Your guide to making money in the multi-billion dollar marijuana industry
| Own your ow legal marijuana business | Your guide to making money in the multi-billion dollar marijuana industry |
| Major Studies of Drugs and Drug Policy | ||||
| Canadian Senate Special Committee on Illegal Drugs | ||||
| Volume 3 - Public Policy Options |
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Chapter 21 - Public policy optionsLegislative
options
So what do
we do with the legislation? Legislation stems from public policy direction,
which it supports and completes; it is a means, not an end. Cannabis
debates
are highly contaminated by discussions on decriminalization, depenalization,
legalization. The terms are frequently poorly understood, especially as they are
not necessarily clear. This section defines each key term in the debate and
suggests indicators that can be used to assess each option. Clarification
of
terminology
Decriminalization
or depenalization
The United
Nations Drug Control Programme (UNDCP) glossary of terms on drugs gives the
following definitions of the two terms. Decriminalization
or
depenalization Removal of penal controls and criminal sanctions
in relation to an activity, which however remains prohibited and subject to
non-penal regulations and sanctions (e.g., administrative sanctions such as the
removal of driving licence). Under the “prohibition with civil
penalties” option, the penalties for the possession of amounts of drugs deemed
in law as being for personal use are still illegal but are dealt with by civil
sanctions such as infringement notices which attract a monetary penalty, rather
than by criminal sanctions such as a criminal record or imprisonment. Typically,
the harsher criminal penalties still apply to the more serious offences of
possession, supply, manufacture or cultivation of amounts of the drug deemed in
law to be for trafficking or commercial purposes.[1][20] For Caballero
and Bisiou, depenalization means essentially removing drugs from the field of
criminal law. They distinguish between total depenalization and depenalization
of use.[1][21] The first removes all control except free-market
forces. This is a far cry from the UNDCP definition. Depenalization of use
corresponds more closely to decriminalization as defined by UNDCP. It is also
the definition given by the European Monitoring Centre for Drugs and Drug
Addiction. Possessing or
holding cannabis for personal use has been decriminalized in Germany, Australia,
Spain, Italy, Portugal, the Netherlands, and some American states. The
resemblance ends there because each country has slightly different way of
reaching the goal. In Australia and the American states where possession of
cannabis has been decriminalized, possession remains illegal and subject to a
fine. In Germany, the constitutional court has ruled that prosecution for
possession of small quantities of cannabis contravenes basic rights and is
unjustified. In Spain and Italy, possession of small amounts of cannabis is not
an offence and consumption is authorized except in public places. However,
as in Portugal, individual possession of cannabis is subject to an
administrative penalty (fine in Spain and Portugal; suspended licence in Italy).[1][22]In the Netherlands, the possession offence has
never been repealed, although use and certain types of sale (coffee shops) are
tolerated. In all cases, decriminalization is partial. It is sometimes
de jure
(Spain, Italy, Portugal) and sometimes de facto
(the Netherlands, Denmark). In Canada,
some authors have written in favour of decriminalizing cannabis. One of the best
known papers on this option may be that published by the policy committee of the
Canadian Centre on Substance Abuse.[1][23] The authors identify four options for
decriminalization:
In Quebec,
the Comité permanent de lutte àla
toxicomanie (CPLT)
has made a recommendation proposing diversion measures when deemed appropriate by
the authorities.[1][24]The CPLT defines diversion as the “exercise, by the Crown prosecutor, of a
discretionary power enabling him to desist from prosecuting the offender and
instead apply alternate measures” [Translation].[1][25]However, diversion may be given a broader
definition, in which the discretionary power is exercised by the police prior to
a charge, giving a consumer a simple warning. The CPLT opinion notes the
following.
This timid
recommendation refuses to take a systematic approach and even links cannabis
consumption to delinquent or criminal activities, relating risk to consumption
of products with a high THC concentration, as if consuming spirits should be
subject to stronger measures than drinking wine. The
term “decriminalization” is obviously loaded with contradictions. Even though
the term purports to remove it from the ambit of criminal law, cannabis
consumption remains illegal. The sanction may be less severe, but a sanction
still applies, one that, in some cases, can have the same impact as a criminal
sanction and entail even greater discrimination: a young or disadvantaged person
unable to pay the fine faces a far greater risk of ending up in prison than an
adult or socially secure individual. As explained to the Committee by Dr.
