THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS

March 28, 1996 

Appearances by the Canadian Bar Association and the Criminal Lawyers' Association of Ontario

 (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.)
 
 

THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS

     EVIDENCE

Ottawa, Thursday, March 28, 1996

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-8, respecting the control of certain drugs, their precursors and other substances and to amend certain other Acts and repeal the Narcotic Control Act in consequence thereof, met this day at 9:30 a.m. to give consideration to the bill.

Senator Sharon Carstairs (Chairman) in the Chair.

The Chairman: I call to order the meeting of the Standing Committee on Legal and Constitutional Affairs which is considering Bill C-8. We will hear this morning from the Canadian Bar Association and also from the Criminal Lawyers' Association of Ontario. It is my understanding that we will hear first from Tamra Thomson, Director, Legislative and Law Reform. We will then hear from John Conroy, Chair, Committee on Imprisonment & Release. Then, from the Criminal Lawyers' Association, we will hear from Irwin Koziebrocki, Treasurer.

Please begin, Ms. Thomson, with the caveat that we hope that your presentations will leave us plenty of time to ask questions and also that we have to be out of this room by 11 o'clock.

Ms Tamra Thomson, Director, Legislative and Law Reform: Thank you, Madam Chair. The Canadian Bar Association is pleased to be here. This is our first appearance before this committee since you have become the chairman of it. We wish you all the best in your new task and look forward to working with you.

The Canadian Bar Association is a national association representing over 34,000 jurists, including lawyers, notaries, law teachers, students and judges from across Canada. It is with pleasure that we appear today on behalf of the Committee on Imprisonment & Release of the National Criminal Justice Section of the association.

The National Criminal Justice Section has more than 1200 members representing both defence and Crown counsel. The primary objectives of the Canadian Bar Association include the improvement of the law and the administration of justice, and the comments that we will make to the Senate committee today are made in that context.

I will turn the floor over to Mr. John Conroy, who is the Chair of the Committee on Imprisonment & Release, and ask him to make the substantive remarks on the bill.

Mr. John Conroy, Chair, Committee on Imprisonment & Release: The legal profession is often much maligned. As you have just been told, we consist of prosecutors, defence counsel and judges. We are very much involved in the prosecution and defence of people charged with offences which arise under this type of legislation. In the materials we have given you are a letter from the Bar Association and the brief we submitted when this bill was called C-7 in May of 1994, as well as some additional materials which we have attached for background information. There are two articles; one by the American Bar Association and a document by Zimmer and Morgan, 'Exposing Marijuana Myths: A Review of the Scientific Evidence'. That goes up to October of 1995.

We took the position in our previous brief that this legislation is continually heading in the wrong direction, that it will result in more criminalization and incarceration rather than focusing on harm reduction. We submit that it is in the public interest to take the harm reduction approach rather than the criminalization approach. It will mean, of course, less work for lawyers if we are successful in convincing you that that is the direction in which we should go. We believe that it is in the public interest to move away from the approach we have had for the last 73 years.

In our materials you will see many statistics, particularly in the May 1994 brief, showing you, first, that the Bar Association has been on record since 1974 as being in favour of a heroin maintenance type of model, which is a harm reduction model. We have been in favour, since 1978, of decriminalization of simple possession of marihuana, cultivation and non-profit transfers for personal use. We have taken this position for a long period of time.

Recent statistics show that the great majority of people convicted of drug offences are convicted of simple possession. In 1990, 50 per cent of the people convicted were convicted of simple possession of marihuana, and 33 per cent of them went to prison.

In addition, we have discovered that surveys done of Canadian users show that there are a large number of users but that a very small percentage of users are charged and convicted, so there is a very unequal application of the law as well. The American statistics show that the situation is even worse there.

We submit that it is folly to continue in the present direction. We submit that you should be listening to people in the field; not only members of the bar but also police forces.

You will see that in our May 1994 brief we have quotes from a number of former drug agents, both Canada and elsewhere, as well as a quote from the chief of police in Ottawa. People who have been working in the field are saying that this continued approach does not work; it is doing more harm than good; rather than using the criminal law to deter people from use, we should be focusing on the harm that can be caused by individual drugs and on trying to look at that from a health and social policy perspective in terms of reduction of harm.

This is what has been occurring in many European countries, particularly the Netherlands, but also in various projects in England, Italy, Spain and Germany. It appears to be working in the sense that they do not have a number of the problems that we have. 

I should like to touch on one point on which we focus in both our letter and our brief, and that has to do with the issue of criminal records. I know this has come up a number of times.

The section of this bill dealing with possession of marihuana under 30 grams says that because it is a summary conviction only offence, you are not subject to the provisions of the Identification of Criminals Act. You do not have to be printed and photographed and, therefore, it is said that you do not get a traceable criminal record. This is wrong, in our view. The Criminal Records Act still applies. A person still gets a record. It is hard to imagine that someone at the border being asked if they have a record would lie about it, or that counsel in court being asked by the court whether their client has a record would say, "No traceable record, Your Honour." Either you have a record or you do not have a record. 

   Governments have tried now three times to decriminalize in the sense of removing criminal records. In 1972, the Trudeau government, following the Le Dain Commission recommendations, introduced absolute and conditional discharges and represented this as a way that people would not get criminal records. Of course, the Criminal Records Act still applied and many provinces quickly amended their legislation to ensure that if a person got a discharge, they still got a record. So that did not work.

In 1975, the Trudeau government introduced Bill S-19. When that came before the Senate, the Senate amended that bill. That bill had provided, as does this one, that simple possession would be a summary conviction section type of penalty. In fact, it was only summary conviction. This bill still has an indictable section.

(0940 follows)

(The Senate sent back an amendment that if a person got a discharge, for a summary conviction)

28March96-Legal-32023-DM

(Mr Conroy continuing -- still that is an indictable section.)

(0940 starts here)

The Senate sent back an amendment so that if a person got a discharge for a summary conviction plea or finding of guilt, they would be deemed to be pardoned under the Criminal Records Act. That bill died on the Order Paper, so it never became law either. That was the second attempt to try to decriminalize, even though it was not really decriminalizing, because again the Criminal Records Act would still apply.

