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Canadian Government Commission of Inquiry - Cannabis ReportCannabis
The Report of the Canadian Government Commission of Inquiry into the Non-Medical Use of Drugs - 1972
Canadian Government Commission of Inquiry into the Non-Medical Use of Drugs, published by Information Canada, Ottawa, Canada, 1972, Crown Copyrights Reserved
6. Conclusions and Recommendations
CONCLUSIONS AND RECOMMENDATIONS
of Gerald Le Dain, Heinz Lehmann, J. Peter Stein
The general issue concerning cannabis is whether there is a well-founded social concern about its non-medical use, and if so, how that concern should express itself in social policy.
This general issue resolves itself into several specific questions. What consequences of behaviour are we to regard as legitimate grounds for social concern? What, in the light of these criteria, are the facts concerning cannabis? What should our objective of social policy be? What instruments of social policy are available to us? What criteria are to determine their appropriateness?
WHAT CONSTITUTES LEGITIMATE GROUNDS FOR SOCIAL CONCERN
In the Interim Report we adopted the following general position:
Our own view is that while we can not say that any and all non-medical use of psychotropic drugs is to be condemned in principle, the potential for harm of non-medical drug use as a whole is such that it must be regarded, on balance, as a phenomenon to be controlled. The extent to which any particular drug use is to be deemed to be undesirable will depend upon its relative potential for harm, both personal and social. [Paragraph 390]
We are still of the opinion that harm is the most useful criterion for social policy. We do not find the notion of drug "abuse" (or "misuse" for that matter) very helpful. In some cases it seems to be equated with the use of any drug which has a potential for producing dependence, physical or psychological. If it is equated with the drug use that actually produces dependence, then it is equated with only one potential aspect of harm. Certain kinds of drug use may produce harm quite apart from dependence, and in some cases, any use of a particular drug may involve the risk of harm.
What should be regarded as adverse psychological effect is subject to controversy. What should be the criteria of psychological harm? What should be the standard of psychological functioning by which psychological harm is to be measured? Presumably, an adverse psychological effect is any impairment of the normal psychological condition and functioning of the individual, but what is to be considered normal, and what a significant impairment? There is no difficulty with extreme psychological reactions such as the acute psychotic episode or 'freakout', but what about the more subtle effects, such as the alleged lessening of interest or motivation that is referred to as the amotivational syndrome? The individual concerned may not consider it to be a particularly adverse effect. It will often tend to be regarded from the perspective of its social effects. Opinions will differ as to what should be regarded as abnormal psychological functioning.
We have found the concepts of personality and personality change elusive bases for the measurement and evaluation of drug effects. The concept of personality is imprecise. There is really no satisfactory definition of personality with which all people can agree. Moreover, there seems to be little known about how personality change is effected-at least insofar as those elements which may be affected by drug use are concerned. The concept of personality does not convey any criteria of value. By contrast, the concept of mental health presents an assembly of values which may serve as a more useful frame of reference for the evaluation of psychological harm. As with the definition of personality, the criteria of mental health are by no means free from difficulties of interpretation and application, but they do offer a clearer set of psychological values than the concept of personality by which to judge the harmful effects of non-medical drug use. The following psychological attributes or processes are currently serving as widely accepted criteria of mental health: perception of outer reality; perception of one's own identity; resistance to stress; autonomy (or the freedom to make decisions); potential for self-actualization; and mastery of one's environment.
The effects of certain kinds of non-medical drug use on society as a whole are also a ground for social concern. These effects include: the danger presented to others by drug-affected behaviour in some cases, such as violence or impaired functioning; the cost to society of treatment and other kinds of care and attention; the effects on the capacity to carry out vocational and family responsibilities; the effect which certain drug users may have, by contact, example, and persuasion, in inducing others to engage in harmful drug use. There is a concept of social harm, more difficult to define, which consists of the fear that certain non-medical drug use will have an adverse effect on the motivation, attitudes and capacity required to maintain our present institutions and our political, economic and social life. This involves, of course, the difficult area of value judgement, including conflicting cultural or ideological outlook. Whatever our respective views of the merits of this concern in particular cases, and how far the things feared can truly be characterized as matters of "harm", or more generally as questions of morality, we are convinced that the fear is very real and is a potent factor to be reckoned with in the development of social policy.
THE BASES FOR SOCIAL CONCERN ABOUT CANNABIS
General. The evidence of the potential for harm of cannabis is far frorn complete and far from conclusive. It is possible to find some fault with the methodology or the chain of reasoning in virtually all of the evidence. Explaining away the evidence on one side or the other has become a favourite pastime of participants in the cannabis controversy. What is significant is that there is a growing body of evidence to explain away. The literature on adverse psychological reactions, both here and abroad, is now quite extensive.
There are problems in proving causality, but the hypotheses are persistent. It is not difficult to point out why other factors may be the cause of these mental disorders, but we cannot afford to ignore the possibility that cannabis may be the cause of them.
The picture with respect to long-term effects is not really very much clearer than it was at the time of our Interim Report. As we suggested then, it may take as long as ten years or more to obtain the answers to important questions. It will take at least that long to determine the statistical significance of cannabis-related disorders now being reported by clinicians. What has come to our attention with respect to long-term effects since the Interim Report is matter for cautious concern rather than optimism. At this time, these observations by some clinicians who are in contact with chronic, heavy users of cannabis are nothing more than straws in the wind, but together they reinforce an uneasy impression that, in certain kinds of individuals and at certain levels of use, cannabis can cause serious problems. The questions are : in what kinds of individuals and at what levels of use? The answers to these questions are only likely to emerge with any kind of statistical validity after a significant number of years of experience with established patterns of use. It is simply too early in North American experience of the widespread social use of cannabis to hope to be able to obtain these answers. We should be selecting groups of cannabis users now, with matched control groups, for close follow-up study over a period of years.
On the whole, the physical and mental effects of cannabis, at the levels of use presently attained in North America, would appear to be much less serious than those which may result from excessive use of alcohol. However, there has not been sufficient experience with long-term, excessive use of cannabis under North American conditions to justify firm and final conclusions. There are many hypotheses arising from recent clinical reports which require further, careful investigation.
An important question is the frequency of use which regular users of cannabis are likely to attain under conditions of relatively easy availability. We think it is likely that under the stressful conditions of modern life an increasing number of people will take to smoking cannabis daily, and even several times a day. The patterns of use have not yet fully developed and become stabilized.
The short-term physical effects of cannabis (apart from those which affect psychomotor abilities) are relatively insignificant on normal persons, and there is as yet no evidence of serious long-term physical effects from use at current levels of consumption in North America. Because of the technique of long inhalation practised in smoking cannabis it does not seem unreasonable, however, to reckon on the possibility that excessive use of cannabis may cause or potentiate bronchial pulmonary disorders or aggravate the incidence of lung cancer and other diseases of the respiratory system resulting from the use of tobacco. There is a very close association between the smoking of cannabis and the smoking of tobacco. Most people who use cannabis also use tobacco. Another area of concern is possible effect on chromosomes and on the human foetus. There is as yet no clear evidence of adverse effect of this kind, although it is prudent for women not to use cannabis during pregnancy.
Recently, certain British doctors have speculated, on the basis of their clinical observations, that the chronic use of cannabis may result in cerebral atrophy. or irreversible shrinking of brain tissue. The subjects of this study also used amphetamines and LSD, and the doctors note that further study will be necessary to confirm a causal relationship between cerebral atrophy and cannabis. At the very least, however, the study indicates the possiblity of an association between multi-drug use and permanent brain damage.
Four major areas of social concern are: the effect of cannabis on adolescent maturation; the implications of cannabis use for the safe operation of motor vehicles and other machinery; the possibility that the long-term heavy use of cannabis will result in a significant amount of mental deterioration and disorder; and the role played by cannabis in the development and spread of multi-drug use.
Effect on adolescent maturation. We are in general agreement that the regular use of cannabis by adolescents has, in all probability, a harmful effect on the maturing process, and that this should be the chief focus of our social concern. We do not have experimental evidence for this conclusion but we believe that it is a reasonable inference from what we know of the nature of cannabis and adolescent development.
The subjective experiences of cannabis intoxication-particularly intoxication with high doses possessing hallucinogenic properties-and alcohol intoxication are in our opinion essentially different. Alcohol may produce a blunting of perception and a gross disinhibition of behaviour, while an hallucinogenic experience may lead to an extreme intensification of the processes of perception as well as to qualitative distortion of space-time relationships. Such experiences are often also associated with striking changes in one's perception of his own body image and personal identity. This special nature of hallucinogenic experiences conceivably may have a lasting traumatic impact on the maturation of a 12 or 13-year old who is probably not yet capable of assimilating this kind of experience without suffering harm.
It seems completely unrealistic to assume that adolescents, beginning as early as the age of twelve, can persistently resort to cannabis intoxication with its hallucinogenic effects without seriously interfering with development of the capacity to cope with reality that is an essential part of the process of maturation. There is also the probability that the use of cannabis will have the effect of precipitating mental disorders in those who are particularly vulnerable to them. The evidence as to the effects of cannabis on the learning process and on academic performance is inconclusive, although there is a good deal to suggest that frequent use of cannabis may have adverse effects on these functions, mainly because of its effect on short-term memory and attention. It is a virtual certainty that heavy use of cannabis will have an adverse effect on these functions.
Probably the most serious thing about cannabis is that it is being used by adolescents. The most ardent proponents of legalization do not pretend that this is a matter of indifference. Virtually all proposals for legalization contemplate an age limit, usually 18, below which cannabis would not be available.
Effect on driving. The normal use of cannabis produces significant distortion of perception and impairment of cognitive functions and psychomotor ability. These effects tend to increase with the dose and the complexity of the task involved, but they are observable at moderate doses. Cannabis also has an adverse effect on short-term memory, sustained attention and vigilance, all of which can have an important bearing on complex tasks involving the handling of machinery.
There is reason to believe now that the short-term effects of cannabis increase the hazards of driving. There is no evidence that the use of cannabis has been a significant cause of automobile accidents, but at moderate doses it produces significant impairment of capacities required in driving. It is, therefore, a factor which is likely to increase the chances of accident. There is uncertainty as to the factors that are the principal causes of automobile accidents-attitudes may be as important as driving skills-but impairment of driving skills must obviously be a contributing factor. More investigation is required to show the effects of cannabis on driving skills at the various dose levels which could conceivably be attained under North American patterns of use, but on the basis of the evidence to date it must be said that the use of cannabis has a potential for causing injury through automobile accidents. In the light of our experience with alcohol there is no reason to assume that there will not be many people who will drive while under the influence of cannabis.
There is, moreover, no clear line of demarcation separating cannabis users from users of alcohol. The notion that cannabis users generally give up alcohol has been shown to be a myth. The vast majority of people who use cannabis also use alcohol, although their consumption of it may be reduced. The two are often used together on the same occasion, with additive effects. Thus cannabis may not only be a significant factor in relation to automobile accidents when used alone but even more so because of its effects when used with alcohol. An important distinction between cannabis and alcohol, insofar as the implications of the effects on psychomotor abilities are concerned, is that cannabis intoxication is still unrecognizable and undetectable. It is virtually impossible to tell whether a person is 'high' on cannabis unless he tells you, and as yet it has not been possible to devise a practical method for detecting the presence and concentration of THC or other active cannabinoids in the body. Nor is the outlook very promising for the development of a simple and convenient method of detection that would serve a function similar to that of the Breathalyzer in the detection and measurement of alcohol in the human body. It is a reasonable operating assumption that there will continue to be great practical difficulty in detecting and proving that a person is driving while the ability to drive is impaired by the use of cannabis.
