Submission on Bill C-7











SUBMISSION ON BILL C-7
The Controlled Drugs and Substances Act
National Criminal Justice Section of the Canadian Bar
Association

May 1994

The Canadian Bar Association/L’Association du Barreau canadien

902-50 O’Connor Ottawa, Ontario K1P 6L2
Tel.: (613) 237-2925 Fax: (613) 237-0185


TABLE OF CONTENTS

PREFACE
I. INTRODUCTION
II. LIMITATIONS OF CRIMINAL LAW WITH RESPECT TO DRUG
USE
A. Enforcement
Issues
B. Constitutional Concerns
III. ALTERNATE APPROACHES TO DEALING WITH DRUG
USE
A. Relationship Between Drugs and
Crime
B. Harm Arising from the Criminalization of
Drugs
C. International
Approaches
D. A New
Approach
IV. ANALYSIS OF BILL C-7
1. Creation of New
Offences;
2. Increases of
Fines
3. Fines and Imprisonment
Combined
4. Increased Terms of
Imprisonment
V. CONCLUSION
VI. SUMMARY OF RECOMMENDATIONS


PREFACE

The Canadian Bar Association is a national association representing over 37,000 jurists, including lawyers, notaries, law teachers, students and judges across Canada. The Association’s primary objectives include improvement in the law and in the administration of justice.

This submission was prepared by the Committee on Imprisonment and Release of the National Criminal Justice Section of the Canadian Bar Association. The Committee has been involved in numerous federal government consultations and has formally responded to several legislative initiatives. Among the Committee’s past work is a 1985 submission addressing “gating” or detention legislation; participation with the Correctional Law Review, which was coordinated through the Solicitor General’s Office to undertake a comprehensive examination of federal law impacting upon corrections and early release; preparation of the Canadian Bar Association’s response to the Archambault Report; representation of the Canadian Bar Association’s views of the Association regarding the Green Paper, produced in 1990 by the Department of Justice and the Solicitor General.

This submission was reviewed by the National Criminal Justice Section of the Canadian Bar Association, which is composed of both defence and Crown counsel. National Office assistance was provided by the Legal and Governmental Affairs Directorate (Legislation and Law Reform).

This submission has been approved as a public statement of the National Criminal Bar Association.

SUBMISSION

I. INTRODUCTION

Bill C-7 repeals the Narcotics Control Act and parts III and IV of the Food and Drugs Act, combining the two acts into one. Bill C-7 generally consolidates and often increases the penalties already in force under the existing legislation. It also creates new offences related to stimulants and hallucinogens, allows for the control of substances readily used to manufacture psychoactive substances, and articulates government powers in relation to the seizure of property and profits arising from the sale of drugs.

The National Criminal Justice Section of the Canadian Bar Association opposes the passing of Bill C-7. The Section believes that the criminalization approach to drug control has proven ineffective for decreasing drug use, reducing crime, or improving health status in the general population. Many of the changes introduced in the Bill could result in a significant increase in the rates of incarceration in Canada as well as in the length of sentences. This approach places additional stress on an already overburdened criminal justice system, and draws resources away from criminal activities demanding more urgent attention.

The National Criminal Justice Section views the purpose behind Bill C-7 as being misguided. Rather than increasing penalties for drug-related offences, we should instead acknowledge the fact that criminalization has not achieved the desired results. A more appropriate approach would be to emphasize a national concern for health, focussing on prevention and treatment, while simultaneously minimizing the use of incarceration for drug offences that cause no evident harm to persons other than the user. Criminalization is the solution only when drug use causes harm to others, or to society in general, and when such harm is claimed, it should be demonstrable by cogent evidence, bearing in mind the liberty interests at stake.

This submission first outlines the limitations of the criminal law with respect to drug use, and considers alternative approaches to dealing with the use of drugs. it then provides an analysis of specific clauses of Bill C-7 and details the recommendations of the Association.


II. LIMITATIONS OF CRIMINAL LAW WITH RESPECT TO DRUG
USE

Over the past several years, the Canadian Bar Association has questioned the suitability of the criminal law to control drug use. In 1978, the Association adopted a policy statement that the possession and cultivation of marijuana for an individual’s own use, and the non-profit transfer of small amounts of the drug between adults, should be decriminalized. Four years earlier, the Association had passed a resolution stating that the controlled medical distribution of heroin to addicts by approved institutions should be allowed as an alternative to present methods of controlling and treating heroin addicts, and that a system of heroin maintenance be undertaken as a realistic method of diversion of drug addicts from the criminal justice system. The Association may review its earlier positions in the future to evaluate whether further changes relating to the use of prohibited substances should be considered in light of present day knowledge.


