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Criminal Law and The War on Drugs:
By Peter Landry

"These records of wars, intrigues, factions, and revolutions, are so many collections of experiments, by which the politician or moral philosopher fixes the principles of his science, in the same manner as the physician or natural philosopher becomes acquainted with the nature of plants, minerals, and other external objects, by the experiments which he forms concerning them." (David Hume.)2
"Our long armed and hairy ancestors had no idea of redress beyond vengeance, or of justice beyond mere individual reprisal."3
To determine what constitutes criminal law, is, as one learned judge has opined, "a work of art, it is something that may be easier to recognize than define ..."4 I shall venture to say, that, when a person commits a crime that person commits a breach of faith with the community in which that person lives. In such an event the community, as a collective whole, in a self protective act, will assert itself against the criminal.5 Criminal law is a method of enabling men to live together in a community in spite of the possibility that their desires may conflict. Historically, punishment has been the manner by which the community attempts to deter crime;6 and, generally, the criminal offense has been, throughout history, gauged and matched to a suitable punishment. As to what individual acts the community has considered to be crimes and as to what punishment it has meted out, makes for an interesting historical study, which I do not now have the time to carry out.7

Of course, it is no longer the sovereign who defines crime, that is now the function of our democratically elected assemblies. However, such an assembly cannot make an act into a crime, as our Supreme Court here in Canada has stated, unless "we can properly look for some evil or injurious or undesirable effect upon the public against which the law is directed. That effect may be in relation to social, economic or political interests; and the legislature has had in mind to suppress the evil or to safeguard the interest threatened."8

And further, it cannot be "neither a static catalogue of offences nor order of sanctions. The evolving and transforming types and patterns of social and economic activities are constantly calling for new penal controls and limitations and that new modes of enforcement and punishment adapted to the changing conditions are not to be taken as being equally within the ambit of parliamentary power is, in my opinion, not seriously arguable."9

In the relatively recent case of RJR - Macdonald v. Canada (1995), the Supreme Court of Canada, it was determined that the exercise of the power to make an act a criminal one, a test is to be applied; one "of substance, not form."10 To be fully fledged criminal law, the act prohibited "must pose a significant, grave and serious risk of harm to public health, morality, safety or security ..."

And, so, how does this established judicial view apply to the business of keeping in check those substances which may prove to be harmful to the individuals who misuse them?

As to the nature of the various illegitimate drugs and their effect on human beings -- well, I shall have to leave that to the medical doctors; but, I just simply wonder, what is so wrong with drugs that we as a country should have to spend so much money on fighting (maybe this should read encouraging) the distribution and use of drugs? Oliver Wendell Holmes wondered, too! "That all spasmodic cerebral action is an evil is not perfectly clear. Men get fairly intoxicated with music, with poetry, with religious excitement, - oftenest with love. ... There are forms and stages of alcoholic exaltation which, in themselves, and without regard to their consequences, might be considered as positive improvements of the persons affected."

To borrow the words of Edmund Burke: "It looks to me to be narrow and pedantic, to apply the ordinary ideas of criminal justice to this great public contest."11 Endless drug wars will never make drug prohibition work, even if the drug fighters turn our country into a police state. Indeed, the dynamics of law enforcement and drug markets guarantee that drug prohibition will always backfire, tragically.12 Since law enforcement resources are limited, pursuing more drug offenders means fewer officers available to pursue non-drug offenders, such as muggers, arsonists, burglars, robbers and rapists. It is to be remembered in all of this that the acquisition and use of drugs are usually non-violent activities. In the United States, 76% of those imprisoned have no violent crime record. We can only presume that those serving time for selling drugs consitute a great part of these non-violent cases. In recent years there has been a flood of drug cases. This flood is contributing to the collapse of our criminal justice system; our court dockets and our prisons are crowded bringing forth conditions which are hardly conducive to the delivery of justice.

The principal trouble with anti-drug laws is the same trouble as can be found with all laws: as Jeremy Bentham said, years ago, "Every law is an infraction of liberty." And the liberty of her citizens -- as defined by John Stuart Mill as being "that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it" -- is the essential foundation upon which Canada is built; no hammers can be allowed to strike at this foundation unless for very good reason.

What, specifically, are the arguments for drug laws? First off, - we have to prevent people from harming themselves. So, putting them in jail is preventing them from harming themselves! Should we pass laws that might "help" troubled anorectics and bulimics in our society. Should we make the owners and managers of food supermarkets criminals. One simply has to question why we place the blame for destructive drug habits on the people who sell drugs. Well, how about: to prevent people from committing crime. Our existing approach has been to create crimes were there were none before, and to entrap people into a life of crime, a course they would likely not have taken if the taking of drugs was, in the first place, a legal activity.

