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UNREVISED
Appearances by Mr. Glenn Gilmour, Barrister and Solicitor and founding member of the Canadian Foundation for Drug Policy, and appearances by Department of Justice and Department of Health officials (Note: These are the unrevised transcripts of the hearings in floor language (language spoken) ONLY. The final text will be available on the Parliamentary Internet site once editing and translation are completed.) April 25, 1996/Legal/32039/lp
THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
Ottawa, Thursday, April 25, 1996
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-8, an Act respecting the control of certain drugs, their precursors and other substances and to amend certain other Acts and repeal the Narcotic Control Act in consequnce thereof, met this day at 10:30 a.m. to give consideration to the bill.
Senator Sharon Carstairs (Chairman) in the Chair.
The Chairman: Good morning, senators. As you know, one of the issues that has been of great importance to us has been the issue of our international treaty obligations. One of the purposes of this bill is that we meet those treaty obligations.
In discussion with Senator Nolin last week, we decided that we would try to bring someone here who could talk about our treaty obligations and try to prove to us that we can amend the legislation and still meet those obligations. Needless to say, we will hear a contrary position from the Department of Justice.
As a result of that, we have invited back a witness whom we have heard before. Other than for Senator Doyle's question, we did not really spend much time with Mr. Gilmour at that time because he was with a number of other witnesses. I have asked him to come back this morning and to focus strictly on the issue of our international treaties; what those treaties are, what other countries are doing with those treaties and how this could impact upon us.
Following that, we will hear from the Department of Justice, Health Canada and the Solicitor General.
Welcome, Mr. Gilmour.
Senator Nolin: Before we start with Mr. Gilmour, would it be possible for him to remain after his testimony while we hear the representatives of the Department of Justice and Health Canada in order that he can participate in a debate on specific aspects of the interpretation of those treaties?
The Chairman: Senator Nolin, we have anticipated that and have asked Mr. Gilmour if he can remain with us during the testimony of the departmental officials. He has agreed to do so and will answer any questions that may arise in that debate.
Mr. Gilmour, please begin your presentation.
Mr. Glenn A. Gilmour, Barrister and Solicitor, Canadian Foundation for Drug Policy: Thank you, Madam Chairman. The issue here is what are the international conventions that Canada has entered into and what is their effect in this particular context.
We are talking about three major treaties. There is the Single Convention on Narcotic Drugs of 1961, the 1971 Convention on Psychotropic Substances which deals with synthetic hallucinogens and stimulants, the 1972 protocol which amended certain aspects of the Single Convention of 1961 and the 1971 convention, and finally there is the 1988 Convention on Prohibition Against Trafficking.
I intend to go through some of the major provisions of the treaties and outline some of the penalty sections and some of the qualifications to each of these treaties in order that you get some idea of the context of the treaties themselves.
The Single Convention on Narcotic Drugs of 1961 starts with the preamble:
Concerned with the health and welfare of mankind,
Recognizing that addition to narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic danger to mankind,
It starts off with the perception or belief that addiction to narcotic drugs constitutes a serious evil. The question which may be asked is whether cannabis use is really such an evil as set out in the preamble. Is it not out of place in this particular context?
Nonetheless, Article 4 1.(c) provides that:
Subject to the provisions of this Convention
-- the parties are obligated --
-- to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs.
It is clear that this treaty permits the use of drugs for medical and scientific purposes. This particular aspect is important from the point of view of possible heroin trials. Heroin trials are currently under way in Switzerland and there is a proposal for a heroin trial in the Australian Capital Territory. These would be clinical trials. There have been clinical trials in Switzerland. The purpose is to determine whether, in a clinical medical context, the provision of heroin to heroin users is beneficial to them and to society at large.
Trials have been going on for about two years in Switzerland. They have produced at least one interim report which has concluded that the results have been very satisfactory. The health of the drug user has improved and the social integration of the drug user with society has improved tremendously. The point is that such heroin trials as Switzerland is undergoing are perfectly consistent with the provisions of not only this treaty but the other treaties as well, because they all build into this initial medical and scientific purpose exemption.
You may want to ask the Department of Justice about this aspect of heroin trials for heroin users.
Senator Nolin: That is exactly the point I was trying to make before. If there is a point of which you think we should be aware, and you think that the answer of the department would enlighten us, you will have the ability to ask them.
Mr. Gilmour: Yes.
I will move on to the penal provision in Article 36 1 of the Single Convention, 1961. It reads:
Subject to its constitutional limitations, each Party shall adopt such measures as will ensure that cultivation, production, manufacture, extraction, preparation, possession, offering, offering for sale, distribution, purchase, sale...transport, importation and exportation of drugs contrary to the provisions of this Convention...shall be punishable offences when committed intentionally, and that serious offences shall be liable to adequate punishment particularly by imprisonment or other penalties of deprivation of liberty.
Two issues arise here. The first is a clear distinction that is made in the 1961 Single Convention between punishable offences and serious offences that shall be liable to adequate punishment, particularly by imprisonment or other penalties of deprivation of liberty. This appears to be a clear demarkation or division between what one would describe as regulatory offences and criminal offences.
The commentary by the United Nations to the 1961 Single Convention is basically that while Article 4 refers to both kinds of possession, whether that provision must be implemented by imposing penal sanctions on possession for personal consumption is a question that may be answered differently in different countries. Some governments hold that they are not bound to punish addicts who legally possess drugs for their personal use. In other words, the intent of this particular prohibition is in the context of possession in the context of illicit trafficking. This is one possible interpretation, and one we would hold to.
However, it also provides that parties who do not share this view and believe that such persons must be punished under Article 36 may chose to impose only minor penalties such as fines or even censure. In other words, they can chose to categorize this as a minor kind of offence rather than a major serious offence for which you are liable to be imprisoned. It is also important that in 1972 this particular treaty was amended by a protocol which provides a clear alternative. It states that when abusers of the drugs have committed such offences, the parties may provide, either as an alternative to conviction or punishment or in addition to conviction or punishment, measures of treatment, education, rehabilitation. So, instead of conviction or punishment, the treaty now provides an alternative. This is a theme which will continue through the other two major UNREVISED
Appearances by Mr. Glenn Gilmour, Barrister and Solicitor and founding member of the Canadian Foundation for Drug Policy, and appearances by Department of Justice and Department of Health officials (Note: These are the unrevised transcripts of the hearings in floor language (language spoken) ONLY. The final text will be available on the Parliamentary Internet site once editing and translation are completed.) April 25, 1996/Legal/32039/lp
THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
Ottawa, Thursday, April 25, 1996
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-8, an Act respecting the control of certain drugs, their precursors and other substances and to amend certain other Acts and repeal the Narcotic Control Act in consequnce thereof, met this day at 10:30 a.m. to give consideration to the bill.
Senator Sharon Carstairs (Chairman) in the Chair.
The Chairman: Good morning, senators. As you know, one of the issues that has been of great importance to us has been the issue of our international treaty obligations. One of the purposes of this bill is that we meet those treaty obligations.
In discussion with Senator Nolin last week, we decided that we would try to bring someone here who could talk about our treaty obligations and try to prove to us that we can amend the legislation and still meet those obligations. Needless to say, we will hear a contrary position from the Department of Justice.
As a result of that, we have invited back a witness whom we have heard before. Other than for Senator Doyle's question, we did not really spend much time with Mr. Gilmour at that time because he was with a number of other witnesses. I have asked him to come back this morning and to focus strictly on the issue of our international treaties; what those treaties are, what other countries are doing with those treaties and how this could impact upon us.
Following that, we will hear from the Department of Justice, Health Canada and the Solicitor General.
Welcome, Mr. Gilmour.
Senator Nolin: Before we start with Mr. Gilmour, would it be possible for him to remain after his testimony while we hear the representatives of the Department of Justice and Health Canada in order that he can participate in a debate on specific aspects of the interpretation of those treaties?
The Chairman: Senator Nolin, we have anticipated that and have asked Mr. Gilmour if he can remain with us during the testimony of the departmental officials. He has agreed to do so and will answer any questions that may arise in that debate.
Mr. Gilmour, please begin your presentation.
Mr. Glenn A. Gilmour, Barrister and Solicitor, Canadian Foundation for Drug Policy: Thank you, Madam Chairman. The issue here is what are the international conventions that Canada has entered into and what is their effect in this particular context.
We are talking about three major treaties. There is the Single Convention on Narcotic Drugs of 1961, the 1971 Convention on Psychotropic Substances which deals with synthetic hallucinogens and stimulants, the 1972 protocol which amended certain aspects of the Single Convention of 1961 and the 1971 convention, and finally there is the 1988 Convention on Prohibition Against Trafficking.
I intend to go through some of the major provisions of the treaties and outline some of the penalty sections and some of the qualifications to each of these treaties in order that you get some idea of the context of the treaties themselves.
The Single Convention on Narcotic Drugs of 1961 starts with the preamble:
Concerned with the health and welfare of mankind,
Recognizing that addition to narcotic drugs constitutes a serious evil for the individual and is fraught with social and economic danger to mankind,
It starts off with the perception or belief that addiction to narcotic drugs constitutes a serious evil. The question which may be asked is whether cannabis use is really such an evil as set out in the preamble. Is it not out of place in this particular context?
Nonetheless, Article 4 1.(c) provides that:
Subject to the provisions of this Convention
-- the parties are obligated --
-- to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs.
It is clear that this treaty permits the use of drugs for medical and scientific purposes. This particular aspect is important from the point of view of possible heroin trials. Heroin trials are currently under way in Switzerland and there is a proposal for a heroin trial in the Australian Capital Territory. These would be clinical trials. There have been clinical trials in Switzerland. The purpose is to determine whether, in a clinical medical context, the provision of heroin to heroin users is beneficial to them and to society at large.
Trials have been going on for about two years in Switzerland. They have produced at least one interim report which has concluded that the results have been very satisfactory. The health of the drug user has improved and the social integration of the drug user with society has improved tremendously. The point is that such heroin trials as Switzerland is undergoing are perfectly consistent with the provisions of not only this treaty but the other treaties as well, because they all build into this initial medical and scientific purpose exemption.
You may want to ask the Department of Justice about this aspect of heroin trials for heroin users.
Senator Nolin: That is exactly the point I was trying to make before. If there is a point of which you think we should be aware, and you think that the answer of the department would enlighten us, you will have the ability to ask them.
Mr. Gilmour: Yes.
I will move on to the penal provision in Article 36 1 of the Single Convention, 1961. It reads:
Subject to its constitutional limitations, each Party shall adopt such measures as will ensure that cultivation, production, manufacture, extraction, preparation, possession, offering, offering for sale, distribution, purchase, sale...transport, importation and exportation of drugs contrary to the provisions of this Convention...shall be punishable offences when committed intentionally, and that serious offences shall be liable to adequate punishment particularly by imprisonment or other penalties of deprivation of liberty.
Two issues arise here. The first is a clear distinction that is made in the 1961 Single Convention between punishable offences and serious offences that shall be liable to adequate punishment, particularly by imprisonment or other penalties of deprivation of liberty. This appears to be a clear demarkation or division between what one would describe as regulatory offences and criminal offences.
The commentary by the United Nations to the 1961 Single Convention is basically that while Article 4 refers to both kinds of possession, whether that provision must be implemented by imposing penal sanctions on possession for personal consumption is a question that may be answered differently in different countries. Some governments hold that they are not bound to punish addicts who legally possess drugs for their personal use. In other words, the intent of this particular prohibition is in the context of possession in the context of illicit trafficking. This is one possible interpretation, and one we would hold to.
However, it also provides that parties who do not share this view and believe that such persons must be punished under Article 36 may chose to impose only minor penalties such as fines or even censure. In other words, they can chose to categorize this as a minor kind of offence rather than a major serious offence for which you are liable to be imprisoned. It is also important that in 1972 this particular treaty was amended by a protocol which provides a clear alternative. It states that when abusers of the drugs have committed such offences, the parties may provide, either as an alternative to conviction or punishment or in addition to conviction or punishment, measures of treatment, education, rehabilitation. So, instead of conviction or punishment, the treaty now provides an alternative. This is a theme which will continue through the other two major conventions.
