Drugs and Drug Policy in Canada A brief review and Commentary By Diane Riley, PhD Canadian Foundation for Drug Policy

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International Harm Reduction Association Prepared for the Honourable Pierre Claude Nolin November 1998

Table of Contents

1. Introduction

2. Drug Use in Canada

3. Costs of Substance Use

4. The Law Regarding Licit and Illicit Drugs in Canada

5. International Drug Conventions and Canadian Drug Law

6. Drug Use and Human Rights

7. Drugs and Crime

8. Correctional Institutions

9. Harm Reduction

10. Alternatives to the Canadian System

11. Conclusions and Recommendations

1. Introduction

An Overview of the Issues

In a year which marks the tenth anniversary of the Vienna Convention on drug trafficking and the fiftieth anniversary of the Universal Declaration of Human Rights, it is appropriate to reflect on the state of the global war on drugs and on Canadas part in that war. Every decade the United Nations reaches new international agreements, focused largely on criminalization and punishment, that restrict the ability of member nations to devise effective solutions to local drug problems. In the name of compliance with these agreements, governments enact more punitive and costly drug control measures and politicians endorse harsher new drug war strategies which add to the long list of human rights violations. Yet in spite of -- or perhaps because of -- these efforts, UN agencies estimate the annual revenue generated by the illegal drug industry at $US400 billion, or the equivalent of roughly eight per cent of total international trade. This industry has fueled organized crime, corrupted governments and police at all levels, increased violence, distorted economic markets and twisted societal values. These drug-related problems are the consequences not of drug use per se, but of decades of ineffective drug policies and inappropriate drug laws.

In many parts of the world, including Canada, the politics of prohibition form a huge barrier to public health efforts to stem the spread of HIV, hepatitis and other pathogens. In the name of the War against Drugs, human rights are violated, environments damaged and prisons filled with drug "offenders", many with no other crime than simple possession of drugs for personal use. Scarce resources better spent on health, education and economic development are used on ever more expensive supply-reduction efforts. Sensible proposals to reduce drug-related crime, disease and death are abandoned in favor of proposals for "drug-free" societies, inhuman and unattainable though they may be. The War against Drugs has become a War against Drug Users and against those farmers, often the worlds poorest, who grow drugs or their precursors. This war is more akin to a Crusade, in which there can be no victory but only some distorted sense of moral superiority.

Yet Canada actively participates in and supports this global violation of rights and resources, hiding behind the excuse that it is bound to do so by UN drug conventions; examination of these treaties does not provide support for this stance. Indeed, our obligations to overarching national and international human rights legislation would suggest that we need to pay far more attention to the neglected rights of citizens -- even those who choose the "wrong" type of drug. Rather than demonstrating the tolerance that is supposed to be the defining feature of democratic societies, Canada has turned hundreds of thousands its citizens into criminals and put many of them into prison for possession of illegal drugs. Incarcerating people unnecessarily, and all of the other costs of the criminal justice system, is a financial burden that the economy cannot afford, quite apart from the numerous other problems attendant on such an overreliance on (or addiction to) criminalisation as a "solution" to the drug "problem". While the real drug "problems" in Canada are related to alcohol and tobacco consumption in the general population and to underlying poverty and social dislocation in high-risk populations, these issues attract limited attention and resources. Instead, resources are focused disproportionately on enforcing laws pertaining to illicit drugs. Ironically, these very laws give rise to more problems than do the drugs themselves.

Our prohibitionist drug laws have encouraged marketers to sell and users to use more potent forms of drugs or more dangerous methods of ingestion in order to better hide the drug or to get a bigger "hit" for less money. Users have no guarantee of the quality of black-market drugs and as a result, some die (300 in Vancouver in the last year alone) and others are seriously injured because of adulterated drugs or drugs of unknown potency. Instead of looking for policies that might minimize the harm of all psychoactive substances, including alcohol and tobacco, Canada has created a black market for some drugs. Money that could be far better spent in dealing with real drug problems and their causes instead goes to those who support the prohibition system and all that is attendant upon it. The active support for prohibition of countries like Canada and the United States is destabilizing to developing countries as well as to the new states emerging in Central and Eastern Europe.

Drug warrior attitudes towards "evil" drugs have encouraged a dangerous inattention to one of the most tragic by-products of drug prohibition: the pandemic of HIV infection caused by injection drug use. More than 45 per cent of new HIV infections in Canada and the United States are related to the injection of drugs. This percentage is increasing at an alarming rate in Canada, as elsewhere; Vancouver has the highest incidence rate of HIV in injection users in the Western world. Globally, injection drug use is one of the major sources of new HIV infection. Prohibitionist attitudes have prevented the expansion of vital programs such as needle exchange and have increased the sharing of dirty needles, causing the spread of HIV and other deadly pathogens not only among users but among the general population as well. These attitudes prevent the opening of safe injecting sites, where users can receive medical attention if needed, which can increase overdose deaths by eighty percent. There have been more than 300 overdose deaths in Vancouver this year, more than 2000 since 1991; the majority of these kinds of deaths could be prevented, as has been done in cities such as Frankfurt where comprehensive harm reduction programs have been introduced.

In a bizarre hypocrisy that allows us on the one hand to speak of all drug dependence as an illness but to deal with arbitrarily-selected drug use as a crime, the justice system has become part of the drug war industry. We sentence drug users to prison, then we do not give them the means to prevent HIV infection from the high levels of injection drug use in prisons. Not until recently did we make condoms available to prisoners, in part out of concern that condoms would be used to hide drugs. Still, despite finally acknowledging that drug use in prisons is widespread, authorities have refused to provide prisoners with needle exchanges that would help prevent the further transmission of AIDS and hepatitis in prisons. HIV rates in Canadian prisons are ten times those in the general population; in some facilities, 8% of inmates are estimated to be infected with HIV and 50% with hepatitis C, a disease spread by injection and a marker for HIV.

And so the central irony remains: We speak of drug dependence as an illness and yet we continue to treat those who choose the wrong sort of drug as criminals, as evil. The ancient Greek word for scapegoat, "pharmacopei", meant outcast; how fitting that pharmacological McCarthyism should define the scapegoats of our times.

As an increasing number of countries around the world desert from the war on drugs and move to more peaceful measures, Canada persists in supporting criminalization of drug possession and has only last year put into force a new, thoroughly prohibitionist, drug law. Why? The rest of this paper attempts to address that question in some detail. In short, one reason persistently put forth is that Canada is obliged to do as it does because it is a signatory to the international drug conventions. But, as we shall see, this does not seem to be reason enough; not only do these treaties not require the level of penalties exacted by Canadian law, but also they themselves are in conflict with Canadas own legal protections of civil liberties as well as of the international legal protections of human rights.

Some Definitions

Prohibition: this system makes it a criminal offence to produce, import distribute or possess controlled substances for non-medical purposes. Total prohibition, in which all offences are strictly penalized, is sometimes referred to as "zero tolerance". Total prohibition with an expediency principle is practiced in the Netherlands with respect to cannabis.

Partial prohibition: adults would be permitted to possess a defined amount of certain drugs and to cultivate up to a specified number of plants. An important question raised by such a system is the extent to which it would affect the black market.

Decriminalization (prohibition with civil penalties): usually used in the context of possession, this refers to the absence of criminal charges for small quantities of certain drugs. Often referred to as "de facto" decriminalization, because under the present International Treaties possession usually remains a "crime" on the books but there is no enforcement around this. In such a system, fines may be imposed.

Medicalization: specific exemptions can be given to criminal offences for the medical management of drug dependence, such as in the use of methadone for opioid dependence. In Canada, federal regulations would allow for the use of any drug in the management of dependence, provided the method used is scientifically sound and medically acceptable.

Depenalization: refers to the absence of all penalties for the possession of certain drugs.

Legalization: this refers to a system in which no aspect of the production-possession cycle is an offence for any substance. One model for this is often called regulation, as in the alcohol model of a control board. Another, less popular model, is that of free enterprise.

A Brief History

The legal framework of the current system of drug control in Canada was laid down in the early part of the 20th century. By 1908, all medicines, as well as tobacco and alcohol, were on the way to regulation. In the same year, the Opium Act created the first drug prohibition. Other opiates and cocaine were covered in the Opium and Drug Act of 1911 and cannabis was added in 1923. Anti-alcohol groups gained support during the first two decades of the century, and all provinces enacted some form of alcohol prohibition during the First World War. By 1929, all provinces except Prince Edward Island had rescinded alcohol prohibition and imposed regulation of the alcohol trade. The Opium and Narcotic Drug Act of 1929 was Canada's main instrument of drug policy for the next 40 years. International drug prohibition and regulation through the Single Convention on Narcotic Drugs (1961) and the Convention on Psychotropic Substances (1971), to which Canada was a signatory, have further reinforced the artificial division between legal and illegal -- licit and illicit -- drugs.

An increase in illicit drug use in the 1960's and the 1970's was met by greatly increased criminalization and the associated individual and social costs. Despite these costs, the prohibition of illicit drug possession with penalties of up to 7 years imprisonment appeared to have had relatively little deterrent effect on levels of cannabis use in Canada. Rates of use climbed sharply through the 1960's and early 1970's, despite a large allocation of enforcement resources. The strain on the courts, and the rising numbers of otherwise law-abiding youth being sentenced for drug offences (particularly cannabis possession) created pressures for the liberalization of Canada's drug laws. The Commission of Inquiry in the Non-Medical Use of Drugs (generally referred to as the Le Dain Commission) was formed in 1969 to address this growing concern about drug use and appropriate responses. The Le Dain Commission described and analyzed the social costs and individual consequences of the criminalization policy. Social costs include the costs of law enforcement, court costs and expenditures for incarceration. Individual consequences include the penalties (such as a fine or prison term), the impact on the offender's employment, and the consequences of a criminal record.