Now there is the attempt here under Bill C-8, which we note has the same old summary conviction penalties as from way back. We wonder why we are still going in this direction so many years later. We are not reflecting penalties that are actually being applied or close to what is actually being applied by the courts and by the police. 

While legislation had been very severe starting in 1961 and most of the amendments thereafter have been ameliorating legislation, especially in relation to simple possession, the rates of use at least in relation to marihuana peaked around 1979 and started to go down. They have only have very recently, in 1990, started to go up. There does not seem to be any relationship with what the law provides, whether it is serious penalties or a suggestion of lessening the penalties. The user rates are affected by different factors.

It is important that this bill does not deal with people who have been convicted in the past and have criminal records. It is completely silent about that. There are many Canadians who still suffer considerable disabilities as a result.

I would like to tell you quickly about one case which was brought to my attention recently, the case of a Billy Morash. He met a woman in the United States when he was working down there. They fell in love and decided to get married. Shortly before they got married, there was the Reagan/Bush change in approach, the zero tolerance. After many visits to the States, on one occasion he was stopped and refused entry because he had plead guilty many years ago, in 1978, to simple possession of hashish. He had not retained counsel but represented himself, and he received a $100 fine. He

has, ever since 1991, I believe, been banned from entering the States. His wife lives in Albany, New York, and has a thriving medical practice. She visits him on weekends. They just had a baby in July. This family is now kept apart simply because of this attitude that the U.S. has to simple possession of marihuana. 

There is a search for a remedy for this situation, and it is very convoluted and complicated. He has obtained a pardon, but that is not good enough for the United States. There is some suggestion that if he had a discharge, that would be good enough. Must he get his pardon revoked and appeal this very old case and try to get in front of the courts to get a discharge so that the family can come together? It seems to us, with respect, to be a very disproportionate type of a thing to do because of this very old offence. We ask you to take that into account.

Let me say as well that the justification for this bill that is often put forward is that we need to do this to comply with our international obligations. It is our submission that Canada should take a leadership role and withdraw from many of these international treaties. We should follow the lead that is going on in Europe and not the American pressure in terms of their war on drugs. 

We should have a made-in-Canada policy that is a true harm-reduction policy. There are provisions in our international treaties, particularly in the 1988 convention, and particularly with respect to simple possession, that allow governments, subject to their constitutional limits or constitutional powers, to provide for approaches to drug use that do not involve prohibition and conviction but do involve education, rehabilitation, attempting to reintegrate people, things that have nature. These are much more constructive type of approaches than the use of the criminal law.

We are giving you a very broad position in relation to this bill, but we say that this approach simply has not worked over the years and that one should take a different approach. We ask you to have a look, for example, at what has been going on with tobacco. Canada has been quite effective in using a non-criminal law approach to educate people to reduce tobacco consumption, and we hope that efforts in terms of reducing advertising, discouraging use, and things of that nature will continue. They should equally be applied in the drug area, but without having to resort to the criminal law.

Just to give you a couple of specific matters in relation to the bill, we note that in clause 4, possession of a Schedule II substance, while it is a very rare to charge anyone with simple possession of cannabis on indictment, nevertheless the penalty has been reduced from seven years to five years less a day. While we are greatly in favour of reductions in penalties for things of this nature, one cannot help but note that this amendment is simply to take away the right to a jury that is provided in the Constitution if there is a penalty of more than five years. 

We wonder if the government is becoming anti rational, informed jury. In Bill C-42, they hybridized many Criminal Code offences to allow the prosecution to elect to go summarily. The penalties in summary conviction offences have been increased so they are very close in some cases to what they are on indictments, so the Crown will inevitably proceed that way. It has the effect of taking a way a person's right to a jury. For economic reasons and cost savings, we seem to be getting rid of the jury instead of increasing the public's involvement in the criminal justice system. We say that we should not have less juries, but more.

We also note that for some reason, in clause 4(6), which relates to Schedule III drugs, amphetamines, LSD, barbiturates, the maximum penalty is three years. We wonder why maximum penalties for drugs of that kind, which have traditionally been considered more serious in terms of harm or potential for harm, are less than those provided for marihuana, which is considered to be the most benign.

We submit that the whole approach is wrong. We should be looking at decriminalization. We should be looking at heroin maintenance types of models and other approaches that are more effective and focus on treatment and health. We submit that a thorough review of this whole area and a consideration of each particular drug should take place before this bill is passed. Thank you.

Mr. Irwin Koziebrocki, Treasurer, Criminal Lawyers' Association of Ontario: Madam chairman, I represent the Criminal Lawyers' Association. We are an association of lawyers who practice mainly criminal law in the Province of Ontario. We have approximately 1,000 members. As part of our function, we comment on proposed legislation. On a number of occasions, we have appeared before the Senate and the House of Commons, and we have had consultations with the Department of Justice with respect to proposed criminal law legislation.

Personally, I am on the executive of that association. I hold the position of treasurer, and also I am the chair of the legislation committee. I have practised criminal law for approximately 20 years, in the first part of my career as a Crown counsel with the Crown law office, criminal ministry of the Attorney General, and latterly, in private practice as a defence counsel.

The Criminal Lawyers' Association recognizes the purpose of this particular act, as we see it, as a consolidation of the present law with respect to narcotics and controlled drugs. We concur that there is a need for consolidation, given the various legislations that exist. We also understand that it was not intended in Bill C-8 to undertake a review of drug legislation, nor to undertake a study of the propriety of such legislation and the social policy involved, although we, as do Canadian Bar Association, feel that it is appropriate that that kind of review take place.

(0950 starts here -- It may well be that it ought to be reviewed prior to the passing of this legislation)

df\96\03\28 Legal #32023

(continuing with Mr. Koziebrocki)

**It may well be that it ought to be reviewed prior to the passing of this legislation, but I would expect that would be wishful thinking in these circumstances.