Kendall: However, a cautionary note should be sounded. If
Canada did adopt this recommendation, we should be concerned and thus take steps
to avoid the situation in Australia, or to repeat that situation, where the
imposition of a cannabis expiation program actually led to a net widening
effect, because the police now ticketed individuals that they had previously
ignored. Many of those so ticketed failed to appear to pay their fines, and
subsequent numbers entered the criminal justice system for non-payment of fines
and subsequently received criminal convictions. There was an unintended result
in that the number of persons criminalized is as large, or perhaps larger, than
before the measure was implemented.[1][26] In spite of its merits and success, the Dutch system of controlled cannabis sale, a
form of de facto
decriminalization, has no way of regulating production and distribution, which is still controlled
at least in part by organized crime, or exercising quality control, specifically
the concentration of THC. In the opinion of some authors, decriminalization is in fact simply less
severe prohibition.[1][27]In other words, in the guise of a socially
responsible and rational measure, decriminalization in fact furthers a
prohibitionist logic. Same grounds, different form. This model has no greater
capacity for prevention or education than a strict prohibition model. Even
worse, the prohibition model is based on clear and consistent theory, whereas
the same cannot be said of decriminalization as an approach. Some will
say that decriminalization is a step in the right direction, one that gives
society time to become accustomed to cannabis, to convince opponents that chaos
will not result, to adopt effective preventive measures. We believe
however that this approach is in fact the
worst-case
scenario, depriving the State of a regulatory tool needed in dealing
with the entire production, distribution, and consumption network, and
delivering a
rather hypocritical message at the same time. Legalization
The United
Nations glossary of terms defines this term as follows. Legalization Removal of the prohibition over a previously
illicit activity, e.g., non-medical trade or consumption of psychoactive
substances. It does not necessarily imply the removal of all controls over such
activity (e.g. restriction on sale to minors). [1][28] The
term “legalization” is equivalent to Caballero and Bisiou’s concept of
depenalization, although it does not rely solely on market forces but
includes a form of regulation entailing some restrictions. To quote: Controlled legalization is a system that aims to
replace existing prohibition of drugs by regulation of their production, trade,
and use with a view to restricting abuse that can damage society (…) unlike
depenalization, penal law retains its role in preventing damage to third parties
by users (drunkenness) or producers (contraband). [Translation][1][29] No system
for controlled legalization of cannabis currently exists. Switzerland comes
close with its bill to amend the Loisur
les stupéfiants. This type of regulation is nothing new: colonial opium and
kif regulatory bodies operated well into the first half of the twentieth
century. Conversely,
legalized
systems exist for the manufacture, distribution, sale and production of such
products as alcohol, tobacco, and psychotropic medications. These could be used
as a model for regulating the cannabis production chain. Regulation
The United Nations glossary of terms defines
regulation as follows: Regulation The rules governing all aspects of drug control
promulgated pursuant to legislation. Violation of these rules may attract
criminal or non-criminal penalties, such as fines and license suspension,
depending on the seriousness and the intentional nature of the violation.[1][30] Although one
may play with words, regulation is in fact a necessary application of any form
of control, whether within a system of prohibition or a system of legalisation.
All consumer products, from the automobiles we drive to the food we eat, are
subject to some form of regulation. Quality control, environmental standards, compliance
with industrial standards, regulations on accessibility—all are forms of
regulation essential for ensuring no one is poisoned by the food they eat,
drives a defective vehicle, or plugs in a dangerous appliance. Regulation is
the most current form of government control; criminal law usually intervenes
when the controls fail or mandatory standards are not met. The same is true of the current international system for controlling narcotics.
