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The Consumers Union Report on Licit and Illicit Drugsby Edward M. Brecher and the Editors of Consumer Reports Magazine, 1972 60. The Le Dain Commission Interim Report (1970) It is often said that little is known about the psychological and physical effects of marijuana on the human user. This is a simple error of fact. In addition to many hundreds of significant papers reporting marijuana research through the past century, an impressive series of official investigating bodies have reviewed all of the available evidence and have presented their findings at length. The most important of these official marijuana investigation reports are listed here.
In addition to these official investigations, four outstanding books on marijuana by individual authorities, and one important symposium, were published in 1970 and 1971. In alphabetical order by author, they are:
Remarkable as it may appear, all five of the reports of investigating bodies listed above, ranging in date from 1894 to 1970, and all of the books listed are in substantial agreement on substantially all major points of fact. We have chosen, accordingly, to summarize and review in some detail only one of these major studies: the Interim Report of the Le Dain Commission. This decision was reached on several grounds:
Four of the five members of the Canadian Commission of Inquiry brought to their task a broad experience in public affairs and social problems, but relatively little knowledge of drug use: Gerald Le Dain, Q.C., Chairman, Dean of the Osgoode Hall Law School, York University, Toronto; Marie-Andree Bertrand, Associate Professor of Criminology, University of Montreal; Ian L. Campbell, Dean of Arts, Sir George Williams University, Montreal; and J. Peter Stein, social worker, Vancouver. The fifth member of the commission, Dr. Heinz E. Lehmann, Clinical Director of the Douglas Hospital in Montreal, is an internationally known authority on drugs, a Fellow of the American Psychiatric Association, a past president of the American College of Neuropsychopharmacology, and the author of more than 140 medical papers and publications. Like the Indian Hemp Drugs Commission three-quarters of a century earlier, the Le Dain Commission adopted at the outset of its inquiry a "policy of the open ear." It held twenty-one days of formal hearings in twelve Canadian cities from coast to coast, traveling some 17,000 miles. Equally important, the commission listened to young people actually familiar with the drug scene, including many drug users. For this purpose it held numerous informal hearings on college and university campuses and in coffeehouses located near the heart of the drug scene of various cities (much as an 1884 Royal Commission had held hearings in a British Columbia opium den). To protect witnesses, an understanding was reached with the Royal Canadian Mounted Police, Canada's federal police agency, that appearances and statements "would not be exploited for law enforcement purposes." 2 In addition, witnesses were permitted to testify anonymously, some of them in private, and to submit anonymous statements; the press cooperated by refraining from publishing photographs. In all, the commission estimated, nearly 12,000 Canadians had attended these formal and informal hearings up to February 1, 1970.
Experts did play an important role in the Le Dain Commission deliberations. Scores of eminent Canadian scientists concerned with all aspects of drug use the biochemical and pharmacological as well as the sociological and psychological either testified personally or participated in the preparation of written submissions on behalf of the Royal Canadian Mounted Police, the Addiction Research Foundation of Ontario, the Narcotic Addiction Foundation of British Columbia, l'Office de la Prevention et du Traitement de l'Alcoolisme et des Autres Toxicomanies, numerous religious groups, and other respected Canadian organizations. Experts and organizations from the United States also submitted data and opinions; and members of the commission visited western European countries, consulting with drug authorities there and examining the European drug scene for themselves. Thus the inquiry was truly international. The strictly psychopharmacological data were coordinated by a staff member specially trained in drug research, Dr. Ralph D. Miller. Chapter 2 of the Interim Report, entitled "Drugs and Their Effects," 4 prepared by Dr. Miller with the assistance of Dr. Charles Farmilo, is one of the most authoritative short statements of drug effects (beneficial and damaging) available, and is central to the conclusions that the commission reached. Despite intensive American and Canadian law-enforcement efforts, the Le Dain Commission learned, marijuana smoking has become endemic in Canada and here it cites high-school, college, and general population surveys showing levels of use quite comparable to those in the United States, reviewed above. Also as in the United States, use has spread from the "youth culture" to older age groups:
Why do so many young people smoke marijuana? In the United States, a variety of reasons have been suggested:
The Le Dain Commission's Interim Report cites a quite different set of factors. In this as in other respects, the commission goes far beyond previous official reports and, largely as a result of its willingness to listen directly to young people, pioneers new ground. While many of its findings will come as a surprise and shock to nonsmokers of marijuana, these findings deserve careful consideration if the contemporary marijuana explosion is to be understood. "A major factor appears to be the simple pleasure of the experience," the Le Dain Commission explains. "Time after time, witnesses have said to us in effect: We do it for fun. Do not try to find a complicated explanation for it. We do it for pleasure." 6 This pleasure explanation, the report adds, is offered not only by college students but also by adults in the working world.
