CANADIAN PUNISHMENT OF

ILLEGAL DRUG USE:

THEORY AND PRACTICE
Neil Boyd'"

The paper discusses the evolution of theory and

practice with respect to the sentencing of Cana-
dian drug offenders. Particular emphasis is placed
upon the description of case law in the Canadian
context. It is argued that the practical thrust of
Canadian sentencing pulicy is directed towards
the offence of possession of marijuana. It is noted
that the Canadian government has been reluctant
to legislate in relation to the sentencing of drug
offenders; the Canadian judiciary essentially en-
acts policy in the absence of a legislative will.

he criminalization of certain psychoactive substances has been state

T policy in Canada since 1908. For the past 74 years successive federal
governments have contributed millions of taxpayer dollars to "fight the good
fight" - the elimination of certain forms of drug use. In the past fifteen years the
wisdom of criminalization has been subjected to increasingly critical inquiry.
In 1972 the Liberal government appointed a Commission to inquire into the
meaning of "non-medical" drug use I. The past decade has also seen wide-
spread use of marijuana by Canadian youth - a reality that has acted as a
catalyst for a re-examination of the social utility of substance criminaliza-
tien.>

The Unhappy Legacy: A Soeio-Legal History of Canadian "Drug"·

Penalties
At the turn of the century the Canadian opium industry was flouriahing in
the West Coast province of British Columbia. Opium factories produced
smoking opium for Chinese retailers in the cities of Vancouver, New West-
minister and Victoria. This opium business was only of financial interest to
municipal governments of the day. In 1879 the city of Vancouver imposed an
annual $500 licensing fee to be paid for the privilege of dealing in opium.'
Until 1908, there were no criminal penalties whatever associated with the use
or distribution of psychoactive substances in Canada. Chinese immigrants
smoked opium within the province of British Columbia; middle-class whites
across the country consumed opiated tonics, elixirs. and analgesics; there
were reports in Montreal of cocaine use by the city's black population.'

·Proi...or Boyd I. on the faculty of the I>epartment of Crlminolotly. Simon ~·r8l.r Univer.ily. Burnaby. B,V,
Canada Vr,A 1,;6

Fall 1981 445

 In 1908 the Liberal government of Sir Wilfred Laurier introduced a two-
section statute that prohibited the importation, manufacture, and sale of
opium. The Act provided a maximum penalty of three years imprisonment at
the same time that it allowed sale of existing opium stocks for a six month
period following the statute's enactment." At the outset, Canadian drug
enforcement policy was not geared towards lengthy terms of imprisonment.
Indeed, in these early days a jail penalty was rare for the offences of
importation or sale."
It was, perhaps ironically, the government's Ministry of Labour that had
called for the criminalization of opium. In the summer of 1907 the port city of
Vancouver saw a massive influx of Asian immigrants. The city's daily
newspaper, the Vancouver Province, spoke out strongly against the "rising
tide of Orientals":" white trade unionists formed the Asiatic Exclusion
League and lobbied the federal government for an immediate end to all
immigration from the "East."
The Asian immigrants had been induced to come to Canada by West Coast
industrialists." These newly arrived Chinese and Japanese would work for
salaries that the whites of the province would not accept. In the context of the
tight labour market of 20th century British Columbia, the Asian immigrant
was both feared and resented by those who similarly toiled for the capitalists.
In September of 1907, a massive anti-Asian rally at the Vancouver city
hall got out of hand. A crowd of thousands stormed into the Japanese and
Chinese quarters of the city and created substantial property damage. The
Canadian government could not ignore this harsh treatment of newly arrived
Japanese and Chinese. The world of international politics demanded that
compensation be given to those individuals who had lost property in these
riots." The Deputy Minister of Labour, Mackenzie King, was sent to Van-
couver to settle Japanese and Chinese claims resulting from this night of
reactionary fervour.!"
In the course of settling Chinese claims, King came across two requests
from the owners of opium factories. I I He was startled by the size of the
industry, and when lobbied by Chinese merchants and clergymen, pro-
claimed a need to suppress the opium trade. In June of 1908 King told the
Chinese Claims Commission assembled in Vancouver, "My own opinion is
that it should be made impossible to manufacture this drug in any part of the
Dominion. We will get some good out of this riot yet."12 The criminalization of
opium was seen as a means of resolving a labor dispute. No evidence was
offered in Parliament of the individual or societal harm occasioned by the
distribution and use of opium. King relied upon unsubstantiated claims of
"dire influence" in his efforts to persuade the federal government of the logic
of his morality.!" In July of 1908 the distribution of opium became a criminal
offence.
The intervening 74 years have seen significant changes in both Canadian
theory and practice with respect to the social control of certain forms of drugs.
Though penalties for both distribution and use are now far more Draconian
than was the case in 1908, the 1973 publication of the LeDain Commission's
Final Report signalled that some doubt as to the wisdom of a severe state
response had arrived on the Canadian scene.
In 1911 the Canadian government criminalized the possession of opium;'!