It goes on to say in the following article that nothing in this article shall affect the principle that the offences to which it refers shall be defined, prosecuted and punished in conformity with the domestic law of the country.
One of the major countries which has differed from the prohibitionist approach taken in the United States is the Netherlands. They have a system of de facto criminalization. The crime is on the books, but a series of guidelines have been set up which allows for the creation of coffee shops within which marijuana can be sold. It also allows for a certain amount of discretion with regard to personal possession.
Senator Jessiman: Are they considered to be in contravention of the convention?
Mr. Gilmour: That is the point I am coming to.
The other day I read a chapter entitled 'Enforcing Drugs Laws in the Netherlands' in a book by Mr. Jos Silvas entitled Between Prohibition and Legalization: The Dutch Experiment in Drug Policy. It provides the following:
."There are about 1500 coffee drugs in the Netherlands where soft drugs may be bought. How is that practice reconcilable with international obligations? The Single Convention and the obligations of the Illicit Trafficking Convention of 1988 do demand criminalization of possession, trafficking, dealing, cultivating and producing of soft drugs as well as of hard drugs. This obligation is met in Dutch legislation in the Opium Act.
As I mentioned, they have it in their criminal code.
But there are no clauses in the relevant UN drug conventions that concern the actual enforcement of the legislation. The Single Convention acknowledges explicitly that enforcement of statutes may be limited on the basis of principles that are a fundamental part of a nation's sovereignty. This clause provides the latitude the Dutch have been using in their drug policy:
There are specific provisions in their code of criminal procedure that allow prosecutors to determine whether to prosecute. They can refuse to prosecute if they consider it not to be in the public interest, and the guidelines flesh that out.
-- by interpreting the legal principle of expediency as a fundamental sovereign principle, the Dutch have been able to develop a policy of (partial) non-enforcement of violations of the Opium Act.
This is a situation where the particular criminal justice system of the country gives rise to a particular principle that is used to determine whether the convention itself is violated. The argument here is that it is consistent with the sovereignty principle; the Dutch do not violate the conventions. I will move later to the 1988 convention to make that point as well.
The 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances focuses largely on this impression of the illicit trafficking of drugs.
I will move on to the scope of the convention. It states:
The purpose of this Convention is to promote co-operation among the Parties so that they may address more effectively the various aspects of illicit traffic in narcotics drug and psychotropic substances having an international dimension. In carrying out their obligations under the Convention, the Parties shall take necessary measures, including legislative and administrative measures, in conformity with the fundamental provisions of their respective domestic legislative systems.
A series of offences are set out in the 1988 convention. The first series of offences deals exclusively with trafficking, including cultivation of cannabis. There is then a second major provision which deals exclusively with the offence consumption for personal use. I will read that article to you to give you an idea of the some of the qualifications set out in it.
Article 3 2. of that convention provides:
Subject to its constitutional principles and the basic concepts of its legal system, each Party shall adopt such measures as may be necessary to establish as a criminal offence under its domestic law, when committed intentionally, the possession, purchase or cultivation of narcotic drugs or psychotropic substances for personal consumption contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention.
This provision was essentially the result of horse trading. During the creation of the 1988 convention, Mexico apparently raised the objection that the burden seemed to be placed too heavily on the producing nations and insisted that there be some kind of balance put in. As a result, this provision was inserted in the treaty.
Note the qualifications here. This obligation is made subject to the constitutional principles and the basic concepts of the state's legal system. As well, it only applies to personal consumption that is contrary to the 1961 convention. It picks up on the exemption for medical and scientific purposes.
One of the issues here is this phrase "subject to the constitutional principles and the basic concepts of each state's system". A decision in Germany in 1994 dealt with the issue of whether their drug statute was unconstitutional. The court held that it was but also held that the police and prosecutors should refrain from enforcement where cannabis was possessed in small amounts and exclusively for personal consumption. They based this interpretation again on certain aspects of their legal system; their principles of appropriateness and relativity. They concluded that there should be a proportionality test between the offence and the punishment.
It is my understanding that while the German constitutional court has not ruled their basic drug law unconstitutional, it has nonetheless provided a judicial decision that prosecutors should not pursue prosecution for possession of small amounts of cannabis for personal use alone.
I mentioned that the alternatives are a constant theme throughout these conventions. With regard to the minor trafficking offences it provides that parties may provide, as alternatives to conviction or punishment, measures such as education and rehabilitation. The same provision applies to the personal consumption offence. Indeed, it is broader. Article 3 4.(d) reads:
The Parties may provide, either as an alternative to conviction or punishment, or in addition to conviction or punishment of an offence...measures for the treatment, education...or social reintegration of the offender.
It is clear that as an alternative to conviction or punishment under these treaties you may pursue other remedies, including educational remedies.
The phrase "subject to its constitutional principles and the basic concepts of its legal system" raises the obvious question of what are the basic concepts of our legal system in terms of our criminal justice system. My interpretation of the wording of the treaty is that if one could make the argument that it is perfectly consistent with our constitutional principles and perfectly consistent with our basic concepts of our criminal justice system that, for example, cannabis be decriminalized, then clearly it would not run afoul of the provisions of this section.
In 1976, the Law Reform Commission of Canada published a report entitled 'Our Criminal Law' which set out a series of tests for when activities should be made criminal and when they should not be. Central to that discussion was the concept that the fundamental principle of restraint governed the application of the criminal law.
I argue that quite possibly the basic concepts of our criminal justice system include the fundamental principle of restraint in the application of the law and that, therefore, it would be perfectly appropriate for consideration to be given to whether we are fashioning our criminal law legislation with regard to drugs in accordance with that principle of restraint.
With regard to that particular principle, in 1981 the Department of Justice published in a paper in which they said that the Department of Justice approved the following principle with regard to what was called at that point the criminal law review which was set in place to fundamentally review the criminal law of Canada, which included the work by the Law Reform Commission. One of the principles they espoused in that document was that the criminal law should be employed to deal only with that conduct for which other means of social control are inadequate or inappropriate and which interferes with individual rights and freedoms only to the extent necessary for the attainment of its purpose.
Given these particular provisions in the treaties, what range of options are available? One of the best analyses that I have been able to discover in recent years is a monograph prepared for the Australian National Drug Strategy, a task force set up to examine cannabis and reforms which should be made to cannabis law in Australia. It canvassed the wide range of options available under that treaty. They concluded that there were a number of different interpretations possible with regard to all of these international conventions and cannabis use. The available options ranged from total prohibition -- which is in effect the policy that the government is espousing now -- to what is called a civil penalty. The civil penalty relates to two jurisdictions in Australia, those being the Australian Capital Territory and South Australia, where they have created fine expiation programs. It is akin to a parking ticket. The person receives a ticket and pays a minimal fine. The person does not have to go to court.
One of the obvious questions raised was whether such a scheme is consistent with the provisions of the international treaties. The Attorney General's department of Australia analyzed the provisions of the 1961 and 1988 conventions made the following comments:
In relevant respects, the requirements of the 1961 and 1988 Conventions with respect to 'personal consumption' conduct are not significantly different:
both require the elimination of all possession/or use (outside certain specified exceptions) --
I have gone into some of those exceptions.
neither therefore permits 'legalization' of personal consumption;
both are aimed particularly at 'trafficking' conduct --
Again, this aspect of aiming at trafficking conduct can be used as an interpretation guide as to the effect of the treaties.
It concludes:
neither requires criminal proceedings for personal consumption.
They go on to state that, as a result, in their view, these fine expiation programs were perfectly consistent with these conventions. In Australia, the position of the Attorney General's department is that such fine expiation programs, which are akin to a civil penalty rather than a criminal penalty, are perfectly consistent with the international conventions I just mentioned.
Senator Gigantès: I am puzzled by the use of the "expiation".
Mr. Gilmour: The term is used because when you pay the fine, that is the end of it. It is my understanding that there is no criminal record.
Senator Gigantès: It is so Catholic a concept.
Mr. Gilmour: In addition to these international conventions dealing with drug use, there are a number of other international human rights conventions to which Canada is a signatory. It is essential to keep those in mind as well. I think in particular of the International Covenant on Civil and Political Rights. You may recall that that guarantees protection of life, liberty and security of the person. It also protects unwarranted attacks on privacy. The question which arises is whether there been an attempt to strike a balance between these two types of conventions. This is something which might be raised later on. The argument would be that, consistent with our heritage as a people who believe in fundamental rights, the provisions of these international human rights treaties should be taken into account in determining the full scope to which we should be entering into drug conventions; international trafficking treaties and the like.
I have two more important points. All of these treaties provide clearly that parties may seek to amend provisions of the treaties. If they believe that the treaties are too harsh, there are procedures to attempt to amend. Alternatively if they feel that the treaties are too harsh, they can formally denounce the treaties and thereby withdraw from them.
As I mentioned, these international conventions have been subject to a variety of interpretations. One of the major criticisms made by some people in Australia is that these international conventions have effectively denied the ability of the parties to the conventions to determine their own domestic policy. In other words, they have become mixed up or turned around. I should like to quote a provision from that monograph of the Australian, 'Legislative options for cannabis in Australia' as follows:
An important question to be answered is whether Australian drug laws, so long dominated and directed by influences beyond our shores, and so little attuned to Australia's own circumstances, should continue to be determined externally. As cautious an inquiry as the Williams Royal Commission --
-- that was a commission on drug use in Australia --
-- commented, in relation to the Single Convention, that the spirit and intention of the treaty was 'a secondary matter in the sense that Australia must first decide what is the correct domestic policy and then shape its international course accordingly'.
I should just like to stress that aspect as well. We must also keep in mind that from the context of a harm reduction perspective there are a number of provisions in these treaties that allow the opportunity to seek alternatives other than conviction and punishment pursuant to the criminal law. I mentioned the fine expiation program that exists in Australia. I mentioned Holland's experience where they have de facto decriminalization but a policy of non-prosecution, in fact allowance for the sale of cannabis in coffee shops. I have also mentioned the German constitutional court decision.
I mentioned the Swiss heroin trial programs and proposal for a heroin trial program in the Australian Capital Territory. It is clear that those would not be in breach of the international conventions.
I hope that gives you an overview of the effects of these treaties.
Senator Doyle: Thank you for a very clear and interesting overview of the situation.
We are aware that withdrawing and denouncing are available to us. Would you like to comment on the more subtle approach, country-to-country or department-to-department, about how laws should be enforced within the context, if you will, or without necessarily vacating the treaties.
Some of our witnesses have made it obvious that there are pressures brought to bear on people in the field here not to open the doors, not to decriminalize, not to become more liberal in interpretation of the law, and that to that extent we are pushed and shoved by our American cousins who may not be so concerned about what happens in Australia but regard us with the same affection they devote to Cuba, Mexico and other close neighbours in saying that if we change our interpretation of these treaties we are opening the door to difficulties in the arrangement of ordinary affairs back and forth.
Mr. Gilmour: Your comments remind me of a slight variation of one of my favourite Humphrey Bogart lines, which would be "Yankee spank".
Canada's obligation is to determine what is best for the people of Canada. I mentioned Australia mainly because, like us, it is a commonwealth country; like us, it is a multicultural country. It has about the same population as us. Its great advantage, of course, is that it is so far away from the United States.
However, in Europe, and in England, for example, tremendous change is taking place to the extent that I think it is fair to say that the United States is becoming a little more the odd man out.
For many years Holland has practised the policy of de facto decriminalization. However, in the context of the provision of heroin to heroin users, England, for example, has never in its entire history prohibited outright the ability of doctors to prescribe heroin to heroin users. That has always been part of their drug strategy. I mentioned the decision of the German constitutional court. Increasingly at the local level in some of the major cities in Germany there is movement toward harm reduction and lobbying to change the law in a more substantive way.
