Notes from:
The Real Dope:
Social, Legal and Historical Perspectives
The Real Dope:
Social, Legal and Historical Perspectives
on the Regulation of Drugs in Canada
Edited
by Edgar-André Montigny
[All quotes from this source.]
From "Introduction" to The Real Dope
From "Introduction" to The Real Dope
Legal and social legislation of
drugs in Canada :
- A “controversial topic with a complex history”
- From the Narcotic Control Act (1961)...
- ...leading up to the Controlled Substances Act (1996)
[Editor’s note: The Cannabis Act (2017), though it sets out
to establish a framework by which marijuana will be regulated and taxed, has
not taken effect yet. All penalties and
punishments listed in these notes are still accurate.]
There are severe penalties for possessing, seeking, or obtaining any illicit substance in Canada.
Cannabis / marijuana:
- some of the most severe punishments of any drug
- some of the harshest penalties in the entire Canadian criminal code
For example:
- Possession of marijuana: fine of up to $1,000 and/or prison sentence of six months to up to 7 years
- [The Cannabis Act (2017) proposes, among other things, a maximum 14-year prison sentence for providing marijuana to a minor. –Ed.]
- Trafficking in marijuana carries a potential life sentence
- Assault, which carries a maximum penalty of 5 years;
- Assault causing bodily harm, 10 years;
- Sexual assault with a weapon, 14 years
“There are in fact very few crimes that carry the potential for life imprisonment applicable to trafficking in opium or marijuana.”
- “Simply possessing a drug such as marijuana is considered a substantial threat”
- “[...] trafficking in illicit drugs is assumed to represent a danger equal to murder, kidnapping, or high treason.”
Illicit and non-illicit drugs
Illicit drugs:
- Severe penalties
- Severe threats to users and bystanders
Therefore, there must be a clear
distinction between illicit and not illicit drugs... right?
And yet:
- The distinction between illicit and non-illicit drugs “is often difficult to see.”
For example, compare marijuana and tobacco
- Tobacco
- A legal drug through the entire period of debate in
- Never any serious initiative to criminalize or punish users
- This is in spite of evidence of serious health risks; to non-users (second-hand smoke) as well as users
- Smoking causes heart disease, strokes, brain aneurysms, bronchitis, emphysema, cancer
- 40,000 deaths per year in
- “100 deaths a day by some calculations”
- cost to Canadian health-care system = $9.5 billion in 1992 alone
- Efforts to regulate smoking are sometimes met with claims of a ‘right to smoke’
- The Supreme Court of Canada has concluded Parliament has no obligation to criminalize a drug such as tobacco on the basis of effects on health (RJR-MacDonald)
- On the contrary, Marijuana
- The Supreme Court of
- marijuana is relatively harmless compared to so-called ‘hard drugs’
- marijuana is relatively harmless even compared to alcohol and tobacoo
- cannabis is not an addictive substance
- there is no evidence of causal relationship between cannabis use and criminality
- cannabis does not make people more aggressive or violent
- These findings came after “the most detailed examination of the medical evidence relating to marijuana on file with the Canadian court system” done for the Courts’s review of cases Clay v. R, Malmo-Levine v. R, and Caine v. R.)
- The Court also heard expert opinions from more than 10 witnesses, and five civilian witnesses about the botany, pharmacology and medical properties of cannabis
- The BC Court of Appeal has concluded “there was no conclusive evidence demonstating any risk to the users of marijuana.”
- Research suggests marijuana may have positive attributes
- use in medical tratments (glaucoma, nausea from chemotherapy)
- also, to treat MS, cerebral palsy, spinal cord injury
- to slow the process of brain decay, potentially to
help Alzheimer’s, Parkinson’s,
“If the dangers posed to the health of society have
any impact on the decision to declare a substance illegal, tobacco should
have been criminalized decades ago.”
- The criminal sanctions do not match the threats of these two substances (one illicit, one non-illicit).
