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|Major Studies of Drugs and Drug Policy|
|Canadian Senate Special Committee on Illegal Drugs|
|Volume 3 - Public Policy Options|
Chapter 21 - Public policy options
So what do we do with the legislation? Legislation stems from public policy direction, which it supports and completes; it is a means, not an end.
Cannabis debates are highly contaminated by discussions on decriminalization, depenalization, legalization. The terms are frequently poorly understood, especially as they are not necessarily clear. This section defines each key term in the debate and suggests indicators that can be used to assess each option.
Clarification of terminology
Decriminalization or depenalization
The United Nations Drug Control Programme (UNDCP) glossary of terms on drugs gives the following definitions of the two terms.
Decriminalization or depenalization
Removal of penal controls and criminal sanctions in relation to an activity, which however remains prohibited and subject to non-penal regulations and sanctions (e.g., administrative sanctions such as the removal of driving licence).
Under the “prohibition with civil penalties” option, the penalties for the possession of amounts of drugs deemed in law as being for personal use are still illegal but are dealt with by civil sanctions such as infringement notices which attract a monetary penalty, rather than by criminal sanctions such as a criminal record or imprisonment. Typically, the harsher criminal penalties still apply to the more serious offences of possession, supply, manufacture or cultivation of amounts of the drug deemed in law to be for trafficking or commercial purposes.<![if !supportFootnotes]><![endif]>
For Caballero and Bisiou, depenalization means essentially removing drugs from the field of criminal law. They distinguish between total depenalization and depenalization of use.<![if !supportFootnotes]><![endif]> The first removes all control except free-market forces. This is a far cry from the UNDCP definition. Depenalization of use corresponds more closely to decriminalization as defined by UNDCP. It is also the definition given by the European Monitoring Centre for Drugs and Drug Addiction.
Possessing or holding cannabis for personal use has been decriminalized in Germany, Australia, Spain, Italy, Portugal, the Netherlands, and some American states. The resemblance ends there because each country has slightly different way of reaching the goal. In Australia and the American states where possession of cannabis has been decriminalized, possession remains illegal and subject to a fine. In Germany, the constitutional court has ruled that prosecution for possession of small quantities of cannabis contravenes basic rights and is unjustified. In Spain and Italy, possession of small amounts of cannabis is not an offence and consumption is authorized except in public places. However, as in Portugal, individual possession of cannabis is subject to an administrative penalty (fine in Spain and Portugal; suspended licence in Italy).<![if !supportFootnotes]><![endif]>In the Netherlands, the possession offence has never been repealed, although use and certain types of sale (coffee shops) are tolerated.
In all cases, decriminalization is partial. It is sometimes de jure (Spain, Italy, Portugal) and sometimes de facto (the Netherlands, Denmark).
In Canada, some authors have written in favour of decriminalizing cannabis. One of the best known papers on this option may be that published by the policy committee of the Canadian Centre on Substance Abuse.<![if !supportFootnotes]><![endif]> The authors identify four options for decriminalization:
In Quebec, the Comité permanent de lutte àla toxicomanie (CPLT) has made a recommendation proposing diversion measures when deemed appropriate by the authorities.<![if !supportFootnotes]><![endif]>The CPLT defines diversion as the “exercise, by the Crown prosecutor, of a discretionary power enabling him to desist from prosecuting the offender and instead apply alternate measures” [Translation].<![if !supportFootnotes]><![endif]>However, diversion may be given a broader definition, in which the discretionary power is exercised by the police prior to a charge, giving a consumer a simple warning. The CPLT opinion notes the following.
This timid recommendation refuses to take a systematic approach and even links cannabis consumption to delinquent or criminal activities, relating risk to consumption of products with a high THC concentration, as if consuming spirits should be subject to stronger measures than drinking wine.
