Social Regulation of Drugs:
The New “Normal”?
Patricia G. Erickson, Ph.D1
Introduction: The Role of Public Criminology in the Drug Policy Arena
The purpose of this commentary is to draw attention to the growing disconnects among drug use behavior, the perspectives of users, the research on drug use framed within the normalization perspective, the archaic drug laws governing illicit drug use, and the failure of current policy responses. Academic research can and should inform more enlightened policies. As an example of public criminology, this body of research challenges official definitions of the drug problem. The role of public criminology is to make this research evidence part of the public discourse on drug policy reform. An earlier analysis of the lack of the impact of social research in Canadian drug policy, characterized as “neglected and rejected,” illustrates the difficulties of challenging the moral sway of a century of drug prohibition and the entrenchment of criminal justice bureaucracies dedicated to maintaining it (Erickson, 1998).
Nevertheless it is vital that criminologists continue to exert their efforts to produce alternative knowledge that challenges the status quo (Wacquant, 2011). In this tradition, I shall endeavour to trace the tensions between the law as it exists and the changing social evaluation of this drug using behaviour, considering developments from 1970 onwards. I shall draw at times on my own experience as researcher, policy analyst and presenter at government hearings dedicated to considering changes to drug law. As an applied researcher in this tradition, I have attempted to provide evidence on a perplexing social problem, to a wide range of citizens and stakeholders, and set out some guideposts to effective and humane resolution (Erickson, 1992; 2011).
Nowhere is the gap between the ongoing punitive response to drug use and the widespread social acceptability of this use more apparent than for cannabis (marijuana and hashish). While nearly half of the adult Canadian population has experience with this drug, more than 60,000 possession offences are recorded annually (Health Canada, 2010; CDPC, 2013). Thus it is the best candidate to illuminate the normalization perspective, both in Canada and in much of the rest of the world (Erickson and Hathaway, 2010; Beckley Foundation, 2009). The hallmark of normalization is recreational drug use, defined as the occasional use of certain substances in certain settings and in a controlled way” (Parker, 2005:206). This relatively new depiction of drug use as pleasurable, persistent and part of everyday life has been described as “the most important development in the sociology of drug use in several decades” (Sandberg, 2013:64). The criminal law, of course, recognizes no such distinctions, and considers possession of any amount of cannabis, for any purpose, to be illegal and the offender deserving of punishment (Erickson, van der Maas and Hathaway, 2013).
Historical Backdrop of Drug Policy: Several Decades of Indecision
Few areas of public policy have been so fraught with misconceptions, stigma and contesting of evidence as the ongoing debate over how society should respond to illicit substance use. For over a century, Canada has experienced alternating waves of “panic and indifference” as each new or rediscovered drug provokes a moral panic that this is the one that will live up to the “demon drug” mythology of individual ruin and enslavement (Giffen, Endicott and Lambert, 1991). Such imagery combined with racist sentiments fanned the flames of the first “narcotics” (i.e, opium, morphine, heroin, cocaine and cannabis) prohibition laws in 1908, 1911 and 1923, and their ever escalating penalties during the 1920’s to the 1960’s (Solomon and Green, 1988). The criminal justice system became the first line of defence against this perceived threat, and special powers for police, prosecutors and severe sentencing options for judges ensured that “dope fiends” would be caught and their contaminating influence removed from society (Solomon, 1988). Then, starting in the mid-1960’s, use of banned substances moved from the fringes of society to the mainstream, as more and more youth began to experiment with cannabis, LSD and other mood altering drugs. The era of a global “drug culture” had begun, and 50 years later, has become entrenched in most western nations. The legacy of prohibition and its applied arm of criminal justice, however, continue to dominate Canada’s policy response.
In Canada, illicit drugs are prohibited by federal criminal law, found in a statute, The Controlled Drugs and Substances Act [CDSA]. This law prohibits the possession of any amount of cannabis, subject to a maximum penalty of a $1000 fine and a 6 month jail sentence. Penalties can be doubled for a subsequent offence. There has been no change in the possession offence since 1969, when the Narcotic Control Act was amended to allow a “fine only” option (instead of only jail or probation). A change to the Criminal Code in 1972 created a non drug-specific provision for absolute and conditional discharges. While most of those sentenced do not receive the maximum penalty, with small fines or discharges the norm, some are jailed and all do become labelled with a criminal record (Erickson, 1980; 2005). It is estimated that upwards of one million Canadians now have criminal records for cannabis possession. This then is the current situation; now I shall turn to a historical recap of how this gap could grow and persist, and how the normalization perspective can be helpful in understanding these developments.