A. ENFORCEMENT ISSUES

Existing drugs laws do not impact uniformly on all drugs users, nor do they distinguish adequately between those offences related to drugs that cause harm to others or to society, compared to those offences that cause no harm, except possibly to the user. Statistics show that simple possession of marijuana, a drug that has now been widely used in Canada for several decades without evident detriment either to individual users or to Canadian society, accounts for a disproportionate number of drug convictions. The numbers also indicate that of drug users, a very small number of individuals ever confront the criminal justice system, and that those who do are disproportionately members of disadvantaged groups.

In 1980, convictions for possession accounted for 50% of all drug-related convictions, compared to 44% in 1981. In 1990 (the most recent statistics for convictions), 33% of the convictions for possession resulted in custodial
sentences(1).

The great majority of convictions for trafficking (82%) resulted in imprisonment, and more than half of those convictions, for terms in excess of 6 months. In 1990 alone, there were some 6,000 Canadians serving prison sentences in drug
cases(2) .

  • In 1990, 6% and in 1985, 6.5% of all Canadians aged 15 and over, or 1.2 million people, declared having used marijuana and cocaine, with as many as 20% in some age
    groups(3).

  • In 1990, 38,000 of them were convicted; in 1985, 43,000 (4). That amounts to 3% of all declared users.

  • One percent of all Canadians 15 years of age and over reported using cocaine in 1990 — some 200,000 people
    (5).

  • Five percent of them were charged and less than 6,000 convicted; that is, 3% of those who had declared using cocaine.

The above statistics indicate that only a small proportion of drug users face any consequences from the criminal justice system as a result of their drug use.

American studies report similar findings: “the U.S. Sentencing Commission has predicted that in 15 years the federal prison population will total 100,000 to 150,000 inmates, of whom one-half will be incarcerated for drug law
violations”(6). In recent years, police in the United States have made about 750,000 arrests for drug violations per year, and slightly over three-quarters of those arrested were for possession of an illicit drug. However, those arrested represent less than 2% of the 35-40 million Americans estimated to have used an illegal drug during the same
period(7).

According to the F.B.I., in 1992, 535,000 people were arrested for possession, sale or manufacture of marijuana, and six received life
sentences(8). Even if the life sentences were imposed for convictions on charges of manufacturing or sale, life imprisonment is an onerous sanction for any activity related to a substance known to be as harmless as marijuana. The Director of the Federal Bureau of Prisons reports that there has been an increase of 77% in the federal prison population between 1986 and
1992(9). The dramatic changes in inmate population primarily consists of drug offenders. Not only is there an increase in admissions for such offences, but a tripling in the average length of stay.

In 1980, about 25% of the sentence population was convicted of drug offences and by 1986, that number had increased to 38%. In 1993, over 60% of the federal prison population was convicted of a drug offence, and the Federal Bureau of Prisons expects that by 1997, the proportion of drug offenders in federal prisons will have risen to 70%. There is no evidence that this increase in incarceration has had any impact whatsoever on reducing the supply and demand of illicit drugs in the United States. To reduce the U.S. prison population, the Director recommends that drug sentences by reduced by 50% for first time offenders and 25% for other offenders, and further that this strategy should be made retroactive.

The Canadian Bar Association’s National Criminal Justice Section supports an approach that limits, rather than enlarges, the use of incarceration, and is of the view that the proposed legislation would only add to the inequitable application of existing legislation. The Bill would contribute to an increase in the number of Canadians serving prison terms for drug-related offences, and many of those convicted would serve longer prison sentences. Canadian citizens should be aware that the present annual cost of incarceration for one prisoner is $70,000 at a maximum security institution, $42,000 at a medium security institution, $36,000 at a minimum security institution, and $9,400 for a person on parole, and that only 10% of those amounts is directed towards
treatment(10).

RECOMMENDATION:

1. The National Criminal Justice Section of the Canadian Bar Association recommends that Bill C-7 not be enacted, as it furthers a model of dealing with drugs through criminalization and incarceration that has been proven ineffective and counterproductive.

B. CONSTITUTIONAL CONCERNS

Bill C-7 is sponsored by the Minister of Health and has been referred to the Standing Committee on Health. In the absence of any specific constitutional power in the federal government to legislate in relation to “health” and as the constitutional power to so legislate, absent a national public health problem, probably rests with the provinces, it is reasonable to assume that the federal government purports to rest the constitutional underpinnings of this legislation on the “peace, order and good government” clause.