This suggests -- “at the very
least” -- that the distinction between illicit and non-illicit drugs in Canada has very
little to do with their actual threat or danger.
- There is a “lack of rationality” when laws criminalize a relatively harmless substance, but leave people free to consume a clearly dangerous substance.
- "apparent irrationality of many
aspects of legal and social regulation of drug use in
- “perhaps ‘unspoken’ fears have constituted the reasons for treating drugs like tobacco and marijuana so differently.”
History of drug regulation in Canada is a
topic by which we can explore:
- “various ideals of the relationship between the state and the citizen”
- “the extent to which the state can or should curtail certain activities in the interests of promoting a particular set of moral values.”
- “how social values become translated into social values and policy”
- “the role of the media and public opinion in the process.”
Race, Ethnicity, and Drug Laws
“Early drug laws were essentially
racist in nature”
- Certain drugs were targeted, not because of their dangers, but because of their association with certain ethnic groups assumed to be dangerous
- Note that this happened in a context of “the overall moral-reform campaign that was in progress at the time the first such laws were passed.”
Much work links “the development of
drug laws to the fears of the Canadian white Anglo-Saxon middle class” during
the late 19th and early 20th century
- At that time, “industrialization and immigration stimulated widespread concern over rapidly changing social conditions”
- Moral reformers at this time:
- “a varied group of religious, medical and social reformers"
- "[who] campaigned on several fronts to put in a place a wide range of laws, by-laws, and regulations"
- "to curb what they saw as a moral decline caused largely by the increasing numbers of non-Anglo-Saxon immigrants in their midst.”
The Basic Problem that drug law sought to solve:
- “Non-Anglo-Saxon immigrants were of a lower overall genetic quality and, therefore, less intelligent and less able to control or regulate their desires and passions.”
- Therefore they were “inclined towards immorality"
- Anglo-Saxons “had an understanding of right and wrong and were able generally to contain their behavior within expected limits.”
- Immigrants did not have the same understanding of “rules of conduct” or the same ability to regulate their behavior."
- “It was thus necessary for Parliament, legislatures, and municipalities to create laws that made the basic moral rules explicit and that would allow the various levels of the state to monitor, regulate, and, when warranted, punish the activities of those people, mainly immigrants, who might not abide by the rules”
- “[...] for their own good”
Demands for legal regulation “were generally
most successful when the activity in question could be depicted as a moral
threat because of its association with a non Anglo-Saxon immigrant group”
- Took place in the 1908-1929 period, “when the largely anti-immigrant ‘moral law’ movement was at its height.”
- Opium became the first target of the movement, and set the tone for treatment of substances subsequently
Opium
- Opium use had gone on in
- It was freely prescribed in 19th century,
- Also obtainable without a prescription
- In 1907, forty-four tons of opium were imported – with minimal customs dues
- Along with heroin and cocaine, opium was used to treat variety of ailments (heroin for cough)
- Most users were white middle-class Protestants,
“members of the dominant class in
- It was / they were not seen as dangerous
- There was no pressure to control use or importation in 1907, “perhaps because most known addicts were from the respectable classes”
- Only when opium became identified with Chinese immigrants did it become a “problem,” and an “issue of public significance and parliamentary action.”
Shortly after 1900:
- Pressure to criminalize opium mounts
- Chinese immigrants are the largest non-Anglo-Saxon group in British Colombia
- “As a consequence, anti-Chinese sentiment had reached a fever pitch.”
- Economic downturn or early 20th century “created frustration and anger among the province’s white population and soon this anger was directed towards the Asian minority.”
- Appearance of groups such as the Asian Exclusion League
- Attitudes became “increasingly hostile”
- 1907: “A full-scale riot as a crowd of white
protesters in
- “In this period of high anxiety and racial tension
[...] the Chinese population of
Linking Chinese immigrants to
opium:
- “Banning the drug became seen as a way to control the unpopular minority group.”