Another argument: drug use hurts family and friends. I am sure in some situations this is perfectly true, so, is this a good reason to pass a criminal law against it? If so, then how about jail terms for those who practise other hurtful behavior towards friends and family?

The fourth argument: there are economic consequences to drug use. Well, like a lot of human activities, -- yes, drugs can impact on the economic abilities of those who become involved with them; an individual may just "drug out" all day long and not get down to doing any work. One must question the premise upon which such an argument is founded. Is it not repulsive to reduce the measure of human worth to a person's productive capacity. At any rate, there is much 'unproductive' behavior of people in our society, and drug use is likely one of them; but we should -- as I suspect we have with this drug law question -- take an "effect" and label it a "cause."

The conclusion to be reached -- and this assumes one has some familiarity with what is going on in our streets and courts today -- is that anti-drug laws not only do not help at getting at the real cause of what drives people to abuse themselves with poisonous substances; but that anti-drug laws exacerbate the problem. Never mind that our government is spending our scarce resources on an unwinnable war with drugs: -- anti-drug laws create crime and corruption; they prevent sensible medical use of certain of these drugs; and (and this could be the most serious problem of anti-drug laws) they promote state activity that infringes on our constitutional rights of liberty and privacy. In the final analysis, it must be understood, that no man-made law can do away with the existence of drugs, and that, notwithstanding what the law says, or does not say about the subject, -- with the existence of drugs comes the existence of drug abusers. Criminal law will not limit drug abuse; it will, as our experience will now show, increase it. The only way to deal with the evil of drug abuse is the same way we deal with any moral evil: acknowledge its existence, debate it, and discredit it. Or more precisely, -- education, not criminal law, is the answer.


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[1] Peter Landry is a lawyer and has been, for 20 years, in private practice in the City of Dartmouth. He invites correspondence on the topic and may be contacted at P.O. Box 1200, Dartmouth, Nova Scotia, B2Y 4B8.

[2] Hume continues and observes that men, as objects of scientific study, have no more changed in the last two or three thousand years, than has any other object worthy of scientific study; the sun whirls about under the same laws, and men's behavour is just as predictable no matter what period of recorded time one may choose. (Enquiry Concerning Human Understanding, 1748.)

[3] John Marshall Gest, "The Law and Lawyers of Honoré de Balzac," The Lawyers in Literature (Boston: The Boston Book Co., 1913) at p. 232.

[4] Cory J., Knox Contracting, [1990] 2 S.C.R. 338,347.

[5] The community takes its authority to act from the members of the community. This is a fundamental legal notion and is taken from John Locke (1632-1704).

[6] Blackstone defines "a crime, or misdemeanor, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it"; and John Austin (1790-1859): "An offence which is pursued at the discretion of the injured party or his representative is a civil injury. An offence which is pursued by the Sovereign or by the subordinates of the Sovereign is a Crime."

[7] Such a study would begin with Sir Edward Coke's work, Institutes of the laws of England (1628-44) and certainly include a review of Sir James Stephen's seminal work, History of the Criminal Law (1883).

[8] Rand J., The Margarine Reference, [1949] S.C.R. 1,49-50. From the 2020 decision of the Supreme Court of Canada, Reference re Genetic Non‑Discrimination Act, we read the following:
"[71] To that end, the Court in the Margarine Reference [SCC,1986] established the substantive criminal law purpose requirement. Rand J. famously stated that a criminal law prohibition must be 'enacted with a view to a public purpose which can support it as being in relation to criminal law' and identified '[p]ublic peace, order, security, health, morality' as the typical but not exclusive 'ends' served by the criminal law: p. 50. Rand J. also stated that criminal prohibitions are properly directed at 'some evil or injurious or undesirable effect upon the public', and represent Parliament’s attempt 'to suppress the evil or to safeguard the interest threatened' ...
[72] Rand J.’s statements in the Margarine Reference demonstrate that a law with a valid criminal law purpose has two features. First, it should be directed at some evil, injurious or undesirable effect on the public. Second, it should serve one or more of the 'public purpose[s]' or 'ends' Rand J. enumerated, or another similar purpose. Rand J.’s notion of public purpose refers to the public interests traditionally safeguarded by the criminal law, and other similar interests."

[9] Rand J., Goodyear Tire and Rubber at p. 311.

[10] Justice Major, para. 196.

[11] Speech on Conciliation with the Colonies, 1775.

[12] The American experience (and it cannot be much different here in Canada) will show how drug prohibition actually escalates violent crime. See, The Economic Anatomy of a Drug War by David W. Rasmussen and Bruce L. Benson.

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