The Canadian Bar Association accepts that the use and abuse of substances that can alter mental processes can be considered a health issue and that, under current law, the federal government has jurisdiction to pass laws regarding health under “peace, order, and good government” power of the
Constitution(11). Such regulation should be similar to that exercised in federal legislation relating to tobacco use, such as the Tobacco Products Control
Act(12). If the use or abuse by an individual causes little or no significant harm to others or to society as a whole, it is arguable a private matter that does not engage more intrusive legal requirements than laws to safeguard health, and in particular should not engage the weight of the criminal law and the drastic consequences to liberty of imprisonment.

On the other hand, if there is significant harm caused to others or to society as a result of an individual’s use of a particular substance, then the more profound the harm, the greater the justifiable engagement of the criminal law process. Such an approach is consistent with a central principle of penal law, which is that the imposition of that law should limit the impairment of individual rights as far as is possible, while simultaneously protecting the interests of society at large. However, this approach requires a great deal of care to distinguish between harm resulting because of the actual use of the substance and the harm resulting from the existing prohibitionist laws themselves. The National Criminal Justice Section views criminalization of the use or possession of substance which can not be cogently shown to cause harm to those other than the user to over reach federal jurisdiction to make laws under the “peace, order and good government” power in the interests of safeguarding health.

Bill C-7 continues a policy of “prohibition” with all of its attendant problems and consequences. It is an offence to possess a Schedule I or II substance and to possess for the purpose of trafficking or to traffic in a Schedule I, II, or III substance. It is an offence to import or export a Schedule I through V substance, to possess any of such substances for export or to produce a Schedule I, II, or III substance. It is also an offence to possess property obtained by any of these offences or to launder the proceeds of any of these offences. Furthermore, it is an offence to seek or obtain a substance or an authorization to obtain a substance listed in Schedule I through III from a medical practitioner without disclosure of the detail relating to the acquisition of every substance or authorization to obtain such substance from any other practitioner within the preceding 30 days.

In order to evaluate the constitutionality of the federal government’s use of the criminal law to control drug-related activity, it is necessary to consider the actual costs to society of drug use, and the dangers associated with each type of drug. Schedule I of Bill C-7 contains all of those drugs previously included in the Schedule to the Narcotics Control Act
(13), plus a few additions and deletions. These include opium, codeine, morphine, heroin, coca, cocaine, methadone and two non-narcotics, marijuana and hashish. There are an estimated 1.5 to 2.5 million users of
marijuana(14) in Canada annually, and the possibility of overdosing and dying from marijuana is virtually non-existent. Heroin, on the other hand, involves approximately 100,000 users with habits costing between $50 to $5000 per week and causes an estimated 100 deaths per year. Cocaine users are estimated to number between 300,000 to 500,000 per year, and the drug costs them between $10 and $5,000 per week. It is estimated that there are approximately 100 drug-related deaths from this drug per
year(15).

Schedule II to Bill C-7 consists primarily of those drugs contained in Schedule “H” to the Food and Drugs
Act(16). Those more commonly known are LSD, MDA, MMDA as well as psilocybin and psilocin. Significantly, amphetamine, benzphetamine, methamphetamine, methaqualone and methylphenidate, which were under Schedule “G” of the Food and Drugs Act are now included in Schedule II. Consequently, the possession of these drugs is now prohibited as Schedule II drugs, whereas such possession of these drugs is now prohibited as Schedule II drugs, whereas possession was not prohibited as Schedule “G” drugs under the Food and Drugs Act. LSD users are estimated at approximately 100,000 annually. The possibility of an overdose is non-existent and drug-related deaths per year from the drug are less than ten. It is estimated that there are approximately 100,000 users of amphetamines annually, and that their habits cost an average of $100 to $500 per week. Drug overdose deaths are possible and drug-related deaths are estimated at less than 100 per
year(17).

The statistics show that the danger or harm to public health from the drugs covered under Bill C-7 compared to alcohol and tobacco is relatively small, yet the criminal law is not used to prohibit the consumption of alcohol and tobacco. Section 4 of Bill C-7 states that the Act does not apply to nicotine (tobacco) or ethyl alcohol (alcohol) or prescribed substances. Canada reportedly has 16 million users of alcohol annually and an estimated 3,000 to 15,000 alcohol related deaths per year. There are 6 to 8 million users of tobacco annually, and tobacco causes an estimated 35,000 deaths per
year(18). Section 3 of the Tobacco Products Control
Act(19). also acknowledges the widely recognized dangers of tobacco, and sets out the purpose of that Act as follows:

3. The purpose of the Act is to provide a legislative response to a national public health problem of substantial and pressing concern and, in particular,

  1. to protect the health of Canadians in the light of conclusive evidence indicating tobacco use and the incidents of numerous debilitating and fatal diseases;

  2. to protect young persons and others, to the extent that is reasonable in a free and democratic society, from inducements to use tobacco products and consequent dependence of them; and

  3. to enhance public awareness of the hazards of tobacco use by ensuring the effective communication of pertinent information to consumers of tobacco products.

