Section V The Use of the Criminal Law Against Non-Medical Drug Use

The law is the chief instrument of social policy. It provides the framework for all the others. Whether we should use the law at all, and if so, to what degree, in attempting to reduce non-medical drug use is first of all a matter of principle, but it is also a pragmatic issue—whether we receive a return or benefit from the use of the law that justifies the cost. This turns on the relative effectiveness of the law in this field—the extent to which it is an effective deterrent of the behaviour involved in non-medical drug use—and also on the price which must be paid for the use of it in terms of various adverse effects on individuals and the society as a whole.

THE ISSUE OF PRINCIPLE
These issues were discussed in considerable detail in both our Interim Report and our Cannabis Report. For the convenience of the reader a portion of that discussion, dealing with the views of Mill, Hart and Devlin, is reproduced in Appendix F.2 Whether, in Principle, the Criminal Law Should Be Used in the Field of Non-Medical Drug Use. The manner in which the issue of principle is usually presented is whether we should attempt to coerce the individual by means of legal sanctions to abstain from behaviour which many claim really only concerns himself. It is said that the law should only be concerned with preventing people from causing harm to others and not with preventing people from causing harm to themselves by freely chosen behaviour. On this view, the law should not attempt to prevent non-medical drug use altogether, but should only be directed against the behavioural manifestations of such use which cause or threaten harm to others.

Others take the view that the state has a right and a duty to use the law to try to prevent people from causing certain kinds of harm to themselves, but in any event they dispute the assumption that non-medical drug use which causes harm to the user does not generally also cause harm to other persons and the society generally. They argue that the drug use which causes harm to the individual often causes harm to others, including the members of his family and those who depend on him for work or other social contribution. Harmful drug use may cause acute mental suffering to the members of the user's family who may fear for his health, and in some cases, his life. It may have a very deleterious effect on marital relations and relations between parent and child. It may result in inefficiency and absenteeism in work. Finally, there is the additional cost to the society of treatment and welfare for the care and support of the person who engages in excessive drug use and those who are dependent on him. All of this is harm to third persons and the society generally, quite apart from any physical injury or property damage which the user may cause directly to others by such drug-induced or drug-related behaviour as impaired driving or violence of various kinds.

There is also a more subtle effect or harm of excessive non-medical drug use which many people fear, and that is a kind of general demoralization or lowering of the tone and determination required for a healthy society. There is a fear that an increasingly widespread resort to drugs to escape from the challenges of living will by its example encourage a general spirit of escape and passivity that will undermine the moral fibre and vigour of the society. People fear the development of a style of life in which an increasing number of individuals turn from an attempt to grapple in an active and constructive manner with society's problems to seek solace and oblivion in drugs. This anxiety is reflected in the concern with what is called the "amotivational syndrome"—the passivity and lack of goals which certain observers say they have seen in chronic users of hallucinogens and other drugs. People who are particularly concerned about this possible effect of excessive drug use on the general tone of the society often refer to what they feel is the relative lack of initiative, vigour and enterprise in other countries where drug use is understood to be extensive and thought to be in some measure responsible for such characteristics in the population.

Those who are opposed to the use of the law in connection with non-medical drug use dispute the right of the society to expect or demand a certain level of social contribution from the individual, or at least dispute the right of the society to attempt to compel that contribution by legal coercion. They do not deny that excessive drug use may cause considerable inconvenience and hardship to others who must depend on the user in various ways, but they deny that this justifies the application of legal sanctions to the user if the harm he causes or threatens to cause is not physical injury to the person or property of others. The reasoning would be that none of us is perfect and we all fall short in one degree or another of discharging our various responsibilities to others, and we all disappoint the hopes of others to some extent through freely chosen behaviour that reflects our personal weaknesses or defects. People should not be punished for failing to measure up to what other people expect of them in personal relations or work, even if such failure is attributable to weakness of character or self-inflicted injury of some kind. In effect, we would not consider punishing people for neglecting their health in various ways. In Section II Some Preliminary Observations, we referred to some of these forms of ill health which may be considered to be more or less self-inflicted as a result of such behaviour as excessive work, or overeating, and concluded that if they are distinguished from self-indulgence in drugs it must be partly on the basis of a moral judgment. They do not appear to present the same threat to established values. They do not carry the same connotation of escape from challenge or responsibility, although in fact they may be every bit as much a form of escape and may indeed be attributable to psychological factors similar to those which underlie excessive drug use.