Several overviews of the efforts to reform Canada’s drug laws over four decades are available (Fischer, 1988; Giffen and Lambert, 1988; Hyshka, 2009a) and only the key events will be summarized here. In the 1970’s, the Royal Commission on the Non-Medical Use of Drugs, known as the Le Dain Commission after its Chair, was formed to examine the rising wave of illicit drug use, and accompanying criminalization, among ordinary, non-delinquent young people (Erickson, 1980). It held hearings, conducted research, and produced four landmark reports. The one entitled Cannabis (Le Dain, 1972) contained a majority report recommending the repeal of the offence of simple possession, one minority report arguing for its retention with a maximum penalty of a $100 fine (no jail), and another minority report calling for the abolition of prohibition and the setting up of a regulated distribution system. None of these options was favoured by the Liberal government of the day, choosing instead to retain the existing maximum fine and jail penalties in the Narcotic Control Act, and to provide the sentencing alternative of discharge. Since the latter still required the accused to come to court, allowed him or her to be fingerprinted and photographed, and created a criminal record of guilt (though not conviction), an application for a pardon would still be required to “seal” the record. The Chairman of the Law Reform Commission of Canada, presenting at the subsequent Senate hearings when an automatic pardon for cannabis possession was being discussed, noted plaintively, “why did the machinery bring the person through the whole criminal justice system in to a position where he was convicted (or discharged) in the first place, when there are many other methods of coping with and dealing with the situation?” (Senate, 1975, quoted in Erickson, 1980:144). A bill to place cannabis in its own special section of the Food and Drugs Act, still a criminal statute but with lesser penalties at that time for amphetamines, barbiturates, LSD and other hallucinogens, never progressed to final reading and died on the order paper of Parliament in 1975 (Erickson, 1980).
The early 1980’s was a fairly quiescent period, recording declines in both use and arrests for cannabis. Then in 1986 US President Ronald Reagan announced the re-launching of the War on Drugs, followed two days later by a statement from Prime Minister Brian Mulroney that “drug abuse has become an epidemic that threatens our economic and social fabric.” As a high ranking Health official told me, “when he [the PM] made that statement, then we had to make it a problem” (quoted in Erickson, 1992:248). The result was Canada’s Drug Strategy, formed with strategic input from a wide range of community groups, agencies serving drug users, and addiction professionals, to include not only illicit drugs but the whole range of addictive substances including alcohol and pharmaceuticals; it declared an emphasis on demand reduction through prevention efforts and more provisions for treatment (for a review, see Erickson, 1992). Thus while distancing itself from the more supply focused enforcement thrust of the US War on [Illicit] Drugs, the infusion of resources into policing, combined with new powers for antidrug efforts, meant that drug arrests again increased as local, provincial and national police forces demonstrated high levels of “productivity.” Cannabis remained the major component of drug-related offenses, 64% in 1990 (Erickson, 1992:250). The ambivalence inherent in the Strategy, launched in 1987 with the official objectives of “reducing the harm to individuals, families and communities from the abuse of drugs,” was captured in the Minister of Health’s comment in 1990: “We believe that the first course of action in combatting drug abuse is to help the drug user or potential drug user. While the major priority is demand reduction, curbing supply is equally important, especially as a complement to demand reduction efforts” (quoted in Erickson 1992: 248, 255).