A witness directly involved in work with drug users is quoted in much the same vein:
The commission partially accepts this "we do it for fun" explanation.
This use of marijuana for pleasure, the Interim Report continues, must not be interpreted as meaning that the motivation is trivial. On the contrary, it is one among many indications that the younger generation has profoundly reevaluated the proper role of pleasure in human life:
In addition to this happiness-and-pleasure motive, however, the Le Dain Commission notes that a number of young people also cite self-improvement as a reason for drug use: In the case of cannabis, the positive points which are claimed for it include the following: it is a relaxant; it is disinhibiting; it increases self-confidence and the feeling of creativity (whether justified by objective results or not); it increases sensual awareness and appreciation; it facilitates concentration and gives one a greater sense of control over time; it facilitates self-acceptance and in this way makes it easier to accept others; it serves a sacramental function in promoting a sense of spiritual community among users; it is a shared pleasure; because it is illicit and the object of strong disapproval from those who are, by and large opposed to social change, it is a symbol of protest and a means of strengthening the sense of identity among those who are strongly critical of certain aspects of our society and value structure today. 11 In these respects, the Interim Report adds, marijuana is seen as quite different from alcohol: In our conversation with [students and young people], they have frequently contrasted marijuana and alcohol effects to describe the former as a drug of peace, a drug that reduces tendencies to aggression while suggesting that the latter drug produces hostile, aggressive behavior. Thus marijuana is seen as particularly appropriate to a generation that emphasizes peace and is, in many ways, anti-competitive. 12 The Interim Report notes that drug use is not indispensable for achieving these new insights, and that it may in some cases be only a temporary stage in reaching fresh insight:
Many former drug users, the Le Dain Commission continues,
Against this background, it is hardly surprising that the Le Dain Commission opposes the imprisonment of young people for the possession or use of marijuana. It is in exploring a wide range of alternatives to suppression and imprisonment that the commission makes its second major contribution to a reasonable consideration of marijuana. We see non-medical drug use generally, [the commission states] as presenting a complex social challenge for which we must find a wise and effective range of social responses. We believe that we must explore the full range of possible responses, including research, information and education; legislation and administrative regulation; treatment and supportive services; personal and corporate responsibility and self-restraint; and generally individual and social efforts to correct the deficiencies in our personal relations and social conditions which encourage the non-medical use of drugs. We attach importance to the general emphasis in this range of social responses. We believe that this emphasis must shift, as we develop and strengthen the non-coercive aspects of our social response, from a reliance on suppression to a reliance on the wise exercise of freedom of choice. 17 As a first step toward improving the social response to the nonmedical use of drugs, the Interim Report suggests, society must abandon the transparent pretense that it considers all such use of drugs as ipso facto and per se evil and in need of suppression. This pretense is no longer tenable: Alcohol is a sedative which is widely used for the relief of tension. Have we taken a strong moral position against its use? Some have done so and still do, but they are obviously in a minority, and the vast majority of the society pays little attention to them. As for the stimulants, we take in enormous quantities of caffeine and nicotine. We stimulate our systems and modify our mood by cup after cup of coffee through the day. The nicotine in tobacco is clearly a psychotropic drug used to modify one's mood. Have we adopted a moral position against the use of caffeine and nicotine? Hardly. We are beginning to react against tobacco because of its clear danger to health, but the effect on sales is so far unimpressive. 18 In place of the pretense that the alcohol, caffeine, and nicotine one generation uses are nondrugs while the marijuana its children use is evil, the Interim Report recommends that each drug be judged on its merits: "The extent to which any particular drug use is to be deemed to be undesirable will depend upon its relative potential for harm, both personal and social." 