A matter of some concern with respect to the effect of cannabis on driving is the possibility of an echo effect, or 'flashback', in which the effects of cannabis or some other hallucinogen, such as LSD, are unexpectedly experienced some time after the last occasion of use. There is evidence that such a phenomenon has occurred in some cases, but it would appear to be rare. Like other effects of cannabis, however, it might well increase with increase in the levels of use.
There has been some experimental investigation of possible effect on other functions of particular relevance to driving-recovery from bright-light glare, dark-adaptation time, and dim-light acuity. There is as yet no clear indication of cannabis-related impairment of these functions, but the possibility of such an effect requires further study.
Effect on mental health. The acute.panic reactions or "psychotic episodes" which cannabis can produce at certain dose levels and under certain circumstances can be extremely unpleasant, but they would appear to be relatively infrequent and generally of short duration. They indicate, however, that the effect of cannabis upon the mind is a potent one.
There is much concern that the chronic use of cannabis may precipitate mental disorders in persons who are vulnerable to them but who might otherwise avoid them except for the action of cannabis. It is not clear from recent clinical reports of cannabis-related disorders how far these are peculiar to cannabis, how far they are precipitated or aggravated by cannabis, and how far they merely happen to coincide with cannabis use. The fact that there has been no prior evidence of psychopathology is not conclusive, since the mental disorder may have been lying dormant.
A number of reports from clinicians in North America in recent years have suggested that the long-term use of cannabis may cause serious mental disorders. Although these observations may be valid in themselves they do not give us any basis for estimating the frequency with which such conditions might be expected to occur in the cannabis-using population. Surveys of hospitals and university health services have uncovered a very small number of such cases. As yet, North American conditions have not revealed a clearly identifiable "cannabis psychosis" which may be attributed to chronic use. It is too early, however, to assume that such a condition cannot occur since there is not yet a firmly established pattern of long-term use at high dose levels.
The evidence of "personality change" of the kind referred to as the "amotivational syndrome" resulting from the chronic, heavy use of cannabis is inconclusive. There is also a great difference of opinion as to whether certain changes of attitude or outlook which have been associated with the use of cannabis are to be considered a good or a bad thing. It is difficult to distinguish between adverse effect on capacity and mere change in attitudes. At the same time certain changes in attitude can reduce effective capacity, for effective capacity depends upon will. Some observers have spoken of apathy and a loss of goals, an absorption in the present with little or no thought for the future. All of these symptoms might be equally associated with a profound change of values and outlook which many might regard as salutary. Obviously, this is very controversial ground, but it is not unreasonable to assume that persistent resort to cannabis intoxication may produce mood changes and impairment of will and mental capacity that have nothing to do with freely chosen attitudes and life style, but may, for example, be the result of some biochemical effect on the balance of mood-regulating neurotransmitters in the brain.
Effect on multiple-drug use. One of the society's chief concerns about cannabis is that it may lead individuals into a pattern of multiple-drug use, including the use of much more dangerous drugs, such as the stronger hallucinogens, the amphetamines and the opiate narcotics. This alleged relationship between the drugs is sometimes referred to as the "progression" or "stepping-stone" theory. In its most simplified form it contends that the use of cannabis leads to the use of heroin.
There is unquestionably a great deal of multiple-drug use in which cannabis plays a part. The question is whether people would have used the other drugs had they not used cannabis. Unfortunately, there is no way of obtaining an answer to this question. The reasons people take up the use of various drugs are too complex to be able to assign causal significance to one factor or another. Certain kinds of individuals would likely engage in multiple-drug use whether cannabis existed or not; they would start with other drugs. We must not forget that alcohol is still the most widely used drug of all and figures in the background of most multi-drug users. Nevertheless, we believe that by stimulating a taste for drug experiences, lowering inhibitions about experimenting with more dangerous drugs, and leading to personal associations and involvement in a pattern of life which emphasizes an interest in drugs, cannabis must be reckoned as a potent factor contributing to the growth of multi-drug use. It is not necessary to make a clear case of causation in order to place the role of cannabis in multiple-drug use in some plausible general perspective. The attacks on a hypothesis of causation to some extent set up a "straw man". Obviously, there are many factors leading a person to use a variety of drugs. The point is whether cannabis is one of the factors which helps to increase the likelihood that a significant number of people will engage in multi-drug use. We believe that it is and that it is reasonable to assume that many would not engage in certain kinds of drug use if they did not use cannabis.
These predisposing relationships are not established by statistics. They are, rather, inferences from the nature of the drugs and the patterns of drug use. The fact that a very high proportion of the users of a certain drug have also been users of cannabis does not establish a causal relationship between the two kinds of drug use. On the other hand, there are affinities between certain kinds of drug use which are strongly suggestive of a predisposing relationship. We believe, for example, that there is probably such a relationship between the use of cannabis and the use of LSD. This cannot be established statistically but it is an inference from the nature of the two,drugs and their close association in the drug culture. We believe that the use of cannabis probably reduces inhibitions about the use of LSD, and that it is unlikely that many individuals would experiment with LSD before having used cannabis. The general conclusion that we draw is that while only a proportion of users of cannabis will also use LSD, the use of cannabis definitely facilitates the use of LSD or predisposes a certain number of individuals to experiment with it.
The relationship between the stronger hallucinogens, the amphetamines and the opiate narcotics is not as clear. There is obviously a close relationship between the intravenous use of amphetamines and the use of heroin. The relationship between the hallucinogens and the amphetamines is less obvious. It has often been assumed that the users of hallucinogens and the users of amphetamines are quite different populations who live in two separate worlds. This assumption has been based on the difference in the effects of the two classes of drugs and in the cultural associations surrounding their use, as well as the difficulty of overcoming the "needle barrier" for the intravenous use of amphetamines. These factors may still operate to inhibit movement between these two kinds of drug use, but there is evidence that a significant number of people use both. Our surveys indicated that in 1970, in Canada as a whole, over 50 per cent of the persons who had used amphetamines at one time or another had also used cannabis and LSD. Amphetamines are often used to overcome a depression produced by excessive use of hallucinogens. Moreover, amphetamines are sometimes mixed with 'street' LSD, and some drugs which are generally classed among the strong hallucinogens, such as MDA, combine the properties of amphetamines and hallucinogens.
Thus there is a marked relationship between cannabis and LSD, a less obvious one between LSD and the amphetamines, and a marked relationship between speed and heroin. Because of this succession of relationships, which can be linked up, it is possible for people to progress from cannabis through LSD and 'speed' to heroin, but the number of cannabis users of whom this might possibly be true would be a very small proportion of the total number of cannabis users-less than one per cent.
The theory that cannabis leads to heroin because the vast majority of heroin users are found to have used cannabis has to be dismissed on the ground of faulty logic: the vast majority of heroin users may have used cannabis, but the vast majority of cannabis users do not use heroin. The real question is whether a significant number of heroin users would not have used heroin had they not used cannabis. Unfortunately, it is impossible to answer such a question.
It is sometimes argued that if cannabis were not readily available more people would use more dangerous drugs such as the stronger hallucinogens and the amphetamines, and that any policy which restricts the availability of cannabis encourages the use of more dangerous drugs. The argument that cannabis users will turn to other, stronger drugs, if they cannot have cannabis, is an argument which, if anything, reinforces the view that cannabis facilitates resort to stronger drugs. It is at least not inconsistent with such an hypothesis. It is also based on the assumption that those who would resort to stronger drugs in times of cannabis shortage would not do so when it is available. This seems to suggest-contrary to other arguments which the same people generally make concerning cannabis-that cannabis creates such a desire for drug experiences that people will run the risk of using stronger. more dangerous drugs rather than go without.
Cannabis and other crime. One of the contentions used to support the current legislative policy on cannabis is that cannabis is a significant factor in the cause of other crimes. There is a discussion of this issue in Chapter 2, including evidence presented to us by the R.C.M. Police.
The suggestion that cannabis can be a cause of serious crime has come mainly from other countries. It is impossible to verify the evidence. it may well be that in certain cases cannabis has been used, just as alcohol apparently sometimes has, to lower inhibitions and to make it easier to commit a crime of violence which the criminal has already formed an intention of committing. There has been little evidence in Canada to support an association of cannabis with crimes of violence. Nor is there any suggestion that cannabis users are obliged to engage to any significant extent in a career of petty crime to support their habit in a manner similar to that of heroin addicts or even 'speed freaks'. The use of cannabis, under present conditions, does involve exposure to contact with criminal elements and may encourage a certain amount of delinquency or anti-social behaviour in some users. But we do not believe there is evidence to support a generalization in this regard. Many users of cannabis exhibit high ethical standards, apart from their wilful violation of the drug laws. This aspect of the case against cannabis appears to reduce itself upon closer examination to a disapproval of the attitudes and values of cannabis users, and particularly their attitude towards conventional standards of behaviour and morality.
We have referred to the physical and mental effects of cannabis, its role in the development and spread of multi-drug use, and its relation to other crime. it is also necessary to consider the perspective in which it is viewed by the majority of people in its relation to the social harm which they consider is caused by non-medical drug use in general. The drug use with which the majority is chiefly concerned is that which has not yet become a socially accepted part of the culture. It is the drug use which is considered to be outside the pale: the use of hallucinogens, the intravenous use of amphetamines and the use of opiate narcotics. There are varying degrees of concern about the heavy use of alcohol, tobacco, tranquilizers, barbiturates, and oral amphetamines, but these are not the focus of the great concern with drug use in recent years. When they think of the social harm caused by drug use the majority of the people seem to be chiefly concerned with its effect on the leading of reasonably normal and productive lives. They more or less accept the drug use in which people engage in order to help them to function effectively in conventional lines of endeavour. But it is the presumed effect of certain kinds of drug use on the motivation and attitudes required for conventional patterns of living which is the chief concern of the majority of people. They fear that certain kinds of drug use will sap the will and capacity for functioning in a socially acceptable manner. They very much fear the development of a widespread passivity and withdrawal from responsibility for the everyday work required to make the society function effectively. We have to face this attitude squarely. Whatever our personal views may be of the cultural conflict which underlies it, it cannot be brushed aside in a spirit of lofty detachment. It is a very real fear. It is this fear which is reflected in the concern with the "amotivational syndrome."
There is a widespread feeling that certain kinds of drug use adversely affect certain qualities which have played an important part in the development and functioning of our present society: aggressivity, competitiveness, acquisitiveness, goal-orientation, the willingness to defer present pleasure for future rewards, and the capacity to tolerate the tedium of routine tasks, particularly those requiring painstaking attention to detail. Those who are critical of modern industrial society, particularly of the western variety, and of the values and attitudes that make up its dynamic, reply that it will be a good thing in the end if the old values and attitudes are undermined and replaced by new ones, less aggressive, less competitive, more co-operative, less activist, more contemplative, less materialistic and acquisitive, more oriented toward simplicity in demand and pleasure, less dependent on things, and more able to enjoy the simple pleasures of being human in the natural environment.
This is not an issue that can be resolved by polemic. It is far better frankly to face the fact that there are definitely two points of view that are not likely to be reconciled, at least not without a great deal more empirical evidence in the form of human experience. Drug use is not the cause of the cultural conflict. It is merely an aspect of it. But it may be to some extent a catalysing and reinforcing aspect. The close association of certain kinds of drug use with the cultural conflict which is shaking modern society is part of the essential perspective in which the debate about legislative policy must be conducted. Failure to recognize these factors makes reasonable accommodation very difficult.
To sum up, then, it seems to us that there are at least four major grounds for social concern: the probably harmful effect of cannabis on the maturing process in adolescents; the implications for safe driving arising from impairment of cognitive functions and psychomotor abilities, from the additive interaction of cannabis and alcohol, and from the difficulties of recognizing or detecting cannabis intoxication; the possibility, suggested by reports in other countries and clinical observations on this continent, that the long-term, heavy use of cannabis may result in a significant amount of mental deterioration and disorder; and the role played by cannabis in the development and spread of multi-drug use by stimulating a desire for drug experiences and lowering inhibitions about drug experimentation.