The National Criminal Justice Section doubts the existence of similar “conclusive evidence” implicating the use of the drugs in the Schedules to Bill C-7 to numerous “debilitating and fatal diseases”. Without such conclusive evidence, the use of the criminal law to control those drugs, but not tobacco and alcohol, over reaches federal jurisdiction to make laws intended to safeguard health under the peace, order and good government clause of the Constitution, and requires an explanation. A consistent approach to the use of all non-prescribed drugs in Canada is the challenge. The Section acknowledges that through education and taxation, Canada has become one of the leading countries in reducing tobacco consumption. This has been accomplished without charging, convicting and putting people in jail, and consideration of similar methods to control the use of other substances should begin.

The National Criminal Justice Section questions the ability of the federal government on legal and constitutional grounds, as well as the reasonableness on administrative and social policy grounds to pass laws in the name of health under the “peace, order and good government” clause of the Constitution using the criminal law and all of its attendant powers. Jurisdiction is even more questionable if the Bill attempts to catch in its net “non-scheduled substances” that may be deemed to fall within the Bill at some point in the future. The explanatory notes for Bill C-7 state that among the major elements of the Bill is a framework that, “(a)part from controlling scheduled substances, . . . provides for the control of non-scheduled substances if they fall within the parameters of the enactment.” The National Criminal Justice Section opposes provisions allowing for indefinite additions to the list of drugs in each schedule without legislative amendment. A fundamental legal principle is that citizens must know what the law is beforehand, so that they can govern their behaviour accordingly.

Further, section 3(1) of Bill C-7 leaves the identification of prohibited substances an open-ended proposition, and states that:

(1) For the purposes of this Act, a substance included in schedule I, II or III, shall be deemed to include any substance

  1. that is produced, possessed or provided by a person who intends that it be introduced into the body of another person for the purpose of producing a stimulant, depressant or hallucinogenic effect substantially similar to or greater than that of a substance included in schedule I, II or III, and that, if so introduced, would produce such a substantially similar or greater effect; or

  2. that is represented or held out to produce, if introduced into a human body, a stimulant, depressant or hallucinogenic effect substantially similar to or greater than that of substance included in schedule I, II or III.

The National Criminal Justice Section opposes criminalizing activities related to substances which are as yet unnamed, and believes that a prohibition should specify exactly what activity or substance is forbidden. The Section recommends that Bill C-7, s. 3(1) be amended in order to avoid allowing substances to be criminalized without resort to an elected body.

RECOMMENDATION:

2. In the alternative, and if the government decides to enact Bill C-7, the National Criminal Justice Section of the Canadian Bar Association recommends that Bill C-7 be amended to specifically identify all substances to which its prohibitions apply.

The National Criminal Justice Section of the Canadian Bar Association strongly recommends that the Canadian government reevaluate Bill C-7 and instead adopt a rational new approach that focuses on diversion, harm reduction and health, and away from policing and the weight of the criminal justice system, with all its attendant costs, financial and otherwise.

III. ALTERNATIVE APPROACHES TO DEALING WITH DRUG USE

A. RELATIONSHIP BETWEEN DRUGS AND CRIME

In considering alternative approaches to dealing with drugs we must also take into account the relationship between drug abuse, prohibition, and crime. Crime includes not only those activities expressly prohibited by the relevant drug legislation, but also includes crimes arising as a result of disputes between those in the illegal drug trade, often resulting in violence because access to the peaceful processes available to others in business are unavailable. Other crimes, such as soliciting and theft, are committed by drug users in order to obtain the large amounts of money required in a black market to sustain their addiction. Both of these factors are direct consequences of prohibition and run contrary to the interests of public health.

A more complex issue is whether the intoxicant properties of drugs facilitate crime. In Statistics Canada’s National Violence Against Women Survey (1993), at least 29% of the women victimized by a partner cited alcohol as a precipitating factor, while only 1% mentioned other drugs. The survey also revealed that wife assault was more harmful when alcohol was involved. Over 56% of violent men were drinking at the time they physically injured their spouses and 47% inflicted injuries required medical attention. 66% of those accused of murder in 1991 and 1992 were known to have consumed alcohol, 27% alcohol in combination with another drug, and only 7% involved another drug without alcohol. 52% of federal inmates reported being under the influence of drugs when they committed at least one of the crimes on their current sentence, but 44% had consumed only alcohol, 27% alcohol and another drug, and 29% had consumed another drug
alone(20).

