F.2 WHETHER, IN PRINCIPLE, THE CRIMINAL LAW SHOULD BE USED IN THE FIELD OF NON-MEDICAL DRUG USE

Some people take the position that non-medical drug use is an entirely personal and private matter, not unlike many other things that one does with one's body in the satisfaction of various appetites and the pursuit of various pleasures, and if any harm is being done it is harm which one is doing to oneself alone. They argue that the law should be concerned only with the damage or injury which an individual directly causes to another as a result of drug use. The classic exposition of this point of view is to be found in John Stuart Mill's celebrated Essay on Liberty, in which he states his central proposition as follows:

The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil, in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to someone else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his body and mind, the individual is sovereign.

The fundamental value which°Mill emphasizes is freedom, and it is not freedom as an abstract principle or independent good, but as a utilitarian value with which he is concerned: the necessity of freedom to the development and well-being of the individual and society. There is no question that we, as a democratic society, regardless of our particular or individual political persuasion, are profoundly committed to the supreme importance of freedom. But opinions differ as to its proper or necessary limits, and the issue as to what should be the legislative policy towards non-medical drug use reflects the debate as sharply as any.

Before considering the response which has been made to Mill's thesis by philosophers and laymen, it should be observed that Mill himself admitted one very important qualification to his general principle that is of particular relevance for the subject of non-medical drug use. He took it to be obvious that the principle, that the state does not have the right to interfere with an individual in order to prevent him from causing harm to himself, does not apply to persons who do not have the requisite maturity for the exercise of truly free choice. As Mill put it:

It is, perhaps, hardly necessary to say that this doctrine is meant to apply only to human beings in the maturity of their faculties. We are not speaking of children, or of young persons below the age which the law may fix as that of manhood or womanhood. Those who are still in a state to require being taken care of by others, must be protected against their own actions as well as against external injury.

This is, of course, a qualification of major significance insofar as nonmedical drug use is concerned because young people are so heavily involved in it. Unfortunately, Mill does not indicate the kind of intervention which he would consider appropriate to protect the young from causing harm to themselves. We do not know what intervention he would consider possible and compatible, as a practical matter, with the freedom on which he would insist for adults. As to the limits of state intervention which he would regard as permissible, insofar as adults are concerned, Mill indicates the general tenor of his thinking in certain observations concerning government policy with respect to poisons and the consumption of alcoholic beverages. Always making exception for the protection of the young, his policy with respect to poisons is that where they have legitimate uses the government must limit its intervention, despite the risks of harm, to assuring that people are suitably warned of the dangers by proper labelling. His reasoning is that, assuming such poisons have useful purposes, people should not be deprived completely of access to them merely because they present serious dangers. He goes further and says that people should not be put to the inconvenience and expense of having to obtain a special permission, such as a doctor's prescription, to obtain them. This is, in fact, the general approach which is adopted by present legislative policy to a wide variety of substances with a potential for harm, at least in certain applications. It is felt that they cannot be removed entirely from the market because of their necessity or usefulness. Such is the case with drugs having a medical value, despite the dangers which they may present in certain applications, and such is the case with the wide variety of industrial and household products containing volatile substances, gases and solvents. Despite their potential for harm, especially to young people, as a result of their chemical properties, it is not practicable to consider their removal from the market because of their utility, and in many cases necessity, in legitimate uses. Occasionally, it may be necessary to remove a substance entirely from the market because of its general hazard to health even in its principal application. Such was the case with the cyclamates. With drugs having therapeutic value, the requirement of a prescription must for the reasons indicated by Mill—inconvenience and cost—be applied very judiciously.

With respect to the consumption of alcoholic beverages, Mill is of course against prohibition, and he sees the prohibition of sale as an attempt to prohibit use, as an infringement not only of the liberty of the seller but of the liberty of the user as well. Thus Mill would appear to be opposed to the "vice model" (which obtains in such matters as pornography and prostitution) whereby the law punishes the seller but not the user. At the same time Mill acknowledges that trade is a "social act" with which government has a right to concern itself. In other words, it affects others besides the trader. But on closer examination of what he has to say, it would appear that Mill is somewhat ambivalent or uncertain as to how far and upon what principles society is justified in interfering with the operations of the seller or purveyor of goods or services of which it disapproves. He concedes some force in the argument that access to the means of indulging in certain vices such as gambling and prostitution should be rendered as difficult as possible so as to reduce the opportunities for contact with them, but he does not feel that the same considerations apply to the sale of alcoholic beverages. The following passage reflects the general direction of his thinking, if not the whole of his analysis on this point:

There is considerable force in these arguments. I will not venture to decide whether they are sufficient to justify the moral anomaly of punishing the accessory, when the principal is (and must be) allowed to go free; of fining or imprisoning the procurer, but not the fornicator, the gambling-house keeper, but not the gambler. Still less ought the common operations of buying and selling to be interfered with on analogous grounds. Almost every article which is bought and sold may be used in excess, and the sellers have a pecuniary interest in encouraging that excess; but no argument can be founded on this, in favour, for instance, of the Maine Law; because the class of dealers in strong drinks, though interested in their abuse, are indispensably required for the sake of their legitimate use. The interest, however, of these dealers in promoting intemperance is a real evil, and justifies the State in imposing restrictions and requiring guarantees which, but for that justification would be infringements of legitimate liberty.