Illicit drug policy has meant a criminal record for hundreds of thousands of Canadians who have been convicted of illicit drug possession under the old Narcotic Control Act and the new Controlled Drugs and Substances Act. The term "criminal record" is not statutorially defined, but generally refers to any official account of the process of conviction. A trail of information automatically begins when a suspect is arrested. The arresting officer, the local police station, the RCMP police information system in Ottawa, the prosecutor, the drug analysts and the courts involved all generate extensive records of any arrest and charge. This information may also be recorded in a legal aid office, detention centre and various criminal intelligence agencies. Once the accused appears in court, the charge becomes a matter of public record and may be reported in the media. There are reciprocal information sharing arrangements with foreign police agencies. Even if a charge is dropped or the accused is acquitted, he or she has no legal right to review police data or demand that the files be destroyed. The existence of a criminal record can result in the police laying a charge rather than issuing a warning in a subsequent incident; influence subsequent bail decisions; influence a prosecutor to proceed by way of indictment rather than summarily in a subsequent case; or be raised to impeach someone's credibility in court. It can also influence a sentencing decision or granting of parole. Entry into Canada or other countries may be denied, or a landed immigrant may fail to obtain citizenship due to a criminal record. Many jobs in the federal and provincial governments can be denied to persons with a criminal record, as well as certain professions regulated under provincial statutes.

The Le Dain Commission also identified the need for sweeping police powers as a social cost of drug policy. Under special provisions of old and new drug law, a law enforcement officer in Canada has broader powers of search and seizure in even minor drug cases, than he has in a murder, rape or other serious criminal case. There are also enforcement methods associated with drug investigations which constitute a loss of established rights and freedoms. The use of wiretaps, paid informants, undercover agents, police dogs, arrests without warning, surprise raids, strip-searches and the granting of immunity of suspects in return for information are legal. Such methods have been widely criticized for impugning the integrity of the police and the criminal justice system, particularly among youth. These powers have been expanded under the new drug law to include what is called a "reverse sting", where a police officer can legally sell drugs to a buyer in order to have grounds for arrest.

Following much consultation and study, the Le Dain Commission inquiry concluded that drug prohibition results in high costs but relatively little benefit. The majority of the commissioners recommended a gradual withdrawal from criminal sanctions against users, along with the development of less coercive and costly alternatives to replace the punitive application of criminal law. The Le Dain Commission served the role of most Royal Commissions: it delayed action on a controversial issue long enough for the public demand for action to subside. Interest in reform of drug policy gradually declined. There was one significant change in law in 1969, an amendment of the Narcotic Control Act that allowed prosecutors to proceed summarily in possession cases. Amendments to the Criminal Code in the early 1970s also allowed for absolute and conditional discharges as sentencing options in drug possession cases. Attempts to reduce the consequences of criminalization met with limited success. A bill which would have decriminalized possession of cannabis (Bill S-19) was introduced but was defeated in 1975. In the space of a decade (1970s) cannabis possession convictions grew from less than 1,000 per year to more than 40,000.

Following the Le Dain Report, a reorganization of government agencies responsible for drugs took place. It was apparent that the previous government response was not adequate, being to do more with questions of jurisdiction than health. The Non-Medical Use of Drugs Directorate (NMUDD) of National Health and Welfare Canada was formed and an integrated national approach was said to be necessary. After the initial concern over illicit drug use had subsided, NMUDD was re-organized as the Health Promotion Directorate. This reorganization was based on the notion that there is a common base for many behaviours which have negative effects on health. The shift to a health promotion paradigm, however, had the unintended effect of creating even more problems of coordination between levels of government than before. In addition, law enforcement personnel had difficulty working with a government agency that was also concerned with other health issues, including fitness, diet and cardiovascular health.

By the mid-1980's there was growing acknowledgment of the serious limitations of law enforcement and education in reducing the demand for drugs. In 1987 the Canadian federal government announced "Action on Drug Abuse", Canada's Drug Strategy. Canada's Drug Strategy (CDS) gave a means to address substance use with both supply and demand reduction strategies. The new drug strategy brought $210 million in new funding in roughly equal amounts to enforcement, treatment and prevention programming. This move was clearly influenced by the latest American "War on Drugs", but it was also an acknowledgment of Canadas problems with both licit and illicit drugs. Canada's Drug Strategy was funded for an initial five year term ending in April 1992 and was then renewed to 1997. It then "sunsetted", with drug issues being brought under the general umbrella of "population health". Considered to no longer be a serious problem by the bureaucrats in charge, the health budget for drugs was cut to 40% of its former amount. The RCMP drug-related budget was cut to 60% that of the previous period. The Policy and Research Unit of the Canadian Centre on Substance Abuse, which had begun to research and document alternatives to drug prohibition, was closed in 1996 as part of the demise of the Drug Strategy. The term "Drug Strategy" was reapplied to the remaining efforts in 1998 at the urging of the RCMP, but it is a strategy without the weight, collaborators, or funding of the forerunners.

Despite some attempts for balance during the time of the Drug Strategy, the dominant policy regarding illicit drugs has remained one of criminal prohibition. With the introduction of a new drug law in the 1990s, there was an opportunity to address some of the problems of past law and to benefit from what had been learned from the experience of other countries. The new law, the Controlled Drugs and Substances Act, however, is soundly prohibitionist and rather than retreating from the drug war rhetoric of the past it expands the net of prohibition further still. The problems related to criminalizing drug users, the social and economic costs of this approach, and its failure to reduce drug availability, have still not been addressed. As a result, the costs, both financial and human, of licit drug use remain unnecessarily high while the costs of criminalizing illicit drug use continue to rise, steadily, predictably and avoidably.

2. Drug Use in Canada

Summary

Alcohol and tobacco are the most widely used psychoactive drugs in Canada, and cause by far the greatest number of harms and costs to the population. The most widely used illicit drug is marijuana which causes relatively few harms for its level of use. By far the most direct harms from licit and illicit drugs occur in high-risk populations such as injectors, street youth, the inner- city poor, and Natives (obviously many of these groups overlap) . The indirect harms and costs of illicit drugs by far outweigh direct harms and are completely disproportionate to their level of use; these indirect harms and costs are the result of drug policy and legislation, not the drugs per se.

Nature and patterns of drug use

Alcohol

Results of the Canadian Alcohol and Other Drug Survey (1994) indicate that 72% of women and men aged 15 years and older--about 16.5 million Canadians--report drinking alcohol in the past 12 months. Approximately one quarter of current drinkers drink less than once per month and 5% drink on a daily basis; the rest fall somewhere in between. Young adults, males and those with higher incomes drink more than other Canadians.

Tobacco

Twenty-seven percent of Canadians aged 15 and over reported current smoking in the 1994 survey. The majority of smokers (58.6%) smoke between 11 and 25 cigarettes daily and 7.3% smoke more than 25 cigarettes daily. Younger age groups report the highest levels of current smoking (18 to 19, 29%, 20 to 24, 37%). By the age of 19, 71% of Inuit youth, 63% of Dene and Metis youth and 43% of non-native youth in the Canadian Arctic are cigarette smokers. Prevalence rates for use of chewing tobacco and snuff are high in Dene and Metis groups, with children as young as five reporting regular use.

Other Licit and Illicit Drugs

While there is no doubt that it would be useful to do so, it is not possible to deal with legal and illegal drugs in a totally separate manner. The nature of drug reporting systems and the harms to individuals and society make such a separation unrealistic. For example, physicians merge the diagnostic classifications for licit and illicit drugs problems. In addition, the diversion of licit drugs into illicit markets plays a key role in drug-related harms. The use of most licit and illicit drugs is quite unlike that of alcohol, where use and harms are well documented. Sales of prescription drugs are not monitored on a national basis and information about illicit drugs is limited to reports of drug seizures, enforcement activities and surveys. This data base is limited both in terms of scope and quality

Licit Drugs

Information about prescription drugs is available from industry-based services that supply market information and analysis to Canadas health and pharmaceutical industries. Surveys are another source of information but these are limited in that they do not distinguish between safe use and problematic use. The information about licit drugs contained in this paper is from five sources: the 1994 Canadian Alcohol and Drugs Survey; market survey research; the Bureau of Drug Surveillance diversion statistics; hospital data from the Canadian Centre for Health Information; causes of death, from Statistics Canada.

Pharmaceuticals

Nearly five million Canadians (21%) use one or more of the following medications: tranquilizers, sleeping pills, diet pills/stimulants, anti-depressants, prescription pain relievers (codeine/demerol/morphine). More women than men use these medications (24% versus 18%). There is a wide range in levels of use of the different medications across the provinces.

Prescription Pain Relievers: Slightly more than 3 million Canadians (13 %) use prescription pain pills (opiate narcotics such as codeine, morphine and Demerol); more women (14 %) than men (12%) use these pills. Use is highest in people 18-19 (15.5%) and lowest between ages 55-64 (11%). Use is highest among those with the lowest income. Regionally, the highest use was in BC (21%) and lowest in Quebec (7%).

Sleeping Pills: Approximately 4.5% of Canadians reported using sleeping pills in the 1994 survey. Use increases with age, with 7.5% of persons 55 and older and 11.5% of those 75 and over using them. More women (5.5%) than men (3.5%) use sleeping pills. Regionally, sleeping pills are used most often in PEI (6%) and least in Newfoundland (2.5%).

Tranquilizers: Almost 1 million Canadians (4.5%) use tranquilizers. More women (5.5%) than men (3.5%) report use of tranquilizers and use tends to increase with age and to decrease with income. Regionally, tranquilizers are used most in Quebec (7%) and least in Alberta (3.0%).