B. HARM ARISING FROM THE CRIMINALIZATION OF DRUGS

Studies suggest that alcohol is a far greater threat to public health and safety than other drugs. Yet, the full weight of the criminal law is not used for possession and use of alcohol, nor is consumption of alcohol considered a “national public health problem of substantial and pressing
concern”(21). The government uses the criminal law to enforce legislation pertaining to tobacco, as it does with other drugs. However, there is no prohibition against possession, use , or consumption of tobacco, or indeed against actually selling or otherwise distributing tobacco products so long as one does not do so for
free(22). The National Criminal Justice Section of the Canadian Bar Association again questions the approach to the drugs referred to in Bill C-7 and seeks a cogent explanation for the different approaches to drugs causing more serious health consequences in Canadian society, namely alcohol and tobacco.

By treating prohibited substances in a manner similar to the treatment of tobacco under present legislation, billions of tax dollars would be shifted from organized crime to the government, many more dollars currently spent on drug enforcement and incarceration would be saved, drug production and sale could be regulated making the products safer, crime committed to purchase drugs at high prices because of their illegality would be reduced, and drug treatment alternatives could be
offered(23).

A former Canadian drug enforcement agent recently wrote:

Over the period of my association with the illegal drug industry (25 years), literally billions of dollars have been spent in Canada in attempted enforcement of the Narcotics Control Act. A division of the Royal Canadian Mounted Police employs a huge cadre of highly trained officers who spend much of their working life sitting in court ante-rooms waiting to give evidence; and enormous number of other Canadians squander their lives behind bars either as regular inmates or their guards; and the poor addicts on the street provide a rich harvest for criminals at all levels, not to mention the legal profession which battens on the whole unsavoury mess.

It is hard to find any positive results with which to balance the equation. In fact the costs of our futile efforts to combat the evils of addiction if applied to the national deficit would go far to providing a society in which people would be less inclined to seek solace in mind-numbing substances.

What happened to the idea of supplying registered addicts with their poison of choice? At least it would remove the profit from illegal substances and deal a severe blow to crime at all
levels.(24)

Ottawa’s Chief of Police, Brian Ford, has made a similar call for change. For states “(i)s it really worth all the people getting hurt over marijuana and hashish? . . . With all the problems I see associated with the criminalization of soft drugs, it’s not.” He goes on to advocate pulling those two drugs out of the Criminal Code and regulating them as is done with alcohol and tobacco, saying that the existing criminal laws increase the violent crime associated with drugs more than they prevent
it(25).

A former officer in the London Drugs Squad compares drug policing to a bucket with holes into which infinite resources can be poured, and advocates a changed approach.

A change of policy must couple legislation with clear signals that many drugs are not socially acceptable, are not beneficial to health and are detrimental to educational achievement.

An alternative legislation policy separates user and supplier, removing the financial benefits to suppliers, as users graduate up the scale to more profitable categories of drugs.

We can reduce the crime rate and the numbers of secondary victims of drug habits while simultaneously removing the profit motive for organized criminals to enter the field.

We can, by quality control, reduce deaths. We can fund educational and supportive agencies from the savings on coercive control and get the message across to families and schools that compassion is better than the criminal
law.(26)

C. INTERNATIONAL APPROACHES

In several European countries, including England, Italy, Spain, and the Netherlands, a “harm reduction” approach to the treatment of drug use and related activities has begun. This approach concentrates on decreasing the negative consequences of drug use, and responding to those consequences, rather than focusing on reducing the prevalence of drug use through the criminal
law(27). In Italy, the government voted in 1993 to stop penalizing the personal use of drugs
(28). Spain has never penalized the personal use of drugs, although it imposes administrative penalties for smoking cannabis in a public place. In Germany, on April 28, 1994, the constitutional court ordered the L?nder to stop prosecutions for possession of small amount of cannabis, a step which amounts to the decriminalization of the personal use of that
drug(29).

The most comprehensive harm reduction program is presently found in Merseyside, England. Physicians there prescribe heroin and other drugs at a fraction of the cost to addicts. This occurs in conjunction with a medical treatment program which helps addicts overcome their addiction, outreach education and a needle exchange program. The area has documented a significant reduction in violent and in other crimes, and the second lowest rate of HIV infection of the fourteen regions of
England(30). Such a program clearly advances public health and the health of individual addicts and users, in addition to improving public safety and reducing crime.