In France, although the law has not been changed, a year and a half ago a the Henrion Commission reported and recommended the decriminalization of small amounts of cannabis and even alluded to the possibility that at some point in time, depending upon how that worked, they may consider regulation of cannabis use.
We are seeing a movement toward a pragmatic harm reduction approach in many countries. We are so close to the United States which has for so long advanced the prohibitionist policy that sometimes it is difficult for us to look further afield and see what is happening. It is very healthy for us to consider what other jurisdictions are doing. Do not forget, as well, that it is possible that in the future the United States may change its minds with regard to prohibition. That is a possibility, not a probability at this point, but it is fair to say that increasingly in the last few years more persons well known to the public have spoken out publicly against a strong prohibitionist approach. I think particularly of people such as William Freedman and William F. Buckley.
Senator Doyle: If you have been convicted of having even the smallest amount of cannabis on your person while crossing the border, you are no longer welcome in the United States. Experts in various fields who wish to attend conferences or meetings in the United States which are vital in their trades have had great difficulty breaching that wall if they have a record for even the tiniest of offences.
Are we likely to see an easing of that or an intensification of that if we move in the direction we are contemplating here today?
Mr. Gilmour: I am not sure I understood the question. Are you asking whether, if we create a provision whereby simple possession of cannabis does not result in a criminal record, that would facilitate the movement of Canadians to the United States and back?
Senator Doyle: I was merely using the movement across the border as an example of how tough they are in pursuing people who have any kind of criminal record.
Mr. Gilmour: They are very tough. I tried to make this point earlier and perhaps was not totally successful. I think it is most useful to consider in this context what the appropriate role of criminal law should be. If you compare our current drug legislation to the Criminal Code generally, you will find great disparity and, in my view, great incoherence. For example, in the provisions dealing with impaired driving, clearly Parliament attempted to strike a balance between the rights of an individual and the protection of society and decided that that balance was at the point in time when a person, when abusing himself or herself through alcohol, posed a danger to the public. That seems to me a perfectly legitimate response for the criminal law because, after all, the criminal law is the most punitive measure by which society condemns a person's actions.
When you compare that kind of approach to what has happened with regard to our drug legislation, great incoherence appears. Nowhere does the principle of restraint in the application of criminal law appear. Where is the aspect of individual privacy, for example? Where is the aspect of a person's liberty to move around when he is presenting no risk to others?
I simply say that there appears to be great incoherence between the two approaches. Perhaps it would be more appropriate if the general principles of criminal law were applied equally to all forms of criminal conduct, including the area of drug offences. That is why I tried to make the point in terms of this phrase "constitutional principles and basic concepts of our legal system".
I hope that has answered the question somewhat.
Senator Doyle: We have been told by another witnesses that we have right now, and without any action on the part of the government, a de facto variety of rates of enforcement in this country and that in the Vancouver area simple possession is totally ignored now by the police. If that is the case, how far can we go in just letting the law fall into disuse?
Mr. Gilmour: I would think that rather than letting the law fall into disuse it would be more constructive to fashion a law in such a way that it is clear to all the citizens of Canada exactly under what circumstances conduct is criminal. As I mentioned before, criminal sanctions are the most severe way by which society denounces an individual's conduct. They are not akin to regulatory offences. The state is saying, "You have breached a fundamental value of our society." I am somewhat at a loss to determine exactly what fundamental value has been breached in these particular circumstances.
Nonetheless, perhaps another alternative could be to follow what Holland has done. The Dutch have been able to create guidelines which have been uniformly applied by prosecutors. Perhaps the same kind of arrangement could be made in Canada to make certain that it is not only the police in Vancouver that are not prosecuting for small amounts, but that it is uniform application all across the country. If we have an inconsistent approach if terms of prosecutions, the impact of unbalanced and unfettered prosecutorial discretion is creating an unjust situation. Why should someone in Halifax, under the very same circumstances, be at risk of his or her liberty? Even if liberty is not at risk; even if we know that at the end of the day the person will only get a criminal fine, he or she has still been brought into the criminal courts and denounced as a criminal. That is why we have criminal law.
Senator Milne: Mr. Gilmour, yesterday we heard from two witnesses who very strongly represented that decriminalization of the possession of marijuana would result in an explosion of drug use among our young people. One of the them stated in a fairly heated manner, when asked about the results of the Dutch experiment, that unfortunately Amsterdam, which used to be a wonderful city, has been "destroyed" by their drug policies.
Could you respond to these two statements?
Mr. Gilmour: I would have assumed that if their policy had destroyed Amsterdam, the public officials in Holland would have responded by changing the policy. In fact, the opposite has happened. Recently the French government has publicly denounced Holland's approach, yet the Dutch have stood firm and said that they will continue this route. In fact, I read last week in Time magazine a column which made specific mention of a study just completed by the Dutch government. It would be most useful for this committee if officials of the Department of Justice or Health Canada could obtain for the committee a copy of that study -- in English if possible -- in order that you can determine whether such a comment is founded on fact or on something less than fact.
Senator Milne: Has there been any indication of an increase in drug use among young people in Australia?
Mr. Gilmour: I cannot comment authoritatively on that. This document, 'Legislative Options for Cannabis in Australia', analyzes some of the studies that have been done on the fine expiation programs. My recollection is that there has not been a major increase. If there was an increase, it would have been only initially. I would have to get back to committee on that.
I received some material a couple of years ago from the Dutch ministry of health relating to personal consumption of cannabis in Holland. There has been no increase there according to that material. I will double check that. If you wish, I will provide you with copies of that material.
I suspect that when you look at the material provided by the studies themselves you will find that there has been no dramatic increase of drug use among youth at all. In fact, for comparative purposes it would be useful to look not only at those states that have adopted a decriminalization policy but also at those states which have continued a policy of prohibition. I suspect that if you look at those states in the United States which have continued a policy of criminalization you will find that there has been perhaps an even greater increase in drug use. There are a few states in the United States which have adopted a policy of decriminalization. I will try to provide that information to you.
Senator Jessiman: Mr. Gilmour, what is the Canadian Foundation for Drug Policy and how does it function?
Mr. Gilmour: The foundation was set up a couple of years ago with a group of experts in a variety of areas relating to drug use and the law. Mr. Eugene Oscapella and Ms Diane Riley are both here today. Ms Riley is an expert on drugs and pharmacology and also very much an expert on practices in other jurisdictions. Mr. Oscapella is a long-time researcher in the area of criminal laws and drugs.
As for my own background, for 11 years I worked with the Law Reform Commission of Canada in its attempt to rewrite the Criminal Code and bring it into the 21st century. So my perspective is largely one of criminal policy and when it is appropriate to use the criminal law, not only in relation to drugs offences but in relation to all crimes.
There are others with the foundation as well. It is a non-profit organization.
Senator Jessiman: How many people are involved?
Mr. Gilmour: I believe there are 11 people.
Senator Jessiman: Where is your head office?
Mr. Gilmour: It is here in Ottawa.
Senator Jessiman: Are you counsel on their behalf? Do you work for the foundation full time?
Mr. Gilmour: I work with the foundation free of charge in the evenings and weekends outside of my regular job.
Senator Jessiman: Are there similar foundations in other countries?
Mr. Gilmour: There are as a matter of fact. There is a foundation in New York City called the Lindesmith Institute which is dedicated to the cause of criminal law reform. It contains a wealth of knowledge in terms of obtaining recent reports from around the world. There are as well foundations here in Canada; the Addictions Research Foundation and the Canadian Centre for Substance Abuse. There are similar organizations in Europe.
Senator Jessiman: Do you exchange information between foundations?
Mr. Gilmour: Yes, we do.
Senator Jessiman: Do you meet at any time during the year?
Mr. Gilmour: I have not this year.
Senator Jessiman: Do the foundations meet?
Mr. Gilmour: I am not so sure that they meet in person, but by virtue of the magic of the Internet there is quite regular contact. We contact each other to find out what is currently happening in the various jurisdictions. We attempt to keep up to date on what is happening in other jurisdictions around the world and to provide up-to-date information to the Canadian public on this important issue.
Senator Jessiman: The two gentlemen who testified yesterday were against any kind of possession. The material often refers to "small amounts" of marijuana. Thirty grams seems to be what is considered a small amount. One of the gentlemen provided us with a large cache of what I guess were joints. They looked like cigarettes. He said that the number of joints rolled from this 30 grams could not be for personal use, that there was just too much, that before it lost its power it would have to be given to others.
Is 30 grams a large amount? It certainly looked like a lot of cigarettes.
Mr. Gilmour: One of my major weaknesses is that I never converted easily to the metric system.
You could look at the legislation in Australia dealing with the fine expiation schemes to get an idea of the type of limit they set with regard to this.
Senator Jessiman: They said that cannabis, or marijuana, are three times as addictive as cigarettes or alcohol. Have you ever heard that?
Mr. Gilmour: I have not heard that before. We previously provided the committee with some material which contains a recent article about the harmful effects of marijuana being a myth.
You may be aware as well of recent articles in the British Medical Association journal and another English medical journal which was very critical of the criminal prohibition of cannabis. I believe that if you were to look at the most recent medical literature with regard to this, you would find that that kind of statement is inaccurate.
There are a series of four monographs accompanying the report with regard to the Australian study and it contains an analysis of the medical effects of marijuana as well. I can provide that to committee later as well.
Senator Jessiman: You said that England provides heroin to addicts. How do they deal with marijuana and/or cannabis?
Mr. Gilmour: I believe that cannabis is treated much the same as it is here in Canada. I think it is primarily with regard to heroin and not cannabis. In a sense, England has one foot in the prohibitionist camp and one foot out of it.
Senator Lewis: Mr. Gilmour, I got the impression from what you told us earlier, and from looking at the 1961 Single Convention, that the obligation on Canada under this convention is to ensure that offences are punishable when committed intentionally and that serious offences shall be liable to adequate punishment particularly by imprisonment or other penalties of deprivation of liberty.
This is made subject to its constitutional limitations. Article 36 4 provides:
Nothing contained in this article shall affect the principle that the offences to which it refers shall be defined, prosecuted and punished in conformity with the domestic law of a Party.
I get the impression that the obligation is to provide for punishable offences and then to provide the penalties, but that there can be a range of what those penalties are. The convention does not set out what the penalties must be. Within that context, we would be observing our obligations if our own domestic law provides this range of penalties, but, curiously, it says "but in the case of serious offences". It does not define serious offences. Then, of course, we must provide for imprisonment.
Does this bill conform with these provisions? The bill does provide for the range of penalties and I believe that in the case of what we might consider serious it provides for imprisonment. Does the bill, in that sense, seem to conform with the convention?
Mr. Gilmour: You may be missing the fact that the 1961 convention also allows for alternative remedies other than conviction or punishment. There are two important aspects here. First, instead of conviction or punishment alternative remedy could be provided under the 1961 convention and the other conventions. If you look strictly at the penalty provisions as defined in Article 36 of the Single Convention, they do appear to make a distinction between what I would call regulatory offences or administrative offences and serious offences. Therefore, it would be consistent at least with the 1961 convention to consider possible schemes whereby you could conceive of simple possession of a lesser amount of cannabis as being more of an administrative offence rather than a criminal offence.
There is the other aspect of constitutional limitations. It is interesting to note the difference between that phrase and the broader phrase used in the 1988 convention with regard to personal consumption which talks about constitutional principles and basic concepts of the legal system.
Our approach would be to advocate that in this particular context, given the alternative remedies available, given the distinction between lesser offences and more serious ones, it would be more consistent with the thrust of the 1961 convention to move away from criminal prohibition and criminal punishment.
Senator Lewis: Of course, these conventions have to be rather general in one sense, do they not? That is why that provision is there. It provides that nothing contained in the article shall affect the principle that the offences to which it refers shall be defined, prosecuted and punished in conformity with the domestic law of the parties, so it leaves it up to the parties. It would have to, of course.
Mr. Gilmour: The Department of Justice might disagree with me on this, but I think it does give a certain leeway and flexibility to the domestic party to determine precisely how to define the offence and perhaps possible defences.