Having said that, in our view, important issues arise from this legislation by the very nature of the categorization that is affected by the proposed legislation and the various powers given to both the police and the courts, some of which may raise issues of charter violation.

With respect to the issues of classification of substances and the penalties they attract, there appears to be some attempt in this legislation to define the seriousness or severity of certain substances. Classification, in our view, must be based on the degree of harmfulness of the substance you are dealing with. There is no question that there is a harmful effect from drugs such as opiates and cocaine. They require severe sanctions to protect the community. With respect to drugs such as marihuana and hashish, there is a real question as to their harmful nature. One must question the continued criminality of simple possession of small quantities of those substances for personal use.

Another matter that is of importance in this particular legislation is the apportionment of penalties. For example, why does trafficking or possession for the purpose of trafficking of three kilos of marihuana merit a maximum of life imprisonment similar to that of heroin or cocaine? I venture to say that you will never see a case where trafficking in marihuana merits life imprisonment. There appears to be some issue here of classification based on the harmfulness; therefore, there must be a reconsideration of the type of penalties imposed.

The Criminal Lawyers Association suggested in its submission to the House of Commons that the nature of liability be changed with respect to marihuana and hashish possession in small quantities. The community is concerned that young people are involved in this particular situation. It would appear that they are not particularly deterred by the laws that criminally prohibit the possession of marihuana. The end result is that there may be a dramatic effect on their future with respect to a conviction for possession of marihuana in small quantities. It will clearly

affect their future employment. It may well affect their ability to enter professional schools. It may well affect their ability to enter certain professions, such as policing. It would be rather difficult for a young man or woman who decided at some point in their lives that they wanted to go into policing to enter that profession having been convicted for possession, in an experimental nature, for the possession of marihuana. As we have heard, it has tremendous or can have tremendous restrictions in travel.

If the government wishes to differentiate between various drugs -- and it appears that they wish to do so given the nature of changing the marihuana aspect of the substance abuse sections by providing for a summary conviction offence -- one would also have to consider whether there are other ways of avoiding criminal conviction.

The House of Commons passed an act called the Contraventions Act. This act has not been proclaimed, but it exists on the books of the House of Commons. It allows contraventions which are not defined as criminal to be treated in such a way that they are ticketed offences. In other words, they can result in a fine. It is made quite clear that they are not criminal contraventions. That is a way for Parliament to recognize the fact that there is a difference between one substance and another and a way for Parliament to indicate that there will be some kind of liability for the use of the less harmful substance. However, it will not have the same criminal law effect as a contravention of the Criminal Code or criminal substance legislation.

It appears that marihuana is not foreign to young people. Walking through the Rideau Centre yesterday, I passed three young people who were openly discussing the merits of smoking a joint. Last week, I asked my son -- who goes to a reputable school in Toronto -- if he could obtain this type of substance. He told me that it was very easy to do so if one was so inclined. In big centres such as Toronto, we are not seeing marihuana charges being laid any more, whereas I suspect that if you go to smaller centres, you may well see marihuana charges being laid. There appears to be a differentiation in various areas as to how this particular offence is dealt with by the authorities. In Toronto, it appears that they have what they might consider to be better things to do with their police officers. That is a matter that I suggest you address.

Certain sentencing principles are set out in clause 10 of the proposed legislation. There is a statement of principle, which is clearly meritorious. However, in clause 10, there is no recognition that addiction is an illness. I think you should take cognizance of that. There is a list of aggravating factors, yet there is no list of mitigating factors. One would think that an accused addict needing treatment would well be a factor that would mitigate a penalty. Those are matters you ought to address.

There are certain matters in terms of search and seizure which I wish to address. Though Bill C-8 appears to be a consolidation of many provisions of both the Narcotics Control Act and other substance legislation, there appears to be an expansion of certain rights of police officers and powers of police officers and courts in this bill clearly at the expense of individual rights and liberties.

(Take 1000 follows -- continuing with Mr. Koziebrocki -- **There is, in my suggestion to you, the possibility of contravention of the Charter of Rights.)

RC\Legal\32023\March 28, 1996

( Mr. Koziebrocki: continuing.)

**There is, in my suggestion to you, the possibility of a contravention of the Charter of Rights.

For example, in terms of search and seizure provisions, up to about 10 years ago the police had fairly unlimited search powers under the writs of assistance that were available under the Narcotic Control Act. That gave a basis for searching and entering premises for the purposes of searching for drugs without any kind of court order. The fact that they carried a little card around with them allowed them to enter premises. I would say that, rightly so, the courts struck down that legislation and said that it was inappropriate.

The police then adopted the Criminal Code search provisions which provide for the necessity of having reasonable and probable grounds. Those grounds were that, first, a crime had been committed; and, second, that there would be some evidence of that crime found at the location that was to be searched. Therefore, there would be a nexus between the commission of a crime and the availability of evidence of that crime at the premises.

The police also had, and do have, the common law power of search incidental to arrest. This was premised on the fact that there had been a criminal offence committed and that the police officers had reasonable and probable grounds to believe that an arrest could be effected. In doing that, they could then search for two things. First, they could search for evidence of that crime when an arrest is being made. Second, and the more important reason, they could search for the possession of weapons so that when they took someone into custody they would be well protected and not find themselves confronted with a gun, a knife or some other weapon. That is the common law development of that law which we recognize as being appropriate.

Clause 11 of your bill seems to go beyond the normal search provisions. For example, clause 11(5) allows for the search of a person in the course of the search of a premises. A police officer can obtain a search warrant based on reasonable and probable grounds that there are narcotics or evidence with respect to a crime in a particular location. Yet, it also allows you to search anyone who is in the premises. There is no warrant needed and there is no definition as to who can be searched.

The problems that arise in that kind of situation is that, effectively, you abdicate a judicial function to that of a police officer to determine when he or she has reasonable or probable grounds to search someone in those premises without any means of checking that decision.

What does that search allow? Does it allow a police officer to perform a strip search? Does it allow a police officer to perform an intrusive body cavity search? We do not know because the clause is so broad. It does not limit the type of search that is allowed.