446 ,JOURNAL OF DRUG ISSUES

 and added cocaine to the schedule of criminally prohibited substances. The
criminalization of opium use had been necessitated by police difficulty in
securing con.victions for importation, manufacture, or sale. There was no
suggestion that use was criminogenic in itself. As the minister noted in his
Parliamentary discussion of the Bill, "The police have found that the present
legislation is not drastic enough, or broad enough, to give them the powers of
seizure and confiscation which they regard as necessary. One of the objects of
the present Bill is to make more drastic the regulations in that regard."15
It was not until 1920 that a harsh mode of Canadian drug enforcement
really got off the ground. In that year the Royal Canadian Mounted Police
were established as the enforcement arm of the Opium and Narcotic Drug
ACt. 16 As two Canadian academic commentators have noted, "given their
clear mandate, apparent expertise and control over public information, these
agencies became the most powerful, well-organized lobby for expansion ofthe
drug laws."!"
In 1921,22 and 23 the Canadian government enacted amendments to The
Opium and Narcotic Drug Act - amendments premised on the notion that
certain forms of drug use constituted an unspeakable evil. In 1921 the
maximum penalty for the importation, manufacture or sale of narcotics was
raised to seven years.!" In 1922 the minimum penalty for possession of opium
or a "narcotic" drug was set at six months imprisonment and a $200 fine.!? In
1923 marijuana was added to the list of prohibited drugs with the simple
statement, "There is a new drug in the schedule."21l The Canadian Parliament
did not discuss this addition at any further length. So great was the moral
fervour of the day regarding drug use that one member of the government was
moved to comment, "This crime, to my mind, is even more serious than the
crime of robbery with violence. To hold a man up at the point of a gun and
take his money away from him is serious of course, but it is not so serious as to
give drugs to a minor and take away his future ... I would much rather that
anyone hold me up, and shoot me for that matter, than sell me drugs and
cause me to become a drug addict."!'
At this point in Canadian history illegal drug use was perceived as an.
immoral act. In 1921 an influential magistrate in the province of Alberta
produced a series of articles on drug use. These articles were published and
apparently endorsed by Canada's largest newsmagazine.tt Judge Emily
Murphy described drug users as "ashen faced, cringing creatures." In her
book The Black Candle she presented the hypothesis that drug use could yet
be the scourge of the nation."
In this climate, a proliferation of prosecutorial weaponry and increasingly
harsh penalties for illegal drug use became virtually inevitable. Indeed it was
not until the 1970's that the societal perception of drug use and distribution as
more properly a medical problem began to rival the hypothesis that "drug"
use and distribution is immoral and deserving of punitive response. With the
publication of the LeDain Report and with books like Licit and Illicit Drugs,
Ceremonial Chemistry, and The Natural Mind filtering into public conscious-
ness, some segments of Canadian society are now seriously questioning the
wisdom of a criminalization strategy for the social problems created by
certain forms of self-destructive drug use. 24
What is most disappointing, however, is that Canadian government policy

Fall 1981 447

 remains at a most infantile stage. Punitive repression is still the primary
medium of state response. In 1960 the government enacted the Narcotic
Control Act, which remains in effect today. The maximum sentence for
trafficking was raised to life imprisonment. An amendment that would have
provided a possible death sentence for "narcotic" distributors failed. 25 The
member for Vancouver East echoed sentiments heard in 1922 when he said,
"I think about the lowest depths that any man or woman can sink to is to be a
trafficker in narcotics. A murderer kills and that is it. But one who traffics in
drugs, who brings a person to addiction, to that insatiable craziness, makes
an absolute hourly and daily hell for life for the addict. I, therefore, have no
sympathy for him, and I agree that for the trafficker there should be a penalty
of up to life."26
At the present time Canadian criminalization of certain psychoactive
substances resides in two federal statutes, the Narcotic Control Act of 1960
and the Food and Drugs Act of 1962. The latter legislative initiative followed
on the heels of the thalidomide tragedy." The statute deals with, among other
concerns, the "restricted" drugs, LSD, DMT, MDA and psilocybin. Penalties
of imprisonment are provided for both possession and trafficking. The
Narcotic Control Act provides a generally more severe range of sentencing
options for possession, trafficking, importing, and cultivation of "narcotic"
substances, principally marijuana, cocaine, and heroin. Canada still en-
dorses the legislative principle of a minimum term of seven years imprison-
ment for the importation of any amount of any "narcotic."
What is most interesting about sentencing in Canadian drug cases in 1982
is that there is a wide gulf between legislative theory and judicial practice.
Though the 1960 passage of the Narcotic Control Act provided for life
imprisonment for individuals convicted of either trafficking or importing, a
survey of sentencing statistics reveals that this option is rarely if ever used
today. Through both 1976 and 1977 407 Canadians were convicted of traffick-
ing in heroiru-" over 78 per cent of these individuals received between one
month and eight years imprisonment. By 1979 this figure had risen to 84 per
cent.2~ More significantly, however, the most recent sentencing statistics for
trafficking in heroin reveal that no Canadian was sentenced to 20 years in
prison or more. In 1979 only 4 of 202 heroin traffickers received sentences of
10 years imprisonment or greater.
The Canadian government has made only one significant amendment to
the Narcotic Control Act since 1960. In 1969 an amendment gave to federal
prosecutors the option of proceeding summarily against individuals charged
with possession of a "narcotic. "30 The harsh necessity of procedure by indict-
ment was eliminated, permitting federal prosecutors to treat possession as a
less serious "summary" offence. Be that as it may, the statistical picture con-
veyed by Canadian drug enforcement reveals a lack of legislative will. The
federal government has handed the business of prescribing "drug" penalties
to the judiciary. The judiciary has effectively reduced the onerous maximum
penalties perscribed in 1960 for both trafficking and importing. Canadian
drug enforcement policy in 1982 is properly understood as falling under the
judicial arm of the Canadian government.