The term “decriminalization” is obviously loaded with contradictions. Even though the term purports to remove it from the ambit of criminal law, cannabis consumption remains illegal. The sanction may be less severe, but a sanction still applies, one that, in some cases, can have the same impact as a criminal sanction and entail even greater discrimination: a young or disadvantaged person unable to pay the fine faces a far greater risk of ending up in prison than an adult or socially secure individual. As explained to the Committee by Dr. Kendall:
However, a cautionary note should be sounded. If Canada did adopt this recommendation, we should be concerned and thus take steps to avoid the situation in Australia, or to repeat that situation, where the imposition of a cannabis expiation program actually led to a net widening effect, because the police now ticketed individuals that they had previously ignored. Many of those so ticketed failed to appear to pay their fines, and subsequent numbers entered the criminal justice system for non-payment of fines and subsequently received criminal convictions. There was an unintended result in that the number of persons criminalized is as large, or perhaps larger, than before the measure was implemented.<![if !supportFootnotes]><![endif]>
In spite of its merits and success, the Dutch system of controlled cannabis sale, a form of de facto decriminalization, has no way of regulating production and distribution, which is still controlled at least in part by organized crime, or exercising quality control, specifically the concentration of THC.
In the opinion of some authors, decriminalization is in fact simply less severe prohibition.<![if !supportFootnotes]><![endif]>In other words, in the guise of a socially responsible and rational measure, decriminalization in fact furthers a prohibitionist logic. Same grounds, different form. This model has no greater capacity for prevention or education than a strict prohibition model. Even worse, the prohibition model is based on clear and consistent theory, whereas the same cannot be said of decriminalization as an approach.
Some will say that decriminalization is a step in the right direction, one that gives society time to become accustomed to cannabis, to convince opponents that chaos will not result, to adopt effective preventive measures. We believe however that this approach is in fact the worst-case scenario, depriving the State of a regulatory tool needed in dealing with the entire production, distribution, and consumption network, and delivering a rather hypocritical message at the same time.
The United Nations glossary of terms defines this term as follows.
Removal of the prohibition over a previously illicit activity, e.g., non-medical trade or consumption of psychoactive substances. It does not necessarily imply the removal of all controls over such activity (e.g. restriction on sale to minors). <![if !supportFootnotes]><![endif]>
The term “legalization” is equivalent to Caballero and Bisiou’s concept of depenalization, although it does not rely solely on market forces but includes a form of regulation entailing some restrictions. To quote:
Controlled legalization is a system that aims to replace existing prohibition of drugs by regulation of their production, trade, and use with a view to restricting abuse that can damage society (…) unlike depenalization, penal law retains its role in preventing damage to third parties by users (drunkenness) or producers (contraband). [Translation]<![if !supportFootnotes]><![endif]>
No system for controlled legalization of cannabis currently exists. Switzerland comes close with its bill to amend the Loisur les stupéfiants. This type of regulation is nothing new: colonial opium and kif regulatory bodies operated well into the first half of the twentieth century.
Conversely, legalized systems exist for the manufacture, distribution, sale and production of such products as alcohol, tobacco, and psychotropic medications. These could be used as a model for regulating the cannabis production chain.
The United Nations glossary of terms defines regulation as follows:
The rules governing all aspects of drug control promulgated pursuant to legislation. Violation of these rules may attract criminal or non-criminal penalties, such as fines and license suspension, depending on the seriousness and the intentional nature of the violation.<![if !supportFootnotes]><![endif]>
Although one may play with words, regulation is in fact a necessary application of any form of control, whether within a system of prohibition or a system of legalisation. All consumer products, from the automobiles we drive to the food we eat, are subject to some form of regulation. Quality control, environmental standards, compliance with industrial standards, regulations on accessibility—all are forms of regulation essential for ensuring no one is poisoned by the food they eat, drives a defective vehicle, or plugs in a dangerous appliance.
Regulation is the most current form of government control; criminal law usually intervenes when the controls fail or mandatory standards are not met.