To these grounds of concern must be added the extent of its use, particularly among persons of high school age, as indicated in Chapter 4.
THE OBJECTIVE OF SOCIAL POLICY
In our opinion, these concerns justify a social policy designed to discourage the use of cannabis as much as possible, particularly among adolescents. We do not yet know enough about cannabis to speak with assurance as to what constitutes moderate as opposed to excessive use. In these circumstances, it is prudent to discourage its use generally.
THE AVAILABLE INSTRUMENTS OF SOCIAL POLICY
To control the use of a drug we must control availability and demand.
There are basically only two ways of controlling availability: criminal law prohibition and administrative regulation. Because of the profits to be made in trafficking there is no point in attempting to control availability by education, propaganda or moral suasion. The law must be used in a coercive or regulatory manner.
Prohibition is resorted to where the object is to eliminate the drug as far as possible; administrative regulation, where it is necessary to make it legally available to some extent. The issue with respect to cannabis is whether it is still desirable and feasible to attempt to pursue a policy of prohibition or whether conditions are such that we are obliged to resort to administrative regulation.
Administrative regulation may have objects other than the regulation of ailability; it may seek to control quality and price. Prohibition is not directed to these matters although it may indirectly have an effect on them. Prohibition and administrative regulation may be compared in terms of their impact on availability, quality and price. These are not, however, the only important matters affected by these two legal approaches. Other matters are effect on individuals of having to deal with an illicit rather than a licit market, and of having their conduct defined as criminal.
Demand may be controlled by the deterrence of criminal law prohibition, information or education designed to dissuade people from using a drug indicating its dangers, and by other influences and substituted activities in home and elsewhere designed to remove the desire for drug use. Unlike the distribution of drugs, demand is more amenable to influences of a non-coercive or non-regulatory nature.
The object of our social policy must be to reduce the availability and demand of cannabis as much as possible, if that can be done at an acceptable cost. The question is whether, and to what extent, the criminal law is a proper instrument for such a policy. The answer to this depends on how effective the initial law is in achieving its purpose, what the costs are of using it, and whether there are alternative methods of control that would achieve the purpose as effectively at less cost. An initial question is whether there is any reason in principle, apart from cost-benefit, why the criminal law should not applied against this kind of behaviour.
WHETHER, IN PRINCIPLE, THE CRIMINAL LAW SHOULD BE USED IN THE FIELD OF NON-MEDICAL DRUG USE
Some people take the position that non-medical drug use is an entirely personal and private matter, not unlike many other things that one does with one's body in the satisfaction of various appetites and the pursuit of various pleasures, and if any harm is being done it is harm which one is doing to oneself alone. They argue that the law should be concerned only with the damage or injury which an individual directly causes to another as a result of drug use. The classic exposition of this point of view is to be found in John Stuart Mill's celebrated Essay on Liberty, in which he states his central proposition as follows:
The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil, in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to someone else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his body and mind, the individual is sovereign.
The fundamental value which Mill emphasizes is freedom, and it is not freedom as an abstract principle or independent good, but as a utilitarian value with which he is concerned: the necessity of freedom to the development and well-being of the individual and society. There is no question that we, as a democratic society, regardless of our particular or individual political persuasion, are profoundly committed to the supreme importance of freedom. But opinions differ as to its proper or necessary limits, and the issue as to what should be the legislative policy towards non-medical drug use reflects the debate as sharply as any.
Before considering the response which has been made to Mill's thesis by philosophers and laymen, it should be observed that Mill himself admitted one very important qualification to his general principle that is of particular relevance for the subject of non-medical drug use. He took it to be obvious that the principle, that the state does not have the right to interfere with an individual in order to prevent him from causing harm to himself, does not apply to persons who do not have the requisite maturity for the exercise of truly free choice. As Mill put it:
It is, perhaps, hardly necessary to say that this doctrine is meant to apply only to human beings in the maturity of their faculties. We are not speaking of children, or of young persons below the age which the law may fix as that of manhood or womanhood. Those who are still in a state to require being taken care of by others, must be protected against their own actions as well as against external injury.
This is, of course, a qualification of major significance insofar as nonmedical drug use is concerned because young people are so heavily involved in it. Unfortunately, Mill does not indicate the kind of intervention which he would consider appropriate to protect the young from causing harm to themselves. We do not know what intervention he would consider possible and compatible, as a practical matter, with the freedom on which he would insist for adults. As to the limits of state intervention which he would regard as permissible, insofar as adults are concerned, Mill indicates the general tenor of his thinking in certain observations concerning government policy with respect to poisons and the consumption of alcoholic beverages. Always making exception for the protection of the young, his policy with respect to poisons is that where they have legitimate uses the government must limit its intervention, despite the risks of harm, to assuring that people are suitably warned of the dangers by proper labelling. His reasoning is that, assuming such poisons have useful purposes, people should not be deprived completely of access to them merely because they present serious dangers. He goes further and says that people should not be put to the inconvenience and expense of having to obtain a special permission, such as a doctor's prescription, to obtain them. This is, in fact, the general approach which is adopted by present legislative policy to a wide variety of substances with a potential for harm, at least in certain applications. It is felt that they cannot be removed entirely from the market because of their necessity or usefulness. Such is the case with drugs having a medical value, despite the dangers which they may esent in certain applications, and such is the case with the wide variety of industrial and household products containing volatile substances, gases and solvents. Despite their potential for harm, especially to young people, as a result of their chemical properties, it is not practicable to consider their removal from the market because of their utility, and in many cases necessity, in legitimate uses. Occasionally, it may be necessary to remove a substance entirely from the market because of its general hazard to health even in its principal application. Such was the case with the cyclamates. With drugs having therapeutic value, the requirement of a prescription must for the reasons indicated by Mill-inconvenience and cost-be applied very judiciously.
With respect to the consumption of alcoholic beverages, Mill is of course against prohibition, and he sees the prohibition of sale as an attempt to prohibit use, as an infringement not only of the liberty of the seller but of the liberty of the user as well. Thus Mill would appear to be opposed to the "vice model" (which obtains in such matters as pornography and prostitution) whereby the law punishes the seller but not the user. At the same time Mill acknowledges that trade is a "social act" with which government has a right to concern itself. In other words, it affects others besides the trader. But on closer examination of what he has to say, it would appear that Mill is somewhat ambivalent or uncertain as to how far and upon what principles society is justified in interfering with the operations of the seller or purveyor of goods or services of which it disapproves. He concedes some force in the argument that access to the means of indulging in certain vices such as gambling and prostitution should be rendered as difficult as possible so as to reduce the opportunities for contact with them, but he does not feel that the same considerations apply to the sale of alcoholic beverages. The following passage reflects the general direction of his thinking, if not the whole of his analysis on this point:
There is considerable force in these arguments. I will not venture to decide whether they are sufficient to justify the moral anomaly of punishing the accessory, when the principal is (and must be) allowed to go free; of fining or imprisoning the procurer, but not the fornicator, the gambling-house keeper, but not the gambler. Still less ought the common operations of buying and selling to be interfered with on analogous grounds. Almost every article which is bought and sold may be used in excess, and the sellers have a pecuniary interest in encouraging that excess; but no argument can be founded on this, in favour, for instance, of the Maine Law; because the class of dealers in strong drinks, though interested in their abuse, are indispensably required for the sake of their legitimate use. The interest, however, of these dealers in promoting intemperance is a real evil, and justifies the State in imposing restrictions and requiring guarantees which, but for that justification would be infringements of legitimate liberty.
Mill recognized that such enterprises may be properly subjected to a variety of regulations and safeguards touching such matters as the reliability of the proprietors, hours of opening and closing, and the like, but he did not think that the regulations should have as their object, the attempt, by restricting the number of outlets, to render access to alcoholic beverages more difficult. Hence the reasoning seems to be that alcoholic beverages can be resorted to without abuse, and that it is not right to subject the majority who do not abuse them to inconvenience simply because of those who are liable to do so. Finally, Mill conceded that it was legitimate to allow a relatively heavy burden of taxes to fall upon alcoholic beverages since such taxes, which must be imposed by the state for revenue purposes, are bound to inhibit some forms of consumption. "It is hence the duty of the State," said Mill, "to consider, in the imposition of taxes, what commodities the consumers can best spare; and afortiori, to select in preference those of which it deems the use, beyond a very moderate quantity, to be positively injurious. Taxation, therefore, of stimulants, up to the point which produces the largest amount of revenue (supposing that the State needs all the revenue which it yields) is not only admissible, but to be approved of."
It is not clear from all this how Mill would approach the modern phenomenon of non-medical drug use, and more particularly how he would propose to allow adults freedom while providing adequate protection for the young. It is a reasonable assumption that he would have assimilated all nonmedical use to that of alcohol and would have favoured a system of legal availability with regulations designed to minimize the opportunities for exposure of the young to it. It is also probable, however, that Mill would have found the problem particularly perplexing because of the extent to which modern youth is actively engaged in non-medical drug use. He might also have found considerable difficulty in determining that degree of maturity or discernment which should distinguish those who require protection from those who do not. The point is that Mill's general principle of non-interference with conduct that does not cause harm to third persons or to society generally is clear enough as an abstract proposition; it is its application, with its important qualification that the state has the right to intervene to protect persons under the age of maturity from causing harm to themselves, that presents difficulty, particularly in the context of contemporary drug use. With certain drug use the issues, if Mill's principles were to be followed, would be not merely how to protect the young while allowing freedom for the mature, but how to ameliorate the present problem, by a system which continued to attempt to deprive the young of access to the drug.
Mill's thesis has been challenged by other philosophers and laymen oil several grounds. First, there is challenge of the assumption that might seem to be implicit in Mill's general position, that harm which one causes to oneself can never be a cause of harm to others or to society generally. Many-indeed we would think the vast majority-would strongly dispute this suggestion, particularly with respect to non-medical drug use. They would stress the effect which harmful drug use frequently has on the members of the user's family in emotional disturbance, family relations and discharge of one's family responsibilities, as well as the effect which it has on others in the community who must assume some responsibility for dealing with the consequences to the user and the members of his family-the demands upon the over-taxed resources of medical and social service facilities, sometimes causing neglect of other priorities, as well as the expense of establishing and maintaining necessary additional facilities. They would also stress the general effect of harmful drug use on the motivation and productive capacity required to maintain the institutions and life of the society. They would be concerned with the possible effects of widely diffused drug use on the present way of life.
Actually, Mill concedes that the harm which one causes to oneself by a certain kind of behaviour may in many cases cause inconvenience, special burdens, and even injury to other individuals and to society generally, but he contends that this is not a reason for prohibiting the conduct altogether. It is his contention that we should deal with these secondary effects, as they arise, on their own merit as being attributable not to the general kind of conduct (for example, non-medical drug use) as such, but to certain factors in the individual, such as excessive use, lack of responsibility, and the like. Thus, in Mill's view, the fact that driving while under the influence of a drug may result in injury to others would not be a reason for prohibiting the use of the drug altogether. The injury to others is not the direct result of drug use as such but of driving while under the influence of the drug, and the law should direct itself to prohibiting and punishing this particular conduct rather than drug use as a whole.
