|Week Online: Your
committee arrived at policy conclusions strikingly different from those
articulated by politicians in the United States. Can you describe
the political philosophy that undergirds your approach to drug policy?
What is the proper role of the state in regulating personal autonomy?
Senator Pierre Claude Nolin:
When we started out in 2000, we saw that since the LeDain Report in 1972
that most researchers and lawmakers agreed on the effects of cannabis,
but disagreed on the appropriate public policy. Our commission decided
we needed to examine guiding principles for setting such policy.
What is the role of penal law in public policy? What is the role
of ethical considerations? What is the role of the state? What
is the role of science?
Autonomy is an ethical principle
of our society. It is the role of the state to promote responsible
autonomy. The penal law should not be involved unless a behavior
causes significant damage to others. And science, while it should
inform decision-making, cannot replace it. In a free and democratic
society which recognizes fundamentally but not exclusively the role of
law as a source of normative rules and in which government must promote
autonomy and make sparing use of constraints, public policy must be structured
around guiding principles that respect the rights and responsibilities
of individuals who seek their own happiness while respecting the rights
of others. This is the pillar of our thinking, and from this it became
quite easy to conclude that, for cannabis, legalization under a properly
regulated system was the only sound public policy.
WOL: Your committee
last fall issued a report calling for the legalization of cannabis.
Another parliamentary committee called for decriminalization. Now
Prime Minister Chretien is saying the government will submit a decriminalization
proposal. Are we going to see cannabis decrim this year in Canada?
Sen. Nolin: We first
have to decide what is decriminalization. What the prime minister
is proposing is not decriminalization, it is what I call depenalization.
We are removing the criminal penalties, but the behavior itself remains
criminal, it just triggers a lesser penalty. This is the shadow of
the first step. It will be good news for that fraction of Canadian
cannabis users unfortunate enough to get caught. But we haven't seen
the government's bill. I don't think there will be any amnesty for
the half-million Canadians who have records for cannabis possession.
I am hearing rumors that there will be no jail time for those who don't
pay their fines. But I am also hearing rumors that there will be
increased penalties for trafficking and cultivation. If true, that
would be in the bill to calm down the Americans.
This is not what we in the
Senate had in mind, but is what our more frightened colleagues in the House
of Commons had in mind. They also studied the issue, they also had
good research, but they did not follow it to the same conclusions.
That's too bad, because they had a good, sound, well-informed report that
could lead the population to the future. And I don't think the population
needs much leading. Only 14% of Canadians want actual marijuana prohibition;
the rest of the population favors legalization, decriminalization, or legalization
for medical use. This reflects the fact that the population is increasingly
well-informed, but still not enough.
As for decriminalization,
I told them in Washington it would happen by Christmas, but I think before
WOL: The Canadian courts
are also moving on this issue. In fact, the Supreme Court this week
is hearing a case that could throw out the country's pot laws. Is
it possible or likely that a court ruling this year will wipe away the
need for parliament to act?
Nolin: Our Supreme
Court is quite independent and impartial, and that's what we want and cherish.
The court has accepted three cases, one for simple possession, one for
trafficking, and one for selling seeds and pipes, and it will have to decide
whether those activities trigger the threshold for parliamentary jurisdiction.
Both the British Columbia and the Ontario appeals courts have interpreted
our Charter of Rights, especially its Section 7, which deals with the liberties
and rights of citizens, as having a "harm principle." If there is
no harm, there is no criminal behavior. The Supreme Court must now
determine the threshold that triggers the harm principle, whether it is
minimal harm or significant harm. Our committee proposed that the
law should meet the threshold of significant harm, and we concluded that
cannabis use causes no significant harm to others. If the Supreme
Court reaches this same conclusion, I think the government would be happy.
It can tell its American colleagues, "It's not us, it's the court."
The potential international
implications are exciting. All of the UN conventions have sections
saying that if a court in a country decides that a section of a law meant
to support the UN conventions is unconstitutional, the decision of that
national court supersedes the treaty. If the court struck down the
cannabis law, that would force an entire different set of events.
Canada would have to officially inform the various international agencies
of such a decision and inform them that it is their responsibility not
to sanction Canada for striking such a prohibition from its national law.
We would also request a meeting with the other member nations to those
treaties to seek other avenues for the future.
