Witch Hunts and Chemical McCarthyism: The Criminal Law and Twentieth Century Canadian Drug Policy

Notes for addresses by Eugene Oscapella*, LL.M., of the Ontario Bar
to the
Society for the Reform of Criminal Law Conference
100 Years of Criminal Codes
Ottawa, June 30, 1993

and to the

Canadian Congress on Criminal Justice
Congress '93
Quebec City, October 13, 1993

and to the

5th International Conference on the Reduction of Drug Related Harm
Toronto, Ontario, March 7, 1994

(paper updated as of March 2, 1996)

Persons using this narcotic [marijuana] smoke the dried leaves of the plant, which has the effect of driving them completely insane. The addict loses all sense of moral responsibility. Addicts to this drug, while under its influence, are immune to pain, and could be severely injured without having any realization of their condition. While in this condition they become raving maniacs, and are liable to kill or indulge in any form of violence to other persons, using the most savage methods of cruelty without, as said before, any sense of moral responsibility.

Edmonton magistrate Emily Murphy, in 1922, in The Black Candle, one year before cannabis was added to the Schedule of the Opium and Narcotic Control Act>

To legalize or not to legalize? That . . . is not really the right question. The appropriate question is much broader, and it is one that incorporates the "legalize or not" question with respect to particular psychoactive drug products: What, simply stated, are the best means to regulate the production, distribution, and consumption of the great variety of psychoactive substances available today and in the foreseeable future?

Ethan A. Nadelmann, "Thinking Seriously About Alternatives to Prohibition", (1992) 121 Journal of the American Academy of Arts and Sciences 85 at 86.

Text of paper:

I am not a person who wishes to antagonize or insult a distinguished audience. I prefer diplomacy. But I also hold passionate beliefs in the justice of certain causes -- an end to the prohibition of drugs being one of them. What I will say may initially offend many of you, but that is a small price to pay if it spurs you to rethink an important social issue.

I also want to make it clear that I am not criticizing those who believe that they are working in Canada's best interests by pursuing Canada's current prohibitionist drug policies. I am simply asking them to open their eyes a bit wider. I am criticizing, and criticizing harshly, those who make mileage out of a failed drug policy because it benefits their personal purposes -- political, financial, moral or bureaucratic.

The simple thesis of my presentation is that our drug laws -- the laws prohibiting the possession, sale and distribution of certain psychoactive substances -- are the greatest shame of 20th century criminal justice. They represent an utterly inappropriate application of the criminal law. They cause far more harm than they prevent. They are witch hunts; they are a pharmacological pogrom; they are chemical McCarthyism. The criminal law of the future will be ill-served by their continued existence.

Drug prohibition started formally in Canada with Mackenzie King's 1908 Opium Act. The decades that followed have seen a pattern of increasingly repressive and irrational measures that have done little to stop the use of the targetted drugs. What they have done is to further the profitability and violence associated with the drug trade and the misunderstanding about the effects of drug consumption.These same measures have also forced those unfortunate enough to have chosen the "wrong" drug -- marijuana, heroin or cocaine, instead of alcohol, nicotine or prescription drugs -- to be stigmatized, alienated and prosecuted. They have curtailed civil liberties, not just of drug users, but of all Canadians.(1)

Instead of showing the tolerance of which democratic societies boast, Canada has turned hundreds of thousands of otherwise law-abiding citizens into criminals and thrown many of them into prison for their involvement with drugs. In 1989/90 alone, 3,137 people were sentenced to incarceration in Ontario institutions for drug offences. In the three years leading up to 1990, the percentage of incarcerations accounted for by drug crimes in Ontario rose from four to seven per cent. Federally, the proportion of inmates admitted under the Narcotic Control Act grew from nine to 14 per cent between 1986 and 1990.(2) Among the many other flaws of prohibition, throwing people into prisons represents an economic folly that a besieged Canadian economy cannot afford.(3)

Prohibition has encouraged marketers to sell and users to use more potent forms of drugs or more dangerous methods of ingestion. Users have no guarantee of quality. As a result, some -- especially the young and inexperienced -- will die and others will be maimed. The story of U.S. alcohol prohibition in the 1920's (and similar attempts to limit vodka availability in the Soviet Union in the mid-1980s) is being repeated, only this time with adulterated drugs or drugs of unknown potency.(4)

Instead of looking for policies that might minimize the harm flowing from the use of all psychoactive substances, Canada has arbitrarily created a black market for some. In so doing, it has poured billions of dollars into the hands of those willing to milk the prohibition cow and to use violence to do so. And Canada's active support for prohibition is destabilizing both developing countries and the fragile states emerging from the former Soviet Union and Eastern Bloc.

Beyond all this, our attitude towards "evil" drugs has encouraged a dangerous inattention to the calamity of HIV infection and drug use. More than 30 per cent of HIV infections in the United States result from injecting drugs. The percentage is increasing at an alarming rate in Canada. Globally, injection drug use is one of the major sources of new HIV infection.

