Proceedings of the Standing Senate Committee on
Issue 2 - Evidence
Ottawa, Wednesday, December 13, 1995
The Standing Senate Committee on Legal and Constitutional Affairs, to which was
referred Bill C-7, respecting the control of certain drugs, their precursors and
other substances and to amend certain other Acts and repeal the Narcotic
Control Act in consequence thereof, met this day, at 3:30 p.m., to give
consideration to the bill.
Senator Gérald-A. Beaudoin (Chairman) in the Chair.
The Chairman: Senators, we will continue our consideration of Bill C-7. Our
first witness will be Mr. Robert Kellerman, barrister and solicitor from the
Law Union of Ontario.
Mr. J. Robert Kellerman, Barrister and Solicitor, Law Union of Ontario: Thank
you for taking the time to hear the point of view of the Law Union of Ontario.
We are a group of lawyers and legal workers. Our organization has existed since
1972 with the intent of looking at social issues related to law. We are
concerned about the social impact of law.
Drug laws have always been of great concern to us. In fact, the organization
started early in the time when hippies were in the Yorkville area of Toronto
and many young people were arrested for marijuana offences. Our organization
emanated from the observation that the enforcement of marijuana laws in this
country was turning young people away from the law and causing them to become
disrespectful as they were criminalized for the use of a particular substance
while adults were using drugs such as alcohol and tobacco which youth the
believed to be more damaging to health.
This legislation perpetuates a problem which has existed in this country for a
long time, that is, an irrational policy about drugs which criminalizes them
without any scientific foundation while, at the same time, allowing the
promotion, trafficking and possession of cigarettes and alcohol. If we
criminalize marijuana, cocaine and heroin, we should criminalize these other
substances as well. The scientific evidence supports that point of view.
Unfortunately, we may be too far advanced with this policy to completely reverse
it in the next year or so. However, I want members of the committee to
understand that this is our view and that we generally support the
decriminalization - although not necessarily complete legalization - of
marijuana at least, and of some of the other substances that are criminalized
in this legislation.
Many of us practice in the criminal courts and see the very destructive effects
of this policy. There are huge financial costs for trying and imprisoning
people, even with regard to marijuana offences. In addition, there are
tremendous social costs which emanate from this policy.
Clause 10 of the bill talks about sentencing being concerned with
rehabilitation. Yet it is obvious that, if one were concerned with
rehabilitation, one would take these matters out of the criminal courts and
deal with them as the health and social issues which they are. That is
particularly true with regard to situations of heroin and cocaine addiction.
These are health problems and should be dealt with as such. It is a disaster
that these problems are dealt with in the criminal courts where the problems
are exacerbated and the chances of rehabilitation are diminished.
I will leave it to the next witnesses to provide you with the scientific
evidence for the propositions which I am putting before you.
In my respectful submission, the criminalization of these drugs increases the
amount of criminal activity in society. There is a tremendous amount of
criminal activity carried out by drug addicts attempting to get the money to
buy drugs. There are huge numbers of break-and-enters committed for this
purpose. I represent these people in the courts every day. I see hundreds of
young people who are breaking and entering homes in an attempt to find the
money to buy drugs. There can be violence associated with that.
If you think about it carefully, you will see that, with decriminalization, a
huge amount of that peripheral criminal activity would disappear.
The next witnesses can speak to you about programs which exist in other
countries where these types of decriminalization policies have been tried and
where the evidence shows that the amount of criminal activity dropped
significantly as a result.
Prostitution is closely connected to the drug problem as is the problem of AIDS.
All of these problems are connected with criminalization. Needle exchanges and
the treatment of people with addictions could be dealt with if they were not
afraid that they would be punished for their criminal activity, if they could
go for help for their drug addiction, if they could get clean needles, if they
could be educated and receive the drugs they need in a safe and healthy
environment, and then be weaned off these drugs.
There is a huge amount of racial tension in this country as a result of the drug
policies which are selectively enforced particularly in the black areas of
Toronto where I represent people. There is no question that cocaine is used by
wealthy people in wealthy areas of town without any problem. Yet, on a daily
basis, young people, particularly young black people, are searched, arrested
and entrapped because of their use of a drug which has been criminalized. Our
prisons and courts are disproportionately filled with those young people. You
need only walk into the courts to see this.
I have already mentioned the negative effect of the disrespect that young people
have for the law as a result of being criminalized for their choice of drug.
The theory is that young people will be deterred and will learn to respect the
law. In my experience, the effect of drug enforcement has been to lessen
people's respect for the law because they believe the policy is irrational,
because they believe they are being harassed, and also because we see the
dirtiest kind of policing in the area of drug enforcement. I will come to that
when I point out particular sections which I believe will increase the
possibility of unlawful forms of policing as an inevitable result of this bill.
Finally, it is the enforcement of the drug laws which has allowed the courts to
justify the erosion of many of our civil liberties. Most of the erosion of the
rights of privacy, which are protected by the Charter, and the justification
for that erosion, have resulted from drug laws. An overwhelming number of
searches take place under our drug laws.
The most extreme violations of human dignity take place in drug searches where
the law justifies rectal searches under the supervision of police and in
hospitals. There is an obsessive need to find drugs on people, although they
may only be bringing marijuana or hashish back from Jamaica for personal use.
The erosion of civil liberties is exacerbated because of drug laws more than any
other area of law. It is those laws which give justification for home searches.
The overwhelming number of reported cases deal with drug seizures, drug
searches and arbitrary detentions of individuals; all fundamental rights in
I believe that the punishments in this area are extreme. I believe that is so
because people are ignorant about the nature of these drugs and are frightened
by them. The next witnesses can speak to this better than I, but penalties are
severe for offences involving heroin and cocaine. Thousands of young people end
up with criminal records which seriously affect them. There is a belief that
this legislation will somehow diminish that. I am happy to explain to you that
this law will not in any way diminish the impact of the penalties on young
people who are arrested for marijuana offences. The only thing that can be said
is that, in some cases, they will not be fingerprinted. That does not in any
way help them when they try to cross the American border, when they try to get
jobs or go anywhere that having a criminal record will affect them. This law
still gives one a criminal record, even for the simple possession of marijuana.
There is a trick in this legislation from a prosecution point of view. Clauses
4(4), 4(7) and 5(4) have penalties for the possession of cannabis over an
amount which is established in the schedules. In the case of clause 4(7) where
one is trying to obtain cannabis in an amount over an amount that is in the
schedule, or in the case of clause 5(4) where one is trafficking in cannabis
under an amount that is fixed in the schedule, the penalty is five years less
Why is the penalty five years less one day? The answer is simple. It is because
they want to deny people who are charged with this offence the right to a trial
by jury. This is the prosecution's way of pretending that they are treating
marijuana less seriously when in fact it is just an advantage to them to have
trials where one may be facing three or four years in jail without the right to
a jury trial. A jury trial is guaranteed in section 11(f) of the Charter of
Rights only if one is facing a penalty of five years. Therefore, they have made
it five years less one day.
If I were an accused, I would rather receive the five years than the five years
less one day and have the right to a jury trial.
The reason the prosecution does not want jury trials is not just because it
takes longer to get a conviction but because it is harder to get a conviction.
Generally speaking, the prosecution in this country does not like juries
because juries tend to acquit more often than do judges.
Of course, the prosecution view is that juries are easily fooled by those smart
defence counsel. But this is a long argument. We enshrined the right to a jury
trial in our Constitution for a very good reason. These clauses are basically
removing the right to a jury trial. That is all they are doing.
Similarly, all the other reductions in the penalties for marijuana are related
to conveniencing the prosecution. They are not there because they are taking
marijuana less seriously. The government's own piece of literature on this
matter explains this. Their phrase is something like, "We are just
bringing the penalties in line with the existing practices in the courts."
They are saying that, "We will not allow you jury trials any more because,
generally, judges are not giving those kinds of heavy sentences."
Another with which you should be concerned is clause 5(1) which criminalizes the
holding out of a substance as if it were a drug. This has been a concern of
defence counsel for many years. To put it in simple terms, when someone is
selling baking powder and pretending it is cocaine, they are still found guilty
of trafficking in cocaine even though they knew all along that they were
selling baking powder. What they are really doing is committing a fraud on the
person who is giving the money because that person wants cocaine.
I have not yet heard any decent rationalization for criminalizing fraud under
the Narcotic Control Act or under this proposed act. The basic argument is that
when people defraud other people and pretend they are selling them a drug, it
leads to violence. People get angry when they have been ripped off. This is a
weak argument for treating a fraud as a drug offence.
I suggest the committee ought to be talking about removing this offence
completely, even if you maintain all the rest of it. This is a fraud. It should
be treated as a fraud. It should not be within the definition of trafficking.
In the existing Narcotic Control Act, the definition of trafficking includes
the idea of holding out. That is one simple recommendation.
As you have probably grasped the idea, I would recommend decriminalizing
Another clause of the bill which concerns us is clause 53. This clause gets
around the normal rules of evidence in a criminal court by allowing the
prosecution to prove certain things by affidavit as opposed to the calling of
live witnesses. This is not the first time that this has happened in Canadian
In this case, the prosecution will be entitled to prove the continuity of the
substance which has been seized. In other words, if a police officer seizes a
substance from somebody, he or she can fill out an affidavit which stating, for
example: I took the substance from the person's right pocket and held it in my
own pocket; I did not mix it with any other drug; I then sent it to be
analyzed; I have now proven that the drug was not contaminated and that the
person had the drug. That is what is called continuity.
In drug cases, continuity is often the essence of the case. Here is the danger.
In the last several weeks in Toronto alone several police officers have been
suspended from the police force because they have been found to be planting
drugs on people. This is well known in this area of the law. Unfortunately,
there is a great deal of corruption in drug enforcement. Anyone who is aware of
what goes on around this area knows that.