Anti-depressants: About 3% of Canadians use anti-depressants, with women being twice as likely as men to report their use (4% versus 2%). They are used more often by people aged 45-64 years of age (4%). Regionally, antidepressants are use most in Nova Scotia (4%) and least in Ontario (2%).

Diet Pills/Stimulants: Approximately 1% of Canadians use diet pills or stimulants. Use is highest among those aged 20 to 24 years (2%) and in those living in New Brunswick and Alberta (1.5%).

Steroids and Solvents

Less than 0.5% of Canadians report ever having used steroids. Solvents, glues and inhalants are used by youth and street people who are not reached by the kinds of surveys carried out nationally; less than 1% of Canadians contacted in the 1994 survey reported ever having used solvents.

Illicit Drugs

Many Canadians report that they have used illicit drugs. At some point in their lives, 24% of Canadians have used one or more of the following illegal drugs: cannabis, cocaine. LSD, speed/amphetamines, heroin. More males than females report having used these drugs (30% versus 18%).

Cannabis (marijuana/hashish): Cannabis is the most widely used illegal drug in Canada. Just over 23% of Canadians report having used cannabis at some point in their life. Current use is around 7.5% as compared to 6.5% in 1989. Twice as many males (10%) as females (5%) report use in the past 12 months.

Cocaine: The percentage of Canadians reporting that they have ever used cocaine or crack-cocaine is just under 4%, which is only slightly different from the 1989 survey (3.5%). The number of current users (in the past 12 months) has dropped to 0.7% of the population (from 1.4% in 1989).

LSD, Amphetamines (Speed) and Heroin: The percentage of Canadians reporting use of one or more of these drugs in the past 12 months is just over 1%, an increase from 0.4% in 1989. More males (1.5%) than females (0.7%) use these drugs. The proportion of Canadians who have used these drugs at least once in their lives has risen to 6% in 1994, from 4% in 1989.

Overall. illicit drug use increased substantially across the country from 1993 to 1994. Use of cannabis increased from 4.2% to 7.4%, cocaine increased from 0.3 % to 0.7% and use of LSD, speed or heroin increased from 0.3% in 1993 to just over 1% in 1994. There are no recent national data to allow us to see whether this trend has continued.

Injection Drug Use

Of those responding to the 1994 survey who reported using cocaine, LSD, speed, heroin and/or steroids, 7.7% (132,000) reported injecting drugs at some time. Of these, 41% reported sharing needles at some time in their lives. These numbers are clearly underestimates. As mentioned above, the majority of users of illicit drugs are not captured in this kind of survey; this is especially true of injection drug users. Further, the frequently illegal nature of the activity makes it more likely that a person who is surveyed will give an inaccurate response for fear of reprisal.

Populations At Risk

The people regarded as being most at risk for experiencing harms from legal and/or illegal substances are impaired drivers, street youth and school drop-outs, injection drug users, women, seniors, the poor, Metis, Inuit and off-reserve aboriginal people. These populations-at-risk range widely in terms of the amount of research done on them to date and the ease with research can be done.

Indigenous Canadians

Medical Services Branch (MSB) reports that the leading causes of death for Indian and Inuit are injury and poisoning (including suicides) and circulatory system diseases, with the exception of the Atlantic and Ontario regions, where this order is reversed. Indigenous patters of violent death show a clear and consistently elevated risk which is in some cases 3-4 times greater than national norms. Accidental death rates are sometimes twice the suicide rate. In Alberta, Indigenous risk was found to be 4-5 times the general rate. A similar pattern has been found in Saskatchewan and BC. Men are much more likely to die violently than are women. This is not because Indigenous females are less likely to use alcohol and other drugs but only that the consequences are less likely to be fatal. The majority (72%) of Aboriginal Canadians smoke tobacco; half of those who smoke do so on a daily basis.

In British Columbia, alcohol and drug problems are the biggest health and social issues facing aboriginal people living off-reserve and in Vancouver. Survey data suggest that 65% of these people experience alcohol and drug problems. The data cannot explain whether alcohol and other drug misuse is a cause or a result of the other problems. Researchers note that alcohol and other drug misuse affects 90% of the native people in BC. The existing service network does not meet the needs of people with substance use problems or those with mental disorders. The majority of children identified as having problems related to their mothers use of alcohol during pregnancy were native.

Research in Alberta suggests that aboriginal people experience significantly more problems with alcohol than non-natives do. One 1991 report suggests that about 80% of aboriginal people in Alberta have problems with alcohol and other drugs. Native people are also greatly overrepresented in the corrections system with respect to Liquor Control Act (LCA) convictions: in 1990, 21% of all sentences for natives were for LCA violations, compared to 6% for non-natives. One study, by Albertas Chief Medical Examiner for the Royal Commission on Aboriginal Peoples, compared rates of unnatural death for natives and non-natives in Alberta from 1986 to 1990. Among key findings were:

Two-thirds of natives who met unnatural deaths were drinking prior to death, compared to fewer than half (45%) of non-natives.

Deaths involving evidence of alcohol or drug misuse as the primary cause were five times greater for natives than non-natives.

The native suicide rate was two-and-a-half times greater than that for non-natives; the accidental death rate was three times greater; and the homicide death rate more than eight times that of non-natives.

Fetal Alcohol Syndrome: There is a great deal of controversy around the estimation of FAS incidence and prevalence in Indigenous communities; there are many methodological problems with studies. By most accounts, FAS incidence is higher than average among Indigenous Canadians. Conservative estimates of FAS/FAE (Fetal Alcohol Effect) incidence in general population samples are 1-3 per 1000 population. One study found an FAS/FAE rate of 25 per 1000 (i.e., 8-25 times the norm) children among Indigenous northwestern BC populations and a rate of 46 per 1000 (i.e., 15-46 times the norm) among Yukon Indigenous groups. A national survey of Indian and Inuit women revealed that 78% of Inuit women smoke before pregnancy, 76% during pregnancy and 75% in the first month postpartum.

Children: Rates of substance use are very high in Indigenous children under 12 years of age. These children are most likely to use tobacco, cannabis and solvents, but they are also much more likely than non-indigenous children to use other psychoactive substances as well. An 1985 study of Saskatchewan Indian children found a suicide rate 27.5 times that of Canadian children generally and 33.6 times that of other Saskatchewan children. Service centres report that children consume alcohol and sniff solvents during school hours, after school, on the streets, and in their homes, sometimes with their families.

Youth: Native youth are at two to six times greater risk for every alcohol-related problem than their counterparts in the rest of the population. One in five native youth have used solvents (about ten times that of the national norm). One third of all users are under 15 and more than half began to use solvents before they were 11 years old. In a 1993 national consultation involving Indigenous youth and service providers, the typical chronic solvent user was described as: aged 9 at use onset (or as young as 5); from families with histories of alcohol and other drug misuse; from an isolated community; a drop-out; from backgrounds involving unemployment, illiteracy, poor housing and a history of physical/emotional/sexual abuse.

Street Youth

Street youth are youth (12-25 years) who are absent from home without their parents permission for 24 hours or more. It is estimated that as many as 150,000 street youths move through Canadian cities every year. Studies suggest that adolescents go to the street to escape physical, emotional and sexual abuse or neglect in the home. The lifestyles of street youth involve many high risk behaviours including high levels of licit and illicit drug use and needle sharing. A 1989 study showed that two-thirds of all street youth used alcohol and/or other drugs of a weekly or daily basis. The most popular drugs are alcohol, cannabis, LSD and cocaine. In the 1989 survey, about 88% reported drinking alcohol, 9% of them on a daily basis. The same survey found that 71% reported cannabis use in the past year, 24% almost daily. About 31% used cocaine in the last year, 4% on a daily basis. 44% used LSD, 4% daily.

In a 1992 Toronto study, 34% reported having been arrested for their drug use in the past year, 27% had been involved with break and enter offences, 43% had sold drugs, 23% had been involved with robbery, and 22% had experienced medical problems. A recent study of Montreal street youth found suicide and drug overdose to be so prevalent that the children studied are 12 times more likely to die than their peers. Montreal is estimated to have at least 4,000 street youth. Of 517 youths initially interviewed by researchers, 10 have died in the past three years. Four hanged themselves, three were killed by drug overdoses, one died of hepatitis A, one was hit by a car, and one of an unknown cause. Eight of those who died had been drug users, and two were infected with HIV. Almost a quarter of the youth interviewed reported selling sex for food, money or shelter. They report injecting themselves hastily for fear of being spotted by the police, and carrying only a limited number of syringes for fear of detection. In another Montreal study, 500 homeless youth, were studied every six months beginning in 1995. In this study the death rate was 11.7 per 100,000 compared with 0.86 per 100,000 for Quebeckers the same age. Forty percent were injection drug users when the study began and 10 percent more began injecting each year; 22% had exchanged sex for food, money or shelter.

The Inner-City Poor: Vancouver

In 1997 a health emergency was declared as a result of the rapid increase of HIV infection in injection drug users in Vancouver East. Prevalence levels had reached more than 20 percent and incidence rates more than ten percent. In 1998, prevalence rates are estimated at between 25 and 35 percent. These rates place Vancouver in the unenviable position of having the highest levels of HIV infection in injection drug users in the Western world. In addition, Vancouver has the highest levels of overdose deaths in Canada, with more than 300 this year and more than 2,000 since 1991. The high levels of infection and other drug-related problems have been linked to the poverty and social dislocation of many of the residents of the eastern part of downtown Vancouver.