Under the Customs Act, for example, if you are going to search a person, then you have to go to a justice of the peace to obtain a search warrant for that particular person. In this bill I suggest that there may well be violations of sections 7 and 8 of the Charter which sections concern unreasonable search.

Most important, if you are searching someone in those circumstances, is there by the very nature of that search a detention? If there is, are you breaching the section 10 rights of the Charter? If so, are you required to inform that person of his rights? Are you required to inform that person immediately of his

right to counsel? Do you have to stop and have that person phone his or her counsel at that particular time? If so, there may well be a denial of section 10 rights.

There are other issues of who can be searched. Can you search visitors? Can you search passers-by?

In your deliberations you may consider removing that particular clause and going back to the common law premise of search based upon an arrest. Or, as an alternative, you may consider having the justice of the peace when they issue the search warrant in the first place to indicate those people that can be searched based on the existence of reasonable and probable grounds. Or you can do what appears to be becoming more popular, that is, you can get things like a tele-warrant, as you can with respect to the original search warrant provisions under section 11(2) of that section, unless, for some reason, there is an emergency situation.

We live in what is becoming a highly technologicalized world. There are cell phones, pagers and portable fax machines. Each police officer has a computer at his fingertips. What would be so wrong as to require a police officer who decides that there are reasonable and probable grounds to search someone on the premises to obtain judicial authorization for such, except in those emergency situations? Those are factors that you have to consider.

In conjunction with that there is, for example, a rather important aspect of this legislation that appears to be new. I refer to clause 12(b) of the search and seizure powers. It gives the police the power to use as much force as necessary in the circumstances to effect the search and seizure. That power was not there before. It is a rather broad and open-ended power.

Under the Narcotic Control Act, you can kick the door down to enter into a premises but where is the force to manhandle persons? There appears to be no limitation in clause 12. Other statutes that allow force speak about force as being "reasonable" force in the circumstances and that is not in this bill.

In looking at clause 12(b) in conjunction with what we have just talked about, that is, clause 11(5), the search of the person on the scene, it is important to ask: Does clause 12(b) give the police the right to do whatever is necessary to effect a search of a person? Can they put a choke hold on someone when they suspect that person has swallowed drugs? We know that you cannot do that because the Supreme Court of Canada in Collins says you cannot do it.

Is this basically legislating tactics that breach the Charter? The question is: How far can you go? Under this legislation, there is not any adjustment made for the circumstances. For example, when you are searching and you suspect someone of possessing a small amount of marihuana, can you then impose serious bodily harm or even death on that person when you are affecting that search? From our position, this particular section seems to be open-ended and may not be appropriate.

One of the things that you ought to consider is whether you wish to remove that clause and deal with it based on section 25 of the Criminal Code; or whether you want to apply a reasonable force standard to that particular clause.

There are a couple of matters that I wish to discuss with respect to the forfeiture provisions of this bill. Forfeiture provisions are not particularly new. They exist in the present narcotics legislation and the Criminal Code. However, there are a couple of interesting little wrinkles in this legislation that do not exist in the Criminal Code. For example, under clauses 13(6) and 15(2), when an order is made returning goods to a person who is in lawful possession and who has not committed a crime, this legislation allows a judge or a justice of the peace to impose a recognizance with conditions upon that person who is having property returned to them.

(take 1010 follows If that person has not done anything wrong, if that person.....)

March 28, 1996-Legal-32023-lp

(Carrying Mr. Koziebrocki)

If that person has done nothing wrong, if that person is in lawful possession of whatever goods we are talking about, and the court finds that and finds that it is appropriate to return those goods to that person who is innocent of any criminal wrongdoing, and there is no other reason to keep that property, then why would you impose upon an innocent person some form of recognizance, put him or her on conditions such that, if at some point in time that recognizance is breached, that person effectively commits a criminal act under the Criminal Code and could be convicted of such and have a criminal record for something that is absolutely lawful? Why, with respect to this substance legislation, do you have that kind of provision and why does it not exist in the Criminal Code? There should be no difference in terms of how you treat this type of property.

Those are the types of things that you ought to consider addressing. There are some other issues, but those are the highlights which I wish to address. Thank you.

The Chairman: Thank you very much.

Senator Beaudoin: I am always pleased to see the Canadian Bar Association before this committee. It is imperative because we deal with the Criminal Code, the Constitution and so on. I am also pleased to see the Criminal Lawyers' Association.

I have one question on the Charter and one on the division of powers. With regard to the Charter, you raised some points about some clauses in the act. We have many cases before the Supreme Court on this and we must dig into this more deeply.

I understand that the Canadian Bar Association is satisfied that the Department of Justice has issued a certificate saying that this bill does not violate in any way the Charter of Rights and Freedoms. Perhaps I should ask that of the Minister of Justice or of officials from the Justice Department. However, what is your general reaction to that? You did not pinpoint any possibility.

Mr. Conroy: We agree with the Criminal Lawyers' Association that there are many clauses of the act which probably run afoul of the Charter. We have not prepared a detailed submission for you that picks apart the search and seizure provisions. We think that the search and seizure provisions are unreasonable.

I understand that there is a clause in the bill pertaining to marihuana growers with regard to fortified drug houses. If they modify a house in some way to grow marihuana and are convicted -- again we take a page out of the American book -- they will forfeit their house and land for doing so. That does not happen with regard to heroin or cocaine or if you murder or rape someone in your house. However, if you grow marihuana, you will lose your property. We think that things like that are Draconian and disproportionate. We do not say that this bill complies with the Charter of Rights, but we are more concerned with the overall thrust of it. That is why we take a much broader position before you.

Senator Beaudoin: I am sure that my colleagues will come back to this very important point of whether it goes against various sections of the Charter.

My second point is the division of powers. You say peace, order and good government. That is true, but it is also criminal law; section 21(27). I do not see in your very good presentation reference to the Hauser case as such for peace, order and good government. You relied mostly on the tobacco case, which is, of course, the more recent one.