19 Against this background, the Le Dain Commission reviews the allegations traditionally made against marijuana, and reaches conclusions generally similar to those reached by the Indian Hemp Drugs Commission, the Panama investigating committees, the LaGuardia Committee, the Wootton Subcommittee, and other responsible bodies which have critically reviewed the evidence. It concludes, for example, that marijuana is not an addicting drug. Users do not develop tolerance in the classical sense the kind of tolerance that leads to increasing the dosage. The Commission takes note, however, of the statements of some users "that if they stay 'high' for several days in a row the drug experience loses much of its freshness and clarity and, consequently, they prefer intermittent use. 20 Whether or not this is a tolerance effect, it is clearly a beneficent one. Physical dependence on marijuana, the report adds, has not been demonstrated; "it would appear that there are normally no adverse physiological effects or withdrawal symptoms occurring with abstinence from the drug, even in regular users." 21 Reports to the contrary from the East are suspect. "Since hashish is smoked with large quantities of tobacco and other drugs in many Eastern countries, these mixtures could be responsible for the minor symptoms reported." 22 Marijuana, it is true, may in some cases produce psychological dependence but "psychological dependence may be said to exist with respect to anything which is part of one's preferred way of life. In our society, this kind of dependency occurs regularly with respect to such things as television, music, books, religion, sex, money, favourite foods, certain drugs, hobbies, sports or games and, often, other persons. Some degree of psychological dependence is, in this sense, a general and normal psychological condition." 23 The short-term physiological effects of marijuana use, the report continues, "are usually slight and apparently have little clinical significance." 24 Even overdose produces little acute physiological toxicity; "sleep is the usual somatic consequence of overdose. No deaths due directly to smoking or eating cannabis have been documented." 25 The stepping-stone theory that marijuana use leads to heroin use is stated but given little credence. "In Canada... it appears that heavy use of sedatives (alcohol and barbiturates) rather than cannabis has most frequently preceded heroin Use." 26 And 'again: "Persons dependent on opiate narcotics generally have a history of heavy alcohol consumption." 27 The same, as noted in Part I of this Consumers Union Report, is true in the United States. The commission takes notice of the fear that marijuana smoking, like cigarette smoking, might lead to lung cancer and other lung pathology. No evidence currently exists, it points out, to support this view. Moreover, "the quantity of leaf consumed by the average cigarette smoker in North America is many times the amount of cannabis smoked by even heavy users. The present pattern of use by regular cannabis smokers in North America is more analogous to intermittent alcohol use (e.g., once or twice a week), than to the picture of chronic daily use presented by ordinary tobacco dependence." 28 The commission adds, however, that "the deep inhalation technique usually used with cannabis might add respiratory complications." 29 With respect to psychoses and other adverse psychological effects associated with marijuana, the Le Dain Commission report is on the whole quite reassuring. "Although there are some well documented examples of very intense and nightmarish short-term reactions (usually among inexperienced users in unpleasant situations and with high doses), these cases seem to be relatively rare and generally show a rapid recovery. Although many regular users have had an experience with cannabis which was in some way unpleasant, 'freak-outs' are apparently rare." 30 A Montreal psychiatrist of broad experience with adverse reactions to other drugs, Dr. J. R. Unwin, is quoted as reporting in the Canadian Medical Association Journal in 1969: I have seen only three adverse reactions in the past two years; all following the smoking of large amounts of hashish and all occurring in individuals with a previous history of psychiatric treatment for psychiatric or borderline conditions." 31 The United States experience, the commission notes, has in general been similar. Thus Dr. David E. Smith of the Haight-Ashbury Clinic in San Francisco is cited as reporting that he had not observed any cases of "cannabis psychosis" among the 35,000 marijuana users attending that clinic. 