DNC Position Paper on Drug Law Policy

The value a society accords to a person’s life is revealed by the precise legal rights that define a moral, social and political compass that define how an individual can exist and what possibilities are open to all of us, even to the extent of what information and thoughts we can access and how we manage our own private peaceful existence. Of course having legal rights without a means to enforce them understandably leads to cynicism about their worth; nevertheless the existence of a system for the protection of liberty goes a long way towards shaping the identity of society – rights represent a formal equality which underpins the imperative of countering actual inequality. It is admittedly ironic to demand greater power and autonomy for individuals, and concurrently celebrate the profoundly anti-democratic nature of judicial curbing of the excesses of government, yet having the Charter of Rights and Freedoms as a constitutional safeguard, at least gives the recognition of injustice a second chance. Being a legal protection, the arena for enforcing and testing our rights are the higher courts; contemporary freedom is necessarily a Rule of Law issue. The Rule of Law is the very basis for our democracy. When Parliament enacts legislation the decision makers place a duty on government officials and the citizenry to follow the law. No one is above the law. That is what Rule of Law is, and though many members of the public might have never heard the exact term the majority of people “get it” that this concept is the basis for all our responsibilities and freedoms as citizens.

Our rights as encoded in the Charter emerged from the Universal Declaration of Human Rights. Parliament can enact legislation that overrides certain rights and in cases where courts have found that Parliament has enacted laws that violate rights, Parliament can map out a new path. Violations can be upheld as being within Parliament’s prerogative, if such laws are necessary for good government, but at least the process has highlighted the issue as it has been publically identified to Parliament, thus the electorate can demand new strategies to ameliorate the declared injustices and hardships. In short, because democracy can be characterized as a ‘tyranny of the majority’, the protection of vulnerable minorities by maintaining a set of core values is a contemporary necessity. People are to be treated equally before the law unless expressly stated otherwise; but challenges may not succeed if the courts determine that the violation is a proportionate infringement necessary for good government.

For many of us, so far our experience of the system of Parliamentary supremacy and judicial oversight has failed miserably in many aspects of life. One such issue is the legal treatment of persons who use so-called ‘controlled drugs’. Seemingly successive governments have sought to criminalize such persons, irrespective of if they cause harms to society. Drugs are everywhere, and many of the most widely used harmful drugs are sold lawfully in a monopoly created by policy, some drug users literally have no rights at all according to the flawed legal analysis. Persons concerned with ‘controlled drugs’ are stripped of all rights even before they come into contact with the police or the courts. This uncomfortable truth is due to the pervasive dehumanizing rhetoric surrounding the introduction of entirely incorrect terminology into law and political discussion. Even the media and ‘expert’ discourse is guilty of not only propagandizing the evidence about drug related harms, but also of adopting entirely the wrong paradigm for understanding the problem. The problem is, everyone wants to talk about darn old Emily Murphy and her racist campaigns (though we can only ascertain details about her based from historic anecdotes) and the favorite drug of the reform movement, cannabis. Yet these are trivial topics brought to bear on an issue that doesn’t even have anything to do with some woman from the past, or the suppose status of a mere plant. The issue concerns human rights, and that means treating people fairly according to their conduct, not whether or not they have a certain plant in their possession.

The stigmatization of persons is not only a social and political construct, but a legal one as well, in the eyes of the authorities and people who unwittingly repeat the myths, drug-user policy is not framed in terms about persons and what they do to alter their thinking, but what society should do about a list of objects. Some call this problem a War on some People who Use some Drugs, but hardly anyone seems to express what this expression actually represents in law, and it is not lawful law, but an illusory reversed paradigm. The ‘War on Drugs’ expression reveals false consciousness, what is at stake is how we define what it means to be human. Parliament enacted a drug-user law, The Controlled Drugs and Substances Act (“the Act”). The Act when construed properly is a well written instrument, principally because it is highly flexible and accords powers to the minister to make differentiations between harmful misuse and non-harmful uses of drugs (see sections 55 &56 of the Act). It’s worth noting that the use of drugs is not an illegal act at all, rather the law seeks to regulate such possessions to curb the misuse of drugs, not all use. Sadly such administrative flexible provisions are not properly utilized. Primarily it is an Act to curb anti-social behavior and to protect public health and safety by regulating activities with harmful drugs. When it becomes apparent to the Minister that the misuse of a drug is leading to social harms, there is a duty to have that drug, (that is to say those persons concerned with it) brought under the control of the law by first making a legislative order for the drug concerned to be added to the schedules of the Act. The Act is designed in such a way that it is finely tuned to prepare for all eventualities. Parliament never fixed the schedules to an exhaustive list of drugs, but an open-ended concern for drug-related outcomes.

In the case of certain people who use certain harmful drugs, there is no recognition of their rights because instead of such persons having legal agency based upon their actions, they are judged by reference to an object, a drug. This problem occurs as a result of maladministration by basing the administration of the Act on errors of law, firstly by imagining that the law divides drugs into ‘legal’ and ‘illegal’ ones. This mal-(literally ‘bad’)-administration leads to an unequal application of law imposed on certain people concerned with certain harmful drugs, and a failure to give effect to the true objectives of the Act. Our position is that all concerned parties must first construe and understand the Act, and thus recognize that it is at heart a neutral law (to target outcomes rather than substances). The Act does not make drugs illegal, or by omission, legal. In fact it is clear that the Act does not mandate prohibition (remember the actual use of a drug is not a crime). This problem of the misuse of a law will be especially difficult for those who make their living off the so-called “drug war” to understand – but we are the subject of the law, not the drugs. The Act has been fettered to international drug control regimes (which are not incorporated into our law), and this has led to the wrong distinction – ‘legal’ harmful drugs vs. ‘illegal’ harmful drugs, thus creating an arbitrary artificial divide (between persons not drugs!). This isn’t a political argument, or philosophy. This is a strictly legal argument. People engaged with alcohol and tobacco are people engaged with harmful drugs. Though for many people it is unthinkable or would be political suicide to declare the correct operation of the Act must include alcohol and tobacco users. Yet, this would not mean prohibition; use is not illegal under the Act and sensible regulations facilitating responsible uses could be made with the powers the Minister already has. Restrictions over liberty should be fair and proportionate, and this means having the same threshold for interference with a person’s liberty for all persons engaged with harmful drugs based on evidence of objective harm. There is a legitimate expectation of procedural fairness and this can only come about by the equal treatment of persons similarly situated no matter what drugs they might prefer. The proper distinction in law is to distinguish ‘persons who act peacefully with harmful drugs’ vs. ‘persons who act harmfully with harmful drugs to violate the rights of others’.

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