Obviously, there are more than moral values involved. There is concern about the specific physical and mental harm which certain kinds of drug use may cause to the individual, quite apart from consequences to society. There is particular concern about the possible effect of certain kinds of drug use on the mind. The most serious risk of immediate harm is that of toxicity, which sometimes results in severe physical or mental damage and even in some cases, death. This is the danger presented by poison. Any drug can be poisonous if the dose is sufficiently high. Thus drug use raises in the first instance the question of how we should deal, as a matter of public policy, with poison.

Poison constitutes a danger or trap, particularly where children are concerned, that we would like to be able to remove altogether if possible. There are two possible legislative policies in relation to poisonous substances: one is to attempt to prevent exposure to them altogether; the other is to provide people with sufficient warning of their dangers. (A third possible policy in some cases is to provide certain safeguards in the custody of poisons.) The first policy is not available where the substance which is a poison is required for some other purpose. Thus a great variety of substances that are required for industrial, domestic or personal use cannot be prohibited, although they are poisonous if ingested or inhaled. All that the law can do in such cases is to insist that these substances be accompanied by suitable warning of their dangers. This is the situation with respect to certain of the volatile solvents and gases. Although they can be used for purposes of intoxication and are poisonous, they cannot be prohibited because they are necessary or useful in a variety of industrial, domestic or personal applications (and some have important medical uses as well).

Prohibiting the production and distribution of a dangerous substance for which there is no necessary or beneficial use does not appear to give rise to any great philosophic issue. It is somewhat paternalistic and shows a lack of confidence in the good sense and capacity of the individual to avoid harm, but this is not particularly offensive. After all, it is unrealistic to rely, where we are not obliged to do so, on a complete and sufficient dissemination of the information about a dangerous substance which people must have if they are to avoid harm, particularly where children are concerned. But acceptance of the necessity of a complete prohibition of production and distribution turns on the assumption that the substance does not in fact have any beneficial use which justifies or necessitates exposure of people to the risk of harm. The decision as to whether to prohibit all production and distribution turns on a weighing of the beneficial uses or effects, if any, and the potential for harm.

Official drug control policy, as reflected in international agreements and domestic legislation, does not recognize any beneficial uses or effects, for purposes of such evaluation, other than accepted medical or scientific ones. It does not recognize beneficial uses or effects of a non-medical or nonscientific nature, even when these effects may be essentially indistinguishable from those produced by certain drugs when taken under medical advice. This is a serious bone of contention between drug users and official policy. Many drug users claim that there are beneficial effects to be enjoyed from certain forms of non-medical drug use. They claim that the contribution which certain forms of drug use make to the general sense of well-being and to personal equilibrium by reducing tension, increasing self-knowledge, releasing self-expression and facilitating social relations is a beneficial effect which should be weighed against the potential for harm of such use. Official policy does not agree. Where drugs have been made legally available for nonmedical use, as in the case of tobacco and alcohol, it is not because of their alleged benefits but rather because a policy of prohibition is not considered to be feasible. They are made legally available, despite their potential for harm, because so many people want them that it is neither politically possible nor otherwise practicable to attempt to suppress them.

It is not difficult to understand why in the case of non-medical drug use, official policy chooses not to weigh alleged benefits in the scales against potential for harm. The alleged benefits are highly controversial, and there is no clearly established framework or consensus of values to which official policy can refer for purposes of determining what is benefit and what is not. There are conflicting value judgments as to whether the pursuit of particular forms of pleasure is a good thing or not.

A principal reason, however, for the refusal to recognize the alleged benefits of certain kinds of drug use is the difficulty of enjoying the benefits on a regular basis without running the risk of dependence or other serious form of harm. This possibility is so closely related to enjoyment of the benefit that it is difficult to give the benefit an independent value apart from it. Others argue that so long as it is possible to enjoy the benefit by occasional or even regular, moderate use without becoming dependent or suffering other serious harm, the benefit is entitled to have its full value acknowledged. This point of view assumes that it is in fact possible for the majority to make a relatively harmless use of a particular drug. This depends on whether the drug lends itself to a controlled, measured use so as to avoid harm, and whether the majority of people will have the necessary understanding, judgment, skill, self-restraint or other required qualities to make such a controlled, measured use.