Threats of prosecution for running needle exchange programs eventually waned in Canada, but how many users became infected with HIV while our policy makers and politicians dithered? And, even with needle exchange programs, addicts who inject drugs are afraid to carry evidence of their habit with them. They forsake their own needles and drugs for the short term relative safety of the shooting gallery. In the gallery, they may share dirty needles and infect themselves -- and ultimately others who do not use drugs -- with the HIV.

What about prisoners? First, we sentence drug users to prison, then we do not give them the means to prevent HIV infection from the massive levels of drug use in prisons. Not until recently did we make condoms available to prisoners, in part out of fear that condoms would be used to hide drugs. Better to preserve the moral fibre of our prisons than to protect the lives of human beings. Still, despite finally acknowledging that drug use in prisons is widespread, we have largely refused to help prisoners with needle exchanges or cleaning solutions that will help prevent the further transmission of AIDS in prisons.

Society cared little about HIV infection among drug users and prisoners, because it had been taught to care little for drug users and prisoners themselves. Later, when AIDS struck the partners of such people, it still did not raise great concern, for these were obviously people cut from the same cloth. Now it is beginning to strike people further afield -- people far removed from prisons and the drug using community -- perhaps the sons and daughters, nieces and nephews of "respectable" Canadians. How much misery we could have avoided if only we had treated drug addicts and prisoners with some compassion instead of indifference or prohibitionist repression. How much misery and death we could have avoided in the future.

In short, it is hard to imagine policies better suited to generating and perpetuating violence, corruption, organized crime, needless death, misery and social dysfunction than the prohibitionist schemes that Canada's policy makers and Parliamentarians have concocted over the last 85 years. If the lives and liberties of Canadians did not hang in the balance, this would be a farce. Instead, it has become a tragedy.

The Economist, the widely respected British current affairs publication, has strongly, and often, criticized the continuing blind reliance on prohibition in Western countries. For years, its message has been to legalize, control and discourage drugs. George Shultz, former Secretary of State under U.S. president Reagan and former Secretary of the Treasury under president Nixon, has called for an examination of forms of controlled legalization of drugs. Milton Friedman, Nobel laureate in economics, called for the decriminalization of drugs, claiming that the path of more police, more jails and a whole panoply of repressive measures can only make a bad situation worse.

The Washington-based Drug Policy Foundation has chronicled and condemned the floundering machinations of American prohibitionist policies for years. The Religious Coalition for a Moral Drug Policy, based in the U.S., is equally blunt. The primary moral obligation of government, it asserts, is to secure liberty, not to promote "virtue at the point of a gun".

Mr. Justice Michael Kirby of the Court of Appeal of New South Wales remarked recently that drug prohibition has scarred nations around the world.(5) Two prominent New York City Federal judges announced in April 1993 that they would no longer preside over drug cases, "going public with a protest that calls attention to what dozens of Federal judges are doing quietly across the country".(6) Both were protesting the futility of applying the criminal law. Said Robert W. Sweet, a Federal judge in Manhattan, who began speaking in favour of legalization four years ago:

[Using the criminal law] is a policy that is not working. It's not cutting down drug use. The best way to do this is through education and treatment.(7)

Several respected Canadian criminologists, lawyers, psychologists and drug policy researchers have called either for an end to prohibition, or at least an honest evaluation of its harms. These include the late Professor Chester N. Mitchell, Dr. Patricia Erickson, Dr. Diane Riley, Dr. Eric Single, Mr. Jan Skirrow, Professors Line Beauchesne, Neil Boyd, Bruce Alexander, Patrick Fitzgerald, Marie-Andr‚e Bertrand, Robert Solomon and Mr. Glenn Gilmour.(8)

Some of the most progressive literature in the Western world on alternatives to prohibition originates in Canada. Before its unfortunate demise, the Law Reform Commission of Canada had set up a drug policy group to look at the application of the criminal law to drugs issues. The "drug policy group" was in the throes of preparing a working paper on the topic when the plug was pulled on the Commission. The thrust of the working paper and the broad consensus of the group to that point was that applying the criminal law to the control of drugs created serious harms.(9)

Yet pleas for a rethinking of Canada's outmoded drug policies, and those of other countries, have encountered walls of silence, contempt and hostility. This is so even within governments that preach restraint in the use of the criminal law.

The Government of Canada's 1982 statement of principles, The Criminal Law in Canadian Society, maintained that the criminal law should be employed to deal only with that conduct for which other means of social control are inadequate or inappropriate. Nice words, but no reflection of reality. Instead, the criminal law has become the instrument of first resort in dealing with drugs. Ignoring the restraint that our official policy proclaims, our drug laws manifest excess. Instead of compassion and tolerance, our drug laws signal insensitivity to the human condition. Instead of justice, they preach oppression.

