Cannabis 

The Report of the Canadian Government Commission of Inquiry into the Non-Medical Use of Drugs - 1972

Canadian Government Commission of Inquiry into the Non-Medical Use of Drugs, published by Information Canada, Ottawa, Canada, 1972, Crown Copyrights Reserved

CONCLUSIONS AND RECOMMENDATIONS

of lan L. Campbell

I am in almost full agreement with my colleagues' conclusions about the effects of cannabis, its relative potential for harm, the extent of its use, and the social costs and inappropriateness of the present law. I agree with them about the importance of finding means to discourage its use and in their special concern about use by adolescents. I also accept their cost-benefit approach to the problem and their concern to find sound jurisprudential foundations for social policy. However, I must dissent from their recommendation that the prohibition of the simple possession of cannabis be repealed and from part of the recommendation concerning cultivation. I am in full agreement with all of their other recommendations.

A principal reason for my dissent is a fear that a repeal of the prohibition of simple possession, at this time, would be apt to be seriously misinterpreted, particularly by young people. The risks of such a misinterpretation, and the consequences which could follow from it, seem to me to outweigh the obvious advantages of repeal. Unfortunately, a repeal of the prohibition could too easily be taken as reflecting a judgement that cannabis is indeed safe. It is not realistic to expect that the balanced discussion of the drug's effects and potential for harm in this report will be read in detail by many potential users. The press is not likely to report in full our statements about the known and potential dangers of cannabis. Those of our cautionary statements that are reported and read are very apt to be glossed over and quickly forgotten. If the prohibition on the possession of cannabis were repealed they would be forgotten all the more quickly, and an environment would be created in which the cautionary statements of others might not be taken as seriously as prudent judgement would warrant. There are a number of reasons why a repeal of the prohibition would be prone to serious misinterpretation at the present time. One of the more important is the fact that so much of the debate about the legal status of cannabis has been built on the assertion that the drug is safe and should therefore be legalized and the counter assertion that it is highly dangerous and must be prohibited, or the argument that prohibition must be maintained until science has proved the drug safe. The frequent development of the argument in these simplistic terms has created a context in which repeal of the prohibition would be particularity prone to be accepted as an endorsement of the safety of cannabis. Moreover, the attitudes of many young people to adult authority are such that many will leap to the conclusion that the prohibition would have been maintained had there been any substantial evidence that the drug was dangerous or had a real potential for harm. As well, it seems inevitable that the action of repealing the prohibition would be used as propaganda with which to encourage the use of marijuana and hashish.

I think there is also a risk that the repeal of the prohibition on the possession of cannabis, even by the young, would be misunderstood as indicating a willingness by the society to condone and accept the use of the drug. There is little evidence to suggest that such a willingness exists.

Whether or not the reasons for repeal were misunderstood or misinterpreted, I am certain that repeal would be followed by a marked increase in the numbers who would use cannabis. It is, of course, impossible to estimate with any precision the numbers of new users that would result. However, available evidence makes it not unreasonable to think that there are more than half a million Canadians who have not used cannabis who would if possession were legal. No doubt, many of these potential users will, in time, come to use the drug whether or not the prohibition is lifted. In all probability, the vast majority of them will come to no harm as a result. Indeed, I am sure that the vast majority will never pass beyond experimental or occasional use. But a minority will inevitably become regular users. Some of these will have their appetites whetted for the hallucinogenic experience and will move on to try LSD and other strong hallucinogens. The risk of such progression is probably not as great among those who have been deterred from use by the present law as among those who have already used cannabis. But the risk of progression is nonetheless real for some considerable number. Moreover, cannabis is generally perceived as a 'drug' in a way that alcohol is not. It is still too often linked with drugs such as LSD. A marked change in social policy removing a strong pressure against the use of marijuana and hashish would be apt to alter the general context of 'drug' taking in a fashion that could well facilitate the acceptance of other drugs.

The repeal of the prohibition of simple possession would also probably have the effect of increasing the frequency of use of many of those who have already used cannabis. In some cases this would occur because repeal would be incorrectly taken as an endorsement of the drug's safety and the acceptance of its use, in other cases because a moral and legal pressure against use had been removed.

It is clear that the existing laws have failed to deter more than a million Canadians from cannabis use. This failure has all the marks of becoming as great as the failure of the prohibition of the use of alcohol. But it is also clear that the law continues to have a deterrent capacity for many. I am sure that relatively little of that deterrent power comes, today, from the sanctions that can be applied against offenders. Rather, it comes from the fact that there are very large numbers who continue to respect the law. The law continues to have a moral power to command obedience. In part, this no doubt comes from a recognition of an obedience properly owed by the citizen. In part it also springs from a perception of the law as the embodiment of a conventional wisdom that one is prudent to heed. I am not persuaded that the time has yet come to remove the deterrent to cannabis use that the law prohibiting simple possession provides.