The difficulty with a general prohibition against drug use of a certain kind is that it is not directed specifically to acts of use which are likely to cause harm. It is an attempt to prevent such acts by preventing all acts of use. Unfortunately, if the law wishes to intervene in this preventive manner, before harm has occurred or is immediately threatened, it has no choice from a practical point of view but to adopt this broad-gauge approach. It is not practicable for it to attempt to direct itself to use of a certain character since it is extremely difficult to define, detect and prove use of a certain degree of potential dangerousness. It would be obliged to make a certain course or pattern of use, such as chronic, dangerous drug use, a crime and seek to prove this by a variety of circumstances. This would be tantamount to making not specific acts but rather a general condition the basis for the imposition of criminal sanctions.

Whether the interference with the freedom of the majority will be justified will depend on the value which one places on the protection of the minority from the particular risk of harm. This will depend on the nature of the harm and how often it is likely to occur. On the other side of the equation is how important access to the substance is for the majority. To what extent are they likely to be seriously inconvenienced or deprived by its prohibition? Obviously, these judgments cannot be reduced to scientific proportions. They depend on approximate numbers or rough orders of magnitude but they also depend on the quality of the harm on one side and the quality of the deprivation on the other. Numbers, however, undoubtedly play a significant role, particularly where they are very heavily on one side or the other—that is, either on the side of those who desire the substance or on the side of those who are opposed to its use. Most often the issue will arise when a majority are opposed to its use. Then the issue of principle is whether the majority should interfere with the freedom of a significant minority to make a relatively harmless use of a substance (assuming such a use can be made of it) in order to protect a much smaller number from harm. We do not see how there can be any absolute objection in principle to such a policy. It must depend on the circumstances in each case. We recognize that it is not only desirable but necessary to impose a variety of restraints or limitations upon freedom in the interests of order, protection and welfare, and indeed, in the interests of maximizing the total, beneficial freedom of everyone. Non-medical drug use is not a category of behaviour which has a claim to some special immunity, not even to some special relative immunity, as in the case of freedom of speech. Thus, we conclude that the state has a right in principle to prohibit the production and distribution of dangerous substances, and that whether it is justified in doing so in a particular case depends on the facts—and in particular, on a weighing of the deprivation it is causing against the harm it is preventing.

The use of the criminal law to prohibit the simple possession or use of drugs for non-medical purposes raises slightly different issues than the prohibition of production and distribution. It is not simply a question of whether one should attempt to interfere with the freedom of the individual to engage in the non-medical use of drugs, since this is done indirectly by the prohibition against production and distribution. There is the further issue of whether a person should be punished for non-medical drug use. Although drug legislation usually prohibits simple possession rather than use as such, it is really use against which it is directed.

The personal use of drugs involves less apparent or obvious harm to others than their distribution. With distribution one is engaging in an act which is clearly going to have direct consequences for other people. The distribution may not be the direct, immediate cause of the resulting harm—there must be an intervening act of volition by the user, which can be considered the more immediate cause—but the distribution facilitates the harm or offers the occasion without which it could not occur. It is, therefore, considered to be an act which necessarily involves a greater degree of responsibility towards another person than the act of personal use. At the same time, as we have seen, a convincing argument can be made for the view that there is no harm which one causes to oneself that does not indirectly cause some harm or loss to others. Moreover, there is the view that by one's own use one supports an illicit market and contributes to a general community and climate of use that assures that others will be attracted or stimulated into use. This view looks at drug use as a whole as involving several kinds of behaviour—production, distribution, possession, use, proselytization, and so on—and as constituting a culture or pattern of life which, as a whole, exercises an unwholesome attraction. All who participate in this pattern and make some reinforcing contribution to it share some responsibility for it. The user who creates demand is also responsible with the seller for the existence of the illicit market. The seller could not exist without the user. On this view, if one wants to undermine the market one must discourage demand. This was the approach taken by the British Columbia Court of Appeal in the 1960s to justify severe sentences in cases of simple possession. "If use of this drug is not stopped," the Court said, "it is going to be followed by an organized marketing system."'