Canadian legislation deals with “controlled” substances. The control system may
range from prohibition of all non-medical and non-scientific use (e.g., opium,
cocaine, cannabis), to less severe control measures that allow
accessibility to products deemed dangerous, under specific conditions. Classification
of legal policy systems
MacCoun,
Reuter
and Schilling examine various systems of legal policy, which they divide into
three main types: prohibitionist, controlled access, and regulated access, each
of which can be broken down further. Their classification system is reproduced
below.[1][31] Prohibitionist
systems
vary along a number of lines: based on the nature of prohibited activity (e.g.,
possession, use, use in public); based on the severity of sanctions (civil
penalty, criminal penalty, imprisonment); based on the severity of enforcement
(resources, priorities); and based on the capacity to exercise discretionary
power (diversion, alternative measures). This makes it clearer why
decriminalization remains in essence a prohibitionist approach, albeit a less
severe
one. Controlled
access
systems are in a grey area somewhere between prohibition and regulation. In some
ways, they are more like prohibition models, particularly by giving powers of
decision to a physician or pharmacist rather than promoting individual user
responsibility. This is the medical model criticized by Szasz, Caballero and,
closer to home, Malherbe, in his discussion paper on the role of ethics and
public health. One can see why harm reduction approaches belong in this grey
area, somewhere between prohibition and regulation, with the prescription of
methadone or heroine for treating addiction the perfect example of medical power. The third
type is the regulatory model that exercises various types of control on who (who
may purchase, restrictions on minors), what (different accessibility levels for
different substances), how (point of sale, location, requirement for producers
and vendors) and when (time of day, days of the week).
Controlled access Regulatory
Pure prohibition : no use possible (i.e.,
cannabis)
Decreasing
restriction Prohibitionist prescription : medical and
scientific purposes only
Treatment : prescription for the treatment
of dependency (i.e.,methadone)
Regulated prescription : auto
administration under prescription to treat medical conditions (i.e, Valium)
Positive licensing : available to any
adult with a licence to demonstrate his capacity to make responsible use
Negative licensing : accessible to any
adult who has not violated some condition (i.e., criminal behaviour)
Free market for adults : similar to alcohol
Free market : no regulation (i.e., coffee).
In our
opinion, there are basically only
two systems:
a prohibition system and a legalization system. Both rest on regulation, and the nature and direction of this regulation determines
their specific
features. Prohibitionist
systems
may be subdivided into criminal and medical prohibition. In the first case,
sometimes referred to as outright prohibition, the justice system (police and
the courts) is central. In the second, the physician is the key player. In both
cases, the user is considered a “minor”, a person in danger who must be
protected from himself. Some call this legal paternalism. Both variations can be
more or less strict, more or less severe, but rest on the concept that all use
that poses a danger to the user and society and must be strictly controlled. In
this scenario, decriminalization of
use is a weak variation of prohibition, in the long run entailing
more disadvantages than advantages. In addition to failing to affect the
production chain and retaining the illegal aspect, it leaves no room for
dispensing information to and promoting responsible behaviour by users, or for
strong preventive measures. Conversely, the
harm reduction approach is a strong variation of a prohibition system. While
this approach recognizes the impossibility of eliminating the damage done by
market criminalization, it seeks nonetheless to reduce the negative effects of
prohibition on users, who are the focus of its main thrust, by introducing
education on drug content (for example, analysis of ecstasy consumed
at raves). ProhibitionSystem
Main player Degree ofprohibition Severity
Medical Police / Justice Physician Prohibition
of fabrication, cultivation, production, sale, trafficking, use and consumption Decriminalization of use with criminal process
/ diversion Civil offences Recognized
therapeutic uses only Treatment for dependency General prescription by a physician
A prohibition
system, whether criminal or medical, calls for regulation derived from criminal
law: any interaction with drugs that is not authorized under the medical model
is punished by a criminal or quasi-criminal penalty. The other
type of system rests on legalization of cannabis. It can also take various
forms. Legalization
System
Main
player Accessibility
level Degree of
control
Market Community User User licences Licence for production / distribution / sale Free market
+ - Legalization
systems
range from issuing a user licence under certain conditions (e.g., no criminal
record, no dependency problems), to permitting a completely uncontrolled free market. |