32 True, the commission adds, there are some reports pointing in the other direction. But reports from the Eastern countries are of dubious value, since no control groups were studied; the question is not whether some marijuana smokers (like some nonsmokers) develop psychoses, but whether the use of marijuana increases the incidence of psychoses. Dr. J. T. Ungerleider (later appointed a member of President Nixon's National Commission on Marijuana and Drug Abuse) reported observing 1,887 "adverse reactions" to marijuana in Los Angeles but... these data are difficult to interpret since no clear definition of adverse reaction is provided and no follow-ups were made." * 34 A few psychoses reported among United States forces in Vietnam may or may not have been traceable to cannabis use; they involved "individuals who have consumed large doses of potent material under conditions of increased physical and psychological stress." 35 It is hardly necessary to invoke marijuana as an explanation for a few psychoses among soldiers billeted in a distant land and fighting on foreign fields. To the extent that psychoses do occur on rare occasions following cannabis use, they appear to be "a reflection of very special personality difficulties in the subjects involved or exceptional dose levels." 36
The Canadian report also notes two public-health considerations that have generally been lost from sight in the American antimarijuana literature. The first concerns the somewhat greater hazard of eating marijuana and hashish as compared with smoking them. "'Grass' and 'hash' are generally used interchangeably and great variations in potency of different samples are accommodated by the experienced user through a 'titration' of dose i.e., intake is stopped when the smoker reaches a personally comfortable level of intoxication. Such precision is generally not possible with oral use, however, due to the long delay in action, and a 'non-optimal' effect is much more likely to occur with this practice." 37 In the United States this message rarely gets through to young people primarily because the channels of public-health communication are overloaded with generalized antimarijuana propaganda, much of it unreliable and counterproductive. The second public-health consideration noted in the Canadian report concerns the relative hazards of marijuana and hashish. As has already been noted, the two are related much as beer or wine is related to whisky or gin; the effects of equivalent doses are rather similar, but it is somewhat easier to overdose with whisky, gin, or hashish than with beer, wine, or marijuana. While a prudent and experienced cannabis smoker can limit his hashish "high" to the level of his customary marijuana "high," the Interim Report cautiously suggests the possibility that a nationwide conversion from marijuana to hashish might significantly increase the incidence of deleterious effects. "Moderate use of the milder forms is one thing; excessive use of the stronger forms may be quite another." 38 In this context, the American and Canadian trend from marijuana toward hashish, beginning in 1969, was naturally a cause of concern for the Le Dain Commission. It attributes this trend in considerable part to American law-enforcement policies: The [Royal Canadian Mounted] Police representatives of the Department of justice, and a number of witnesses have reported that marijuana, long the staple of the drug-using subculture, is now being replaced by hashish as the widely used illegal drug in some parts of the country. This shift in popularity can probably be attributed to a growing difficulty in obtaining marijuana (American and Mexican authorities lately have been intensifying their efforts to control its cultivation and prevent smuggling activities), the greater ease with which hashish, a concentrated form of cannabis, can be hidden and thus transported, and the greater profits in hashish trafficking. Hashish can be purchased at its source for around $50 a kilo and resold in Canada at $1,400 a kilo, while marijuana costs from $20 a kilo in Mexico to $100 a kilo in Southern California and can be resold in Canada for about $300 a kilo; an ounce of hashish sells for between $75 and $100 in contrast to about $20 an ounce for marijuana. 39 As marijuana repression becomes more efficient, of course, the cost of marijuana rises and the relative competitive advantages of smuggling hashish instead become even greater. The Le Dain Commission does not conclude that marijuana is harmless. The available evidence, it indicates, warrants a cautious approach. Additional problems may arise as marijuana research proceeds and as experience accumulates. Even so, the commission points out, reliance on the "hazards" theme to curb marijuana, smoking has proved fruitless or worse in the past and is unlikely to prove more effective in the future. "Many of the young people who have appeared before us have been critical of the drug education to which they have been exposed," the Interim Report notes. "In particular, they have said that the attempts to use 'scare tactics' have 'backfired' and destroyed the credibility of sound information." 