A prohibition against simple possession is also said to be related to law enforcement against trafficking from a slightly different point of view. The object of the law against trafficking is to reduce availability or supply as much as possible. Accordingly, it is argued, availability must be attacked as a whole; the law must be concerned with possession of any kind, regardless of quantity, although it may be more severe with possession that raises a presumption of intent to traffic than with possession for personal use. Further, it is argued that it is not always easy to detect traffickers in possession of a quantity that raises a clear presumption of intent to traffic, and that it is of some utility to be able to hold them for simple possession. Assuming that an offence of simple possession makes some contribution to the effectiveness of law enforcement against trafficking, this benefit must be weighed against the harm which the criminal law prohibition of simple possession causes to the individuals affected.

The application of the criminal law against simple possession or use by one who is dependent on a drug raises a particular issue of principle. Since the user is compelled by his dependence to obtain and use the drug, it is akin to making dependence itself a crime. Where, as in the past, there has been little by way of viable options for the drug-dependent person because of the difficulty of effecting cure, such an application of the criminal law raised a serious moral issue. Where there is an option such as methadone maintenance the issue does not present itself in such an acute form. One may also take the view that the person who wills the acts which lead to drug dependence also wills the acts which are the inevitable consequence, including the further acts of simple possession which may be subject to criminal punishment.

THE EFFECTIVENESS OF THE CRIMINAL LAW
The effective application of the criminal law in the field of non-medical drug use is subject to many difficulties. To begin with, the behaviour against which it is directed is one in which a great many people wish to engage. Moreover, it is not one which encounters strong moral resistances or inhibitions in the individual, like murder, armed robbery, assault and other forms of behaviour which come under severe moral censure, apart from the criminal law. Further, and perhaps most important of all from the point of view of law enforcement efficacy, is the fact that there is very seldom anyone who has the necessary interest or inclination to complain of a violation of the law. While drug use may cause specific harm to the user and general harm to the society, it does not generally cause or threaten specific harm to others of a nature that would lead to complaint. Those who are generally most concerned—the members of the user's family--are not likely to invoke the criminal law process against the user. What this means in practice is that law enforcement officers receive comparatively little help from the ordinary type of complainant in their efforts to detect and prove offences. Finally, the prohibited behaviour is one which can be carried on in private and is easy to conceal. For these reasons the police are obliged to rely very heavily on special methods of law enforcement, including extraordinary powers of search and seizure, the use of force to effect entry and recover evidence, the use of undercover agents and informers, and the encouragement or instigation of offences. These methods were discussed in some detail in our Interim Report and our Cannabis Report. For the convenience of the reader a portion of the discussion in the Cannabis Report is reproduced in Appendix F.6 Special Methods of Enforcement. While we expressed concern about these special methods of law enforcement we concluded that they were apparently necessary because of the particular difficulties which the police face in the field of non-medical drug use, and that they must be considered as a special cost of law enforcement in this field.

Even with these special methods, the rate of success with law enforcement against both distribution and simple possession (or use) is relatively disappointing. The relative effectiveness of law enforcement against trafficking is discussed in the following section on The Control of Availability, and is the subject of detailed description and comment in Appendix B Legal and Illegal Sources and Distribution of Drugs. It is perhaps sufficient to observe here that police have acknowledged at the international level that under the most efficient conditions of enforcement they cannot hope to intercept more than between five and ten per cent of the illicit traffic in drugs.2

Law enforcement against simple possession (or use) gives rise to even greater problems than law enforcement against distribution. The police can make more cases against users than they can against distributors, but in terms of effectiveness they probably make less relative impact on the total extent of use than they do on the total amount of distribution. The reasons for this are fairly obvious. Simple possession or use can be much more a private or concealed activity than distribution. There are infinitely more users than traffickers so that to create a real or impressive risk of detection of use it would be necessary to assign very large numbers of police—much more than we have at present or could reasonably hope to provide—to the task of law enforcement against use. The best the law can hope to do is to create a sufficient risk of apprehension to act as an effective deterrent. Because, however, of the peculiar nature of drug crimes to which we have referred above—the fact that they usually take place between consenting parties, that there is seldom a "victim" to complain, and that the behaviour is easy to conceal—there are limits to the extent of the initiative which the police can take to increase the incidence of apprehension and thus the apparent risk of use. As we put it in the Cannabis Report:

. . . A real fear of being discovered in the private use of cannabis could only be developed and maintained by using the methods of a police state. It would require very large numbers of police, pressure on vast numbers of people to act as informers and ruthless use of the powers of search. Obviously, the society could not tolerate it. Even in a police state, such methods can only be invoked to suppress activity that can plausibly be presented as threatening the security of the state.'

The effectiveness of law enforcement against use varies somewhat as between the different kinds of drug use, but in the case of cannabis and the strong hallucinogens it would appear that less than one per cent of a reasonable estimate of the total number who have ever used are convicted each year, and the proportion is not much higher in the case of the opiate narcotics. What this means is that the actual risk of apprehension, which is the essential basis of deterrence, is not very great.

The deterrent effect of the law against simple possession or use does not rest entirely on the fear provoked by the actual risk of detection and apprehension. It also rests on the relative severity of the criminal law consequences of such apprehension. This turns on the likelihood of prosecution and conviction, if caught, and the likely severity of sentence or other consequences of conviction, such as effect on future employment. All of this depends very much on how seriously the society regards the particular offence. The stigma which attaches to an offence depends very largely on social attitudes towards it. Such attitudes change from time to time. Certain offences lose their relative importance in the public view. This is particularly true of offences in the field of public morality.

Fear of the stigma and other consequences of criminal law conviction do not alone account for the deterrent effect of the law. Many people obey the law simply because it is the law. With them, the law has moral authority, quite apart from any adverse consequences of violation. They obey the law out of a sense of moral obligation to do so. To inspire this sense of voluntary compliance the law must command moral respect. At least it must not profoundly offend the sense of justice or fitness of things. Most people will obey the law even if they disagree with it, as long as it does not strike them as outrageous. (In some cases, of course, the law may become subject to virtual nullification because of lack of a sufficient majority interest in its enforcement.) In the field of non-medical drug use the majority support the law, although they have varying degrees of enthusiasm about it. But there is a significant minority who do not feel an obligation to obey it, or who are so opposed to certain aspects of it that they feel justified in defying it. These, unfortunately, are the people about whom we are most concerned—who are so determined to engage in certain kinds of drug use that they are willing to run the risk of criminal prosecution and conviction. With such people the law obviously has little deterrent effect. Yet they include the people who are most likely to become involved in chronic, harmful drug use. They are, generally speaking, risk takers, and the risk of running afoul of the law is treated in much the same way as the risk of causing physical or psychological harm to themselves. It is extremely doubtful that people who will run the risks inherent in certain kinds of drug use will be deterred by the criminal law, particularly where the risk of detection is relatively slight. The majority of the people who are likely to be deterred by the criminal law, however slight the risk of detection, are also less likely to make an excessive or harmful use of drugs. They are, generally speaking, more cautious and prudent. While it is probable, therefore, that the law deters a large number of people simply by virtue of its existence, regardless of the actual danger of being caught in a case of violation, these are not for the most part the kind of people who are at particular risk of harmful drug use. Those who are at such risk are much less likely to be deterred for a combination of reasons: their strong opposition and even hostility to the law because it represents what they feel is an unjustified interference with their personal freedom; the relatively slight danger of being caught; their general readiness to run various kinds of risk; and their strong desire to engage in drug use.
The deterrent effect of the law is also based on the assumption that the individual is in a position to be influenced by rational considerations. In the case of non-medical drug use the individual is often in the grip of a strong desire for pleasure, and in the case of dependence, a virtually irresistible compulsion. It must be obvious that the law can have little deterrent effect with the drug-dependent person. The only case in which it could possibly exercise a deterrent effect is where the individual can change his dependence to a drug which he can legally obtain, as in the case of methadone maintenance. This is by no means a course which all opiate-dependent persons are prepared to accept. At the same time, the law does have in many cases a gradually wearing-down effect. Persons who are dependent on heroin often become so tired of the struggle to maintain their habit in the illicit market that they are finally ready to consider alternatives.