Mill recognized that such enterprises may be properly subjected to a variety of regulations and safeguards touching such matters as the reliability of the proprietors, hours of opening and closing, and the like, but he did not think that the regulations should have as their object, the attempt, by restricting the number of outlets, to render access to alcoholic beverages more difficult. Hence the reasoning seems to be that alcoholic beverages can be resorted to without abuse, and that it is not right to subject the majority who do not abuse them to inconvenience simply because of those who are liable to do so. Finally, Mill conceded that it was legitimate to allow a relatively heavy burden of taxes to fall upon alcoholic beverages since such taxes, which must be imposed by the state for revenue purposes, are bound to inhibit some forms of consumption. "It is hence the duty of the State," said Mill, "to consider, in the imposition of taxes, what commodities the consumers can best spare; and a fortiori, to select in preference those of which it deems the use, beyond a very moderate quantity, to be positively injurious. Taxation, therefore, of stimulants, up to the point which produces the largest amount of revenue (supposing that the State needs all the revenue which it yields) is not only admissible, but to be approved of."

It is not clear from all this how Mill would approach the modern phenomenon of non-medical drug use, and more particularly how he would propose to allow adults freedom while providing adequate protection for the young. It is a reasonable assumption that he would have assimilated all non-medical use to that of alcohol and would have favoured a system of legal availability with regulations designed to minimize the opportunities for exposure of the young to it. It is also probable, however, that Mill would have found the problem particularly perplexing because of the extent to which modern youth is actively engaged in non-medical drug use. He might also have found considerable difficulty in determining that degree of maturity or discernment which should distinguish those who require protection from those who do not. The point is that Mill's general principle of non-interference with conduct that does not cause harm to third persons or to society generally is clear enough as an abstract proposition; it is its application, with its important qualification that the state has the right to intervene to protect persons under the age of maturity from causing harm to themselves, that presents difficulty, particularly in the context of contemporary drug use. With certain drug use the issues, if Mill's principles were to be followed, would be not merely how to protect the young while allowing freedom for the mature, but how to ameliorate the present problem by a system which continued to attempt to deprive the young of access to the drug.

Mill's thesis has been challenged by other philosophers and laymen on several grounds. First, there is challenge of the assumption that might seem to be implicit in Mill's general position, that harm which one causes to oneself can never be a cause of harm to others or to society generally. Many—indeed, we would think the vast majority—would strongly dispute this suggestion, particularly with respect to non-medical drug use. They would stress the effect which harmful drug use frequently has on the members of the user's family in emotional disturbance, family relations and discharge of one's family responsibilities, as well as the effect it has on others in the community who must assume some responsibility for dealing with the consequences to the user and the members of his family—the demands upon the over-taxed resources of medical and social service facilities, sometimes causing neglect of other priorities, as well as the expense of establishing and maintaining necessary additional facilities. They would also stress the general effect of harmful drug use on the motivation and productive capacity required to maintain the institutions and life of the society. They would be concerned with the possible effects of widely diffused drug use on the present way of life.

Actually, Mill concedes that the harm which one causes to oneself by a certain kind of behaviour may in many cases cause inconvenience, special burdens, and even injury to other individuals and to society generally, but he contends that this is not a reason for prohibiting the conduct altogether. It is his contention that we should deal with these secondary effects, as they arise, on their own merits as being attributable not to the general kind of conduct (for example, non-medical drug use) as such, but to certain factors in the individual, such as excessive use, lack of responsibility, and the like. Thus, in Mill's view, the fact that driving while under the influence of a drug may result in injury to others would not be a reason for prohibiting the use of the drug altogether. The injury to others is not the direct result of drug use as such but of driving while under the influence of the drug, and the law should direct itself to prohibiting and punishing this particular conduct rather than drug use as a whole.