While Mill in the enunciation of his central principle recognizes the right of society to use the criminal law or moral coercion for its legitimate selfprotection, there is an implication that even if it could be demonstrated that non-medical drug use will frequently result in impairment of a person's general potential for usefulness to society, he would not consider this a sufficient ground for the exercise of such self-protection. This is where the issue is joined today. A majority of those who support the existing law do so not merely because of the effect of drug use on the welfare of the individual but chiefly because of what they feel to be its effect on the welfare of society as a whole. Mill would appear to exclude this, as a matter of principle, as a valid consideration for application of the criminal law, although the difference may be essentially a matter of appreciation of what constitutes a sufficient injury or harm to society to warrant intervention. What is really involved is a weighing of values: as Mill puts it, "the inconvenience is one which society can afford to bear, for the sake of the greater good of human freedom." Others take the view, in the case of non-medical drug use, that what is involved is more than a matter of "inconvenience" but rather a threat to other values on which the present society depends, such as the capacity and willingness to discharge personal responsibilities in work and personal relations, and that such value as there may be in the personal freedom to pursue non-medical drug use must cede to these other values which are held to be essential to the society's survival.
The philosophic debate concerning the appropriateness of the criminal law in the field of non-medical drug use is associated with expressions such as "crime without victim" and "law and morals" which obscure the essential issue: how different people characterize the personal and social effects of nonmedical drug use in the light of their respective systems of value. This, rather than an abstract debate as to the appropriate limits of the criminal sanction, is what is really at stake. The quarrel is not so much with Mills' premises as with the practical conclusions which he drew from them in the light of a nineteenth century liberalism. Once he concedes, as he does, that society has a right to use the criminal law to protect itself, that a special protection is owing to those under the age of majority, and that people may be restrained from giving public offence to the sense of decency of others, then it seems that what essentially separates him from his critics are questions of application-the weighing of the competing values in the light of the particular facts, and consideration of the ways and means best calculated to promote the ends.
For example, the English judge, Lord Devlin, who is generally regarded as the exponent of a legal philosophy that is at extreme variance with that of Mill, because of his insistence on the right, and indeed the duty, of the state to enforce morality, is seen on closer examination simply to take a different view of what the self-protection of the state requires. Although he speaks in a general way about the moral values of the majority as being essential to the preservation of the society, where the criminal law is concerned, his notion of morality is not divorced from consideration of the actual harm caused by particular conduct. It would not appear that in his view any departure from the prevailing moral code is to be considered a social harm warranting the application of the criminal law. Once again, it is a question of the subjective evaluation of the effects of certain conduct from the social point of view. His general approach is set out in the following passage from The Enforcement of Morals:
I think, therefore, that it is not possible to set theoretical limits to the power of the State to legislate against immorality. It is not possible to settle in advance exceptions to the general rule or to define inflexibly areas of morality into which the law is in no circumstances to be allowed to enter. Society is entitled by means of its laws to protect itself from dangers, whether from within or without. Here again I think that the political parallel is legitimate. The law of treason is directed against aiding the king's enemies and against sedition from within. The justification for this is that established government is necessary for the existence of society and therefore its safety against violent overthrow must be secured. But an established morality is as necessary as good government to the welfare of society. Societies disintegrate from within more frequently than they are broken up by external pressures. There is disintegration when no common morality is observed and history shows that loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government and other essential institutions. The suppression of vice is as much the law's business as the suppression of subversive activities; it is no more possible to define a sphere of private morality than it is to define one of private subversive activity. It is wrong to talk of private morality or of the law not being concerned with immorality as such or to try to set rigid bounds to the part which the law may play in the suppression of viceThere are no theoretical limits to the power of the State to legislate against treason and sedition, and likewise I think there can be no theoretical limits to legislation against immorality. You may argue that if a man's sins affect only himself it cannot be the concern of society. If he chooses to get drunk every night in the privacy of his own home, is any one except himself the worse for it? But suppose a quarter or a half of the population got drunk every night, what sort of society would it be? You cannot set a theoretical limit to the number of people who can get drunk before society is entitled to legislate against drunkenness.
Despite the general sweep of his statements in favour of the enforcement of morality, it seems clear that Lord Devlin is involved in the same process as Mill of weighing the values of personal freedom and privacy against other values which he deems to be essential to the preservation of a certain kind of society. If anything, what possibly distinguishes them is the relative importance or primacy which Mill, in the particular political context of his time, assigned to freedom as a social as well as individual value. But the essential perspective of Lord Devlin is not at such variance with that of Mill as some of his language suggests. For at one place, he says: "There must be toleration of the maximum individual freedom that is consistent with the integrity of society." And at another place he says, "But before a society can put a practice beyond the limits of tolerance there must be a deliberate judgment that the practice is injurious to society." Thus,whether one agrees or not with Lord Devlin's assumption that morality is essential to the preservation of society, it would not appear to be his thesis that, irrespective of the harm which appears to be caused by the conduct in question, it is proper to use the criminal law to enforce morality.
Nevertheless Lord Devlin's general position on law and morality was attacked by the English philosopher, H.L.A. Hart, on the ground that since his belief in the importance of morality to the preservation of society appeared to be an a priori rather than an empirical conclusion, and he seemed to equate society with its morality, the natural and inevitable tendency of his position would be to regard any departure from the prevailing morality as a threat to the preservation of the society. Hart himself is in essential agreement with Mill that the criminal law should not be used to enforce morality, but he differs from Mill in regarding it as a legitimate object of the law to attempt to prevent individuals (including those of the age of maturity) from doing harm to themselves. This he justifies as "paternalism" (as distinct from "legal moralism", which he ascribes to Lord Devlin) on the ground that Mill exaggerated the capacity of adults to make wise use of their freedom. Hart's notion of paternalism may also impliedly challenge another assumption of Mill-that somehow the young can be protected while conceding freedom to adults. If an attempt is to be made to deny access to certain drugs to the young, either on the paternalistic basis of protecting them from causing harm to themselves or on the basis that their use of drugs will have an adverse effect On society as a whole, then it must be asked whether the achievement of this Purpose is rendered more or less difficult by permitting adults to have access to such drugs.
On this whole philosphic issue as to whether, in principle, the criminal law should be used in the field of non-medical drug use, we adhere to the general position which we expressed in the Interim Report as follows:
... In our opinion, the state has a responsibility to restrict the availability of harmful substances-and in particular to prevent the exposure of the young to them-and that such restriction is a proper object of the criminal law. We can not agree with Mill's thesis that the extent of the state's responsibility and permissible interference is to attempt to assure that people are warned of the dangers .... Obviously the state must be selective. It can not attempt to restrict the availability of any and all substances which may have a potential for harm. in many cases it must be satisfied with assuring adequate information. We simply say that, in principle, the state can not be denied the right to use the criminal law to restrict availability where, in its opinion, the potential for harm appears to call for such a policy. [Paragraph 442]
... Without entering into the distinction between law and morality, we also subscribe to the general proposition that society has a right to use the criminal law to protect itself from harm which truly threatens its existence as a politically, socially and economically viable order for sustaining a creative and democratic process of human development and self-realization. [Paragraph 4431
... The criminal law should not be used for the enforcement of morality without regard to potential for harm. In this sense we subscribe to what Hart refers to as the "moderate thesis" of Lord Devlin. We do not subscribe to the "extreme thesis" that it is appropriate to use the criminal law to enforce morality, regardless of the potential for harm to the individual or society.
If we admit the right of society to use the criminal law to restrict the availability of harmful substances in order to protect individuals (particularly young people) and society from resultant harm, it does not necessarily follow that the criminal law should be applied against the user as well as the distributor of such substances. There is no principle of consistency that requires the criminal law to be used as fully as possible, or not at all, in a field in which it may have some degree of appropriateness. We do not exclude in principle the application of the criminal law against the user since it is a measure which can have an effect upon the availability and the exposure of others to the opportunity for use, but the appropriateness or utility of such an application must be evaluated in the light of the relative costs and benefits. [Paragraph 4441
We did express a general reservation concerning the offence of simple possession as follows:
Our basic reservation at this time concerning the prohibition against simple possession for use is that its enforcement would appear to cost far too much, in individual and social terms, for any utility which it may be shown to have. We feel that the probability of this is such that there is justification at this time to reduce the impact of the offence of simple possession as much as possible, pending further study and consideration as to whether it should be retained at all. The present cost of its enforcement, and the individual and social harIn caused by it, are in our opinion, one of the major problems involved in the nonmedical use of drugs. [Paragraph 4491
In effect, it is not particularly helpful in this case to attempt to set theoretical limits to the application of the criminal law. The criminal law may properly be applied, as a matter of principle, to restrict the availability of harmful substances, to prevent a person from causing harm to himself or to others by the use of such substances, and to prevent the harm caused to society by such use. In every case the test must be a practical one, we must weigh the potential for harm, individual and social, of the conduct in question against the harm, individual and social, which is caused by the application of the criminal law and ask ourselves whether, on balance the intervention is justified. Put another way, the use of the criminal law in any particular case should be justified on an evaluation and weighing of its benefits and costs. Generally speaking, the adverse effects for the individual of the criminal law process are such that it must be justified in each case by rational and convincing reasons of necessity, in relation to other available means of achieving the desired purpose.
We propose to address ourselves to the following questions: To what extent can we hope to achieve our objectives through use of the criminal law? Does the benefit which we think we obtain by the use of the criminal law outweigh the costs of using the criminal law in this particular case? What would be the effect of using the criminal law in some reduced measure? What would be the effect of replacing it by some other form of regulation? It is convenient to proceed with this analysis in terms of a comparison of criminal law prohibition and administrative regulation. The major issues in the choice between criminal law prohibition and administrative regulation of cannabis are whether criminal law prohibition exercises a more effective control upon availability and demand, and if so, whether this margin of control justifies the costs of criminal law prohibition in the form of the various adverse effects upon individuals, the law enforcement processes and the society generally.
CONTROL OF AVAILABILITY
A policy of administrative regulation-that is, making cannabis legally available under government controls-would increase rather than reduce availability. The government control of the distribution of alcohol is not really an effective limitation upon availability. Some attempt is made to limit the number of distribution outlets, and while this may cause some personal inconvenience in obtaining supplies, people are not effectively prevented from obtaining as much as they want. Unless one is prepared to introduce a quota or rationing system, administrative regulation is not a means of limiting or reducing availability, and even then there are ways of circumventng the system. The chief means by which a system of administrative regulation seeks to control use is through the effect of price or taxation on demand. It may set a price for a product, or impose such taxes upon it, as will discourage demand without encouraging the development of an illicit market. If we are to judge by the experience with alcohol and tobacco, this practice assures the state of an ample revenue but makes little effective impact upon the demand for a product which people greatly desire. They will continue to find the money for it even at the price of other things.
The probable effect of administrative regulation on availability to minors requires special consideration. Our experience with alcohol is that while sale to minors has been prohibited, young persons have not had difficulty in obtaining access to liquor. The extent of alcohol consumption by persons of high school age is proof of that. All the surveys show that there is a higher use of alcohol among high school students than any other drug, how they obtain it is not so clear: either the rule against sale t sufficiently enforced, or they arrange to have persons of age in, or they have easy access to the supplies kept by parents and others in their households. Probably it is a combination of all these factors. Although we do not have a basis for comparing the availability of liquor to minors under the present licensing system with that which would obtain under prohibition, there is certainly no reason to conclude that it is significantly restricted under the licensing system. The example of unrestricted adult use and the constant availability of supplies obtained by adults are bound to encourage and facilitate use by minors. If cannabis products were made legally available we could expect them to be offered as an alternative intoxicant at cocktail parties and other social gatherings. Regular supplies would undoubtedly be kept on hand in just as casual a way as alcohol is today. Moreover, where necessary, minors would always be able to find persons of age to obtain supplies for them. We believe it is illusory to think that conditions of regulated sale would seriously restrict the access of minors to the drug. We think the only reasonable assumption is that there would be wider availability to minors under conditions of legal sale to adults than there is under conditions of criminal law prohibition.