Mr. Conroy: In our first brief we did not yet have the Supreme Court of Canada decision in MacDonald, the tobacco advertising case. That decision of November of last year summarizes quite nicely the division of powers issue. It is our view that this is really health. We know there is no clear head under section 91 or 92 dealing with health, that both the federal government and provincial governments play a role in health. However, at the moment narcotics legislation has been upheld under Hauser; peace, order and good government. We say that there is not something that has reached that sort of national dimension to warrant the use of peace, order and good government. The Supreme Court of Canada has said this. They looked at Hauser and said that if that issue came before them, they would likely find it to be criminal law, not peace, order and good government. If you jump ahead to MacDonald, it seems to be clear that criminal law is not passed in a vacuum. There must be some public order, public health, public security; something affecting the rights of others, that sort of thing, to warrant the use of the criminal law. There must be some significant public health issue to warrant federal jurisdiction in this area.

There are far more significant harms documented from tobacco and alcohol than from any of the drugs that we are dealing with in this legislation. One must ask why it is that the province has such a big role in those areas and not in this area. There is a total inconsistency or hypocrisy in the approaches to the legislation.

It is hard to determine exactly where the dividing line is between federal and provincial powers on an issue like health. If this bill did decriminalize a number of substances in terms of personal use or this sort of thing, arguably the provinces could look at that from any health perspective, and we submit that would be the appropriate approach.

Senator Beaudoin: Just for the purpose of the record, I am not too worried about the question of the division of powers in this case. I think the Parliament of Canada has the right to do this. I am a little more worried about the Charter, but that is another point.

On the division of powers, of course health is provincial. It is a priority. There is no doubt in the world about that. However, there is no doubt also that the control of narcotics is under federal authority under peace, order and good government, and also under section 91(27). I am not too worried about the question of the division of powers. If it is decriminalized, then it comes back to the provinces, to a certain extent. I shall just say, for the purposes of the record, that drugs, because of the Hauser case, comes under peace, order and good government; the control, but the crimes come also under federal authority under 21(27). On the whole I do not see much of a problem here in that particular field.

Does your recommendation at page 13 still stand, that we identify all substances to which the prohibitions apply?

Mr. Conroy: Yes. In the earlier version of the bill -- and I think it is carried over into the new version -- it was provided that substances similar to various substances defined in the act could suddenly be included. Our concern was that if you are going to prohibit something under pain of deprivation of liberty, people are entitled to know beforehand what substances are prohibited. We cannot have a situation where something is suddenly held to be sufficiently similar to the other substances and all of a sudden becomes illegal. The principle of legality requires us to know ahead of time what we can and cannot do. We are saying there that you must specifically identify it ahead of time.

Senator Beaudoin: I agree with that.

(1020 follows) 

(SENATOR JESSIMAN: MR. CONROY, YOU ARE HERE ON BEHALF OF THE NATIONAL CRIMINAL JUSTICE SECTION)

28March96\Legal\32023\DM

(Senator Beaudoin - I agree with that.)

(1020 starts here)

Senator Jessiman: Mr. Conroy, you are here on behalf of the National Criminal Justice Section of the Canadian bar. Does the Canadian bar, its executive or its membership, back this as well? Are you representing here just your section, or is it the executive of the bar? Do they agree with what you are saying? Does the entire general membership agree?

Ms Thomson: The brief outlines a number of things that have been endorsed by the council of the Canadian Bar Association, which is essentially the parliament of the association. In addition, there are specific things that are endorsed by the criminal justice section. However, in making a public statement, any of our individual sections must have that statement reviewed by the legislation and law reform committee and by the executive committee of the association.

This statement has been approved by the broader group as a statement of the criminal justice section.

Senator Jessiman: Have you ever mentioned at a general meeting this particular question about whether you should be able to buy marihuana or hashish?

Ms Thomson: Yes. In the general meetings of council, indeed there has been a resolution passed calling for decriminalization of possession of cannabis.

Mr. Conroy: In 1974, there was heroin maintenance. It has been a position of the bar for a long time.

Senator Jessiman: Have you ever been able to convince any of the attorneys general of any of the provinces?

Mr. Conroy: There are often public statements made, particularly at election time, that yes, we are going to decriminalize, but inevitably, once the election is over, there are other priorities. There are other more important things.

It seems that, because of the media hype and the emotional stuff from years ago, reefer madness and all of this sort of stuff, people have a problem of not wanting to be the ones who are responsible for taking the next step. That is why we see attempts to ride the horse in both directions, to kind of decriminalize but not decriminalize. The experts in the field who work with drugs and drug users and so on say that this is crazy and that we should take a different approach. We are going the wrong way. 

You are right. We have not been able to convince politicians to make change.

Senator Jessiman: What about the American bar? I know the American politicians are deadly against it. They are spending billions of dollars in their war on drugs.

Mr. Conroy: We know it is not a government policy that initiated this legislation. It came from the bureaucracy. 

We understand that, because of American pressure, people from different countries sign these conventions. The Americans spend a lot of time trying to get everyone to pass domestic legislation that fits with their war on drugs. No doubt they see Canada as being a weak link in North America in terms of their policies. The huge influence from the United States and the huge media thing is part of the problem in terms of trying to take a different approach.

Senator Corbin: I should like to keep in focus the objective of this bill, and that is for Canada to conform to the international conventions of which it is a party. That should be first and foremost in our minds. There have been comments to the effect that many witnesses have departed from the basic purpose of this legislation to go into areas and concerns which are certainly not illegitimate and should be raised somewhere and sometime. 

Is it your feeling that the international conventions are passé and that we should go back to the drawing board? Some of them date back to 1961. Who knows how many years before that they put their heads together. Is that really part and parcel of the problem?

In the same breath, can there be adequate control, not necessarily world-wide, but certainly amongst the signatory parties, if one goes one way and one goes the other way? You seem to emphasize that we are mainly being pushed around by the United States. We were given evidence that the home office in the United Kingdom has also expressed concern that Canada is a conduit used by clandestine labs to manufacture illicit substances.

Putting aside some of the general end-of-the-century concerns about this tough debate, what do we do about the international conventions? Do we scrap them and start all over again? What is your preferred approach to the world-wide problem?