Just this week and last week, in Toronto, drug officers have been charged or
suspended because it is suspected that they have been doing planting drugs on
suspects. This is not just a fiction in the minds of defence counsel.
In clause 53, again, the prosecutors are trying to make life easy for the police
to say they can prove where the drugs were at all times by merely producing a
signed affidavit. The police officer does not have to come to court to be
Subsection (2) of this clause states that the judge "may require" the
officer or the affiant to come to court. In our view, that is not enough,
especially in the area of drugs. The word "may" should be replaced by
the word "shall" come to court, if the defence requests it. If they
want to prove something by affidavit and if the defence does not care, fine,
save some time in the court, but it should not be in the discretion of the
judge. The defence should not have to require that some police officer who may
have planted drugs on somebody be required to come to court to face
The essence of our whole criminal justice system is that you have a right to
face your accuser; you have a right to cross-examine witnesses. They are taking
that right away. In my view, that is another erosion of a very important
fundamental idea in our judicial system.
There are serious problems with the clauses of the bill which deal with
forfeiture of property. I will try to be extremely clear in this regard.
Drug-related property is defined. The idea is that the property of the drug
dealers can be seized. Yet it is so broadly defined that it even includes the
seizing of property for the simple offence of possession of marijuana.
I am talking about clause 16 onwards. Those clauses deal with the seizure or
forfeiture of property. This clause has the danger of catching people whose car,
for instance, is used by their son; if he is arrested, they may lose their car
without necessarily getting notice. Property could be taken away from people
who are totally innocent. There are provisions for those people to go to court,
but the notice they receive is not guaranteed.
Clause 17(3) deems someone to have absconded. If someone is charged with an
offence, their property can be seized, even though they never received notice
that they had been charged with the offence. Subclause (3) states that as long
as the police have made reasonable efforts to notify the person or to serve and
execute a warrant, that is good enough. The person is deemed to have absconded,
and we can take their property away from them.
This does not require that the person involved knows that there is a warrant out
for their arrest. It seems to me a little unfair to seize someone's property
when they do not even know that they have been charged with something and the
warrant has not been served on them. Normally, when you abscond, you have to
know what is happening.
In clause 20(4), you will see the phrase "commission of an unlawful act".
This phrase is extremely broad. It should at least be restricted to "criminal
act". I am talking about all these areas where the net is cast too
broadly. People will be caught or lose their property as a result of careless
and poorly drafted language. People will lose their property for minor offences
if this law is used.
The Department of Justice may say it does not intend to use the law that way. If
that is the case, let them write the law in a way that shows they do not intend
to use it that way.
A final clause that concerns me is clause 55(2) on page 42 of the bill. This
clause allows the Solicitor General or provincial ministers to exempt from the
operation of the entire Part I members of police forces or people operating
under them. Now, I may be misreading this clause, but it looks like they will
license police officers and informers - ordinary people operating under police
officers - to sell drugs in order to trap or to catch people.
I should not use the word "trap".
That clause is extremely dangerous because, if you know anything about the way
things operate on the streets, you will have police officers out there selling
drugs to people. That means they must possess the drugs. People will be
involved in situations where they might not otherwise have been involved. It is
extremely dangerous, in my opinion, to authorize police officers or anyone
working under them to sell drugs. That is an extremely dangerous clause.
The clause is even more dangerous in the context of our present entrapment law.
The Supreme Court of Canada has said you cannot go on fishing expeditions; you
cannot offer people the opportunity to commit crimes. That would be entrapment
usually. Unfortunately, in the Barnes case, the court said they would allow the
police to fish in some areas of the city and offer people the opportunity to
commit crimes, even though there is no evidence that those people have ever
been involved in crimes before.
In my opinion, that is a terrible decision of the Supreme Court of Canada. What
that really means in practice is that, in certain areas of the city, people
will now be able to sell drugs to people who may never, ever have bought drugs
before and so entrap them. The Barnes decision says that that is okay. Police
can sell drugs in areas such as Regent Park in Toronto and in poor areas where
young black kids are susceptible to such offers. This will not happen in
Rosedale in Toronto. It will not happen in the wealthy areas around here. It
will happen where the poor people are most vulnerable. I hope you will take
another look at that clause.
Senator Lewis: Mr. Kellerman, can you explain what the Law Union of Ontario is?
Mr. Kellerman: People often ask that. We are an organization of lawyers and law
students. We practise in all areas of the law. There is no restriction in terms
of our membership. We like to think that we are lawyers with some social
conscience, some concern. Generally speaking, our members represent people who
are less advantaged in society. We are more likely to be on the side of
tenants. We are more likely to be Legal Aid lawyers. We are more likely to
represent single mothers in family court.
I think we see ourselves as lawyers who are concerned about the inequalities in
society. We like to think that we are spending our lives trying to rectify some
of these problems. I do not know how well we have done.
Senator Lewis: Is it a requirement of membership that you all have halos?
Mr. Kellerman: No. I am sure most of us do not. That is why I keep saying, "we
like to think that we are...". It is the ideal but I am sure we are far
from living up to the ideal.
Senator Lewis: Is your organization situated in any particular part of Canada?
Mr. Kellerman: We are the Law Union of Ontario. There was a law union in British
Columbia. There are members here in Ottawa. We have members in Sudbury, London
and Windsor. A good part of our membership is in Toronto.
Senator Lewis: I gather that your membership has had much experience in drug
Mr. Kellerman: Well, in defence primarily. Some judges are Law Union members.
Six or seven judges in Ontario are Law Union members.
If we are to talk about the hypocrisy of the law, it is hard to believe that
some of these people did not at one time in their lives smoke marijuana, as
well as the people who are prosecuting these charges. The reality, which leads
to disrespect, is that many people in the criminal courts on all sides have
been drug users or prohibited drug users. They are not like Bill Clinton. They
Senator Lewis: You mentioned young people committing offences like breaking and
entering to find money to buy drugs.
Mr. Kellerman: It is extremely widespread.
Senator Lewis: You went on to say that you are in favour of decriminalization.
There seemed to be some equating these young people committing these offences
to get drug money with decriminalization.
Mr. Kellerman: Yes.
Senator Lewis: I could not quite follow that.
Mr. Kellerman: I am suggesting that these drugs, especially for an addict,
especially for a drug like heroin, can be very expensive because they are
criminalized. Many countries have programs where heroin addicts can go and
receive the drug in a medical facility under government supervision. Then they
have no need to do the break-and-enters to get money. They could even lead
perfectly normal lives and have jobs. When they are so desperate to get these
drugs, they cannot hold down jobs. They cannot function.
There are many examples of this in other countries. I am sure the next group of
speakers will be able to tell you about these programs. I know they know about
Senator Lewis: I suppose the same objective could be obtained by free trade in
drugs. It would make it cheaper, I suppose.
Mr. Kellerman: Absolutely.
Senator Lewis: I was wondering whether you were leading to that?
Mr. Kellerman: I am not promoting drugs, and I do support the idea that many of
these drugs can be extremely harmful to people, but I believe in a rational
approach to dealing with these problems rather than just being horrified and
saying we must deal with this in a severe way.
I am saying our policy is counter-productive. If people have a problem because
of drug addiction, we should deal with it as a health program in a rational
way. I am saying the consequences of criminalization are severe. It causes a
tremendous amount of crime. People are carrying guns because of this stuff,
too, as they try to protect this illegal market.
Senator Lewis: I see what you are getting at. Can you tell us, from your
experience or from the experience of your membership or from other lawyers who
may not be members of your union -
Mr. Kellerman: Yes, I do practice in the drug courts and I was a board member in
the Criminal Lawyers Association and so on. I know the views of many lawyers in
Senator Lewis: I imagine there are quite a number of lawyers who practice in the
defence bar who are not necessarily members your union?
Mr. Kellerman: Absolutely.
Senator Lewis: From your experience, when people commit these crimes, can you
say whether they are under the influence of drugs when they are committing these
crimes and that is what leads to the commission of the crimes?
Mr. Kellerman: Some crimes, maybe, sometimes. You need to look at each drug
separately. For instance, I know of no evidence that people commit crimes when
they are high on marijuana. There is a huge correlation between criminal
activity and the consumption of alcohol. Cigarettes, no. Cocaine, perhaps more
so. I think you have to look at each drug in a rational way and ask what the
effects are that these drugs have on people's behaviour. When you do that, you
discover, generally speaking, that alcohol is one of the worst. Cigarettes are
not bad. They just kill you, but they do not kill other people.
Senator Carstairs: Yes, they do.
Mr. Kellerman: I am sorry, you are right. But if you do it privately in your own
bathroom, they do not, I guess.
With cocaine, there may be. You will have to ask your next witnesses whether
cocaine leads to people sometimes being violent and therefore committing crimes
of violence. Generally, my clients who are break-and-enter experts and are
involved with drugs are on high when they are doing the break-and-enters. I
have clients who are alcoholics who sometimes drink before doing
break-and-enters in order to get their courage up. The issue must be looked at
Senator DeWare: You were talking about the five-year sentence. I thought that
the five-year-less-a-day sentence was something to do with costs. If you do not
have to have a jury, it is less expensive.
Mr. Kellerman: That is the rationalization. It is cheaper.
Senator DeWare: You did not mention costs.
Mr. Kellerman: I did. Of course people say it saves costs to not have a jury,
but it saves costs not to have trials at all. The question is whether a jury
trial is an important right.
In the United States, jury trials are held for much less serious offences. Even
when you are facing six months in jail, you would get a jury trial. Six months
in jail is not a joke, and four years in jail is no joke.
If cost is the main motivation, then I say that is a problem, too, because they
have ignored the other concern.
Senator DeWare: Most prisoners serve only a third of their time because of
Mr. Kellerman: Most serve two-thirds but then they might get parole.
