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Major Studies of Drugs and Drug Policy | ||||
Canadian Senate Special Committee on Illegal Drugs | ||||
Volume 2 - Policies and Practices In Canada |
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Chapter 12 - The National Legislative ContextFrom
1960 to the Le Dain Commission: the search for reasons
The period following World War II
witnessed new attitudes toward narcotic drug control that would call into
question the approach adopted by Canada since 1908 in fighting the abuse of and
trafficking in narcotic drugs. The international human rights movement, the
creation of organizations dedicated to the defence of civil liberties, the
gradual democratization of access to universities, the appearance and
development of new disciplines in the social sciences such as criminology,
psychology, sociology, political science and the sociology of law, scientific
progress and research into drug addiction were factors in the creation of new
pressure groups consisting of more articulate individuals who disputed the use
of criminal law as a “miracle” solution in responding to drug problems.
However, it was not until the explosive increase in drug use in the 1960s, the
hippie protest movement and the work of the Le Dain Commission that these
demands materialized. Narcotic
Control Act (1961)
Passage of the Narcotic Control Act (Act of 1961)[1][72]
coincided with the
coming into force of the Single
Convention on Narcotic Drugs of 1961, which played an important role in the
creation of the modern international narcotic drug control system, an extension
and expansion of the international legal infrastructure developed between 1909
and 1953. Work to group together the nine multilateral treaties signed during
that period into a single international enactment began in 1948, and Canada
played a significant role in the negotiations and drafting that led to its
adoption. While the Act retains most of the
criminal procedures and offences established over the previous years, two
amendments formed the subject of major parliamentary debate: the creation of an
offence for illegal importing or exporting of narcotics and the increase in penalties
for the offence of trafficking, and the treatment of drug addicts?. The minimum
prison term of six months for simple possession was repealed, as was the
procedure that provided that the Identification
of Criminals Act would apply in the case of a summary conviction and the
provision eliminating the right of appeal for certain offences. The Act of 1961 was divided into
two parts: the first, entitled “Offences and Enforcement”, was placed
under the authority of the Minister of Health, and the second, “Preventive
Detention and Detention for Treatment”, was to be administered by the Minister
of Justice. As the Senate Committee had
recommended, section 5 of the Act of 1961 created the offence of importing
and exporting narcotic drugs. Whoever was convicted of that offence (solely by
way of indictment) was liable to a minimum prison term of seven years to a
maximum of 25 years. That provision was designed to combat drug smuggling
between the United States and Canada and to comply with the international undertakings
Canada had made in ratifying the Single Convention.[2][73] In accordance with another
recommendation from the Senate Committee report, section 4 of the Act of
1961 raised the maximum prison term for trafficking in narcotic drugs from 14
to 25 years. The provision for whipping was also repealed. These
amendments also applied to the penalty provided for possession for the purposes
of trafficking. Part II of the Act, which
comprised sections 15 to 19, defined the new federal policy regarding
preventive detention and detention for treatment. First, the courts henceforth
had the power to order that an individual convicted of trafficking, possession
for the purpose of trafficking or importing/exporting drugs, and only if the accused
had previously been convicted of similar offences, be placed in preventive
detention for an indeterminate period of time. This measure replaced any other
sentence which might have been imposed. Second, when a person was charged with
simple possession, possession for the purpose of trafficking, trafficking or
import/export, the court, at the request of Crown counsel or the accused, could
order the accused detained for examination purposes to determine whether he was
eligible for a drug addiction treatment program. If that was the case, the
accused had to be sentenced to detention for treatment at a specialized federal
institution for an indeterminate period of time in lieu of any other sentence
provided for under the act. For a first offence, preventive detention could not
exceed 10 years. The individual had a right of appeal, was subject to the Parole Act and could be referred to
preventive detention at any time if he used drugs during his probation period. Lastly, the Act of 1961 provided
that, if a province adopted a preventive detention policy combined with a drug