While Mill in the enunciation of his central principle recognizes the right of society to use the criminal law or moral coercion for its legitimate self-protection, there is an implication that even if it could be demonstrated that non-medical drug use will frequently result in impairment of a person's general potential for usefulness to society, he would not consider this a sufficient ground for the exercise of such self-protection. This is where the issue is joined today. A majority of those who support the existing law do so not merely because of the effect of drug use on the welfare of the individual but chiefly because of what they feel to be its effect on the welfare of society as a whole. Mill would appear to exclude this, as a matter of principle, as a valid consideration for application of the criminal law, although the difference may be essentially a matter of appreciation of what constitutes a sufficient injury or harm to society to warrant intervention. What is really involved is a weighing of values: as Mill puts it, "the inconvenience is one which society can afford to bear, for the sake of the greater good of human freedom." Others take the view, in the case of non-medical drug use, that what is involved is more than a matter of "inconvenience" but rather a threat to other values on which the present society depends, such as the capacity and willingness to discharge personal responsibilities in work and personal relations, and that such value as there may be in the personal freedom to pursue non-medical drug use must cede to these other values which are held to be essential to the society's survival.

The philosophic debate concerning the appropriateness of the criminal law in the field of non-medical drug use is associated with expressions such as "crime without victim" and "law and morals" which obscure the essential issue: how different people characterize the personal and social effects of nonmedical drug use in the light of their respective systems of value. This, rather than an abstract debate as to the appropriate limits of the criminal sanction, is what is really at stake. The quarrel is not so much with Mill's premises as with the practical conclusions which he drew from them in the light of a nineteenth century liberalism. Once he concedes, as he does, that society has a right to use the criminal law to protect itself, that a special protection is owing to those under the age of majority, and that people may be restrained from giving public offence to the sense of decency of others, then it seems that what essentially separates him from his critics are questions of application—the weighing of the competing values in the light of the particular facts, and consideration of the ways and means best calculated to promote the ends.

For example, the English judge, Lord Devlin, who is generally regarded as the exponent of a legal philosophy that is at extreme variance with that of Mill, because of his insistence on the right, and indeed the duty, of the state to enforce morality, is seen on closer examination simply to take a different view of what the self-protection of the state requires. Although he speaks in a general way about the moral values of the majority as being essential to the preservation of the society, where the criminal law is concerned his notion of morality is not divorced from consideration of the actual harm caused by particular conduct. It would not appear that in his view any departure from the prevailing moral code is to be considered a social harm warranting the application of the criminal law. Once again, it is a question of the subjective evaluation of the effects of certain conduct from the social point of view. His general approach is set out in the following passage from The Enforcement of Morals:

I think, therefore, that it is not possible to set theoretical limits to the power of the State to legislate against immorality. It is not possible to settle in advance exceptions to the general rule or to define inflexibly areas of morality into which the law is in no circumstances to be allowed to enter. Society is entitled by means of its laws to protect itself from dangers, whether from within or without. Here again I think that the political parallel is legitimate. The law of treason is directed against aiding the king's enemies and against sedition from within. The justification for this is that established government is necessary for the existence of society and therefore its safety against violent overthrow must be secured. But an established morality is as necessary as good government to the welfare of society. Societies disintegrate from within more frequently than they are broken up by external pressures. There is disintegration when no common morality is observed and history shows that loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government and other essential institutions. The suppression of vice is as much the law's business as the suppression of subversive activities; it is no more possible to define a sphere of private morality than it is to define one of private subversive activity. It is wrong to talk of private morality or of the law not being concerned with immorality as such or to try to set rigid bounds to the part which the law may play in the suppression of vice. There are no theoretical limits to the power of the State to legislate against treason and sedition, and likewise I think there can be no theoretical limits to legislation against immorality. You may argue that if a man's sins affect only himself it cannot be the concern of society. If he chooses to get drunk every night in the privacy of his own home, is any one except himself the worse for it? But suppose a quarter or a half of the population got drunk every night, what sort of society would it be? You cannot set a theoretical limit to the number of people who can get drunk before society is entitled to legislate against drunkenness.

Despite the general sweep of his statements in favour of the enforcement of morality, it seems clear that Lord Devlin is involved in the same process as Mill of weighing the values of personal freedom and privacy against other values which he deems to be essential to the preservation of a certain kind of society. If anything, what possibly distinguishes them is the relative importance or primacy which Mill, in the particular political context of his time, assigned to freedom as a social as well as individual value. But the essential perspective of Lord Devlin is not at such variance with that of Mill as some of his language suggests. For at one place, he says, "There must be toleration of the maximum individual freedom that is consistent with the integrity of society." And at another place he says, "But before a society can put a practice beyond the limits of tolerance there must be a deliberate judgment that the practice is injurious to society." Thus, whether one agrees or not with Lord Devlin's assumption that morality is essential to the preservation of society, it would not appear to be his thesis that, irrespective of the harm which appears to be caused by the conduct in question, it is proper to use the criminal law to enforce morality.