40 The commission itself fully endorses these complaints from its young witnesses: The conclusion we draw from the testimony we have heard is that it is a grave error to indulge in deliberate distortion or exaggeration concerning the alleged dangers of a particular drug, or to base a program of drug education upon a strategy of fear. It is no use playing "chicken" with young people; in nine cases out of ten they will accept the challenge. 41 In place of the traditional deterrents to drug use imprisonment and scare campaigns the Le Dain Commission's Interim Report then proceeds to outline in the broadest terms, yet with many detailed recommendations, a major reorientation of attitudes toward the nonmedical use of psychoactive drugs, and major changes in laws and public policies. Many of these recommendations apply to the opiates, the amphetamines, the barbiturates, LSD, and other psychoactive drugs as well as to marijuana, and they closely parallel suggestions to be made in Part X, Conclusions and Recommendations, of this Consumers Union Report; they will therefore be noted there. The Le Dain Commission's comments on some of the special problems of marijuana legislation and marijuana law enforcement closely parallel comments in the Wootton subcommittee report and other recent publications, and are considered here. The victim of a crime against person or property [the Commission points out] usually complains to the police, gives them information, and assists them to commence an investigation. The police react to what they have been told about a specific offense. If, on the other hand, someone has a drug in his possession, and has bought it from someone else, it is rare that anyone will feel affected enough to lay a complaint. Hence, instead of reacting to a specific request, the police must go out themselves and look for offenses. Moreover, it is difficult to discover these offenses. Because the parties to the offense or transaction are all willing participants, they can agree to carry out the prohibited conduct in a place of privacy where it is not likely to be seen either by witnesses or the police. 42 Legislators, the report continues, have responded to these special drug law enforcement difficulties by widening police powers of search and seizure in extraordinary ways. "Under the ordinary law, a person can be searched only after an arrest has been made, and in order to discover any evidence of the crime for which the arrest is made. Where there is not an arrest, there is no power to search premises without a search warrant. Again, such warrants assume specific evidence that the particular premises contain something incriminating. The point of these rules is to prevent indiscriminate interference with privacy in an attempt to turn up evidence of a crime and to prevent such interference by requiring cogent evidence that the person or premises affected are peculiarly worthy of search, before such search is authorized by an independent judicial officer who reviews the evidence." 43 Under the Canadian drug laws, in contrast, "there is no longer a real requirement that the police obtain external review and confirmation of their judgment.... Any police officer can enter and search any place other than a dwelling house without a warrant. 44 Even with respect to dwelling houses, moreover, Canadian drug law since 1929 has made available a legal device called a "writ of assistance." Such writs, as most United States schoolchildren learn in an early grade, were one of the causes of the American Revolution. An enforcement officer must apply to a judge for such a writ in the first instance, as in the case of a search warrant or warrant for arrest; but the writ of assistance does not specify any particular premises. "It remains valid so long as the officer retains his authority and it empowers him to enter any dwelling in Canada at any time, with such assistance as he may require, and search for narcotics and other proscribed drugs." 45 Canadian drug law has also had a "no-knock" clause like the one enacted by the United States Congress in 1970; this clause provides that a peace officer armed with either a warrant or a writ of assistance may, "with such assistance as he deems necessary, break open any door, window, lock, fastener, floor, wall, ceiling, compartment, plumbing, box, container or any other thing," 46 may search any person found in such a place; and may seize and take away any narcotic or other proscribed drug in such place, as well as anything that may be evidence of the commission of a drug offense. (The possession of such extraordinary powers has not made the Canadian police forces noticeably more effective than American police forces in stamping out illicit drug trafficking.) The difficulties of drug-law enforcement, the Le Dain Commission adds, have led to yet another "unusual practice what is known in other jurisdictions as 'entrapment' but which may be described as 'police encouragement.' A person is encouraged by a police agent to commit an offense [and is then prosecuted for that offense]. It is impossible to say how extensive this practice is, but it is reflected in a number of cases." 