It can, of course, be argued that the prohibition of the possession of cannabis is so clearly an improper use of the criminal law power of the state that it should be repealed notwithstanding the probable consequences.

It seems to me to be an unassailable proposition that the majority may properly prohibit through the law conduct that is manifestly offensive or disturbing to them whether or not that conduct inflicts an injury on any particular person beyond the actor. This principle is recognized in our laws against public nudity. There is every reason to think that the public use of cannabis is offensive and disturbing to the vast majority of Canadians. There is even more reason to think that public use by young people is particularly offensive. Hence, it appears not inappropriate that such behaviour should be forbidden by law. There are, of course, areas where it has been accepted that behaviour must not be forbidden even though it is widely offensive-even to the vast majority. Such is the case with the expression of political, religious, or philosophical opinion and to a large extent the case with artistic expression. But these exceptions are made largely because to deny a right to such utterances is held to deny a right to use fundamental human vitality and potential that can find no other outlet and that a man denied this freedom is less than a whole man. We do not hold that a denial of a right to public nudity or to public sexual activity is thus fundamentally limiting. I would find it ludicrous to argue that the denial of right to public cannabis use is a denial of any basic human freedom or the suppression of any valuable potential.

But what of private use? Is the use of cannabis to be condoned along with private homosexuality among consenting adults? Here a prohibition must rest upon a perception of serious risk of harm to the individual and an acknowledgement of a right to prohibit the citizen from exposing himself to such risks, or a perception of a serious risk to others or to the continued vitality of the society. I see the use of cannabis as presenting clear and potent dangers both to the individual and to our society. There is evidence enough to suggest a growing liking by young people for the intoxicated state whether the intoxicant be alcohol or cannabis. To whatever extent youthful experience of intoxication predisposes to chronic adult intoxication or acts to limit the full and healthy development of human potential it lessens the capacity of the individual for a full, rich and creative life and lessens his potential contribution to his society. The use of cannabis by young people is already widespread enough to give rise to real concern. It has already done real harm to many young lives. Consequently, I feel that the deterrence to use provided by a legal prohibition on possession ought to be maintained.

The potential for harm from adult use of cannabis is probably very much less than from use by the young. But, I find sufficient reasons to recommend the continuation of the general prohibition. Not the least of these reasons is the practical impossibility, at this time, of using the law to convey a perception of the dangers of cannabis without maintaining the prohibition for all, whether young or old.

The position of John Stuart Mill has frequently been put to us as a philosophical basis for removing the prohibition on the possession of cannabis. It has been urged that the law should not be used to prevent the individual from exposing himself to dangers that threaten him alone, and, that if as a result of intoxication he comes to injure another he ought to be punished for that injury. However, even if I were to fully accept the Mill position, I would, at this time, recommend that the prohibition be continued. The use of cannabis by young people has caused and continues to cause very real injury to the lives of tens of thousands of parents and others in the families and circles of friends of users. There can be no doubt of the magnitude of the injury to these people as individuals and to whole families.

Many young cannabis users have shown an almost callous lack of concern for consequences of their behaviour-a callousness that does not accord well with their preachments about love and concern and respect for others. Moreover, Mill recognized that limitations might properly be applied to the young, that should not, in his view, be applied to adults. a sence of a practical means of determining the presence of cannabis in the body makes it difficult or impossible to determine the fact of intoxication in cases where intoxication would contribute to the infliction of an injury to another.

In appearing before us, young people have frequently insisted that their right to make decisions that affect only themselves is in all respects equal to that of adults. I have already rejected the opinion that cannabis use by young people affects only them. However, the assertion that their rights are identical to those of adults must be answered. There are rights, such as a basic right to life, that seem to me to be properly attached to an individual at the moment of conception. But most rights become properly attached to an individual only as he matures in his capacity to exercise them with a tolerable level of wisdom, as he develops an ability to perceive a corresponding repertoire of responsibilities to himself and to others, and as he gains an ability to recognize and wisely weigh the consequences of his behaviour. We have properly been concerned about the damage done by placing too many duties and responsibilities on the individual too early. But it seems to me that recently we have been far too little concerned with the consequences of placing too many rights and freedoms on the shoulders of the young.

It was frequently put to us that the maintenance of the prohibition on the possession of cannabis would contribute to a further alienation of young people in Canada and would foster an increased disrespect for the law in general. There is no doubt that the law with respect to cannabis and the manner of its enforcement has contributed to the alienation of a certain number of young people. It has been perceived, by them, as stupid and hypocritical legislation applied in a discriminatory manner. The very heavy and clearly inappropriate penalties imposed on some users and the obviously selective nature of enforcement have probably contributed as much or more to this reaction than the fact of prohibition per se. I can see relatively little danger of producing profound alienation if we apply a reasonable law, with reasonable sanctions that both reflects the drug's actual potential for harm and the dominant attitudes and concerns in the society.

