I was googling my old criminal law professor the other day and was reminded that it’s been just over five years since Barney Sneiderman passed away. He was a rational guy who had a belief in sensible criminal policy and was particularly interested in the intersection of health and law – he had a passion for end of life issues. I thought I’d throw up a copy of his exchange with Tory MP Randy White and other MPs while giving evidence to the House Special Committee on the Non-Medical Use of Drugs.
Barney was a guy who was completely unelectable to political office. He was a rumpled looking fellow who, I suspect, quite enjoyed the academic life. I once stopped in to see him at 11:30 a.m. and he asked me whether I’d care to join in him a drink. When I declined, he poured himself a cup of something green and shimmering from a bottle with no label, explaining that he was only having one because he intended to cross-country home. Once every couple of weeks, he would pause in class, stare at his fingernails and then announce “I have tenure…” before launching into an explanation about the time that he trafficked in marijuana (by assisting a friend who was dying from HIV with getting it) or how the Jehovah’s Witness’ conclusion that blood transfusions are prohibited by the Bible are incorrect and, therefore, if you cause grievous injury to a Jehovah’s Witness who then dies because of a refusal to take a blood transplant, you should not be held liable for a charge of causing death, because the refusal is unreasonable. He had a great story about the time he got into an argument with a police officer outside of Spiro Agnew’s home because he refused to produce identification while out for a walk.
If you have any doubt that Canadian drug policy is insane and you’ve got fifteen minutes *cough*unnamed sibling(s)*cough*, I encourage you to read Barney’s exchanges with the Committee. If you just like seeing Conservative MP’s look like simple minded prats, I encourage you to do the same. It’s funny, of White and Barney, Barney would be the guy who was the Ivory Tower intellectual but, when you read their exchanges, it seems pretty clear to me that Barney’s the guy whose policy views have more of a basis in the realities of the human condition.
Mr. Randy White: I did want to ask Dr. Sneiderman this question. It doesn’t relate to marijuana; it relates to the legality of safe shoot-up sites. If they were to be implemented in Canada, would that not be a contradiction in the Criminal Code? Basically, you would know that people are in a lineup or entering a facility with heroin or coke on their person, shooting up in a facility that is sanctioned by a government organization, presumably. Is that not a significant contradiction of law?
Prof. Barney Sneiderman: Well, it would require altering the Controlled Drugs and Substances Act to remove the contradiction, wouldn’t it?
Mr. Randy White: Do you know whether today, if there were one in Canada, it would be a contradiction in the law the way it exists?
Prof. Barney Sneiderman: You mean if we were to allow that kind of facility right now?
Mr. Randy White: Yes.
Prof. Barney Sneiderman: Of course that would be. But as I’ve said, that has been the Dutch social policy for over a decade, and there it seems to work.
Mr. Randy White: No, my point is whether it would be a contradiction in law in Canada today if one were to exist.
Prof. Barney Sneiderman: Well, if possession is an offence, and you allow someone to shoot up in a so-called safe house or whatever, then it clearly is a contradiction.
I wonder if I could go back to Dr. Fried’s comments for a moment.
The subject of marijuana has interested me since the late 1960s when I worked in New York City. I’ve been teaching at a university for 30 years, and I cannot tell you how many students I have spoken to about drug use, the use of marijuana. I really wonder whether it is a different drug today or whether it is simply the case that because the drug is more potent, the user has to smoke much less in order to get stoned. Twenty years ago, let’s say, students would tell me they would smoke three or four joints to get stoned. Now, certainly with hydroponic marijuana, I’ve been told three or four people can get stoned on one joint. So that’s something I wonder about.
Another thing is this. I believe the per capita consumption of marijuana in the Netherlands is less than it is in the United States and in Canada. If marijuana were legalized, it may be that the curve would show a sudden increase, but I would hazard a guess that the curve would then slope downward, because we really live in a so-called booze culture.
Mr. Randy White: Would you like to take that chance and roll the dice on the legalization of it, on behalf of the children of this nation?
Prof. Barney Sneiderman: The children of this nation have access to marijuana. All you have to do is speak to my two nephews who recently graduated from high school in Winnipeg. I have spoken to many high school students. I’ve spoken to high school teachers, and they say to me that there really is not a school child around who cannot secure marijuana if the student is so inclined.
Do we like minors smoking tobacco? Do we like minors drinking alcohol? We prohibit that. Of course, we cannot totally prevent it, but there we’ve come to the conclusion that we don’t live in a perfect world. What we try to do is cut our losses, and a policy that produces a lesser evil than another is preferable.
I think perhaps the notion of the forbidden fruit explains a considerable amount of the attraction toward marijuana, that is, it’s because the drug is illegal that many youngsters experiment with it.
Mr. Réal Ménard: My other question concerns marijuana. According to your study, can marijuana be a gateway drug in the sense that someone who uses marijuana will move on to cocaine or heroin?
