I am very grateful for the honour which the Drug Policy Foundation has conferred on the work of the Commission of Inquiry Into the Non-medical Use of Drugs. It is very gratifying to be told after some 20 years that this work is still regarded with some significance, and perhaps even of some inspiration. While I had the privilege, as Chairman, of having my name associated with the Commission, the work which you have been kind enough to recognize was accomplished by the arduous effort and cooperation of the five members of the Commission, a large research staff and many outside consultants. I accept this honour on behalf of everyone who contributed to the work of the Commission. The interest which you have shown in the Commission emboldens me to cast a backward glance at its appointment and its work.

Why the Commission Was Formed

It is necessary to recall first the concern that gave rise to the appointment of the Commission on May 29, 1969. The concern was mainly twofold: the increase in non-medical drug use among the young, particularly among middle-class youth; and the impact of the criminal law, particularly imprisonment, on young drug users. The drugs that were of chief concern were cannabis, that is marijuana and hashish; LSD; and methamphetamine, referred to as "speed". However, the Commission interpreted the description of the drugs to be considered as including alcohol and tobacco. It was assumed that while the major concern giving rise to the inquiry was nonmedical drug use by the young the government desired that such drug use should be placed in the larger perspective of multi-drug use, particularly non-medical drug use by adults. As the Commission put it in its Final Report (p.4):

Some observers have suggested that the Commission should not have concerned itself with alcohol. For reasons indicated in subsequent sections we believe that this would have been an inexcusable omission that would have created a false impression of the true extent and relative seriousness of non-medical drug use. Moreover, the relationships between the various forms of drug use and the phenomenon of multi-drug use have made it substances as possible.

The extent of adult drug use and its possible relationship to drug use by the young was an important part of the perspective contributed by the Commission. As the Chairman was quoted as having said in the discussion following an address to a women's group, "We're all in it." The importance attached to that perspective is suggested by the fact that the statement was placed in the headline of the newspaper report.

A detached consideration of non-medical drug use by the young during the late 60s and early 70s was complicated by the fact that is was associated with the youthful rebellion against middle-class values generally referred to as the "Counter Culture". In fact, the drug use was seen as in many cases an expression of that rebellion. Parents were concerned not only about the possible physical and psychological effects of the non-medical drug use by their children, as well as the possibility of criminal prosecution and penalty, but also about what the drug use, in spite of parental wishes, appeared to convey in the way of alienation and estrangement between the generations. There was profound parental anxiety and feelings of guilt and resentment. Everything the older generation stood for was being challenged, and they asked themselves where they had gone wrong. The generations were not speaking to one another. The Commission was required by its terms of reference to inquire into and report on the "motivation" underlying the non-medical use of drugs as well as "the social, economic, educational and philosophical factors" relations to it, in particular," the extent of the phenomenon, the social factors that have led to it, the age groups involved, and problems of communication." Thus the Commission was required to put non-medical drug use in social perspective. This inquiry into the effects extent and causes of non-medical drug use, as well as the social response to be made to it, was necessarily a multi-disciplinary study involving the input of psychopharmacologist, psychiatrist and other physicians, sociologists, philosophers, ministers of religion, educators, media specialists, law enforcement officers, and lawyers, among others. It was the multi-disciplinary nature of the inquiry that made it so challenging and called for such a large and varied staff of full-rime and part-time researchers. The inquiry was a study of non-medical drug use as a social, as well as, an individual, phenomenon. the words "problems of communication" in the Commission's terms of reference clearly referred to the alienation between the generations.

The Commission conceived of its role as not merely to conduct a scientific study of non-medical drug use and to make recommendations for action by government, but also to make a contribution to public understanding and reconciliation. That was one of the reason for its decision to conduct public hearings. As the Commission put it in its Final Report (p.5):

The purpose of the hearings was not to attempt an accurate survey of opinion in Canada but to identify the issues and the range of opinion, and to afford an opportunity for public discussion. In this we believe the hearings were very successful. They provided an opportunity for adults and young people to exchange views at a time when strong feelings and, indeed, a polarization of opinion had built up over the issue of non-medical drug use. the hearings were conducted in a fairly informal manner, and in many cases in informal settings, with plenty of opportunity for participation by the audience after presentation of formal briefs. People of all ages spoke with candor, and often great depth of feeling, and the Commission received a vivid impression of the extent to which the problem of non-medical drug use had touched the lives and concern of Canadians.