addiction treatment program (in cases not involving an offence under the act),
the federal government could enter into an agreement with the competent
authorities of that province to transfer drug addicts to the specialized
federal institutions. These new provisions in fact enacted the Senate
Committee's proposals. Despite the intervention of two
ministers, this treatment policy, based on a penal approach and, to a certain
degree, oriented toward repression of the “contaminating user” or “criminal
user”, failed to stir up interest among parliamentarians. The measures were
passed without opposition but, for reasons that remain unclear, were never
proclaimed. The
Le Dain Commission moreover questioned this decision by the federal
government: “Whether this is because of
doubts about the constitutional validity of these provisions or the failure to
develop suitable treatment methods and facilities or later reservations by the
government as to the advisability of compulsory treatment in principle, or some
combination of these, it’s not clear.”[3][74] Another
provision of the Act of 1961, but not the least, was passed by Parliament
without debate: the schedule. The Single Convention of 1961 contained a series
of schedules prepared by the World Health Organization containing the list of
drugs subject to rigorous control for the purpose of preventing them from being
used for other than medical or scientific purposes. Most were on the schedule
to the Act of 1961, which now comprised more than 92 drugs and their
derivatives, spread over 14 major classes (opium, cannabis, coca,
phenypipedridine, and so on). No member of Parliament questioned the Minister
of Health to determine the criteria or reasons advanced by his department for
subjecting such a large number of substances to the restrictive provisions of
the act. An
Act respecting Food and Drugs and Barbiturates (1961)
In the early 1960s, the use of drugs
not included in the schedule to the Opium
and Narcotic Drug Act, or, later, in the Narcotic Control Act, began to concern medical and government
authorities. These drugs were barbituric acids or “goof balls”, amphetamines,
methamphetamines and the salts and derivatives of those three substances. These
so‑called psychotropic drugs could be used to reduce stress, eliminate
insomnia, stimulate muscle and brain activity and eliminate appetite. When physicians and other health
professionals began to notice the number of barbiturate dependence cases and
the serious secondary effects of those drugs in the 1950s, they asked the
government to regulate their distribution and use more effectively. In
addition, in 1957, following a Health Department survey of 2,500 pharmacies,
more than 300 pharmacists were convicted for failing to comply with
regulations respecting the prescription of barbiturates and amphetamines. This
time, it should be pointed out, the position of health professionals had more
influence on government authorities than the positions of police officers or
the Narcotic Control Office. These substances were included in the Food and Drugs Act as “controlled drugs”
and not in the Narcotic Control Act,
for two reasons. First, certain harsh provisions of the Act of 1961 were
coming under increasing criticism. Second, the use of those substances in a
number of prescription medications meant that their use was widespread among
the general public, particularly among persons holding good jobs, which
ultimately was quite different from the unflattering picture hitherto painted
of “drug addicts”. In the circumstances, having recourse to the provisions of
the Act of 1961 was out of the question.[4][75] In 1961, Parliament thus passed the Act to Amend the Food and Drugs Act (Food
and Drugs Act of 1961)[5][76] to better regulate the trade in
barbiturates and amphetamines. The new act created Part III concerning the
“controlled drugs” listed in Schedule G. It also created the offence of
trafficking or possession for the purpose of trafficking, for which an accused
was liable to a maximum prison term of 10 years, if convicted by way of
indictment, or 18 months by summary conviction. However, simple possession
of the substances was not illegal. Furthermore, unlike the Narcotic Control Act, the definition of trafficking excluded the
distribution or giving of a controlled drug, but included the offences of
importing and exporting. In the case of criminal procedures
applicable in a trial, a number of aspects were retained from the Act of 1961,
such as the procedure concerning the reverse onus in a prosecution for
possession for the purpose of trafficking, the use of a certificate from a
federal analyst to confirm the nature of the drug, search and seizure writs of
assistance, and the forfeiture and restitution of seized substances. Lastly, Schedule G of the Act
included three drugs: amphetamines, barbituric acids and methamphetamines,
as well as the salts and derivatives of those drugs. During the debates, one
member asked why other similar substances were not included in the schedule.
