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Back to list of Dissenting Opinions of Judges

November 24, 2004 - The North Shore News (CN BC)

OPED: Policy Of Prohibition A Failure

By Judge J.B. Paradis

I was appointed to the provincial court of British Columbia on Feb. 15, 1975.

I retired on Aug. 13, 2003.

During those 28 years, I presided over at least 1,000 cases, some big, most small, involving the possession or sale of illegal drugs.

Bail hearings, trials, guilty pleas, applications to forfeit property - I took notes on each one.

And a scan of those notes makes it clear that nothing much has changed: the same number of people are still choosing to ingest mood-altering substances, the same proportion are addicted and there is the same persistent, but increasingly lucrative and efficient system of supply.

Over those years we - citizens, police, judges - lived and worked within the orthodoxy that all drugs are inherently evil (except, of course, alcohol) and that prohibition and punishment can rid us of them.

How wrong we were.

So wrong, it is distressing to consider the evils we spawned in our hopeless attempt to impose criminal sanctions for private choices.

The inclination in humans, other mammals, birds and even some insects to seek out mind-altering substances is innate. Leaving aside the substantial research on the subject, any observant person can see the enduring popularity of everything from coffee and tobacco to alcohol and ecstasy. There is, always was and always will be a demand for such substances and, therefore, there will always be a supply.

Which is not to suggest that drugs are harmless. In fact, it is their very potential for harm that, more than anything else, highlights the abject failure of the policy of prohibition. But almost all present-day non-medical drugs, properly regulated and taken with care, can provide a respite from the toil, strife and illness that life inevitably serves up, whether you are a Kurdish goat-herder smoking hashish or a Vancouver school teacher sipping a scotch.

We have already conceded that much in our acceptance of alcohol, a serious intoxicant we can consume without being criminals but which we recognize as dangerous when not consumed in moderation or consumed by those too young to deal with its effects.

In the face of that innate desire, prohibition becomes nothing more than an irresistible force butting up against an immovable object.

Incredible as it may seem, there are no up-to-date reliable statistics on illegal drug use in Canada, although the Canadian Centre on Substance Abuse will be releasing this month the results of its first comprehensive survey since 1994.

There are two other options available to determine if the policy of prohibition has had any impact during its almost century-old lifetime: American information and statistics on drug crimes in British Columbia.

The Americans are far more rabid in their approach to drugs so it would be reasonable to assume that drug consumption there has fallen. Not so. From the mid-1960s to 2002, marijuana and cocaine use among 18- to 25-year-olds increased from five per cent to 54 per cent and from one per cent to 15.4 per cent, respectively.

That growth has taken place not only in the face of the threat of serious jail time for possession of even small amounts and "three-strikes" laws, but also in spite of draconian laws in a number of states that prohibit the drug convict, upon release, from collecting welfare, living in public housing, receiving food assistance, obtaining a driver's licence, securing student loans or applying for a job with any government department or agency.

The B.C. drug crime rate is no more encouraging to the drug warriors. Between 1993 and 2002, the incidence of cannabis and cocaine convictions rose 66 per cent and 48 per cent respectively with no significant increase in policing and prosecution efforts.

Government has a legitimate role in the regulation of recreational drugs because they are potentially poisonous substances. Only the purest free-marketer would advocate an unregulated market. The LeDain Report of 1973, still one of the most careful, thorough, balanced and well-written explorations of modern non-medical drug use, contains a sort of cost-benefit analysis of the various options for the regulation of drugs. It concludes that prohibition is one of the least desirable approaches.

Recognizing that drug use "is too deeply rooted and too pervasive to be eliminated entirely," the report identifies four good reasons not to resort to prohibition.

First, it creates an illicit market, an irresistible playing field for serious criminals.

Furthermore, all those offences that are reported as "drug-related" are nothing of the kind. They are prohibition-related. A black market grossly inflates the price of drugs, forcing the addict into petty crime to pay for his drugs. We never read that an alcoholic has broken into someone's home to get what he needs, because he buys his addictive substance in a regulated market at a reasonable price. And, except for alcohol (a substance at the root of well greater than half of all criminal charges), offences committed because of the influence of a drug are as rare as asteroid hits.

Second, it inhibits any efforts to seek help or treatment when consumption gets out of hand and it constrains the creation of resources for those purposes.

Third, it inhibits education about the dangers of drugs. If the law prohibits them outright, it is difficult to discuss them, particularly with teenagers, in the context of a wise exercise of freedom of choice.

Finally, prohibition places a disproportionate demand on law-enforcement resources. By 2001, policing drugs in Canada (just drugs themselves, not "drug-related" offences) cost $500 million a year, an amount that significantly exceeded the amount, over the same period of time, spent on the vilified gun-registry program -and with apparently as little bang for the taxpayer's buck.

Add to those unfortunate results the demonizing of citizens whose only sin is to become addicted to the wrong drug, as well as the corruption of enforcement officials and the erosion of civil liberties that inevitably creep into investigation of victimless crimes, and the picture is truly dismal.

But the most telling consequence has been the inevitable unreliability, in a black market, of the quality and strength of the product - or its outright misidentification - and the resulting threat of serious illness or death from overdose, let alone the spread of AIDS and hepatitis from needle re-use.

In other words, if the regulation of poisons is a reasonable pursuit of government, one which justifies a policy in the first place, prohibition has enhanced, not diminished, the poisonous potential of street drugs.

The federal government has said repeatedly over the past two decades that misuse of drugs is a health issue. It is past time that it acted accordingly, shelved its costly and useless policy of prohibition and created a rational structure to deal with all non-medical drug use, the one presently in use for alcohol: a system of regulated distribution. At a stroke, we would destroy the black market, remove a principal source of revenue for organized crime and terrorist groups, free up hundreds of millions of dollars now spent on enforcement and corrections, create a new source of government revenue - to be devoted to drug treatment and education - and greatly reduce the incidence of property crime.

Only two things stand in its way. The first is the Law of Natural Inertia of Governing Bodies: if a policy would be bold, socially beneficial and fiscally prudent, but risky with the electorate and requiring the overhaul of entrenched structures, study it some more. The second is the anticipated response from our neighbours to the south.

Neither can justify persisting in such a demonstrable failure.

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