Mr. Conroy: We say you should withdraw from them. If you do not withdraw from them, looking at the most recent convention, the 1988 convention, you can still come up with non-criminal, non-prohibitionist approaches even within the convention because it is subject to the constitutional limits of a particular country. If we exercise our health powers accordingly, as we have done with other substances like tobacco and alcohol, we can get around these conventions. We agree it is the conventions that is are often mentioned. We have signed them, so we should comply with them. We say we should withdraw. They are out of date. They do not fit with the reality of what is going on, and they continue this folly of making things worse.

The Netherlands is a signatory to many of these conventions. They were subject to the same complaints from many of their neighbouring countries in terms of the Netherlands being open and therefore there would be this massive problem. In the Netherlands, they effectively decriminalized it. They left the law on the books but do not enforce it. They have taken the coffee shop approach. People would be in these coffee shops where they cannot get alcohol, and it would be away from where they could get heroin or cocaine or be exposed to other drugs. We know that while use went up there, it is not anywhere near the rates in countries, including Canada and the United States, where there is a prohibitionist approach. 

In 1961, when we signed the single convention, marihuana use was not a big issue in Canada. It was not until 1966 that it took off. It went from something like 2,000 convictions a year to 40,000 convictions a year. Following the hard, tough approach that we were required to have under the 1961 convention had no affect whatsoever in terms of use. It was exactly the opposite. 

Why are we continuing to do this? We say withdraw and look at what the Europeans are doing. They are managing to either work within the conventions to come up with non-prohibitionist approaches or to withdraw from them. We say we should do the same thing.

Senator Doyle: Mr. Conroy, could you refer me to substantial research that has been done or prognostications that have been made about what the consequences might be if we chose the path you have recommended? How would we expect our American cousins to respond? How would we expect our own crime rates to be affected here in Canada? What would the outcome of it be? We have had a long time to think about this. Surely someone has been doing some research. 

Mr. Conroy: I do not know of any specific research that has been done specifically in terms of impact or reaction from the United States. Certainly there are large groups in the United States that would probably applaud.

(1030 follows - continuing with Mr. Conroy - Certainly the U.S. Drug Policy Foundation and others who have been working with that foundation in terms of the harm reduction approach would be happy)

df\96\03\28 Legal #32023

(continuing with Mr. Conroy)

Certainly the U.S. Drug Policy Foundation and others working with that foundation in terms of the harm reduction approach would be happy to see Canada or some country finally stand up to what we would say is an incorrect approach and look at it from a harm reduction perspective. However, I am sure the American government would not be happy if Canada took that position. I do not know if we need any research into that given their position. I am sure they would have quite a reaction. They have chosen to go down this path. Seventy per cent of federal prisoners are in jail because of the war on drugs, and the great majority are black. In the United States, one in every three young blacks between the ages of 18 and 25 in the United States are under some kind of correctional supervision because of the war on drugs. We know that their approach will lead to further massive problems down the road.

Senator Doyle: Are you suggesting that we might anticipate something along the line of a no-trading-with-Cuba reaction from the U.S. government?

Mr. Conroy: We have so many different relationships with the United States on so many different issues that it is hard to predict whether they will treat this one as a Cuban type of situation or an Inside Passage type of situation in B.C. I suppose that is possible, but hopefully we would exercise our sovereignty and show the Americans that we can adopt an approach to drugs that will reduce harm and the types of problems that come from drug use. They will be able, then, to look at us and see that we were right and they were wrong.

Senator Pearson: Many of us are interested in the international implications. We presume that it is helpful to have some agreement on hard drugs, and it is useful to make the distinction between soft drugs, such as marihuana, and hard drugs. However, I am curious about these international conventions. You imply that they were pushed by the Americans. Has any country withdrawn from a convention after signing it? Are the conventions under the United Nations?

Mr. Conroy: They are United Nations' conventions, but I cannot give you an example of a specific country. I think the Netherlands is still a signatory to many of them, even though it takes a different approach. I cannot tell you definitely, but look

at Spain, Italy, Germany and Switzerland. They are grappling with this problem as well. They are taking a different approach and moving in a different direction. I have not heard that the United States is making a parallel Cuban invasion type of reaction to what the Europeans are doing. The Europeans are clearly moving in a different direction.

You mentioned hard drugs versus soft drugs. I wish to make the point that the best arguments around are that we should come up with a different approach to heroin. We have historically seen this on the West Coast in greater degrees than perhaps elsewhere.

Senator Jessiman: And cocaine.

Mr. Conroy: Yes, but heroin in particular. It is such a powerful addiction for some people that they go to such great lengths to get it. We know that a harm reduction, heroin maintenance approach -- the old medical model from England -- is far more successful in reducing crime and health problems as a result of that type of drug use. There are good arguments for a totally different approach to heroin than perhaps the more popular soft drugs, such as marihuana. We do not say that you should still take this hard line approach to what would be classified as hard drugs. We know that we can reduce the harm to the public and to individuals and their families by taking it out of the criminal culture that is applied, which prevents us, in many cases, from properly getting to the bottom of the problem and trying to solve it.

Senator Milne: Your brief has been very persuasive. I hesitate to ask a criminal lawyer a question, but I should like to know whether you feel this bill offers the Crown useful tools in plea bargaining?

Mr. Koziebrocki: The advantage in terms of plea bargaining is that there appears to be, more so than in the past, a differentiation between an indictable offence and a summary conviction offence. The parameters of summary conviction offences, in some cases, have been expanded. I think it would be a useful tool for a prosecutor to use in the sense that someone who is prepared to plead guilty is more likely to plead guilty if it is a summary conviction offence than they are if it is an indictable offence. In that respect, once you expand the parameters of the summary conviction offence, the Crown feels less constrained to go that way in the sense that they know that their sentencing provision is broader and that they can ask for a wider range of sentencing. From a prosecutor's point of view, I would agree that this is a useful tool. From a defence counsel's point of view, it is a useful tool to some extent when they wish to resolve matters of this type.