Senator DeWare: You were concerned about the police officer or someone
designated by a police officer having the opportunity to carry or use drugs. A
friend of my son was a policeman who went undercover in the school system in
New Brunswick for about two years explicitly to find out who was selling drugs
to the students. In that case, he was able to have access to some drugs to show
that he was definitely in the system and that they could trust him. Could that
not be the intent of this particular clause?
Mr. Kellerman: It may be. I am not saying there are no circumstances where it
may be justified to allow particular individuals to have possession of drugs
for that purpose, assuming that you think the general purpose is a good one
I would suggest, if you have that idea at all, if there is a rationalization
based on the need for enforcement, let us have a warrant requirement, as we do
when we tap people's phones, when we go to search people. Let us have a
provision requiring the police officer to come before a judge, explain who will
have the drugs and why they need them and why less drastic measures will not
Senator DeWare: When you are involved in an undercover operation, no one is
supposed to know about it. Usually there are only one or two officials who know
that he is in the system in order to keep his identity a secret. If you go
before a judge, are you not exploiting him?
Mr. Kellerman: No, no. This person is already working with the police, so the
police can bring the person there. The person must be meeting with the police
and communicating with them. Why can the police not go to a judge's chambers
and tell him they are working with such and such a person? That is the way
warrants are done. They could get authorization for this person to have the
drug. I do not see the problem.
Senator DeWare: I was thinking of keeping this as secret as possible. The more
people that know about it, the more -
Mr. Kellerman: But we are supposed to trust our judges.
Senator DeWare: I wonder if you are reading something into this clause which
does not necessarily need to be read into it.
Mr. Kellerman: It could be. Some people may have a different interpretation. I
am a lawyer. As I read it, I see that possible interpretation. If I am wrong
and that is not the intention of the drafters, let them clarify it.
Senator DeWare: We will have to question them. Thank you for bringing it to our
Mr. Kellerman: I may just be a bad reader, but many other lawyers may read as
badly as I.
Senator DeWare: You are a concerned reader.
Senator Doyle: You pointed out a couple of spots here where we should consider
closely the usefulness of what has been written into Bill C-7.
Are there no places in the bill to which you might point and say, "That is
a good thing. That will be helpful not only to law enforcement but also to the
Mr. Kellerman: First, much of it is like the law that already exists. If you
were trying to be helpful to the young people who are offending - that is,
assuming you think that it should be criminalized in the first place - then I
would like to see a lot more emphasis on rehabilitation. There are just token
words in clause 10 that state that, in the sentencing, the judge should
consider rehabilitation. But the criminal courts are not the place to do that,
generally speaking. If we are really serious about it, then the government will
have to provide the facilities.
I just read in the paper that they have taken money away from the Addiction
Research Foundation for rehabilitation. An inpatient program has just closed
down. That is what is happening all over the country. They should take the
money that is being wasted in the courts, put me out of a job, and spend the
money on rehabilitation.
I do not think there are a lot of good things in this bill. You will get lots of
people who will think it is good, people who are fearful of the drugs in a way
that I do not think they need to be fearful, and people who believe that
enforcement is the way to combat the problem.
I do not think enforcement is the way to combat the problem of drug addiction.
Criminal enforcement is not the solution to the problem.
Senator Doyle: Some years ago, Judge Le Dain conducted a rather lengthy study on
marijuana in particular. He made some recommendations, none of which were taken
Mr. Kellerman: Yes, and they have been ignored.
Senator Doyle: Do you know if any studies have been done which show what might
have happened if Judge Le Dain's recommendations had been taken up?
Mr. Kellerman: There are states in the United States, for instance, and
countries like Holland, where they have done the experiment. In Alaska, they
have decriminalized marijuana. I do not see any huge program. There are
approximately 11 states in the United States where they have decriminalized
marijuana. It does not mean they have made it no offence at all, but they have
made it like a parking ticket, or something like that. They have reduced the
penalty and taken it out of criminal legislation. As far as I have heard,
nothing terrible has happened; drug consumption has not gone up in any way.
The next guests are the ones to ask about that. They are the ones who know about
Senator Doyle: I fully intend to ask the next witnesses, but I was asking you as
a lawyer who has devoted a lot of time and attention to this area, if you knew
of any study that has been done. We are very good in Canada at doing studies.
Has anyone studied what might have occurred had Le Dain's recommendations been
Mr. Kellerman: The study would have to look at the question: What is the effect
of people continuing to use marijuana? The problem is, there is some assumption
that because people are arrested for use of marijuana, they stop.
I do not know what the figures are but I think many people continue to use
marijuana, even after having been arrested. I do not think the deterrent effect
works very well. What I think happens is that people lose respect for the law.
The question is then: What is happening with all those people who use marijuana?
There are millions, as far as I know, and I think the studies show that. I do
not think they are out there committing crimes or doing harm to other people.
They function in their jobs.
I know lots of people who use marijuana - I think we all do. I have doctor
friends who smoked marijuana almost every night while they were going through
medical school. They are excellent doctors. No one thinks they did not perform.
They wrote their exams. That is the reality. I am sorry if it shocks anyone.
There are people using marijuana all the time, young and old. People who used
it for years continue to hold their jobs and function perfectly well. I know
people personally who are like that. They are completely responsible, decent
people, in the same way that some of your friends use alcohol all the time on a
regular basis but moderately and sensibly.
Senator Carstairs: First, can you tell me approximately how many lawyers belong
to your union?
Mr. Kellerman: About 300, but it goes up and down. There have probably been
about 600 that are now practising in Ontario.
Senator Carstairs: As you may or may not know, apparently it was a decision made
by the House committee reviewing this bill that they would begin yet again a
comprehensive review of substance abuse which, hopefully, will address some of
the things to which Senator Doyle made reference. We will do again, perhaps, an
updated review of the Le Dain Commission report and also look into what is
happening in other countries of the world who have dealt differently with the
whole issue of marijuana.
Mr. Kellerman: Yes, and other drugs, too.
Senator Carstairs: What we have before us right now is an act which is taking
two other acts and trying to put them together and rationalize them, if you
If you were recommending amendments to this particular piece of legislation -
accepting the fact that, for whatever reason, the decision has been made that
now is not the time to legalize any drugs - then I assume that you would focus
on the clauses that you pointed out to us today, namely, 4(4), 4(7), 5(4),
5(1), 53, 16, 17(3) and 55(2).
Your concern then is that the process by which a person should be arrested,
tried and convicted needs to be changed.
Mr. Kellerman: I am looking at the way in which they are trying to change it to
make it less fair. That is the way I would put it. Also, clauses 16 and 17 deal
with the seizure of property, and I think that is being done unfairly. I am
looking at the most obvious things, but the use of certificates for continuity
involves the prosecution and how they get convictions.
There is a concern about seizing people's property there as well. It is
procedure but, for, instance in the continuity case, it goes to the whole
question of whether innocent people will end up in jail because they do not
have the right to cross-examine police officers who are involved in the
I am saying that there is a certificate that they can put into evidence which
proves the continuity of the drug. I am saying that that is a central issue in
many, many drug prosecutions. In the last two weeks, several officers have been
suspended or charged with planting drugs on people. Now, those very officers
would have been able to prove their case by signing an affidavit stating that
they had continuity. Those innocent people would never have been rescued.
Clause 53 is a dangerous clause.
The Chairman: You consider it dangerous?
Mr. Kellerman: Yes, more so in drug cases than in any other type of criminal
case. The planting of evidence takes place more often in drug cases than
anywhere else. You do not find a lot of cases where stolen property is planted
on people. It is not impossible; it does happen.
In this regard, one has only to read all the commissions in the United States
where this was discovered on a widespread basis. It is happening in Canada,
Senator Carstairs: Surely, this clause was supposed to be directed at the fact
that there might be bags and bags of heroin, for example, which go to court and
the defence lawyer says to the police officer, "Can you identify that bag
as the bag that you picked up?"
Mr. Kellerman: There is no need for that. That is never a problem. They initial
everything. It is simple. Proving continuity is not a difficult problem. If you
read any text about how to defend drug cases and how to prosecute them, lesson
number one is that you have to show that the drugs were kept safe and so on.
This is not an imaginary concern; nor is it a technicality. It has to do with
people having the experience of having drugs planted. That can only be
demonstrated through cross- examination, which is usually not fruitful. It is
hard to prove these things, but at least do not take away the last tools to
expose illegal activities on the part of the police.
Senator Carstairs: We have obtained different information from officials with
respect to what would happen to a person on summary conviction. You seem to
imply that they would still have a criminal record.
Mr. Kellerman: Absolutely.
Senator Carstairs: I thought we were informed the other day to the effect that
they would not be able to prosecute this person as a second offence because
they would not be aware of the fact that there had been a first conviction.
Mr. Kellerman: That is not true at all. I do not know who would say that.
Senator DeWare: Representatives of the Department of Justice.
Mr. Kellerman: It is hard to believe that, unless I do not understand what is
going on here. They are saying, "We will not have the fingerprints."
The Criminal Records Act states that you can only fingerprint someone for an
indictable offence. That has always included offences which can be prosecuted
either summarily or by indictment, even though the Crown always intended to
The fact that they do not have the fingerprints does not mean that you will not
have a criminal record or that they do not have it on CPIC.
Senator Carstairs: We were told specifically that it would not be on CPIC.
Mr. Kellerman: There is nothing in the legislation which says that. It does not
say that no record will be kept of a summary conviction with respect to drug
offences. Every day in court I see people's criminal records being tendered as
evidence when they are being sentenced. Not only do they have summary
conviction offences, they actually have the cases in which there are
discharges. The Criminal Records Act does not say it is not a record. It is a
record and they will use it for a second conviction.
Senator Carstairs: This is something which needs to be cleared up. We are
getting quite different information from you compared to what we received from
the Department of Justice.
Mr. Kellerman: Let me go one step further to tell you how bad it is. Even now,
when someone receives a discharge for a marijuana offence, say one little joint
of marijuana, there is nothing to prevent the provincial authorities from using
First, it is used in court if they are caught again. The judge is told that they
already received a discharge.