47 Many people approve such laws and practices, of course, on the ground that the "drug evil" must be stamped out at any cost. The Le Dain Commission points out that the cost is very high: During the initial phase of our inquiry, we have heard bitter complaints and criticisms of the use of entrapment and physical violence to obtain evidence. We have not verified the particular circumstances of these complaints and criticisms, so that we make no charge of any kind at this time but we deplore the use of such methods to the extent that they may be resorted to on occasion. We believe that such methods are not only a serious violation of respect for the human person, but they are counter-productive in that they create contempt for law and law enforcement. The price that is paid for them is far too great for any good that they may do. The commission reviews the arguments in favor of legalizing marijuana, and indicates that serious consideration should be given to them. They are summarized in the Interim Report as follows: 1. The use of marijuana is increasing in popularity among all age groups of the population, and particularly among the young; The commission concludes, however, that legalization is not warranted at this time (spring of 1970). One reason for postponing the decision is that the scientific evidence concerning marijuana is not yet all in but the Interim Report adds a cogent warning: "How long can society wait for the necessary information? It is very serious that the scientific information concerning cannabis lags so far behind the rapidly developing social problem caused by its illegal status." 50 One reason for this lag in scientific information, the commission notes, is government restraints pn research. "Many scientists interested in such research have expressed feelings of dissatisfaction and frustration with governmental research policy. They have stated to the commission that they have been unable to carry out such work under their own authority as scientists in the present atmosphere of restraint. They say that they have been frustrated by the administration of the formal and unwritten governmental policies which surround the right to undertake research in this field. 51 Many American scientists, of course, have expressed similar dissatisfaction and frustration.* One reason for this governmental repression of research, the Le Dain Commission suggests (though it does not actually state) is the fear that sound research may fail to support the traditional allegations against marijuana and may thus lead to a change in public policy. "The public, including interested scientists, are justly dissatisfied and impatient with the present state of research. The public does not know whom to blame, but it will not lightly tolerate an indefinite reliance on inadequate knowledge to justify a social policy which is coming under increasingly severe criticism." 53 (Emphasis added.)
A second reason given by the Le Dain Commission for not recommending the immediate legalization of marijuana was a purely practical one: public opinion was not yet ready (in the spring of 1970) for so drastic a change, and the recommendation would no doubt be rejected.... It is our impression that there has not yet been enough informed public debate. Certainly there has been much debate, but all too often it has been based on hearsay, myth and ill-informed opinion about the effects of the drug. We hope that this report will assist in providing a basis for informed debate..." 54 A third reason for delaying the legalization decision, the Interim Report adds, is that "further consideration should be given to what may be necessarily implied by legalization. Would a decision by the government to assume responsibility for the quality control and distribution of cannabis imply, or be taken to imply, approval of its use * and an assurance as to the absence of significant potential harm?" 55 Finally, the commission cites "jurisdictional and technical questions involved in the control of quality and availability." 56
Both in the United States and Canada, the argument is sometimes made that international treaty obligations under the United Nations Single Convention on Narcotics Drugs, 1961, prevent the legalization of marijuana. The Le Dain Commission gives short shrift to this argument. Any country can withdraw from the Single Convention on January 1 of any year by giving six full months' notice; withdrawal "would not, of course, be in violation of international obligations since it is a right expressly provided for in the Convention." 