Despite the fact that there continues to be widespread availability of cannabis under conditions of criminal law prohibition there can be no doubt that the criminal law creates risks and difficulties for traffickers. These are reflected in the fact that there is relatively less marijuana in this country than there is in the United States. With marijuana from Mexico, which is still the main source, there are two borders to cross or to circumvent. Marijuana is bulky and difficult to conceal. Yet because of its potency in relation to weight-generally between .5% and 1% THC-it is necessary to move very large amounts of it. Profits, especially at the lower levels of the distribution system, are comparatively small in relation to the risks involved. For these reasons there is proportionately much less marijuana smuggled into Canada than into the United States and a much greater concentration on the smuggling of hashish, which is more compact, has approximately five to 10 times the potency of marijuana per unit of weight, brings a proportionately higher price, and can be smuggled into Canada from overseas sources via boat, airplane and mail. Thus while the sources of marijuana in the world are virtually unlimited and uncontrollable, since it may be cultivated anywhere, the difficulty of moving it in sufficiently profitable quantities to justify the risk is a severe limitation on the amount which may be brought into Canada under conditions of vigourous law enforcement.
It is uncertain how far domestic cultivation contributes to the supply of marijuana in Canada but there is reason to believe that it is increasing in importance. Convictions for unauthorized cultivation of marijuana have been increasing, as also have seizures of marijuana plants. In 1970 there were a total of 43 convictions for cultivation of marijuana, and in 1971, 58, as compared to a total of 19 in the whole of the three years 1967 to 1969 inclusive. The R.C.M. Police report seizures of 26,431 marijuana plant' during the fiscal year 1970-71 and 92,978 up to the end of October, 1071 of the fiscal year 1971-72. This shows a very marked increase in law enforcement against cultivation, which presumably reflects the increasing importance that the police attach to domestic cultivation as a source of domestic consumption. Apparently there is little doubt now that a marijuana of acceptable potency can be grown anywhere in Canada. It can even be grown indoors. It is too early to assess the long-term implications of this for law enforcement, but obviously they may be quite serious.
The situation at present appears to be that in most parts of the country marijuana is not very plentiful, and certainly not available in quantities that would permit a very large number of people to support heavy, regular use. In these areas, more hashish than marijuana is used. Hashish is easier to smuggle than marijuana but more difficult, because of the relative bulk, than heroin. Hashish is brought through customs by individuals on their person or in their luggage after arrival by plane or boat, or is sent through the mails, or is brought into the country in large quantities through various stratagems, such as air-drops off the coast, by organized criminal enterprises. Vigourous enforcement by police and customs officials can make the smuggling of hashish a very risky undertaking. Despite the fact that large quantities are obviously entering the country, there is reason to believe that criminal law prohibition imposes some limitation on availability. As the figures for seizures provided by the R.C.M. Police indicate (see Table 3 in Chapter 3), the total amount of hashish seized has been steadily increasing. On the basis of relative THC potency (between five and ten times as potent as marijuana), hashish represents a very high proportion of the total amount of cannabis seized.
CONTROL OF QUALITY AND POTENCY
The chief benefits of administrative regulation are an assured supply which one can obtain without having to engage in illegal activity, stable price and assured quality. The last is probably the most important element of effective control that can be achieved through administrative regulation. Prohibition reduces availability and forces prices to levels which may discourage use but leaves quality to be determined by the illegal market.
In the case of cannabis, quality is not really a major issue. At any rate, it is not the issue that it is in the case of the "chemicals", where there is not only fraudulent but dangerous adulteration. Cannabis is a natural product. There has been some evidence of misrepresentation and adulteration by non-psychoactive impurities, but little evidence of adulteration that presents dangers. Cannabis is generally what it purports to be. Most of it is of good quality. The need to control quality in the interests of safety is not a major issue, as it is in the case of alcohol. Arguments in favour of legalization based on the desirability of quality control are really more applicable to the more dangerous drugs; because of their higher cost, there is a greater incentive to adulteration, and because the process of adulteration is a chemical one there is a greater possibility of the introduction of dangerous ingredients.
Although there would necessarily be quality control, the chief object of product control in an administrative regulation of cannabis would be control of potency. Advocates of "legalization" assume that there would be a selection of products for legal distribution, and that by a control of potency or THC concentration, there would be an attempt to restrict consumption to Moderate dose levels. The fallacy in this assumption is that the dose level can always be increased by increasing the quantity of the product which is consumed. Thus, not only would fixing a moderate concentration of THC per unit of weight in the legally available product or products not prevent people from achieving the dose level they desire by regulating the quantity consumed, but it might drive them to seek more potent products on the illicit market if it had the effect of making such a dose level too costly or inconvenient to attain.
If cannabis were legalized we would not escape the necessity of using the criminal law. We would still have to use the criminal law to suppress the distribution of cannabis products outside the legal system, and particularly their distribution to minors. We would also have to prohibit cultivation. It is far from clear that there would not continue to be a significant illicit market in products of greater potency than those available on the legal market. This is particularly true if a decision were taken to legalize marijuana but not hashish.
Most advocates of legalization of cannabis contemplate that it would be confined to marijuana. Indeed, it is argued that the legalization of marijuana would reduce the consumption of hashish. It is felt that any significant increase in the effectiveness of law enforcement against marijuana is likely to be reflected in an increase in the use of hashish. This is regarded by most as a serious consequence in view of the greater potency of hashish.
There is some uncertainty as to the importance in practice of the difference between marijuana and hashish. Most commentators observe that while hashish is five to ten times as potent in THC concentration as marijuana, most users in practice adjust the quantities consumed to achieve approximately the same 'high' or level of intoxication with both. However, there seems to be a general agreement that hashish is more likely to lead to excessive use than marijuana, and it is noteworthy that the accounts of adverse psychological reactions in other countries have generally involved the use of hashish. There is also general agreement that the ingestion of hashish involves special hazards of overdose and adverse reaction, although this mode of administration does not yet appear to be common in Canada.
In Canada the use of hashish is now firmly established as the dominant form of cannabis use. The question is whether users could be enticed away from hashish by the legalization of a moderate form of marijuana, of whether a form of hashish would have to be legalized as well. Ve think it would be useless to legalize marijuana without hashish. We think that legalizing marijuana would introduce many people to the drug who are not using it now, but that it would not dissuade people who have acquired the habit Of hashish from continuing to seek hashish. We believe there would continue to be a thriving illicit market in hashish. The fact is that tolerance may play a more important role than was previously thought in the development of levels of cannabis use. There now tends to be more agreement that tolerance develops to high cannabis use with time. In our opinion tolerance will play.a part in gradually increasing the levels of cannabis use by regular users ini North America until they approximate more closely the dose levels established in other countries. Hashish, because of its greater potency per unit of weight, is obviously a more convenient and rapid response to the requirements of tolerance than marijuana. We believe that it is the relationship between tolerance, potency and excessive use that makes hashish both attractive and dangerous in the long-run.
One advocate of legalization of marijuana has argued as follows:
A licensing system, however, can exert pressure away from stronger drugs. So long as marijuana of sufficient potency is available, even though it is not perhaps so strong as desired, the preference for legal and convenient drug purchasing will incline users toward the use of the more available rather than the stronger drug. Our experience during Prohibition illustrates this. During the period from 1920 to 1933 there was a movement toward the use of more powerful alcoholic drinks such as gin and bourbon and away from the less powerful beer. This was in great part a consequence of the fact that the higher value per gallon of the stronger drinks make them more economic for bootleggers to produce, transport, and sell. Interestingly, since the repeal of Prohibition, the ratio of hard-liquor sales to sales of beer has dropped.
Indeed, once we see the issue as to which is the better way to arrest the spread of hashish-licensing or forbidding its principal and most logical competitor-the answer becomes fairly clear. [Kaplan, Marijuana- The New Prohibition.]
The fallacy in this argument is that under liquor licensing the hard liquors are legally available to satisfy the demand for them, and this demand is very high, regardless of the amount of beer that is consumed. If the analogy were to have any value we would have to consider the effect of a licensing system that was restricted to beer only, and left hard liquor under a criminal law prohibition. It is a virtual certainty that an illicit market in hard liquor would continue to flourish. Obviously, where all forms are under criminal law prohibition, there will be an inevitable tendency to concentrate trafficking efforts on those forms which are most profitable in relation to risk. But it does not follow from this, if the most moderate forms are legalized, that trafficking in the more potent forms will cease if there continues to be a significant demand for these more potent forms.
For reasons already indicated, particularly tolerance and the likelihood of a steady increase in the dose level sought by regular, heavy users, we are convinced that there would continue to be a sufficient market for hashish to support a large volume of trafficking. Either that, or there would be efforts to convert the moderate substance that was legally available into more potent concentrations. Regular, heavy users are not going to smoke several mild cigarettes in succession to achieve what they can achieve much more quickly, and with less wear and tear on the respiratory system, by a fifth the weight using hashish. And in any event, even if potentially heavy users were disposed to remain with the legally available marijuana cigarette, they could increase their dose by increasing the number of cigarettes they smoked. Either way, the legal availability of a moderate form of marijuana cigarette would offer no assurance of a control on the total amount consumed on a single occasion or the total dose level which heavy users could attain. The same is true of beer. We know that a high level of intoxication can be achieved with beer, and that much alcoholism is attributable to the consumption of beer, as it is to the consumption of wine. It simply takes greater quantities than in the case of hard liquor; it is a question of convenience and what one might call digestive preference-some people find the ingestion of large quantities of fluid uncomfortable.
It is completely illusory to think that we can effectively control quantities consumed, and dose levels attained, by a licensing system which provides a product with a specified potency per unit. Everything depends on the number of units or total amount of the product that is consumed on each occasion. What can be done by such a system is to assure that people know the potency of what they are consuming. They are able to make a graduated use of the drug, and they are not obliged to consume a unit of such potency as to risk overdose. This is the great danger with the ingestion of drugs. There is no way of titrating or adjusting the dose, if the potency of the drug turns out to be greater than suspected. Once the drug has been ingested there is no way of avoiding its full impact. This is one of the dangers with LSD and with the ingestion of hashish. But cannabis smokers may always stop at the level of intoxication which is acceptable to them. In the case of products which are smoked there is much less danger of falling unwittingly into overdose so that this argument in favour of legalization of a cannabis product of standard potency per unit is not as weighty as it would be for drugs which are ingested.
There is always a possibility, however, that if concern increases about the possible effects of the smoking of cannabis on the respiratory system, there will be increasing resort to the ingestion of cannabis products. This could have very serious consequences without units of standardized potency and widespread knowledge about effects and prudent use. Since, however, cigarette smokers appear to be undeterred by the impressive evidence of the dangers of smoking, it is likely that smoking will continue to be the preferred mode of administration of cannabis.
THE CONTROL OF DEMAND
Whereas we believe that the criminal law prohibition against trafficking can have a significant impact upon availability, at least in comparison with administrative regulation, we believe that the prohibition against simple possession has a much less significant impact upon demand.
The essential benefit to be derived from an application of the criminal law is the extent to which it prevents the behaviour to which it is directed. This involves a consideration of the factors which contribute to deterrence, or compliance with the criminal law, and the extent to which they are operative in a given case. Deterrence (which is not effected by actual physical restraint, as in the case of imprisonment or other deprivation of liberty) is basically a function of one or more of the following factors: the sense of moral obligation and voluntary compliance induced by the mere command of the law and its stigmatization of certain conduct; the risk of detection of a violation of the law; the likelihood of conviction, if caught; and the likely consequences of conviction-that is, the likely severity of the sentence and the other effects of a criminal conviction and record, including the effect on prospects for employment. Apart from the actual penalty imposed there is the fear of stigmatization, humiliation or degradation. This, however, is related, in sorne measure, to the moral authority of the law and the manner in which people perceive the criminal law process and its results with respect to the particular offence.