Even in the United States, the “War on Drugs” of recent years is being reevaluated, as it is now perceived to have exacerbated problems resulting in an increase in crime and decreased overall health status. There are experiments being presently attempted in that country, many with positive results. Specialized drug courts have been established, and pre-charge diversion programs have offered drug users treatment as an alternative to the criminal process. Further, these experiments have been linked to a decrease in drug-related crime. Methadone treatment programs were pioneered in the United States, and continue to report successes. A three year methadone maintenance program in three U.S. cities found that 71% of clients in the program for over one year gave up injection drug use
(31).

D. A NEW APPROACH

To recommend diminishing the prohibitionist approach and the use of the criminal law regarding psychotropic drugs is in direct contradiction to the self-interests’ of lawyers, in that any decriminalization would ultimately mean less work for lawyers. In spite of that fact, the Canadian Bar Association’s National Justice Section recognizes that prohibition does not advance the public interest.

We believe that a “harm reduction” approach would be in the public interest and would greatly improve the public respect for the administration of justice. The removal of prohibition and the black market would undoubtedly result in less drug-related crime. Dealers and importers of drugs would lose their markets and their profits, while addicts could obtain their drugs at a fraction of the present cost and under medical supervision. One author states that the greatest beneficiaries of present drug laws are dealers and traffickers, as the “criminalization of the drug market effectively imposes a de facto value-added tax [for dealers and traffickers]that is enforced and occasionally augmented by the law enforcement
establishment”(32). At each stage of the present criminalization process, work is created for lawyers, whether they are crown attorneys or defence lawyers. However, the National Criminal Justice Section takes the position against continued prohibition, contrary to the economic self-interest of lawyers, because we firmly view that position to be in keeping with our professional responsibility to advance the public interest.

The question must be asked — is the proposed legislation really a matter of public health or is it instead, as Professor Neil Boyd suggests,

.. . . (a) moral battle about the appropriate methods and reasons for alteration of consciousness, pitting ‘legitimate’ drugs of affluent western cultures — tobacco, alcohol and pharmaceuticals — against the ‘bad’ drugs of the developing third world — the opium poppy, the coca plant and cannabis and its
derivatives.(33)

The National Criminal Justice Section supports looking to the new, creative strategies of European countries that focus on “harm reduction” and allow for continued legal regulation without the negative consequences for public health and society that are a product of a black market. Instead of entrenching the prohibitionist approach further by increasing financial penalties and incarceration for a broader range of activities associated with drugs, as is proposed under Bill C-7, we urge the Canadian government to take a leadership role by withdrawing from the recent U.N. Conventions on drugs
(34). There is no reason for Canada to support a misguided international drug policy with a proven record of failure, and every reason for our federal government to take this opportunity to review and re-evaluate Canada’s position on this issue. Rather than participating in waging a “war on drugs” through increased prohibition and criminalization, when there is no evidence that such an approach is called for or will be effective, the government should seek amendments to the Single Convention on Narcotics Drugs of 1961 in the direction of treatment, harm reduction, prevention and care.

RECOMMENDATION:

3. The National Criminal Justice Section of the Canadian Bar Association recommends that the Canadian government take a leadership role by withdrawing from the U.N. Conventions intended to wage a “war against drugs”, and instead seek amendments to the Single Convention of 1961 toward treatment, harm reduction, prevention and care.

IV. ANALYSIS OF BILL C-7

The National Criminal Justice Section specifically opposes the passage of Bill C-7 because it will lead to more people being incarcerated for longer periods, as:

  1. the Bill creates new offences punishable by incarceration;

  2. in many instances, Bill C-7 doubles the fines for summary offences, making imprisonment for default of payment more likely;

  3. the Bill suggests that a fine and imprisonment may be combined, where previously the term of imprisonment or the fine alone was the recommended penalty.

  4. Bill C-7 increases the length of imprisonment for certain offences.

In addition, Bill C-7 adds a list of aggravating factors to the legislation, which are to be considered at the time of sentencing. One factor to be considered aggravating is the use of threat of use of a weapon or violence in the commission of an offence. Essentially, the criminalization approach creates a black market for drugs, leaving no legal means for dispute resolution. Designating the use of violence as an aggravating factor avoids the fact that prohibition leads to a situation where violence is viewed as the only alternative, and justifies increasing the severity of the sentence..

Other factors to be considered aggravating include trafficking inside a school, adjacent to school grounds, or to a person under the age of eighteen. Although presumably these factors were included to provide increased protection to youths from drug traffickers, they are likely to result in targeting young people convicted of trafficking to their peers for especially onerous sentences.