In the 1990’s, the increased emphasis on criminal justice solutions favoured by the Conservative government led to the introduction of a new drug bill (C-85, The Psychoactive Substances Control Act) that provided basically the same classifications and penalties for drugs as the existing law, the Narcotic Control Act. It even proposed to double the maximum penalties for the first offence of cannabis (to 12 months and $2000 fine). The legislative sub-committee was given 2 weeks to conduct hearings and move the bill forward; then an election was called in 1993 and C-85 died on the order paper of Parliament. While in opposition, the Liberal members had severely criticized the proposed bill; now in power, the newly elected Liberal government introduced the nearly identical bill (C-7, the Controlled Drugs and Substances Act) in 1994 (Fischer, 1988). In more hearings on this, the first new drug legislation to be presented in Canada since the 1960’s, Liberal members stated that “this is not a policy bill, so it should not be confused with drug policy,” and “the government is not in favour of the decriminalization of marijuana” (cited in Fischer, 1988:55-57). Despite considerable criticism from many witnesses reflecting a wide range of stakeholders, the CDSA was passed in Parliament on October 30, 1995 (amidst the distraction of Quebec Referendum Day on possible secession from Canada) with the triumphant claim that “this new law will put Canada in the forefront of leading the War on Drugs from a perspective of harm reduction.” After final review and approvals by the Senate, it became the law of the land in 1997. With the slight modification of returning the maximum penalties for cannabis possession back to where they were before, and putting it in its own section of the CDSA, apart from opiates and cocaine for the first time since 1923, the punitive prohibition of cannabis remained intact.
A novel aspect of the process of moving the CDSA forward had been the promise to conduct a policy review after it became law. This was carried out by two committees of Parliament, one from the House of Commons and one from the Senate, and after travelling and hearing witnesses, they both reported in 2002 (Hyshka, 2009a; Senate, 2002). While the elected members on the House committee proposed decriminalization of cannabis possession, the appointed senators went further and argued for legalization in the form of a regulated approach that would permit those 16 and older to purchase the drug. For the next four years, from 2003-2006, further hearings on a series of bills examined a Liberal Government proposal to make possession of no more than 15 grams of marijuana or 1 gram of hashish a non-criminal, ticketable offence under a Contraventions Act amendment to the CDSA. It was defended by the Justice Minister of the day as increasing deterrence, because it was expected that the police would charge more people than before, while increasing revenue from the fines imposed (Hyshka, 2009a). In the end, political inertia prevailed, and the proposed reform disappeared when a Conservative government was elected in 2006 (Hyshka, 2009b). The National Drug Strategy was quickly transformed into an Anti-Drug Strategy, and harm reduction was removed from its mandate, leaving three pillars of enforcement, prevention and treatment (Hyshka, Erickson and Hathaway, 2011).
Another important development in the first decade of the new millennium pertained to the right of medical access to cannabis. After a series of cases and challenges that went to the Supreme Court of Canada, it ruled in 2000 that the ability of sick individuals to obtain cannabis for their conditions was a constitutionally protected right that must not be thwarted by arrest or stigmatization (Hathaway, 2001). Thus, in addition to compassion clubs which already dispensed cannabis in a grey area of legality, the Medical Marijuana Access Program was created. This allowed patients (with prescription from a physician) to purchase their own marijuana from Health Canada’s sole source provider, cultivate their own supply, or designate a third party to grow for them (limit of 2 patients per grower). This health protection bestowed by the Canadian Charter of Rights and Freedoms, however, was not extended to cannabis for personal use. Another series of legal challenges led to a Supreme Court ruling in 2003 that deemed recreational use “trivial” and “supported the present prohibition against the use of marijuana…under the criminal law power” (quoted in Erickson, Hathaway and Urquhart, 2004:26, note 59). The judges also added that “it is open to Parliament to decriminalize or otherwise modify any aspect of the marijuana laws that it no longer considers to be good public policy.” The door was open constitutionally, but no corresponding motivation for reform was evident among law makers, and in fact the following decade of 2010 onwards witnessed both tougher laws and plans for commercial production. This was in the face of considerable survey data that indicated widespread use and considerable support for lesser penalties.
Public Use and Perception: The Growing Gap between the Law and Society
Recent surveys, opinion polls and interview studies provide a current picture of cannabis use in Canada where some of the highest prevalence rates in the world have been reported (Adlaf et al, 2005). More than half of Canadians aged between 15 and 44 have tried cannabis at least once in their lifetime, with 13% having done so in the past month (Health Canada, 2010). A history of use is highest among the 18-24 year old age group, about 70%, and overall it is estimated that 2.17 million Canadians used cannabis in the past 3 months (Health Canada, 2010). About half of university undergraduates across the country have experience with cannabis, and the data from our recent study of a large class at University of Toronto, with about 40% reporting some use, reflected these previous national survey results (Kolar, 2012). Nor is use confined to younger cohorts; recent Ontario data show that the average age of users is now about 30 years (Duff, Asbridge, Brochu, Cousineau, Hathaway, Marsh and Erickson, 2012).
