 in 1993/94 and subsequent years (12). This “net-widening” is not related to any change in the pattern of cannabis use, but reflects the greater ease with which police can process minor cannabis offences, and a shift away from the use of police discretion in giving offenders informal cautions, to a process of formally recording all minor offences.(3)
Simply put, there is no good reason why anyone using or possessing small quantities of cannabis, in of it itself, ought to have any contact with law enforcement or the courts. While a fine is preferable to jail, the current reality is that the burdens associated with prosecuting cannabis possession offences, and the relatively minor penalties doled out by the courts, make law enforcement unwilling to spend the time needed to arrest someone for simple possession. This, of course, is dependent on a number of factors (such as geographic location) and is far from an ideal system.
The imposition of fines, however, may lead to increased enforcement of the law. The BCCLA opposes any legislation that would cause more Canadians to be sanctioned for cannabis use and possession. We should be moving in the exact opposite direction.
Increased Penalties for Cultivation, and the Lack of a Personal Cultivation Exemption
Bill C-38 increases the maximum sentence for cultivation to 14 years imprisonment. This is a dramatic increase over existing law. Indeed, cultivation of cannabis would carry maximum penalties that exceed those for financing terrorism (4) (10 years), trafficking in illegal firearms (5) (10 years) and sexual assault (6)(10 years) . Does this legislature really intend to send the message to Canadians that growing cannabis plants is morally more repugnant than rape or terrorism?
Another significant problem with the Bill is that it allows the Crown to proceed by way of summary conviction, with an eighteen month maximum sentence, for persons charged with cultivation of three to twenty-five plants. This is problematic because current practice caps the penalties for most summary conviction offenses at six months. (7) This is particularly significant because persons are not entitled to a jury trial if the Crown elects to proceed by summary conviction.
Moreover, the lack of any exemption for personal cultivation creates a logical conundrum. The Bill purports to decriminalize personal possession, but provides no avenue for obtaining the now non-criminal substance without entering the black market. Much of the harm associated with prohibition could be mitigated if only the cultivation of cannabis for personal use was removed as a criminal offense.
The Contraventions Act and Criminal Records
Another significant problem with the Bill is that it attempts to achieve decriminalization by utilizing the Contraventions Act. The Contraventions Act is, however, not uniformly applicable to the provinces. Indeed, British Columbia is not a party to the Act. The Bill fails to address this problem and, therefore, for many Canadians the offense of cannabis possession remains punishable under the Criminal Code.
Moreover, the Bill fails to address the real-world difference between a record of a criminal conviction (which the Bill purports to dispense with) and a “criminal record” in the broad sense of the term. Canadians that are ticketed by law enforcement under the Contraventions Act do not simply pay a ticket and have their contact with law enforcement eliminated from the various databases, such as the PIRS system. Indeed, the Bill is relatively silent on this issue. The Bill is also silent on another issue of grave concern; amnesty and purging of criminal convictions for all Canadians prosecuted for cannabis.
Mandatory Minimum Sentences
The BCCLA wishes to focus its remarks on one proposed amendment, that imposing mandatory minimum sentences for cannabis offences. As representatives from the Department of Justice noted in their submission, mandatory minimums do not achieve their objectives (which, presumably, is deterrence, not simply punishment). Mandatory minimum sentences remove judicial discretion in sentencing, a cornerstone of our system. Mandatory minimums also move Canada closer to a prison society, such as that of the United States, which currently has the highest incarceration rates in the industrialized world.
Suggestions for Reform
The BCCLA, as it has for decades, believes that cannabis reform is necessary. This Committee should follow the recommendations proposed by the Senate Special Committee that examined this issue. True decriminalization would be a good first step toward the ultimate goal; legalization and regulation.
The continued criminalization of cannabis violates a 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 other than by legal means.
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. The BCCLA also 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 cannabis presents 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 cannabis far outweigh any harm that might be caused to society by its use.
It is far past time that the failed and dangerous prohibitionist policies of the past be discarded. Reform has been suggested, debated and recommended for over thirty years. Notably, throughout that period, retaining or enhancing the current prohibitionist regime has never been the recommendation of any commission inquiring into cannabis.
This Special Committee should suggest amendments to Bill C-38 that make it a true vehicle for significant reform. All cannabis offenses should be removed from the Criminal Code immediately, and Parliament should begin discussion of a workable and rational system of regulation.
1 Earleywine, M, “Understanding Marijuana” Oxford University Press 2002, p. 63-64.
2 Netherlands Ministry of Justice, Fact Sheet: Dutch Drugs Policy, (Utrecht: Trimbos Institute, Netherlands Institute of Mental Health and Addiction,1999), from the Netherlands Justice Ministry website at http://www.minjust.nl:8080/a_beleid/fact/cfact7.htm.
3 Eric Single, Paul Christie and Robert Ali, “The impact of cannabis decriminalisation in Australia and the United States” Journal of Public Health Policy, 21,2 (Summer, 2000) p. 157-186.
4 Criminal Code sec. 83.02.
5 Criminal Code sec. 99.
6 Criminal Code sec. 271.
7 Criminal Code sec. 787.
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