- “Suddenly, opium smoking was identified as one of
several traits exemplifying the alien and inferior character of the
Chinese immigrants in
- Thus: July 20, 1908: “With little discussion or debate in either the House of Commons or the Senate, the federal government passed what is commonly known as the Opium Act”
- Importation, sale or manufacture of opium for non-medical use became a criminal offense
- Penalties up to 3 years in prison, and fines of $50 to $1,000.
- Possession and personal use: not affected.
The Opium Act “focused on specific forms
of drug use favored by a vulnerable minority.”
- Medicinal use of opium by the dominant class remained legal
- Even then, the properties of the drug had little to do with criminalization
- “Instead, long standing fears about the potential danger that inassimilable Chinese supposedly represented to the moral fibre of the nation motivated the government to limit access to a drug that was thought to increase that danger.”
For comparison:
- Also in 1908, a private member’s bill to ban the manufacture and importation of cigarettes failed “because tobacco was not felt to be as physically or morally debilitating as narcotic drugs.”
- Statements of dangers of tobacco were called “alarmist”
- “It seems more likely that the reason tobacco was not added to the list of addictive and dangerous drugs was that it was popular among respectable white middle-class Canadians.”
- “Whatever the properties of the drug itself, it was not considered a threat largely because the people using it were not considered socially or politically dangerous.”
- “Tobacco use, rather than threatening the morals of white Anglo-Saxons, actually was seen as a means to prove or reinforce the moral superiority of the group.”
Moral
Panic
- Moral panic: “the sudden rise of an issue, often out of proportion with reality”
- Moral entrepreneurs...
- ... “disturbed by conditions and/or behaviours they feel affect the moral order...”
- ... “seize the issue to try to regain control of the public agenda, or to (re)impose or maintain their values and code of conduct.”
- “The theory holds that any time society discusses illegal drugs it is easy for the media, law enforcement, or interest groups to create a moral panic or climate of fear to help gain support for the creation or maintenance of a regime of regulation or repression.
White Slavery Panic
Not long after opium (1908):
- “... a second ‘moral panic’ appeared with wider-reaching consequences”
- namely, the White Slavery Panic
- It “refers to the widespread belief that non-Anglo-Saxon immigrants, particularly the Chinese but also the Blacks and Italians, were using businesses such as laundries and restaurants to employ young white women and then kidnap them, drug them, and sell them into a life of sexual slavery to serve the physical needs of ‘depraved brown-skinned men.”
- This moral panic “fuelled the creation of specific laws,”
- eg Saskatchewan’s Female Employment Act (1912), “which prohibited Chinesse immigrants from employing white women in businesses they owned or operated.”
1923 : Marijuana is criminalized
 |
| Emily Murphy Park, Edmonton, AB |
- “... owes a great deal to the moral panic created by the publication in MacLean’s magazine of several articles by Emily Murphy”
- “In her articles [...] Murphy set out to provide the public with the kind of information that was certain to generate public pressure for expanded drug laws and increased penalties.”
- “She openly exploited the general racist sentiments among her readers”
- “[...] to create a clear link between immigrants, drug use, immorality, and imminent danger to white society and predominantly white women.”
- Claimed “that the Chinese and other ‘blackamoors’ were consciously trying to bring about the demise of the white race through the introduction of opium.”
To Murphy, drug use was a moral
threat.
- Drug use degraded the morals
- It weakened people’s willpower
- It “caused people to become thieves and liars with no more idea of what was right or wrong than animals”
- In her opinion, drug traffickers were the villains: “They destroyed youth, innocence, and virtue.”
- Drug traffickers were “almost always foreign, usually Asian or ‘gentlemen of colour’”
- Victims of drug abuse “were almost always young white women from respectable families”
- Drug users began as innocent victims but were quickly turned “into dope fiends, living lives of debauchery and prostitution and eventually suffering from the ravages of disease and mental decay.”