Mr. Conroy: If you look at the American approach, to the extent that there are heavier penalties -- such as forfeiture of assets -- a great many people plead guilty to avoid or to reduce the Draconian penalties. The Crown can say, "If you plead guilty, we will not take your house and property." The incentive is there for the person to plead guilty because of the heavier penalties, even if they may not be guilty. That is what is happening in the United States.

Senator Milne: Could you tell me more about this Contraventions Act? You say that it has been passed but not proclaimed. Why not, and when was it passed?

The Chairman: A new Contraventions Act has been re-initiated in the House of Commons. Apparently it will go through first, second, and third readings on Friday and will come to us after the Easter recess. I do not know whether that is the same act referred to earlier or whether it is a different act. I cannot tell you. I have not seen the legislation.

Mr. Koziebrocki: This was a 1992 act. My recollection is that it has not been proclaimed. I presume that what we are talking about is something very similar. We will have to wait until after Easter.

Senator Lewis: I would like to address clause 31. It deals with inspectors being appointed by the minister to enter premises. Bearing in mind that under the definition section, "practitioner" is defined as "a person who is registered and entitled under the laws of a province to practise in that province the profession of medicine, dentistry or veterinary medicine, and includes any other person or class of persons prescribed as a practitioner." I presume "prescribed" refers to regulations. We realize that there will be regulations under the act, but we do not know what will be in those regulations.

(Take 1040 Follows -- continuing with Senator Lewis -- Yesterday, we heard from representatives of the medical profession...)

RC\Legal\32023\March 28, 1996

(Senator Lewis continuing)

Yesterday, we heard from representatives of the medical profession who expressed great concern with respect to clause 31. They have the feeling that it will adversely affect medical practitioners. When we look at this, it seems to me that it probably does not deal with that type of situation because it gives the right to an inspector to enter premises, presumably used for the purpose of conducting the business or professional practice of any person licensed or otherwise authorized under the regulations to deal in the controlled substance. Subclause (c) contains an exemption concerning the records of the medical condition of the persons involved.

You may not have had time to consider this matter carefully, and we do not know what will be in the regulations, however, it seems safe to presume that what is probably in mind is that under the regulations there will be people licensed or authorized to deal in a controlled substance. We do not know what "deal" means either.

Mr. Conroy: Would that not include all medical practitioners?

Senator Lewis: It could. That is what I am wondering. Yet, it does not state specifically "practitioner".

Mr. Conroy: I expect that it would include all medical practitioners.

Mr. Koziebrocki: As well as pharmacists.

Senator Lewis: Yes, that is right. This will really be restricted to those persons who become licensed or authorized under the regulations. In other words, if it did not have that qualification, it would apply to everyone. It seems to be restricted to those people whom they may in the future license.

Mr. Conroy: It seems to be clearly restricted to those persons conducting the business or professional practice who are licensed or otherwise authorized under the regulation. There will have to be that step before the section applies.

Mr. Koziebrocki: If the scheme of the legislation is to make illegal the possession of certain substances and then to allow for exemptions under the act, then you have to have some way of regulating those exemptions. This is one the ways you will do it.

Senator Lewis: We are talking about this when we do not even know what will be in the regulations.

Mr. Koziebrocki: I expect that you will find pharmacists, doctors and people of that ilk in the regulations.

Senator Lewis: There may be others.

Mr. Conroy: If this bill goes through, hopefully, there will be something more in the regulations to allow practitioners, particularly those in the medical profession, to use these drugs in a positive and therapeutic manner. There is nothing in the bill that seems to deal with that which, in our view, is another defect.

If we are putting in new legislation to deal with new drug policy, then why do we not have that in it? The regulations in the Narcotic Control Act provide -- or at least they used to -- for a medical practitioner to be able to prescribe a narcotic where it was medically necessary. I think they still had to be licensed or authorized similarly to deal in it before they could do so.

The Chairman: I believe Dr. Armstrong explained that very carefully yesterday when he said the very fact that he has a licence to practise medicine is also a licence to administer drugs, including narcotics.

Mr. Conroy: Was he saying that he could prescribe, for example, marihuana to an AIDS patient today?

The Chairman: No. He was dealing with palliative drugs, including morphine, for which he has a licence to administer as a practising physician.

Mr. Conroy: Particularly nowadays we see people who really want to get marihuana because of its anti-nausea effects in terms of AIDS or cancer. It is the one that I have had a number of people approach me about. The big problem is the inability to get a legal supply and a reluctance on the part of the medical profession to prescribe it for fear of what will happen to them if they do so.

The Chairman: That is partly because the medical profession itself has not made the decision that these drugs are beneficial.

Mr. Conroy: Last fall, the association which represents professional health care givers in the United States passed a major resolution supporting the decriminalization of marihuana for therapeutic and medical uses. Many members of our medical profession are members of this association which is an international organization. As I understand it, the evidence from the experts is quite clear. There are a number of very significant therapeutic uses for marihuana.

Senator Lewis: I am fascinated with the words "to deal in". It does not say "who has possession" but "to deal in". It almost sounds as though we are not concerned about whether you have it but if you deal in it in some way. It refers to people who conduct a business or professional practice.

Senator Milne: Is prescribing considered dealing?

Senator Lewis: Perhaps the regulations will explain that.

Mr. Conroy: They often give the broadest definition so that we can refine them in the courts later.

Mr. Koziebrocki: You mean expand upon them.

Senator Corbin: The French text is extremely clear. It states "vente et commerce". It has nothing to do with the practice of medicine at that point.

Mr. Conroy: Arguably, prescribing is not dealing because you are not getting paid for it. The pharmacist gets paid, although I suppose it is still commerce.

The Chairman: There are also some areas of the country, however, in which the doctor is also the pharmacist. I can give you examples in cases of northern Manitoba where the nurse is the pharmacist. Again, it can become a more complex issue in remote communities than, perhaps, in our urban communities.

Senator Lewis: I have the feeling that it is not aimed at that but at drug dealers per se.

Senator Bryden: First, I should like to compliment the bar on the forward looking and creative approach that you have developed over the years as a professional association. It is very rare that, as a lawyer, I get the opportunity to compliment my own profession because we are much maligned.

