Chapter 3- Our Guiding Principles

Criminal law and the limits of prohibition

During the course of this report, we will have plenty of opportunity to describe the degree to which criminal law is at the very heart of any discussion of illegal drugs. It has come to the point that debates between those we refer to as prohibitionists on the one hand, and liberalists on the other, have overshadowed all other considerations. The Italian sociologist Pareto (1848-1923), quoted by Professor Pires in his issues paper, said of human beings that even if we would like to believe that we are rational, we are above all argumentative beings, that is to say that we want “to give a logical aspect to behaviours that do not have the substance thereof.”[1][13] In the context of the debate on cannabis, this sentiment takes on its fullest meaning: both sides hurling their arguments at the other, claiming they are recognized “truths”.

Any discussion on the role and the place of criminal law as concerns illegal drugs, here being a question of cannabis, in effect poses questions regarding principles of the appropriateness of turning to criminal law. In general, both sides are quick to escape this stringent argument on the principles to turn to justifications. As is true of both sides, justification has nothing to do with the mechanism itself, being the criminal law, but with the target, being cannabis. The result is the litany of “proofs” of the effects of cannabis. For some, the effects are significant enough to “justify” turning to the criminal law, and to list the risks associated with the use of cannabis: addiction, learning difficulties, delinquency, and impaired driving. For others, these same risks are so minimal, or are already covered by other criminal legislation (driving under the influence), that they do not justify the use of the criminal law. Whatever the case may be, the debate is no longer in relation to the principles but on justification. 

This reflection on the role of criminal legislation is specifically intended to bring us back to principles of the appropriateness of turning to criminal law. The central issue is to attempt to identify the criteria that will help us decide in what circumstances society can–or must–turn to criminal law. It must then be determined if these criteria justify the use of the criminal law in relation to cannabis.

Requirement for distinctions

Raising the question as to whether or not the use of criminal law as concerns cannabis is justified necessarily brings us back to a primary observation: the use of criminal law is not justified in all cases, but, in some cases, it must be. This observation is supported by three findings: (1) that most social relationships are regulated without the use of criminal law; (2) that certain behaviours are forcibly within the sphere of criminal law; and (3) that certain behaviours legislation has criminalized, at certain points in time, have since been excluded from this domain. The possibility of including or excluding human actions from the sphere of criminal legislation rests on the ability to make distinctions.

However, a significant difficulty arises as soon as this principle of distinction is accepted in practice, and not simply in theory. Once an act has been recognized as being a “crime”, it becomes part of the body of what defines all offences: behaviours against society. According to the internal logic of criminal law, the only eligible distinction would precede the decision to incorporate a behaviour into the law or not. If the behaviour at issue is one that goes against the common good, it is a crime. Otherwise, it would be an uncivilized act, perhaps even an immoral one, but certainly not a crime.  Once such a decision is taken, the only remaining distinctions to make would be with respect to form: the kind of procedure to follow and the severity of the punishment according to the nature of the offence.

Everything is done as if there were no positive distinctions made within criminal law between offences, as if the distinction was made only from the outside, before making the act an offence. In fact, distinctions between types of offences do exist. These are the distinctions made by Professor Pires, between standard prohibited behaviours and “two-sided” prohibited behaviours. It is more usual to distinguish between “victimless” crimes and crimes “with victims”, but this categorization is incorrect. On the one hand, under criminal law, the victim is all of society. There are certainly individual victims, but by some kind of extension, the harm has in fact been done to all of society. This would explain the principle of deterrence, in criminal legal theory: by punishing a guilty party, we try to dissuade all those who might be tempted to behave in the same way.

On the other hand, this categorization brings us back to a single aspect, the subject of the offence, losing view of the other processes by which criminal law distinguishes between different kinds of offences. In this way, another kind of distinction that is intrinsic to criminal law falls under the modes of justification. A decision to criminalize homicide does not require, as Professor Pires stresses, the undertaking of comparative studies in order to determine if one kind of murder is more or less harmful than another to the victim. The cognitive component is weak: here, there is no need to turn to external arguments to justify the criminalization. The act, in and of itself – this is the concept of malum in se – is enough to establish the legitimacy of the criminal standard. There is no such thing when the issue is drugs: since the beginning of prohibition, external justifications were needed regarding the harm caused by drug use. These subjects of criminalization have a strong cognitive component, in that they require a higher level of justification. 

The distinction between kinds of prohibitive behaviours is therefore an analytical tool that is necessary in order to understand and think about the role of the criminal law as concerns drugs. What then are the criteria we can use in order to make these distinctions? This is the goal of the following sub-section.