1. CREATION OF NEW OFFENCES;

Bill C-7 broadens the range of drug-related activities that are designated as criminal offences. The National Criminal Justice Section of the Canadian Bar Association is of the view that we should instead move in the opposite direction, and evoke the use of the criminal law only where there is demonstrable harm caused to others or to society in general as a direct result of the drug-related activities. Therefore, the National Criminal Justice Section opposes the passage of Bill C-7.

  • The Bill creates the offence of simple possession for amphetamines. As an indictable offence, it is punishable by up to three years imprisonment, and for a summary conviction, by up to a $2,000 fine and/or 6 months imprisonment. A second summary offence can be penalized by a $5,000 fine and/or a 1 year term of imprisonment.

  • The Bill makes the production of stimulants, hallucinogens, and narcotics (other than opium poppy and marijuana, for which cultivation was already prohibited under s. 6 of the Narcotics Control Act) an offence.

  • The Bill makes the importation and exportation of amphetamines and hallucinogens an offence. Both are punishable by a maximum of 10 years imprisonment for an indictable offence, and a $10,000 fine and/or 18 months sentence on summary conviction.

2. INCREASES IN FINES

Bill C-7 increases the maximum fine that can be imposed for several offences, in some cases doubling that fine. The National Criminal Justice Section opposes those increases, because they will lead to more cases of incarceration due to of default of payment.

  • In the case of simple possession of opiates and marijuana, Bill C-7 increases the penalty from a $1,000 fine to a $2,000 fine, and/or 6 months imprisonment on summary conviction;

  • For the same charge of simple possession of opiates and marijuana, a second conviction may be penalized by a $5,000 fine instead of the present $2,000 fine, and/or 1 year imprisonment;

  • For trafficking and possession for the purpose of trafficking of less than three kilograms of marijuana, on summary conviction, a $15,000 fine and/or 2 years imprisonment may be
    imposed(35).

3. FINES AND IMPRISONMENT COMBINED

Under s. 718(1) of the Criminal Code, a fine can be added to or substituted for a period of incarceration where the maximum penalty is five years or less, and added to a period of incarceration where the maximum sentence is over five years imprisonment. However, under Bill C-7, a combination of a fine and imprisonment is often explicitly proposed as an option (ie. a fine of $1,000 or 6 months imprisonment, or both) where previously only one or the other was set out in the relevant section.

The National Criminal Justice Section opposes this change, as it is of the view that the wording of Bill C-7 will result in more frequent combination of fines with incarceration.

  • “Prescription shopping” for amphetamines is punishable on summary conviction under Bill C-7 by a $2,000 fine and/or 6 months imprisonment and for a second offence, $2,000 and/or one year. Presently there is a $1,000 fine or 6 months or a $2,000 fine or one year imprisonment set out for the same offence under s. 38.1 of the Food and Drug Act.

  • For trafficking or possession for the purpose of trafficking of amphetamines and some hallucinogens (Schedule III), the penalty is a maximum of $10,000 fine and/or 18 months on summary conviction, while the present sentence is a maximum of 18 months only.

4. INCREASED TERMS OF IMPRISONMENT

As the National Criminal Justice Section supports alternatives to incarceration for drug-related offences whenever possible, the Section opposes the passage of Bill C-7 as in some cases it dramatically lengthens prison sentences. (Bill C-7 does remove the 7 year minimum sentence for the importation of narcotics, which brings the legislation in line with the 1987 decision of the Supreme Court of Canada in R. v.
Smith)(36).

  • While cultivation of narcotics is now punishable by 7 years imprisonment, Bill C-7 proposes life imprisonment for the same activity, except in the case of marijuana, which would remain at 7 years.

    V. CONCLUSION

    There is evidence that existing legislation controlling the use of drugs in Canada is problematic and the escalation and consolidation proposed by Bill C-7 will cause more harm than good. There is no evidence that the use of drugs has significantly increased or is a rampant problem in this country which would warrant an escalation in the criminalization of drug-related activities. Bill C-7 represents a misguided approach to drug control, and one that is unnecessary and costly to Canadians.

    The prohibition approach to drug control is outdated and has proven ineffective in decreasing drug use, reducing crime or improving public or individual health. Bill C-7 will result in a significant increase in rates of incarceration and in lengths of sentences, and will place additional stresses on an already overburdened criminal justice system. It will not contribute to public health but will accomplish exactly the opposite. The National Criminal Justice Section of the Canadian Bar Association recommends that a true public health approach be attempted instead of the criminal justice model. Money now spent on drug prohibition should be reallocated to finance treatment and prevention programs that give special emphasis to pre- and post-natal care, education, and drug maintenance programs. It is naive to think that we will create a drug-free society but through such efforts, we can reduce the harm of drug abuse and the costs of drug prohibition.