And still, they do not stop the flow of drugs into Canada. The vast bulk -- perhaps more than 90% -- of the illegal drugs destined for Canada manage to get past our borders. And Canada is not alone in this failure to stem the influx of drugs by using the criminal law. The United States, the most powerful nation on earth, and with some of the most repressive drug laws in the world, scores little, if any, better.

The RCMP National Drug Intelligence Estimate 1990 reported that more cocaine was available in Canada in 1989/90 than ever before. Regions that had been relatively untouched by cocaine were reporting wide availability, and prices in many centres had dropped considerably.(10) The same report spoke of the increasing availability of heroin in Montreal(11) and the active heroin markets in Toronto and Vancouver. Cannabis remains widely available in Canada. It is imported from a host of countries, and Canada is becoming an increasingly important producer of marijuana itself. Home-grown marijuana has become a major agricultural commodity.(12) Perhaps the most telling message of the futility of trying to control the marijuana market through the criminal law comes from the RCMP itself in what could be an advertisement for a marijuana franchise operation:

A hydroponic growing operation of a few hundred plants requires only basic horticultural knowledge and a minimal investment to set up, yet it can generate thousands of dollars in revenues.(13)

What these stories and messages point to is the utter inability of prohibition to stem the flow of drugs.

Some people call it a surrender to abandon the use of the criminal law against drugs. It is no more a surrender than failing to prohibit eggs means a surrender to cholesterol. We don't need to make everything we disapprove of into a criminal offence.

Ending prohibition makes common sense. It means that instead of propping up an enormously profitable black market in drugs, and pushing drug users to the margins of society, governments could focus on productive means of trying to control the harmful use of substances, be they alcohol, tobacco, marijuana, heroin or cocaine. It means that they could turn away from soul-destroying prisons towards understanding drug use as a natural, not deviant, part of human behaviour.

Moving away from prohibition also means that governments could turn off the propaganda machine that has inhibited free expression on the drugs issue. For decades, this machine has spewed forth on the "evil" of some drugs while largely ignoring others. Even lawyers and judges have not been immune from falling into the propaganda trap.(14)

Governments have needed such propaganda to justify increasingly repressive laws and to maintain public support for applying these desperate measures. In place of this propaganda machine, Canada needs an honest dialogue about the harms (and in some cases benefits) of all drugs, not just those that have been arbitrarily villified by policy makers, moral entrepreneurs and vote-hungry politicians. We must start to talk openly and honestly about drugs and about alternatives to prohibition, even if it is "administratively" easier to accept the status quo.

And why do we continue to parrot American "solutions"? The United States represents the most glaring failure of prohibitionist drug policy in the world. Blood runs in the gutters of too many American cities, largely because of the violent trade in drugs spawned by prohibition. Washington D.C., the capital of the most powerful nation on earth, has one of the highest murder rates in the world. Between 1988 and 1991, the years of the Bush war on drugs, the murder rate in Washington increased by 32 per cent -- from 369 in 1988 to 489 in 1991.(15) A significant portion of those murders over those four years -- varying between 30 and 50 per cent -- have been related to the illicit trade fostered by prohibition.(16)

U.S. prisons are overflowing with convicted drug offenders. And despite massive infusions of law, money and rhetoric, particularly over the past several years, drugs remain widely available and many drug prices have remained constant or fallen.(17)

Yet Canada wants to apply many of the same failed policies and laws. Do we persist because we are basically an authoritarian society that tries to repress with the sledgehammer of the criminal law conduct that society's ruling groups do not like? Or have we been so wildly misled about "good" and "bad" drugs that even our leaders cannot apply logical thought to drug policy? Perhaps we persist with prohibition simply because our legislators and policy makers, like their targets, have become addicted -- only, in this case, to the criminal law.

Canada needs a dramatic change in the direction of its drug policy. Canada's Drug Strategy preaches the rhetoric of a more moderate approach. But we are doing more of the same. Bill C-85, the Psychoactive Substance Control Act before Parliament in the Spring of 1993, represented yet another capitulation to prohibition. (Bill C-85 died on the Order Paper when the federal election was called in 1993. However, the Liberal government introduced a virtually identical bill, Bill C-7, the Controlled Drugs and Substances Act, on February 2, 1994. On October 30, 1995, the Bill was passed by the House of Commons and sent to Canada's Senate for approval (and further hearings). Bill C-7 ultimately died before it was enacted when the government ended the current session of Parliament on February 2, 1996. On March 1, the government announced its intention to reintroduce Bill C-7 (likely with another bill number, but identical in form.) Legislation like Bill C-7 will bring more unnecessary use of the criminal law, more penalties, more oppression, more violence and more death. Why are we doing this to ourselves?)

I hope that historians from the next century will remember the 20th century as the century that proved the failure of prohibition. I hope that, early on in the next millennium, we will be able to look back at prohibition and shake our heads in wonder. And as we shake our heads, perhaps we will ask how we allowed ourselves to succumb so blindly to the chemical McCarthyism of the 20th century.

