LPPANS: “Cannabis Legalization · •Message which devalue drug participants caused amnesia among...
Transcript of LPPANS: “Cannabis Legalization · •Message which devalue drug participants caused amnesia among...
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LPPANS: “Cannabis Legalization:
Community Impacts”
November 22, 2017
THE WAR ON DRUGS AND THE
PARTIAL CEASEFIRE OF CANNABIS
LEGALIZATION: ENSURING
CONSISTENT REGULATION
H. Archibald Kaiser
Professor, Schulich School of Law
Dalhousie University
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Modern Limits of the Criminal Law in Canada
Restraint as a Common Theme
The Ouimet Report (1969)
• Using the criminal law “to control anti-social behaviour should be a last step”
The Law Reform Commission of Canada (1976)
• Criminal law is a “blunt and costly instrument”
• “Used as little as possible”
Government of Canada Statement: “The Criminal Law in Canadian Society” (1982)
• Confine the criminal law to “conduct for which other means of social control are
inadequate or inappropriate”2
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Anchoring Canadian Drug Policy in the Criminal Law
• Prior legal laissez-faire attitude had ancient foundations
• Drugs were used for pain relief; relaxation; physical stimulation; spiritual
enhancement; food source; a means of exchange and a source of economic activity
• Criminalization is a relatively recent phenomenon
• Until the early 1900’s, even opiates were unregulated
• Alcohol and tobacco were considered to be more severe threats to public health
and morals
• The twentieth century use of the criminal law to control psychoactive substances:
• Not the last step
• Not an unavoidable necessity:
• Drugs could have been controlled, in part by social forces and regulatory law
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The Rise of Regulation after 1900: The Gradual Embrace of the Criminal Law
• New or invigorated notions of restraint and sobriety, in part religiously fuelled
• Redefinition of some substances as evil, addictive, productivity-sapping, unhealthy and
degenerate
• Racial discrimination and political scapegoating propelled criminalization, forces
which endure
• Canada marched in lockstep with the world stage
• A signatory to the International Drug Control Conventions
Criminalization Creep in Canada
• The Opium and Drug Act
• Opium prohibited in 1908;
• Cocaine in 1911;
• Marijuana 1908 to 1923
• New waves of more punitive legislation followed with regularity 5
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Ongoing Discrimination in the War on Drugs
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The War on Drugs: Oxygenating the Criminal Law
• In the 1980’s, Canada , like many other nations, subscribed to a war agenda
• Even Canadian courts seem to have been swept up in this metaphor
• War was declared before other options were explored
• What may have started as a metaphor was transformed to:
• “a very real and deadly global military and law enforcement offensive”
(Ben Mostyn, et al.)
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Problems with the War Ethos
• What is the true “enemy”?
• Where is the tabulation of the cost?
• Is the scope of the war contained or is it widening?
• How is progress being assessed?
• What is the exit strategy?
• How can collateral damage be reduced?
• What is the place of evidence and analysis?
• Does the war sensibility encourage delusion rather than clarity of observation and
reality testing?