448 JOURNAL OF DRUG ISSUES

 A Human Process, if not Humane: The Lessons of Judicial Law
Making
While Canadian sentencing statistics reveal a judicial tempering of
legislative severity, the common law pronouncements of Canadian judges
offer no clear explanation of the process. The highest courts have persistently
decided that only in the most "exceptional and persuasive circumstances,"
are trafficking convictions to be met with non-custodial sentences. The major
Canadian legal treatise, Drug Offences in Canadc»; notes, "...the courts
have consistently ruled that deterrence and protection of the public are the
paramount considerations and that, in the absence of exceptional circum-
stances, a period of incarceration should generally be imposed.":l2 The most
recent statistics reveal that over 1,000 of 4,000 convictions for marihuana
trafficking were punished with non-custodial sanctions in 1979. The "excep-
tional circumstances" that the judiciary has spoken of are now beginning to
strain the credibility of our most persuasive case law. The judiciary has yet to
seriously elaborate the principles upon which non-custodial sentences for
trafficking are to be based.
Our courts have generally reserved their greatest displays of displeasure
for those who might extract vast amounts of capital from the business of
distributing "narcotics." In the 1971 case of The Queen v. Robert and
Shncher'", Justice Aylesworth of the Ontario Court of Appeal quoted with
approval the following principle, "What must be taken into consideration is
that the profits available from this kind of traffic are so substantial that the
courts will not be doing their duty if they fail to impose such sentences as will
make it clear to these young men and to others who might think of following
their example, that this kind of crime will not be allowed to pay."
Curiously enough, the statement fails to justify the imposition of a lengthy
term of incarceration. The court merely asserts that this kind of business
endeavour by the accused shall not be allowed to survive. What is not
analyzed is the appropriateness of the means used to achieve the desired end.
Canadian courts have no illusions about the distribution of illegal drugs.
As Justice Clement noted in The Queen v. Lecapoyw, "Trafficking comprises.
a chain of activities, stretching from the importer or manufacturer to the
ultimate purchaser. Each link is important and essential to the success and
profit of the operation... It is the magnitude of the individual's participa-
tion in the operation that may, with some justification, be taken into account
for the purposes of sentencing... ":15 The Court fails to explain the meaning
to be given to the word, "magnitude." Justice Clement argues that "...the
final sale (is) not less (important) than the intermediary steps, for it is then
that the drug reaches its destination and the ultimate profit made... ":16 It is
unclear as to whether a drug distributor is to be punished in relation to his or
her role in the hierarchy of distribution. While the variable of the profit
motive is clearly taken into consideration, Canadian courts also seem to want
a mechanism to express some form of equal condemnation for all those who
distribute illegal drugs. The issue remains somewhat unclear.
The Canadian courts have also tended to treat especially harshly any drug
distributors who might use force or the threat of force in the conduct of their

449
 business. Chief Justice Gale of the Ontario Court of Appeal noted in The
Queen u. Bosley and Duarte'? in 1970, "There is also the feature of the guns.
We are not sentencing these two men because of the possession of guns,
but we give some consideration to the fact that their scheme was carried out
with guns. This was not the prank of two collegiate boys just trying to sell
some marijuana to their friends. It was a deliberate and planned operation.":"
This statement purports to make two rather problematic points. Firstly, it
tends to dismiss middle-class distribution of marijuana as a "prank" of
"collegiate boys." The Chief Justice appears to believe that marijuana
distribution can be equated with the likes of college initiation "hi-jinks."
Secondly, and more importantly, the statement conjures the imagery of of-
fences that are not before the court. While the use of handguns as business
insurance and worse is clearly deplorable, the accused should face separate
charges relating to weaponry, if warranted. The Canadian Criminal Code
provides the possibility of lengthy imprisonment for both carrying a con-
cealed weapon and possession of certain prohibited weapons.
More recently, Justice Thomas Berger of British Columbia's Supreme
Court noted the possibility of violence in passing sentence upon those
involved in the distribution of cocaine. In The Queen u. Bengert et al.,:IY
Justice Berger conducted a thorough review of the literature relating to the
harmfulness of cocaine, and heard testimony from medical experts. Justice
Berger concluded that cocaine did not appear to present a significant social or
health problem to Canadians, and yet he imposed lengthy terms of imprison-
ment upon the accused. He appeared to be most concerned about the very real
possibility that the accused might have used violence in the regulation of
their business." Justice Berger was placed in a most unenviable position. The
social harm generated by the use of cocaine appeared minimal; the social
harm generated by the prohibition of the cocaine industry could not be
ignored.
Canadian case law has also embraced the theory that marijuana is to be
treated differently from heroin, although both are classified as "narcotics." In
The Queen u. Johnston and Tremayne," Chief Justice Gale of the Ontario
Court of Appeal noted, "The maximum sentence prescribed by the Narcotic
Control Act ... is life imprisonment. Thus, the framers of the Act regarded,
and presumably still do regard, both offences as very grave, although I must
confess at once that the Court takes a different view of the use or importation
of marijuana as compared with the more serious drugs embraced by the Act
such as heroin.l'v' Similarly Mr. Justice Aylesworth noted in The Queen v.
Shacher, Young and Smiths" that, "Having regard to the potentialities of
trafficking in the 'hard' drugs, one who engages in that exercise ought to be
and is now alerted to the probability that he will be treated in a different
manner than one trafficking in marijuana." Canadian courts have tended to
put this theory into practice. While 88 per cent of all heroin traffickers
received jail terms in 1979, only 70 percent of all marijuana traffickers were so
sentenced. More importantly, of those marijuana distributors incarcerated,
over 80 per cent went to jail for less than six months in 1979; only 26 per cent
of all incarcerated heroin distributors were greeted by such leniency. The
most frequent sentence for Canadian heroin traffickers falls between two and