Second, it affects them at the American border.
Third, there is nothing in the law that prevents employers from asking, "Have
you ever received a discharge?"
The only people who are prevented from asking about a discharge are federal
authorities and federal employers. They only ask, "Have you ever been
In the Citizenship Act and in the Immigration Act there are provisions which
allow them to ask, "Have you been convicted of any offence?" So if
you are discharged, you have not been convicted. You are protected there. Any
provincial act, any private employer, at any border, they can ask, "Have
you ever been found guilty and received a discharge?" You are asked that.
I have been asked that at the American border numerous times. They even ask if
you have been arrested for anything. They do not just ask if you have been
found guilty. If they ask if you have been found guilty, you have to answer "Yes,"
even though you received a discharge.
Back in the 1960s, when the parents of middle-class kids were concerned about
their kids not having records for simple possession of marijuana, the discharge
provisions were introduced. However, they did not go far enough. They are still
used in the courts. People have received discharges for drug offences or any
other type of offence. It still prevents kids from getting jobs.
I had a client whom the OPP would not bond because this young man had received
a discharge. Even the provincial police do not respect the idea that this will
not affect your future.
You are not even guaranteed a discharge when you are convicted of a summary
conviction offence. They may fine you. They may give you a suspended sentence
and probation. At least if they said you will automatically get a discharge,
that would be a step forward. Why do you not ask them why they are not giving
automatic discharges to first offenders for simple possession of marijuana?
That would be the first step.
If you then asked me, Senator Doyle, I would say that is something good in the
act. I would say that is a step forward. If they would give automatic
discharges for first-time possession of marijuana, that would be a step
The Chairman: The testimony to which Senator Carstairs referred was to that of
Gérald Normand who testified yesterday.
Mr. Kellerman: He is here. Maybe I am wrong. Maybe I am missing something. I do
not see it.
The Chairman: Mr. Normand, would you come to the table, please?
Senator Doyle: How many automatic discharges could a person get before he was
charged with a second offence?
Mr. Kellerman: I said the first time.
Senator Doyle: How would you know it was the first time?
Mr. Kellerman: They have it on the CPIC. It is all on the records.
The Chairman: Perhaps Senator Carstairs should refer back to the point that you
raised, Mr. Normand.
Senator Carstairs: Perhaps I did not understand what you said yesterday. I
thought you said that as a result of what has happened here, the offender could
not be traced. In fact, every offence concerning marijuana would end up being a
new first offence.
Mr. Gérard Normand, Counsel, Department of Justice: What I said is that
there will not be any fingerprints taken. Mr. Kellerman was referring to the
CPIC. If there are no fingerprints and no photograph, then the record does not
go there. There is a criminal record, yes. If the question is asked, there is a
need to say that there is a criminal record. I specified that yesterday.
I specified yesterday that in smaller communities people would know about that
offence. If a judge remembers a face, he will know that this person has a
Senator DeWare: Yes, you did say that.
Senator Carstairs: There seems to be a discrepancy as to whether it goes to CPIC
Mr. Kellerman: That is not true. Every summary offence, whether you are
fingerprinted or not, is on CPIC. I see it every day in court.
Mr. Normand: What Mr. Kellerman is referring to is if there is a hybrid offence.
Effectively, even if we choose to go by summary conviction, if at the time the
person was arrested or detained there was a possibility that the charge could
be by indictment, then at that time they take the fingerprints. They often do
that for hybrid offences. Exclusively, summary conviction offences are very
rare. First, Mr. Kellerman should know that.
Mr. Kellerman: That is not true. Breach of probation is a strict summary
conviction offence. It is on everyone's record whenever they breach their
probation. I see it in court every day. They do not need to be fingerprinted in
order for the record to show up, even on straight summary offences. It is there
all the time. There is no guarantee that it will not be there.
If you are saying that, then write something into the legislation that says that
this will not be on the record. It will not go onto CPIC. Let us not just hope
that it will not show up there, because it shows up every day. I have seen it
in court every day for 20 years.
Senator Nolin: You are telling us that this is an hybrid offence, therefore an
indictable or summary offence. This means that fingerprints will be taken. I
did not read the whole bill but I have a summary prepared by the Library of
Parliament. Not many offences are punishable on summary conviction only.
Mr. Normand: Very few are.
Senator Nolin: Possession of 1 g of hashish or less than 30 g of marijuana is,
but that is all.
Mr. Normand: In this particular bill, these are the only instances.
Senator Nolin: That settles it.
Did you get the translation of that?
Mr. Kellerman: No, I got no translation. I understood a good part of it.
Senator Nolin: Only one non-hybrid or only one infraction is summary.
Mr. Kellerman: There is only one in this bill?
Senator Nolin: Yes. Fingerprints would be taken for the rest.
Mr. Kellerman: Oh, yes.
Senator Nolin: Do you have a problem with that?
Mr. Kellerman: Sure. I have a problem with the idea that you are leaving the
impression that if people are convicted of a strictly summary offence, it will
not appear on their record. It does appear on their record. It will appear in
court, and the judge will know that they were convicted before. If the person
has already been convicted, no lawyer can stand up in court and say, "My
client does not have a record, so give him a discharge."
Senator Nolin: How do you reconcile these two statements, Mr. Normand?
Mr. Normand: As far as I could see, the only offence punishable exclusively on
summary conviction is breach of probation, and in order for probation to be
breached, an offence had to be committed in the first place that necessitated
taking fingerprints. From that point on, the case just runs its course,
Senator Nolin: What happens to the fingerprints of a person charged with a
Mr. Normand: They are kept.
Senator Nolin: You keep them.
Mr. Normand: Yes, the police keeps them. Under the Identification of Criminals
Act, fingerprints may be taken if there a chance the offence could be an
indictable offence, therefore an hybrid offence.
Senator Nolin: Regardless of the type of procedure that may be used after?
Mr. Normand: Yes.
Senator Nolin: I will have another question, but on a different subject; I shall
therefore yield the floor to Senator Lewis.
Senator Lewis: Senator Carstairs dealt with my question. It related to clause 53
and the continuity of an affidavit. You have already explained that, but I take
it this clause is really one means of speeding up the process by showing that
an exhibit to be used in evidence is being held by the authorities or the
Mr. Kellerman: Not just held by them, but telling where it was taken and where
it has been since it was taken. That is what "continuity" means, a
continuous line of control over the substance.
Senator Lewis: In other words, your problem seems to be a matter of tampering
Mr. Kellerman: Yes, absolutely. That is what happens in courts in real life.
Senator Lewis: I know there are many legal fictions. One of them is that we have
to assume that evidence is protected.
Mr. Kellerman: That is why I said that, just last week, they charged police
officers with tampering with evidence and planting evidence on people. They got
the evidence somewhere other than from the accused. This is not uncommon. It
happens in the courts. It happens fairly frequently where judges are saying
publicly in court, "I do not believe this officer about where he said he
got this drug."
Senator Lewis: This will come as a bit of a shock to the public.
Mr. Kellerman: I know, but if we presume that the police always tell the truth,
why do we have trials? That is what trials are about. There is a presumption of
innocence. In the face of the defendant saying, "I did not have that drug,
and it was never on my body, and I never had control of it," why would we
allow that to be overruled by affidavit evidence?
This clause says that the judge "may", not "shall".
Senator Nolin: If he is asked. It is up to you to ask.
Mr. Kellerman: Of course.
Senator Nolin: That is why it is "may".
Mr. Kellerman: Maybe, but if you are asked, then it should say, "if he is
asked, shall...". I do not know; maybe "may" means "shall"
here. It means "shall" sometimes.
Senator Nolin: He is a judge.
Mr. Kellerman: Sometimes the judge "shall" do some things; sometimes
he "may". If the judge has to produce the affiant, I do not see that
as a huge problem. However, the judge does not have to, and I do not think the
defence should have to make any argument. If they want the police officer there
to cross-examine him, it should be clear that they have the right to have him
there to be cross-examined. That is what I am saying.
Senator Lewis: If it was "shall", it would destroy the whole purpose
of the clause. If the court "shall require" the person who makes the
declaration to be cross-examined, it would be the same as if you never had the
clause there at all.
Mr. Kellerman: It should be reworded to say, "If the defence asks, the
Senator Nolin: I am better in civil law, but if you have an affidavit, you are
always allowed to ask questions of the person who signed the affidavit. Is it
different in criminal law?
Mr. Kellerman: You will not adjourn a case to go and cross-examine someone on
their affidavit in a separate proceeding. I know that happens in civil law. In
criminal law, generally, it is all in court. I know there are situations where
sometimes someone who signs an affidavit is cross-examined outside the court on
a separate occasion.
Senator Nolin: As long as I can have access to cross-examine the person who
signed affidavit, anywhere in the world, okay.
Mr. Kellerman: Then you must produce the transcript in front of the judge. It is
better for the judge to see the witness in a criminal case where the central
issue is, "Did this person have the drug?" That is the central issue
in the whole case. They are charged with possession or charged with possession
for the purposes. It does not make sense that the central issue in the trial
will take place outside the presence of the judge.
Senator Nolin: If you take clause 53(2), that is perhaps the reason for "may".
If a lawyer makes his or her case to the judge -
Mr. Kellerman: You should not have to. That is what I am saying. This is written
by the prosecution to shift the burden for an accused person to ask that a
witness in the case, who is central to the whole case, show up. That is
ridiculous. I mean you would not like that if you were being prosecuted for a
It should be obvious that this little bit of amending is an effort to try to
make the process easier for themselves, the prosecution, not just to save
costs. It goes to the central issue in the trial. I am not arguing about the
I am not arguing about the drug analyst. A similar provision exists for the
analyst to send a certificate to the court to say, "I received the drug. I
analyzed it. It turned out to be cocaine." However, that is not so central
because usually the person is not saying, "This was not the drug",
although sometimes that becomes an issue, too.
