The criminalization approach to drug use, emphasizing punishment and incarceration over treatment and rehabilitation, has affected entire lifetimes – often infringing upon universal and constitutional rights.
“The global war on drugs has failed, with devastating
consequences for individuals and societies around the world.”
—Kofi Annan, former U.N. Secretary-General
THE RIGHT TO HEALTH: PART 1
The Constitution of the World Health Organization (WHO) defines the right to health as “the enjoyment of the highest attainable standard of health.”
And a major component of an ethical healthcare is the recognition of the patient’s right to give or refuse consent to treatment.
Addictions are a “diverse set of common, complex diseases” influenced by environment, neurology and genetics. Yet unlike with most patients, drug users are often given mandatory sentences as a form of compulsory treatment – violating this fundamental standard of health.
“Drug dependence treatment should not be forced on patients.”
— Antonio Maria Costa
Executive Director, U.N. Office on Drugs and Crime
THE RIGHT TO HEALTH: PART 2
As with all common physiological and social afflictions, the public should have access to services that minimize associated risks.
Arguments in favour of harm-reduction as a necessary social service:
• “overwhelmingly strong” evidence highlighting the benefits of needle exchange programs, which diminish rates of “HIV transmission effectively, safely and cost effectively” without increasing rates of overall drug use by the populace
• a 2011 Supreme Court ruling which found that the Vancouver supervised injection facility Insite was proved “to save lives with no discernible negative impact on the public safety and health objectives of Canada”
• fear of arrest and stigmatization cited as “the most substantial barrier” to seeking treatment and to calling for help during an overdose.
“Without protective policies and decriminalization of the behaviour of key populations, barriers to essential health services will remain”
— World Health Organization
Casualties of the War on Drugs: Victims of Overdose
Contrary to common misconceptions, deaths by opioid overdose are not exclusive to recreational users.
Victims include patients who:
• developed an addiction to prescribed opiate pain relievers (Percocet, Vicodin, Norco, Avinza, OxyContin)
• failed to understand the danger of mixing opiates with other substances including alcohol and Valium
• gradually turned to heroin once prescriptions ceased.
Drug overdose was reported to be the “third leading cause of accidental death in Ontario” – responsible for deaths that could be prevented with the following measures:
• better prescribing practices
• training and increased availability of naloxone (an emergency medication that reverses the effects of opioids)
• improved efforts to encourage people to call 911 during an overdose event
• regulation of the variable purity of recreational drugs.
FREEDOM OF EXPRESSION
In 1988, section 462.2 was introduced and passed into the Canadian Criminal Code, prohibiting not only paraphernalia but also “literature for illicit drug use” – and thereby infringing upon free speech and censoring political dissent.
462.2 “Everyone who … promotes or sells instruments
or literature for illicit drug use is guilty of an offense”
Only seven years later did the Ontario Court of Justice overturn the law’s prohibition on literature, ruling that it infringed upon the fundamental freedom of expression.
Nonetheless, Section 462.2’s ban against literature is to this day on the books throughout the other provinces and territories.
THE RIGHT TO BE FREE FROM
UNREASONABLE SEARCH & SEIZURE
Section 8 of the Charter of Rights and Freedoms protects the citizen from unreasonable invasions by the state into their property and privacy.
Search and seizure based on drug use – a personal behaviour with no victims or impact except on the health of users themselves – is an encroachment of this basic right.
In 1992, the Canadian office of the National Organization for the Reform of Marijuana Laws (NORML) was raided by means of a drug search warrant issued under the aforementioned Section 462.2. The police intruded not only into the office – which doubled as the home of director Umberto Iofida – but also into the privacy of the organization’s members and contributors as they seized the membership list.
As recently as February 2015, Neufchatel high school in Quebec city forced a 15-year old student suspected of selling drugs to undergo a strip search. That such a police practice was enforced in a civil, school environment caused widespread outrage and legal concerns, with a Toronto lawyer likening the incident to a form of assault.
FREEDOM FROM CRUEL AND UNUSUAL PUNISHMENTS
The Narcotics Control Act (the predecessor to the Controlled Drugs and Substances Act) required a minimum of seven years’ imprisonment for the conviction of importing drugs, regardless of amount. This sentencing provision was challenged in the 1987 case R v Smith and was found to be a violation of Section 12 of the Charter, which
protects individuals from cruel and unusual punishments – including prison sentences disproportionate to the crime.