HIV/AIDS and Injection Drug Use

Drug use puts an individual at risk for infection with Human Immunodeficiency Virus (HIV) and other pathogens such as hepatitis. Injection drug use poses direct risk of infection through sharing of contaminated drug equipment. Non-injection drug use poses indirect risk of infection in that it can increase the likelihood of unsafe sexual and drug-injecting practices. Globally, injection drug use is a primary risk factor for the transmission of HIV. For example, some of the prevalence rates in injection drug users are: Manipur, India, 73% Myanmar, more than 60%; Thailand 40%; Brazil and Argentina, more than 50%; Kazakstan and other parts of Central and Eastern Europe, more than 30%. In many of these countries, injection drug users represent the majority of HIV infections. For example, in Kazakstan, more than 85% of HIV cases are in injection drug users and more than 67% of the rapidly exploding epidemic in China is due to injection drug use. In the United States over 200,000 individuals have developed AIDS as a result of contracting HIV through a shared syringe. States with restrictive syringe purchase and possession laws, such as New Jersey and New York, have HIV incidence rates as high as 50% among their drug injectors and have the largest numbers of women with AIDS and pediatric AIDS cases.

In Canada, injection drug use is second only to homosexual/bisexual activity as a means of transmission in men and second only to heterosexual acquisition in women. It is estimated that approximately 100,000 injection drug users in Canada are at risk of HIV infection through sharing needles and syringes. These individuals are concentrated, for the most part, in the metropolitan areas of Montreal, Toronto and Vancouver, but there is injection drug use in most urban and rural areas of Canada.

Traditionally, heroin has been the main drug administered by injection in Canada; Talwin (a depressant) and Ritalin (a stimulant) have also been popular as injectables at various times in different parts of the country, and are still very popular in Saskatchewan. Over the last several years, cocaine has been used increasingly by injection drug users, either on its own or in combination with heroin. There is also increasing non-medical use of injectable steroids by athletes, dancers and the general male population throughout Canada.

In Canada, as in other countries, the heterosexual transmission of HIV infection is fueled by the spread of infection among injection drug users. HIV infection spreads from injection drug users to their sexual partners. Many injection drug users are in relationships with non-users. There is also a risk that babies will be infected through perinatal transmission of the virus.

Compared to cities such as New York and Milan, where HIV prevalence rates among injection drug users are more than 50%, HIV rates among Canadian injection drug users are low to moderate in most cities. However, by comparison with a number of European and Australian cities, where, in many cases, infection levels are below 5%, rates in some Canadian regions are very high. For example, in Vancouver, prevalence increased from 4% in 1992/3 to 23% in 1996/7 and more than 30% in 1998. In Toronto, a 1997 survey of injection drug users reported a seropositivity rate of 9.5% compared to a rate of 4.5% in 1991/92. In Montreal, prevalence rates increased to 19.5% in 1997, from 5% prior to 1988. In Ottawa, prevalence rates increased from 10.3% in 1992/93 to 21% in 1997. Recent data from needle exchange attendees in smaller cities in Quebec show that HIV prevalence among IDUs has reached significant levels even outside major urban areas (Quebec City 9% and semi-urban areas of Quebec 5.7%).

The incidence rates (rate of new infection) of HIV among injection drug users in some Canadian cities are now very high; at more than 10%, the incidence rate in Vancouver is the highest in the Western world. Montreal has an incidence date of 7%, as does Ottawa. Some regions of Canada report higher incidence rates, especially among Natives. In 1996/97 about one half of the estimated 3,000-5,000 HIV infections that occurred in Canada were among injection drug users. In BC, injection drug use accounted for 43% of new positive tests in 1996-97 compared with 38% in 1995 and 8.2% prior to 1995. Injection drug use is a more common risk-factor for women, with 19% of adult female AIDS cases attributed to injection drug use versus 3.9% for adult male cases. Aboriginal peoples are overrepresented in inner city injection drug use communities and among clientele using inner-city services such as needle exchange programs and counseling/referral sites.

Clearly, both prevalence and incidence rates are already very high in a number of Canadian cities. The World Health Organization has cautioned that once levels of infection among injection drug users reach 10%, the epidemic can become explosive for the entire population of that region. In 1997, the Federal government released and Action Plan on HIV/AIDS and injection drug use; to date, there has been little action on this plan. A comprehensive harm reduction approach to AIDS and drug use should be put into place immediately to keep rates of HIV infection from increasing further among injection drug users if we are to have any chance of keeping the level of infection low in the general population.

3. Costs of Substance Use

Alcohol

According to the 1993 General Social Survey, nearly one in 10 adult Canadians (9.2%) report problems with their drinking. The most common problems affect physical health (5%) and financial position (4.7%). The majority of Canadians (73.4%), report that they have been harmed in some way at some point by the drinking of another person; 41% of all Canadians reported that they had experienced some form of harm in the past 12 months.

There were 6,700 deaths and 86,000 hospitalizations associated with alcohol in 1992. Motor vehicle accidents accounted for the largest number of alcohol related deaths while accidental falls and alcohol dependence syndrome accounted for the largest number of alcohol-related hospitalizations. Impaired driving is a major cause of death; among fatally injured drivers, 45% had some alcohol in their blood and 38% were over the legal limit of .08% Blood Alcohol Concentration (BAC). About 20% of current drinkers report that they have driven after consuming two or more drinks in one hour.

Tobacco

An estimated 33,5000 deaths were attributed directly to smoking in 1992. This number is derived from deaths due to chronic bronchitis, asthma, and emphysema and 30% of all deaths due to neoplasm, stroke, hypertension, and heart disease. Smoking related deaths and hospitalizations (combined) are highest in Nova Scotia and lowest in Alberta.

Other Licit Drugs

There are a number of problems related to use of legal drugs. For example, drug interactions occur; as people age, they are no longer able to metabolize drugs in the same way and so are more likely to experience side-effects. Information of harms related to the use of medications on a national scale is extremely limited. The international coding system used by Canadian hospitals categorizes cases according to general drug classes and does not distinguish between legal and illegal drugs. According to the 1994 survey, nearly 16% of those who use medications have experienced some sort of harm to themselves or others at least once in their lifetime. At least one type of harm was reported in the last 12 months by 11.5% of users. The most commonly reported problems in the past 12 months was the impact on physical health (7.5%), followed by outlook on life (5.5%), work/studies (4%), financial position (4%), family/home life (4%), and friendships (2.5%).

Illicit Drugs

There are many health and social problems related to the use of illegal drugs, but a number of these problems have more to do with the legal status of the drugs than with the nature of the drug itself. As with legal drugs, risks are related to dose, frequency of use, route of administration and characteristics of the user. It is difficult to identify the effects of a drug when it is not the singular cause of a problem. A disorder may be said to be "drug-related" because a drug is present in the urine, blood-stream or elsewhere in the body. The actual role of the drug in causing problems is not known. In addition, because the International Classification of Diseases does not distinguish between licit and illicit drugs, statistics on drug-related problems and deaths include an unknown contribution from legal drugs.

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Approximately one quarter of the people who reported using illegal drugs, steroids or solvents in the 1994 survey stated that their use had caused some harm in their lifetime (30%) or in the past 12 months (14%). This ranged from 17.5% for harm on physical health to 1.5% for harm caused to their children. In 1991 and 1992, more than half of the people accused of homicide used a substance of some kind (including alcohol) at the time of the incident. About 4% of all homicide victims were on drugs; one in ten had both alcohol and other drugs in their systems.

The number of deaths and potential years of life lost attributable to the use of illicit drugs have been calculated in a 1996 study of the costs of substance misuse in Canada. It is estimated that there were 732 deaths due to use of illicit drugs in 1992 (.4% of total mortality). Suicide accounts for 42% of illicit drug-related deaths; opiate and cocaine poisoning account for 14% and 9% respectively. In 1992, there were 61 AIDS-related deaths in injection drug users (8% of all illicit drug-related deaths); this number is increasing each year as the number of HIV-infected users rises throughout Canada (see section on HIV and injection drug use above). Mortality due to illicit drug use is relatively infrequent compared with alcohol and tobacco-related mortality, but illicit drug deaths involve younger people. There is a great deal of provincial variation in death rates due to illicit drugs. The greatest number of deaths per capita occur in BC (4.7 per 100,000 population in 1992); BC remains the highest, with annual overdose rates averaging more than 300 persons. Alberta (3.1) and Quebec (2.8) also have rates above the national average.

In 1992, there were 7,100 hospitalizations and 58,600 hospitalizations as a result of illicit drug use. Drug psychosis (17%), assaults (17%) and cocaine use (16%) accounted for about 50% of all illicit drug-related hospital admissions. The greatest proportion of hospital days due to illicit drugs is for drug psychosis, cocaine use, and assault. The provincial pattern in potential years of life lost, hospitalizations and hospital days reflect that of mortality rates. Highest rates of hospitalizations are in BC (39 per 100,000) and the lowest in Newfoundland (15 per 100,000).

Economic Aspects

A study of the economic costs of substance use to the Canadian economy was released in 1996 by Eric Single and colleagues. Using international guidelines for cost estimation studies, the study examined the number of deaths and hospitalizations attributable to alcohol, tobacco and illicit drugs in 1992. These morbidity and mortality estimates were the basis for examining the costs of substance use to the health care system and productivity costs. Other costs included costs for the administration of substance-related social welfare payments, law enforcement, prevention, research and other direct costs such as fire damage. (All cost data should be interpreted with caution because of wide variations between studies).

In 1992/3, the average Canadian aged 15 or older spent $462 on alcoholic beverages; the value of alcohol sales totaled more than $10.4 billion. Alcohol provided employment for nearly 16,000 Canadians in 1993 and more than $4.2 billion in government revenue. The reduction of tobacco taxes in 1994 had dramatic economic impact. Government revenue from tobacco products was $4.65 billion in 1993/94. This is a decrease of $896.5 million (16.2%) from government revenues from tobacco in the previous year. The domestic market for the pharmaceutical industry, which employs more than 21,000 people in Canada, is valued at $4.3 billion.