Other Voices

The remainder of this paper relies on the eloquent words of others challenging prohibition, both in Canada and elsewhere. Some of these voices are the voices of radicals. Some are the voices of moderates. Surprisingly, at least initially, some are the voices of conservatives.

Canadian Voices

Much of the writing about the failure of prohibition has come from the United States. This is likely because prohibition has done such profound damage to American society (although certainly not as profound as the damage to countries like Colombia, Peru and Bolivia). However, some of the most progressive writing has emerged from Canadian authors.

The late Professor Chester N. Mitchell, in his 1990 text, The Drug Solution, summarized the case against current prohibitionist drug policies of many countries as follows:

1. prohibition publicizes obscure drugs and, with enthusiastic media support, generates new fashions in drug use;

2. prohibition fails to eradicate the importation or domestic production of illicit drugs but perversely succeeds in shifting users to more potent forms of a drug or to more dangerous methods of ingestion;

3. efforts to eliminate illicit drugs "at the source" in Third World countries are futile, expensive and destructive;

4. mass demand for prohibited drugs creates an extensive black market that feeds organized crime, increases violence, destroys respect for the law,

corrupts enforcement, aids tax evasion, glamorizes crime and wastes police resources;

5. drug law enforcement relies on informants, entrapment, and undercover agents and creates a warlike atmosphere conducive to the abuse of human rights;

6. current drug laws ignore constitutional guarantees of equality;

7. current drug laws are elitist and undemocratic because they minimize voter input and reject citizen autonomy while granting unjustified drug control monopolies to police and physicians;

8. ending prohibition would destroy black markets, unclog prisons and courts, decriminalize millions of citizens, better protect youngsters and restore a good deal of tolerance and civility to society.(18)

In his conclusion, Mitchell states:

When will the drug wars end? Unlike military campaigns, internal wars of persecution are notoriously long-lived. Past wars against witches, Jews, Moslems, Christian martyrs and other scapegoats often lasted for centuries, and the drug war may be no exception. The drug battle lines were drawn up years before the 1917 Communist revolution in Russia, and when the first people to walk on Mars return to Earth sometime in the 21st century, they will probably be greeted be newspaper headlines announcing the familiar, depressing catalogues of drug busts, corruption scandals and violent deaths of inner-city youths killed in drug turf battles. For now, compromise seems impossible because governments keep demanding the unconditional surrender of all drug offenders. But possessing no organization, army or headquarters, drug offenders cannot surrender en masse. Strictly speaking, they cannot be warred against; they can only be persecuted.

As modern people we like to flatter ourselves that the problems we face are entirely new. None have passed this way before, so why look for historical parallels? Canada's Supreme Court held in Hauser (1979) that "narcotics" were a genuinely new matter, like aviation or telecommunications. The alleged novelty of our problems explains our failure to solve them, and it also rationalizes a reliance on technological fixes, like herbicides, wire-tapping and helicopter surveillance when, at heart, the drug crisis is a replay of the ancient battle between faith and science, between the haves and the have-nots, between the judges and the judged.

That modern drug myths repeat the time-worn divisions of blessed and cursed is apparent from the way the healing properties of medical psychoactives and the destructive properties of illicit narcotics are equally exaggerated in opposite directions. Once it was "God's Own Medicine", now heroin is reviled as a godless curse. Without good evidence, most people accept these exaggerations and lies because they are enshrined in law and re-inforced daily in the mass media. But ours is still a relatively sceptical age, and the weight of the pulpit, court and public opinion has failed to prevent certain psychologists, economists, anthropologists, lawyers, physicians, sociologists and other researchers from investigating drug issues and questioning official claims. Such investigation continues to grow and broaden, and a rough consensus has begun to emerge on a number of important points.. . . At some juncture, the research results will be powerful enough to undermine the drug myths. The vitality and freedom of science must therefore be maintained and, wherever possible, law reforms should concentrate on creating decision-making systems that allow a full and fair consideration of the evidence. We do not yet know enough to provide complete or totally adequate answers about drug regulation, but we do know how to find those answers.(19)

Psychologist Bruce Alexander of Simon Fraser University speaks of the impact of decades of drug propaganda:

In the case of the War on Drugs, the impact of decades of propaganda is such that it is impossible to discuss psycho-active substances like heroin, LSD, cocaine, and airplane glue as anything but 'fathomless evils.' A plan to treat them in a normal way, allowing a reasonable amount of use under reasonable conditions, and providing regulations to control dangerous use, would seem defeatist, or treasonous. Yet, use of these substances is not more dangerous, unhealthy, or addictive than countless other practices that Canadians engage in such as driving motorcycles or automobiles, skiing, smoking cigarettes, white-water rafting, playing hockey, playing poker, or eating chocolate. In each of these cases, and in the case of the feared drugs, most people use these practices in a constructive way, but a few people use them in such extreme and hazardous ways that their health is affected. In the most extreme cases, some people lose their lives.(20)

. . .