Nevertheless Lord Devlin's general position on law and morality was attacked by the English philosopher, H. L. A. Hart, on the ground that since his belief in the importance of morality to the preservation of society appeared to be an a priori rather than an empirical conclusion, and he seemed to equate society with its morality, the natural and inevitable tendency of his position would be to regard any departure from the prevailing morality as a threat to the preservation of the society. Hart himself is in essential agreement with Mill that the criminal law should not be used to enforce morality, but he differs from Mill in regarding it as a legitimate object of the law to attempt to prevent individuals (including those of the age of maturity) from doing harm to themselves. This he justifies as "paternalism" (as distinct from "legal moralism", which he ascribes to Lord Devlin) on the ground that Mill exaggerated the capacity of adults to make wise use of their freedom. Hart's notion of paternalism may also impliedly challenge another assumption of Mill—that somehow the young can be protected while conceding freedom to adults. If an attempt is to be made to deny access to certain drugs to the young, either on the paternalistic basis of protecting them from causing harm to themselves or on the basis that their use of drugs will have an adverse effect on society as a whole, then it must be asked whether the achievement of this purpose is rendered more or less difficult by permitting adults to have access to such drugs.

On this whole philosophic issue as to whether, in principle, the criminal law should be used in the field of non-medical drug use, we adhere to the general position which we expressed in the Interim Report as follows:

In our opinion, the state has a responsibility to restrict the availability of harmful substances—and in particular to prevent the exposure of the young to them—and that such restriction is a proper object of the criminal law. We can not agree with Mill's thesis that the extent of the state's responsibility and permissible interference is to attempt to assure that people are warned of the dangers.... Obviously the state must be selective. It cannot attempt to restrict the availability of any and all substances which may have a potential for harm. In many cases it must be satisfied with assuring adequate information. We simply say that, in principle, the state can not be denied the right to use the criminal law to restrict availability where, in its opinion, the potential for harm appears to call for such a policy. [Paragraph 442]
... Without entering into the distinction between law and morality, we also subscribe to the general proposition that society has a right to use the criminal law to protect itself from harm which truly threatens its existence as a politically, socially and economically viable order for sustaining a creative and democratic process of human development and self-realization. [Paragraph 443]

The criminal law should not be used for the enforcement of morality without regard to potential for harm. In this sense we subscribe to what Hart refers to as the "moderate thesis" of Lord Devlin. We do not subscribe to the "extreme thesis" that it is appropriate to use the criminal law to enforce morality, regardless of the potential for harm to the individual or society.

If we admit the right of society to use the criminal law to restrict the availability of harmful substances in order to protect individuals (particularly young people) and society from resultant harm, it does not necessarily follow that the criminal law should be applied against the user as well as the distributor of such substances. There is no principle of consistency that requires the criminal law to be used as fully as possible or not at all, in a field in which it may have some degree of appropriateness. We do not exclude in principle the application of the criminal law against the user since it is a measure which can have an effect upon the availability and the exposure of others to the opportunity for use, but the appropriateness or utility of such an application must be evaluated in the light of the relative costs and benefits. [Paragraph 444]

We did express a general reservation concerning the offence of simple possession as follows:

Our basic reservation at this time concerning the prohibition against simple possession for use is that its enforcement would appear to cost far too much, in individual and social terms, for any utility which it may be shown to have. We feel that the probability of this is such that there is justification at this time to reduce the impact of the offence of simple possession as much as possible, pending further study and consideration as to whether it should be retained at all. The present cost of its enforcement, and the individual and social harm caused by it, are in our opinion, one of the major problems involved in the non-medical use of drugs. [Paragraph 449]

In effect, it is not particularly helpful in this case to attempt to set theoretical limits to the application of the criminal law. The criminal law may properly be applied, as a matter of principle, to restrict the availability of harmful substances, to prevent a person from causing harm to himself or to others by the use of such substances, and to prevent the harm caused to society by such use. In every case the test must be a practical one: we must weigh the potential for harm, individual and social, of the conduct in question against the harm, individual and social, which is caused by the application of the criminal law, and ask ourselves whether, on balance, the intervention is justified. Put another way, the use of the criminal law in any particular case should be justified on an evaluation and weighing of its benefits and costs. Generally speaking, the adverse effects for the individual of the criminal law process are such that it must be justified in each case by rational and convincing reasons of necessity, in relation to other available means of achieving the desired purpose.

* There is discussion elsewhere in this report of other constitutional issues, such as the relationship between federal control of drug availability and provincial regulation of the practice of medicine (see Section IX Opiate Maintenance) and jurisdiction with respect to the regulation of advertising (see Section XIV The Mass Media).