THE COSTS OF THE CRIMINAL LAW
Undoubtedly the prohibition against simple possession has some effect on use. The question is whether the effect which it has justifies the various costs which it entails. These costs were discussed in some detail in the Cannabis Report. It is sufficient to make brief reference to them here. They apply, of course, not only to the prohibition against simple possession but also to the prohibition against distribution as well.

For our purposes it is not only necessary to consider the effect which the existing law may have on the extent of non-medical drug use, but also the effect which any proposed change in the law may have on attitudes and behaviour. We must not only weigh the benefit of the existing law against its costs; we must also weigh the benefit of any proposed change in the law against its costs.

The creation of an illict market. The first and undoubtedly the most serious of the costs of criminal law prohibition is the encouragement and maintenance of an illicit market. When we prohibit something which a lot of people desire and are willing to pay money for we invite people to create an illicit market. In effect, we create a profitable enterprise for criminally inclined elements. Moreover, the more effective our law enforcement against distribution is, the more attractive we make the market for professional criminal elements by forcing the price up and putting a premium on skill and daring. This is an inherent and unavoidable cost of a prohibition of distribution. It may be said that there is nothing inevitable about this result if people will obey the law. Unfortunately, it is inevitable that a significant number will disobey it, particularly where a much desired activity is involved, and thus give the illicit market its basis. A closely related cost is that people who persist in seeking to use the prohibited drug will be obliged to have contact with criminal elements and in the process will be exposed to a variety of illicit drugs and drug use. Some will be introduced to other kinds of crime and become part of a criminal pattern of life.

Effect on resort to treatment. A second important cost of criminal law prohibition is that by making conduct criminal we may inhibit people from seeking help from other sources, such as medical treatment. The fear of being identified as a drug user, and thereafter being subject to surveillance, may make some people reluctant to approach treatment facilities. The attitude of treatment personnel may also be adversely affected by the characterization of the conduct as criminal. Sometimes treatment authorities are placed in an awkward position in relation to law enforcement authorities, as, for example, where they are expected to furnish evidence of violation of probation or parole.

Effect on drug education. A somewhat related cost is the inhibiting effect which legal prohibition can have on drug education. When a drug is legally prohibited it is necessary to start from that position. It is difficult to talk about the pros and cons of the use of that drug as if there were a legally free choice. Yet the drug is being used and will be used. People must therefore understand not only the legal consequences of its use but the physical and mental consequences as well. In discussing the pros and cons of drug use in this way one is placed in the rather ambivalent moral position of assuming that one's listeners may choose to break the law if there are not other good reasons for not using the drug. Yet it is unrealistic today to assume that they may not do so and merely to observe that there is no point in discussing the pros and cons of the particular drug use so long as the law prohibits it. Of course, the problem can be dealt with under the guise of a critical evaluation of the law—what are the facts about a particular form of drug use and to what extent does the law reasonably reflect the facts? But it is difficult to avoid ambiguity as to whether the law deserves to be obeyed. What all this amounts to is that so long as the law purports to make the decision for us it is difficult to discuss drug use in the context of a wise exercise of freedom of choice. The law has really removed the subject from the domain of personal discretion. To discuss it in terms of personal choice is to appear to act on the assumption, explicit or implicit, that a number of people are going to break the law.

The legal characterization of certain kinds of drug use can affect drug education in other ways. A legal characterization that is at extreme variance with the facts, as has been the case with cannabis, can undermine not only the credibility of the law, but also the credibility of information about other drugs. For example, it has been said that the very misleading impression which the law has conveyed about cannabis, by placing it on the same basis as the opiate narcotics, has led many young people to question the truth of information about more dangerous drugs, including heroin.

Demand on law enforcement resources. A further cost of using the criminal law against the distribution and use of drugs is that it requires a disproportionate application of law enforcement resources. The numbers involved in drug-related behaviour are such that we would have to employ a very large proportion of the time of police, prosecutors and judges to make a serious, systematic effort to enforce the law. This would inevitably have an adverse effect on other law enforcement priorities. Any crime which involves such a high proportion of the otherwise non-criminally inclined population is bound to produce a very drastic distortion in the application of law enforcement resources if a really serious attempt is made to enforce the law.