The Chair: I believe that Dr. Sneiderman also wants to reply.
Prof. Barney Sneiderman: I was going to comment on the so-called gateway theory. When I was an undergraduate, one of the most valuable courses I took was called logic. We studied logical fallacies, one of which is post hoc, ergo propter hoc–before the fact, therefore after the fact. Most consumers of cocaine and heroin have smoked marijuana, have smoked cigarettes, have consumed alcohol, and have drunk orange juice and milk.
The Dutch policy is based upon two foundations. One is the reduction of harm. The other is the separation of markets. In other words, if marijuana is criminalized, then the consumer who is dealing with the trafficker may at some point be asked whether he’d like to try something that’s more potent than marijuana.
I have something else I’d like to say. Because marijuana is criminalized, you really do not have the opportunity to receive any kind of perspective from long-term users of marijuana, of whom I know many–physicians, dentists, lawyers, professors of various kinds, businessmen. They don’t toke up every day, but that is their recreational drug of choice, along with alcohol. They are people who do smoke marijuana. They’ve been doing it since the sixties and seventies. They are very productive people. But you never hear from them, because for obvious reasons they’re not going to come forward and describe their experience to you.
Mr. Réal Ménard: You are saying that one can be a professional, involved in society, and use marijuana, and that this has no consequence on one’s capacity to actively participate in society. So, logically speaking, as legislators, we should review the issue of marijuana to make the law less prohibitive and less punitive.
Prof. Barney Sneiderman: I think if someone is upset with the libertarian streak, I find it morally offensive to criminalize anyone for a substance that he ingests into his own body. To me that smacks of George Orwell’s spectre of Big Brother. I simply see nothing that is gained by the criminalization of possession of any drug. By the way, during the so-called “noble experiment” with alcohol in the 1920s with Prohibition, possession was never criminalized. If it had been, then the disastrous social effects of the criminalization of alcohol would have been compounded, because aside from going after bootleggers, the police would have been apprehending consumers.
(In response to Libby Davies)
Prof. Barney Sneiderman: One thing I would pick up on what you said is that the use of drugs for recreational purposes is part and parcel of the human condition. As anthropologists will tell you, you cannot find a society anywhere that does not resort to recreational drug use. It isn’t something that is going to go away. It is part and parcel of the human condition.
When we declare a war on drugs, we are declaring a war on ourselves.
Ms. Libby Davies: And mostly poor people, I would argue.
Prof. Barney Sneiderman: I think with marijuana too, because we border on the United States, we cannot escape the impact of the propaganda that emanates from the United States. When William Bennett, who was President Reagan’s drug czar, refers to marijuana as “the most dangerous drug in the world”, that should give one pause.
I really believe that, particularly in the United States where the law against marijuana is pursued with far more zeal than here, the war against marijuana is a war against the 1960s, because marijuana was the drug of the 1960s. I really believe that what certainly explains the American position on marijuana is that what is involved here is this generational conflict between the early 21st century and a decade that has been perceived as wallowing in permissiveness.
(In response to Mac Harb)
Prof. Barney Sneiderman: I would say there are recreational drug users who don’t require treatment. What they would like is to be left alone.
I would also say that, as Dr. Fried mentioned, probably the drug with the most addictive properties is nicotine, while most consumers of heroin and cocaine are casual users. Then there are obese people around. They eat too much. It’s not the food that explains their obesity, right? Is there such an entity as an addictive personality? I don’t know.
What I’m saying is, if the use is functional, it’s not the government’s business. If the use is dysfunctional, it is the government’s business, but I don’t see what is accomplished by taking someone who has an illicit drug problem and branding him as a criminal.
That makes as much sense to me as the provision in the Criminal Code, abolished in 1972, that criminalized attempted suicide. It dawned on Parliament that someone who is attempting to commit suicide has problems enough without being branded as a criminal. Let us deal with the problems that caused the person to commit suicide. In other words, it’s a public health issue, not a police issue, and I feel the same here.
The Chair: Okay, but pursuing your current line of comment, we certainly are trying to educate people more about the concern about obesity because of the horrible increase in Type 2 diabetes, and there are specific populations we’re targeting.
In terms of attempted suicide, there are certain provisions within the law that you can be committed after so many attempts. So there are still some parameters around that.
How does that extend to your comments on marijuana, then, if you’re going to make that analogy?
Prof. Barney Sneiderman: The vast majority of people who attempt to commit suicide, if this is known, are treated medically.
The Chair: But there’s an intervention by the law to ensure they’re treated medically.
Prof. Barney Sneiderman: But they don’t wind up with criminal records. They don’t wind up in prison.
The Chair: So would you suggest that someone who continues to use drugs illegally could be committed to treatment?
Prof. Barney Sneiderman: If the use is dysfunctional.
The Chair: Who defines that? Pregnant women?