57 One step short of legalizing marijuana would be the abolition of all penalties for the possession of marijuana leaving trafficking a criminal offense. The Interim Report concludes that this policy merits conscientious study, with respect not only to marijuana but to the psychoactive drugs in general, including heroin. One Le Dain Commission argument in favor of abolishing the offense of simple possession is the high cost of enforcing the possession law: "Its enforcement would appear to cost far too much, in individual and social terms, for any utility which it may be shown to have.... The present cost of its enforcement, and the individual and social harm caused by it, are in our opinion, one of the major problems involved in the nonmedical use of drugs." 58 Unenforceability, the commission continues, is another argument in favor of abolishing all penalties against possession. "Insofar as cannabis, and possibly the stronger hallucinogens like LSD, are concerned, the present law against simple possession would appear to be unenforceable, except in a very selective and discriminatory kind of way. This results necessarily from the extent of use and the kinds of individual involved. It is obvious that the police can not maker a serious attempt at full enforcement of the law against simple possession. _..." 59 It is often argued that, just as the continued commission of murder is not a sound reason for repealing the murder laws, so the smoking of marijuana is not a good reason for repealing the marijuana laws. The Le Dain Commission distinguishes the two cases: The law which appears to stand on the statute book as a mere convenience to be applied from time to time, on a very selective and discriminatory basis, to "make an example" of someone, is bound to create a strong sense of injustice and a corresponding disrespect for law and law enforcement. It is also bound to have an adverse effect upon the morale of law enforcement authorities. The likelihood that a marijuana user will be brought to court for possession, the commission adds, "may be under one percent" 61 hardly an effective deterrent. *
On the question of deterrence the Interim Report also cites a 1967 opinion of the Ontario Court of Appeal: "Those, of whom the accused is one, who have accepted the use of psychedelic drugs as socially desirable as well as personally desirable course of conduct are not as likely to be discouraged by the type of punishment ordinarily meted out to other traffickers. Such treatment will likely serve to confirm them in their belief in the drug cult... 62 Yet another reason for repealing the possession laws is briefly stated in the Interim Report: "The extreme methods which appear to be necessary in the enforcement of a prohibition against simple possession informers, entrapment, Writs of Assistance, and occasionally force to recover the prohibited substance add considerably to the burden of justifying the necessity or even the utility of such a provision." 63 But the Le Dain Commission waxes most eloquent in attacking the possession laws on the ground of the direct harm they do, not only to their victims but to respect for law and order:
Despite these impressive reasons for repealing the laws against mere possession of marijuana and other psychoactive drugs, a majority of the commission resolved not to recommend immediate repeal. More time was needed, the majority concluded, to study arguments against repeal made by the police. The commission indicated, however, that it would announce a decision in 1972. This was the only point on which the Interim Report was not unanimous. The one woman member of the Le Dain Commission, Professor Bertrand, did not want to postpone the repeal recommendation even for one year. She wrote: I find myself in disagreement with my colleagues on the Commission in respect of the offence of simple possession of cannabis. In my opinion the prohibition against such possession should be removed altogether. I believe that this course is dictated at the present time by the following considerations: the extent of use and the age groups involved; the relative impossibility of enforcing the law; the social consequences of its enforcement; and the uncertainty as to the relative potential for harm of cannabis. 65 In lieu of recommending immediate repeal of the laws against simple possession, the Le Dain Commission majority recommended the immediate abolition of imprisonment as a penalty for simple possession: ... The Commission is of the opinion that no one should be liable for imprisonment for simple possession of a psychotropic drug for non-medical purposes. * 66