The Findings of the Commission

In its Interim Report (p.7) the Commission spoke at greater length concerning the impression made on it by the public hearing as follows:

...the Commission has been intensely aware of the fact that it was listening to an unusual social commentary. Opinions and feelings have poured forth in the hearings with great spontaneity, particularly in the more informal settings. The Commission has been deeply impressed, and on several occasions, moved by the testimony which it has heard. It has been struck by the depth of feeling which this phenomenon and the social response to it have aroused. As a
result of the initial phase of its inquiry, the Commission is more than ever convinced that the proper response to the non-medical use of psychotropic drugs is a question which must be worked out by the people of Canada, examining it and talking it over together. It goes to the roots of our society and touches the values underlying our whole approach to life. It is not a matter which can be confined to the discrete consultation of experts, although experts obviously have their role, and a very important one, to play.

The Commission was required by its terms of reference to make recommendations "with respect to the ways or means by which the Federal Government can act, alone or in its relations with Government at other levels, in the reduction of the dimensions of the problems involved in such use." The terms of reference made but slight allusion to what were conceived to be the problems and the issues of policy. In its Interim Report the Commission suggested that the following were problems involved in non-medical drug use: the harm (whether personal or social) produced by certain non-medical drug use; the extent and patterns of such use, and in particular its increase among certain groups in the population; the aspects of our personal relations and social conditions today which encourage such use; the proliferation and adulteration of drugs: the lack of sufficient scientifically valid and accepted information concerning the phenomenon of non-medical drug use; the lack of a coordinated and otherwise effective approach to the timely collection and dissemination of such information as does exist, including appropriate drug education programs; our present approach to treatment and other supportive services required to assist people suffering from the adverse effects of non-medical drug use; and the content and application of the criminal law in the field of non-medical drug use.

In its Interim Report the Commission spoke of the concept as follows (p. 195):

We see non-medical drug use generally as presenting a complex social challenge for which we must find a wise and effective range of social responses. We believe that we must explore the full range of possible responses, including research, information and education; legislation and administrative regulation; treatment and supportive services; personal; and corporate responsibility and self-restraint; and, generally individual and social efforts to correct the deficiencies in our personal relations and social conditions which encourage the non-medical use of drugs. We attach importance to the general emphasis in this range of social responses. We believe that this emphasis must shift, as we develop and strengthen the non-coercive aspects of our social response, from a reliance on suppression to a reliance on the wise exercise of freedom of choice.

The Role of the Criminal Law

The major policy issue considered by the Commission was undoubtedly the extent to which the criminal law should be used in an attempt to suppress non-medical drug use. The Commission's philosophy on this issue was stated in its Interim Report. After setting out the positions of Mill, Hart and Devlin in the "law and morals" controversy, the Commission concluded (p. 239):

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 cannot 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. At least, this is our present position, particularly in the light of such recent experience as the thalidomide tragedies. Obviously the state must be selective. It can not 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 states 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.

...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...

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 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.

In expressing its general reservations concerning the criminal law prohibition of simple possession, that is possession for use, the Commission said in its Interim Report (p. 242):

The harm caused by a conviction for simple possession appears to be out of all proportion to any good it is likely to achieve in relation to the phenomenon of non-medical drug use. Because of the nature of the phenomenon involved, it is bound to impinge more heavily on the young than on other segments of the population. Moreover, it is bound to blight the life of some of the most promising of the country's youth. Once again there is the accumulating social cost of a profound sense of injustice, not only at being the unlucky one whom the authorities have decided to prosecute, but at having to pay such an enormous price for conduct which does not seem to concern anyone buy oneself. This sense of injustice is aggravated by the disparity in sentences made possible by the large discretion presently left to the courts.

Despite its reservations, the Commission confined its interim recommendations on this issue, pending further consideration of the alleged relationship between an offence of simple possession and effective law enforcement against trafficking, to the repeal of the liability to imprisionment for wimple possession and substantial reduction of the maximum fine. Professor Marie-Andree wrote a dissent on this issue, recommending the entire repeal of the prohibition of simple possession of cannabis for the following reasons: "the extent of use and the age groups involved; the relative impossibility of enforcing the law; the social consequences of its enforcement; and the uncertainty as to the relative potential for harm of cannabis." At the same time, because of its general reservations concerning the offence of simple possession, the Commission declined to recommend the creation of an offence of simple possession for the "controlled drugs", particularly the amphetamines, although it was urged to do so by many who appeared before it, including persons in the drug subculture.