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The Futility of the War on Drugs
• Prohibition was intended to reduce supply and demand
• No appreciable gain on either front
• Supply largely unimpeded
• Production has increased
• Prices have declined
• Potency has been upgraded
• Demand relatively stable
• Roughly as many users now of cocaine and heroin
• More cannabis users
• “Canadian illicit drug market has remained relatively
stable” (RCMP, 2009)
• Despite the enormous investment by the justice system
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The Effects of Overgeneralizing and Mislabeling
• Users are “blamed for their own economic, health and criminal problems”
• Without “exploring the state’s responsibilities”
(Edgar-André Montigny)
• Demonization fuels more aggressive criminalization
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Intrusion Upon Decision-Making of Adults
• Liberty and autonomy are important
• Liberty “more than freedom from physical restraint …”
• “the right to an irreducible sphere of personal autonomy wherein individuals may
make inherently private choices free from state interference”
(Malmo-Levine, SCC, 85)
• Criminal law does not normally interfere with adult decisions which may only
minimally damage one’s own health or social or vocational interests
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Harms to Families and Communities of the War
• Criminal law affects most marginalized people
most severely
• Poverty, unemployment, destabilization may
already describe their daily lives
• Maladaptive incentives to commit to drug
enterprises
• Police attention heightened
• Crime prevention and community development
can be ignored
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Adverse Health Effects
• A major cost of concentrating on enforcement, rather than public health
• Spread of HIV
• Overdose deaths
• Aggravation of physical health problems
• See the Insite case (PHS Community Services, SCC 2011)
• “the need for an immediate fix or the fear of police discovering and confiscating
drugs can override even ingrained safety habits” (80)
• “Livid prohibitionist claims of the past are increasingly inappropriate in the
contemporary context of national debate” (Hathaway and Erickson)
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Justice System Distortions and Failures
• The black market “produces crime, violence and corruption” (Heath Officers Council of
BC)
• Overdependence in the criminal law erodes public and police reverence for the law
• People are exposed to extensive intrusions in the name of public security
• Citizens are marked with the less eradicable stain of a criminal record
• Users are labelled as criminals, although the public does not associate their behaviour with
conventional perceptions of criminality
Police Loss of Vision and Aspirations
• Message which devalue drug participants caused amnesia among many police forces
• Loss of aspirations for the restrained and respectful use of police powers
• Racial profiling, brutality, diminished respect for privacy, corruption may appear
• Increasing disrespect of the law 16
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Final Assessments
• “WOD has proven ineffective … resulted in much health-related harm” (Akwatu
Khenti)
• “no hope the battle will ever be won” (Rany Odch)
• Canada has partially retreated from its “revitalized ‘war on drugs’” (Elaine
Hyshka) with the legalization of cannabis
• “over-reliance on the criminal law”
• “causing more harm than good”
• “join forces around the world calling for change” (CDPC)
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The Complexities of Cannabis Legalization
• Identifying Harms
• What are the harms associated with marijuana?
• Legal Responses
• What is the residual role of the criminal law?
• What are the federal, provincial and municipal responses to the regulatory
issues?
• Production; profit; promotion; prevention; potency; purity; price;
distribution
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• An Alternative Approach: Use Public Health Principles
• UK DPC
• Prospective positive function of law
• Use regulatory law:
• Encourage responsible behavior;
• Tackle structural problems;
• Use evidence-based prevention programs
• Reconceptualize most problems associated with drugs as public health challenges
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Liberate Discourse
• Face the now deeply embedded untruths about the war
• “Break the Taboo”; “Pursue an open debate” (GCDP)
• Stop insisting on elimination and abstinence
• All drug use is not invariably problematic
• “problems appear to be linked to inequality and social
exclusion”
• Stop seeing users as pariahs and outcasts to be vilified and
imprisoned
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Asserting General Principles in the Ceasefire Era as New Law Emerges
• Insist on evidence as a base for policies
• Ensure protection and promotion of human rights and equality
• Establish new indicators of success
• Let public health principles and agencies take lead roles
• Provide high quality treatment and rehabilitation programs, non-coercively
• Innovate, but always to reduce harm
• Create special programs for vulnerable groups
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Asserting General Principles in the Ceasefire Era as New Law Emerges
• Experiment as befits Canada’s needs
• Scale up investments in health promotion and social services
• Work to eliminate stigma, discrimination and social and health inequities
• Modernize legislation and regulations
• Steadily retreat from the use of the criminal law with its correlative insistence
on abstinence
• In substantive law, policy and enforcement
• In the tenor of new regulatory structures 22
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Enable Harm Reduction, Prevention and Treatment
Harm Reduction
• Find “humane and effective ways to reduce the harm caused by drugs to people and
societies” (GCDP)
• “Decrease the negative consequences of substance misuse”
• “reduce the health and social problems associated with the use and control of alcohol
and other drugs among individual families and societies” (Canadian Centre on Substance
Use, 2006)
• Promotion of health and welfare is sought, including techniques of harm reduction
• “prohibition itself … dramatically and demonstrably drives and exacerbates so
many of these harms”
• “What is required is an end to prohibition” (Jay Levy)24
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Purpose of Bill C-45: the Cannabis Act
s. 7 (paraphrased)
a) protect the health of youth by restricting access;
b) protect youth from inducements to use;
c) provide for legal production, reducing illicit activities;
d) deter criminals through appropriate punishments;
e) reduce the cannabis-related burden on the criminal justice system;
f) provide quality-controlled access;
g) enhance public awareness of health risks
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Highlights of Bill C-45: The Cannabis Act
(See Bill Summary)
• (a) Establishes smaller range of criminal prohibitions: unlawful transactions
• (b) Minister can authorize some activities: possession, distribution, sale, import/export
• (c) Permits limited, authorized possession, selling and distribution, under Provincial Acts,
with standards
• (d) Prohibits youth appealing promotions, while providing useful information
• (e) Inspection powers and non-criminal offences for lower range infringements
• (f) Dealing with seized material
• Broad Ministerial and Cabinet regulatory authority
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Bill C-45:
A Sample of New Criminal Offences
• s. 8: Possession offences
• s. 9: Distribution offences
• s. 10: Selling offences
• s. 11: Import/export offences
• s. 12: Production offences
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New Ticketable Offences
• s. 52: Purpose
• “Marginal” contraventions of main possession, distribution, selling and offences
• No imprisonment available except for wilful default of fine
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A Clean Policy Slate for Other Drugs
• We need the same prioritization of public health, human rights, while
preserving public safety, even as other substances may require a different
equilibrium between legalization and decriminalization.