The Minister of Health answered that, based on scientific research, only those
three drugs were considered dangerous to human health.[6][77] Furthermore, as had been the case with
the Opium and Narcotic Drug Act and
the new Narcotic Control Act, the
Governor in Council could make regulations upon recommendation by the Minister
of Health, and where the public interest warranted it, to amend the schedule.[7][78] Food and Drugs Act and hallucinogenics (1969)
In 1969, Parliament extended the
application of legislative and bureaucratic controls to hallucinogenic drugs by
passing the Act to Amend the Food and
Drugs Act (Food and Drugs Act of 1969).[8][79] That enactment created Part IV, which was to govern the use of and
trade in “restricted drugs” enumerated in the new Schedule J. Those drugs
were lysergic acid diethylamide (LSD), N-Diethyltryptamine (DET) and
Methyl-2,5-dimethoxyamphetamine (STP). To better control the use of and
trade in hallucinogenic drugs, the act provided for the same offences and
procedures as those applying to barbiturates. It also created an offence of
possession in order to deter anyone from using such drugs. In that instance, an
accused was liable, on summary conviction, to a maximum prison term of three
years and a fine of $5,000.[9][80] If found guilty of a first offence, on summary conviction, an accused
was liable to a prison term of up to six months or a maximum fine of
$1,000. For subsequent convictions, the act provided for a maximum prison term
of one year or a fine of $2,000. Narcotic Control Act and the offence of possession of cannabis
In the parliamentary debates on the
Food and Drugs Act of 1969, the Minister of Health moved a very important
amendment to the Narcotic Control Act.
From 1921 until the Narcotic Control Act
was passed, Canadian legislation had provided for a hybrid offence in the case
of simple possession of a drug. Since 1961, however, that offence was solely an
indictable offence punishable by a prison term of up to seven years. The
amendment proposed in 1969 maintained the offence, but again offered the option
of proceeding by way of summary conviction, thus recreating a hybrid offence.
In the case of a first offence in which an accused was found guilty on summary conviction,
the Act provided for a maximum prison term of six months or a fine of up
to $1,000, and a term of up to one year and a fine of $2,000 for
subsequent offences. The amendment was considered necessary by the Minister of
Health since the number of prosecutions for cannabis possession had increased
from 493 in 1966 to 1,727 in 1969.[10][81] In his view […]
in spite of the enormous variety of individual situations involved in that
number of cases, the relevant section of that act provides very little scope
for flexibility, either on the part of the Crown prosecutors or presiding
judges or magistrates. There is no provision for the Crown to choose to proceed
summarily. […] This rigidity has been the subject of increasing criticism from
a wide variety of sources such as the addiction research agencies of several
provinces. [11][82] Lastly, the Food and Drugs Act of
1969 amended the procedure adopted in 1929 providing for the admissibility of a
certificate from a federal analyst at trial for an offence involving a
scheduled drug under the Narcotic Control
Act or a Schedule G or J drug under the Food and Drugs Act. Crown prosecutors would henceforth be permitted
to prove orally, under oath, by affidavit or solemn declaration, the status of
the signatory of the certificate, who thus no longer had to appear in court.
However, a judge could require the analyst to appear before him for examination
or cross-examination to better assess the information contained in the
affidavit or solemn declaration. The amendment was designed to ensure greater
respect for the fundamental rights of the accused. [1][72] Statutes
of Canada, 1961, c. 35. [2][73] Hansard,
House of Commons, June 7, 1961, page 6794. [3][74] G. Le Dain et al., Cannabis: Report of the Commission of Inquiry into the Non-Medical Use
of Drugs. Ottawa: Government of Canada, page 221. [4][75] P.J. Giffen et al., op. cit., pages
471-475. [5][76] Statutes
of Canada, 1961, c. 37. [6][77] Hansard,
House of Commons, May 30, 1961, page 5799. [7][78] Subsection 37(2)
of the Food and Drugs Act, 1961. [8][79] Statutes
of Canada, c. 41. [9][80]
Section 9
of the Food and Drugs Act, 1969. [10][81]
Hansard, House of Commons, March 27, 1969, page
7203. [11][82]
Hansard, House of Commons, March 27, 1969, page
7203. |