Marijuana Decriminalization

In the Cannabis Report of the Commission a majority (Le Dain, Lehmann and Stein) recommended the repeal of the offence of simple possession of cannabis — in effect, the dissenting recommendation of Professor Bertrand in the Interim Report. This time, Professor Bertrand dissented again, recommending the legal distribution of cannabis. Dean Ian Campbell dissented from the majority opinion respecting the offence of simple possession, recommending that the offence of simple possession be retained but with liability limited to a fine of $25 for the first offence and $100 for subsequent offences.

The majority expressed their rationale for a repeal of the offense of simple possession of cannabis in part as follows:

We do not believe that the known, probable and possible effects of cannabis, and the marginal effect which a prohibition against simple possession may have on availability, perception of harm and demand, justify these cost of continuing to attempt to enforced it against greatly increasing numbers of users, most of whom are under the age of twenty-five. It is simply not a feasible policy in the long run. The number of individuals involved, the difficulties of enforcement and the allocation of resources required to process the
required number of cases are all too great to make a thorough — going enforcement of the law against simple possession practicable. The law is able to reach less than one per cent of a conservative estimate of the total number of users. Thus it can have little impact by virtue of the fear of detection. At the same time, it has very serious consequences for those who are unfortunate enough to be caught. A law which can only be enforced in a haphazard and accidental manner is an unjust law. It falls with great unevenness upon the population of offenders.

The differences of opinion in the Commission the repeal of the prohibition of simple possession and the legal distribution of cannabis turned essentially, it would appear, on differences of view concerning the following factors: (a) the potential for harm of cannabis; (b) the effect of a repeal of the prohibition of simple possession or the legal distribution of cannabis on the perception of the potential for harm; and (c) the effect of a repeal of the prohibition of simple possession or legal distribution on
the extent and patterns of use of cannabis, particularly by the young. There does not appear to have been serious disagreement that the goal of social policy was to discourage the use of cannabis, particularly among adolescents, by the means of social response appearing to be most appropriate on a balance of benefits and cost.

The Final Report

In its Final Report, the Commission considered the distribution and use of the psychotropic drugs other than cannabis, with special emphasis on the opiate narcotics, particularly heroin. In its treatment Report the Commission had recommended that heroin maintenance (in addition to methadone maintenance) be permitted on a controlled, experimental basis, as a treatment adjunct to be used in exceptional cases. Despite negative reaction to this recommendation by government and others, the Commission reaffirmed it in its Final Report in the following terms:

For the present, our recommendation is not that heroin maintenance be made as generally available as methadone maintenance, but that it be something which approved treatment units should be able to resort to as a transitional measure to attract from the illicit market opiate dependents who will not respond to methadone.

The controlled experiment with heroin maintenance would be directed to its use as a last resort in selected difficult cases when every reasonable effort has been made to withdraw the addict from the illicit market by other means.

On the question of the application of the criminal law to the non-medical use, as distinct from distribution, of psychotropic drugs a majority of the Commission again affirmed the following policy: "For all of these reasons we strongly recommend against any further extension of the offence of simple possession. We believe that we should gradually withdraw from the use of the criminal law against the non-use of drugs rather than extend its application." In accordance with this principle the Commission again declined to recommend the creation of an offence of simple possession for the unauthorized use of the amphetamines and barbiturates. At the same time the majority saw fit, because of the relative potential for harm of the opiate narcotics and stronger hallucinogens, not to recommend the repeal of the offence of simple possession in this case, although it recommended some reduction in the severity of the penalties for simple possession of these drugs. In her dissenting opinion Professor Bertrand recommended repeal of the offence of simple possession for the opiate narcotics and the stronger hallucinogens.

I have concentrated on the recommendation of the Commission with respect to the application of the criminal law to the non-medical use of drugs. There were, of course, recommendations with respect to the other means of social response, including information, education and treatment. During the ensuing years I have not been able to maintain contact with the phenomenon of non-medical drug use, and I am not adequately informed of the present nature of the phenomenon and of how the issues are perceived today. I do not therefore, feel qualified to express an opinion of the current issues of drug control policy. I will say, however, that from such reading as I have been able to do I do not have the impression that in the past twenty years or so the problems have become less difficult or the answers much clearer.

The Honorable Gerald Le Dain recently retired from the Supreme Court of Canada.