• The cannabis ceasefire should be extended to a generalized peace treaty.
• The blunt weapon of the criminal law should be largely sheathed
• We can reduce harm and protect public health and the social order differently
for other now prohibited substances.
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Encourage Safer Practices, Especially for Harder Drugs:
• Consider decriminalization or partial legalization
• Safe injection in the community and institutions
• Needle exchange programs
• Treatment using substitute substances
• Heroin prescription
• Use of oral rather than injectable drugs
• Reduction of quantities used
• Abstinence for some
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Safer Practices, for Harder Drugs
• Bleach and paraphernalia distribution
• Drug content testing
• Straws and foil for some types of ingestion
• Information dissemination
• Peer education regarding risk
• Condoms
• Counselling and testing
• Legal Services
• Overdose prevention drugs (naloxone)
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The Times Are Changing: Emerging Trends in Liberalization
• “a new wave of countries have moved toward decriminalization”
• “recognition of the failures of the criminalization approach”
• “strengthening political wind blowing in the direction of an historic paradigm
shift” (Quiet Revolution, 11)
• The following states are chosen from a partial list that have moved towards
liberalization
• Responses and effectiveness of models vary, but, for Canada, there are
many lessons to be learned
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Some Examples of Drug Liberalization in Other Countries
Portugal
• Decriminalized drug possession and use in 2001
• Re-focused on a public health model
• Harm reduction measures:
• Drop-in centres, shelters, mobile units
• Prescription programmes, needle exchange
• Some data indicates:
• Decline in use, HIV, deaths
• Increases in treatment
• Need for careful examination
• Police may refer persons with more than 10 days supply to dissuasion commissions
• Focus on health, with range of sanctions
• Possessions of larger quantities may be referred to criminal courts
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Italy
• Decriminalization over 30 years ago
• Some fluctuations between harsh and lenient penalties
• 1990: administrative sanctions for small quantities, based on a daily average dose
guide, increased penalties
• 1991: judges given more flexibility in determining intent to sell
• 1993: referendum eliminated custodial measures and extended judicial discretion
• 2006: Parliamentary reinstitution of stricter measures for quantities above the
maximum allowed
• Neither harshness nor leniency has had much of an impact
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The Netherlands
• Legal distinction between hard and soft drugs
• Enforcement guidelines (1976): deprioritized prosecution for amounts below
threshold
• Not statutorily decriminalized; fines still available
• Low death rates due to hard drugs
• Low numbers of young problematic offenders
• Low injection prevalence
• Some increase in cannabis use, in part due to rise of “coffee shops”, now under stricter
controls
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Czech Republic
• Formal decriminalization of possession in 2010
• Penalization had not affected availability
• Drug use was increasing
• Social costs of prohibition were increasing
• Public health predominated: low imprisonment rates for users
• Administrative (non-criminal) offences for small quantities of drugs
• All sales and possession of larger amounts remain criminal
• No explosion of drug use
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Uruguay
• Uruguay never criminalized possession for personal use; trafficking still an offence
• Exemption from punishment (1974) for “reasonable quantity … for personal
consumption”
• Harm reduction strategies accompanied policy
• Administration of justice issues have complicated reform: selective enforcement; bail
denial
• 2013: parliament legalized production, sale, use of marijuana; implementation
postponed
• Seen as an experiment by government
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Mexico
• 2009 decriminalization of drugs for immediate consumption and personal use
under the General Health Law
• No prosecution for small quantities of cannabis, cocaine or heroin
• Encouragement of treatment, more intensively if caught more often
• Controversy over low maximum quantity threshold