Senator Lewis: Senator Doyle referred to the situation in Vancouver where we understand that many of these offences are being ignored and not prosecuted. The conventions only provide that a party shall adopt such measures providing for punishment. They say nothing about enforcement. There is a difference between having the provision and the actual enforcement.
Mr. Gilmour: That appears to be the approach of the Attorney General's department with regard to the fine expiation programs and their assessment of whether they run afoul of the 1988 and 1961 conventions. As I mentioned, they came to the conclusion that although the conventions may oblige that the offences be created, there is no necessity to prosecute.
In Holland, they have the law on the books, but in accordance with their principles of criminal justice they have determined that the more appropriate response is to carve out an area in which those who wish to use cannabis in small amounts may do so. They do it for a very valid reason, that is, to separate out what they consider to be the more harmful effects of hard drugs from the lesser effects of the soft drugs. Their view is that that is a means by which to reduce the amount of harm that drug use causes in society.
This is the adoption of procedures by the criminal justice system in at least one state in order to accommodate what they consider to be a pragmatic response to reduce the harm of drug use in society. I argue strongly that the same kind of flexibility is available to us. Again, the Department of Justice may disagree.
Senator Nolin: We have a résumé of the Le Dain report of 1973. This résumé does not seem to be bothered by the convention of 1961. Are you aware of the reason for that?
Mr. Gilmour: I read part of the Le Dain report the other day to get a sense of their interpretation of the 1961 convention. I believe that in their analysis of the international conventions they recognized the possibility of two different interpretations of the 1961 convention, those being total prohibition or prohibition only of possession for the purpose of distributing. I think that at the end of the day they interpreted the treaty as being more prohibitionist than not. Nonetheless, it is interesting that they did propose that.
A recent study done in the Australian Capital Territory advocated that possession and cultivation of small amounts of cannabis should be completely decriminalized and completely allowed, notwithstanding the fact that Australia was clearly subject to the international conventions.
I think there is an acknowledgment by those who have studied the issue very thoroughly that criminalization of small amounts of cannabis simply is not justified in terms of their own personal assessment of other values; in other words, the proper role of the criminal law and the aspect of harm that the use of the criminal law in this context can cause people. All commissions which have studied drug use over the last 25 years have uniformly, I believe, come to the view that the total prohibitionist approach is wrong-headed.
I have offered to provide the committee a list of the various commissions that have reported on this issue over the last 20 years or so. Perhaps you can get access to these studies. I doubt very much that you would find that any one of them concluded that total prohibition is the right way to go. I think you would find that they always concluded that we have to do something about this, that this does not seem right.
As I mentioned, the Australian Capital Territory set up a commission that looked into this. As I also mentioned, over the last four years, in the context of heroin trials, the National Centre for Epidemiology and Population Health in the Australian Capital Territory published a series of reports and working papers which concluded that it was perfectly feasible and entirely proper to conduct this type of heroin trial from the point of view of harm reduction. As I emphasized, they concluded that it does not run afoul of the international conventions at all.
Senator Bryden: I have in mind two competing issues. The first is that based on respect for the law, Canada is a pretty law abiding society. It has very little to do with police force and offences; it comes down to that issue.
I am greatly concerned that the unevenness of the administration of the law against simple possession of drugs will bring that law into disrespect among our young people and that, if they disrespect that law, they will then disrespect others. To me that is a very big argument for ensuring that this is handled in an even-handed manner. On the other hand, as was indicated to us yesterday, we live in the real world where possession is a criminal offence.
We tend to think of peer pressure as pressure to get people to use drugs. However, there are many circles in which young people move in which they would be terribly embarrassed and ostracized if their friends read in the local paper that they had been charged for possession of marijuana, liquor or whatever.
If we decriminalize it, what effect will that have on the willingness of additional young people to experiment because the risk of the criminal record would be removed as well as the peer pressure? I have a great deal of difficulty balancing those two situations.
Mr. Gilmour: I will first give you an anecdotal personal response. When I was in first year university, I was probably the only guy on the floor who did not try marijuana. I was around 18 or 19. I felt sort of strange; the odd man out in a way. The fact that there was a criminal law prohibiting the use of marihuana did not stop my friends from experimenting with it. In fact, I think the fact that simple possession of cannabis is outlawed has a certain attraction. By decriminalizing, you may run the risk of an initial increase. However, it may be the case that the allure of trying something that is forbidden -- the forbidden fruit syndrome -- will no longer be there.
An excellent way to get an understanding of this is to look at the experience in the Netherlands. I will try to get material for you on that. My understanding is that there has been no major increase in cannabis use there at all. In fact, cannabis rates may have gone up in countries surrounding Holland. I am not absolutely certain on that but I will try to find that information for you.
One way of studying this issue is to find out what has happened in places which have de facto decriminalized; what the effect has been on the young people there. You would have to compare it to jurisdictions surrounding it to see what happened there. If use did increase in a jurisdiction which had decriminalized, but increased even more in a jurisdiction right next door which maintained criminal prohibition offences, what would that say about a policy of decriminalization?
I will try to get some figures for you on that. I would emphasize the aspect of forbidden fruit. There is also the aspect of disrespect for the law in the sense that it is perceived to be wrong not to be able to smoke a joint while at the same time parents are drinking alcohol and getting drunk or friends are smoking tobacco and killing themselves by getting lung cancer. Perhaps that causes a certain amount of disrespect for a law that seems to be hypocritical in its response.
Senator Bryden: Probably because of the budget restrains and not because of some sort of social conscience, various jurisdictions are de facto not prosecuting for possession. They do not have the court time, the police and so on. On the other hand, there are a good number of jurisdictions where that has not happened. I happen to live in a nice community where the RCMP detachment is bored most of the time.
Something must be done for consistency within the administration. It appears as though the only way we can get consistency is to decriminalize it so that everyone does what some jurisdictions must do for financial reasons.
Mr. Gilmour: That is very clear. If you were to decriminalize certain amounts of marijuana, there would be a clear message that everyone will be treated equally in the sense that they do not have to worry about whether a law enforcement officer will exercise a certain amount of discretion differently in one part of the country than in another. I think it is fundamentally unfair that there should be an official policy of non-prosecution in one part of the country and not in another. That is fundamentally unfair with regard to any crime, but here it is particularly evident.
It also raises an important point. You were talking about Vancouver. On a somewhat related issue, you may recall that about a year and a half ago the chief coroner of British Columbia published a report about the epidemic of heroin deaths, in which he recommended moving toward a kind of Swiss model where you have a heroin trial situation in order to prevent people from killing themselves by injecting themselves with impure products.
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That is another aspect of this issue of criminalization versus decriminalization and the kind of harms that a full policy of criminalization can cause. I ask you to consider that particular aspect as well.
Under the criminal law, the argument would be that, by virtue of a policy of prohibition with regard to heroin users which fails to allow doctors to prescribe heroin to users for whom methadone is not effective, the criminal law may be harming too many people in society. If that is in fact the case, as I suggest it is, Canadians have a responsibility to ensure that the criminal law is changed in such a way that such harm does not occur.
Senator Gigantès: I tend towards decriminalization. You said in your argument that they may be smoking it because it is a forbidden fruit. If we stop it from being a forbidden fruit, will they turn to an even more dangerous forbidden fruit?
Mr. Gilmour: It is possible they will turn to cigarettes.
Senator Gigantès: I am think thinking of crack.
Mr. Gilmour: That is not very likely, in my opinion. Again, I offer with my colleagues to try to obtain information for you with regard to that. I believe we do have some literature on that subject. If not, we will try to get it for you. I do not think it is very likely. You would need to look at the most recent publications which have been done in the area of marijuana use and see what they say in terms of the harmful effects.
You are talking about marijuana as a gateway drug. Usually, at least when I was younger, we talked about marijuana as a gateway to heroin and cocaine. Now we talk about it as a gateway drug to crack. Perhaps the question is, which is the greater gateway drug? Is it marijuana or alcohol or is it a combination of alcohol and something else? I will try to get information for you on that.
Senator Gigantès: There are people who, having just reached the legal drinking age, drink a lot even though it is not a forbidden fruit.
Mr. Gilmour: That is true. There will always be people like that with regard to any substance. That is part and parcel of human nature. Some people will want to abuse themselves when it is legal to do so, just as some people will when it is illegal.
I doubt very much they really want to abuse themselves. Whether it is a crime to do so, I doubt that will have much of a deterrent effect. There are likely other causes for substance abuse rather than the law itself. There are a whole host of things tied in here. In my case, my dad made the difference. When I promised my father that I would not use cannabis, that was enough for me. However, it varies from person to person.
One cannot make a broad judgment. I make a commitment to try to find the most recent information available on that particular topic. These are legitimate criticisms but I doubt very much they are supportable by the facts available right now.
The Chairman: Thank you, Mr. Gilmour.
Honourable senators, we have witnesses now from the Departments of Justice and Health and the Solicitor General. I understand they have no presentation but will go directly to questions.
Mr. Gilmour is still here and can be re-called if some controversial debate is generated. We can begin with questions on our treaty obligations.
Mr. Saint-Denis, can you explain for us the position of the Department of Justice and its view of the treaties and particularly address why the view of the committee is different from that held by Mr. Gilmour, if indeed it is different from that held by Mr. Gilmour?
Mr. Bruce Rowsell, Director, Bureau of Drug Surveillance, Department of Health: To introduce Mr. Saint-Denis in his first appearance before this committee, he was asked by the United Nations in mid 1980s to be a drafter of the 1988 convention. He has spent considerable time in Vienna with the United Nations commission on that 1988 convention as well as being involved with the revisions to the 1971 convention. He does have first-hand awareness of these conventions. He was also designated by the Government of Canada to be the person to sign those conventions on behalf of our country.
Mr. Paul Saint-Denis, Senior Counsel, Department of Justice: Honourable senators, the position of the Department of Justice with respect to these conventions is that the possession of cannabis -- this is your key issue as far as I can discern from the discussions here -- should be made a criminal offence.
If you look at the various provisions described by the previous speaker, Mr. Gilmour, there is no getting around the fairly clear statement, particularly in the 1988 convention, that the offence of possession, purchase and cultivation of a narcotic drug, in this case cannabis, for personal consumption must be made a criminal offence. The wording of that provision is fairly clear on its face.
In the presentations made before you over the last few meetings, there have been a number of references to what has been happening in the Netherlands, in Germany, in Australia and in Switzerland. All these countries have in common with Canada the fact that they are prohibitionist states to the extent that they have made it an offence to possess or, in some cases, to consume or use marijuana. Where they differ is in the application or enforcement of that provision.
In the Netherlands, the city of Amsterdam has adopted a non-enforcement approach and, in fact, has set up a fairly interesting regime whereby, in coffeehouses, the drug may be consumed and sold, I suspect, in small quantities. I do not know if that regime extends beyond Amsterdam in the Netherlands.
In other countries, the use of cannabis is criminalized and enforced very rigorously, less rigorously in others, and in the case of Amsterdam, it seems not at all. However, all of these countries do have on the books an offence of possession. In that regard, they are all prohibitionist.
In Canada, we have set up a system where it is an offence in our statute. After that, we have provided for maximum penalties with a tremendous amount of discretion on the part of the judges for imposing the types of penalties which judges believe are required in the circumstances. These range from an absolute discharge where there is no record of conviction, although there is a finding of guilt. The other end of the range, usually for repeat possession offences can be serious, rather large fines or even, in some cases, minor periods of imprisonment.
On the whole, the possession offence in Canada is treated as a fairly minor type of offence in spite of the maximum that is now available on the statutes. The courts have viewed this offence rightly in my view as something to be dealt with in a fairly minor fashion and have never imposed anything near the maximum penalty which is available if the offence proceeded by indictment. To my knowledge, that has not happened in at least 15 years.
With respect to the activity of possession, the conventions are fairly clear, particularly the 1988 convention. If one were to focus exclusively on the 1961 convention, there would perhaps be some room for ambiguity, although in my mind that ambiguity is not as obvious as some people would like us to believe.