I think this is erosion of the idea of having a trial in a court before a judge
where you can face your accuser.
The Chairman: Would you say that we are violating a principle of the Charter of
Mr. Kellerman: I would say so.
The Chairman: Which one?
Mr. Kellerman: I refer to Section 7, the right to a fair trial and fundamental
The Chairman: You think this violates that?
Mr. Kellerman: I believe there is an argument to made for that. There is
probably another section which is violated, but I am certain that section 7 is.
We have the right to a trial according to the principles of fundamental
justice, and fundamental justice entitles you to face your accuser; the person
accusing you of being in possession of a drug. That is the central issue in the
case. I do not think you should have to ask permission to cross-examine that
The Chairman: On behalf of the committee, I wish to thank you very much.
Mr. Kellerman: Thank you for hearing me.
The Chairman: Our second group is from the Addiction Research Foundation.
Dr. Perry Kendall, President and CEO, Addiction Research Foundation: Thank you
for inviting the Addiction Research Foundation to make comments on Bill C-7. The
foundation is one of the largest centres for research into alcohol and other
drug problems in North America. We are an agency of the province of Ontario. We
conduct research, we develop new treatment approaches and prevention programs
and we deliver training to health professionals in addictions. We are also the
largest treatment centre in Ontario, as well as being a collaborating centre
with the World Health Organization.
The foundation has actually appeared before committees of the House of Commons
twice in recent years to discuss this bill and its predecessor, Bill C-85. As we
said on those occasions, we believe that society should address drug problems
the way it addresses any public health problem: through health promotion and
prevention and through treatment.
In addition, we believe that irreducible drug use is best dealt with from a
perspective that encourages harm reduction and a careful calculation of the
benefits and unintended costs of proposed social controls. In this context, we
believe that Bill C-7 is a sadly missed opportunity.
Countries do not examine, discuss and alter laws of this nature very often. When
they do, we believe there should be an opportunity for broad discussion and
debate, for consideration not only of existing laws but of the way they are
enforced, for consideration not only of what substances should be included, but
of what happens in the lives of people who are subject to both the laws and the
substances because, once again, drug use is a public health program. Criminal
laws can and should play a part in the community's response to drug use, but
they are only one part of an effective response. They should be considered in
the context of a broader approach.
Such an integrated approach is nominally the very essence of the government's
own drug strategy, a strategy which was initially funded in 1987 and, in 1992,
was re-funded by $250 million for five additional years. Its overall objective
is to reduce the harm to individuals, families and communities from the abuse
of alcohol and other drugs. To do this, fully 70 per cent of that budget is
allocated to prevention, education and treatment.
The strategy defines the harm caused by substance abuse as including sickness,
death, social misery, crime, violence and economic costs to the community.
I should like to read to you the basic principles of the strategy that are set
out in the government's own publication on the subject:
It has become clear to all involved in the Drug Strategy that there are no
simple solutions to Canada's drug problem. Substance abuse has been with us
since the beginning of time. The problem will not go away tomorrow. Solutions
require a long term commitment. We now accept that the only way to solve the
problem so that it stays solved is to change people's attitudes and lifestyles.
This is not a short term goal.
For many years, the federal government believed that the best approach was to
concentrate on stopping the flow of drugs within Canada and abroad. But Canada
soon learned, as have many other countries, that reducing supply is not enough.
A balanced approach that focuses on both demand and supply reduction is
critical to success.
Canada has also come to realize that problem drug use is an issue too big, too
complex, too expensive for any one group, including governments, to resolve in
These words are reflected in the priorities set by the strategy, priorities
which include but do not focus on the passage of a controlled drugs and
substances bill. I can also tell you that the concepts behind the drug strategy
are consistent with the more than 45 years of research, treatment, prevention,
education and training at the Addiction Research Foundation.
I mentioned a moment ago that drug use is a public health problem. I shall
expand on that a little.
Nearly three-quarters of Canadians aged 15 or over drink alcohol and about
16,000 Canadians died from direct alcohol- related problems in 1991, for a
death rate of 12 deaths attributable to alcohol per 100,000 population.
Tobacco is smoked regularly by more than 30 per cent of Canadians and caused
about 30,000 deaths in 1981, giving a rate of death of 177 per 100,000
In contrast, the rates of consumption of all licit and illicit drugs, which
includes over-the-counter preparations and prescription medications as well as
the illicit drugs that are mentioned in this bill, are lower and the rate of
all these drug-related deaths was 1.8 per 100,000 Canadians in 1991.
Part of the foundation's mission is to reduce deaths from alcohol, tobacco and
other drugs. Another part of our mission is to assess harms associated with
drug use, both those caused by the drugs themselves and those caused by social
policy initiatives. We have assessed Bill C-7 through the lens of this public
health approach and, quite frankly, we also find it wanting.
There are obvious differences in how this society approaches different drugs. On
current patterns of use, the two most harmful drugs - alcohol and tobacco - are
legal for adults to possess and purchase and are subject to relatively few
restrictions. In fact, tobacco, which we know kills tens of thousands of
Canadians each year both directly and, in smaller number, indirectly, is
readily available in corner stores, can now be legally advertised and can be
easily purchased by underage teenagers.
By contrast, cannabis, the most popular illicit drug, is subject to relatively
severe penalties. The penalty for possession of even a small amount will mean a
criminal record and may have lifetime repercussions. The penalty could close
doors on careers and it could restrict ability to travel to other countries. It
could also mean diminished contributions to society, both socially and
economically, on the part of those with a record.
The criminal law is the strongest instrument of social policy and should be its
ultimate resort, applying the force of government against perceived wrongdoing.
The criminal law is built on two basic premises. Its primary goal is to impose
punishment on violaters of collective roles, and it assumes, as well, that
potential offenders are rational beings who have the choice between right and
wrong. This assumption and the role of punishment as a deterrent have
limitations when directed toward drug users as opposed to drug sellers.
In practice, the weight of the law falls mostly on young drug users who are
often experimenting with substances like cannabis, just as they do with alcohol
and tobacco, or it falls on drug users who are frequently physically and
psychologically dependent on more dangerous substances likes crack cocaine or
In our opinion, these people are seldom helped by legal punishments. Rather,
they need stable family and social structures, housing, employment,
counselling, treatment and education about drugs.
If Canada is to revise its drug laws, new legislation should spring from a
framework where substance abuse control programs develop from the same
principles for both licit and illicit drugs.
These programs and principles should include a mixture of education and
prevention, treatment and rehabilitation, social controls, and legal controls
For a law to actually work, I submit that it should meet three tests. It must be
effective, accepted, and equitable. It should not cause more problems than it
is trying to prevent.
Will Bill C-7 meet these three tests? The weight of the evidence that we have
put together over the years would suggest that, for the most common illicit
drugs, it will not meet the tests.
Let us look at the first test: Will it be effective?
We think it will not. Recent trends in drug use under the current law indicate
that the law does not significantly deter people from using drugs.
Every two years, the Addiction Research Foundation conducts the Ontario Student
Drug Use Survey. The survey shows that drug use of all types was in a long-term
decline since the late 1970s to approximately 1991.
This year's survey, however, found an increase in the use of several drugs,
particularly cannabis, the use of which nearly doubled to 23 per cent among
Ontario students since 1993. Cannabis use, which is defined as using cannabis
in the past 12 months, among Grade 11 students has now reached 40 per cent,
which is roughly the same percentage of kids who smoke tobacco. Grade 9
students also showed significant increases in cannabis use.
Dr. Reg Smart, who is my colleague at the foundation and perhaps the country's
leading addictions epidemiologist, writes that although our drug laws are
premised on deterrence theory - that strong laws with stiff punishments will
keep people from doing bad things - there is good evidence that people obey
laws because of a general respect for law and for society's values, not for
fear of punishment.
His work tells us that if you ask students why they do not use cannabis, they
mention lack of interest, concerns for health or other reasons. Only slightly
more than 1 per cent said that illegality was important to their choices, and
only one-third of 1 per cent do not use cannabis because they fear being caught
The same trend in use that we found in the student survey has been mirrored in
other countries. Cannabis use is now increasing in the United States and in a
number of jurisdictions in Europe where the data has been examined.
In some of these countries, and even within the United States, there are states
with stricter drug laws than Canada's. Other states or countries have more
lenient laws. We can find no discernible relationship between patterns of use
and the severity or the leniency of the law.
Our current reality is that one in four adult Canadians has tried cannabis with
about one in twelve currently using it. The great majority of these are neither
dependent on it nor addicted to it. We also have more than a half-million
Canadians with a criminal record for possession.
A seminal study by my colleague Dr. Pat Erickson looks at people who have been
convicted of cannabis possession. She found that one year after being sentenced
for simple possession, 92 per cent of first offenders were still using it.
Many studies have shown that heroin addicts return very quickly to addiction
after a prison term and are not in fact deterred. The foundation's study of
cocaine users in the community showed that, although more than half had friends
who had been convicted, almost none expected to be caught themselves.
Between 1974 and 1981, the profile of a typical cannabis possession offender was
that of a young single male possessing less than 14 grams and continuing to use
the drug after conviction.
A study of an older group using cannabis for an average of 13 years found that
the users had no difficulty obtaining a regular source of supply and had little
concern about getting caught.
Another study found that a group of cannabis offenders considered injection drug
use dangerous and thought the risk of harming themselves with all drugs except
for cannabis was much greater than the risk of arrest.
Although our current drug laws and Bill C-7 target hard drugs, in reality, the
law as it is actually applied is primarily used against cannabis. Some
two-thirds of the more than 50,000 drug offences a year in Canada involve
cannabis. As well, 65 percent of the offences are for drug use, often meaning
simple possession and not trafficking.