- She “described cannabis as a drug that drove its users completely insane, turning them into raving maniacs liable to kill or indulge in any form of violence.”
“It seems no coincidence” that at
the time of Emily Murphy’s writings, “drug use became one of the most widely
discussed social issues of the day.”
- linked to many social ills, including: prostitution, racial decline, deficient manhood, bad mothers
- At the same time, “the most concerted effort to limit
the immigration into
- 1923: The federal Chinese Immigration Act virtually
halts immigration from
“Eliminating drug use was seen as the
solution to all that troubled a society feeling the full effects of
industrialization, urbanization, and ethnic diversity.”
- Pressure for harsh drug laws mounted
- Unfavourable public perception of drugs fueled government action to control them
- increasingly harsh criminal punishments
- 1920’s: federal government passes five sets of amendments to the Opium and Narcotic Drug Act, “broadening the scope of the law, increasing penalties, [...] expanding police powers of search and seizure” – often with little or no debate, discussion or investigation
- People accused of drug crimes were guilty until proven innocent)
- People convicted of selling to children could be whipped
- Mandatory imprisonment for most offenses
- Maximum sentences for traffickers increased to seven years
- Convicted immigrants could be deported
- Limitations imposed on right to appeal a conviction in 1923.
Opium and Narcotic Drug Act (1929):
- This second moral panic culminated in the Opium and Narcotic Drug Act, “which established the framework of Canadian drug law for decades to come”
- These were justified, largely or wholly, by “popular, usually totally fictional, narratives such as those created by Emily Murphy.”
Marijuana Prohibition, 1923
Marijuana became a controlled
substance in 1923
- .... “although few Canadians, including parliamentarians, had any knowledge of the drug or its properties”
- “It was certainly not considered a social problem in
Why was it criminalized?
- “There is no real evidence.”
- “It was not a major policy decision”
- “... no explanation was given or asked for in the House of Commons”
- “No scientific evidence of any harm posed by the drug was presented”
- Marijuana was not debated in the House of Commons until 1938 – when it was called “a weed with far reaching, poisoning and demoralizing effects”
Examples of ignorance on the topic:
- in 1928, the Canadian Medical Association began to lobby government regarding marijuana, unaware that it had been declared illicit five years before
- Ignorance within the medical community "that cannabis and marijuana were the same thing.”
Emily Murphy’s articles found an
audience and fed a moral panic because:
- “Canadian society of the day was ready and willing to see the combination of racial minorities and drugs as creating a particularly potent threat to the social stability and position of Anglo Saxons.”
- “In a climate of panic, the unknown is easily portrayed as dangerous”
- Emily Murphy’s link between drugs and immigrants and foreigners “made the threat seem tangible”
1920s: emergence of youth culture
“seemingly based upon the rejection of older social norms and morals”
- The link between youth and drugs made the threat seem that much more acute
- Drugs could be “the only possible explanation” for the behaviour of youth
- Marijuana, associated with East Indians; also cocaine, “associated with black immigration” – both assumed to be popular with adolescents
- This further emphasized “the idea that drugs were related to youth rebellion and threatened the future of the respectable classes”
- Greater threats justified use of harsher measures “to protect society”
It is easier to pass laws
infringing upon the liberties of people if “the victims [of this repression]
would be ‘socially devalued persons’”
- i.e., immigrants
- “The laws were never seen as being anything that would worry most ‘real’ Canadians.”
In the media:
- “constant linkage” between drugs and immorality, criminality, depravity
- “created a strong image in the mind of the public”
- public perceptions and government actions were self-reinforcing:
- perception of danger, therefore harsher laws, therefore more perception of danger, etc
- “What was earlier thought of as a minor private indulgence became recast as a serious public evil”
- “It became increasingly difficult for society to think of drug use in any other way.”