It is impossible to determine with any certainty or precision how far a criminal law is having deterrent effect. Our continuing resort to such laws, with the severe costs for individuals which they entail, is based on the assumption that they have deterrent effect, so that we must assume that a particular criminal law is having such an effect, in the absence of convincing proof or arguments to the contrary. We cannot put in question the assumption which underlies the whole of our criminal law. Moreover, the consequences of criminal law stigmatization and punishment for the individual are such that it is wholly reasonable to assume that the criminal law acts as an effective deterrent for the vast majority of people who might otherwise be tempted to engage in the conduct which is prohibited.
The law depends for its efficacy on a substantial measure of voluntary compliance out of a sense of moral obligation. The vast majority of people comply with the law because it is the law. To command this respect and voluntary compliance in a sufficient measure the law must strike the majority as a reasonable one, or at least it must not strike them as so unreasonable as to offend their sense of justice. Opinions will differ widely throughout the population as to the wisdom of a particular law, but the overwhelming majority will support it so long as they do not consider it to be outrageous.
It is said by many that the law against cannabis has lost much of its deterrent effect because it does not command widespread respect. It is difficult to assess the weight of this opinion. Certainly, an increasing minority would appear to have little respect for it. For this minority, the criminal law prohibition against cannabis does not have persuasive effect merely by virtue of its existence. It does not command respect. Any deterrent effect which it has with this minority must rest on fear of detection and conviction. This fear is necessarily proportionate to the actual risk of such consequences, and the risk depends upon how effective law enforcement can be in this field.
It is clear that the risk of detection of simple possession of cannabis, for most of the using population, is relatively slight. Use is too widespread, and the methods required for detection too unacceptable with respect to most of the using population to make it possible to enforce the law in any but a haphazard and necessarily discriminatory manner. Many, if not most, of the cases of simple possession are uncovered by accident in the course of some other aspect of law enforcement. Apart from the accidental discovery of possession, law enforcement appears to be concentrated against certain well-identified and highly visible centres of drug use and distribution. There are certain populations which are relatively immune from systematic enforceMent in their normal places of occupation and residence, although they may be caught by accident when out of their normal environment. If people are careful not to be in possession in public places where they may be confronted by the police for one reason or another they are relatively immune from detection. It would be wrong to suggest that there is a conscious policy of discrimination in the enforcement of the law; it is simply that the extent and Patterns of use, the available manpower, and the difficulty of detection, where there is no complainant, do not permit anything more than a very spotty and haphazard effort.
The use of cannabis in private is generally speaking beyond the effective reach of law enforcement. There will no doubt continue to be cases in which the police will break into dwellings to surprise individuals in possession of cannabis, but because of the unpopular nature of this kind of law enforcement it is bound to be used with increasing reluctance. It will simply not be used, as a general rule, against the average citizen. A real fear of being discovered in the private use of cannabis could only be developed and maintained by using the methods of a police state. It would require very large numbers of police, pressure on vast numbers of people to act as informers and ruthless use of the powers of search. Obviously, the society could not tolerate it. Even in a police state, such methods can only be invoked to suppress activity that can plausibly be presented as threatening the security of the state.
One measure of the effectiveness of law enforcement against simple possession is the number of convictions in relation to the estimated number of users. Convictions for simple possession of cannabis rose from 431 in 1967 to 5,399 in 1970. In 1971, there were 8,389. These figures reflect an increase in law enforcement effort but the total number of convictions still falls well below one per cent of a conservative estimate of the total number who have used cannabis in Canada. As a proportion of those who are estimated to have been actually using cannabis in 1970 and 1971, and of certain populations of users, the percentages are, of course, sornwhat higher. For example, the total convictions for simple possession of cannabis in 1970 would be about one and one-half per cent of the total of 354,000 Canadians who are estimated to have been using cannabis in 1970, and the total of approximately 4,000 convictions of persons between the ages of 18 and 25 in that year represent approximately eight per cent of the total of 48,000 university students who are estimated to have been using it in that year. This, however, would not represent the actual risk of conviction in this population of users since the total number of convictions in this age group is by no means limited to this category of person. Such statistics as we have on the occupational categories of persons convicted for the simple possession of cannabis during the years 1967 to 1969 inclusive indicate that students comprised the largest stated group, averaging between 20 and 23 per cent in the country as a whole, but varying considerably from one province to another. There was, however, a large "Not Stated" category in these years which may have contained a significant number of students. Unfortunately, there are no such statistics available for 1970 and 1971. In any event, on any basis of calculation the risk of conviction for simple possession of cannabis in any one of the using populations would appear to be very low.
On the other hand, this does not necessarily reflect the extent to which the law may be having deterrent effect. In our surveys a relatively small propoftion of non-users have stated that the law or the fear of arrest were reasons for not using, but the actual numbers affected are quite considerable. it is also of interest that the legal status of the drug deterred more people than the actual fear of arrest, reflecting the fact that many people are influenced by the mere existence of the law, regardless of the actual risk of detection. Twenty-six per cent of high school students who had not used drugs said they had not done so because of the law.
To sum up, we would say that the prohibition against simple possession has relatively little deterrent effect by virtue of the risk of detection and prosecution. For certain people its stigmatization of the conduct probably has a deterrent effect. Such people respect the law, no matter what it is. It is likely that most of them would be just as deterred if there was no longer a prohibition against simple possession, but there remained a prohibition against distribution. It is likely that they would be disinclined to deal with an illegal market. They are not prepared to involve themselves in contact with people who may be under police surveillance or who may be prosecuted for selling to them, with attendant unfavourable publicity to themselves. For such people there would be a serious stigma attached to being detected in dealings with traffickers, even if there was no criminal liability. Many of the same people would likely try the drug out of curiosity if its distribution were made legal.
For significant numbers of users who make the law relatively ineffective as a means of controlling demand, the law does not have moral authority. Its stigmatization has no effect on their conduct.
THE EFFECT OF A CHANGE IN THE LAW ON THE PERCEPTION OF HARM
The difficulty here is that we do not start with a clean sheet. We are not choosing for the first time what would be a sensible policy with respect to cannabis. For better or for worse the legislator has taken a firm position on the subject, and now the issue is whether there should be any retreat from this position. In the course of our inquiry several witnesses expressed the fear that any liberalization of the law would give people the impression that there was nothing to fear from cannabis and would encourage the use of it. Such people would not insist that the present law is satisfactory in every respect. They do not say that the present approach is the one they would adopt if the question as to whether cannabis should be subject to some controls was coming up for the first time. They do say, however, that the present legislative characterization creates a certain impression of its relative potential for harm, perhaps an exaggerated one, but that a significant alteration of this characterization may give an equally erroneous impression in the other direction.
Within certain limits we do not believe that a change in the law need have an adverse effect on a proper appreciation of the caution with which we believe cannabis should be treated. To begin with, the present legal characterization of cannabis is simply not believed. People are not misled by the inclusion of cannabis in the Narcotic Control Act into believing that its effects are as harmful as those of heroin. The thoroughly mistaken nature of this characterization is now well and generally understood. There is a growing recognition in official circles that the assimilation of cannabis to the opiate narcotics in the Single Convention on Narcotic Drugs 1961, and in domestic legislation, undermines the credibility of public policy in the drug control field. Many nations, including the United States and Great Britain, have acknowledged this by changing their whole approach to legislative classification of the drugs. While the Single Convention groups cannabis with theopiate narcotics it does not insist that it be given identical treatment in the law of the member states. The Single Convention has certainly been responsible for reinforcing the erroneous impression that cannabis is to be assimilated to the opiate narcotics but it does not prevent domestic legislation from correcting this impression. Because the present classification and legislative treatment of cannabis is so generally recognized to be erroneous and indefensible, any change in it which corresponded more closely to the facts could be expected to command much more respect and careful attention, and might well have the opposite effect of that which is feared by many: namely, to lead people to treat cannabis more seriously, if that is what the facts indicate.
There are limits, however, to this line of reasoning. Any significant change in the law is going to convey some acknowledgement of the relative seriousness of the effects of cannabis. The whole public debate concerning cannabis has turned on the question of whether it is harmful. There has, of course, also been controversy as to the proper legislative approach to it, assuming it to be harmful. The perception of harm and the proper legislative approach are for the overwhelming majority inextricably bound up together. If we are not mistaken, it is only a relatively small minority who see the issue as one of principle, regardless of harm.
We believe that a decision to make cannabis legally available, and to a lesser extent, a decision to repeal the prohibition against simple possession, would inevitably convey an impression that cannabis was considered to be less dangerous than official policy had previously given people to understand. In the case of a repeal of the prohibition against simple possession this impression would be offset in substantial measure by the retention of a prohibition against distribution.
THE COSTS OF APPLYING THE CRIMINAL LAW TO THE -DISTRIBUTION AND USE OF CANNABIS
The costs of the criminal law prohibition of cannabis which are generally referred to include the following: (1) the effect of criminal conviction, particularly on young people; (2) encouraging the development of an illicit market, with possible involvement of organized crime; (3) obliging people to engage in crime or at least to deal with criminal types to supply themselves with the drug; (4) exposing people to other, more dangerous, drugs by forcing them to have contact with traffickers who handle a variety of drugs; (5) encouraging the development of a deviant subculture; (6) undermining the credibility of drug education, and in particular, information about more dangerous drugs; (7) the use of extraordinary methods of enforcement; (8) creating disrespect for law and law enforcement generally; (9) diverting our law enforcement resources from more important tasks; and (10) adversely affecting the morale of law enforcement authorities.
Some of these costs are inherent in the criminal law process and some are special to the criminal law prohibition of cannabis.
The effect of a criminal conviction upon young lives. The first, and probably the most serious, of the special costs involved in the application of the criminal law to the distribution and use of cannabis is that the law falls most heavily upon the young. In 1970 and 1971 over 50 per cent of those convicted of the simple possession of cannabis and only a slightly smaller proportion of those convicted of trafficking offences were under the age of 2 1. In both years over 85 per cent of those convicted of all offences were under the age of 25.
It is particularly serious that several thousand young people should suffer the stigma and other consequences of arrest, trial and criminal conviction. Even if conviction does not result in imprisonment it can still have very serious consequences by its effect on vocational opportunities, the right to travel and other rights and privileges. There is also the harsh effect of contact with the criminal law process. The effect on the offender's family must also be taken into account. The mental suffering which these events can produce in parents is a very substantial cost. Further, there is the understandable sense of injustice at being the one who is unlucky enough to be caught. There cannot be any systematic attempt to enforce the law, and large numbers remain relatively immune from detection.
Even where there is provision, as there is under the present law, for the granting of a pardon after a certain period of time, the knowledge which a lot of people invariably possess of a conviction and the knowledge which can be obtained by interested parties through careful investigation cannot be eliminated.
The cost of criminal law conviction is also to be measured not just by the stigma and future consequences for employment and other opportunities, but also by the severity of the penalties imposed. The maximum penalties under the Narcotic Control Act for offences involving cannabis are grossly excessive. They are out of all proportion to the harm which could possibly be caused by cannabis. Moreover, they are excessive by comparison with those of most other nations. The maximum penalty of life imprisonment for the trafficking offences is much more severe than the penalty in other western nations.
It is clear that the Canadian penalty structure with respect to cannabis developed with a view to the opiate narcotics and without any anticipation of the social problem it would cause in the late 1960s. When Parliament adopted the present maximum penalties in 1961, the perception of cannabis which they had before them was that reflected in the observation of the Special Senate Committee of 1955 on the narcotic traffic that it did not as yet present a problem. (See History in Chapter 5.)