450 JOURNAL 01<' DRUG ISSUES

 four years imprisonment; the most frequent sentence for Canadian marijuana
traffickers falls between one and six mcnths.v'
Bruce MacFarlane has noted of Canadian drug offences, "At the very
heart of (our sentencing) philosophy is the desire to protect that portion of the
population which is presently uncommitted to the use of illicit drugs.":"
Canadian courts have consistently ruled that the young are to be shielded
from harsh punishments and that those who distribute illegal drugs to the
young are to be punished severely. MacFarlane quotes approvingly from the
English Court of Appeal judgement in The Queen v. Macauley,46 "Holy Writ
has in dread terms declared what is the fitting fate of those who place a
stumbling block in the path of the young. And Parliament has rightly had
regard to the growing menace of drug addiction. Anybody supplying to a
mere child, a boy of fifteen, a hard drug is doing a most terrible deed which
calls for grave punishment."47 Unhappily the issue of informed consent has
not been touched upon here. Though the age of majority might simply be said
to represent the point at which a uninformed child becomes a fully informed
adult, our social reality reveals a rather blurry line. Though selling illegal
drugs to some young people can truly transform a drug distributor into a drug
pusher, the distinction here perhaps resides in the individual case; the
judiciary has not yet explored the dynamics that lead a young person to a
given illegal psychoactive substance.
The courts have, however, adopted a policy of treating youthful drug
offenders less harshly. Although none of those convicted and under the age of
20 went to jail for possession of heroin, 33 per cent of convicted heroin users
between the ages of 20 and 29 were jailed. While only 3.3 per cent of those
under 20 and convicted of marijuana possession were jailed in 1979, the figure
for those in the 20 to 29 age group was 4.9 per cent. More significantly, the
Canadian judiciary has absolutely or conditionally discharged almost 34 per
cent of convicted marijuana offenders under the age of 20; the most lenient
option of the discharge has only been used for 24 per cent of offenders in the
20 to 29 age category;" In the context of over 30,000 Canadian convictions for
possession of marijuana, this is an important distinction. The theory of
judicial pronouncements has significant correlation with judicial practice.
Perhaps the most interesting of all Canadian drug sentencing decisions is
that of the Ontario Court of Appeal in The Queen v. Richards/» The case
concerns the appropriate disposition for Keith Richards of The Rolling
Stones, convicted of possession of heroin in Toronto, in October of 1978. Not
surprisingly, counsel for Mr. Richards noted statistics of Canada's Bureau of
Dangerous Drugs. As the Court put it, "Mr. Maloney argued with great force
that the non-custodial sentence imposed upon the respondent was in line with
the sentences imposed upon approximately half of the persons convicted of
simple possession of heroin during the last five years."50 The prosecutor had
to establish that this "celebrity" case called for a term of imprisonment. He
argued that Keith Richards' public stature, his encouragement of the use of
drugs through his music, and a prior drug conviction made deterrence here
"the paramount and overriding factor.">'
In systematic fashion the Court dismissed these arguments. Of Mr.
Richards' public stature, the Court said, "The principle is well established

Fall 1981 451

 that (our) appellate Court should not lightly interfere with the sentence
imposed by the trial Judge and should not do so merely because some or even
all members might have imposed a different one.";'2 The Court went on to note
that Mr. Richards was not allowed to escape the sanction of Canadian
criminal law, " ... a person released on suspended sentence and probation
does not go scot-free. In this case, the respondent was required to continue his
treatment for addiction and perform the community service directed in the
probation order.">" Keith Richards' sentence essentially involved a require-
ment that he continue treatment for heroin "addicrion'<- in New York and
that he perform two benefit concerts for the Canadian National Institute for
the Blind.
Of the claim that the Rolling Stones music encouraged the use of drugs,
the Appeal Court noted, "The trial judge deplored the fact, if it was a fact, that
the music of the Rolling Stones glorified and sanctioned the use of drugs, but
considered that the respondent's efforts to remove himself from the drug
subculture could only have a salutary effect on those who might be open to his
influence.";';' Of Mr. Richard's previous drug offence the Court said, "In
considering the weight to be given to the prior conviction it is right to observe
that the respondent both before and after the conviction endeavoured, albeit
unsuccessfully, through treatment to rid himself of his addiction.t'e"
What is most noteworthy here is that thousands of dollars were spent in
the litigation of the appropriate sentence for a simple charge of possession of
heroin. The accused's material circumstances were such that he was able to
make a significant community contribution in the repayment of his "debt" to
society. But the appropriateness of the criminal label is nowhere debated. The
judiciary is preoccupied with the business of defending its "non-punitive"
response. Some words from the minority Report of Canada's LeDain Com-
mission are particularly instructive here: "It seems ... illogical, ineffective
and inhumane to use the criminal law against opiate dependents ... on the
one hand we define heroin and other opiate addicts as vulnerable and
dependent individuals with a compulsive physiological or psychological drug
need (or perhaps both), and on the other, we react to their dependence with
police searches, apprehension, detention in police cells, criminal trials, fines
and incarceration.";'? While the words vulnerable and dependent do not
entirely fit the circumstances of Keith Richards, the comments here regarding
criminalization are nonetheless appropriate.