It is estimated that substance use cost more than $18.4 billion in Canada in 1992 ($649 per capita), which is 2.7% of the Gross Domestic Product. Alcohol accounts for approximately $7.5 billion in costs. The largest economic costs of alcohol are $4.14 billion for lost productivity due to morbidity and premature mortality, $1.36 billion for law enforcement and $1.30 billion in direct health care costs. Tobacco accounts for more than $9.5 billion in costs, and illicit drugs cost the economy $1.4 billion. The largest cost due to illicit drugs is lost productivity due to morbidity and premature death ($823 million), and a substantial portion of the costs ($400 million) are for law enforcement (including criminal-justice system costs). In general, the largest economic costs of substance use are from lost productivity due to morbidity and premature mortality, direct health care costs and law enforcement.

Cost of Illicit Drugs to Law Enforcement

Illicit drug use contributes to crime and law enforcement costs in a number of ways. These include the costs of enforcing law per se; dependent use of "hard" drugs such as heroin, cocaine or amphetamine is implicated in property crime; and drug use is associated with crimes of violence such as those committed over drug territory.

Criminal offenders have high rates of illicit drug use, with nearly 80% of offenders reporting use of illicit drugs during their lifetime, 50-75% showing traces of drugs (including alcohol) in their urine at time of arrest, and almost 30% under the influence of alcohol or other drugs when they commit a crime. There are a number of possible explanations for the relationship between drugs and crime:

Pharmacological effects of drugs: based on the notion that certain drugs promote violence, this explanation fails to take account of the fact that there is in fact little connection between the pharmacology of illicit drugs and violence.

Crime as income: some dependent users do commit property crimes to support their habits, but most do not; the majority of those who do also engaged in property crime before becoming drug users and continue to do so when they no longer use drugs;

Drug users have a deviant lifestyle: a number of long-term studies have shown that drug use and criminality are related to common factors such as poverty, unemployment and low social values and are determined by underlying personality and social causes.

Crime is a result of the violence of the drug trade: many drug-related crimes result form the "turf wars" between rival suppliers and arguments between buyers and sellers.

While drugs are a factor related to many crimes, their precise role is unclear; what is clear is that users have to obtain their drugs from a market that is highly priced and violent and where crime is frequent.

The cost estimation study carried out by Single et al. found that law enforcement costs are a major portion of the economic costs associated with illicit drugs. Law enforcement costs attributed to substance use comprise direct costs for specialized enforcement units plus part of the costs for crimes related to drugs. The fractions for illicit drugs vary according to the degree of legal intervention; for police costs this is the proportion of offences attributable to illicit drugs; for court costs, the fractions are based on the proportion of arrests for drug violations; for penal costs, fractions are based on the proportion of jail sentences for drug-related offences. The fraction for violent crimes attributable to illicit drugs is estimated by dividing the number of deaths in Canada due to homicide and assaults related to illicit drugs by the total number of deaths for these causes; it is estimated that 8% of violent crimes in Canada are related to illicit drugs. A proportion of property crime is also likely to be related to illicit drugs, but since this fraction is not known it is not included in estimates, making them conservative in nature.

Police costs: it is estimated that 2.4% of all crimes are attributable to illicit drugs (violations of federal drug statutes plus 8% of violent crimes plus the cost of the RCMP narcotics division). In 1992, the costs estimates of policing for illicit drugs were $208.3 million ($168.4 million for enforcement of drug laws per se).

Court costs: these costs include all court staff, judges, building occupancy costs, Legal Aid and crown prosecutors. It is estimated that 5.7% of all crimes resulting in court appearances in 1992 was related to illicit drugs, giving a cost estimate of $59.2 million ($46-8 for processing of drug laws per se).

Customs and excise: in 1992 it was estimated that Customs and Excise spent $9 million on drug enforcement.

Corrections costs: these include costs for penal institutions, probation and parole and are estimated at $123.8 million for 1992 ($106.2 million for violations of drug laws per se).

Total costs to criminal justice system: the conservative estimate for 1992 is $400 million ($330 million for drug-law violations per se), which is 29% of the total economic costs for illicit drugs.

Other economic costs: these include health care costs; direct costs associated with the workplace; direct costs for prevention, research and training; fire damage and traffic accidents; and indirect productivity losses due to disease and mortality. The total for this portion of costs was estimated at $930 million.

Economic Costs of licit versus illicit drugs: The total costs of illicit drugs to the economy is only 7.4% of the total estimated cost of substance use in Canada. "It might be argued that undue attention is given by law enforcement to control illicit drugs as these substances only account for a small portion of the economic costs associated with substance abuse in Canada. The findings of the cost estimation study will certainly be used as evidence that current drug policies are not cost effective." For example, there are considerable costs associated with the criminalization of cannabis with little apparent benefit in terms of deterrence. As Single points out, however, these findings might also be used to argue that relatively high costs due to licit drugs show what can happen with a legal source of supply.

4. The Law Regarding Licit and Illicit Drugs in Canada

Federal Alcohol Regulations

The federal government has authority over the importing and exporting of alcohol, alcohol-related excise taxes and broadcast advertising. Each province also has a role in regulating the control and sale of alcohol; they also control alcohol marketing and advertising. There are four specific drinking and driving offences in the federal Criminal Code: impaired operation of a motor vehicle; impaired operation of a motor vehicle causing death, and impaired operation of a motor vehicle causing bodily harm; operating a motor vehicle with a blood alcohol level in excess of .08%; refusal to provide a breath or blood sample. The provincial highway traffic legislation is important in the apprehension, prosecution and punishment of drinking drivers.

Tobacco Legislation

Tobacco is covered by federal and provincial legislation. The federal legislation comprises the Tobacco Sales to Young Persons Act, The Tobacco Products Control Act (which limits tobacco company sponsorship and advertising) and the Non-smokers Health Act (which restricts smoking areas). Some provinces have enacted workplace smoking legislation and most prohibit sales of tobacco to young people. Since the mid-1980s, the number of municipalities that have enacted smoking by-laws regarding where smoking can take place has increased rapidly.

Federal Drug Law

The most important federal statute dealing with illicit drugs is the Controlled Drugs and Substances Act (CDSA), which was proclaimed into force in May of 1997. There are six common offences under it: possession, trafficking, cultivation, importing or exporting and "prescription shopping" (obtaining multiple prescriptions by visiting several doctors). According to the Federal government, CDSA was just a "housekeeping" act. "The CDSA consolidates certain parts of the two previous acts, modernising and enhancing Canadas drug abuse control policy. Another focus of the CDSA is to fulfill Canadas international obligations under several international protocols on drugs". A more detailed analysis of the CDSA and the extent to which it goes beyond merely "keeping house" is given below. The Food and Drugs Act, which contained sections on non-medical drug use under the previous drug law, now controls pharmaceuticals, foods, cosmetics and medical devices. In addition to CDSA, other laws pertain to illicit drugs. Amendments to the Criminal Code make it illegal to knowingly import, export, manufacture, promote or sell illicit drug paraphernalia or literature. A court has recently struck down these provisions as they relate to drug literature. The judge held that these offences constitute an unjustifiable violation of freedom of speech as guaranteed by section 2 (b) of the Charter of Rights and Freedoms.

In Canada, offences are divided into two broad categories; those tried by summary conviction and those tried by indictment. There are also hybrid offences in which the prosecutor may proceed by summary conviction or by indictment. Under the CDSA, possession and prescription shopping are hybrid offences. If the Crown proceeds summarily, the offender is liable to a maximum penalty of six months imprisonment and a $1,000 fine for the first offense, and 12 months imprisonment and $2,000 fine for subsequent offences. If the Crown chooses indictment, the maximum penalty for possession if seven years imprisonment. All other offences under the Act are tried by indictment, except for certain amounts of marijuana. The maximum penalty for cultivation is seven years imprisonment; trafficking, possession for the purpose of trafficking, importing and exporting all carry a maximum penalty of life imprisonment. The most substantial legal change in the CDSA is in relation to cannabis. No longer a "narcotic", cannabis is now a Schedule II drug (cocaine and heroin are in Schedule I). The punishments for marijuana possession, distribution and production are slightly different from those for cocaine and heroin. Provided that the amount of cannabis possessed is less than 30 grams and the amount distributed is less than three kilograms, maximum jail terms are reduced to six months and five years respectively (for heroin and cocaine the maximum term for possession remains at seven years and the maximum term for distribution at life imprisonment). The CDSA also covers offences to do with property and proceeds of drug offences (one component of which is "money laundering").

A Missed Opportunity: The Controlled Drugs and Substances Act

The Controlled Drugs and Substances Act, was first introduced in February of 1994 by the Liberal government as Bill C-7. The bill very closely resembled Bill C-85, introduced by the Conservative government in June, 1992 and harshly criticised by the Liberals. Bill C-7 was technically a "health" bill, introduced into the House of Commons by the Minister of Health. The bill officially had its roots in the federal health department but its content came primarily from the department of justice and the office of the solicitor general. The bill was drafted by a senior member of the department of justice.

Bill C-7 consolidated much of the existing drug legislation now set out in the Narcotic Control Act and the Food and Drugs Act. The bill repealed the Narcotic Control Act and parts of the Food and Drugs Act. It created a number of new drug offences and extended the range of the law to include any drug with a "stimulant, depressant or hallucinogenic effect". It also added new powers of search and seizure. Numerous deputations to the parliamentary sub-committee in Spring of 1994, including the Canadian Foundation for Drug Policy, The Addiction Research Foundation of Ontario, the Canadian Police Association and the Canadian Bar Association, severely criticised the bill for it war on drugs approach and, in particular, for its very harsh stance with regard to cannabis possession. The bill was then revised. These revisions included a lessening of penalties for possession of cannabis for personal use so that simple possession would become a summary offence. Nonetheless, such possession was to remain a criminal offence.

