An essay by Elizabeth Woods
 

Criminal sanctions against recreational drug use (and against all attendant activities such as growing, trading or selling recreational drugs) are unconstitutional because they infringe on our right to privacy, and our right to due process, that is, the right to be free of arbitrary, harmful, or unnecessary laws. The government may not designate an act a crime simply because it disapproves of that act; the Charter of Rights and Freedoms requires it to 'demonstrably justify' the limitations these sanctions impose on our rights, and I argue that it must do so by proving that these laws are both necessary and effective. That is, these laws must meet the following tests: The problem must be severe enough to warrant government attention, and the laws enacted to deal with it must be appropriate, and effective, and not cause more harm, either to society or the offender, than that caused by the problem itself.
Severity of the problem

The government must demonstrate that recreational drug use (or abuse), of and by itself, causes problems for people other than the drug user sufficiently severe to warrant some kind of government action. And it must specify what these problems are.

The government cannot use the harmfulness of these drugs as an excuse for protecting drug users against themselves, for any argument regarding the danger of using drugs must also be applied to all other recreational activities which are dangerous to the person engaging in them--skiing, driving racing cars, bull-riding, etc.--otherwise these laws are simply an arbitrary exercise of government disapproval. Nor can the government use the crimes that addicts commit to support their habits as evidence of the harm of drug abuse to others, unless it can prove that those crimes are the result of addiction per se, and not of the high prices generated by criminal sanctions.

Appropriateness

Even if drug abuse is a sufficiently serious problem to warrant some kind of government response, the government must demonstrate that criminal sanctions are an appropriate response--that is, that real criminal behaviour is involved. A real crime is one or more people inflicting specific, direct harm on one or more other people--that is, murder, rape, theft, etc.. Phony crimes, created solely by statute, outlaw behaviour the government (and some of the public) disapproves of--such as soliciting for prostitution and drug use (and formerly, homosexuality)--on the unsubstantiated assumption that prohibition is the correct, and only, way to deal with the perceived problem.

Using drugs hurts no other person directly. Negative effects (second hand smoke, loss of income) may be suffered by those close to drug abusers, but these effects lack the intentional violation characteristic of real crimes; they are negative by-products of an act, rather than deliberate transgressions in themselves. (Nor has it been shown that prosecuting drug users improves the quality of life of their families.) Furthermore, if a drug user commits a real crime (e.g. assault, impaired driving), there are already sections of the Criminal Code to deal with them.

Effectiveness

Even if they were appropriate, criminal sanctions must also be proven to be an effective response, that is, they must solve the problem they are meant to solve.

Do criminal sanctions prevent drug use? No. Do they ameliorate the medical or social problems attributed to drug addiction? No. Do they act as a deterrent to drug dealing? No. Are they enforceable? No. Despite thousands of convictions for drug offenses per year, many Canadians use illegal drugs as often as they wish, or can afford to. Police admit they intercept only 10% of the traffic, despite their best efforts. In fact, criminal sanctions have supported a lucrative black market for over 60 years, for the severer the penalties, the higher the price, and the more people are drawn into the trade.

Even if criminal sanctions are shown to be appropriate and effective, their severity requires that, before resorting to them, the government prove they are the only appropriate and effective response, by showing that all less drastic approaches have been tried, and haven't worked. Alternatives such as education and treatment must be adequately funded, given sufficient time to establish themselves, and be carried on under conditions of non-criminalized drug use, in order to adequately determine their efficacy. (To date, the most successful anti-drug use efforts have been against tobacco and alcohol, which are legal.)

Harm caused society

The government must demonstrate that its laws do not inflict greater harm on society than the harm they purport to prevent; that is, they must prove that the peaceful use of drugs is more harmful than the harms resulting from criminal sanctions, such as:
 

The increased danger of falling victim to a mugging or robbery because criminalization artificially inflates the price of drugs, increasing the incentive to steal. Severe penalties, rather than deterring drug dealing, encourage the carrying and use of weapons, particularly guns;

The threat to everyone's privacy from increased police prying. There being no victims, drug use is difficult to detect, leading police to use such questionable tactics as wire-tapping, undercover agents, and entrapment to obtain evidence. Since the police can, and do, make mistakes, no one is safe from intrusion;

The millions of dollars wasted to find, convict, and imprison drug offenders; money which could be more usefully spent on education, treatment, and increased neighbourhood policing by foot and bicycle patrols. Further millions are lost due to the lack of taxation on the profits of drug dealers;

The infringement of our right to practice the religious ceremonies of our choice. Constitutional challenges to the drug laws based on religion have failed on the grounds that freedom of religion does not include practices which contravene the Criminal Code--a reasonable limitation re human sacrifice, perhaps, but entirely unreasonable re the peaceful ceremonial ingestion of drugs. The latter prohibition is equivalent to telling Christians they can believe in Holy Communion, but they can't drink the wine or eat the wafer;

The increased the threat to public health (and the public purse) from AIDS and other ills because, fearing the legal consequences, people are deterred from seeking treatment for drug addiction, and continue to engage in unsafe practices;

The denial to patients of the benefits of heroin (pain relief), and marijuana (asthma, nausea), and the prevention of the use of more benign forms of recreational drugs--coca leaf tea instead of crack cocaine, for example; and finally,

The increased likelihood that children will be tempted into using drugs. Illegality itself provides an incentive to experiment, while inflated prices encourage dealers to get young people using as early as possible. At present, it's probably easier for a child to buy a joint than a beer, but when huge profits can no longer be made, many dealers will leave the business, while those continuing to sell recreational drugs can be regulated as purveyors of beer and tobacco are.

Harm caused drug abusers
Laws must not inflict greater harm on transgressors than transgressors actually inflict on others; that is the real meaning of 'an eye for an eye, a tooth for a tooth'. The present penalties for drug use are the equivalent of taking an eye for a fingernail, for they cause real harm to real people while drug use does not (with the possible exception of the user). Nor can the government justify protecting people from the ravages of dope by subjecting them to the ravages of prison.

The proper role of the government

Where do we draw the line? For criminal sanctions, the line should be drawn between those acts which intentionally (or by willful negligence) cause direct harm to others, and those acts which do not. The peaceful use of, and trade in, recreational drugs should not be a crime (or even a misdemeanour); impaired driving (whether because of drugs, alcohol, or fatigue) should be a crime.

The mistaken assumption underlying our present anti-drug laws is that the only way to control an (allegedly) undesirable activity is to make it illegal. This actually removes the activity from control by driving it underground. Citizens wish to do vicey things and the law cannot stop them. The government must accept that its proper role is not to act as our protector, or our parent, but to provide the legal framework within which adults can enjoy the vices of their choice in a peaceful and orderly fashion. The government should concern itself with ensuring that drugs are pure, accurately measured, and correctly labelled (including the appropriate warnings, if any); that games of chance are honest, that prostitutes are of age, and free of disease, that brothels are small and quiet, and that all who profit from vice pay their fair share of taxes.

Elizabeth Woods