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Focus: Should other illegal drugs be regulated?

Focus on Criminal Law
|Written By Yamri Taddese

If the federal government is serious about an evidence-based approach to drug policy, it shouldn’t stop at cannabis when it comes to regulating drugs that are currently under prohibition, drug policy lawyers say.

With the new federal government, “I think the rhetoric seems to be much more positive in terms of treating drugs as a health issue,” says Eugene Oscapella, a lawyer and professor of law at the University of Ottawa. “If you’re honest about treating drugs as a health issue, then you do not use the criminal justice system primarily [to deal with it],” he says.

The Liberals are more open to the conversation “because they don’t have the immediate, sort of puritanical view of human beings that the Harper Conservatives did,” says Kirk Tousaw, lawyer and board member of the National Organization for the Reform of Marijuana Laws in Canada. “One hopes the current government will have a much more rational viewpoint.”

John Conroy, a criminal lawyer who has acted in numerous cannabis and other drug cases, says that, throughout his career, he’s seen governments come to the brink of legalizing illicit drugs but “not having the guts to follow through.”

But, Conroy says, “I am optimistic,” adding that the current government is “far more open and transparent about the whole issue than the prior government.”

Using the criminal law to prohibit the production, import, and export of substances such as cocaine and heroin has been “a colossal failure,” according to Oscapella, who says it’s only made both the market and the use of drugs more dangerous.

“It’s caused carnage around the globe in terms of financing criminal and terrorist groups . . . and it hasn’t stopped drug use,” he says.

Oscapella, a co-founder of the Canadian Foundation for Drug Policy, says he’s not suggesting that drugs such as cocaine and heroin be treated the same way the federal government is approaching marijuana.

Each drug has to be regulated based on its individual characteristics, he adds. 

“Is it a stimulant, is it a hallucinogen, is it a sedative? What are the benefits and what are the drawbacks?

We got to remember that a lot of these drugs have therapeutic properties,” Oscapella says. “One of the things you have to look at when you’re devising regulatory policies is how do we ensure that people can get access to the benefits of these substances while at the same time trying to reduce the harmful use of them.”

Oscapella admits devising policy based on the unique circumstances of each drug is “much more difficult than saying, ‘Thou shalt not use and if you do we will punish you,’” he says. “That’s a simple solution.

. . . the trouble is, it doesn’t work.”

Heroin, for example, could be regulated through a system of subscriptions, according to Oscapella, who suggests a controlled usage of the drug under supervision would reduce its danger. If users can get clean with medically safe dosages of heroin with known amounts of potency, they wouldn’t have to “shoot up in a dark alley” with greater consequences, he says.

Some 110 years ago, people with heroin addiction purchased it the same way they did aspirin, and a lot of those people were functional in society because they had a clean, safe, and affordable supply of the drug, Oscapella says.

According to Tousaw, people with heroin addiction resort to injecting themselves to get a bang for their buck because of exorbitant prices in the underground market. “When you make heroin less accessible and you force people into the alleys to shoot up, you create a whole pile of negative consequences that society has to pick up the tab for, and people suffer,” he says.

Tousaw says prohibition has only increased the danger of the products addicts consume. “I think there’s a case to be made that crack cocaine would not exist but for drug prohibition, and in fact, powder cocaine may not exist but for prohibition,” he says.

“People who were looking for that stimulation may well have stopped at coca tea. Prohibition actually makes the market more dangerous and it makes the product more dangerous.”

Oscapella says the regulation of drugs such as heroin and cocaine is unlikely to increase the use of such drugs.

“The law is not really what determines whether people use a drug. It’s not the determining factor; there are all sorts of other factors that determine whether somebody is going to try to alter their state of consciousness,” he says.

Tousaw says the idea that illegality prevents anyone from getting access to drugs is “just nonsense.”

According to Oscapella, even if decriminalizing the use of hard drugs increases usage, there would still be “a net benefit” because of the violent chaos underground drug markets are creating around the world.

“We need to look at moving away from the use of the criminal law for dealing with many aspects of many drugs,” Oscapella continues.

Conroy says moving away from the criminal law to deal with drug use would be a “huge” relief to the criminal justice system. In addition to drug-related offences, there will likely be a drop in related crimes, he says.

“I’m quite convinced that if we treat all [drug addiction] as a health issue, our property crime rates would go down even more,” Conroy adds. 

  • A Solution without a Problem

    Wayne Phillips
    While I support the notion that if the federal government is serious about an evidence-based approach to drug policy it shouldn’t stop at cannabis when it comes to regulating drugs that are currently prohibited, there is one notable difference. When heroin was added to the restricted list it was done in an open and democratic fashion; cannabis was not.

    1 of 4
  • A Solution without a Problem

    Wayne Phillips
    On April 23th 1923 the House of Commons passed “there was a new drug in the schedule” which was then substituted, sometime between April 23th 1923 and May 3rd 1923, with “cannabis indica . . .”.

    The Bill (in question) was passed on the 3rd reading by the House of Commons without, mention, discussion or debate as an unspecified commodity simply referenced as “There is a new drug in the schedule.”
    • from the House of Commons Debates, April 23th 1923, Parliament, 2nd Session: Vol. 3,
    page 2124 [image 80]

    2 of 4
  • A Solution without a Problem

    Wayne Phillips
    What was read and passed by the Senate on May 3rd, 1923, however, was not that which came from the House of Commons. What it contained was specific reference to “Cannabis indica” not “There is a new drug in the schedule.” as was passed by the House of Commons.

    The link to the Senate Debates is as follows:

    “On the schedule: Hon. Mr. Dandurand: There is only one addition to the schedule:
    Cannabis Indica (Indian Hemp) or Hasheesh, or its preparations or compounds or derivatives, or their preparations and compounds. The schedule was agreed to.”

    3 of 4
  • A Solution without a Problem

    Wayne Phillips
    In Panic and Indifference (1991), the authors, Giffen, Endicott and Lambert, show how Cannabis indica was added, by some undisclosed hand, after the bill had been passed by the House of Commons. On page 179 under the heading The Schedule and subtitled Marijuana Giffen, et al had this to say:

    “Interestingly enough, a draft of the 1923 Bill found in one file made no mention of marijuana on the Schedule. The file following this contained several carbon copies of the draft. One of these had obviously been put into the typewriter again, and “Cannabis indica (Indian Hemp) or Hasheesh” had been added to the Schedule. Whoever added those words was apparently under the impression that hasheesh was simply a synonym for cannabis indica.”

    What was actually passed by the Senate concerning cannabis was an altered fraudulent document.

    4 of 4
  • Mr

    Paul R. Chandler
    Please send this article to every politician in Ottawa.
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