The public has repeatedly been canvassed regarding their views on appropriate sanctions for cannabis use. These have overwhelmingly supported medical access, with more split views on penalties, but growing support for liberalization (Erickson, Hyshka and Hathway, 2010). Despite some confusion around legal terminology, however, endorsement of decriminalization (no possession offence or reduced penalties for user) or some form of legalization (providing regulated means of obtaining the substance) has become the majority viewpoint of about 2/3 of the population overall in contemporary polls. A survey in Toronto in 2004 provided more details of those who favoured relaxation of the laws, indicating that a majority of all age groups, including those over 50 years, would prefer to see cannabis regulated “more like alcohol” (Hathaway, Erickson and Lucas, 2007).
The statistical picture provided by survey data, while giving a snapshot of population views, does not provide the more detailed insights as to how users actually view their drug use and any role the law might play in their decisions. An interview study with socially integrated, long term adult users provided these perspectives (Duff et al, 2012): “a lot of my friends don’t even consider it (marijuana) a drug anymore;” “pot seems to be the vice that fits into your moral code now;” “it’s a small part of who you are rather than like your identity.” For users such as those, for whom cannabis is an established part of their lifestyle, not only is a view of use as “wrong” absent, but also many were somewhat oblivious to the risk of arrest (Brochu, Duff, Asbridge and Erickson, 2011): “[arrest is] highly unlikely. I never carry more than a couple of grams; I don’t sell it, I don’t traffick; I don’t do anything too illegal;” “I would say zero percent. I don’t feel like I would ever get arrested for use;” “I’m happy with the status quo whereby it’s totally tolerated although it’s not technically legal.” Yet the chances of getting caught and charged are not remote in Canada, as it also has the distinction of one of the highest cannabis arrest rates in the world, increasing by 16% from 2001 to 2011 (CDPC, 2013). Nevertheless, those who do enter the maw of the criminal justice system are only a small, atypical minority of all current users of the drug, reflecting only about 1% or less of all who used cannabis in a given year, a figure not different than the estimate of the Le Dain Commission over 40 years ago, (Brochu et al., 2011; Le Dain 1972).
In the decade of the 2010’s, the Conservative government, with the strength of a majority for the first time, introduced the Safe Streets and Communities Act in an Omnibus Bill in 2011. Embedded in a number of provisions affecting the criminal justice system, were several amendments to the CDSA. While the possession offence remained unchanged, mandatory minimum penalties were introduced for all the other distribution offences related to trafficking, possession for the purpose of trafficking, importation/exportation and cultivation. For example, growing 6 or more cannabis plants could lead to 6 months minimum jail time. A number of aggravating features were listed, such as using someone else’s property or operating near a school, that could justify longer terms of imprisonment. These penalties took effect on November 6, 2012, and how they are being implemented is not known at this time.
Health Canada announced in June 2013 that the system for medical access to cannabis would be revised under the Marijuana for Medical Purposes Regulations. By April 01, 2014, the only legal source to obtain medicinal cannabis will be licensed producers approved by Health Canada and meeting its requirements for safety and surveillance. In late 2014, about 14 companies out of nearly 200 applications have been approved in what is estimated to become, by 2024, a $1.3 billion commercial market serving an estimated 450,000 Canadians (compared to less than 40,000 under the current scheme)(Canadian Press, 2013). Valid prescriptions from a physician or a nurse practitioner, will still be required for approved users to receive their cannabis by mail. How this initiative will affect medical users who want to continue to grow their own, or obtain it from compassion clubs, is unknown, but it is possible they could be subject to arrest for possession, cultivation and/or trafficking. In response, a class action lawsuit that has challenged the constitutionality of the removal of the prior provisions has succeeded in halting the full application of the new regulations until a hearing by a higher court (Coalition Against Repeal, 2013). With this background of policy development and public perception in mind, I will now turn to the experience of cannabis users as viewed within the normalization perspective. I will argue that despite the ongoing prohibition, social regulation is much more a reality than legal bans, stigma, and fear of punishment.