Since becoming a member of this committee, this is the first opportunity I have had to look at the policy of the bar in this regard. It is innovative and courageous.

From what you have said, you have been working on this matter since at least 1974. Obviously, you are far from winning the day on it. My question is this. In a society which at least appears to me to becoming more and more law and order oriented, how does a government take initiatives in an area such as this? Do you have any suggestions for us? How do we prepare the ground so that the government, without getting completely thrown out of office as having gone off the deep end, introduce legislation or take an approach that would reflect what you are suggesting here?

Mr. Conroy: I think we have a systemic problem in our society. That is to say most of us get our information about these issues from the media, whether it is the print media or the television medium. Inevitably, and understandably, the media focus on unusual and exceptional events. Therefore, we get a steady diet of unusual and exceptional events and many of us then start to think that that is the norm, the routine the mundane. It is those events which start to drive public policy or prevent public policy from moving forward. After all, often, it only takes one event in the criminal justice area to set back approaches for many months or many years. I think that is part of the problem.

However, to a great degree, we have been successful in the courts and with the police. While the law has gone along this route since 1923, and in particular since 1961, what has been happening in practice in the courts is a reduction in penalties. For marihuana, you will normally get a discharge, a $100 fine or something of that nature. The police and the courts have been moving in this direction while the government has been going in the opposite direction. I think this is particularly so because of the Americans and the big fuss they have made. Other than going to public surveys and trying to get a good idea of what the public wants or is prepared to accept, it is difficult to act in a political manner.

Again, I think it just takes courage or standing up to countries like the U.S. as the Netherlands did. Certainly, what they did was not popular. Many other countries worried about what would happen in terms of their own situations.

My understanding of the surveys is that most members of the Canadian public do not really care about the marihuana issue. It is just not something that is part of their focus or interest at all. This is so because they have so much misinformation about other drugs, and they continue to get misinformation because of prohibition. Even the policeman who has to go to the schools and talk to kids about drugs often cannot say exactly what he or she really thinks because they have to maintain the status quo. Some change is needed in order for us to move further forward.

In many respects, the present system precludes us from moving forward. As I understand it, in the United States much of the research in terms of marihuana suddenly stopped. They were not researching it any more when the war on drugs took off.

However, you say to yourself, "We have known about this stuff for so many years, and we have had so much research done, surely, by now, if there were a significant public health problem it would have been apparent regardless of the research." Yet, it seems that there is still this old thing that prevents us from doing something quite simple, that is, to start reversing the direction.

Senator Bryden: One of you indicated that it really does lead to some absurdities and that it holds the law up to considerable disrespect. I can remember as a Deputy Attorney General sitting with the police and the prosecutors in preparation for a rock festival coming into my province. A decision was made that the only way to manage what was about to happen was to just ignore any use of marihuana or drugs because, otherwise, you ran the risk of causing a riot. The absurdity of it was that that same morning one of the constables who was sitting at the meeting had to leave because he was prosecuting a 17-year old for having smoked a joint. At some point, the criminal element, as well as the general public and youth, look at the way we administer our laws and see that they are so irrational that they lose respect for them. It is hard for me to see that a teenager smoking marihuana is some kind of threat to our society. Yet we cannot seem to do anything about bike gangs that hold cities for ransom.

Mr. Conroy: By creating black markets instead of undoing them, we feed the bike gangs. Undoing them would take away from the profits that groups like that can make.

Senator Bryden: It will take time, but it may be possible to go a route different from the Americans. It has taken a long period of time -- and the Chair will be interested in hearing me make this comment -- for Canada to have taken a different route in relation to guns.

Mr. Conroy: It can be done.

Senator Bryden: It is to the point that people define a Canadian as an American armed only with a medicare card. It will take a concerted effort, not just by the bar association but by other groups, to move public opinion to the point where we can develop a different system and a different approach. Someone mentioned that one out of every three people in prison for drug abuse in the U.S. is black. We have a very serious situation in our own country in relation to certain offences, not just drug offences, wherein one in four people incarcerated is native. There is more to this in terms of changing our approach than just as it relates to prohibited substances.

Mr. Conroy: When people look at the consequence of going to prison, they seem to think, "Oh well, it is off to prison". What used to be six months as a maximum for summary conviction we now see in this legislation one year and 18 months. It is as if we will just add another six months here or there. The latest statistics shows that it costs an average of $44,000 a year to keep a person in prison. Why are we just adding on an extra six months? Is there any evidence to suggest that six months more has been more effective in dealing with the problem? My understanding is exactly the opposite. The classic place for a person to want to alter their consciousness and get away from the drudgery and boredom in other parts of life is in a prison. The demand for drugs in prisons is greater probably than anywhere else because you want to escape. If you cannot do it physically, then you do it mentally. I am afraid that we are just perpetuating a continuation of the situation.

The Chairman: My question has to do with international conventions. I must say I am surprised that you suggest we should opt out of all these international agreements. As a general principle I think that is not a good idea for a country like Canada. Why do you suggest that route rather than the route that the Netherlands has taken? They continue to be participants in those international conventions while in the interim they come up with their own made-in-the-Netherlands policy which is harm reduction, an approach which I think is reasonable.

Mr. Conroy: We say that if you can do that within the conventions, then do so. I am not sure that the Netherlands is complying with the conventions in what they do. The objection that is presented here every time we have suggested decriminalization or opposed a bill is that we have to comply with our international conventions. We are really saying that in some measure you can do what we are suggesting consistent with the conventions, but on our reading of the conventions some of what we are suggesting you cannot do and be consistent with them. You would have to say, "We will sign it but turn a blind eye to it and go ahead with our own policy in order to show you that this is the wrong approach." We are saying that if we are to be consistent and really adopt a brand-new policy, we should withdraw from those conventions because they call for something different. We should be working toward, perhaps, developing other conventions that are totally harm-reduction oriented.

The Chairman: Thank you all for being here to. You have helped us in our analysis of the legislation.

The committee adjourned.