The 1961 convention very clearly states that the drugs are to be used exclusively for medical and scientific purposes. That does not leave a whole lot of room for things such as recreational use or use for personal consumption or anything else. The obligation is limited to two things; one is for medical purposes and the other is for scientific research purposes.
If you add, on top the 1961 convention, the provisions in the 1988 convention, then there is very little doubt about the expectations upon countries with respect to possession.
Mr. Gilmour earlier referred to paragraph 2 of Article III of the 1988 convention. That paragraph does deal exclusively with possession, consumption and use of the drugs. His observation was that this paragraph is the result of some horse-trading between Mexico, in particular, and other countries, and that this was a sort of compromise position to please or assuage producing countries. In point of fact, that is not quite what happened.
Mexico and a few other particularly Latin American countries wanted possession of marijuana and consumption and use of marijuana -- and all of the other narcotics by the way. I am limiting my comments here to marijuana because it forms the basis for our discussions today, but my comments apply to all of the drugs that are governed by the conventions.
Mexico as a lead, and followed by other countries, wanted the possession to be an integral part of the 1988 convention. Their reasoning was that, yes, the 1988 convention deals with trafficking. The buying for personal consumption of a narcotic -- cannabis in this case -- is the counter-image of the trafficking. You cannot have a buy without someone selling.
In the view of the Mexican delegation, it was the other side of the coin. You had the trafficker who sold but you had someone who was buying at the same time. If there were no buyers, there would be no traffickers, the Mexicans quite reasonably argued.
Our concern was that this convention was initially thought of as dealing primarily with the seller of the drug. We had to come up with a method which would accommodate the Mexicans and other Latin countries on one hand, but also would not impose upon the offence of possession or consumption all of the measures that are contained in here, things such as extradition and mutual legal assistance and so on.
In fact, paragraph 2 was the solution that the experts provided. I have to tell you that paragraph 2 is actually my humble contribution to this convention, because I conceived of an idea where we could have an obligation to create an offence regarding possession, such as was requested by Mexico, but by extracting it from the main provisions dealing with trafficking, we could isolate the offence of possession and thus not have the remainder of the provisions of this convention apply to possession for personal consumption. All of the remaining provisions of this convention would apply to paragraph 1 of Article III.
If you look throughout the convention, by and large, the only references when we talk about offences are offences included in paragraph 1 of Article III. That article deals with things like production, the sale, the transport, the types of activity normally found in commercial trafficking, if you wish.
There is not doubt that the intent was to criminalize the concept of consumption or possession for personal use. It is clearly open to all countries that we need not sentence an individual found guilty of possession to a specific penalty. All the countries have a tremendous amount of latitude in how they will deal with that offender.
To a certain extent, the types of measures which have been adopted by the Dutch in Amsterdam, and perhaps in other countries, fall within that scope which is open to countries in dealing with a person who is found to have committed the offence of possession.
In Canada, we have done that to a certain extent. We are proposing through this bill to do that even more by carving out the possessors of 30 grams or less and subjecting them to a reduced maximum penalty.
If you ask me whether we can simply outright decriminalize -- that is, remove the offence for possession of 30 grams such that there would be no offence vis-à-vis this particular activity -- in my view, that would be counter to the convention, particularly the 1988 convention.
However, if we have the offence of possession, it is open to us to deal with that offence and that offender in the manner in which we think it most appropriate.
Senator Gigantès: I know young people who smoked marijuana for a little while then stopped. If one of them had been caught and acquired a criminal record as a result, I would find that deplorable. Is there any way of keeping that offence but making sure that simple possession does not lead to a criminal record?
Mr. Saint-Denis: There is. However, we do tend to bandy around the expression "criminal record." There is no official definition of what constitutes a criminal record. There are different types of records. There is the record of the police agency or department who picked up the person and who have registered the charge in their books. That is one type of record. If he is convicted, a court record will demonstrate a record of conviction. There is also the type of record which is maintained by the RCMP in their centralized computer system. That is essentially a fingerprint-based system, a data information system.
Under the kind of offence as now contemplated in the bill, fingerprinting would not be permissible because it is a summary conviction offence exclusively. You can only fingerprint individuals for charges which are of an indictable or a hybrid nature. A hybrid crime can be prosecuted either summarily or through indictment.
The Chairman: Just for clarification, does it prohibit them from being fingerprinted? I thought it prohibited them from being given to CPIC.
Mr. Saint-Denis: The criminal identification act only allows for fingerprinting of individuals charged with either an indictable offence or as a result of the Interpretation Act, a mixed offence. A mixed offence is like the present possession offence in the Narcotic Control Act which can be prosecuted either on indictment or through a summary conviction procedure.
If you have an offence that is exclusively a summary conviction offence -- such as the new possession of 30 grams -- the police have no authorization to fingerprint. In fact, if someone were to fingerprint an individual, he would be absolutely within his right to demand that the fingerprint record be removed.
The possession offence that we now have for 30 grams or less is a straight summary conviction offence for which no fingerprint can be taken. That means there is no record in the RCMP's general database. It would not mean that there would be no record in the court if the individual is convicted. The court records exist. They simply cannot be expunged, nor are the courts particularly well-organized to go back in time.
Senator Bryden: On an application for a visa to a foreign country you are asked the question, "Have you ever been convicted of a criminal offence?" If you answer that question truthfully, taking your situation, the answer to that is yes.
Mr. Saint-Denis: No, not necessarily.
Senator Bryden: No, he has been convicted of a summary conviction offence. When you are asked that question, you have two choices -- tell the truth or lie because, "I can lie because it is not on record anywhere and they cannot catch me" -- like I do on my taxes. Employers do it. All kinds of people do it.
As I said earlier, Canadians tend to be law-abiding citizens. They tend to want to answer questions truthfully. It is my understanding that the truthful answer to that question is, "Yes, I have been convicted of a criminal offence." Therefore, when it goes to the zero tolerance people and our war-against-drugs friends in the U.S., you cannot get in.
Mr. Saint-Denis: That is correct. However, I should point out that the kind of offence being contemplated for 30 grams or less would be a straight summary conviction offence. Most of these offences -- not all, obviously -- would be dealt with through a either an absolute discharge or a conditional discharge. Someone who is given an absolute or conditional discharge is not deemed to have been convicted.
Either he pleads guilty or the court declares him to be guilty. There is a finding of guilt but he is not convicted so he could truthfully answer, "I have not been convicted."
Senator Bryden: I do not mean to be a pain here and I do not mean to cross-examining, but I understand that if you are convicted and given an absolute discharge by a court, you have been convicted of a criminal offence. The discharge allows you the opportunity to have any record removed, something like getting a complete pardon, after two years. Is that not right?
Mr. Saint-Denis: No, it is not, sir, with all due respect. Someone who is given an absolute or conditional discharge is not convicted. The legislation is quite clear on that. A person is found guilty but there is no conviction.
It is a technical point to be sure, but it is an important point for those who are interested in being able to answer truthfully whether they have been convicted.
Senator Bryden: Why do we not include in our schedule of penalties -- perhaps we do -- the choice absolute discharge or, say, a minimum $100 fine? Is it stated in the schedule of penalties?
Mr. Saint-Denis: It is included inherently in the penalties which a judge can impose. The discharge provisions are in the Criminal Code. They apply to all manner of offences and are given for all manner of offences.
Senator Bryden: I realize that. It seems we are trying to comply with our international obligations without giving any particularly serious treatment to the simple possession of marijuana. It would be good direction to the courts then if, in the list of penalties, absolute discharge is listed along with fines of $1,000 or gaol in lieu or whatever.
I realize, in the general law, any judge has the right to give an absolute discharge. If I were a judge, it would be a very useful indication of the intention of Parliament as to how seriously to treat this charge if the first choice were absolute discharge.
Mr. Saint-Denis: There is a technical problem here because if an absolute discharge or a conditional discharge is given, a fine cannot be imposed. A fine can only be imposed after someone is convicted.
Perhaps there is another solution available. I do not know whether this can be done presently. I am sure you are aware there is a Contraventions Act which has been adopted. There are amendments coming up for your consideration. That act will provide, by referring certain offences to an annex to the Contraventions Act, that there will be, in effect, no criminal record. People will be deemed either not to have been convicted or, if convicted, to not have their conviction recorded.
Senator Jessiman: Are you suggesting possession might be one of those? I do not know how many hundreds of thousands of offences there are; there are 12 different departments.
From what I have read about this bill and the earlier one which has not yet been proclaimed, since 1992, the many hundreds of thousands of offences are now down to about 4000. I am hoping that, by now, a list has been prepared; in 1992 they did not have one. Some of the senators were asked to approve it and get it through the Senate but they responded by asking for that list. They were told that the list is a kind of a moving target.
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From 1992 to now, we have had four years, so I will request that list today in the Senate and certainly again in this committee when we get it.
That list will form part of the regulations, not the actual bill. They are envisioning offences like taking some flowers from a federal park, overstaying your time in a certain parking area, or speeding on a federal road.
Because of things I have learned from the time this committee started hearing about this, I really do believe that it probably should be decriminalized. I would like to think it could be but it is not possible with the way it is now worded.
Senator Gigantès: It is still my turn to question.
The Chairman: It certainly is, but you stirred up a great deal of interest with your question.
Senator Gigantès: This is an actual case I encountered. A lady physician got a proper three-month visa for a friend to come to Canada. He happened to be black, she happened to be white and getting on in years.
The immigration people at the Ottawa airport went bananas, accused him of being a paid gigolo, refused him entry, put him on the next plane and sent him back. I was asked to intervene. I intervened because his visa was perfectly all right. He was only coming for three months. He came in and left three months later.
The next year, he tried to enter the United States, but on the computers of the U.S. immigration service was the fact that he had been refused entry to Canada.
The police play these little games, one with the other. You may say, no, there is no official criminal record. But if a policeman from Seattle phones his pals in Vancouver, they will tell whether they have anything on a particular person. That is it.
We have no control over the behaviour of the police in many, many cases, not only in this country but everywhere. They are a law on to themselves and they very often unlawful in their acts.
Mr. Saint-Denis: You are right in saying that there are informal arrangements with police within the same country and between different countries. Through personal contacts and so on, police can sometimes obtain informally what they may not be able to obtain formally. Sometimes police do act inappropriately and sometimes illegally.
I do not believe that is the norm, certainly not in this country. If your point is that we cannot regulate, in absolute terms, police behaviour, you are correct. This bill does not try to do that.
In terms of the criminal record, I have to be very clear on this; it does not propose to remove all notations in any form of the fact that a person has been charged with or convicted of an offence, wherever that may appear.
The offence of possession for 30 grams or less would not be a fingerprintable offence, which means that it does not make its way to the RCMP central data computer that is fingerprint-based. That is all. The local police would have some records. The newspapers would have some records. The courthouse where the individual was tried would have a record.
Senator Gigantès: And when he tries to get into the U.S., they will say, "Sorry, you cannot come in."
Mind you, this is a good way of preventing the brain drain. We can have the RCMP slip little bits of marijuana in every genius' pocket, bust him, and then they will have to stay here and not go to Silicon Valley. However, that is not satisfactory for the protection of an individual. If we do not think that simple possession is a major offence, then let us decriminalize it or find a way that it is not on any record.
You have just agreed that it will be on some record. Some cop south of the border will always hear about it from some cop north of the border, so let us decriminalize it.
Senator Milne: Carrying on about decriminalization, the administration of justice is a provincial matter here in Canada. In order to have an equal application of the law across the country, probably the only way to guarantee this would be to decriminalize simple possession of marijuana.
Mr. Saint-Denis: Are you suggesting that we should also decriminalize or remove penalties for under-age drinking or for speeding or, in some cases, for shoplifting, because all of these and a great number of other types of offences are enforced differentially between the provinces. I do not think there is anything that one can do to ensure absolute equal application and enforcement of the law.