Application of Normalization: Cannabis and Lived Experience
The normalization perspective, first applied to drug use by Howard Parker and colleagues in a longitudinal study of young people in the UK (Parker, Aldridge and Measham, 1998) and further developed in several articles and a second book (Aldridge, Measham and Williams (2011), presented drug consumption as part of contemporary lifestyles of otherwise conventional and ordinary young people. Centered on recreational rather than dependent or excessive drug use, the user was viewed as making “reasoned choices” considering potential interference with other valued aspects of life, including family, work, reputation and health. Overall, the process of normalization in society reduces the stigma attached to deviant or illegal activities, as these behaviours become progressively viewed as a normal part of everyday life and an acceptable leisure activity (Parker, 2005). The originators identified six indicators of drug normalization: (1) increasing access and availability of illicit drugs in the community; (2) increasing prevalence of this drug use; (3) increasingly tolerant attitudes towards drug use among both users and non-users; (4) expectations among current abstainers regarding future initiation of illicit drug use; (5) the “cultural accommodation” of drug cultures in youth oriented film, TV and music; and (6) more liberal policy shifts (Parker, 2005:206-7). The normalization thesis has provoked much discussion (Measham and Shiner, 2009) and further modifications, including its potential application not just to youth but across the life course (Erickson and Hathaway, 2010), the relation of perceived health risks to more tolerant attitudes (Duff and Erickson, under review), and the actual practice of enforcement in the absence of significant policy changes (Brochu et al., 2011).
While cannabis is also viewed as the exemplar of normalization in a global setting where it is the most widely used illicit drug by far, cultural variation in preferred and permitted intoxicants must also be recognized on the normalization spectrum (Beckley, 2009; Duff, 2005; Erickson and Hathaway, 2010). In Canada, the survey data reviewed earlier and other research on the experience of users has indicated that the process is well underway for cannabis (Duff et al, 2012; Osborne and Fogel, 2008). There are several reasons why this evidence is important to insert into the current Canadian debate over drug policy: it focuses on recreational cannabis use, the norm for most users; the patterns of widespread use described above show a shift in moral boundaries despite the persistence of criminal prohibition; opinion polls also illustrate the changes in social evaluation from a subcultural to mainstream practice; the reliance on the criminal law as the major policy approach is not compatible with public health, user practices of moderation, or a respect for the rights of people who use drugs. Hence its elucidation is congruent with the critical stance of public criminology.
While the epidemiological and survey evidence sets the groundwork for a portrayal of normalization, the lived experience of users provides the insights into the acceptability and cultural tolerance that are also required components. Now I shall present some additional findings from our qualitative interview studies of 165 long term (average about 15 years), socially integrated adult cannabis users recruited in four provinces (for a description of sample and method, see Duff et al, 2012). Here are some typical quotes of how these individuals describe their ongoing cannabis use as integrated into their lifestyle: “people who casually smoke a joint here and there, even if a little bit every night, but it’s not interfering with their life or with their productivity, I don’t really see the harm,” and “for my generation, we’ve been using since we were young, and most of us will continue to use and can still be successful as long as we are average users and don’t go in for heavy using.” These are clear reflections of the importance of a sense of control and self-monitoring that are central to normalized patterns of use.
Even inter-generational use was not uncommon in this group: “I grew up in a family that smokes pot…I’ve smoked with my dad and my mom. It’s just like part of family.” While the large majority expected to still be using in 10 years, others saw a gradual turning away: “Pot plays the role of recreational activity…in 10 years I’ll have different responsibilities and I don’t see it being as much part of my life.” For many, appropriate use of cannabis was often compared to alcohol: “We have social norms with alcohol, like it’s inappropriate to have beer with breakfast, but it’s ok to have wine with dinner. Well what we’re doing there is, we’re mitigating the negative effects. I try and to do the same with pot, to work out the right amount to have, when to have it, what about its effects on me, my work my friends; it’s all about making sure things don’t get out of hand.” This quote echoes the “reasoned choices” that Parker describes as central to the normalized use of drugs.