The biggest cost of the drug war propaganda may be the systematic reduction about people's ability to think intelligently about drugs. Society faces genuinely terrifying, immensely complex problems in the last decade of the twentieth century. The environment, educational institutions, value systems, health institutions, and economy all need urgent attention. But the obsessive concern with drug problems stirred up by incessant propaganda distracts us from these to the point of collective stupidity.(21)

Criminologist Neil Boyd of Simon Fraser University states:

When we take drugs we do so to alter ordinary waking consciousness. The criminal control of a citizen's desire to alter consciousness is unnecessary. We have other at least equally useful and less punitive methods available for control: taxation, prescription and prohibition of public consumption.

But most important, we should confront our own hypocrisy. We can no longer afford the illusion that the alcohol drinkers and tobacco smokers of Canada are engaging in methods of consciousness alteration that are more safe or socially desirable than the sniffing of cocaine, the smoking or drinking of opiates, or the smoking of marijuana. The answer is not to usher in a new wave of prohibitionist sentiment against all drugs, nor is the answer to allow the free-market promotion of any psychoactive. The middle ground is carefully regulated access to drugs by consenting adults, with no advertising, fully informed consumers, and taxation based on the extent and harm produced by use. There is a need for tolerance, for both tobacco and heroin addicts. And there is a need for control of the settings and social circumstances of drug use. There are no good or bad, drugs, though some are more toxic, some are more likely to produce dependence, and some are very difficult to use without significant risks.

. . .

The task is to dismantle the costly and violent criminal apparatus that we have built around drug use and distribution, mindful that our overriding concern should be public health, not the self-interested morality of Western industrial culture.(22)

Patricia Erickson, Senior Scientist at Ontario's Addiction Research Foundation, has written of the recent results of Canada's muddled approach to drug policy:

The 1990 RCMP [Drug Intelligence Estimates] not only documented falling prices and greater purity of cocaine, but also projected easier availability of almost all illegal drugs in Canada in the next two years. In this context, the Solicitor General . . . remarked: "What we're saying is that the war has not been won yet but that we are making steady progress." One can only wonder what a "setback" would be.(23)

Erickson also refers to a statement made by a former Canadian prime minister:

Prime Minister Pierre Trudeau, in a session with students in 1977, said: "If you have a joint and you're smoking it for your private pleasure, you shouldn't be hassled."(24)

Many others have provided thoughtful analyses of the impact of prohibition. They include Jan Skirrow, former Chief Executive Officer of the Canadian Centre on Substance Abuse, Dr. Diane Riley and Dr. Eric Single of the same organization, Professor Robert Solomon of the University of Western Ontario, Professor Line Beauchesne of the Department of Criminology at the University of Ottawa, Professor Marie-Andr‚e Bertrand of the University of Montreal. Many of these were founding members of the Canadian Foundation for Drug Policy.(25) The McGill Centre for Medicine, Ethics and Law is studying aspects of the harms of prohibition. And the authoritative study on the evolution of Canada's drug laws is that by P.J. Giffen, Shirley Endicott and Sylvia Lambert, Panic and Indifference: The Politics of Canada's Drug Laws.(26)

Voices from Other Countries

In September of 1989, The Economist, one of the most widely-respected current affairs publications in the English language, spoke out:

Prohibition, and its inevitable failure, make a bad business more criminal, more profitable and more dangerous to its customers than it need be. Lifting the ban, and replacing it with detailed regulation, might certainly expose more people to risky experiments with drugs. That danger is real -- even if experience shows that relatively few people are foolish enough to go beyond experiments.

But prohibition's failure is more dangerous yet, both for individual drug-takers and for societies corrupted, subverted and terrorised by the drug gangs. The trade is banned by national laws and international conventions. Repeal them, replace them by control, taxation and discouragement. Until that is done, the slaughter in the United States, and the destruction in Colombia, will continue. Europe's turn is next.(27)

The Economist has not allowed this issue to rest. On several occasions, it has reiterated its position. In May, 1993, it spoke out again in a lead editorial:

The attitude of most electorates and governments is to deplore the problems that the illegal drug trade brings, view the whole matter with distaste, and sit on the status quo -- a policy of sweeping prohibition. Yet the problems cannot be ignored. The crime to which some addicts resort to finance their habits, and in which suppliers of illegal drugs habitually engage, exacts its price in victims' lives, not just money. The illegal trade in drugs supports organised crime the world over. It pulls drug-takers into a world of filthy needles, poisoned doses and pushers bent upon selling them more addictive and dangerous fixes.

Yet most people still balk at exploring ways in which a legal regime might undermine such effects. Their refusal owes something to a distaste for addiction in itself. This is an argument shot through with inconsistency. The strongest disapproval often comes from those who scream about liberties if their own particular indulgences -- for assault rifles, say -- are attacked. Addiction to cigarettes is reckoned to be the chief avoidable cause of death in the world. Alcohol deprives boozers of their lives and their memories, and ends the lives of all too many innocents who get smashed on the roads by the inebriated. Yet here the idea of dissuasion within the law is broadly accepted.