However, in 2012 the Conservative government passed the Safe Streets and Communities Act: an omnibus bill imposing more severe punishments for sexual and drug-related offences, including mandatory minimum sentences.
In theory, mandatory minimum sentences are based on the concept of specific deterrence: to use the threat and experience of prison as a way to discourage known offenders from repeating their crime.
In reality, the sentencing practice:
• does not dissuade the repetition of crime, as indicated by high recidivism rates with 41% to 44% of federal offenders being reconvicted two years after their release
• limits the control and discretion by trial judges, reducing their ability to review and sentence on a case-by-case basis
• violates the Charter of Rights by imposing severe punishments on drug users and low-level dealers, as ruled in 2014 by B.C. Provincial Court Judge Joseph Galati
“Empirical evidence suggests that mandatory minimum sentences do not, in fact, deter crimes.”
— The Right Honourable Beverley McLachlin
Supreme Court Chief Justice
The Right to Life, Liberty and Security of the Person
Today, the Controlled Drugs and Substances Act lists the following maximum years of imprisonment for possession (or for the attempt to acquire in the case of Schedule IV, the possession of which is not an offence):
Schedule I (MDMA, heroin, methamphetamine): 7 years
Schedule II (Cannabis exceeding 3kg and cannabis resin exceeding 1g): 5 years
Schedule III (Mescaline, psilocybin mushrooms): 3 years
Schedule IV (Anabolic steroids): 1 year
Schedule VIII (Cannabis not exceeding 30g and cannabis resin not exceeding 1g): 6 months
Under Section 7 of the Charter, the individual is guaranteed “the right to life, liberty and security of the person” with the only exception “in accordance with the principles of fundamental justice”.
When citizens engage in behaviours that are potentially harmful (or even helpful) to their health and well-being, the issue is a matter of public health and not criminal justice. Moreover, criminalizing citizens for the victimless act of holding a substance in your hand is a clear violation of human rights.
Casualty of the War on Drugs: Andrew Cornish.
In the U.S., based on an anonymous tip and two plastic bags containing cannabis residue, the apartment of Andrew Cornish was raided by SWAT teams at 4:30 a.m. in May 2005. The police failed to announce their identity and purpose, using a battering ram to enter the residence instead. The disoriented and unaware Mr. Cornish confronted the police – from his eyes intruders into his home – with a sheathed knife, and was shot in the forehead.
The raid resulted in the seizure of a small amount of marijuana.
The Right not to be Arbitrarily Detained or Imprisoned
Section 9 of the Charter ensures the individual the right not to be arbitrarily detained or imprisoned. Arbitrary detainment and imprisonment is distinguished when there is “no express or implied criteria which govern its exercise.”
Based on empirical and unbiased research, there is an undeniable inconsistency in the criteria by which the state treats certain drugs and its users.
• Tobacco, described by the WHO as a global epidemic and “the single most preventable cause of death in the world today”, is responsible for more deaths than “tuberculosis, HIV/AIDS and malaria combined”.
• Alcohol was reported by the WHO to be responsible for 5.9% of all deaths worldwide and to be a causal factor in “more than 200 health conditions”.
A study conducted by the Independent Scientific Committee on Drugs found alcohol as the most detrimental drug and psilocybin mushrooms as the least detrimental in terms of total harm inflicted to both others and to users. While the use of other relatively less harmful drugs (such as the non-toxic substances of psilocybin mushrooms and cannabis) remains a criminal offence, alcohol and tobacco are not only legal but widely
accepted as social norms; exemplifying the arbitrary selection of illicit drugs.
Victim of the War on Drugs: Antonio Bascaró
Antonio Bascaró was convicted in 1980 for importing cannabis from Columbia to Florida. Although the leader and the wholesaler involved in the smuggling operation were released in 1994 and 1996 respectively, Mr. Bascaró remains in jail to this day – earning the title of “The Nation’s Longest Serving Marijuana Prisoner” in the U.S. For his non-violent, first criminal offence, he will have served 39 years in prison, with his release currently scheduled for June 2019.
THE PRICE OF THE ‘WAR ON DRUGS’
Justice Canada’s 2008 report on the Costs of Crime in Canada estimated that the nation spends $2 billion on enforcing the arbitrary criminalization of certain substances.
But the true costs of prohibition extend beyond inefficient public expenditure, and lies in the normalized and systemic violations of human rights – all in the name of the politically motivated and insensible ‘war on drugs’.