Our respondents were asked about situations when and where it was, as importantly, not acceptable, to use cannabis. The list included funerals, baby showers, at church, around animals and around children. Many also emphasized avoiding use when efficient functioning to do work, school or other tasks was required: “anything work related;” “if I have anything else to do including dishes or laundry;” “before a test or while studying.” Interestingly, when we asked the participants (68 out of 165) who were also cigarette smokers about what they considered inappropriate use of tobacco, this comment was typical: “I don’t smoke around children, inside, or around pregnant people….or around people who don’t want me to or who don’t have a choice.” When users of both substances were asked to compare others’ responses to knowing about their habits, much more stigma was expressed about cigarette use: “I’d rather have them find out about marijuana because tobacco is ‘dirty.’ I think it’s a dirty habit, I think most people think it’s a dirty habit. I don’t have the same conception or opinion of smoking pot. Because it’s like in the same category as drinking I guess.” The emphasis placed by smokers of both cannabis and tobacco on setting boundaries and being considerate of others, despite the vast differences in legality, demonstrates a convergence of norms on acceptable social behaviour.
In summary, the available evidence from various sources (including the surveys and our own research and that of others) strongly supports a conclusion that normalizing trends for cannabis use are well underway in Canada. Access is reported as easy with friendship networks as the main source. Use is widespread across society, not limited to a subculture or deviant group. Most users have many friends who are also users, but report acceptability among non-using peers as well. Little stigma is experienced in most settings but some reservations are expressed regarding employers and family members. Tolerance does not extend to heavy use or to “hard’ drugs like cocaine or opiates. The vast majority do not fear arrest but also are cautious about public settings and exposure to police, though many are not aware of the existing law and penalties that could apply to possessing even small amounts. While the law had not changed, the exercise of police discretion not to charge in all instances may also reflect a significant policy shift towards leniency “on the street,” at least for certain, less marginalized segments of society.
Growing Disconnect and the Rise of Activism: Prospects for Reform
This disconnect between policy and behaviour leads us to the contrast between formal and informal types of social control, the former inherent in the criminal law and the latter found in social regulation. Both set out standards or demarcations of forbidden versus acceptable behavior among members of society, but with vastly different mechanisms and consequences. Criminal prohibition, Canada’s current dominant policy that has persisted for over a century, relies on the threat of certain and severe punishment to deter use. Selective enforcement, with quotas and proactive targeting, results in arrests of a small minority of the more vulnerable drug users by virtue of age and visibility. Illicit markets supply cannabis and other illicit drugs of unknown potency and purity, and generate violence as their major means of handling market competition. Despite royal commissions, special committees, numerous hearings and proposed decriminalization bills, no changes to the criminal justice model have occurred, and it was re-entrenched in the beginning of the 2010 decade with even harsher penalties and more resources for enforcement and interdiction.
In contrast, social regulation supports recreational use, within limits, relying on social disapproval to contain problematic use. The social context is central to determining acceptable use, with variation according to time, place and who else is present in the social situation. As opposed to classical deterrence which aims to prevent all use, restrictive deterrence operates to channel users not to quit, but rather to avoid potential risky situations in public where detection may occur. Thus displacement is the main impact of the criminal ban. Users obtain drugs through friendship and social networks, where few need to have connections to larger scale suppliers. This social supply means of distribution has been found to especially characterize cannabis markets.
Central to the normalization perspective, our interview studies show that cannabis consumption is shaped by a sensitivity to the individual use environment which helps to determine when, where and with whom use is appropriate, and also importantly, inappropriate. We observed similarities to the social norms governing alcohol and increasingly, both public and private use of tobacco. When a substance is legally regulated, as these are, in a public health oriented model, various bylaws and non-federal statutes set out acceptable conditions for obtaining and using them, e.g. age and place restrictions and licensing of sale outlets. Thus the law is applied to set standards rather than to punish, and infractions tend to result in non-criminal penalties such as fines or loss of licenses. In the next section, I shall consider the possible future drug use and policy directions that we might witness in Canada in the short run of the remaining years of this decade. This is primarily a speculative exercise, but one informed by past developments and those that are occurring in the broader global context.