Marijuana: The Pith and Substance of Canada's War on Illegal Drugs

In 1979 Canada recorded approximately 35,000 convictions under both
The Narcotic Control Act and The Food and Drugs Act. Almost 28,000 of
these 35,000 convictions were for possession of marijuana; more significantly,
marijuana offenses of all types accounted for almost 32,000 of total drug
convictions· a whopping 90 per cent of Canada's war on illegal drugs. There
were only 97a convictions relating to LSD, 294 convictions relating to heroin,
and 433 convictions relating to cocaine.v
Not surprisingly, the 28,000 individuals convicted of marijuana possession
represent only the tip of the iceberg with respect to its use. The government's
Department of National Health and Welfare has conservatively estimated
that at least four million Canadians had tried marijuana by January of 1979-

452 ,JOURNAL 01<' DRUG ISSUES

 approximately 20 per cent of the country's population.w While a lack of
consumer interest might best account for the small number of convictions
relating to heroin and L8D, the same cannot be said for marijuana.
The federal government has passed two legislative initiatives that have
served to soften penalties for marijuana use. We have noted that in 1969 the
right to proceed summarily was given to federal prosecutors. As Michael
Bryan has said, "This amendment had the immediate effect of reducing the
porportion of convictions for cannabis possession resulting in prison sen-
tences. In 1968, 44 per cent of possession convictions resulted in imprison-
ment, compared with 10 per cent in 1970."611
In 1972 the government responded to the recommendations of its own
LeDain Commission. The Commission proposed that the criminal offence of
possession of marijuana be abolished. Then Health Minister John Munro told
the Canadian Parliament, "The Criminal Law Amendments Act that came
into force on July 15 of this year makes it possible for judges, instead of
convicting an accused person, to direct that he be discharged absolutely or
under probation conditions. If a person receives this kind of discharge he is
not considered to have been convicted of the offence."6l The Liberal govern-
ment was attempting to satisfy diverse interest groups by moving towards a
muddled middle ground. The indignity of appearance in a criminal court
would be retained, but a certain number of "deserving" cannabis users would
now be spared some of the most onerous consequences of a criminal record.
The government set out no principles that would guide the appropriate
imposition of these new discharge provisions; this was apparently a task to be
left to the judiciary. In the nine years that the discharge provisions have been
in place, we have seen a Canadian judiciary that is increasingly anxious to
"discharge" offenders for possession of marijuana. While the discharge was
awarded in only 16 per cent of all possession cases in 1973, the 1979 statistics
reveal that almost 30 per cent of all possession convictions were punished by
this means.
As Michael Bryan so aptly put it, cannabis policy in Canada during the
1970's represents a "decade of indecision." In 1974 the federal government
introduced Bill 8·19, a legislative initiative that would have eliminated
incarceration as a sentencing option in marijuana possession cases.1\2 Though
this Bill would still have allowed a jail term in default of payment of a fine,
and though the Bill clearly retained the criminal offence of possession of
marijuana, it was not a compromise that the government was inclined to
push. The Bill simply died on the Order Paper of the Canadian Parliament in
1976.6:1
Perhaps the many criticisms of Bill 8·19 did not fall on deaf ears. As
Michael Bryan has noted, recent Canadian experience with prison admis-
sions in default of payment of a fine "... suggests that, in time, more people
would be imprisoned as a result of simple possession each year than is
currently the case."64 Further, "... the police were to have retained their
authority to fingerprint and photograph persons (including juveniles) charged
with simple possession under Bill 8-19. Like the discharge provisions enacted
in 1972, the "automatic pardon" provision of Bill 8·19 was a legal fiction that
would not have altered the fundamental criminal character of the offence or
of records of the offence."65

Fall 1981 4153

 At the present time the criminal nature of marijuana use remains intact.
While a majority of both the country's lawyers and doctors favor the
decriminalization of marijuana.s" the Canadian Association of Chiefs of
Police and the Royal Canadian Mounted Police stand opposed to any change
in the law. This conflict has apparently rendered impotent the legislative will
of the present Liberal government. Though some action was promised in 1982,
no Bill has been presented to the Canadian public in seven years. The words
of our Prime Minister have a hollow ring. In 1977 Pierre Trudeau told a
collection of aspiring young Liberals, "Certainly the spirit of government
policy is that if you have a joint and you're smoking it to your private
pleasure you shouldn't be hassled.?"? It is 198:3 and young Canadians
convicted of smoking marijuana sit in jails across the country. The spirit
of the Prime Minister's theory does not always accord with the reality of his
government's practice.