Five years earlier, on April 2, 1988, The Economist had published a lead editorial called, "Getting gangsters out of drugs". The editorial's answer to drugs -- including heroin, cocaine, marijuana, alcohol and tobacco -- was "legalise, control, discourage". It continued:

A sensible public policy might be to treat all three -- alcohol, tobacco, marijuana -- the same, with licensing, taxes and quality control. . . .

. . Cocaine most needs to be brought under the aegis of controlled and thus legal suppliers, either by treating it like alcohol, tobacco and marijuana . . . or like heroin . . . depending how statistically awful it proves to be.

. . . [T]he best policy towards existing heroin users might be to bring them within the law, allowing them to register for the right to buy strictly limited doses. Taxes should be high enough to discourage consumption, but low enough to put illicit dealers out of business.

Mr. Justice Michael Kirby of the Court of Appeal of New South Wales has spoken about the unquestioning acceptance of traditional "truths" about drugs:

A recent documentary on Ceausescu's Romania presented a parade of chastened politicians, intellectuals and lawyers who confessed that they had never stopped to question the fantastic laws and policies (not to say personality cult) which the dictator inflicted on them. They, at least, had the excuse of the Securitate. The inhibitions upon questioning apparently universally accepted wisdoms are very great: this is so even in less authoritarian societies.

One of the great "truths" of modern times is said to be the need for an international "war against drugs".(28)

In 1989, Milton Friedman, Nobel laureate in economics, addressed a letter pleading for the end of prohibition to William Bennett, the former American drug "czar":

In Oliver Cromwell's eloquent words, "I beseech you, in the bowels of Christ, think it possible you may be mistaken" about the course you and President Bush urge us to adopt to fight drugs. The path you propose of more police, more jails, use of the military in foreign countries, harsh penalties for drug users, and a whole panoply of repressive measures can only make a bad situation worse. The drug war cannot be won by those tactics without undermining the human liberty and individual freedom that you and I cherish.

. . .

Drugs are a tragedy for addicts. But criminalizing their use converts that tragedy into a disaster for society, for users and non-users alike. Our experience with the prohibition of drugs is a replay of our experience with the prohibition of alcoholic beverages.

. . .

Postponing decriminalization will only make matters worse, and make the problem appear even more intractable.

. . . Decriminalization would not prevent us from treating drugs as we now treat alcohol and tobacco: prohibiting sales of drugs to minors, outlawing the advertising of drugs and similar measures. Such measures could be enforced, while outright prohibition cannot be. Moreover, if even a small fraction of the money we now spend on trying to enforce drug prohibition were devoted to treatment and rehabilitation, in an atmosphere of compassion not punishment, the reduction in drug usage and in the harm done to the users could be dramatic.

. . . Every friend of freedom . . . must be as revolted as I am by the prospect of turning the United States into an armed camp, by the vision of jails filled with casual drug users and of an army of enforcers empowered to invade the liberty of citizens on slight evidence.(29)

Britain's The Independent newspaper had this to say in an editorial entitled "Time to License the Drug Trade":

A recent analysis by the Cato Institute in Washington concluded that the prohibition of drugs criminalised users, forced them into contact with professional criminals, tempted entrepreneurial young people from impoverished backgrounds into a lucrative criminal life, encouraged gang warfare, resulted in people taking impure mixtures in often dangerously strong doses by dangerous methods, and created heavy policing costs. It is, in short, not drug abuse itself which creates the most havoc, but the crime resulting from its prohibition. It is time for the Bush administration, and other Western governments, to contemplate some form of licensed sale of drugs which would deprive the pushers of their market while obliging registered addicts to take treatment. The key to beating the traffic is to remove its prodigious profitability and to deglamorize drug abuse by a heavy programme of public education.(30)

Lewis H. Lapham, editor of Harper's magazine, said this:

The war on drugs is a political war, waged not by scientists and doctors, but by police officers and politicians. Under more fortunate circumstances, the prevalence of drugs in American society -- not only cocaine and heroin and marijuana but also alcohol and tobacco and sleeping pills -- would properly be addressed as a public health question. . . .

Given the folly and the expense of the war on drugs (comparable to the folly and expense of the war in Vietnam), I expect that the United States eventually will arrive at some method of decriminalizing the use of all drugs. The arguments in favour of decriminalization seem to me to be irrefutable, as do the lessons of experience taught by the failed attempt at the prohibition of alcohol.

But for the time being, as long as the question remains primarily political, the war on drugs serves the purposes of the more reactionary interests within our society (i.e., the defenders of the imagined innocence of a nonexistent past) and transfers the cost of the war to precisely those individuals whom the promoters of the war say they wish to protect.

. . .

