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|Major Studies of Drugs and Drug Policy|
|Canadian Senate Special Committee on Illegal Drugs|
|Volume 2 - Policies and Practices In Canada|
Chapter 12 - The National Legislative Context
The special report on cannabis
presenting their recommendations in connection with a new public policy on
cannabis, the Commissioners made a number of observations about Canadian
While the Commissioners agreed with
these observations, their conclusions and recommendations were not unanimous.
The majority opinion – the recommendations of Gerald Le Dain, Heinz Lehman and Peter Stein
In order to explain the underlying
reasons for their recommendations, the majority based their conclusions on the
concept of harm, considering this the most useful criterion for laying down a
new social policy for cannabis. This principle is associated both with the harm
caused to an individual who uses a harmful substance, particularly his physical
or mental health, and with the harm the individual causes to society, i.e. the
impact on his family and colleagues. The concept of harm was of significance to
the majority, since it made it possible to assess whether society should be
concerned about the adverse effects of cannabis on human health and on society
and, if such were the case, to what extent should criminal law apply in order
to reduce those adverse effects. Should one criminalize simple possession of
cannabis or only trafficking? Should measures such as decriminalisation or
legalization be considered?
Initially, the majority wanted to eliminate some of the myths about the danger of cannabis:
The evidence of the potential for harm of cannabis is far from 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. […] 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. <![if !supportFootnotes]><![endif]>
the amotivational syndrome, the Commission said it did not have conclusive data
about personality change.
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.<![if !supportFootnotes]><![endif]> In our opinion, these concerns justify a social policy designed to discourage the use of cannabis as much as possible, particularly among adolescents. <![if !supportFootnotes]><![endif]>
The Commission did not have specific and conclusive scientific data to identify the harmful or beneficial effects of cannabis. On the other hand, while it believed that the dangers of cannabis (particularly those involving operation of a motor vehicle, poly‑drug use, long-term mental deterioration and disorder, and criminality) were exaggerated, the Commission recognized that cannabis, like all other drugs, can have particularly harmful effects when it is used along with other drugs and that its use by adolescents could have a harmful effect on their maturation. The majority of members explained that, even if the use of cannabis is not a threat to the foundations of Canadian society or to our system of values based, for example, on a productive life, this element could not be excluded from the formulation of a new policy on cannabis.
since, in addition to health problems, cannabis use entails significant costs
to the family, to society and to the economy, the majority justified the use of
the criminal law, stating:
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 […] where, in its opinion, the potential for harm appears to call for such a policy. <![if !supportFootnotes]><![endif]>
For this reason, the majority rejected a public policy model based on legalization of the use and distribution. Even if legalization would have had the benefit of better controlling supply and quality, without a considerable increase in the number of long-term users, it could have led to some users moving on to hashish, with its higher concentration of THC, or encouraged users to smoke more marijuana or other cannabis products in order to obtain the desired psychoactive effect, and this would have cancelled out the effectiveness of control measures and increased the likelihood of abuse. <![if !supportFootnotes]><![endif]>
the majority recommended maintaining the offences of cannabis trafficking, of
possession of cannabis for the purpose of trafficking, and importing and exporting
cannabis. However, it adopted a much more liberal position with regard to
controlling the demand:
The criminal law should not be used for the enforcement of morality without regard to potential for harm. […] 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. <![if !supportFootnotes]><![endif]>
In this context, the majority felt it was necessary to amend the Narcotic Control Act, because “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.”<![if !supportFootnotes]><![endif]> It was necessary to restore Canadians’ confidence in and respect for the cannabis policy by reclassifying the drugs listed in the appendix to the Act, particularly cannabis. The majority opinion was based on the fact that:
While the Single Convention groups cannabis with the opiate 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 [to the law]. <![if !supportFootnotes]><![endif]>
Restoring Canadians’ confidence in the Narcotic Control Act also involved a comprehensive review of criminal penalties relating to cannabis. To justify this view, the majority pointed out that the harm caused by the criminal law, particularly on mere users, was more serious than the harm to their health and their environment caused by using the drug. In its analysis, the majority focussed on the consequences of sentences on young people, since over 85% of those convicted for cannabis possession or trafficking in 1970 and 1971 were under the age of 25.
