Chapter 21

Public policy options

Public policy is not just a matter of enabling legislation, in this case criminal legislation. Nonetheless, when it comes to illegal drugs, criminal legislation occupies a symbolic and determinative place in public policy. It is as if this legislation is the backbone of our public policy. Public discussions of cannabis do not deal so much with such matters as public health, user health, prevention of at-risk or excessive use, but with such questions as the pros and cons of decriminalization, establishing a civil offence or maintaining a criminal offence, or possible legalization and the extent thereof. As we complete our report, the Minister of Justice is releasing trial balloons in relation to decriminalization. Apart from the merits of this approach–to be discussed at length in this chapter – it is clear that tinkering with the criminal legislation is not indicative of an authentic public policy. In this Committee’s view, a public policy on cannabis must be, first and foremost and essentially, a public health policy based on encouraging government and users to assume more responsibility.

On a general level, the tendency to reduce drug issues to the legal framework fits neatly into the increasing juridicization of social relations, a situation in which legislation is the central, sometimes the only, tool of government policy. However, in the matter of illegal drugs, other factors are also at work.

On the one hand, this attitude has been at the very heart of the approaches to drugs throughout the twentieth century, approaches in which criminal prohibition guides - and restricts - public policy. It is only because of the AIDS crisis that the merits of harm-reduction approaches have been “discovered.” Even then, decision-makers were often preoccupied more with protecting non-user members of society than with improving the health of drug users. When governments decided to tackle the criminal behaviour of drug users deriving from the criminalization of drugs (we do not mean organized crime and drug traffickers), the aim was not so much to improve drug users’ living conditions but to protect non-users from drug-related “mischief.”

On the other hand, criminal prohibition is often thought of as the “ultimate stronghold” against uncontrolled proliferation of drug use. Without criminal prohibition, we were told, cannabis consumption might well explode out of control. The underlying hypothesis, rarely stated explicitly, that criminalizing drugs contributes effectively to reducing their use, has never been demonstrated, however. Quite the contrary, as this chapter will show, available data tend to demonstrate that prohibitionist policies have little impact on levels of use or availability of drugs.

Public policy cannot be reduced to adopting legislation, the more so since laws rarely contain clearly stated guiding principles setting out aims and objectives. In respect of illegal drugs, where the key issues are, first and foremost, matters of public health and culture (including education and research), and where criminal law should be used only as a last resort, public policy must be based primarily on clear principles and objectives. For this to come about, public policy must be equipped with a set of tools designed to deal with the various issues that drugs represent to societies. Legislation is only one such tool.

The social and economic costs of illegal drugs affect many aspects of society through lower productivity and business loss, hours of hospitalization and medical treatment of all kinds, police time and prison time, and broken or lost lives. Even if no one can pinpoint the exact figures, a portion of these costs arise, not from the substances themselves, but from the fact that they are criminalized. The drug most frequently associated with violence and criminal offences, including impaired driving, is in fact legal, alcohol.[1][1]  Cannabis, the criminal organizations that control part of the production and distribution chain aside, neither leads to crime nor compromises safety. Even its social and health costs are relatively small compared to those of alcohol and tobacco. In fact, more than for any other illegal drug, we can safely state that its criminalization is the principal source of social and economic costs.

However, in spite of the fact that the principal social costs of drugs affect business, health and family, the emphasis on the legal debate tips the scales of public action in favour of law enforcement agencies. No one can deny that their work is necessary to ensure public order and peace and to fight organized crime. At the same time, over 90% of resources are spent on enforcing the law, the most visible actions with respect to drugs in the public sphere are police operations and court decisions and, at least in the case of cannabis, the law lags behind individual attitudes and opinions, thus creating a huge gap between needs and practice.

Most national strategies display a similar imbalance. The national strategies that appear to have the greatest chance of success, however, are those that strive to correct the imbalance. These strategies have introduced knowledge and observation tools, identified indicators of success with respect to their objectives, and established a veritable nerve centre for implementing and monitoring public policy. The law, criminal law especially, is put in its proper place, that of one method among many of reaching the defined objectives, not an aim in itself.

This chapter is divided into three sections. The first examines the effectiveness of legal measures for fighting drugs and shows that legal systems have little effect on consumption or supply. The second section describes the various components of a public policy. The third considers the direction of criminal policy, and defines the main terms used: decriminalization, depenalization, diversion, legalization, and regulation.