[President] Bush offers the nation the chance to deny its best principles, to corrupt its magistrates and enrich its most vicious and efficient criminals, to repudiate its civil liberties and repent of the habits of freedom. The deal is shabby.(31)

The Religious Coalition for a Moral Drug Policy also decries Prohibition. The Coalition draws its membership from most major American religious groups, including Baptists, Jews, Roman Catholics and members of the United Church:

One day we shall look back at this period of our nation's history, in much the same way that we now look back upon the days of prohibition of alcohol. Perhaps then, when the pain isn't quite as immediate and when the gaping wounds of our communities have healed, we will be able to wonder how in the world some people ever thought they could battle a moral and spiritual problem with guns and jails.

But until that day comes, as moral leaders, as clergy, as human beings, we will cry out for an end to the violence of the Drug War, and a beginning of the process of healing and liberation that our people so desperately need.(32)

. . .

It is, to us, clearly immoral to continue a policy that results in a violent and corrupt society, to pursue a policy that pretends to uphold our values even as it destroys them.

Much of these grave consequences of the drug war spring from the ideological assumption that we must make everything we disapprove of illegal. We reject this notion, as it forgets the difference between vice and crime. Enforcing positive morality is our responsibility as individuals, as parents, and as clergy. To put the government in charge of all morality is to abdicate our individual responsibility, to weaken the moral authority of our religious institutions, and thus to fail in the execution of our duties.

. . . As all the great classic liberal thinkers argued the primary moral obligation of the government is to secure liberty, not to promote what is called virtue at the point of a gun.(33)

Harvard medical professor Lester Grinspoon sums up the difficulty of having a rational discussion about drugs:

I began to study marijuana in 1967. . . . I had not yet learned that there is something very special about illicit drugs. If they don't always make the drug user behave irrationally, they certainly cause many non-users to behave that way.(34)

Princeton University political scientist Ethan Nadelmann, a member of the Princeton Working Group on the Future of Drug Use and Alternatives to Drug Prohibition, states:

To legalize or not to legalize? That . . . is not really the right question. The appropriate question is much broader, and it is one that incorporates the "legalize or not" question with respect to particular psychoactive drug products: What, simply stated, are the best means to regulate the production, distribution, and consumption of the great variety of psychoactive substances available today and in the foreseeable future? For a variety of reasons, the efforts of myself and others to answer that highly complex question have been captured by the label of "legalization". The term itself proved immensely successful in drawing the attention of tens of millions in the United States and elsewhere to what was at once a radical sounding but quite sensible critique of American drug control policies. But it exacted a stiff price with its implication that the only alternative to current policies was something resembling current US policies with respect to alcohol and tobacco. Few of those publicly associated with legalization in fact advocated such an alternative, but the misimpression has stuck in the public mind.

Legalization has always meant different things to different people. From my perspective, it has been first and foremost a critique of American drug prohibitionist policies which stresses the extent to which most of what Americans commonly identify as part and parcel of "the drug problem" are in fact the results of those policies. The failure of most Americans to perceive the extent and content of this causal relationship, and to distinguish between the problems that stem from the misuse of drugs per se and those that stem from drug prohibitionist policies, remains the greatest single obstacle to any significant change in American drug control policies. The recognition of this causal relationship does not, it should be stressed, lead automatically to a public policy recommendation that all of drug prohibition be abandoned. But it does suggest that alternative policies less dependent upon prohibitionist methods are likely to prove more effective.(35)

Professor Jerome Skolnick of the University of California, Berkeley, sums up the limitations of law enforcement in dealing with drugs:

Working narcotic police understand the limitations of law enforcement, perhaps more than anyone. I asked an experienced New York narcotics officer, a trainer of undercover operatives, whom I accompanied in 1990 to observe the drug dealing scene in New York City's Washington Heights (a major marketing centre for crack cocaine), how effective narcotics enforcement was in interfering with cocaine trafficking. His succinct and evocative reply: "We're like a gnat biting on a horse's ass."(36)


* Eugene Leon Oscapella, B.A. (University of Toronto), LL.B. (University of Ottawa), LL.M. (University of London), of the Ontario Bar. Former chair, Drug Policy Group, Law Reform Commission of Canada. Founding member, Canadian Foundation for Drug Policy. (e-mail: [email protected] )

1. One need only think of Canada's history of powers of search and seizure, the use of entrapment, informers, reverse onus provisions, mandatory minimum penalties, rectal searches, choke-holds, reporting requirements for large cash transactions and drug testing to see where some of those liberties have been cast aside in the name of battling drugs.

2. Patricia Erickson, "Recent Trends in Canadian Drug Policy: The Decline and Resurgence of Prohibitionism", (1992), 121 Journal of the American Academy of Arts and Sciences 239 at 251.

3. And the folly does not end with the cost of imprisonment (about $50,000 per year per person in a federal institution) and the loss of those imprisoned from the work force and their families. Take, for example, a drug bust reported in the Ottawa Citizen, November 28, 1992. Twenty-one alleged drug dealers and users were charged in a raid involving nearly 20 officers. The average value of the drugs (mostly hashish, marijuana and LSD) seized was $50. Add to that the cost of prosecuting (court administrative costs, and the value of the time spent by the police, prosecutors, social workers and judges, plus the possible cost of legal aid for the accused. Most of these offenders, of course, would not go to prison.)