A criminal record could have serious
consequences for the future of young people, limiting the right to travel, and
because of the family, social or professional stigma it caused. The majority
were of the view that the possibility of obtaining a pardon is not sufficient
to resolve this situation, since: “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.” <![if !supportFootnotes]><![endif]>
In fact, the Criminal Records Act provides only for
removing information about the criminal record stored in national police files
following a pardon, but not information in police investigation reports, or in
legal documents stored in the law courts about the trial and the sentence, let
alone newspaper articles.
Moreover, the majority of members
deplored the extreme severity of sentences for cannabis use, stating, “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.”<![if !supportFootnotes]><![endif]> It disapproved of the maximum
penalty of seven years' imprisonment for cannabis cultivation for one's own
use, the mandatory minimum penalty of seven years' imprisonment for cannabis
importing or exporting, as well as the possibility of life imprisonment for
cannabis trafficking. The majority’s criticism also covered the definition of
trafficking, which included giving or offering, so that people who are merely
passing a joint among friends in an evening could be charged with trafficking.
The majority also mentioned that these sentences were made even more severe
criminalization of cannabis had another negative effect: the illegal nature of
simple possession and cultivation was conducive to the development of an
illicit market, where some people must engage in crime or at least deal with
criminals in order to obtain a supply. In some cases, people were exposed to
other, more dangerous drugs. According to the majority:
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. <![if !supportFootnotes]><![endif]>
Finally, the use of extraordinary police powers, such as writs of assistance, often against users, only discredited the law further and adversely affected the morale of law enforcement authorities.<![if !supportFootnotes]><![endif]>
For all these reasons, the majority
Opinion–the recommendations of Marie-Andrée Bertrand
According to Marie-Andrée Bertrand, Canada’s cannabis policy required an in-depth reform that went far beyond merely amending the Narcotic Control Act. Dr. Bertrand took a much more liberal approach than the majority, and particularly Ian L. Campbell, as we will see below. Dr. Bertrand wrote that the Commission’s research findings “establish that a large number of people have used cannabis-more than a million in Canada. Very few of them have ever required medical or psychological treatment as a consequence. Smoking marijuana or hashish generally produces no serious personal problems, nor does it result in criminality.”<![if !supportFootnotes]><![endif]> Cases of habitual and excessive use were exceptional, as most users used cannabis recreationally. Any new public policy aiming at controlling cannabis use effectively without causing harm both to users and to society should consider these determinants. The use of the criminal law was out of the question. According to the Commissioner, there were several arguments in support of this conclusion.
Like the majority, she rejected a number of prejudices concerning harm caused by cannabis to human health, in particular its effects on brain activity and the ability to drive a vehicle, but recognized nevertheless that in large amounts cannabis could cause psychoses. While Marie-Andrée Bertrand commented that cannabis might have an effect on adolescent maturation, she said that very few facts supported the hypothesis put forward by the majority.<![if !supportFootnotes]><![endif]> She also concluded that there was no relationship between cannabis use and criminality, aggression or the infamous amotivational syndrome.<![if !supportFootnotes]><![endif]> Moreover, she rejected claims that cannabis use leads to poly-drug use in most users:
[…] a certain proportion of cannabis users take other drugs […]. We are not dealing with a phenomenon that is limited to cannabis, LSD and the amphetamines (which are used in combination by only a few), but with an almost indiscriminate use of mood-changing substances in our society. When we include alcohol, it can be said that Canadians consume great quantities of a variety of psychoactive drugs, even if cannabis is excluded.<![if !supportFootnotes]><![endif]>
Second, users could not be sure of the quality of cannabis they bought, with all the concomitant repercussions, given the illicit and clandestine nature of production and distribution activities. Dr. Bertrand responded to the argument made by the majority that quality control of cannabis in a legal market would encourage a number of users to move to hashish by saying that no evidence points to such a possibility.<![if !supportFootnotes]><![endif]>
Third, the prohibition of cannabis trade and illicit use was expensive and ineffective. Attempts to curb trafficking, despite all the efforts made by RCMP officers and municipal police forces, along with severe penal sanctions, were ineffective. The sentences provided for simple possession no longer had any dissuasive effect, since a million Canadians were using or had used cannabis.