One of the senators earlier made the observation that some of the factors which contribute to an unequal application of the law are, for instance, limitations on resources. There are other factors which also contribute. Different police forces have different priorities. Sometimes they reflect some of the concerns of the community they serve. Sometimes they reflect other things.
There are a number of factors which come to bear on how the law is enforced. Sometimes there is an official position. For instance, in the late 1970s and early 1980s, the offence of abortion in Quebec was not enforced. This was an official provincial position. It was as a direct result of their inability to obtain a conviction against Dr. Morgentaler. They had two kicks at the can and were not successful. Yet the offence was still on the books. But the position of Quebec was that they would not enforce this.
That was one factor that went into their decision. Different provinces and different municipalities have these factors which they must bear in mind in enforcement. No one can enforce all the laws all the time. It is not practical and it is not feasible.
Mr. Gérard Normand, Counsel, Department of Health: To continue with that answer, as far as drug prosecutions and charges are concerned, those are prosecuted by federal Crown attorneys across Canada, except in Quebec where it is dealt with provincially. Although Criminal Code offences are applied by province attorney-generals in each province, the Narcotic Control Act is applied by the federal government everywhere in Canada, except in Quebec.
As far as policy guidelines, they are the same everywhere except in Quebec. However, the arrangements are the same. It is not up to each provincial attorney general to prosecute those cases in general.
Senator Milne: As a further follow-up question, Mr. Saint-Denis, you mentioned "deeming". This term always puzzles me a bit. The House of Commons committee that studied this law took out the deeming section before it ever came to us. When I started to read through it, I see on page 1 the word "analogue" and a definition for it. I cannot find the word "analogue" anywhere in this bill. Why is it in here as a definition? Is this an attempt to slip in through the back door some kind of deeming?
Mr. Saint-Denis: No, it is not an attempt to do through the back door what should be done through the front door. You will find the term "analogue" exclusively in the schedules.
If you look at the schedules of the bill, Schedule I, item 3, page 57, you will see that it deals with "intermediates, salts, derivatives and analogues."
Senator Gigantès: They are equivalents?
Mr. Saint-Denis: Analogues are chemical varieties. That term is included to deal with the manufacture of designer drugs. Designer drugs are drugs which are very close in chemical resemblance to the product which it tries to copy, giving virtually the same physical effects. But because it is chemically different, it is not covered by the substances listed here.
By using very smart chemists, substances can be produced which give the same effect but which do not meet the definition under the precise term of the law. The term "analogue" is there to deal with those chemist-created substances.
Mr. Normand: The deeming provision to which you refer in subsection 3(1) dealt with similarity in the effect of the substance. This term was seen as being wider. If you represented the substance as having the same effect, or if you show that a substance which was not listed had the same effect as a listed substance, it would have been covered. That clause was taken out. Now, only the chemical-structure similarity is left in, not the effect side.
Senator Nolin: Are we focusing today on the international treaties, Madam Chairman, or do we go thoroughly through all the objections which we may have or which were raised by other witnesses, with all the department officials?
The Chairman: We go thoroughly but I was hoping to start with the treaties and then move on to other things.
Senator Nolin: We do have various questions.
The Chairman: Go ahead, Senator Nolin.
(French follows/Antoine/11 :33)/Nolin/GO TO TAKE 1240)
Legal\25 avril 1996\32039\1230.fah Le sénateur Nolin: Si ce n'était des traités internationaux, pour quelle raison maintiendrait-on ces prohibitions? J'espère que vous avez des raisons médicales.
M. St-Denis: Les traités, les conventions ne traitent pas uniquement du cannabis. Il y a une série de substances. Certaines substances sont des stupéfiants, d'autres, des hallucinogènes, d'autres, des psychotropes. L'usage de ces substances dans certains cas est très dangereux. Dans d'autres cas, c'est moins dangereux. Si on doit croire certaines personnes, dans quelques cas, elles ne sont pas dangereuses du tout. Cela dépend de l'usage.
Le sénateur Nolin: Je suis d'accord avec vous sur l'héroïne, la cocaïne, le crack. Sans les avoir essayés, je crois d'emblée ceux qui me disent que c'est dangereux pour la santé. Les témoins font référence à différentes études. La question du mythe que je cherchais dans mes documents sur la marihuana, je ne l'ai pas trouvée.
Est-ce que l'on fait des lois pour réprimer l'usage ou la possession du cannabis uniquement parce qu'on est partie à un traité international, qui inclut entre autres le cannabis parmi d'autres stupéfiants? Si on isolait le cannabis, si on ne l'avait pas notre traité, est-ce que l'on maintiendrait cette prohibition? Est-ce que l'on a des raisons médicales canadiennes? Est-ce que l'on a fait des recherches qui concluent encore que l'on doit réprimer l'usage du cannabis pour un individu qui déciderait de heurter sa santé, comme un buveur d'alcool incontrôlé le fait?
M. Normand: Cette question a été soulevée dans une cause qui ne vous a pas été citée par aucun témoin. C'est une décision de la Cour d'appel du Québec en 1993 dans la cause de M. Hamon, le témoin qui est venu devant vous il y a quelques semaines. Ces prétentions étaient à l'effet que les infractions en matière de possession et de culture de marihuana enfreignaient ses droits en vertu des articles 7 et 15 de la Charte.
Dans cette décision, l'appel à la Cour suprême a été refusé. J'ai seulement la version anglaise.Le juge Beauregard a eu à déterminer, après la cause en première instance, si effectivement la prohibition était déraisonnable aux yeux de la Charte. On retrouve parmi les témoins entendus en première instance, M. Harold Kalant, considéré comme un spécialiste mondial en matière de cannabis. C'est un psycho-pharmacolgue à l'Addiction Research Fundation à Toronto. Il y eu aussi un psychiatre de l'Hôpital Général de Montréal qui traite dans une clinique ceux qui ont des problèmes de drogue et de boisson. Il y a eu M. Jones, un psychiatre de San Francisco, un chercheur qui fait des expériences sur les effets du THC sur les gens. Ces trois témoins ont témoigné en première instance sur les effets néfastes de la marihuana.
On élabore ces principes à la page 492 et au bas de la version anglaise, on lit:
(anglais suit)(These witennesses demonstrated that)
MA Take 1240 Legal 32039
(following French/Antoine steno/Normand continuing)
...These witnesses demonstrated that abusive use of marijuana had detrimental effects on society.
(French follows\Antoine\Normand continues)
Sénat\25 avril 1996\32039\1240.fah M. Normand: Au haut de la page, la question est lancée, à la dixième ligne, on lit:
(anglais suit)(Interference by the state prevent a person from consuming)
(following French/12:38/Normand continuing)
...Interference by the state to prevent a person from consuming some substance would not respect the principles of fundamental justice if the prohibition were unreasonable, that is, where the act prohibited is not truly detrimental to society.
(French follows/Normand continuing/12:3/Antoine)
Legal\25 avril 1996\32039\1240.fah (après anglais) (M. Normand )
Il jette la base de son raisonnement. Il commence par dire qu'il a entendu les différents spécialistes.
Le sénateur Nolin: On aurait aimé aussi les entendre. Je ne critique pas la décision du juge Beauregard. Au comité, des gens sont venus nous dire qu'il y a un mythe autour de cela. Ce n'est pas si dangereux. Celui qui veut en prendre, si cela affecte sa capacité d'avoir l'esprit clair, c'est de ses affaires. Cela ne dérange pas les autres. C'est ce que nous avons entendu depuis cinq ou six séances.
Est-ce des témoins vont venir nous dire que c'est dangereux, voici l'autre côté de la médaille. Cela affecte le foie, cela met en danger le coeur. Je comprends que le juge Beauregard les a entendus mais pas nous.
M. Normand: Les gens qui veulent se faire entendre vont demander à se faire entendre. Du côté gouvernemental, on est ici pour défendre le projet de loi et non pas pour réviser la politique. C'est la raison pour laquelle on a n'a pas de témoins à vous présenter à ce stade.
Le sénateur Nolin: Notre façon de faire n'est peut-être pas la bonne. Quand on examine un projet de loi, il faut en examiner les racines et les objectifs. Les fonctionnaires nous disent: c'est une question politique, le ministre va y répondre.
Est-ce que l'on a besoin de prohiber la possession et l'usage personnel du cannabis? C'est la question que l'on se pose depuis trois semaines. Une série de témoins nous ont presque convaincus que ce n'est pas si grave que cela. J'étais à peu près convaincu que vous étiez pour dire le contraire. Je me suis dit que vous viendriez avec des témoins. En tout cas, s'il le faut, on va prolonger notre étude.
Le sénateur Gigantès: Des expériences ont été faites sur des animaux qui prouvent que si on administre des injections d'eau distillée pure en assez grande quantité, cela va leur causer des maladies. Il y a des gens qui se tuent en fumant. Des gens boivent trop d'alcool, se tuent, tuent d'autres personnes et rendent la vie de leur famille absolument impossible. Comment est-ce que la marihuana se compare avec les mauvais effets du tabagisme et de l'alcool? On voudrait entendre quelques experts qui parleraient de cela.
Le sénateur Nolin: Nous ne sommes pas pressés au point de refuser d'entendre ces témoins qui viendraient nous éclairer grandement. Revenons aux traités internationaux. Dans le rapport du juge Le Dain, j'en ai lu des extraits, je n'ai pas trouvé la version complète du rapport principal. Il ne semble pas préoccupé, les cinq commissaires ne semblent pas préoccupés par la coexistence de son rapport et de la convention de 1961. Il recommande même la signature de la convention de 1971. Est-ce que vous avez une idée à ce sujet?
M. St-Denis: Les rapports de la commission Le Dain ont été rédigés avant la signature de la convention de 1988. La convention de 1961, selon certaines personnes, est un peu ambiguë en ce qui concerne la possession de cannabis ou d'héroïne à des fins personnelles. Ä mon avis, l'ambiguïté n'est pas aussi claire. Ceci dit, je crois que la convention de 1988 et très claire à cet effet.
Il faut traiter avec le droit criminel la possession à des fins de consommation personnelle. Il n'y a pas d'ambiguïté à ce sujet. Le juge Le Dain n'avait pas le bénéfice de cette convention lorsqu'il a préparé son rapport. Face à cette ambiguïté concernant la convention de 1961, il croyait qu'il avait une certaine marge de manoeuvre. Je ne suis pas convaincu que les conclusions du rapport Le Dain seraient les mêmes concernant la convention de 1988.
Le sénateur Nolin: Prenons le problème différemment. Aux fins de la discussion, elles nous empêchent jusqu'à une certaine limite dans la possibilité de décriminaliser la possession simple de cannabis. Est-ce que les autorités canadiennes ont, à ce jour, entretenu des discussions avec les co-signataires de ces différentes conventions pour décriminaliser le cannabis?
M. St-Denis: La dernière et la plus claire expression des états concernant la consommation des drogues, y compris le cannabis et l'usage personnel et cetera, c'est la convention de 1988. On l'a complétée en 1988. Encore de nos jours, les pays signataires -- pour répondre à cette question, on ne parle pas de 20 ou 30 ans en arrière, c'est quand même relativement récent -- ont été d'avis qu'il fallait criminaliser ce comportement.
En ce qui concerne les discussions récentes, à ma connaissance, il n'y en a pas eues officiellement. Le groupe de M. Gilmour et d'autres ont des contacts avec d'autres groupes informels, des groupes populaires.
Le sénateur Nolin: Je pense à des échanges du gouvernement.
M. St-Denis: En ce qui me concerne les échanges gouvernementaux, il n'y a rien.
(anglais suit--take 1550) (M. Rowsell, the advice in lookink at those substances)
(go take 1250)
MA Take 1250 Legal 32039.
(following French\Nolin\12:46)
Mr. Rowsell: The World Health Organization is an advisor to the United Nations commission on narcotic drugs. The commission will ask the World Health Organization in Geneva to set up a committee of experts to examine drugs on a periodic basis. To the best my knowledge, they have not asked the World Health Organization to examine cannabis, but they have looked at other psychoactive substances, mainly from a medical perspective.