In fact, the law can only deal with a very small proportion of the actual number of offenders, and this on a haphazard basis. The effort is at most a token one. It serves to create some risk of apprehension, but probably not a sufficiently serious or credible one to act as a very effective deterrent. Even this token effort requires a considerable application of resources. The result is that for a very substantial expenditure there is really only a modest yield. The purpose of law enforcement in this field is simply to reinforce to some extent the moral injunction of the law. It is to keep the law from becoming a dead letter.

The stigma of criminal conviction. Finally, there is the cost of the criminal law for those who are apprehended and convicted. There is first of all the stigma of exposure to the criminal law process and of a criminal record.4 This stigma can have an adverse effect on self-image. It can make the individual feel a criminal and in the end seek to fulfil this opinion of himself The reaction is: If I am going to be treated as a criminal I shall act like one. This stigma or self-image will often drive a person to seek support and reinforcement in a deviant or criminal subculture. This proceeds from a feeling that one has been rejected or ostracized by society and that the only people who can be turned to for friendship and support are those who have been similarly stigmatized. The process of stigmatization also produces feelings of humiliation and degradation which can cause acute mental suffering. Finally, the stigma affects the attitude of others in the society to whom the offender must eventually turn for help and opportunities of various kinds in the process of rehabilitation or reintegration. These attitudes will affect the ability to obtain satisfactory work and to establish healthy relationships and social involvement. It is only by such means that a new self-image and sense of identity can be shaped.

The effect of imprisonment. In addition to stigma, there is the severity of the other results of conviction and sentence. This is to be seen chiefly in the effects of imprisonment, although one should not overlook the relative deprivation of freedom as well as the uncertainty involved in probation or parole. The adverse effects of imprisonment, including the physical violence to which inmates are exposed, have been described many times. They are well known. Perhaps the chief objection to imprisonment is that it tends to achieve the opposite of the result which it purports to seek. Instead of curing offenders of criminal inclinations it tends to reinforce them. This results from confining offenders together in a closed society in which a criminal subculture develops. The offender becomes dependent on this subculture in many ways and constantly exposed to the unwholesome influence of criminally oriented individuals instead of law-abiding and socially adjusted individuals who could have a more beneficial influence on him. Status in this subculture depends on skill in crime. The models and leaders to whom the offender is obliged to turn for emulation are leading criminals. Prison is in many ways a finishing school for criminals. There the offender has an opportunity to perfect his criminal knowledge and skills. It is difficult to think of a better way to train people for crime than to bring all the criminal types together in one long live-in seminar on crime. There would be, on the contrary, every interest in trying to keep them away from one another. An awareness of this problem is reflected to some extent in attempts to segregate young offenders from mature offenders, and also in an increased emphasis on serving the sentence in the community rather than in prison. As yet, however, we are only paying lip service to this awareness. We continue to bring the criminal elements of the country together for a kind of continuing education or refresher course.

These adverse effects of imprisonment are particularly reflected in the treatment of drug offenders. Our investigations5 suggest that there is considerable circulation of drugs within penal institutions, that offenders are reinforced in their attachment to the drug culture, and that in many cases they are introduced to certain kinds of drug use by prison contacts. Thus imprisonment does not cut off all contact with drugs or the drug subculture, nor does it cut off contact with individual drug users. Actually, it increases exposure to the influence of chronic, harmful drug users.

In the course of our investigations many addicts have testified that it is impossible for them to break the drug habit if they cannot escape from the associations which encourage it. Inmates in a provincial institution with a special treatment program stated that the chief reason for their failure to give up drugs was the inability to break away from the drug environment. The effect of the reinforcing prison subculture in a provincial institution without a special treatment program was described by an observer as follows:

... the heroin users as a group were a well-defined social force in the wing not only organizing the importation and distribution of illicit drugs, but also providing every possible support and justification for use. The users continually discussed all aspects of use, reaffirming the validity of continued use, and criticising those agencies and institutions which try to prevent it. Pictures of needles and mottos extolling the virtues of heroin use covered the walls of some cells. News from the street scene in the city arrived with all speed and regularity. The large amount of spare time and the dull routine made heroin use the most popular topic of discussion among users, by default if not for other reasons. It becomes obvious why a sizeable percentage of heroin users get their first fix in prison itself, or after release, from a friend met in prison....