A conspicuous aspect of the extreme severity of the Canadian penalty structure with respect to cannabis offences is the mandatory minimum penalty of seven years' imprisonment for importing or exporting. (See Chapter 5, Prohibitions and Penalties.) This was enacted in 1961 in response to a recommendation of the Special Senate Committee, but again the Committee and the Government were undoubtedly thinking mainly of the drugs which are true narcotics. In fact, virtually all of the cases of importing or exporting in recent years have involved cannabis. The impact of this very severe law has fallen almost entirely upon this class of trafficker, although it may be presumed to have had some deterrent effect with respect to importing or exporting of the narcotics. In 1970, 26 out of the 28 convictions for importing or exporting under the Narcotic Control Act involved cannabis, and in 1971, 22 out of 26. In 1971, 16 of the convictions involving cannabis carried sentences of between seven and eight years, and six of them carried sentences of ten years and over. Thirteen of the cases involved persons between the ages of 18 and 25. As indicated in Chapter 5, there is reason to believe that the authorities only resort to this offence in what they consider to be very serious cases, but there are still a number of young people who come under this draconian law, which leaves the judges no discretion and cannot be justified by the facts concerning cannabis.
The maximum penalty of seven years' imprisonment for cultivation is also very severe, since it makes no distinction between cultivation for purposes of trafficking and cultivation for purposes of one's own use.
Another aspect of the severity of the penalties for the offences of importing or exporting, trafficking, possession for the purpose of trafficking and cultivation, at least insofar as cannabis is concerned, is that they do not offer the Crown the option of proceeding by summary conviction rather than indictment. This option exists with respect to the trafficking offences involving controlled drugs and restricted drugs under Parts III and IV of the Food and Drugs Act, and there is no logical reason why it should not apply to the offences involving cannabis. There is no reason, for example, why the penalty structure should be more severe for cannabis than LSD. Indeed, on the basis of potential for harm, it should not be as severe.
Under the law, as it presently stands, the courts do not have the right to impose a fine in lieu of punishment in trafficking cases. This results from section 646(2) of the Criminal Code, which provides that "An accused who is convicted of an indictable offence punishable with imprisonment for more than five years may be fined in addition to, but not in lieu of, any other punishment that is authorized." The statistics suggest that there are cases of trafficking offences in which only a fine has been imposed, but this would appear.to be an exercise of judicial discretion that is not permitted by the present law. There have been decisions in which the courts of appeal have upheld an appeal from sentence on this ground. In our opinion this option should be open in trafficking cases to permit the courts to deal with the marginal cases which do not merit a policy of severity, The Single Convention on Narcotic Drugs, 1961, requires that "serious offences shall be liable to adequate punishment particularly by imprisonment or other penalties of deprivation of liberty", but trafficking offences exhibit a wide range of relative seriousness, and the permissible range of penalties should be sufficiently flexible to permit the courts to reflect significant distinctions.
As for the offence of simple possession, the maximum penalties, whether upon indictment or summary conviction, are completely unreasonable. They are out of all proportion to the potential for harm of cannabis or the overall effect which they may have upon demand. They give much too great a latitude to the judges and can be made to fall with great severity and injustice upon individuals whose cases exhibit circumstances, including a previous conviction, which appeal to judges as justifying a policy of severity. Because of the special nature of the law concerning cannabis-the very real doubt concerning the extent to which we are justified in continuing to use the criminal law to attempt to suppress it-we do not think that particular weight should be attached to a previous record in imposing sentence in cannabis cases. They should be judged essentially on their own merits, and not invested with the seriousness which may carry over from other cases. It is using an offence about which there are reasons for serious misgiving to justify what amounts to further punishment for previous acts.
As will appear, we favour the abolition of the offence of simple possession, but we wish to make our position clear, that if it were to be retained in any form we would be strongly opposed to the retention of liability to imprisonment. We are strongly and unanimously of the opinion on the Commission that the simple possession of cannabis does not justify imprisonment in any circumstances.
It may be said that the severity of the law must be judged not by the maximum penalties on the statute book but by the manner in which the law is actually applied. Close to 80% of the cases of simple possession are disposed of by fine. Apart from importing or exporting, for which there is the mandatory minimum sentence of seven years, most of the sentences to imprisonment for trafficking offences involving cannabis are for periods under two years, and virtually all of them are under three years. In 1971 all sentences were under six years. It may be said that in these circumstances it is of no practical consequence that the law provides a maximum penalty of life imprisonment for trafficking offences and seven years' imprisonment for simple possession.
To this, certain things may be said in reply. First, there is no doubt that the maximum penalties on the statute book are intended to create an impression of relative seriousness which influences the sentencing process. The judges have said as much. (See, for example, R. v. Simpson,  2 O.R. 2 70; R. v. Perrin, (I 971), 14 C.R.N.S. 24.) Secondly, in the light of the wide disparity in the approach to sentencing which our study reveals, the present penalty structure gives the judges too large a discretion. In spite of the overall tendency towards more moderate sentencing in respect of cannabis, there are still cases of exceptional severity. If the overwhelming opinion, as reflected by the sentences, is that these maximum penalties are neither necessary nor appropriate, it is wrong in principle that they should be left on the statute book as a justification of severity by judges who are disposed to take that view. Finally, it would give the law a greater appearance of rationality, which has a bearing on the credibility and respect which it can inspire, if the maximum penalties more closely reflect the relative seriousness of the offences.
Another cost of the laws against cannabis is the extent to which there must be a departure from the ordinary rules respecting the burden of proof. This arises in the case of the offence of possession for the purpose of trafficking (See Chapter 5). This offence, which was introduced into Canadian law in 1954, has played an important role in law enforcement against trafficking. It accounted for over 40% of the convictions for trafficking offences in 1970 and over 50% of them in 1971. It is considered to be necessary because of the difficulty of apprehending persons in the act of trafficking or otherwise making the necessary proof of this offence. Similar provisions have been adopted in the United States and Great Britain. The disturbing aspect of the offence is the burden of proof which is cast upon the accused once the Crown has proved the fact of possession. As indicated in Chapter 5, since the decision of the Supreme Court of Canada in the Appleby case it would appear that it is no longer sufficient for the accused to raise a reasonable doubt concerning his intention to traffic; he must rebut the presumption by a preponderance of evidence or proof which carries on a balance of probabilities. This places a heavy burden on the accused. We shall have a recommendation to make on this point.
Encouraging the development of an illicit market. There is no doubt that the criminal law prohibition of distribution encourages the development of an illicit market, where, as in the case of cannabis, there is a significant demand for the product. This is an inherent cost of the prohibition of distribution. It means that a certain number of people will be encouraged to engage in the crime of trafficking and to make a profit from it. There is little evidence of organized crime being involved in the traffic in marijuana, although there is some evidence of it in connection with hashish. It is a reasonable assumption that a profitable illicit market will eventually attract organized criminal elements.
Obliging people to engage in crime or at least to deal with criminal types to supply themselves with the drug. This also is an inherent or unavoidable cost of a criminal law prohibition of distribution. It must be recognized that even if the prohibition against simple possession were repealed many users of cannabis would continue to have their conduct criminalized since, as part of the process of supplying their own requirements, they would be dealing with traffickers in amounts that would involve them in some redistribution. This is the operating and economic reality of cannabis distribution.
Exposing people to other, more dangerous, drugs by forcing them to have contact with traffickers who handle a variety of drugs. There is no doubt a good deal of truth in this point. Distributors of cannabis, particularly at the lower levels of distribution, generally carry other drugs because of the relativel ' y low profit to be made on cannabis at that level of distribution. Many professional distributors of cannabis also carry LSD and other psychedelic hallucinogens. Forcing users to have contact with them increases the chances of their being exposed to LSD. But even if cannabis were legally available, there would still be an illicit market in LSD which persons who wanted to try it could readily find. The use of cannabis itself, rather than contact with the distribution of LSD, is probably a more important step in the direction of LSD. Making cannabis legally available would not isolate people from contact with the illicit market in other drugs. From the point of view of influence, the important contacts are between drug users rather than between users and traffickers. Most users are initiated into new forms of drugs by other users. Interest in other drugs would not cease if cannabis were made legally available.
It is said that obliging users of cannabis to resort to an illicit market for supply forces them into a multi-drug-using subculture. Making cannabis legally available would not put an end to multi-drug use or the drug culture, nor would it put an end to contact between users of cannabis and users of other drugs. Users would continue to talk about drugs and share drug experiences. They would continue to arouse each other's interest in new drug experiences. The drug culture is pervasive. The important and influential contacts are between users. There is a great amount of multi-drug use. It is impossible to wall off one kind of drug use by making the drug legally available. There is no guarantee that people will restrict themselves to that drug. The legal availability of alcohol is proof of that. It has not prevented a great amount of multi-drug use, involving contact with an illicit market.
Encouraging the development of a deviant subculture. The argument here is that by making conduct criminal we tend to make people deviant and encourage them to engage in criminal activity. The reasoning is that we give them a certain conception of themselves and they tend to fulfil it. The attitude is: if I am going to be treated as a criminal then I am going to act like one. To the extent that there is truth in this argument, it is a cost that is inherent in criminal law prohibition. We doubt that it is true of most cannabis users, who do not exhibit a general pattern of criminality or delinquency.
Undermining the credibility of drug education and, in particular, information about more dangerous drugs. It is said that the present legislative treatment of cannabis undermines the credibility of drug education generally. The argument is that if the authorities have been so misleading about cannabis there is no reason to believe what they say about other drugs. It is difficult to know how much weight to give to this argument. There is undoubtedly some force in it. It can be met, we think, by a more rational legislative treatment of cannabis; again, we do not think it is necessary to go to the extent of making cannabis legally available.
Some will no doubt argue that as long as cannabis is treated differently than alcohol there is bound to be a question about the basic honesty of the law. It is argued that it is illogical that the criminal law should be used to prohibit the distribution of cannabis, while alcohol, which is at least as dangerous, is made legally available. First of all, let us concede two things immediately. Alcohol is one of the most dangerous drugs, when used to excess, and from everything we know now it is probably considerably more dangerous than cannabis, if only for its capacity to produce strong physical, as well as psychological dependence. Secondly, the anomaly in the legal treatment of cannabis and alcohol is not logical, if the criterion is consistency. But there is no virtue in pursuing an unwise policy merely to be consistent. The argument of consistency-because alcohol has been made legally available cannabis should be made legally available-would apply to the nonmedical use of all dangerous drugs, since few, if any of them, are more dangerous than alcohol when used to excess. It is alcohol which is the anomaly; not the other dangerous drugs whose distribution for non-medical use is prohibited.
The use of extraordinary methods of enforcement. Reference has been made in Chapter 5 to the extraordinary methods of law enforcement which must be resorted to because of the difficulty in detecting offences by reason of the fact that there is seldom, if ever, a complainant. The use of special methods of search, undercover agents and informers, and police encouragement of offences makes the impact of the criminal law process in this field particularly unpleasant and generates considerable resentment. It also tends to bring the law and police into some disrepute. Commission researchers who engaged in participant observation of law enforcement in the drug field have concluded that such enforcement would be seriously handicapped if the police were deprived of these special powers and methods. It would appear, therefore, that they must be regarded as special costs inherent in the criminal law prohibition of the distribution and use of drugs.