Fourth, in its current form, the law had no educational or dissuasive impact, since Canadians’ perception of the harm caused by cannabis was no longer the same as the government’s. In this connection, Marie-Andrée Bertrand wrote:
A more important factor underlying problems in the application of the law is the gradual change in opinion taking place among Canadians regarding the harmfulness of this substance. The evidence has been taken into account - cannabis is not an opiate, its use does not induce physical dependence. The earlier opinions of society have been challenged and modified. […] However, the continued prohibition of cannabis has precipitated, among many users, a generalized disrespect for the law. <![if !supportFootnotes]><![endif]>
For all these reasons, Marie-Andrée Bertrand recommended a “controlled legalization” policy for cannabis. She concluded that the federal government should remove cannabis from the Narcotic Control Act and initiate discussions with the provinces to have the sale and use of cannabis placed under controls similar to those governing the sale and use of alcohol. Such a system would entail regulations prohibiting the sale or distribution of cannabis to minors, and governing the distribution of a quality product at a price that would make smuggling impractical. To guarantee the success of the new approach, the federal and provincial governments were to work together in developing all stages of the production and distribution of cannabis, while undertaking multidisciplinary epidemiological research to evaluate the repercussions of a controlled legalization policy on health and human behaviour and to monitor patterns of use.<![if !supportFootnotes]><![endif]>
Lastly, Marie-Andrée Bertrand considered that this policy would prove beneficial, not only for users, but also for the federal and provincial governments because of the considerable revenue they might well derive from the sales taxes on such a popular product.<![if !supportFootnotes]><![endif]>
Opinion–the recommendations of Ian Campbell
In comparison with the very liberal recommendations made by Marie-Andrée Bertrand, the recommendations by Ian Campbell were much more conservative in tone. Although he was in almost full agreement with the conclusions of the majority, he firmly believed that decriminalizing simple possession of cannabis would be misinterpreted by the media and by Canadians. If cannabis were legalized, the signal that would be sent out to society, particularly to young people, would be that cannabis is harmless, and might eventually lead to the accepted use of other, much more dangerous drugs. In this regard, he stated that, in both cases:
I think there is also a risk that the repeal of the prohibition on the possession of cannabis, even by the young, would be misunderstood as indicating a willingness by the society to condone and accept the use of the drug. There is little evidence to suggest that such a willingness exists. […] The risk of such progression is probably not as great among those who have been deterred from use by the present law as among those who have already used cannabis. But the risk of progression is nonetheless real for some considerable number.<![if !supportFootnotes]><![endif]>
He also felt that maintaining the prohibition had a positive benefit–that of protecting young people from the harm caused by cannabis:
The potential for harm from adult use of cannabis is probably very much less than from use by the young. But, I find sufficient reasons to recommend the continuation of the general prohibition. Not the least of these reasons is the practical impossibility, at this time, of using the law to convey a perception of the dangers of cannabis without maintaining the prohibition for all, whether young or old. <![if !supportFootnotes]><![endif]>
Against this backdrop, the law was in the interest of prevention and morality, protecting as it did both individuals and society. Continuing in this vein, Mr. Campbell spoke about cannabis and young people’s lack of maturity, saying:
We have properly been concerned about the damage done by placing too many duties and responsibilities on the individual too early. But it seems to me that recently we have been far too little concerned with the consequences of placing too many rights and freedoms on the shoulders of the young. <![if !supportFootnotes]><![endif]>
Despite it all, like other members
of the Commission, Mr. Campbell recognized that some penal sanctions provided
by the law could cause harm that was disproportionate in comparison with the
real harm caused by cannabis on human health and society. He therefore
recommended that the prohibition on the possession of cannabis be maintained,
with possession of cannabis being punishable, upon summary conviction, by a
fine of $25.00 for the first offence and a fine of $100.00 for any subsequent
offence. Maintaining the prohibition would benefit not only users, but also
police officers, since it:
entirely reasonable to assume that a high proportion of those currently
arrested for possession as a result of systematic police investigation are in
fact guilty of trafficking. <![if !supportFootnotes]><![endif]>
The work of the Le Dain Commission
ended on December 14, 1973 when its final report was tabled. On July 31, 1972,
John Munro, Minister of Health, revealed the policy that the federal government
wanted to pursue following the tabling of the Commission’s special report on
cannabis. Even though he refused to legalize the use of cannabis, the Minister
stated his intention to remove cannabis from the Narcotics Control Act and place it under the Food and Drugs Act. This measure would be accompanied by lighter
sentences for certain cannabis-related offences, research and education
programs about its non-medical use, and less severe legal consequences for
users. This measure would have covered hashish since the government “wanted to make a clear distinction between
this drug [cannabis] and dangerous narcotics like heroin.”<![if !supportFootnotes]><![endif]>
Two years later, on
November 26, 1974, the federal government met its commitments by tabling Bill
S-19 in the Senate.
<![if !supportEmptyParas]> <![endif]>
<![if !supportEmptyParas]> <![endif]>
<![if !supportFootnotes]><![endif]> Le Dain, G. et al., (1972) Cannabis: A Report of the Commission of Inquiry into the Non-Medical Use of Drugs, Ottawa : Government of Canada, page 230.
<![if !supportFootnotes]><![endif]> Ibid., page 239.
<![if !supportFootnotes]><![endif]> Ibid., page 245.
<![if !supportFootnotes]><![endif]> Ibid., pages 248-249.
<![if !supportFootnotes]><![endif]> Ibid., page 249.
<![if !supportFootnotes]><![endif]> Ibid., pages 266-267.
<![if !supportFootnotes]><![endif]> Ibid., page 270.
<![if !supportFootnotes]><![endif]> Ibid., page 274.
<![if !supportFootnotes]><![endif]> Ibid., page 281.
<![if !supportFootnotes]><![endif]> Ibid., pages 283-286.
<![if !supportFootnotes]><![endif]> Ibid., page 282.
<![if !supportFootnotes]><![endif]> Ibid., page 291.
<![if !supportFootnotes]><![endif]> Ibid., page 292.
<![if !supportFootnotes]><![endif]> Ibid., page 293.
<![if !supportFootnotes]><![endif]> Ibid., page 293.
<![if !supportFootnotes]><![endif]> Ibid., page 296.
<![if !supportFootnotes]><![endif]> Ibid., pages 295-299.
<![if !supportFootnotes]><![endif]> Ibid., page 303.
<![if !supportFootnotes]><![endif]> Ibid., page 308.
<![if !supportFootnotes]><![endif]> Ibid., pages 307-309.
<![if !supportFootnotes]><![endif]> Ibid., page 308.
<![if !supportFootnotes]><![endif]> Ibid., page 309.
<![if !supportFootnotes]><![endif]> Ibid., p. 304
<![if !supportFootnotes]><![endif]> Ibid., pp. 310-311
<![if !supportFootnotes]><![endif]> Ibid., p. 304
<![if !supportFootnotes]><![endif]> Ibid., page 311
<![if !supportFootnotes]><![endif]> Ibid., page 313
<![if !supportFootnotes]><![endif]> Ibid., page 314
<![if !supportFootnotes]><![endif]> Ibid., page 316
<![if !supportFootnotes]><![endif]> VALOIS, Donat, “La
marijuana et le haschisch ne seront pas légalisés”, Le Droit, Ottawa, August 1, 1972.
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