You must remember that, in this bill and in the schedules, they state all the things that you cannot do. Then within a schedule of the regulations, we create a list of all of the substances that will be used for medical purposes.
Within the regulations, Schedule N lists things like codeine, morphine, and other substances to allow physicians and pharmacists to handle the substances in order to treat patients.
I admit that the World Health Organization focuses on the aspect of a medical use; however, I do see any difficulty in asking the World Health Organization to undertake an in-depth scientific review of cannabis.
I have listened to the hearings both in the house and here. I have heard the dilemma. I understand all of you have a great concern over how to deal with this issue of cannabis.
I should like to draw to your attention that, when the bill was introduced, the Department of Health was asking to consolidate the present Narcotic Control Act and Parts III and IV of the Food and Drugs Act which deals with narcotics and controlled drugs.
We were also not satisfying our obligations for the control of some drugs, such as the precursor substances, the designer drugs and the benzodiazepines, a group of tranquillizers that are widely in circulation for illicit purpose.
That was the intent of the Department of Health in coming forward with this bill. We recognize that there is a real concern amongst Canadians, all Canadians, over how we in this country deal with cannabis and its abuse potential. For that reason, we need a wide variety of expertise in examining this issue. We should have experts from the World Health Organization. We should have experts from the commission in Vienna. We should bring in experts who have dealt with this in Amsterdam or Australia.
That is a very wide-ranging undertaking. That is why, in the house, the committee put forward, as part of their report, a recommendation for a drug policy review, to try to bring together all these parameters in a very widespread review of the policy.
It would be very difficult for you to come to a decision now without having the capability of hearing all that advice.
Perhaps I should not say it, but I probably would encourage you to join with the members of the house who will undertake that review through the Standing House Committee on Health. The honourable Roger Simmons, the chair, has made a commitment that that review will take place.
The dilemma facing you is real; there is no question. However, it may be an opportune time for you to join together with them and make sure that your concerns and those of the house are addressed at the same time.
Senator Gigantès: The Department of Health some years ago said that saccharine presented risks, but Nutrasweet presents less risks. So I dutifully switched to Nutrasweet because sugar allegedly presented more risks to me than Nutrasweet.
However, you have not made saccharine illegal. It is still sold, and little packets of saccharine are still offered to you in various restaurants.
It is a question of evaluating the risk, as I have said before, but we must have some information. Is it more or less deadly than things we allow like tobacco and alcohol?
Senator Corbin: Not to mention the air in this room.
Senator Gigantès: Unless we evaluate the risks, we are not doing our duty.
Senator Doyle: You have just finished speaking on the need for an in-depth, scientific study of cannabis and the dangers it presents and the methods of controlling it. We asked at the same time for an in-depth, scientific study on sentencing and what we have accomplished over the years with the law as it has stood at various times.
This is the second time I have studied marijuana on this very committee over the last decade. I remembered, this morning, the first time I ever heard of marijuana. It was in a movie which had been brought to my high school for us to see. I remember the title of the movie; it was called "Reefer Madness." It was a thing that made you impossibly sexy, very attractive, and then, of course, it brought you down. You were no longer in the esteem of your parents. They were disgraced. All sorts of terrible things happened.
I can remember afterwards being impressed enough to want to find out more from someone who had used it. I could not find a soul, who was willing to talk to me, who had used marijuana. However, it was a "big problem" and so it has gone. The record now seems to be that anyone who was the age that I was when this confrontation came in high school who has not used marijuana would be more of the exception than the alternative.
That, gentlemen, is the progress we have made over the years with a little bit of help from outside the country and a little bit of help from the Moonies and a little bit of interference because there is much money to be made out of trafficking in that substance. Yet I cannot think of one thing that has been done in-depth or scientifically which has been successful. We are still talking about whether there ought to be a law against it.
When you are looking at it from the scientific point of view, can you get us something of a study on how changes in the law have affected it and how courts have responded to the law in different parts of this country? Sometimes there is a difference in sentencing not only in one part of the country but in the same city, depending on the judge you get.
If we are to, in any way, impress anybody under 40 with the validity of our system on this and with the continued use of marijuana and classification as a prohibited subject, if we want them to believe in what we are doing, we need more facts than we now have and more experience than we are willing to admit.
I guess that is not a question, but maybe someone call tell me that just such a study on sentencing and the effect of the law is in the library under such-and-such a title or that there is no such study but we can get one.
(take 1300 begins--Mr. Rowsell: You are a very wise man.) VA/04/25/96 -- LEGAL -- #32039
(Senator Doyle: continuing...it in the library under such and such a name; or, no, there is not such a study but we will get one. Take 1300 begins here)
Mr. Rowsell: You are a very wise man. There will never be "a" study. Without presupposing the intent of the undertaking of the house committee, it is not just a scientific study. Their intention is to look at all of the parameters that you have raised -- that is, the social issues, the societal parameters, and the science of the substance itself. Their intention is to look at this in a very broad manner to cover all the issues you have raised. I have not heard them say that, but that is my understanding of their intention.
Senator Doyle: I specifically asked for some kind of study of the law as it has stood, what effect it has had, and how evenly it has been administered. That is not an unattainable study. I am only talking about the Canadian experience.
Mr. Saint-Denis: I am not sure that some of that is actually amenable to scientific study. Trying to determine a cause-effect-relationship between the existence of a law and a lack of behaviour is not easy to do in the best of circumstances.
I do not think you need a scientific study to determine whether or not there are any qualities in the application of the law. As an operational hypothesis, you must accept that the law is applied unevenly across the country. It is not the same to say that it is applied unfairly, it is just not applied in the same way. There are factors that contribute to that, which have been alluded to by other speakers as well.
In terms of the impact the law has on an individual's behaviour, a lot of it is conjecture. Some will be impressed by the existence of a criminal sanction attached to a type of behaviour and will not enter into that behaviour. Others might be attracted by the very existence of a penal law or a penal sanction attached to a certain type of behaviour. For others, it is simply not an issue. It depends on the individual. There are so many factors, I am not sure that it can actually be condensed and reduced to a scientific equation.
Mr. Normand: The same could be said for other offences in the Criminal Code such as simple theft or break and enter. For some people that is nothing; for others it is serious. For some people, the fact that it is illegal will not stop them from doing it. It is not something that is particular to this situation -- that is, if we are dealing with possession of drugs.
Senator Doyle: Why is it, then, that we have this mystery about marihuana and other drugs -- but marijuana in particular is the one we are talking about today -- but we do not feel the same way, say, about wine. Yet wine itself probably accounts for as many victims, as much disaster, as much good merriment as marihuana ever will.
I think I understand what is going on there. I understand the risk taken, the penalties provided, and the way the law is administered. It has been a long time since we have had a solid showing of concern about the way we handle wine under our law except, perhaps, here in Ontario, where people argue it should be sold in all commercial stores. But with marihuana, you have fierce positions pro and con, and people who are totally in the middle and do not understand one way or the other. Why do we continue that? If you are representing the Department of Justice, show us the justice in what you propose.
Mr. Normand: You have discussions on marihuana because it is illegal. If wine was illegal, you would have the same discussion about wine. At one point, a decision was taken by various countries to criminalize this drug, based on facts. I again relate to the Hammon case, where testimonies were made by the Government of Canada which led the court to determine that making this a crime was not unreasonable as far as the Charter is concerned. They talk also about tobacco and alcohol in this decision on page 494, and what Justice Beauregard says about alcohol.
As far as tobacco is concerned, Justice Beauregard looks at it in relation to the behaviour concerned. He says that "one could answer that tobacco does not cause erratic behaviour in the user..." as opposed to what it does for drugs.
As far as alcohol is concerned, Justice Beauregard deals with it by saying that it would probably be necessary to take into account our cultural traditions, which perhaps put a damper on the state's desire to prohibit the use of alcohol. That decision was given in the context of the Charter.
When something is illegal and is as predominant in public discussion as the topic of marihuana is today, you will definitely hear pros and cons. That is why the house accepted and recommended that an in-depth review of the policy be undertaken.
Senator Doyle: If we made marihuana legal, perhaps we would be able to find out how to regulate it, how to supply it as well as use it, and perhaps we would begin to have a certain amount of equanimity about it as we do with wine.
Senator Jessiman: I have a question which concerns the Hamon case and what we are talking about here. On pages 492 and 493 of this decision they state:
It must be presumed that Parliament, in continuing to prohibit the cultivation and possession of marijuana, based its decision on the enlightened opinions and good faith of these specialists.
Here we are talking about that. We know from what people have told us that is not the case at all. But courts say, "Parliament says it is so. Therefore, it must be so." You are saying the opposite. We hear both sides of it. From what we have heard, 90 per cent say that it is not detrimental. Before we pass this bill, someone should conduct a study, or we should have a study, because the courts will continue. If we pass this bill, the courts will depend on it. That is what they have to interpret the law. We are making the law here, and it puts us in a difficult position.
The Chairman: I must ask Senator Nolin to take the chair for a moment. Senator Jessiman and I must go to the same meeting.
First, I have a couple of questions. I would like to thank Mr. Saint-Denis for his clarity on summary conviction. Throughout the whole discussions on the gun bill, I was looking for that kind of statement. We were convinced by testimony that the summary conviction would certainly make sure that those fingerprints did not show up on CPIC. But no one, including department officials from the Department of Justice, ever told the committee that they would never be fingerprinted. That was never a piece of information that came out. Thank you for that clarity. I am sure I will use it in my correspondence in the next few months.
I am concerned about the principle of absolute discharge. We know that anyone can apply for an absolute discharge, within reason.
(Take 1310 follows, The Chairman continues: Let me give you a classic example...) VA/04/26/96 -- LEGAL -- #32039
(The Chairman: I am concerned about the principle of absolute discharge. We know that anyone can apply for an absolute discharge, within reason. Take 1310 begins here, the Chairman continues)
Let me give you a classic example. A young person is arrested, charged, and convicted for possession. He is representing himself. He knows the fine will probably be $100, not be more than that. He will go into the courtroom, plead guilty, pay his fine, and walk out the door. No one tells him about an absolute discharge. No one tells him he can apply for an absolute discharge. No one tells him that if he applies for an absolute discharge and it is granted, according to the information given here he would have no criminal record.
What if you changed the law, to say that an application for absolute discharge had to be made in each case of marihuana possession?
Mr. Saint-Denis: There is a small technical point. One does not apply for a conditional discharge. It is part of the range of sentences that a court can impose. The judge, either as a result of a submission by the Crown, or the defence, or on his own, will conclude that in this case a conditional discharge or an absolute discharge is warranted and will simply act on that. Once a person has been convicted, there is no possibility to apply for a discharge; he has already been convicted.
The Chairman: I realize that. But if the Crown is there and they are interested in absolute discharge, they will act. If the young person has hired counsel, they may act. But what about the case of the young person who has no knowledge whatsoever about an absolute discharge? The judge does not initiate it.
Mr. Saint-Denis: The judge can, on his own. If the judge is of the view that the offence is of such a minor nature that it does not require more than a discharge, then he will do that, and whether or not there have been submissions to obtain such a discharge is irrelevant. The judge can act on his own.
The Chairman: Can the law make it compulsory to consider?
Mr. Saint-Denis: Yes, technically, it could. I am not sure exactly how one would do that.
The Chairman: I am not either.
Senator Jessiman, I understand our young people are not there yet, so we will carry on.
Senator Bryden: Madam Chairman, I did not get my turn.
The Chairman: I am sorry. Please go ahead.
Senator Bryden: In any event, my question concerns the treaty. It sounds as though -- and it say this somewhere in the documents -- this started out as a housekeeping bill. No one who appeared before us thinks you are a very good housekeeper. Basically, no one has supported this bill unless something was fixed. The general position was one of very great concern.
In relation to the treaties, it concerns me -- and maybe it is the way it has to work -- that the first one occurred in 1961, and we are trying to adhere to it here. It has been updated, but that was 35 years ago. The next one that gets talked about is the one for trafficking, importing and exporting. That occurred in 1988.