After a considerable delay, Bill C-7 went to Third reading in the House of Commons in October of 1995. On October 30th, while the countrys attention was turned to the Quebec referendum and the Bloc was absent from the House, Bill C-7 quietly passed its final reading and moved to the Senate for approval. The Senate Standing Committee on Justice and Constitutional Affairs began hearings on the bill in December of 1995. Deputations included the Law Union of Ontario, the Addiction Research Foundation, and the Canadian Foundation for Drug Policy (CFDP called for an independent review of the Bill, consistent with promises made in the House of Commons on October 30th, 1995; this review has yet to occur). On February 2nd, 1996, the government announced the end to the current session of Parliament. Since Bill C-7 had not yet been enacted, it died at this time. During the next session, it was brought back as Bill C-8 and was proclaimed in force in May of 1997.

The impression created by a cursory reading of the CDSA is that enforcement efforts are directed toward large scale traffickers of hard drugs. The truth of the matter, however, is that, just as before, the majority of people affected by the legislation will be people caught for possession of small amounts of cannabis. More than 600,000 people have been given criminal records under old and new legislation for possession of cannabis. Since several new offenses have been created under CDSA related to amphetamines, khat and hallucinogens, the bill will ensure that more Canadians than ever, primarily young ones, would be burdened with a criminal record for simple possession (this is already occurring with respect to khat, especially among the Somali community who were not informed of the crimalization of activities related to a previously legal substance; there is now a black market emerging around khat in Toronto and several other cities).

A number of critics have also pointed out that drugs are not scheduled rationally in the bill: there is no relationship between the harms posed by drugs and the punishment. For example, what is the rationale for scheduling cocaine in Schedule I and amphetamines in Schedule II when the effects and dangers of the two are almost identical? It is clear that to ensure legislation that is just, the government needs to establish a scheduling process with input from experts in pharmacology, law enforcement, epidemiology and other relevant areas.

In the preamble to the Act it is stated that one intent of the legislation is to meet Canadas obligations under international drug treaties. It has been argued, however, that, our international obligations did not require us to enact the new law or anything similar (see below for an overview of Canadas obligations under international drug conventions). It has also been suggested that Canada should see to its own domestic needs first rather than give international drug treaties priority. Ironically, while claiming need for compliance with international treaties, the Act does not consider alternatives to conviction or punishment that are set out in these treaties. There is also room within the UN conventions for the removal of criminal penalties for possession of certain drugs for personal use (as detailed below, a number of countries, including Australia, Italy, Spain and Germany have done this without compromising their position with respect to the treaties).

The CDSA preserves the special enforcement provision that gives police sweeping powers of arrest, search , and seizure in drug cases. The Act will unnecessarily increase the powers of the state, seriously threatening fundamental human rights; in the guise of complying with international drug control conventions, it will violate international human rights conventions and may well violate Canadas own constitutional protections. In its presentation to the C-7 subcommittee, the Quebec Bar Association warned that a challenge under the Canadian Charter of Rights and Freedoms was probable. These increased powers, however, will not stop drug use, nor are they even likely to decrease drug use. Rather, these powers and other applications of the criminal law will only make the drug use that continues more dangerous, and lead to more people being killed by adulterated drugs or by drugs of unknown potency. Similarly, the Act does nothing to address the multiple underlying causes of drug use; instead, it assumes that simple repression can solve a problem with such complex roots.

In general, there has been a misunderstanding of the role the new law will play with respect to drug policy. During its passage, sub-committee members emphasized that it was not a policy document but simply a "housekeeping" bill directed exclusively at consolidating existing drug laws and bringing Canadian legislation in line with international drug treaties, repeating the position of the bureaucrats that drafted the legislation. The majority of witnesses to the sub-committee, however, stated that the bill was in and of itself a statement of drug policy, and bad policy at that. "Bill C-7 perpetuates and exacerbates some of the worst excesses of Canadian drug policy and it will only serve to perpetuate the violence associated with the drug trade. It will do nothing to help those who have become dependent on drugs; it will simply turn them -- by the thousands each year -- into criminals, and sometimes force them to commit further crimes and deal with true criminals to maintain their habits. In addition to these direct effects of the Bill, serious harms will also result from indirect effects: because it explicitly exempts tobacco and alcohol, Bill C-7 distracts attention from the much more serious harms associated with licit substances than with illicit ones."

The CDSA and Syringe Exchange

Syringe exchange is often controversial because of legal concerns. In Canada, the legal barriers, such as those posed by current paraphernalia and other drug laws are more perceived than real. For example, clean syringes are actually exempt from paraphernalia charges under current legislation. Although theoretically CDSA should not increase criminal liability since the paraphernalia legislation remains the same, it in fact further confuses an already confusing situation. The Act states that "a reference to a controlled substance includes a reference to ... any thing that contains of has on it a controlled substance and that is used of intended of designed for use ... in introducing the substance into the human body" (section 2(2)b). This means that syringes containing drugs controlled by the Act themselves become controlled. While a syringe would have to contain a detectable amount of substance in order for it to implicate a user, the Act nonetheless serves to increase concerns around carrying used syringes to exchanges; it is likely that users will be less inclined to want to be caught with dirty syringes as they learn of the new legislation. The discarding of used syringes will add to the concerns expressed by neighbourhood groups about users and the presence of syringe exchanges; concerns that should rightly be directed at the drug laws will, in the confusion, be directed once again to the very mechanisms that could reduce the harms of these laws.

5. International Drug Conventions and Canadian Drug Law

"An important question to be answered is whether Australian drug laws, so long dominated and directed by influences beyond our shores, and so little attuned to Australias own circumstances, should continue to be determined externally."

The international Conventions with respect to illicit drugs cover cannabis, cocaine, heroin and many other psychoactive substances. Some of them also pertain to "precursors", or those substances that are used to make the psychoactive end-product. Three international Conventions on drugs are relevant to the following discussions: the Single Convention on Narcotic Drugs, 1961 (Single Convention, 1961), the Convention on Psychotropic Substances of 1971 and the Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 (Vienna Convention). As their titles suggest, these conventions deal with matters that are specific to narcotic drugs and psychotropic substances, and the traffic in these.

The Implementation of Treaties in Canada

In Canada, the legislative branch (that is, Parliament and the provincial legislative assemblies) have sole jurisdiction to make rules, which they do by enacting legislation. They may also enact provisions delegating the rule-making power to a regulatory authority. The only limits on this power are those imposed on the legislative branch by the Constitution. Examples of limitations on the power of the legislative branch are the requirement that the division of legislative powers between the federal and provincial governments not be violated, and the Canadian Charter of Rights and Freedoms. However, other considerations apart from the Constitution may influence the exercise of legislative power. Implementation of an international treaty is one example. By becoming a party to the three treaties on prohibited drugs and traffic in these, the Government of Canada has undertaken to adapt its own legislation on drugs to ensure that it complies with the provisions of the treaties. All the measures that a State must take domestically to comply with the provisions of an international treaty constitute the "implementation" of the treaty. The most obvious step in implementing a treaty is the adoption or amendment of legislative provisions.

The central aspect of the Single Convention is limiting the production and trade in prohibited substances to the quantity needed to meet the medical and scientific needs of the States. The Convention requires that States adopt the necessary legislative and regulatory measures for establishing the prohibitions and controls required, within their own territories. Anything relating to the trade in, and production and possession of the substances is to be governed by legislative or regulatory measures; as we shall see, authorities differ as to the precise meaning of the term "possession" in this Convention.

According to Dupras, the measures prescribed by the Single Convention are the minimum measures that the States must adopt; there is nothing to prevent them from adopting more strict or severe measures of control. Conversely, there is nothing to bind countries such as Canada to the more stringent measures that they have adopted in their drug policies; indeed, the opposite is true. The three Conventions recognize the particular features of national legal and judicial systems and specify that the measures that States adopt will respect these systems. The words used are different in each, but the intention seems to be the same. Article 36 of the Single Convention, 1961 states: "subject to its constitutional provisions "; article 21 of the Convention on Psychotropic Substances states: "having due regard to their constitutional, legal and administrative systems "; and article 3 of the Convention against Illicit Traffic states: "subject to its constitutional principles and the basic concepts of its legal system." In Canada, these particular features may be identified as being all the elements of constitutional law to which each level of government in the Canadian federation (the federal government and the provinces), and each branch of that government (legislative, executive and judicial), is subject.

According to Dupras, implementation that does not comply with those principles and concepts will be void or non-existent at the national level; and failing implementation, there can be no ratification. Since the Canadian Charter of Rights and Freedoms was enacted in 1982 and entrenched in the Canadian Constitution, there can be no doubt that its provisions are elements of the "basic concepts of the legal system" of Canada. Parliament and the legislatures may not disregard the Charter, and the numerous judgments of the Supreme Court act as a reminder of this fact. This means that the rights of Canadians have to be protected, including ensurance of:

Guarantee against unreasonable search and seizure;

Guarantee against any cruel and unusual treatment or punishment.

Cannabis

For historical reasons, the Conventions treat cannabis, erroneously, as a narcotic. Because, however, it has been dealt with quite differently from other, "harder", drugs by many countries, cannabis is considered separately here and in later discussions in this paper. Cannabis refers to marijuana and hashish, the oil or resin from the plant; in this paper the terms marijuana and cannabis are used interchangeably. The marijuana plant contains more than 460 known compounds and more than 60 of these are cannabinoids. The only one of these that is both very psychoactive and present in large amounts is known as delta-9-THC (THC). The discovery in the last few years of receptors on the brain that are stimulated by THC suggests that the body makes its own version of THC, a neurotransmitter implicated in regulation of pain and nausea. This has also been an impetus to carry out research on the medicinal properties of THC.

