DRCNet Interview: Senator Pierre Claude Nolin, Chairman, Canadian Senate Select Committee on Illegal Drugs 5/9/03

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Senator Nolin

Last September, the Canadian Parliament's Senate Select Committee on Illegal Drugs issued an exhaustive, comprehensive report calling for the legalization and regulation of cannabis (marijuana) in Canada. Led by Sen. Pierre Claude Nolin (Progressive Conservative-Quebec), the committee paved the way for the cannabis reform measures currently being considered by the Canadian government. Since the publication of the committee report, Nolin has become a notable presence on the international drug reform horizon. He addressed the mid-April conference of the National Organization for the Reform of Marijuana Laws in San Francisco, and last week he appeared along with anti-prohibitionists Arnold Trebach and Marco Cappato at a Washington, DC, press conference to press the cause of drug legalization. DRCNet spoke with Nolin from his Ottawa offices on Monday.

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 that.

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 autonomy.

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.

David Borden and Senator Nolin

View the committee web site and read the report.

Watch speeches and read transcripts (new) from last week's DC press conference.

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Issue #286, 5/9/03 Editorial: Time for Bill Bennett to Sit Down | DRCNet Interview: Senator Pierre Claude Nolin, Chairman, Canadian Senate Select Committee on Illegal Drugs | Canada Supreme Court Hears Arguments in Cases that Could End Marijuana Laws | Colombia: Pro-Legalization Governor among FARC Hostages Killed in Failed Monday Rescue Attempt | Bolivia Coca Conflict Heating Up Again | Oregon SWAT Raid Victims to File Suit | Tens of Thousands March Worldwide in Annual Million Marijuana March | Newsbrief: Bill "Mr. Virtue" Bennett Outed as Heavy Gambler | Newsbrief: Bush Twins Outed as Tokers by "That '70s Show" Star | Newsbrief: This Week's Corrupt Cop Story | Newsbrief: Baltimore Grand Jury Calls for Regulated Drug Distribution to Addicts | Newsbrief: Sentencing Reform Measures Moving in Colorado | Newsbrief: Rhode Island Bill Allowing Eviction for Drug Possession on the Move | Newsbrief: Minnesota High Court Bars Suspicionless Consent Searches, Questioning of Motorists | The Reformer's Calendar

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