First, I am concerned that that policy which gave rise to 1961, from which some of the rest of this flows, is 35 years out of date. Therefore, it was probably based on countries' policies which were 10 years before it got to the convention stage.
My other concern is that the updated version -- that is, from 1988 -- is right in the middle of the most powerful nation on earth's war on drugs and zero tolerance. I do not know if this is true, but I would be willing to bet that it was driven by the U.S. Maybe this question is unfair, but the impression I got from you, when you were talking about how marihuana got into the treaty, was that Mexico is getting hammered because they are the producers, the importers, and so on. Basically, they were getting hammered for trafficking and importing. The Mexicans were saying, "If we did not have a market in the U.S., we would not be so bad." The drug marihuana was included at the instigation of Mexico as a quid pro quo for them signing on to the treaty. Is that fair?
Mr. Saint-Denis: No, it is not. You have raised two issues. First, there is the age of the 1961 convention. It is 35-years old. It reflected concerns then, but perhaps things have changed since then. The 1961 convention is, in nature and in purpose, generally, considerably different from the 1988 convention. The 1961 convention as is the 1971 convention which deals with psychotropic substances, is more of a convention dealing with the control and regulation, and the administration of trade, production and cultivation of narcotic drugs. Its purpose is to ensure that, worldwide, there is a coherent system for dealing with narcotic drugs.
The production of narcotic drugs is limited to a handful of countries. Approximately four or five countries produce the opium poppy, which produce uses morphine, heroin, and all of its derivatives; whereas only one or two countries can actually produce the coca bush. We wanted to be sure that there existed a regime whereby the natural product -- that is, where they were grown -- could make their way to the rest of the world in an orderly fashion, in order to provide them with the medication they needed for the treatment of pain.
The 1961 convention did that. It is called the single convention because it gathered under one convention the provisions of several conventions before it. It unified the provisions of all these conventions into one single convention; therefore, the single convention. As an element, but only one of a great number of elements in this convention, are the requirements for the criminalization of certain types of behaviour. That is the single convention.
The 1988 convention is totally different. It was primarily preoccupied with the notion of law enforcement and the effort that was needed worldwide to deal with trafficking. The orientation and the philosophical underpinnings of both conventions are totally different.
Senator Bryden: Could we comply with the 1961 convention and not with the 1988 convention?
Mr. Saint-Denis: No. We have signed both.
Senator Bryden: Could we do the things that would say "Yes, they are in compliance with the 1961 convention," but still leave some things open that are not in compliance with the 1988 convention?
Mr. Rowsell: That is what we are doing now. We are in compliance with the 1961 convention, but not with the 1988 convention.
Mr. Saint-Denis: And some elements of the 1971 convention, which is why this bill is here as well.
With respect to the Mexican question, Mexico is considered to be a producer country. Their concern was not so much that the U.S. is a big consumer market and, therefore, if there was no consumer we would not be tarred as production or producer countries. So in order for us to have our say in it, we must have this section in here. That was not their position.
The Mexican delegation pointed out that trafficking is not just a one-way street. It is not just drugs going this way; it is also people buying. It was not a remark directed at the U.S. It is a simple observation. They are saying, "We must be able to deal with the issue of drugs from both sides. Not just trafficking this way, but the buying." The buying is part and parcel of trafficking. As a criminological observation, that is quite right.
Senator Bryden: Perhaps you are. But if there are no turnips, you do not have to control the market for turnips.
(Take 1320 follows, Sen. Bryden continues: If no restricted drugs are being produced in Mexico...) df\96\04\25 Legal #32039
(Take 1320 ends Sen. Bryden...you do not have to control the market for turnips -- )
(Take 1330 Starts Here, Sen. Bryden continues)
Senator Bryden: If no restricted drugs are being produced in Mexico, then Mexico does not have to worry about the market for those restricted drugs that is created in the United States
Mr. Rowsell: But someone will import them.
Senator Bryden: You can control the substance by cutting off the supply or cutting off the market. If you cut off the market totally, no one will supply it.
Mr. Saint-Denis: The observation was not made as a result of Mexico being a producer country. They were supported --
Senator Bryden: By supplier countries?
Mr. Saint-Denis: No. They were supported by countries that were not producer countries or transit countries. The observation was made from the classical view of what constituted trafficking, which was always from the perspective that it involves selling and nothing else. They were saying that, no, it is not just selling; it is also buying. The observation struck a sympathetic cord with a number of countries that have nothing to do with producing or transiting. That is why we came up with this complex provision to include possession but to exclude it from the general operation of the convention. Everyone recognized that possession was relatively minor, particularly possession for the purpose of personal consumption. It was relatively minor compared to what we wanted this convention to deal with. It was simply an effort by Mexico to point out that trafficking is not just selling; it is also buying. They were adamant that the convention should apply to both equally. Others were equally adamant that it should not. The compromise was finding a way to say that, yes, we must criminalize possession, but the rest of the convention will not apply to that particular offence. We will just highlight it, make it clear that people have to criminalize that sort of activity, and then carve a niche for it outside the scope of the rest of the convention.
Senator Bryden: When I lived in the real world, I made a good part of my living negotiating labour contracts. The clause that gave us the most trouble was the final one that had to be done at midnight to get the deal done. I have the impression that that may be what happened here.
Mr. Saint-Denis: No. That particular clause was resolved about halfway through our discussions and negotiations. It was not a last-minute, horse-trading type of clause at all.
Senator Milne: Mr. Rowsell, I know that you are Director of the Bureau of Drug Surveillance, but you are the representative here from the Department of Health. Perhaps you can answer these questions for me.
We received a letter from a woman, Dr. Riley, who pointed out that the Canadian Drug Strategy was terminated a year ahead of schedule. She suggests in her letter that the decision to terminate was due to the program's variance with the health department's view on drugs. She summarises her charges very well and states:
Because the policy arm of the CCSA did not toe the party line with regard to maintaining the status quo on drug policy issues, it has been effectively silenced.
The Canadian Centre on Substance Abuse is the CCSA. It receives its funding from the Canadian Drug Strategy. Dr. Riley was recently laid off when the termination of the CDS ended funding for this program.
Why was the Canadian Drug Strategy terminated a year ahead of schedule? How does the department respond to charges that the decision to terminate was an attempt to silence the Canadian Centre on Substance Abuse because it often took positions contrary to government policy? Dr. Riley even goes so far as to claim in her letter to the chairman of this committee that she was threatened with having her employment reconsidered if she continued to be critical of the government's policies. Can you comment on this?
Mr. Rowsell: The review of the funding for the Canadian Drug Strategy was part of Program Review II, which is the government's decision to review all programs and to look at funding and how they were proceeding. The review for funding was part of that government-wide program.
To the best of my knowledge, not all funds were eliminated. There is still some funding of the Canadian Drug Strategy, but I am not familiar with the details. The assistant deputy minister of our health programs branch, Ms Kay Stanley, has responsibility for that program. I can try to find out for you how that was done.
I have no knowledge as to the implications for the Canadian Centre on Substance Abuse or anything beyond that.
Senator Milne: You have not answered my question.
Mr. Rowsell: I can try to find out for you.
Senator Milne: I know it is not your fault.
I have two other concerns. As I read through this bill, I felt that it is not a bill for improving Canadian health; rather, it is a punitive bill. That concerns me. How does the Department of Health square that feeling with what Mr. Gilmour said earlier today, that the fundamental principle should be one of restraint with regard to the application of criminal law? This bill seems to run against that feeling of restraint.
Mr. Rowsell: When we look at the harm reduction approach to dealing with substance abuse, the bill talks about things you cannot do. It then makes provisions for regulations to be developed for things that can be done. Most of the things that can be done health wise are in the regulations, such as authorizing physicians to prescribe, pharmacists to dispense and manufacturers to produce therapeutic substances. At the same time and in the context of the Canadian Drug Strategy, we look at this bill as part of the supply control end of things. The demand reduction side -- education, treatment, prevention and rehabilitation -- is something that many partners across Canada are involved in. You heard many witnesses say that people cannot get into treatment centres. We are putting them into jail when in fact they should be going in for treatment. There is likely no one here who would speak against that.
That is what we should be doing. However, when you look at it, there is no funding for the provinces to go into those things. Again, the delivery of health care is a provincial jurisdiction.
There have been debates. For example, how do we take money away from the penitentiary system and put it into the health care system?
Senator Milne: Or take people out of the penitentiary system.
Mr. Rowsell: Those debates go beyond anything that we can deal with. We are attempting to look at this from a health perspective.
The Chairman: Senators, it is clear that our time is getting short. I think we will have to have these officials back to finish our questioning. Perhaps the clerk could arrange a time convenient for the witnesses and for this committee.
(French follows/Nolin/1:26/Monique)
Legal\25 avril 1996\32039\1320.fmr Le sénateur Nolin: Vous étiez présents durant toutes les audiences que nous avons eu. Vous avez eu accès à toute la documentation. J'aimerais reprendre certains arguments qui ont été soulevés par certains témoins. Monsieur Raymond, entre autres, dans sa correspondence nous parle de la corruption policière. On a toute la question de l'industrie du chanvre qui nous semble tout à fait raisonable, la question du mémoire du Barreau canadien qui est incontournable. Je pense que vous allez devoir répondre à cela avec beaucoup d'aplomb. J'espère que vous allez passer en revu toute cette information afin que l'on puisse continuer notre étude et que l'on prenne la meilleure position qui n'est peut-être pas de passer la loi dans son état actuel. Honnêtement, ce n'est pas parce que la Chambre des communes met en place une commission d'étude. Il y en a eu d'autres commissions d'étude. Cela fait 35 ans que l'on a la convention unique. Il me semble que cela fait 35 ans que l'on entend dire que le cannabis n'est pas dangereux.
Est-ce que c'est une étude de la Chambre des communes qui va vraiment régler cela? Je n'en suis pas certain. On a un projet de loi et l'on a une sorte de monnaie d'échange qui peut-être nous permettrait d'avancer un peu plus pour essayer de trouver une solution a un problème qui n'est sûrement pas juste médical. J'ai peur que cette solution en soit une où on se dit que tous les autres pays le font, et nous ne serons pas les premiers à casser la glace. Préparez-vous comme il le faut. On va se réunir pour deux ou trois heures lors de cette réunion.
(anglais suit 1330)(Sénateur Milne:I have a question that perhaps when they come back they can answer for me because I know you won't have the answer right now. Yesterday we had some people in ....)
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(Following French)
Senator Milne: I have a question to which these gentlemen could bring back an answer.
Yesterday, we heard from some people who were very concerned. I asked them if they had the same concerns about substance abuse and the agricultural growth of fibre hemp. One of them answered that, yes, a paste can be made from fibre hemp that is strongly hallucinogenic. I would like you to come back to us with an answer on that. Is it true?
The Chairman: A summary has been made of all the amendments that have been requested of this committee by various witnesses. We will share this document with you, and it would be useful if you addressed everyone of those requests for amendment at our next meeting.
Senator Nolin: And if, during the different presentations made to this committee, you have heard false information, please let us know. Do not think that if we do not ask questions that we think the information is false. We think the opposite.
Mr. Rowsell: It has not been false, but it has been directed.
Senator Nolin: Then comment on it.
Senator Doyle: Through the Department of Health or the Department of Justice, is there a list of various projects that have been launched to find out how we might change the law or adjust the law? We are constantly being told what they are doing in the Netherlands; then we are being told what they are doing in Australia; then we are being told what is happening even out in Vancouver. However, collectively, as a country, what have we been doing to find out more about the subject we are discussing?
The Chairman: We will address that issue as well.
I will call this meeting to end. However, before I do so, I would like Senator Nolin and Senator Gigantès to stay very briefly for a steering committee meeting.
Is it acceptable, honourable senators, that Senator Gigantès replace Senator Lewis on the steering committee for today only?
Hon. Senators: Agreed.
The committee adjourned.
Converted by Andrew Scriven
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Updated: 24 Jul 2001 | Accessed: 59228 times