A Clamour for Change: The Skepticism of the Academic Community

While government policy respecting the social control of certain psycho-
active substances has been resistent to change, this resistance does not
appear to be shared by the Canadian academic community. The writings of
many academic commentators have touched upon both substantive law and
the case law. There have been repeated criticisms of both legislative and
judicial methods.
Perhaps the strongest attack against Canadian "drug" law was that
launched by British Columbia philosophy professor Donald Brown in a 1972
article in the University of British Columbia Law Reoieuiv" Brown notes,
"The belief that trafficking is peculiarly evil rests in part on something other
than the basic analysis I have been attempting of the nature of using and
supplying, and of the types of harm to be prevented. It rests rather on a
pragmatic determination to do whatever is necessary, after the decision has
been taken to apply a particular administrative and quasi-military solution to
the problem. The trafficker is evil because he is the enemy, and he is the
enemy because war has been declared.t'r" Brown urges that we have a faulty
diagnosis of the social problem of drug abuse. He concludes that "...doctors
should climb down from their purism and paternalism about the user's
welfare, and allow patients the choice of heroin maintenance over uncon-
trolled illegal use, ...The enforcement agencies should trust the medical
profession and get out of its way, so that the elements of the doctor-patient
relation could be re-established for addicts and for others with occasional
drug problems."?"
Brown's article appeared shortly after the LeDain Commission published
a number of sections from its Final Report on "non-medical" drug use in
Canada. In 1972 the appropriation question for discussion within legal
discourse concerned the wisdom of substance criminalization as a state
strategy.
Since that time academic attention has focused upon the specifics of
Canadian "drug" law procedure. Both the absolute and conditional discharge
provisions and the procedural anomalies that drug enforcement necessitates
have been subjected to critical analysis. It is not surprising that the discharge
provisions have been subjected to academic attack; they represent a highly

454 JOURNAL OF DRUG ISSU ..; S

 compromised enactment. Health Minister John Munro had told the Canadian
House of Commons, "If a person receives this kind of discharge he is not
considered to have been convicted of the offence."?' Munro was essentially
telling Canadians that the discharge would enable the government to label a
drug user as criminal for some purposes and non-criminal for other purposes.
A "discharged" individual need not admit of a criminal record for the
purposes of employment and mobility, yet the indignity of appearance in
criminal court was still required. Further, the Royal Canadian Mounted
Police could continue to retain a record of the given offence for future use.
Toronto lawyer Jeffrey Leon has been sharply critical of the lack of
legislative criteria set out to guide the judicial imposition of discharges. Leon
concludes, "...the desire for appropriate use of new sentencing alternatives
implies a further need to make relevant sentencing criteria explicit. So far the
Canadian Parliament appears to have left this task to the courts of appeal.
With respect, it may be that the sources of information and resources
necessary for this task are more accessible to Parliament than to the
courts."72 Leon stops short, however, of criticizing the sense of the discharge
itself. He appears to embrace the symbolism of leniency that this provision
represents. He notes, "it is likely that frequent use will be made of the
discharge provisions .. .It must be emphasized that such an effect does not
render the use of the criminal process for such offences futile. The effect of the
process itself on the drug offender, combined with the imposition of a
discharge, may equal the desired effects of the more drastic dispositions."?"
Frederick Bobiasz similarly attacks the use of the discharge provisions in
a 1974 article in the Ottawa Law Review. Bobiasz, like Leon, assumes the
validity of the change in sentencing law, but asks for some "...rather clear
cut guidelines as to the relevant considerations (in passing of such a
sentence)."H Bobiasz does note, however, that, "The most serious criticism is
that a discharge, even an absolute one, does not in fact free the offender from
a criminal record:'75 It is perhaps surprising that Bobiasz and Leon can
support the discharge as a sentencing option. A term of probation is typically
attached to a conditional discharge. This compromised "leniency" is a rather
convoluted state response to the phenomenon of widespread marijuana use by
Canada's young.
Canadian case law concerning illegal drugs has similarly been the sutject
of much academic criticism." Particularly interesting is Joseph Weiler's
critique of The Queen v. Kundeus in a 1976 volume of the Osgoode Hall Law
Journal. Richard Kundeus was convicted of trafficking in L.S.D., even though
he believed that the substance he was selling was, in fact, mescaline. As
Canada imposes more lenient penalties for distributing mescaline than for
distributing L.S.D., this honest mistake of fact represented a contentious
legal issue. There was no "mens rea", no evil intent to traffick in L.S.D., but
Our Supreme Court ultimately convicted Kundeus of this specific offence,
nonetheless. As Weiler rather angrily notes, "The Kundeus case is a signifi-
cant benchmark in the development of the criminal law in Canada since it
illustrates disturbing characteristics of our Supreme Court. ...the legal
craftmanship exhibited by the majority is totally inappropriate for our
highest tribunal. The obfuscation of the issues in Kundeus has created a
situation where lower courts need resort to a form of psychoanalysis in order·

Fall 1981 455

 to determine the real basis for the Supreme Court's decision. . . . Finally, the
... case is disturbing because it illustrates that the Supreme Court is not
acting in a collegial fashion .... The opinion of the majority and dissent
bear no relation to each other and if we didn't know better, would suggest that
the authors heard different appeals on different days."
Perhaps Weiler could have been even more sardonic here; the anomaly of
which he speaks is one that is perhaps produced by the criminalization of
certain proscribed substances, in itself. The offence of which Kundeus is
actually guilty - the distribution of a psychoactive substance· is not to be
found in either our Narcotic Control Act or our Food and Drugs Act. To
suggest that this distribution of mescaline was deserving of penalty is to
suggest that a pharmaceutical representative who inadvertently sells a
restricted or controlled substance could quite properly be imprisoned for his
actions. While this was probably not the desired thrust ofthe Court's decision
in Kundeus, it does seem a fair inference. The Court's desire to control certain
psychoactive substances has overriden its adherence to the conditions re-
quired for criminal conviction.
In 1982 the legislative and judicial dances continue. While our government
promises legislation to soften penalties for marijuana use, there has been no
substantial retreat from the hypocrisy that the criminalization of certain
psychoactive substances represents. The reality of four million marijuana
users is a social fact that the Canadian government has been slow to face.
Perhaps most lamentably though, our government has not been able to
implement alternative policies to the repressive modality of criminalization.
This reality does not set Canada apart from other nation states; it only
suggests that we have perhaps unwisely followed the bad examples of others.
As Andrew Weil has so perceptively noted, "...drugs are perfect examples of
the ambivalence of external things. They are potential keys to better ways of
using the mind; they are also potential traps that can keep us from using our
minds in better ways. . . . Like the fantasy that drugs can be made to go
away, the idea that people who want drugs can be discouraged from using
them is an impossible dream that gets us nowhere except in worse trouble
. . . . drugs are merely means to achieve states of nonordinary awareness
and must not be confused with the experiences themselves. They have the
capacity to trigger highs; they do not contain highs. Moreover, the experi-
ences they trigger are essentially no different from experiences triggered by
more natural means. . .. The real risk of using drugs as the primary method
of altering consciousness is in their tendency to reinforce an illusory view of
cause and effect that makes it ultimately harder to learn how to maintain
highs without dependence on the material world."?"