In other words, the laws are not being used primarily in supply reduction, and
the demand side-effect of them would also seem to be minimal. Much police and
court time is therefore being diverted from activity against large-scale drug
enterprises. There is no reason to suppose that the reality would be any
different under Bill C-7.
Let us look at another test for a law: Would it be accepted by the people it is
expected to impinge upon?
In the Ontario Student Drug Use Survey, we found a shift in attitudes among
students towards drugs. Fewer students perceived cannabis to be a great health
risk. They also perceive cannabis to be more available now than two years ago.
In other studies I mentioned a moment ago, even people who have been convicted
for possession are not deterred from subsequent use. For people who use
cannabis, the law seems to be irrelevant in terms of their decision to use.
They do not accept it as a guide for their personal behaviour. For non-users,
it is debatable whether its legal status is the major factor in their decision
to not use.
It could be argued that the public agreed that criminalization is not the
answer. In a Statistics Canada report released one month ago, 27 per cent of
those polled thought that cannabis should be legalized, and 42 per cent thought
it should be illegal but subject only to a fine or a non-jail sentence.
What about the third test: Will Bill C-7 be equitably applied?
Both enforcement and sentencing under the current laws are inequitably applied.
You heard that quite eloquently from the previous speaker. Among the drug-user
population overall, arrests are over-represented among youth, the homeless, the
marginal and visible minorities. Cannabis users who are middle-class and
approaching middle age are less likely to be caught. Consequently, the law is
and is seen to be applied unequally.
To apply the law equally and consistently would, I submit, require an even
greater diversion of resources away from large-scale trafficking and other law
Court sentences also vary greatly between and within provinces. Nationally, the
most common sentence for simple cannabis possession is a fine. A study in 1980
found, however, that while nationally 29 percent of all such offenders in
Canada received a discharge, in Ontario, 47 per cent could expect a discharge,
and in Toronto, 75 per cent could expect a discharge.
We have to consider the effect of Bill C-7 on the next generation. Cannabis use
is up for students in Grades 9 and 11 in Ontario, and we suspect among young
adults as well. What would be the benefit of criminalizing the cannabis smokers
amongst this cohort? They are not likely to stop using. Criminal convictions
are likely to hinder their future as productive citizens of this country, and
discharges are unlikely to engender any form of respect for the law.
Bill C-7 retains criminal penalties for most offences continuing in the
punishment-based tradition of the previous statutes. There is little
consideration of public health or diversionary or alternative treatment issues.
Any sentence, discharge or fine under the proposed summary-only offence for
small amounts of cannabis still creates, according to our lawyer's advice, a
criminal record, although I understand there is considerable debate around
The specification of aggravating factors in the bill, whilst it is
well-intentioned, may also not hit its intended target. The target I presume is
the corrupter of youth or the large-scale drug trafficker who hangs around
school yards trying to sell drugs to kids and hook them. In reality, you do not
find these traffickers in schools. Young people tend to buy their drugs from
other young people who are smoking in their milieu.
Here again, our concern is that Bill C-7 does not match the reality. We are
concerned that an attempt to deal harshly and rightly with those who prey on
youth will only further serve to punish youth who would be the main
beneficiaries of the effect.
There are a number of other concerns and questions about Bill C-7 from the
public health community.
Agencies that are fighting the spread of AIDS with needle exchanges are still
worried about the definition of containers as substances. Despite the
assurances of the government, we are not fully confident that these critical
programs will continue unhindered. If it is not the intent of the bill to
hinder needle exchange programs but to exempt them, then let it state that
We are also concerned about the way drugs are scheduled in Bill C-7. As my
colleague Dr. Harold Kalant, who is a scientist emeritus with the foundation,
says, the scheduling is scientifically illogical.
The scheduling in Bill C-7 is a legacy from the 1920s, when all the so-called
narcotics were lumped together. Dissimilar drugs can be found in the same
schedule while similar ones are found in different schedules.
For example, coca and phenocyclidine are still lumped together with most of the
opiates in Schedule One as they were in the Narcotics Control Act, while
amphetamine and its derivatives are in Schedule Three and khat is in Schedule
Four together with barbiturates. Yet cocaine and amphetamines and the active
ingredient in khat are almost identical in their action. Amphetamines have
nothing in common with LSD or methaqualone.
One of our biggest concerns about Bill C-7, however, is that it largely ignores
alternatives that are open to it. The bill states in section 10(1) that it
encourages rehabilitation and treatment under appropriate circumstances.
However, it does not specify for whom treatment should be given or under what
circumstances. It does not specify how offenders are to be assessed for their
need for treatment, how much treatment is to be given, whether it should be
done before, after or during sentencing or incarceration nor whether treatment
could be a substitute for incarceration or other penalties.
In its desire to conform to the international drug control treaties, the
government seems to have overlooked the fact that the 1988 Vienna Convention
explicitly allows non-criminal alternatives to incarceration. In principle, the
1988 convention requires signatory states to regulate cannabis possession as a
However, in fact, article in 3(4)(d) of the convention, it is explicitly stated
...parties may provide ... as an alternative to conviction or punishment ... of
a [possession] offence, measures for treatment, education, aftercare,
rehabilitation or social reintegration of the offender.
The provisions currently made in Bill C-7 for the control of cannabis use and
possession, therefore, exceed in stringency the requirements set by the
international drug control regime.
I know that one of the arguments for putting this in the bill and having
cannabis criminalized is that it is necessary to do that to meet the
international conventions. Even more significantly, they ignore the spirit of
the international convention which explicitly allows for the establishment of
Although section 10(1) of Bill C-7 suggests a move in this direction, these
alternatives should be clearly written into the letter of the law to encourage
their implementation. Bill C-7 therefore misses an important opportunity to
humanize drug legislation in Canada and provide care for addicted offenders.
In 1994, the Chief Coroner of British Columbia, who is himself a former
high-ranking RCMP official, conducted an inquiry into in excess of 300
narcotic-related deaths in British Columbia. Among his recommendations, he said
the Ministry of the Attorney General should enter into discussions with the
federal ministers of justice and health on the feasibility of decriminalizing
the possession and use of specified substances by people shown to be addicted
to those specific substances.
He also recommended the College of Physicians and Surgeons of B.C. should review
the medical, personal, and social feasibility of providing a para-medical
heroin maintenance program and that the Ministry of the Attorney General should
seriously inquire into the merits of legalizing the possession of some of the
soft drugs such as marijuana.
Without debating the pros and cons of that, it would seem to us that it would
make sense for these options to be discussed before the passage of such a bill
as C-7, rather than afterwards.
Canada's drug strategy recognizes the harm-reduction approach to drug problems,
which is an approach which is also promoted by the foundation. Harm reduction
acknowledges the reality that, like it or not, psychoactive substance abuse has
been, is and will be part of all human societies. We do not have to like it, we
should not encourage it or condone it, but we should seek ways to prevent and
minimize the harms that may result from it.
Aggressive enforcement has been associated with public health harms including
the phenomenon of illicit substances becoming purer, more potent and cheaper in
recent years. Some suggest that the prohibitionist policies south of the border
have increased the size of illicit markets, the potency of the drugs and the
profits from the trade.
We are concerned that, in a tiny way, the same pattern could happen to khat, a
drug which in plant form is popular in eastern Africa and the Arabian peninsula
and is used by a considerable percentage of some immigrant groups in Canada.
Criminalizing this drug as this bill would - and the drug is currently only
available in the form of a vegetable - could have the unintentional consequence
of encouraging sellers and markets to refine it into a more potent powder whose
effects would be potentially more severe than the current use of the vegetable.
We are concerned that criminalizing khat would create a new form of a dangerous
drug and criminalize a whole community in this country.
I would submit that we should be looking at the experiences of other countries,
notably Australia, the Netherlands, Germany, Italy and Spain, who have responded
differently to their drug problems and have yet met the requirements of the
My colleague Benedikt Fischer could give you more details, but I will briefly
touch on a couple.
South Australia is an Australian jurisdiction which is quite similar to Canada
in terms of its legal system as well as its drug use patterns. It has
introduced a civil "expiation notice" system for cannabis possession
offenders. First-time and subsequent offenders for possession are given an
on-the-spot fine for the violation which does not carry any criminal
repercussions at all. Evaluations show that the criminal justice system, as
well as large parts of the population, appreciate this system, and the use of
cannabis and other drugs in South Australia has not increased compared with
The Netherlands, for almost two decades, has implemented a harm-reduction
approach to the use of cannabis and other drugs. The Dutch tolerate the
possession of personal amounts of cannabis and other drugs and allow
consumption and availability in designated locations, thereby separating users
from other illicit drug trade markets. Dutch society seems to tolerate this
approach and there has been no explosion of domestic drug use.
Most states in Germany, which have a long history of prohibition, have,
following a recent constitutional court decision, stopped enforcing their drug
laws against users of cannabis and other drugs. Drug-related health problems
and crime in these states have decreased substantially. The emphasis on these
reforms is on the users. The commercial large-scale drug trade remains, of
course, the appropriate target of the law and criminal justice system.
We are not here presently advocating for legalization but we should acknowledge
the existence of a multi-nation movement towards drug policy reform which is
based on the objectives of rational pharmacology, a public-health-oriented
separation of drug markets, and comprehensive cost-benefit analysis addressing
both the consequences of heavy drug use and those of harsh criminal measures
against all drug users.
At this point, as expressed in Bill C-7, Canada is ignoring this trend in
policymaking. In short, the government is moving forward with Bill C-7 in a
contradictory policy environment. The result has been criticized in many
quarters. Professors Usprich and Robert Solomon, from the faculty of law at the
University of Western Ontario, have written:
The new legislation leaves untouched the vast majority of the problems with the
existing legislation and creates several new concerns. The proposed legislation
is more complex and impenetrable than its predecessors. It perpetuates punitive
legislation based on a drug mythology that the Le Dain Commission's findings
should have laid to rest 20 years ago.