After the panic of the 1920s:
- marijuana was still largely unknown in
- drug convictions decline
- “It certainly had not become a social problem”
- 1955: a House of Commons committee stated that there
was ‘no problem’ with marijuana in
- “Only a few charges were laid each year and most involved ‘visitors from outside the country’”
- By 1960, “a grand total of 15 ounces of marijuana had been seized by the police”
- “Nevertheless, it was still asserted by most commentators that drug use was innately linked to promiscuity and prostitution in women and criminality in men.”
- This view gained traction “once the use of marijuana and other drugs began to increase dramatically after 1965.”
1960s
- new users of marijuana and other drugs such as LSD:
- were not necessarily part of a particular ethnic group,
- but they came from “a new youth subculture based upon a rejection of conventional social norms and moral rules”
- thus they were perceived to be a threat to the existing social order
- drugs + youth rebellion = “powerful images of a threatening moral and social crisis”
- “Once again drugs became to be identified as a threat, largely because the people using them were seen to be a threat.”
- “the actual properties of [the drugs involved] had little to do with the degree of threat that such drugs was deemed to pose”
In spite of this next-generation moral panic the Le Dain Commission (1969-1972) was able to conclude that marijuana was not a
harmful or dangerous substance
- However, this did not translate into any change in punitive drug policy, “largely because the finding failed to alter the image of threat associated with the drug.”
- “This helps support the claim that the real ‘harms’ which drug prohibitions against marijuana are protecting against are not to be found in the properties of the drug itself, but rather in the types of people who might emply [it] and what they are believed to represent to society.”
In Conclusion: What's at stake?
“There is more than mere historical interest at
stake when discussing policies related to the regulation of drugs in Canada .”
- Drug policy, and treatment of drug users, “are closely linked to, and have a significant impact on:
- “the ideals out society holds concerning what activities are the proper subject of state regulation
- “how society identifies ‘threats’ to its well-being.”
- These two issues are linked to:
- “our conception of equality and equality rights
- “the extent to which dominant groups in society have a right to impose their beliefs and preferences upon minority groups
Three Approaches
Three different approaches towards drugs and the social values underpinning them:- Legal moralism
- the state, as the guardian of public order, “has the responsibility to use public policy to maintain a common morality within society”
- ie, the mentality that began
- “justifies drug prohibitions on the basis of morality rather than public health”
- much early writing about drug policy situates such policy within this framework
- Legal paternalism
- argues for decriminalization, but not legalization “[...] since the law should not encourage the use of products harmful to the young”
- ie, the use of legal constraints to prevent “non-autonomous persons” from harming themselves
- Legal liberalism
- calls for legalization
- “the state as guardian of public order, must restrict its action to those areas that disturb the peace in general, such as road safety, and limit its actions so as to preserve civil rights to the greatest extent possible.”
- ** Punishments for drug users are an abuse of the state’s power **
- “Even if a large portion of the population finds certain types of drug use morally suspect, that does not make it legitimate for the state to regulate such activity if such use in itself does not constitute a threat to others.”
Works cited for the "Introduction" to The Real Dope:
Giffen,
Endicott and Lambert, Panic and
Indifference: The Politics of Canada’s Drug Laws (Ottawa, Canadian Centre
on Substance Abuse 1991)
Chapman,
Terry, ‘The Anti-Drug Crusade in Western Canada ,
1885-1925,’ in D. Bercuson and L. Knafla, eds., Law and Society in Canada
Boyd,
N. ‘The Origins of Canadian Narcotics Legislation: The Process of
Criminalization in Historical Context,’ Dalhousie
Law Journal, 8, no.1 (1984)
If you made it this far, also check out:
"Liberals' Marijuana Bill Aims To Erode Our Charter Rights," Sarah E. Laemon, The Huffington Post
"Canada will legalize pot, after arresting a bunch of people for pot offences first," Neil Macdonald, CBC
As well as the comment at the top of this Reddit thread, the one that begins: "[...] a big influence on how this has rolled out has been the result of the heavy hand of the RCMP in the determination of the how legislation will work."
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