To replace imprisonment the commission recommended "as an interim measure, pending its final report, that the Narcotic Control Act and the Food and Drugs Act be amended to make the offense of simple possession under these acts punishable upon summary conviction by a fine not exceeding a reasonable amount. The Commission suggests a maximum fine of $100." 67 A prisoner who cannot pay his fine or who refuses to pay it is ordinarily liable to imprisonment. To prevent imprisonment in such cases, the commission "also recommends that the power... to impose imprisonment in default of payment of a fine should not be exercisable in respect of offenses of simple possession of psychotropic drugs. In such cases, the Crown should reply on civil proceedings to recover payment." 68 The proposal that offenders found guilty of possessing marijuana should not be imprisoned may seem radical indeed to some readers of this Consumers Union Report. But, as the Le Dain Commission points out, the courts of Canada had reached much the same conclusion on their own initiative in 1969, without waiting for the Interim Report. Canadian court statistics for the period from August through December 1969, this report declares, "reveal that imprisonment is now being rarely, if at all, resorted to in cases of simple possession of marijuana and hashish and, it would appear, LSD, and that such cases are now generally disposed of by suspended sentence, probation or fine." 69 Thus the key Le Dain Commission marijuana recommendation, far from representing a radical departure from current Canadian policy, does little more than recommend that the current practice of most Canadian courts be made uniform and mandatory. Much the same trend appears to be under way in the United States courts, though at a slower pace. As the Select Committee on Crime of the United States House of Representatives commented in its First Report on Marijuana, dated April 6, 1970: "We have observed that the penalties for marijuana possession or even for selling are generally not imposed and that jail sentences are the rare exception rather than the rule." * 72
To reduce without delay the damaging effects of law enforcement on drug users, the Le Dain Commission went on to recommend "that the police, prosecutors and courts exercise the discretion entrusted to them at various stages of the criminal law process so as to minimize the impact of the criminal law upon the simple possessor of psychotropic drugs, pending decision as to the whole future of possessional offenses in this field." 73 The commission also recommended a substantial reduction in the penalties for trafficking and for possession for the purpose of trafficking and a major restriction of the definition of "trafficking." Canadian penalties at the time of the Interim Report included a maximum of life imprisonment for either trafficking in marijuana or possession for the purpose of trafficking. This maximum could be meted out to a young person sharing a marijuana cigarette with a friend or giving marijuana to a friend a gift defined as "trafficking" in Canadian law and as a sale" in United States law. In Canada, importers and exporters of cannabis were also subject to a maximum of life imprisonment and to a minimum mandatory sentence, which the judge could not reduce, of seven years' imprisonment. In lieu of these penalties, the Le Dain Commission recommended that minimum mandatory sentences be abolished altogether and that the maximum, sentence be eighteen months for all cannabis offenses including importing, exporting, and trafficking. "We further recommend that the definition of trafficking be amended so as to exclude the giving, without exchange of value, by one user to another of a quantity of cannabis which could reasonably be consumed on a single occasion. Such an act should be subject at most to the penalty for simple possession" 74 that is, a reasonable fine not to exceed $100. In yet another respect the Le Dain Commission sought to minimize the impact of the criminal law on young marijuana offenders indeed, on offenders generally: Great concern has been expressed during the initial phase of our inquiry concerning the serious effects of a criminal conviction and record upon the lives of drug users, particularly the young. These effects are cited, in the case of cannabis, as indicating that the harm caused by the law exceeds the harm which it is supposed to prevent. A criminal record may mar a young life, forever being an impediment to professional or other vocational opportunity and interfering with free movement and the full enjoyment of public rights. We believe this reasoning applies to all criminal convictions, and we do not believe that there should be a special rule in favour of drug offenders. For this reason, we recommend the enactment of general legislation to provide for the destruction of all records of a criminal conviction after a reasonable period of time. 75 The Final Report of the Le Dain Commission was not available when this Consumers Union Report was completed. The guidelines laid down by the commission's Interim Report, however, are sound guidelines for the formation of policy in the United States. Consumers Union's own detailed recommendations, which go considerably further, appear below in Part X.
Footnotes
1. Tod H. Mikuriya, "Physical, Mental and Moral Effects of Marijuana," International Journal of the Addictions, 3 (Fall, 1968): 253.
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