If the purpose of the bill is reduce drug use and abuse in Canada, then we
believe it is unlikely to achieve its purposes. It is unlikely to act as a
deterrent. It is unlikely to end the inequitable application of the law. It is
unlikely to decrease the supply of drugs in this country. It is also unlikely
to reduce the harm caused by drugs.
The government has indicated that the passage of this bill will be followed by a
review of the policy context for drug control in Canada. With respect, this
timing makes no sense to us.
The Addiction Research Foundation suggests that a policy review should precede
policy formulation. Our lawmakers should have a better sense of available
options and alternatives than have been presented around Bill C-7.
Prevention of drug use, a reduction in drug use and a reduction in the harm to
Canadian society can be better accomplished through education, social controls
and treatment rather than through a single-minded focus on criminal penalties
We would now be happy to answer any questions or elaborate further.
Senator Pearson: I agree with most of what you say. When you deal with young
people particularly, deterrence is not very effective. It does not matter what
particular issue you are talking about, whether it is sexual behaviour or a
young offender's behaviour or whatever. This piece of legislation is trying to
put together some other pieces of legislation and move ahead.
You gave a presentation to the House of Commons committee.
Mr. Kendall: I was not there personally, but Mr. Kalant, Ms Erickson and Mr.
Senator Pearson: What you say is extremely reasonable, but all of this takes
place within a larger context of the Canadian population's thinking. I am sure
you have thought about this, but it is a question of how the general public
reacts. When you come to the solutions to some of the problems that you have
outlined, it will have to be done in this highly controversial area with
considerable delicacy. As I read your brief, at one level it makes sense but at
another level I do not see it flying. Do you have some comments on that?
You are a little dismissive of the policy review, and I can see why, but it is
the best thing with which we have to work.
Mr. Kendall: I am not dismissive of the policy review. None of us are dismissive
the policy review. We would like to see a policy review. We would very much
like to hear what the broader population of people, as well as experts, lawyers
and others, would like to say. We should like to see a detailed presentation of
a number of options from which policymakers or lawmakers could choose. We just
do not think that choice has been presented either to the broader public or to
the people here.
Dr. Harold Kalant, Director Emeritus, Addiction Research Foundation: One of the
functions of the law which is not used to best advantage - and one of the
reasons why we feel this is a missed opportunity - is its educative or
normative function. The law not only prohibits certain behaviours and applies
penalties for them but also codifies what the society feels with respect to its
values, goals and approaches; that is, the picture of the society that it
wishes to present to and of itself. For that, the law could have, and we feel
should have, a much expanded version to give credit where credit is due.
In passage through Parliament, there was the addition of a mini-preamble in
section 10(1) referring to the concepts of rehabilitation and treatment as
legitimate concerns and goals of the law. But there could have been a much
fuller treatment of it, namely, a preamble to the entire piece of legislation
setting out how the government and the people of Canada, whom it represents,
see drug use, drug abuse and drug addiction; what their values and views are
about acceptable behaviour; and what they see as the difference between
punishment and treatment or prevention or rehabilitation.
A philosophy could have been set out which would underlie a coherent piece of
legislation. That advantage has not been taken yet.
Senator Pearson: If you were to get agreement on that kind of thing, it would be
a miracle in our society at this moment, which is moving to the right.
Mr. Kalant: But there could well be certain general principles upon which the
majority would agree.
I agree that the principles would provoke argument, but agreement could probably
be reached on general principles.
My concern as a pharmacologist - and I teach this subject in the medical school
at the University of Toronto - is that, even within the context of the present
act, such a logic is not apparent in the schedules which are fundamental to the
act. The penalties are prescribed in terms of the schedules. As Mr. Kendall
already pointed out, cocaine is in Schedule I; amphetamine and cathinone in
Schedule III; khat and caffeine and other amphetamine-like drugs such as
phendimetrazine and diethylpropion are in Schedule IV, but no explanation is
given concerning why that is done.
Schedule IV throws together totally different drug types - that is,
barbiturates, amphetamines, benzodiazepines, Nalbuphine and anabolic steroids,
which have no known effect on mental functions or behaviour, though they are
bad for sport and for the athletes who use them. But that is a totally
Schedule I includes most of the active opiate drugs yet it is quite arbitrary
within categories. For example, nalorphine in one of the sub-categories is
included, while levallorphan is excluded, yet they act in exactly the same way
and carry the same advantages and disadvantages. Pentazocine is in yet
cyclazocine and nalbuphine are out. These are all drugs of the same
pharmacological category and have the same effects.
Fortunately, naloxone, a blocker of opiates, has now been excluded. That was an
improvement that was made in passage. Yet a new drug, naltrexone, which is
recommended for the treatment of alcoholism and of opiate dependence, is not
even mentioned. Its legal status is left up in the air.
Schedules VII and VIII take account of different amounts of cannabis. How is
this related to Schedule II, which lists cannabis and all the cannabinoids
without reference to amounts. There is simply a lack of a logical, coherent
setting-out of why the different drugs are being set into different schedules
to be treated in different ways to carry different punishments. It is this kind
of lack which was characteristic of the Narcotic Control Act and which,
unfortunately, has carried through into the new consolidated act and represents
no improvement whatsoever in the application of the knowledge to a logical
framing of the law.
Senator Pearson: We will try to follow that up and get more logical information.
Mr. Benedikt Fischer, Researcher, Drug Policy Research Group, Addiction Research
Foundation: I wish to make a comment on the issue of the policy review. We have
heard that a number of times. It has always been presented as if the policy
review could and would take place as a separate enterprise aside from the law.
We must understand here that, within Canada's drug policy, the criminal law is
the central instrument. No reasonable and comprehensive policy review can take
place without considering and examining this particular law as the central
instrument of policy here. That is the kind of paradoxical thing that seems to
take place. We imagine that a policy review is possible, totally disregarding
The criminal law - that is, the Narcotic Control Act at the moment and possibly
Bill C-7 in the future - is the central instrument of drug policy in this
country that puts all other non-criminal needs and alternatives into secondary
place. That is the problem at the moment. That is why it is so important to
regard and consider the criminal law as the momentary central instrument of
policy in this country. We should ask ourselves: Is this what we want,
especially in regard to drug users?
Dr. Reg Smart, Head, Social Epidemiology, Addiction Research Foundation: It
seems to many people, myself included, that drug possession is a victimless
crime. The only victim is usually the possessor himself and there are no
victims for most drug possession cases. Almost all the law we are talking about
will be exercised against possessors of small amounts of cannabis and usually
involve young people who usually do not have amounts that they would be selling
or giving away.
If this is a victimless crime, we must understand that most victimless crimes
have been done away within Canada. For example, suicide used to be a crime.
People were put in a jail if they attempted suicide. We also did away with
homosexuality as a victimless crime.
We must also understand that in Canada, we do not change drug laws often. It is
usually done only every 20 years or more. We see this as an opportunity to
rethink what we are doing in the context of the modern era and in the context
of an era that has gotten rid of most kinds of victimless crimes.
The idea of having a policy review after we have made all these changes in Bill
C-7 seems the wrong way to go about things.
We should like to see all the issues we are talking about - that is, all the
issues around decriminalization, how the law should look, the role of
rehabilitation treatment and education - dealt with in the policy review, and
out of the policy review should come some new legislative instrument.
If we have Bill C-7, everything would be frozen. There would be a great
reluctance to move on from Bill C-7. The policy review will be very much
limited in the kinds of things that it can do. That is our concern in part.
Senator Carstairs: While I agree with almost everything that you have had to say
today, I do not agree with your last statement that possession is a victimless
crime, because I do not think you have traffickers unless you have possessors.
If you do not have people who want to have a drug, then why would anyone
traffic in that drug? There must be a need in order for trafficking to take
place. Think about that one for a moment.
More specifically, I wish to address the issue of your study. I started my
teaching career in the early sixties, when I had students who were convicted
and sent to jail for two years less one day for simple possession of marijuana.
It had no deterrent effect whatsoever. I could smell marijuana when I walked
into a classroom. But there seemed to be - and your study verifies that - a
significant change between 1971 and 1991. The use of cannabis, in all its
variety, seemed to decline. Now it seems to be going up again.
Can you give us any explanation for why that is?
Mr. Kendall: Our studies do not go into that. We are just now starting to look
at that. There are a number of theories. Tobacco smoking has gone up. One
theory is that cigarettes might be a gateway drug to marijuana.
The human lungs were not built to ingest hot gases at 400 degrees, but perhaps
once you start with cigarettes - and people are certainly starting with
cigarettes before they begin to smoke marijuana - there may be a cause and
There might be a generational effect also. It is approximately 20 years since
the last peak. We are now seeing, perhaps, the kids of parents who were at that
peak and who carry different values and may be smoking themselves still.
Generational cycles tend to appear. It may be the sixties revisited. Platform
heels have come back in again as a fashion.
Mr. Smart: I am not sure that the increase that we have seen recently will be a
long-term increase. Sometimes there are little blips and sometimes there are
We have seen in the study that the increases in cannabis use are not widespread.
They do not occur in all segments of the school population. They only occur
amongst males and among Grade 7, Grade 9 and Grade 11 students.
Age for first use of cannabis has not changed. Rates of alcohol and drug
problems have not changed. We are looking at this most recent increase with
regard to whether or not this is a long- or short-term increase. Right now, we
do not know the answer to that.
Senator Carstairs: Would you like to address the other issue concerning
Mr. Smart: When I was talking about drug possession, I was talking about
possession-only cases. Of course, all kinds of drug offences involve some sort
of possession. Importing, trafficking and growing are all possession cases in
the broadest sense. I am talking about cases that come to court as simple
possession cases not involving importing, trafficking, growing, et cetera. The
vast majority are those.
Senator Carstairs: But if a young person could not get possession of a drug, it
would be different.