NOTES
1. Canada, Final Report of the Commission of Inquiry into the Non-Medical Use of
Drugs, Information Canada, Ottawa, 1973.
2. See most pertinently Bryan, M. "Cannabis in Canada· a decade of indecision", 8
Contemporary Drug Problems 169-192, 1979, and Erickson, P. G., Cannabis Criminals,
Addiction Research Foundation, Toronto, Canada, 1980.

456 JOURNAL OF DRUG ISSUES

 3. Green, M., "A History of Canadian Narcotics Control: The Formative Years", 1979
University of Toronto Faculty of Law Review. 42-79.
4. See Solomon, R. and Madison, T., "The Evolution of Non-Medical Opiate Use in
Canada· Part I: 1870-1929", 5 Drug Forum 237, 1976·77.
5. 7 - 8 Edward VII, Statues of Canada, c-50, 1908.
6. Boyd, N., "The Origins of Canadian Narcotics Legislation: The Process of Crimi.
nalization in Historical Context", unpublished manuscript, Department of Crimi-
nology, Simon Fraser University, 1981.
7. The history of the 1907 Anti-Asiatic riot is especially well documented in Ward, W.
P. White Canada Forever: British Columbia's Response to Orientals 1858·1914. un-
published Ph. D. dissertation, Queen's University, 1973, 194·217.
8. See the federal document, Report of the Royal Commission Appointed to Inquire
into the Methods By Which Oriental Labourers Have Been Induced to Canada, Ottawa,
Government Printing Bureau, 1908.
9. See King Diaries, October 12, 1907, King Papers. Public Archives of Canada, at
C.2108.
10. Minutes of the Settlement of Chinese Claims, King Papers, Public Archives of
Canada, c. 31592-31598.
11. Ibid, c. 31596.
12. Vancouver Province, June 3, 1908, Vancouver, British Columbia, Canada, p. 1.
13. King, W. L. M., "The Need for the Suppression of the Opium Traffic in Canada",
Ottawa, Canada, Sessional Papers, 1908, No. 366.
14. Canada, An Act to prohibit the improper use of Opium and other Drugs, 1 ·2 George
V, c.17, 1911.
15. Dominion of Canada, House of Commons Debates, 1910·1911, Ottawa, King's
Printer, at 2519.
16. See Green, note 3, above, for a good discussion of this phenomenon.
17. Solomon and Madison, note 4, above, at 258.
18. "An Act to amend the Opium and Narcotic Drug Act", Statutes of Canada. c. 42,
1921.
19. "An Act to amend the Opium and Narcotic Drug Act", Statutes of Canada, c. 36,
1922.
20. Canada, House of Commons Debates, 1923, at 2124.
21. Ibid, at 3018.
22. See Green, note 3, above, and Solomon and Madison, note 4, above.
23. Murphy, Emily, The Black Candle, Thomas Allen, Toronto, 1922.
24. Brecher, E. and the Editors of Consumer Reports, Licit and Illicit Drugs, Little,
Brown and Company, Boston, 1972, Szasz, T., Ceremonial Chemistry, Garden City,
New York, Anchor Press/Doubleday, 1974, and Weil, A. The Natural Mind, Boston,
Houghton·Mifflin, 1972.
25. Canada, House of Commons Debates, 1960. (See "narcotics")
26. Ibid, at 5610.
27. MacFarlane, Bruce A., Drug Offences in Canada, Toronto, Canada Law Book, 1979.
Part V, Sentencing Drug Offenders.
28. Ibid, at 568.
29. This figure can be arrived at by using Charts A·15 and A·16 in Drug Users and
Convictions Statistics, Bureau of Dangerous Drugs, Health Protection Branch, Depart-
ment of National Health and Welfare, Ottawa, 1979.
30. "An Act to amend the Narcotic Control Act", Statutes of Canada, 1968·69, c. 41,
8.12.
31. Macl<'arlane's text, note 27, abolle, is used by most prosecutors and defence counsel
involved in "drug" litigation.
32. Ibid, p. 548.