In response to increases in marijuana use in the 1960s and 1970s, governments in the United States, Canada, Great Britain, Australia, and the Netherlands appointed commissions to evaluate the scientific evidence on the harms associated with marijuana use. In 1969, the British Wootten Report noted its agreement with the Indian Hemp Commission of 1894 and the LaGuardia Commission of 1944. It concluded that "the long term consumption of cannabis in moderate doses has no harmful effect". In 1972, a Dutch commission concluded that "the physiological effects of the use of cannabis are of a relatively harmless nature." In that same year, the US National Commission on Marihuana and Drug Abuse stated that "The Commission is of the unanimous opinion that marihuana use is not such a grave problem that individuals who smoke marihuana, or possess it for that purpose, should be subject to criminal procedures." The findings of these commissions have, however, continually been overshadowed by extreme claims of marijuanas dangers or by suppression of information regarding the real harms and benefits of the drug. Most significantly, a comprehensive discussion paper on cannabis control policies prepared for Health and Welfare Canada in 1978 was not released until request was made through an Access to Information Request in November of this year.

During the past thirty years, researchers funded by the US federal government have examined the ways in which marijuana effects the user and society. This has led to the exposure, and refutation, of a number of myths about marijuana. These myths include:

1. Marijuanas harms have been proved scientifically: in fact, the US National Commission on Marihuana and Drug Abuse concluded in 1972 that while marijuana was not entirely safe, its dangers had been grossly overstated. Since then, researchers have conducted thousands of studies of humans, animals and cell cultures. None reveal any findings dramatically different from those described by the US Commission in 1972. In 1995, based on thirty years of scientific research, editors of the British medical journal the Lancet concluded that "the smoking of cannabis, even long term, is not harmful to health."

2. Marijuana has no medicinal value: marijuana has been shown to be effective in reducing the nausea caused by cancer chemotherapy, stimulating appetite in AIDS patients, and reducing intraocular pressure in people with glaucoma. There is also a great deal of evidence that marijuana reduces muscle spasticity in patients with neurological disorder, is a very powerful pain killer, and is effective as an anti-epileptic in patients unresponsive to other medications. A synthetic THC capsule is available by prescription, but it is not as effective as smoked marijuana for many patients. Pure THC also seems to produce more unpleasant psychoactive side-effects than smoked marijuana. Many people use marijuana as a medicine, and in most countries, including Canada, this means risking arrest (see below under legal situation in Canada).

3. Marijuana is highly addictive: in fact, most people who smoke marijuana do so only occasionally. a small minority of users (less than 1%) smoke marijuana on a daily or near daily basis. An even smaller minority develop psychological dependence on marijuana. Some people who smoke marijuana heavily and frequently stop without difficulty; others seek help. Marijuana does not cause physical dependence, and if there are any withdrawal symptoms at all, these are very mild.

4. Marijuana is a "gateway" drug: in fact, marijuana does not cause people to use hard drugs. What the gateway theory presents as a causal explanation is a statistical association between common and uncommon drugs, an association that changes over time as different drugs increase and decrease in prevalence. Marijuana is the most popular drug in most western countries today and so people who have used less popular drugs such as heroin or cocaine are, on the basis of probability alone, likely to have tried marijuana. But most marijuana users never use any other illegal drugs, so marijuana is more akin to a closed gate than to a gateway.

5. Marijuana policy in the Netherlands is a failure: for more than twenty years, Dutch citizens over eighteen have been permitted to buy and use cannabis in government-regulated coffee shops. The policy has not resulted in an escalation in cannabis use. Rates of use are significantly lower than those in the United States. The Dutch public overwhelmingly supports this policy of normalization. A recent survey by the Centre for Drug Research at the University of Amsterdam found only two to three percent of Dutch over the age of 12 had used marijuana over a one-month period. In the United States, where it is illegal to grow, purchase or use

marijuana, a 1996 government study concluded around five percent of the population used the drug at least once a month (rates for use in the last year are 34% for the US and 29% for the Netherlands). The number of heroin users, the murder rate, crime-related deaths and the incarceration rate are all considerably higher in the US as compared to the Netherlands.

6. Marijuana kills brain cells: in fact, none of the tests used to detect brain damage in humans have found harm from marijuana, even from long-term high-dose use.

7. Marijuana causes amotivational syndrome: in fact, researchers have failed to find evidence of marijuana induced amotivational syndrome. People who are constantly intoxicated, whatever the drug, are unlikely to be productive members of society, but there is nothing about marijuana specifically that causes loss of drive. In laboratory studies, subjects given high doses of marijuana for several days or weeks show no sign of decrease in work motivation. In the workplace, marijuana users tend to earn higher wages than non-users, and college students who use marijuana have the same grade as non-users

8. Marijuana impairs memory and cognition: marijuana produces immediate, temporary changes in thoughts, perceptions and information processing. There is no convincing evidence that heavy long-term use permanently impairs memory or other cognitive functions.

9. Marijuana causes mental illness: in fact, there is no convincing scientific evidence that marijuana causes psychological damage or mental illness in teenagers or adults. Marijuana can induce feelings of panic and paranoia, but these effects are temporary.

10. Marijuana causes crime: in fact, there is no evidence that marijuana causes crime; and marijuana actually decreases, rather than increases, aggression.

11. Marijuana damages the fetus: in fact, studies of newborns, infants and children show no consistent physical, developmental, or cognitive deficits related to prenatal marijuana exposure.

12. Marijuana impairs the immune system: in fact, there is no evidence that marijuana users are more susceptible to infections than non-users. The finding of an association between tobacco smoking and lung infections in AIDS patients warrants further research into possible harms from marijuana smoking in immune-suppressed persons.

13. Marijuana is more damaging to the lungs than tobacco: moderate smoking of marijuana appears to pose minimal damage to the lungs; marijuana users typically smoke much less often than tobacco users and so risk of serious lung damage is lower. There are no reports of lung cancer related solely to marijuana, but the possibility of cancer in heavy users cannot be ruled out. Unlike heavy tobacco smokers, heavy marijuana smokers show no obstruction of the lungs small airways and so do not develop emphysema.

14. Marijuana is a major cause of traffic accidents: in fact there is no compelling evidence that marijuana contributes substantially to traffic accidents and fatalities. In driving studies, marijuana produces little or no car-handling impairment. Unlike alcohol, which increases risky driving practices, marijuana tends to make subjects more cautions. When THC is detected in the blood of fatally injured drivers, alcohol is almost always detected as well. A roadside breathtest for THC has recently been developed.

15. Marijuana is more potent today than in the past: potency data have been kept from the early 1980s to the present, and show that there has been no increase in the average THC content of marijuana. Even if marijuana potency were to increase, it would not necessarily make it more dangerous since users would smoke less to get the same level of psychoactive effect

In November of this year, the British medical journal Lancet concluded its editorial on marijuana by stating that "on the medical evidence available, moderate indulgence in cannabis has little effect on health, and the decision to ban or to legalise cannabis should be based on other considerations."

Cannabis and International Treaties

Two international treaties are relevant to a discussion of cannabis policy: the Single Convention of Narcotic Drugs (1961) as amended in 1972, and the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna Convention). As its full name suggest, the Vienna Convention is primarily concerned with international trafficking, while the Single Convention focuses on the domestic policy of signatory nations. The Single Convention, to which Canada and many other countries are signatories, is regarded by most analysts as the main potential obstacle to changes in domestic cannabis policy.

Article 36 of the Single Convention requires signatory nations to make possession and use of cannabis, "cannabis resin (hashish), and "extracts and tinctures of cannabis" (among other drugs) an offence. Use and commerce in drugs covered under the Single Convention are to be restricted to "scientific and medical purposes". Analysts of the treaty tend to support the recent New Zealand interpretation that: "Although this particular clause seems rather black-and -white, the treaty as a whole provides considerable room for varying interpretations". A Canadian Department of Justice report of 1979 noted: "The deliberate vagueness of some critical treaty provisions and the discretion permitted each party allow for a considerable variety of cannabis control regimes. As one official of the United Nations Division of Narcotic Drugs has recently written: the treaties are much more subtle and flexible than sometimes interpreted."

As would be expected of such an influential document, there are a number of different interpretations of the Single Convention. For example, Dupras writes:

"To justify the legalization of possession of cannabis, some authors have defended the interpretation that it was the intention of the Parties for the prohibition on possession to be limited to possession for the purposes of trafficking. In the view of those authors, simple possession of cannabis for personal use was never intended to be covered. ... to justify possession of cannabis under the Conventions, these authors assert that article 36 of the Single Convention, 1961, which creates the penal offence of possession of cannabis, covers only possession for the purposes of trafficking. All grounds for the offences to which article 36 refers are directly related to the illicit drug traffic. It also refers to cultivation, production, manufacture, extraction, preparation, offering, offering for sale, distribution, purchase, delivery, brokerage, dispatch, dispatch in transit, transportation, importation and exportation of drugs contrary to the provisions of the Convention."

"Other authors take the position that possession of cannabis, like that of any other drug or psychotropic substance, must be made an offence by the Parties to the Conventions. In 1972, the Le Dain Commission stated that the expression "possession" in article 36 of the Single Convention, 1961 had to include possession for personal use. It also referred to article 36. The Commission stated:

It has generally been assumed that "possession" in article 36 includes possession for use as well as possession for the purpose of trafficking. This is a reasonable inference from the terms of article 4, which obliges the parties "to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs." There is also article 33, which provides that "The Parties shall not permit the possession of drugs except under legal authority." [...] On the face of article 26 it would not be unreasonable to argue that what is contemplated is possession for the purpose of trafficking rather than possession for use, and that the requirements of the article are satisfied if the former kind of possession is made a penal offence. The prevailing view, however, is that the word "possession" in article 36 includes simple possession for use.