Mr. Smart: If you are to import cannabis, then you will have to possess it.
Senator Doyle: I am looking at my underlining on Mr. Kendall's presentation. In
particular, my interest was provoked by the comment that, among the drug-user
population, overall arrests are over-represented among youth, the homeless,
marginal and visible minorities.
From the point of view of a writer, I can recall having put some similar
statements down on paper more than 30 years ago.
While we are talking about changes, I was struck by the opposite - that is, how
little things do change.
I remember once writing a piece saying that there is a great deal of attention
being paid by the police to people who are using cannabis, cocaine, and so on.
If they want to catch these people, they should increase their take by going to
every rock and roll concert that is held in this community, namely Toronto.
But, strangely, the police do not go there to find the users. They wait until
they find people who might be described as the very young who cannot afford
rock concerts, the homeless, the marginal and the visible minorities.
Why is that? Why are the police not concentrating on that if that is where they
want to be effective in stopping users? I do not seem to have the answers. I
did not have answers 30 years ago either.
Dr. Patricia Erickson, Senior Scientist, Addiction Research Foundation: As
someone who has done a lot of studies that involve interviewing cocaine users,
crack users and marijuana users, I am struck with how the general population of
users that we see in our surveys and that we can approach through our methods
of contact are all functioning pretty well.
But when you get down to the street level, you find that the people that are
most criminalized and most involved with drugs are these marginal groups.
Street youths experience a lot of arrests and police attention, as do the
under-privileged in the downtown area.
It is not that the police set out to discriminate so much as these are the
people who are easy to catch. They are visible. The marijuana users are
downright foolish about how they use the drug sometimes in public and in their
cars. They think that they are invincible and they get caught. There is a
certain amount of visibility that goes into these decisions.
But I would emphasize that, in these police actions which we are seeing more
often in the States - I closely follow the research of my many colleagues there
- a dramatic over-representation of blacks is showing up in arrest statistics,
way out of proportion to levels of use. This is beginning to undermine the
fabric of the justice system itself.
We are at a point in Canada where we are about to continue the tremendous powers
that the police and courts have and strengthen them to continue a drug
enforcement effort that will focus on these groups, again, in a way that is out
of proportion to the real threat or harm created by drug use in society.
We must look at other examples. We must say, "What kind of country do we
want?" We see too much of the U.S. It scares us and it should. We tend to
see the tools as drug-war tools because that is society is so often exposed to
that. However, if people had time to be educated by the diversity of approaches
taken in other countries, where drug problems are more contained and where drug
users are helped and tolerated, you would see that the social problems around
drug use are much less and far less than is seen in the United States.
I see this bill as not insignificant at all but as very much an issue of the
future of our country. To my mind, it is on that scale.
Senator Doyle: I would only add one thing to what you said. Thirty years ago, we
were looking - sometimes with the help of the Addiction Research Foundation in
Toronto - at the special cases, for example, those who were blacks, immigrants
and people who were otherwise young offenders. It was not until some years
later that that I found among the terrible offenders, although they were never
caught, were my son and my daughter. One evening, the subject came up in
conversation. They had an hilarious time telling mother and father about how
they had narrowly escaped the law in this instance, us in another instance and
all the surveys in further instances. They now seem concerned about what their
own children will do.
I do not know what lesson that provides except that perhaps it is not just this
generation any more that Senator Pearson was speaking about. It was not just a
generation of what we thought were peculiar people.
The problems seem to be continuing, but the law does not seem to be changing
very much. Or is it? Is the law going off on any new tack about which you would
say to us, "Good on you"?
Ms Erickson: One small point is that cannabis is now in Schedule II and
separated from the traditional "narcotics". That is one small,
symbolic step which I applaud. If you then followed through with actually
setting out an offence-and- penalty structure that would, at least in the short
term, reduce some of the more obvious harms, then that could be a significant
As it stands, the bill could have been created almost without the Le Dain
Commission or 20 to 25 years of research and experience. I think this bill
underestimates the intelligence and awareness of the Canadian public about drug
use and drug problems. I think the public is now ready for a bill that would
take us into the year 2000 instead of taking us back to the 1960s.
Senator DeWare: Am I getting the impression that we are, in a way, talking about
Mr. Kalant: As several speakers have pointed out, one of the problems is that
decriminalization is a fuzzy term which has meant different things in different
jurisdictions. None of us is saying that all drug use should be made legal, open
and readily available. Personally, I do not believe that even marijuana should
be made legal because the expression of disapproval that is implicit in having
it called illegal helps to shape attitudes. Even if one cannot prove that it
acts as a specific deterrent, it may well act as a general deterrent in the
sense of making one aware that it is not something that society thinks is very
What we are talking about is not applying criminal sanctions of a gravity or
severity that are totally out of proportion to the magnitude of the harm that
is produced by the great majority.
Senator DeWare: I think taking a young person and putting them in jail for five
or six months and fining them $5,000 will not make them stop using the drug.
I should like to talk to you about the Addiction Research Foundation. You deal
with all drugs, such as alcohol, cigarettes and so on. Do you propose
rehabilitation programs to other institutions? With how many are you
Mr. Smart: I am not sure how many affiliates we have. It is a large number.
Many of us teach at the University of Toronto, so we have a close university
connection. We also have lots of relationships with community organizations and
with community treatment centres, of which there are approximately 40 or 50.
We make our research available widely throughout Ontario, Canada and the whole
world. Therefore, we have relationships with other research institutions in
other countries, such as the United States and other places.
Senator DeWare: We seem to send many people who are addicted to alcohol or
cross-addicted to alcohol and drugs to Ontario. I am familiar with Don Wood and
Holmwood, both of which seem to have decent records. Basically, in respect to
those institutions, we are talking about older people. What about the younger
people? Where do our 13- and 17-year-olds go to obtain the kind of help that
Mr. Smart: There are treatment programs in Ontario which specialize in treating
young persons. We do have such programs of our own. There are quite a number of
Sometimes young people have a great deal of difficulty finding out where they
are, how to get into them, how good they are and whether the program is the
kind they want. There are some issues centred around accessibility to such
Senator DeWare: In a province, who would the contact person be to gain access to
that kind of help, provided they want it? If you did it province-wide, who
would be your contact person?
Mr. Kalant: Apart from the foundation itself, which has a central switchboard to
which inquiries of all kinds can be directed, there is also a directory of
treatment facilities which is published jointly by the foundation and the
Canadian Centre on Substance Abuse. To the best of the foundation's ability,
that is made available to anyone who wants to consult it.
Senator DeWare: Should part of the objective of any legislation be toward
rehabilitation so that the cycle starts to slow down somewhere?
Mr. Kendall: Yes. We agree with that, particularly as it involves injection drug
use and opium dependency. There are many thousands of opiate dependent persons
in Canada, a considerable number of them in Ontario, and a tremendous dearth of
treatment programs, such as methadone maintenance or other drug maintenance
programs in Canada. Compared with other parts of the world, we are shamefully
lagging behind in that area.
Mr. Smart: There is a central registry of treatment agencies which one can call.
I do not have the number at my fingertips right now. You can phone them and say
and ask for treatment for this or that kind of problem; they will arrange for
you to have treatment in an agency that has space available rather than saying
that you must wait three months or six weeks. They will try to arrange for you
to receive treatment as quickly as possible.
Mr. Kendall: It is a computerized system called DART, Drug and Alcohol Registry
Senator DeWare: There has to be something available when someone makes up their
mind. They cannot wait for three months.
Senator Milne: I was intrigued by the fact that you say that among, grade 11
students, use of cannabis goes up to about 40 per cent, roughly the same
percentage which smokes tobacco. Are they the same students that smoke tobacco?
Mr. Kendall: I would surprised if they were not. I do not know if our study took
that into consideration.
Mr. Smart: We have done it in the past. We did not do it this year because, in
the past, we have always found that cannabis smokers are almost invariably
cigarette smokers first. Once in a while, someone tries cannabis without having
been a smoker of tobacco. However, it is so rare that one does not have to
worry much about it.
Senator Milne: It is something I have always wondered. When you say it seems to
peak in grades 7, 9 and 11, is that because you have not studied grades 8 and
10? This does not make any kind of logical sense to me whatever.
Mr. Smart: In our survey, we study only grades 7, 9, 11 and 13.
Mr. Kendall: We note a decline in grade 13. My interpretation of that, however,
is that there is quite a high drop-out rate between grades 11 and 13. Those who
do drop out tend to smoke more cannabis than those who stay in school. If one
were to capture the dropouts, my own personal feeling is that we would see
higher rates among that group than those who stay in for their pre-university
Senator Milne: My own experience has been that most non-drug-users in the
general population think that they should all be thrown in jail until they find
out, as Senator Doyle did, that it is their own children who are about to be
thrown in jail. Immediately, their views change.
Senator Carstairs refutes the notion that simple possession is a victimless
crime. Looking at it from one point, yes, it is. However, in order for them to
have that drug in the first place, there must be trafficking. The two of them
go hand-in-hand. There is no victimless crime here because the two are so
Mr. Kendall: About 70 per cent of the cannabis in Canada at the moment is
domestically grown. There has been an increase in the sales of hydroponics so
that it would be possible to envisage a system whereby people grow enough in
their basement for their own consumption. That might be more of the victimless
crime because there would be no intermediary and no purchaser.
The Chairman: I wish to thank our witnesses for their attendance here today. As
you have seen, this bill is raising a lot of interest. Your answers and your
presentation have been very useful.
Honourable senators, I require a motion that reasonable travel and living
expenses for no more than one representative per organization invited to appear
on Bill C-7 be paid for upon request at the discretion of the committee.
Senator Carstairs: I so move, Mr. Chairman.
The Chairman: It is so moved by Senator Carstairs. Is it agreed, honourable
Hon. Senators: Agreed.
The committee adjourned.