From the earlier discussion of several decades of indecision, regardless of which party was in power, followed by the current Harper government’s toughening of the CDSA provisions with mandatory minimum sentences, it would seem unlikely that change will occur at the federal level during its term of office (a federal election must be held by October 2015). Nevertheless, many shifts have been happening globally in both national and local policies that may eventually influence Canada. About 25 other countries have instituted significant decriminalization policies, not just for cannabis but for other drugs (The Economist, 2013). Uruguay has set a state wide system of cannabis regulation in motion, and voters in the states of Colorado and Washington recently passed voter initiatives legalizing the use and commercial sale of marijuana (Keefe, 2013). The international treaties governing drug policy, of which Canada is a signatory, explicitly ban such legal production, but compliance appears to be weakening; many Latin American countries have been criticizing them and proposals for opting out have appeared in prestigious journals (Room and Reuter, 2012), a far cry from when the treaties were presented as totally rigid requirements in the hearings on the CDSA (Fischer, 1997). Adding to the mix in Canada has been the new Liberal leader’s (Justin Trudeau) comments in favour of “legalizing it, tax and regulate (cannabis)…the current model is not working” (July, 2013). However, a more feasible possibility may be the one presented by the Canadian Association of the Chiefs of Police to use the Contraventions Act to create a non-criminal, ticketing, possession offence (August, 2013). This of course is exactly the proposal put forward and much debated during the Liberal Government era of 2003-2006, and one which the CACP opposed at the time (Hyshka, 2009a;b).
A recurring thread in the drug policy debates since the Le Dain Commission has been the imposition of criminal records on otherwise non-criminal individuals, and the life-long consequences that can follow. A general amnesty has been discussed and rejected in prior federal policy reviews. A supposed safety valve for the hundreds of thousands of individuals with such records for cannabis possession is to seek a pardon which after a waiting period, an investigation, and a payment, is supposed to seal the record (Erickson, 1980). The Harper government recently re-named the pardon a “record suspension,” increased the waiting period, and raised the fee (Erickson and Hyshka, 2010). The following email message, received by the author in the summer of 2013, illustrates both the persistent negative consequences of a criminal record and the limits of a pardon:
I’m a Canadian living and working in New York City and presently trying to immigrate to the United States. Back in 1993 I was arrested for smoking a marijuana cigarette in Montreal. I was 21 and it was a first offense I ended up getting probation of 6 months, no fines. I have never been arrested or convicted again. In 2000 I requested a Pardon for this offense and most documents were destroyed—including the police report with a description of the single marijuana cigarette I had when apprehended. Since the US Immigration Service does not recognize the Canadian Pardon, the burden is now on me to prove the amount I was arrested with was less than 30 grams of cannabis. I still can’t believe that this would follow me 20 years later but it has.
This story may have a happy ending, as this individual was able to find an old microfilm of his arrest, using the Freedom of Information Act, and add that to his application for immigration. But it is also clear that once a criminal record is acquired it is nearly impossible to eliminate the trail, or the effects.
An important ingredient in the prospects for reform of Canadian drug policy is the role of activists. Users themselves, such as the adults interviewed in our research, are emissaries of normalization and living proof of harm reduction. As they demonstrate self-regulation and long term use without problems or interference with their social roles and responsibilities, what end would be served by arresting them, taking them to court, and imposing criminal records? On a global level, the emergence of harm reduction has focused attention on recognizing the human rights of all drug users, across the spectrum, including the recreational users (Erickson and Hathaway, 2010). Despite being at the center of initial iterations of Canada’s Drug Strategy, and shaping many provincial and city responses to their local drug issues, the Harper government removed harm reduction from its Anti-Drug Strategy in 2007. Nevertheless, groups such as Canadian Students for a Sensible Drug Policy have become active on many campuses, and the Canadian Drug Policy Coalition has provided a forum and a presence to critique current approaches and provide alternatives (CDPC, 2013).
While the future of Canadian drug policy remains a work-in-progress, public criminology can play an important role in this ongoing debate by bringing relevant research forward to inform a more just, humane and effective policy rooted in public health and the principles of harm reduction.
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1Department of Sociology and Centre for Criminology and Socio-Legal Studies, University of Toronto
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