Prof. Barney Sneiderman: First let me say that the history of coerced treatment for drugs such as heroin and cocaine has produced dismal results.
The Chair: What’s your definition of “coercion”?
Prof. Barney Sneiderman: Mandatory civil commitment, which has been the experience in the United States with heroin going back to the early part of the last century. The recidivism rate was extremely high. There’s the phrase “You can lead a horse to water, but you can’t make him drink”. People will benefit from treatment if it is something they desire. If it’s forced upon them, they won’t.
The Chair: We’ve had experience observing at the Toronto Drug Court. Some people think it’s coercive that the people who go through that process have to get treatment, although they do clearly have an option, which is to just do the time or take whatever other sanctions there are. In fact, the results are showing pretty great successes, perhaps because of some of the things they are including, some of the social supports. I would argue that it is because of the social supports, and the fact that they recognize people are going to relapse in the process of getting to where they want to be.
Are you opposed to that kind of coercion?
Prof. Barney Sneiderman: Well, it returns us to the question of whether use is dysfunctional, and there are certainly social parameters that can determine that. For example, with alcohol, we can say that a particular consumer’s use of alcohol is dysfunctional because of how it impacts upon him or his family.
We do know that there are users of morphine…. For example, Dr. William Halstead, who is considered the father of American surgery, was addicted to morphine for most of his life. He received it through his medical colleagues. It apparently didn’t affect his career, and you wouldn’t have known it simply from his behaviour. Was his use of morphine dysfunctional? Apparently not.
So I think it really depends upon whether the drug is getting the better of the person. If the person uses the drug, enjoys the drug, and functions, that’s different.
The Chair: Before I turn back to Mr. White to see if he has any further questions, I’ll just say that this committee has to make some recommendations to the Canadian public and to the House of Commons in November. We are probably going to be recommending some changes to the current policies, and that could be very broadly interpreted.
Do you have any specific proposals for what you would like to see in a new drug strategy, new legislation, new education programs, or anything else you might think of?
That’s to both of you.
Prof. Barney Sneiderman: There are approximately 1.5 million users of marijuana in Canada. There is a book called The Limits of the Criminal Sanction by the renowned Stanford law professor, Herbert Packer. He has argued that the criminal law is an inappropriate mechanism of social control when substantial numbers of citizens engage in a behaviour that they do not regard as morally wrong. And I ascribe to that proposition.
We are labelling 1.5 million Canadians as criminals. To my mind, that should stop.
The Chair: And that’s on the marijuana file particularly?
Prof. Barney Sneiderman: Correct.
Mr. Randy White: I too have always been concerned about contradictions and mixed messages–zero tolerance for drugs in prison and we hand out bleach to sterilize the needles. I don’t know what kind of message this sends those who broke the law in the first place.
Prof. Barney Sneiderman: Maybe it sends the message that a zero tolerance policy is an exercise in futility.
Mr. Randy White: Maybe it does. I’d be a little more concerned about the message you’re sending people about the law, though, sir. There are safe shoot-up sites, yes, but possession is illegal. I don’t think these kinds of mixed messages are helpful in a society, regardless of what the changes are. We should be careful not to send those mixed messages. I do agree with those comments.
I’d like to ask you, Dr. Sneiderman, did you say, just for clarification, it’s your opinion that we should legalize the use of cocaine and heroin?
Prof. Barney Sneiderman: No. What I said was I am personally offended by criminalizing the possession of any drug for personal use.
Mr. Randy White: So for an addict who is “personally using” heroin, would you be opposed to a law that prevents him from using it?
Prof. Barney Sneiderman: Well, if he’s addicted, then by definition the law has not prevented his use. The Dutch send buses around and look for people, because they have very excellent contacts in communities. They look for people who have drug problems. They hand out clean needles. They aggressively search out people whose drug use is dysfunctional and say to them, look, let’s see what we can do to help you. But they don’t arrest them as criminals, even though the possession of cocaine and heroin is also a criminal offence in the Netherlands.
The arm of the state is involved with personal drug use, but the arm of the state focuses upon use that is dysfunctional and proceeds according to a health model, not a police model.
Mr. Randy White: Does the state have any role or responsibility at all in protecting an individual from themselves?
Prof. Barney Sneiderman: First, you’ve asked a philosophical question that philosophers such as John Stuart Mill have dealt with. Second, there is the question of the efficacy of the law. Does the law protect a person from self-harm if the person’s inclination is to use an illicit drug? I don’t know what the evidence is that the law has served as an effective deterrent. Keep in mind that the vast majority of users of a drug will never have any kind of contact with the law. Drug users know this, that the odds of being apprehended are quite slim.
So I don’t know how effective a mechanism the law is to deal with the concerns I share with you, because we both have concerns about people whose drug use is dysfunctional. The question is, how do we attempt to deal with dysfunctional drug use? In other words, how do we attempt to reduce the harm it causes in society?