4. Recent overdose deaths in Vancouver (about 175 in 1992) from high-grade heroin point to the same conclusion -- that prohibition increases the risk to drug users by encouraging the distribution of substances of unknown potency.

5. Mr. Justice Kirby was speaking at an international conference on legal issues arising from the Human Genome Project in Bilbao, Spain, in May 1993.

6. New York Times, Saturday, April 17, 1993, p. 1.

7. Ibid.

8. As well, Professor Barry Beyerstein of Simon Fraser University has been an outspoken critic of some drug "treatment" methods.

9. In the absence of a credible, independent national voice for drug policy reform, several of Canada's leading independent drug policy researchers formed the Canadian Foundation for Drug Policy in early June 1993. The immediate concern of the Foundation was to seek a reconsideration of Bill C-85, the Psychoactive Substance Control Act then before Parliament.

10. (Ottawa: Ministry of Supply and Services 1991) at 28.

11. Ibid. at 14-15.

12. The Globe and Mail reported on December 7, 1992 that marijuana had become the top cash crop in British Columbia.

13. Supra note 10 at 59.

14. Simon Fraser University criminologist Neil Boyd refers to the role of Emily Murphy, an Edmonton magistrate and suffragette, in spreading misinformation about marijuana in the early 1920's, just before marijuana was outlawed. Judge Murphy wrote a series of articles for Macleans magazine on drug issues. These were later published as a book, The Black Candle. Neil Boyd, High Society: Legal and Illegal Drugs in Canada (Toronto: Key Porter Books, 1991) 10.

15. Drug Policy Foundation, The Bush Drug War Record: The Real Story of a $45 Billion Domestic War (Washington, D.C.: Drug Policy Foundation, 1992) at 16.

16. Ibid.

17. Ibid. at 11-14.

18. Chester N. Mitchell, The Drug Solution (Ottawa 1990: Carleton University Press) 1-2 (references to footnotes omitted).

19. Ibid. at 347-48 (references to footnotes omitted).

20. Bruce K. Alexander, Peaceful Measures: Canada's Way Out of the War on Drugs (Toronto: University of Toronto Press, 1990) 71.

21. Ibid..

22. Neil Boyd, High Society: Legal and Illegal Drugs in Canada, supra note 14.

23. Supra note 2 at 255.

24. Ibid. at 247.

25. The founding members are:

Professor Bruce Alexander, Department of Psychology, Simon Fraser University, B.C. Tel: (604) 291-4124

Professor Line Beauchesne, Department of Criminology, University of Ottawa Tel: (613) 564-4019 (for inquiries in French)

Professor Barry Beyerstein, Department of Psychology, Simon Fraser University, B.C. (604) 291-2743

Professor Neil Boyd, School of Criminology, Simon Fraser University, B.C. (604) 291-3515

Dr. Patricia Erickson, Senior Scientist, Addiction Research Foundation, Toronto (416) 595-6913

Glenn A. Gilmour, Barrister and Solicitor, former adviser to the Law Reform Commission of Canada, Ottawa (613) 235-4566

Eugene Oscapella, Barrister and Solicitor, Ottawa (613) 238-5909

Dr. Diane Riley, Faculty of Medicine, University of Toronto (416) 978-1101

Professor Eric Single, Department of Preventive Medicine and Biostatistics, University of Toronto (416) 978-1772

Mr. Jan Skirrow, former Chief Executive Officer, Canadian Centre on Substance Abuse, Ottawa, and former Director, Alberta Alcohol and Drug Abuse Commission (AADAC) (604) 746-8577

Professor Robert Solomon, Faculty of Law, University of Western Ontario, London (519) 661-3603

26. (Ottawa: Canadian Centre on Substance Abuse, 1991).

27. September 2, 1989.

28. Book review, (1992), 66 Aust. L.J. 232.

29. Wall Street Journal, September 7, 1989.

30. The Independent, September 7, 1989.

31. Harper's, December, 1989.

32. Religious Coalition for a Moral Drug Policy, Reason, Compassion and the Drug War: A Statement by Religious Men and Women (Washington, D.C., 1990) 4-5.

33. Ibid. at 43-44.

34. Lester Grinspoon, "Marijuana Enhances the Lives of Some People", in Arnold Trebach and Kevin Zeese, ed., Drug Prohibition and the Conscience of Nations, (Washington, D.C., 1990: The Drug Policy Foundation) 157.

35. Ethan A. Nadelmann, "Thinking Seriously About Alternatives to Prohibition", (1992) 121 Journal of the American Academy of Arts and Sciences 85 at 86-87.

36. Jerome K. Skolnick, "Rethinking the Drug Problem", (1992), 121 Journal of the American Academy of Arts and Sciences 133 at 134.