The government, I think,
would be happy to let the court take this hot potato out of its hands,
although it could bend to pressure from the likes of the Police Association
and ask to use the "notwithstanding" clause. That would allow the
law to be enforced notwithstanding the fact it is contrary to the Charter.
But I think the government would prefer to go back to its international
counterparts and tell them what the Canadian Supreme Court said.
There would be rejoicing in various countries if this were to occur.
When you read the reports from the UN Commission on Narcotic Drugs meeting
in Vienna last month, you get the idea that someone is living in fantasyland.
Sweden was leading the debate on the importance of maintaining prohibition,
but you get the feeling that there was not a great deal of conviction for
that among other countries. I've been talking to a number of international
experts, and they are waiting for the spark that could lead to radical
change in the international system. The Supreme Court of Canada could
provide that spark.
WOL: US drug czar John
Walters is talking about Canadian marijuana as if it were toxic waste,
and Ambassador Cellucci has hinted that decriminalization could lead to
problems at the border. What about the threats and bluster from Washington?
Are they genuine? And how will they affect the deliberations in Ottawa?
Nolin: Prime Minister
Chretien should go to his American counterparts and explain what he is
doing -- it is only depenalization -- and calm them down. In the
meantime, I hope this stirs up a debate in the US similar to what has gone
on in Canada. It is needed. But if the Canadian Supreme Court
takes major steps, it will be difficult for the American administration
to start a campaign against the court. I cannot imagine the White
House having a public reaction against a Supreme Court decision here.
But these threats do influence
my colleagues, and that means we need to provide more information.
When we look at what Walters is claiming, we can provide information that
shows he and the Americans are just wrong. For instance, Walters
says the cannabis now is so much stronger and the proof is that there are
all these people in treatment in the US. Someone who doesn't know
what is going on in the US will buy that, but if it is explained to them
that this is happening because of drug courts where treatment is part of
the sanction, that more than 80% of cannabis treatment is court-ordered,
then a couple of things happen. The Americans begin to lose credibility,
and the Canadians begin to lose their fear of the Americans.
Walters says there is a health
danger from cannabis because it is smoked, and he is right. There
are some effects we cannot deny. But the question is whether the
harms reach the threshold to require criminal prohibition. Walters
says we have no clear battle plan against drugs and no clear public health
message, but we are proposing a strategy for all substances. We have
to differentiate among substances, but we also have to realize that not
all use is abuse. Yes, some people use excessively and harm themselves,
but most users are not abusing. We have to be much more effective
in saying that and in saying that the government must promote autonomy
as far as possible. To promote autonomy is to foster responsible
WOL: The RCMP believes
that in British Columbia alone there are a 100,000 people, perhaps more,
who are making a living from the illegal cannabis trade. What happens
to them under decriminalization?
Nolin: That is an important
question, and the short answer is I don't know. Those people will
continue living in the black market. Decriminalization does not provide
an answer for that. Are we going to maintain a system of prohibition
we don't believe in because it supports a lucrative black market?
I don't think so.
WOL: Your committee
report also called for cannabis law reform to take place within an integrated
national drug strategy. Did the committee make recommendations for
law reform for other drugs? And do you personally take a position
on the legalizing or decriminalizing of other drugs?
Nolin: The committee
did not have the mandate for the other drugs, but to look at cannabis within
the context of other drugs. For us, a reasonable proposal on cannabis
had to be part of a global strategy. The general principles I spoke
of are the same, but we will have to understand things like patterns of
use, dangers of adulteration, for other controlled substances in order
to adopt effective strategies.
I personally support global
legalization with strict regulation. Legalization would be the outcome
of a comprehensive strategy, one that takes into account the serious health
questions related to drug use. The particular regime for each substance
could vary depending on the research findings, but legal, controlled access
to those various substances could be generally similar.
WOL: You were at a
press conference in Washington, DC, last week (http://www.drcnet.org/wol/285.html#senatornolin)
along with Arnold Trebach of the International Antiprohibitionist League
and Marco Cappato of Parliamentarians for Antiprohibitionist Action.
You also addressed the NORML conference in San Francisco a couple of weeks
ago. Are you a member of any of these organizations, and do your
recent appearances outside Canada indicate that you intend to take the
anti-prohibitionist appeal to the international stage?
Nolin: I am not a member
of any of those groups, but I am quite ready to be part of any debate in
any venue. Are these appearances an indication I intend to participate
in the international debate? Yes.