Creating disrespect for law and law enforcement generally. There is no doubt has created for a significant number of youth a disillusionment with law and legal institutions, as well as the processes of government generally. They have been disillusioned by the obstinacy in maintaining the present legal policy with respect to cannabis despite the evidence that it is not nearly as dangerous as the opiate narcotics and probably not as dangerous as alcohol. They believe that there must be something perverse and profoundly hostile in the official attitude towards cannabis. The situation has been made somewhat more tolerable by changes in judicial attitudes which have reduced the severity of the law as actually applied in practice. But many youth regard the law concerning cannabis as exhibiting an irrationality which amounts to dishonesty. There can be no doubt that the law on the books is at extreme variance with the facts. We believe that much of the strong feeling about the law could be removed by a change that would bring it into closer conformity with the facts. We do not believe that it is necessary to go to the extreme position of making cannabis legally available to remove the essential basis for disrespect for law and governmental process that may be fairly attributable to the laws on cannabis. It is sufficient to introduce a greater measure of rationality into the law.
Diverting our law enforcement resourcesfrom more important tasks. There is no doubt that the law against cannabis makes a disproportionate demand upon the time of police, prosecutors and judges. It is already imposing severe strains upon the system. An all-out attempt to enforce the prohibition against simple possession would impose intolerable strains upon it. Indeed, we could not afford the personnel required for it.
Adversely affecting the morale of law enforcement authorities. There is no doubt that the law on cannabis and the methods which have to be used to enforce it have affected public attitudes, in certain segments of the population, toward the police. It may well be, moreover, that the difficulty and the controversy involved in enforcing the law against cannabis have had an adverse effect on police morale. On the whole, it has been an unpopular law, although the police have probably felt, with some reason, that they have had the support of the majority of the population. But there has been profound misgiving about the reasonableness of the law-the appropriateness of the scale of penalties. Young people have been highly critical of the law and strongly opposed to it. The law enforcement authorities have been increasingly conscious of the fact that while cannabis is classed with the opiate narcotics it is not the same thing at all. The law has lacked credibility even for many of those who have felt an obligation to support it.
THE BALANCE OF BENEFIT AND COSTS
The Commission is required by its terms of reference to make recommendations to the federal government as to what it can do alone or with other levels of government to reduce the problems involved in non-medical drug use. The use of cannabis is a problem but so also is the present use of the criminal law to suppress it. The attempt to enforce the prohibition against the simple possession of cannabis, as well as the prohibition against distribution, is bringing the criminal law to bear against thousands of young people with very serious consequences for their lives. The number of convictions for simple possession has more or less doubled each year, rising from 431 in 1967 to 8,389 in 1971. It may be expected to continue to increase on this scale if we persist in a policy of attempting to enforce a prohibition against simple possession, even in a somewhat haphazard and necessarily uneven manner. Apart from its impact on thousands of young lives, such a scale of law enforcement will place an intolerable strain upon our resources, taking up an increasing amount of the valuable time of police, prosecutors and judges. It is already overburdening the system very severely.
We do not believe that the known, probable and possible effects of cannabis, and the marginal effect which a prohibition against simple possession may have on availability, perception of harm, and demand, justify these costs of continuing to attempt to enforce it against greatly increasing numbers of users, most of whom are under the age of twenty-five. It is simply not a feasible policy in the long run. The number of individuals involved, the difficulties of enforcement and the allocation of resources required to process the required number of cases are all too great to make a thorough-going enforcement of the law against simple possession practicable. The law is able to reach less than one per cent of a conservative estimate of the total number of users. Thus it can have little impact by virtue of the fear of detection. At the same time, it has very serious consequences for those who are unfortunate enough to be caught. A law which can only be enforced in a haphazard and accidental manner is an unjust law. It falls with great uneveness upon the population of offenders.
No doubt there would be some cost in abolishing the offence of simple possession. It would probably lead to some increase in use and some change in the perception of harm of cannabis, but these may be offset in some measure by retention of the prohibition against distribution and by information designed to make people more cautious about the use of cannabis. Use is in any event very widespread and steadily increasing. We do not think that the marginal effect which a prohibition against simple possession may have on demand justifies the costs of applying it against thousands of young people. Those we are most concerned about are the least likely to be impressed by the law, particularly by its moral command. Those who are impressed by its moral command, quite apart from the actual risk of detection, are likely to be prudent in any event, and probably will be as deterred by the disapproval implied in the prohibition against distribution and by reluctance to become involved in contacts with an illicit market. In any event, we feel that the costs Of continuing to enforce the prohibiton against simple possession, even on a scale required for a token effort, are such that we must accept the risks of some increase in use and some adverse effect upon perception of harm. We do not consider the latter possibility very serious, however, since it is clear that the law has had no serious effect on this issue. It has been too obviously at variance with the facts to carry any credibility. The actual perception of harm of cannabis is now so different from that which the law would suggest, that any change in the law could only be recognized as a belated recognition of the facts. It would not be interpreted as the law saying something new and hitherto unknown about cannabis, but the law being obliged to acknowledge what is actually known. The prohibition against distribution would serve to emphasize the continuing concern of the state.
We believe that on balance the marginal effect which a prohibition against distribution can have on availability justifies the costs of continuing to apply it. We recognize that numbers of young people will continue to be involved in trafficking if only as part of the process of supplying their own requirements. But the act of making cannabis available is more serious in our opinion than the act of using it, since it involves facilitating use by others, and there are fewer people affected by the application of the criminal law. In other words, a relatively more effective impact can be made on availability than upon demand with much fewer people adversely affected by the law. The benefit is proportionately greater in relation to the cost.
Certain changes in the law respecting distribution should be made, however, to make the law more reasonable in relation to the relative seriousness of the offence, while at the same time maintaining its essential deterrent effect, and also to give the courts more flexibility to deal with significantly different kinds of trafficking. The mandatory minimum sentence of seven years' imprisonment for importing or exporting should be removed. The maximum penalties for all distribution offences should be reduced to reflect the upward limits of the present range of sentences, as indicated in Chapter 5 and Appendix A. There should be the option to proceed by way of indictment or summary conviction in all cases. Cultivation should only be punishable if it is for the purpose of trafficking. To reduce the impact of the law against trafficking on the young to what is reasonably necessary, there should be excluded from the definition of trafficking the giving without exchange of value by one user to another of a quantity of cannabis which could reasonably be consumed on a single occasion. It is necessary to retain the offence of possession for the purpose of trafficking, with a burden of proof upon the accused, but it should be sufficient for the accused to raise a reasonable doubt concerning his intention to traffic.
The elimination of the offence of simple possession, the restriction of the offence of cultivation to cases where it is cultivation for the purpose of trafficking, and the exclusion of sharing of cannabis from the definition of trafficking may all entail the additional cost of an adverse effect upon the effectiveness of law enforcement against trafficking, but we believe that it is a cost which we must accept in view of the costs of pursuing a different policy on these issues.
In our Interim Report we said that we wished to give further consideration to the relationship of the offence of simple possession to effective law enforcement against trafficking. We have done this to the best of our ability, but we are not really able to throw more light upon the issues than we were at the time of the Interim Report. There is no empirical way of testing the truth of the assertion that an offence of simple possession is essential to effective enforcement against trafficking. There is no offence of simple possession for the controlled drugs (the amphetamines and barbiturates), but it is impossible to estimate the effect which this has had on the effectiveness of law enforcernent against trafficking in these drugs, particularly in the case of 'speed'. It is also impossible to compare the relative effectiveness of law enforcement in the case of controlled drugs and cannabis, since there is such a variety of different factors involved. The police insist, however, that they have been greatly handicapped by the lack of an offence of simple possession for controlled drugs. In further submissions to the Commission since its Interim Report the R.C.M. Police have stated that an offence of simple possession is essential to the control of availability. The chief utility of the offence of simple possession in relation to trafficking is that it reduces the risk of proceeding on a charge of possession for the purpose of trafficking, since if the Crown fails to prove that charge, it can fall back on the offence of simple possession, and it enables the authorities to reach offenders whom they know, but cannot prove, to be engaged in trafficking. We do not think that this marginal utility in relation to the offence of possession for the purpose of trafficking justifies the costs of retaining the offence of simple possession. Nor do we think it is likely to have much deterrent effect on traffickers, since they are unlikely to be impressed by the scale of penalties which we would judge to be acceptable for the offence of simple possession if it were to be retained. In other words, it would not be acceptable to make the offence of simple possession subject to sufficiently severe penalties to deter trafficking.
SUMMARY STATEMENT OF CONCLUSIONS AND RECOMMENDATIONS
1. Although research has not clearly established that cannabis has sufficiently harmful effects to justify the present legislative policy towards it, there are serious grounds for social concern about its use, and this concern calls for a continuing police to discourage its use by means which involve a more acceptable cost, than present policies, to the individual and to society.
The focus of our social concern should be the use of cannabis by adolescents, and the principal object of our social policy should be to restrict its availability to them as much as reasonably possible by the methods which appear to be most acceptable on a balance of benefits and costs.
The only policy which can impose a significant restriction on availability is a prohibition of distribution. Under a system of administrative regulation or licensing, availability would be virtually unrestricted. A policy of making cannabis available to adults would have the effect of making it more available to minors. This is the lesson of our experience with alcohol. It would also make cannabis appear to be relatively harmless. Further, there is no reason to believe that we could effectively control potency and encourage moderate use by a system of administrative regulation or licensing. People will consume the quantities they require to achieve the desired level of potency or they will seek more potent forms, if necessary in the illicit market. Moreover, our present knowledge about cannabis would not permit a policy of legal availability that could be accompanied by suitable assurances as to what might constitute moderate and relatively harmless use
4. The costs to the individual and society of maintaining a prohibition of distribution are severe but they are justified by the probable effect of such a prohibition on availability and perception of harm, in contrast to the likely effect on both of a policy of legal availability.
5. The costs of a policy of prohibition of distribution are only acceptable, however, if the possible penalties for illegal distribution are reasonable in relation to the relative seriousness of the offence. Having regard to thc potential for harm of cannabis in relation to other drugs, the extent to which young people are involved in its distribution, and the general level of penalties in other countries, the present penalty structure for the illicit distribution of cannabis is grossly excessive. In some cases it does not leave the courts sufficient discretion, and in others it leaves them too much.
6. We recommend the following changes in the law respecting the illegal distribution of cannabis:
(a) Importing and exporting should be included in the definition of trafficking as they are under the Food and Drugs Act), and they should not be subject to a mandatory minimum term of imprisonment. It might be appropriate, however, to make them subject to somewhat higher maximum penalties than other forms of trafficking.
(b) There should be an option to proceed by indictment or summary conviction in the case of trafficking and possession for the purpose of trafficking.
(c) Upon indictment, the maximum penalty for trafficking or possession for the purpose of trafficking should be five years, and upon summary conviction, eighteen months. It should be possible in either case to impose fine in lieu of imprisonment.
(d) In cases of possession for the purpose of trafficking it should be sufficient, when possession has been proved, for the accused to nise a reasonable doubt as to his intention to traffic. He should not be required to make proof which carries on a preponderance of evidence or a balance of probabilities.
(e) Trafficking should not include the giving, without exchange of value, by one user to another of a quantity of cannabis which could reasonably be consumed on a single occasion.
7. The costs to a significant number of individuals, the majority of whom are young people, and to society generally, of a policy of prohibition of simple possession are not justified by the potential for harm of cannabis and the additional influence which such a policy is likely to have upon perception of harm, demand and availability. We, therefore, recommend the repeal of the prohibition against the simple possession of cannabis.
The cultivation of cannabis should be subject to the same penalties as trafficking, but it should not be a punishable offence unless it is cultivation for the purpose of trafficking. Upon proof of cultivation, the burden should be on the accused to establish that he was not cultivating for the purpose of trafflcking, but it should be sufficient for him, as in the case of possession for the purpose of trafficking, to raise a reasonable doubt concerning the intent to traffic.
9. The police should have power to seize and confiscate cannabis and cannabis plants wherever they are found, unless the possession or cultivation has been expressly authorized for scientific or other purposes.
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Canadian Government Commission of Inquiry - Cannabis Report