The same is true of the current international system for controlling narcotics. Canadian legislation deals with “controlled” substances. The control system may range from prohibition of all non-medical and non-scientific use (e.g., opium, cocaine, cannabis), to less severe control measures that allow accessibility to products deemed dangerous, under specific conditions.
Classification of legal policy systems
MacCoun, Reuter and Schilling examine various systems of legal policy, which they divide into three main types: prohibitionist, controlled access, and regulated access, each of which can be broken down further. Their classification system is reproduced below.<![if !supportFootnotes]><![endif]>
Prohibitionist systems vary along a number of lines: based on the nature of prohibited activity (e.g., possession, use, use in public); based on the severity of sanctions (civil penalty, criminal penalty, imprisonment); based on the severity of enforcement (resources, priorities); and based on the capacity to exercise discretionary power (diversion, alternative measures). This makes it clearer why decriminalization remains in essence a prohibitionist approach, albeit a less severe one.
Controlled access systems are in a grey area somewhere between prohibition and regulation. In some ways, they are more like prohibition models, particularly by giving powers of decision to a physician or pharmacist rather than promoting individual user responsibility. This is the medical model criticized by Szasz, Caballero and, closer to home, Malherbe, in his discussion paper on the role of ethics and public health. One can see why harm reduction approaches belong in this grey area, somewhere between prohibition and regulation, with the prescription of methadone or heroine for treating addiction the perfect example of medical power.
The third type is the regulatory model that exercises various types of control on who (who may purchase, restrictions on minors), what (different accessibility levels for different substances), how (point of sale, location, requirement for producers and vendors) and when (time of day, days of the week).
Pure prohibition : no use possible (i.e., cannabis)
Prohibitionist prescription : medical and scientific purposes only
Treatment : prescription for the treatment of dependency (i.e.,methadone)
Regulated prescription : auto administration under prescription to treat medical conditions (i.e, Valium)
Positive licensing : available to any adult with a licence to demonstrate his capacity to make responsible use
Negative licensing : accessible to any adult who has not violated some condition (i.e., criminal behaviour)
Free market for adults : similar to alcohol
Free market : no regulation (i.e., coffee).
In our opinion, there are basically only two systems: a prohibition system and a legalization system. Both rest on regulation, and the nature and direction of this regulation determines their specific features.
Prohibitionist systems may be subdivided into criminal and medical prohibition. In the first case, sometimes referred to as outright prohibition, the justice system (police and the courts) is central. In the second, the physician is the key player. In both cases, the user is considered a “minor”, a person in danger who must be protected from himself. Some call this legal paternalism. Both variations can be more or less strict, more or less severe, but rest on the concept that all use that poses a danger to the user and society and must be strictly controlled. In this scenario, decriminalization of use is a weak variation of prohibition, in the long run entailing more disadvantages than advantages. In addition to failing to affect the production chain and retaining the illegal aspect, it leaves no room for dispensing information to and promoting responsible behaviour by users, or for strong preventive measures. Conversely, the harm reduction approach is a strong variation of a prohibition system. While this approach recognizes the impossibility of eliminating the damage done by market criminalization, it seeks nonetheless to reduce the negative effects of prohibition on users, who are the focus of its main thrust, by introducing education on drug content (for example, analysis of ecstasy consumed at raves).
Police / Justice
Prohibition of fabrication, cultivation, production, sale, trafficking, use and consumption
Decriminalization of use with criminal process / diversion
Recognized therapeutic uses only
Treatment for dependency
General prescription by a physician
A prohibition system, whether criminal or medical, calls for regulation derived from criminal law: any interaction with drugs that is not authorized under the medical model is punished by a criminal or quasi-criminal penalty.
The other type of system rests on legalization of cannabis. It can also take various forms.
Degree of control
Licence for production / distribution / sale
Legalization systems range from issuing a user licence under certain conditions (e.g., no criminal record, no dependency problems), to permitting a completely uncontrolled free market.
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