Many young people have argued before us that as their parents have chosen alcohol as an intoxicant they have chosen cannabis-that we are an alcohol and they the marijuana generation. To some considerable extent this is true. They have further asserted that it is crass hypocrisy for us to maintain the prohibition on cannabis while enjoying liquor. Although an over-simplification, this argument has a moral and logical appeal. But, there are few who would argue that widespread alcohol use should not be strongly discouraged and indeed prohibited among young people. The fact that large numbers of adults continue to behave with stupidity in their use of alcohol, and, for that matter, tobacco, is not a sound argument for the removal of the prohibition against cannabis even if some measure of hypocrisy is involved. While those of us who use alcohol but favour a prohibition of cannabis may display hypocrisy, I would hold that we are primarily showing a concern for the young and a fear of the consequences of their further use of cannabis. When we urge the young to "do as we say not as we do", we may be admitting to our own lack of wisdom in the use of intoxicants.

It cannot be denied that the maintenance of the prohibition will have unfortunate direct and indirect social costs. On balance, however, I believe that the costs of a repeal of the prohibition somewhat outweigh the high, and at the personal level, often tragic, costs of its continuation. I feel I must draw attention to one of the indirect costs that would follow from an implementation of my colleagues' recommendation. The honest reactions of most parents to the prospect of marijuana or hashish use by their children vary from worry and disappointment to anguish and terror. Any action that might increase the probability of cannabis use by their children will place a heavy burden of anxiety on them. I suspect that that burden would be greater than that which has been carried by the thousands of parents who, for some years now, have been forced to live almost daily with the possibility of their children's arrest on a charge of cannabis possession.

I am also concerned by the fact that the majority recommendation would place less legal restriction on the use of cannabis by young people than at present exists on the use of alcohol by children. The illicit use of alcohol by minors is already at alarming levels. But cannabis, as an intoxicant, has some dangers that are greater than those posed by alcohol. It is obvious that it is far easier to smoke a 'joint' than to drink a bottle of beer on the way to school or at recess. A dozen marijuana cigarettes are no more obvious in the pocket than twelve home-made cigarettes-neither make the bulge of a 'mickey' of rye. A cube of hashish is far easier for a child to hide in his room than a case of beer or a bottle of liquor. Neither marijuana nor hashish leave a tell-tale odour on the breath. The intoxicated cannabis user is far less obvious than the drunk. It is also clear that cannabis use can be far less visible than drinking in the executive office, on the construction site, or in the car or cockpit.

I am also concerned by a number of consequences of fostering a legal demand and use of cannabis that can only be met by an illegal supply system. It seems to me to be as morally repugnant to punish the cannabis trafficker but not his customer as to stigmatize and punish the prostitute and not her customer. Moreover, enhancing the demand for a commodity that can only be supplied illegally will certainly increase the probability that organized crime will seek to control the cannabis market. This will inevitably increase the revenues of organized crime and at the same time increase the already real risks of police and political corruption in connection with cannabis distribution. Although it may weaken the totality of my position I must point out that the revenue of organized crime during the prohibition of alcohol provided the capital that made possible the type of organized crime that exists today.

In consequence of these and other considerations, I must dissent from the recommendation of the majority of my colleagues and recommend that the prohibition on the possession of cannabis be maintained, for the time being at least. Possession of cannabis should be punishable, upon summary conviction, by a fine of $25.00 for the first offence and by a fine of $100.00 for any subsequent offence. I fully realize that these penalties will not be a potent deterrent to those who will not be deterred by the purely moral force of the law. But far heavier potential penalties have clearly failed to deter. I believe that the reduction of penalties to this level will on the one hand maintain Most of the existing deterrent capacity of the law and on the other help to reduce the stigmatization of those convicted to appropriate levels-levels Similar to those for under-age drinking or buying alcohol from a bootlegger.

With respect to the cultivation of cannabis other than for purposes of trafficking, I recommend that it continue to be an offence with penalties identical to those which I recommend for simple possession.

No doubt there is substance to the contention of the R.C.M. Police and others that the possessional offence is a potent weapon with which to combat trafficking. It is entirely reasonable to assume that a high proportion of those currently arrested for possession as a result of systematic police investigation are in fact guilty of trafficking. I realize that the penalties I propose for those found guilty of possession will be of negligible value in combatting the distribution of marijuana or hashish. Unfortunately, the possessional offence could have utility in coping with this problem only if very severe sanctions, including long imprisonment, could be imposed. Such penalties are clearly inappropriate to the offence of simple possession of cannabis. It is impossible to believe that they could be sufficiently useful in combatting trafficking to offset the obvious dangers in maintaining them in the law.