Status among the heroin users was determined by drug experience on the street, the user's status on the street following him into the institution for better or worse. Status was positively related to extent of use, length of habit, involvement in the drug trade, and criminal sophistication. There was a special reverence for the long-time users, as if their mere existence was some type of endorsement for use.

Inmates would brag among themselves about the size of their habits, like drinkers bragging about their ability to hold their liquor. One inmate would tease another by calling him a `chippy-fixer, hophead or bomber freak'. In this way it seemed that the users' condemnation of the 'lesser' drugs somehow justified use of heroin.°

NOTES
1. R. v. Hartley and McCallum (No. 2), [1968] 2 C.C.C. 187 at 189 (B.C.C.A).
2. Urgent International Action Against the Abuse of, and the Illicit Traffic In, Narcotic Drugs and Psychotropic Substances, Report by the Secretary General of the United Nations to the Second Special Session of the Commission on Narcotic Drugs, July 28, 1970, E/CN.7/530, p. 3.
3. Cannabis Report, p. 290.
4. Absolute or conditional discharge (see Appendix F.8) avoids a conviction, but there is a plea or a finding of guilt in such a case, and there is a criminal record of it. The Criminal Records Act, R.S.C. 1970 (1st Supp.) c.12 as amended by the Criminal Law Amendment Act, 1972 (1972 Stat. Can. c. 13, s. 72), provides that a person who has been convicted or given an absolute or conditional discharge may apply after a certain period of time for a pardon and removal of his criminal record. In the case of conviction of an indictable offence, the period is five years after satisfaction of sentence; in the case of summary conviction, two years after satisfaction of sentence; and in the case of absolute and conditional discharge, one year for summary conviction sentences and three years for other offences. The pardon is granted on recommendation of the National Parole Board. The effect of such pardon is to vacate the conviction or discharge, remove any disqualifications resulting from it under federal legislation or regulations and prevent any question being asked concerning the conviction or discharge in connection with service in the armed forces or employment in government or in any enterprise under federal jurisdiction. Thereafter the record of the conviction or discharge may be disclosed only for certain limited purposes with the authorization of the Solicitor General. It is impossible to destroy all record of a criminal case in any real sense once it has entered into the data collection process, but even where it has been removed and put beyond the effective reach of ordinary enquiry, the knowledge which a lot of people invariably possess of a conviction (or a plea or finding of guilt in the case of absolute or conditional discharge) and the knowledge which can be obtained by interested parties through careful investigation cannot be eliminated.
5. The Commission carried out studies of one federal and four provincial correctional institutions in an attempt to evaluate the effect of their programs on drug offenders. The federal institution was Matsqui, which is discussed in Appendix I Treatment of Opiate Dependents in Federal Penitentiaries in Canada. The provincial institutions consisted of two with special treatment programs, one of the traditional kind without a special program and a wilderness camp based on the "outward bound" philosophy. Some of this study was carried out by participant observation with investigators living in on a 24-hour basis or during the day. There was some reference to the conclusions of these studies in the Treatment Report. Because of differences in the drug offender populations in these institutions (for example, two of the provincial institutions had few, if any, opiate-dependent inmates) there is really not a basis for comparing the effect of their respective programs. The major generalization to be drawn from these studies is the effect of the prison subculture in encouraging preoccupation with drugs and some drug use in prison. The notable exception to this general impression was the wilderness camp, in which there was apparently very little drug use during the period of confinement. It should be noted, however, that the population of the wilderness camp did not include any opiate-dependent persons. The studies of these correctional institutions were carried out by L. McDonald, R. Solomon, and A. Caplan under the general direction and supervision of John Hogarth.
6. Solomon, "Study of Traditional Institution," Unpublished Commission Research Paper, 1972 (edited by L. McDonald), pp. 69 and 73-74.