    VI. SUMMARY OF RECOMMENDATIONS

    The National Criminal Justice Section of the Canadian Bar Association recommends:

    1. that Bill C-7 not be enacted, as it furthers a model of dealing with drugs through criminalization and incarceration that has been proven ineffective and counterproductive.

    2. In the alternative, and if the government decides to enact Bill C-7, that Bill C-7 be amended to specifically identify all substances to which its prohibitions apply.

    3. that the Canadian government take a leadership role by withdrawing from the U.N. Conventions intended to wage a “war against drugs”, and instead seek amendments to the Single Convention of 1961 toward treatment, harm reduction, prevention and care.

    FOOTNOTES

    1. Health and Welfare Canada, 1991.
    2. Ibid.
    3. CCSA/ARF 1994, Canadian Profile, at 112.
    4. Police Statistics, Statistics Canada, 1990.
    5. Supra, note 3 at 112.
    6. Cited in, Ethan Nadelmann, “Drug Prohibition in the United States: Costs, Consequences, and Alternatives” (1989) 245 Science 939 at 940.
    7. Ibid. at 941.
    8. Ethan Nadelmann and Jann Wenner, “Toward a Sane National Dug Policy” (May 5, 1994) Rolling Stone 24.
    9. Kathleen M. Hawk, Director of the Federal Bureau of Prisons (Testimony given before the Sub-Committee on Intellectual Property and Judicial Administration of the House Judiciary Committee: May, 1993).
    10. John Edwards, Commissioner of Correctional Services of Canada (Speech to the Parliamentary Committee on Justice at the Solicitor General on Main estimates: April 26, 1994).
    11. See, Crevier, J.R. – MacDonald Inc. v. A.G. Canada and A.G. Quebec et al and Imperial Tobacco Company Limited v. A.G. Canada and A.G. Quebec et al, [1993] 102 D.L.R. (4th) 289 (Que.C.A.) (decision pending before S.C.C. on other issues).
    12. The Tobacco Products Control Act, R.S.C., 1989, c. 20.
    13. Narcotics Control Act, R.S.C., 1985, c. N-1, as amended.
    14. Neil Boyd, High Society – Legal and Illegal Drugs in Canada (Toronto: Key Porter Books, 1991) at 224. These figures are somewhat higher than those from Health and Welfare Canada, referred to on page 4, infra. The reason for the difference is not clear, but may be due to the fact that Boyd’s statistics are somewhat more current than those from 1990.
    15. Ibid.
    16. Food and Drugs Act, R.S.C., 1985, c. F-27, as amended.
    17. Neil Boyd, supra, note 14.
    18. Ibid. at 224.
    19. The Tobacco Products Control Act, supra, note 12.
    20. Canadian Criminal Justice Association Bulletin (March 15, 1994), summarizing excerpts from (1994) 14 #6 Juristat 9.
    21. The consumption of tobacco is described in those terms under the Tobacco Products Control Act, supra, note 12.
    22. Ibid. s. 7.
    23. E. Nadelmann, supra, note 6 at 941.
    24. George Cull, “Drugs policy misguided” (March 20, 1994) Guardian Weekly.
    25. . . . “Soften laws on soft drugs, chief urges” (March 14, 1994) Vancouver Sun A5.
    26. Edward Ellison, “Don’t be such a dope, Mr. Howard” (February 27, 1994) Guardian Weekly.
    27. Dr. Diane Riley, “The Harm Reduction Model: Pragmatic Approaches to Drug Use From the Area between Intolerance and Neglect” (Ottawa: Canadian Centre for Substance Abuse, 1994).
    28. . . . (Nov/Dec 1993) 21 The Drug Policy Newsletter 1.
    29. . . . “Disarray on Drugs” (May 8, 1994) 150 #19 Guardian Weekly 13.
    30. Riley, supra, note 27 at 5.
    31. Dr. Diane Riley, “The Policy and Practice of Harm Reduction” (Canadian Centre for Substance Abuse, Policy and Research Unit, and University of Toronto, Department of Behavioural Science, 1993) at 21.
    32. Nadelmann, supra, note 5 at 941.
    33. Boyd, supra, note 14 at 11-12.
    34. As cited in the Explanatory Notes to Bill C-7 at 1a, the United Nations Convention on Psychotropic Substances, and the relevant portions of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances are being addressed by Bill C-7.
    35. Although the present sentence for trafficking in marijuana is a maximum life imprisonment, in practice trafficking in small amounts is generally penalized by a fine or a brief jail term. Any legislative changes should recognize the reasonable practices that have actually been adopted, rather than recodifying lengthy maximum sentences. 36. R. v. Smith, [1987] 1 S.C.R. 1045.

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