Dupras continues: "The Netherlands Ministers of Health, Welfare and Sports are also of the view that: if the Netherlands decided unilaterally to legalise the market in cannabis and cannabis products [it] would be incompatible with article 2, paragraphs 1 and 5, article 4, article 36 and article 49. In New Zealand, the Drug Policy Forum Trust, which argues for greater liberalization in the use of cannabis, acknowledges that the Single Convention, 1961 and the Convention against Illicit Traffic require that legislative provisions be enacted prohibiting the possession of cannabis for personal use. The Trust believes article 33 of the Single Convention, 1961 is clear and does not seem to be open to interpretation.

It must not be forgotten that paragraph 3(2) of the Convention against Illicit Traffic reiterates the Parties obligation to make the possession, purchase and cultivation of narcotic drugs for personal consumption, contrary to the Single Convention, 1961, a criminal offence. This reminder, which appears in a Convention concluded more than 20 years after the Single Convention, 1961, does not seem to leave any doubt as to the Parties intention.

Article 33 of the Single Convention, 1961 seems plain. It prohibits the possession of drugs. It remains to be determined whether this interpretation of the Convention is justified."

As Dupras notes, analysts have asked whether the provisions of the Single Convention concerning cannabis possession are aimed at small-scale personal use or at large-scale trafficking. One of the main drafters of the 1961 Convention, Adolf Lande, wrote that "the term possession used in the penal provisions of the Single Convention means only possession for the purpose of illicit traffic. Consequently, unauthorized possession and purchase of narcotic drugs including cannabis for personal consumption need not be treated as punishable offences or as serious offences". The official Commentary on the Single Convention on Narcotic Drugs 1961, prepared by the Office of the UN Secretary General, states that whether personal use of drugs requires application of criminal sanctions "is a question that may be answered differently in different countries." The commentary states that those countries that do interpret Article 36 as requiring a legal approach to personal use "may undoubtedly choose not to provide for imprisonment of persons found in possession, but to impose only minor penalties such as fines or even censure since possession of a small quantity of drugs for personal consumption may be held not to be a "serious" offence under article 36... (p 112). Noll (a senior legal officer of the UN Division of Narcotic Drugs) points out that the "whole international drug control system envisages in its penal provisions the illicit traffic in drugs; this holds true for the 1972 Protocol."

The various governmental commissions on cannabis control have reached different opinions regarding whether the Single Convention requires a ban on the personal use of cannabis. The LeDain Commission concluded that it did, as did the Williams Royal Commission of Australia (1980), but the 1978 Sackville Commission of South Australia concluded that "the Convention does not require signatories to make either use or possession for personal use punishable offences ... This is because use is not specifically covered by Article 36 and the term possession in that Article and elsewhere can be read as confined to possession for the purpose of dealing". The US National Commission on Marihuana and Drug Abuse in 1972 held that "the word possession in Article 36 refers not to possession for personal use but to possession as a link in illicit trafficking" and that measures such as "educational programs and similar approaches designed to discourage use could be employed to meet treaty obligations."

The report of the Australian Institute of Criminology in 1994 concluded that it is only free availability that is ruled out by international treaties, thereby permitting both partial prohibition and a regulated approach. The Victorian Premiers Drug Advisory Council in 1996 held that partial prohibition was permitted under the treaties, but recommended that the matter be studied further.

Article 28, paragraph 3 of the Single Convention states that "The Parties shall adopt such measures as may be necessary to prevent the misuse of, and illicit traffic in, the leaves of the cannabis plant." This clause and Article 22 have been taken to mean that if a country decides that a system other than prohibition is most appropriate for protecting public health and welfare and for deterring illicit trafficking, "that country is not obliged by virtue of the Single Convention to maintain a prohibition policy". The authors of the New Zealand report conclude that: "Our reading of this complicated literature, and of the treaties themselves, leads us to conclude that a policy of partial prohibition... would certainly be considered by most authorities as being in compliance with international treaties.... authoritative interpretations of the Single Convention... would appear to permit a system of regulation and control." They suggest that "... if New Zealand were to notify the United Nations that, after careful study, it has determined that a regulated system of cannabis control were necessary to reduce both public harm and illicit trafficking, it seems unlikely that such an announcement would be condemned (except, perhaps, by the United States)". "It seems inappropriate for countries to be forced by international treaty to foster black markets within their borders, especially if doing so serves to disadvantage native populations".

Clearly, different interpretations of the treaties will continue to be written It well may be that, as Dupras writes:

"The only way to settle the debate definitively, as to whether possession of cannabis (or another drug) must be made an offence by virtue of one of the three Conventions would be to obtain a decision on the matter from the International Court of Justice. Article 48 of the Single Convention, 1961, article 31 of the Convention on Psychotropic Substances and article 32 of the Convention against Illicit Traffic provide that any dispute relating to the interpretation of these Conventions should be settled by agreement between the Parties and, failing agreement, by the International Court of Justice.

Even if the Single Convention, 1961 requires that possession of cannabis be made an offence, it still allows the Parties latitude as to the sanctions or penalties they impose. The sanctions imposed must have a deterrent effect on the offender or any other individual who might be tempted to commit the same offence. The sanction must be determined on the basis of the seriousness of the offence.() In less serious cases, the sanction may even be replaced by measures for treatment, education, rehabilitation or social reintegration. ... The Conventions recognize, implicitly and explicitly, that imposing sanctions is a matter within the domestic law of the Parties. Each Party may choose the approach that it considers most appropriate to deal with the various situations that may arise.

The administration of justice within the territory of a Party is a matter within its exclusive jurisdiction. It need account to no one. No international organization has any right to scrutinize the manner in which the Parties apply the legislative provisions they have enacted pursuant to the Conventions. They do not have to justify their decisions. At most, they could be criticized if their conduct were injurious to other Parties or harmful to the mutual cooperation in which they must engage.

The tolerance exhibited by the Netherlands and Belgium may be criticized, but no other State or international body may interfere. The authorities of those two countries seem to have chosen, for their own reasons, not to enforce their legislation prohibiting the possession and use of cannabis." [emphasis added]

The Current Legal Situation in Canada

At least two judicial decisions in Ontario and British Columbia (R. vs Clay and R. vs Caine) have concluded that cannabis appears to be a much less dangerous drug for its consumers than either alcohol or tobacco. Deaths from alcohol and tobacco outstrip those from marijuana by a ratio of 10 to 1, even when relative rates of use are taken into account. The most recent figures from Juristat of July 1998 showed that in 1997 there were 65,000 drug charges in Canada; 70% of these related to cannabis use. More than 60% of all drug charges involve possession rather than distribution offences. So the war against drugs in Canada remains primarily one against cannabis. "It is not surprising that there is a reluctance to give up this fight, as hypocritical and as futile as it must appear. Both sides in the war -- the police and the marijuana distributors -- have nothing to gain and everything to lose if cannabis is given legitimacy as recreational drug."

The most substantial legal change in relation to cannabis law occurred with the introduction of the Controlled Drugs and Substances Act. This for the first time set marijuana apart from other illegal drugs. No longer a "narcotic", cannabis is now a Schedule II drug (cocaine and heroin are in Schedule I). The punishments for marijuana possession, distribution and production are slightly different from those for cocaine and heroin. Provided that the amount of cannabis possessed is less than 30 grams and the amount distributed is less than three kilograms, maximum jail terms are reduced to six months and five years respectively (for heroin and cocaine the maximum term for possession remains at seven years and the maximum term for distribution at life imprisonment). These legal changes still support terms that are totally at odds with the norms seen in courts. While no dramatic changes in cannabis policy have occurred through legislation, changes have taken place through policing and the courts. By 1975, fines and discharges had emerged in Canadian courts as the most probable sanctions for marijuana possession. Data are no longer available regarding the rate of imprisonment for cannabis possession; fines and discharges still remain the most common judicial response, both of which still provide a criminal record. More than 600,00 Canadians now have criminal records for marijuana possession. The possible adverse consequences of a criminal record include: being at a disadvantage in subsequent criminal proceedings; restricted travel; denial of employment. A number of attempts have been made to reduce the consequences of a drug offense, including pardons and discharges. The discharge provisions of the Criminal Code and the pardoning provisions of the Criminal Records Act in fact make little difference. A discharged offender is deemed not to have been convicted but they would have to admit that they had committed a criminal offence if questioned (such as happens as border crossings).

Recent Developments

In 1997, Christopher Clay, a young owner of a hemp store in Ontario, tested the Canadian law with respect to possessing, cultivating and selling marijuana plants. Clay was found guilty on the charge of possession and given three years probation. The most significant aspect of the case was that Judge McCarts decision showed that he agreed with almost all of the arguments put forth by the defence lawyers and witnesses. The decision focused on the lack of harms associated with marijuana versus the demonstrated harms of marijuana policies. Nonetheless, the judge concluded that changing drug policy was the onus of politicians, not the courts. The defence team appealed the decision regarding possession, but the appeal has yet to be heard.

There have also been a number of significant developments with respect to medical marijuana. In Canada, it is currently not permissible to prescribe marijuana for therapeutic purposes. Nabilone (Cesamet) and dronabinol (Marinol) are the only two developed products related to the active constituents of cannabis that are currently recognised in Canada. They have a limited medical application in the management of severe nausea and vomiting associated with cancer therapy. They are not approved for the treatment of other medical conditions. In 1997, Terry Parker of Toronto was tried for possession, cultivation and trafficking of marijuana. Parker has used marijuana to treat his epilepsy since he was a teenager. Because Parker admitted to giving marijuana to other for medicinal purposes, Judge Sheppard convicted him of trafficking and gave him one year of probation. Sheppard acquitted Parker on the other two charges on the grounds that both the o