• Low limits and ambiguities may increase corruption and imprisonment
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United States
• Extremely harsh drug laws and over-incarceration has been the trend until very
recently
• Trend toward legalization of medical marijuana and personal use
• Complexities surrounding conflicts between federal prohibitions and state
liberalization
• 2012: Colorado and Washington legalized possession of small amounts of cannabis
and regulated growing and distribution
• “drug law reform sweeps like falling dominoes”, (Mostyn et al., “The
Criminalization of Drugs and the Search for Alternative Approaches”,
269)
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Colorado
• Department of Revenue spearheaded legislative reform
• Localities can set regulations and may prohibit operations
• Licencing system for growers, manufacturers, transporters, sellers
• Need to keep concentration on:
• Public health issues
• Competitive illicit market
• Lessons previously learned from tobacco and alcohol regulation
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Australia
• Three states have decriminalized aspects of cannabis use and distribution
• Decriminalization has not resulted in explosion of consumption; most studies show
little impact on use
• Historically, high rates of cannabis use
• Decriminalization does keep people out the criminal justice
• People who are criminalized
• Experience negative employment, relationship and accommodation
consequences and come into more contact with the justice system
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South Australia
• Cannabis Expiation Notices (1987) result in civil fines
• Many kept out of the criminal justice system
• Little impact on use
• Savings in law enforcement costs
• Non-cannabis: simple possession may result in referral to services by Drug Assessment
Panel
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Western Australia
• 2004-8 Cannabis Infringement Notices for small quantities
• Low fine or attendance at education session
• Some evidence of decline in prevalence
• No change or decline in use of non-cannabis drugs
• 2011: New government lowered threshold limit (30 grams reduced to 10)
• More people prosecuted for possession
• Even possessors with less than 10 grams are given a caution and required to attend a
Cannabis Intervention Session
• Higher penalties for other cannabis offences
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Glossary
Drugs
• Illicit (or illegal drugs or psychotropic substances or narcotic drugs)
• “controlled substances” as included within Schedules I-V of Canada’s Controlled Drug
and Substances Act (CDSA)
• Schedule II: Cannabis
• The Cannabis Act amends the CDSA (and other statutes)
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Drug Policy
• “about dealing with problems directly associated with the non-medically authorized
use of drugs that might cause serious harm to users and to society”
• “for historical reasons, this excludes some, such as alcohol and tobacco, which
logically fall into” the harm causing category (UK Drug Policy Comm., 67)
http://paxus.files.wordpress.com/2013/09/drugs-and-alcohol.jpg
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Criminalization
• “setting out … acts or omissions that are prohibited, together with ranges of sanctions”
• Imposing sentence upon those it convicts “drawn from a specified range” (Simester and
Von Hirsch, Crimes, Harms and Wrongs …, 3)
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Decriminalization
• “removal of sanctions under the criminal law”
• “with optional use of administrative sanctions (e.g. provision of civil fines or
court-ordered therapeutic responses)” (A Quiet Revolution … 11)
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Legalization
• “covers a wide variety of proposals”
• “a system in which the production and sale of drugs are not criminal offences”
(The Legalization of Drugs, 3)
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Public Health Measures
• “generally referred to as harm reduction”
(War on Drugs, Global Commission on Drug Policy, 2011, 5)
• Public health systems may be undermined “when law enforcement drives drug users
away from prevention and care service” (The Vienna Declaration)
Harm Reduction
• “seeks to reduce the individual and social costs of abuse rather than to eliminate all
drug use”
• Emphasizes “scientific standards of rationality … rather than in terms of ideology”
(Hathaway and Erickson, 2003)