Fall 1981 457

 33. The Queen v. Robert and Shacker (1971), 3 C.C.C. (Zd) 1949 (Ontario Court of
Appeal).
34. The Queen v. Lecapoy, (1974) 18 C.C.C. (2d) 496 (Alberta Supreme Court Appeals
Division).
35. Ibid, p. 499·500.
36. Ibid, p. 499-500.
37. The Queen v. Bosley and Duarte [1970), 1 C.C.C. (2d) 328 (Ontario Court of Appeal
38. Ibid, p.331.
39. The Queen v. Bengert et. al., 15 C.R.N.S. (3d) 97 (1979)
40. Justice Berger noted, "There is evidence that the organization was prepared to kill
those who crossed it or cheated it. They had their own system of private justice", at Ill,
note 36, above.
41. The Queen v. Johnston and Tremayne, (1970) 4 C.C.C. 64.
42. Ibid, p.66.
43. The Queen v. Shacher, Young and Smith, [1971) a C.C.C. (2d) at 150.
44. See Drug User and Conviction Statistics, note 29, above, Charts A-1.5, A-Ui, A-1.16,
A-1.l7.
45. MacFarlane, B. A., note 27, above, at 557.
46. The Queen v. Macauley (1967). 52 Criminal Appeal Reports 230.
47. Ibid, p.232.
48. See Drug User and Conviction Statistics, note 29, above, Chart A-1.15.
49. The Queen v. Richards, 49 C.C.C. (2d) 517.
50. Ibid, p.523.
51. Ibid, p.524.
52. Ibid, p.525.
53. Ibid, p.525.
54. The word "addiction" must be placed within quotations, in recognition of its
problematic status. See National Institute on Drug Abuse, Theories on DruR Abuse,
Rockville, Maryland, 1980.
55. The Queen u. Richards, note 49, above, at 525.
56. Ibid, p.525.
57. Canada, Final Report of the Commission of Inquiry into the Non-Medical Use of
Drugs, note I, above, at 244.
58. See Drug User and Conviction Statistics, note 29, above, Charts A-19.2, A-1.7.1, and
B-1.13.
59. Erickson, P.G., Cannabis Criminals, note 2, above, at 88.
60. Bryan, M., Contemporary Drug Problems, note 2, above, at 17'l..
61. Ibid, p. 181.
62. Bill S-19, An Act to Amend the Food and Drug Act, The Narcotic Control Art and
the Criminal Code, The Senate of Canada, First Session, Thirtieth Parliament, 1974.
63. Bryan, M., Contemporary Drug Problems, note 2, above, 176-180.
64. Ibid, p, 178.
65. Ibid, p. 180.
66. In 1969 the Canadian Medical Association argued that the marijuana laws result in
effects on the users that are far more deleterious than the use of the drug; the Canadian
Bar Association followed suit in 1978.
67. (~uoted in Bryan, M., Contemporary lJruR Problems, note 2, above, at Hll.
68. Brown, D. G., "Drugs and the Problem of Law Abuse", 7 University of British
Columbia Law Review, 1-16, 1972.
69. Ibid, p. 7-8.
70. Ibid, p. 15-16.
71. Quoted in Bryan, M., Contemporary J)rul! Problems, note 2, above, at 17:1.
72. Leon, J. "Drug offences and Discharges in Canada: The need for Reform", .~{j
University of Toronto Faculty of Law Review, at 68.

438 .JOURNAL OF DRUG ISSUES

73. Ibid, p. 68.
74. Bobiasz, F., "Absolute and Conditional Discharge", 6 University of Ottawa Law
Review, at 619, 1974.
75. Ibid, p. 618.
76. Weiler, J., "Regina v . Kundeus: The Saga of Two Ships Passing in the Night", 14
Osgoode Hall Law Journal, 457-480, 1976.
77. Ibid, P. 479-80.
78. Weil, A., The Natural Mind, note 24, above, at 192, 194, 196.

REFERENCES
Bobiasz, F.
1974 "Absolute and Conditional Discharge," 6 University of Ottawa [Jaw Review
608-619.
Boyd, N.
1981 "The Origins of Canadian Narcotics Legislation: The Process of Crimina Ii-
zation in Historical Context," in journal submission, Department of Crimi-
nology, Simon Fraser University, October.
Brecher, E. and the Editors of Consumer Reports
1972 Licit and Illicit Drugs, Little, Brown, and Company, Boston.
Brown, D.G.
1972 "Drugs and the Problem of Law Abuse," 7 University of British Columbia
Laui Review 1-16.
Bryan, M.
1979 "Cannabis in Canada· a decade of indecision," 8 Contemporary Drug
Problems 169-192.
Canada
1979 Drug Users and Conviction Statistics, Bureau of Dangerous Drugs, Health
Protection Branch, Department of National Health and Welfare, Ottawa.
Canada
1973 Final Report of the Commission of Inquiry into the Non-Medical Use of
Drugs, Information Canada, Ottawa.
Erickson, P.G.
1980 Cannabis Criminals, Addiction Research Foundation, Toronto, Canada.
Green, M.
1979 "A History of Canadian Narcotics Control: The Formative Years," 37 Uni-
versity of Toronto Faculty of Law Review 42-79.
Leon, J.
1977 "Drug Offences and Discharges in Canada: The Need for Reform," 35 Uni-
versity of Toronto Faculty of Law Review 38-68.
MacFarlane, Bruce A.
1979 Drug Offences in Canada, Toronto, Canada Law Book, Part V, Sentencing
Drug Offenders.
Solomon, R. and T. Madison
1976· "The Evolution of Non-Medical Opiate Use in Canada - Part I: 1870 - 1929,"
1977 5 Drug Forum 237.
Szasz, T.
1974 Ceremonial Chemistry, Garden City, New York, Anchor Press/Doubleday.
Weil, A.
1972 The Natural Mind, Boston, Houghton-Mifflin.
Weiler, J.
1976 "Regina v, Kundeus: The Saga of Two Ships Passing in the Night," 14
Osgoode Hall Law Journal 457·480.

Fall 1981 459