Chris Clay

Pubdate: 21 Mar 1997
Source: Chris Clay
Author: Eugene Oscapella
Note: MAP is archiving each of the affidavits filed in the Chris Clay
Constitutional Challenge to preserve these important documents.
Bookmark: http://www.mapinc.org/clay.htm (Clay, Chris)

ONTARIO COURT
(GENERAL DIVISION)
(SOUTHWEST REGION)

BETWEEN

HER MAJESTY THE QUEEN
Respondent

and

CHRISTOPHER CLAY
Applicant

Affidavit Of Eugene Oscapella

I, EUGENE OSCAPELLA, of the City of Ottawa in the Province of Ontario, MAKE
OATH AND SAY AS FOLLOWS:

1. I am a barrister and solicitor in the Province of Ontario having been
called to the Bar in 1980. I have worked as a researcher and consultant for
many government agencies including the Law Reform Commission of Canada, the
Department of Justice, the Ontario Law Reform Commission and the Office of
the Privacy Commissioner of Canada. In addition, I served as the first
Chair of the Drug Policy Group of the Law Reform Commission of Canada and
also now serve as a member of the policy committee of the Canadian Criminal
Justice Association. I am a founding member of the Canadian Foundation for
Drug Policy and, among my other professional duties, I currently serve as
one of the Directors for this foundation. The Canadian Foundation for Drug
Policy is a non-profit organization founded in 1993 by several of Canada's
leading specialists in drug policy. The Foundation is designed to act as a
forum for the exchange of views of the reform of Canada's drug policy and,
where necessary, to recommend law reform alternatives that will make
Canada's drug law and policies more effective and humane. Attached hereto
to this affidavit and marked as Exhibit "A" is a copy of my curriculum vitae.

2. On June 20, 1996, Bill C-8, the Controlled Drugs and Substances Act, was
given royal assent. This legislation was originally introduced in 1994 as
Bill C-7, and in my capacity as a Director of the Canadian Foundation for
Drug Policy, I closely monitored the movement of this legislation through
the House of Commons, the Senate, and the Standing Senate Committee on
Legal and Constitutional Affairs. I have appeared before several
Parliamentary committees which have examined Bill C-7 and Bill C-8. On
behalf of the foundation, I have appeared before the House of Commons
Subcommittee of the Standing Committee on Health on Bill C-7 (May 10,
1995), and before the Standing Senate Committee on Legal and Constitutional
Affairs (December 14, 1995) and before the House of Commons Standing
Committee on Health (October 22, 1996). On behalf of the Canadian
Foundation for Drug Policy, Glenn Gilmour, a founding member of the
Foundation, appeared before the Senate Standing Committee on April 25, 1996
to make submissions on changes in drug policy.

3. Before the Standing Committee on Legal and Constitutional Affairs, many
groups and individuals made submissions in support of decriminalization of
marijuana. This position was advanced by the Canadian Foundation for Drug
Policy, the Canadian Bar Association, The British Columbia Civil Liberties
Association, the Law Union of Ontario, The Criminal Lawyers Association,
the Canadian HIV/AJDS Legal Network and the Canadian AIDS Society.

4. As the Standing Committee proceeded, several members of the Committee
publicly stated their support for decriminalizing marijuana. However, no
such recommendation was forthcoming from the Committee and the Montreal
Gazette, June 14, 1996, reported that Committee Chair Senator Sharon
Carstairs had stated that the Committee had dropped the idea of
recommending no criminal sanction for possession of marijuana because the
Committee felt that this proposal would never pass the House of Commons.
The article further reported the Committee Chair as stating that "the
majority of senators and I was with them felt all the evidence indicated
decriminalization for simple possession is the way we should be going".

5. Despite the failure to recommend decriminalization, the Standing
Committee attached an important recommendation to its report on Bill C-8.
The Standing Committee recommended that a joint Senate and House of Commons
Committee be established to conduct an extensive review of Canadian drug
laws and policy. The text of the recommendation is as follows:

THE Standing Senate Committee on Legal and Constitutional Affairs strongly
urges that a Joint Senate and House of Commons Committee be struck to
review all of Canada's existing drug laws, and policies and programs.

Without restricting its mandate, this Joint Committee should be authorized to:

reassess Government's approach to dealing with illicit drug use in Canada,
its effectiveness in curtailing drug use, and its fairness of application;

develop a national harm-reduction policy to minimize the negative
consequences associated with illicit drug use in Canada; and recommend how
such a harm-reduction policy would be implemented, including viewing drug
use and abuse as primarily a health and social policy issue;

study harm-reduction models adopted by other countries (treatment and
alternative programs for illicit drug use); consider whether such programs
should be implemented in whole or in part in Canada;

examine Canada's role and international obligations under the United
Nations drug conventions to determine whether alternative measures to
prosecution and punishment are possible under the conventions;

and if not, consider whether Canada should seek an amendment to the United
Nations drug conventions which would allow alternative harm-reduction
measures to permit signatory parties to comply;

revisit the LeDain Commission's findings and recommendations and determine
what further action is needed;

explore the health effects of cannabis use; consider whether the
decriminalization of cannabis would lead to increased use and abuse, both
in the short- and long-term;

explore using the Government's regulatory power under the Contraventions
Act as an additional tool to implement a harm-reduction policy.

In addition, the Joint Committee should undertake intensive public
consultations to determine the needs of different jurisdictions across
Canada, including large urban centres where the societal problems
associated with the illicit drug trade are move visible. The goal should be
to devise a made-in-Canada drug strategy where all levels of government
work effectively together to reduce the harm associated with the use of
illicit and legal drugs.

6. In final Senate debate on Bill C-8 on June 19, 1996, the Hon. Sharon
Carstairs, Chair of the Standing Senate Committee on Legal and
Constitutional Affairs, stated as follows:

Honourable senators, during the hearing process of this bill, several
senators went on the record as being in favour of the decriminalization of
simple possession of marihuana: Senator Losier-Cool, Senator Doyle, Senator
Jessiman, Senator Nolin, and, for a short period of time, Senator Gigantes.
Today, I want to associate myself with those senators who went on the
record as saying that they believe the time has come in Canada for us to
recognize that an activity in which three million Canadians have at some
time or other in their lifetime participated should not be considered a
criminal act.

7. During the same Senate debate, the Hon. Pierre Claude Nolin stated as
follows:

Some of us would have liked to have seen measures to decriminalize the mere
possession of cannabis put into place immediately. For admittedly strategic
reasons, I personally decided not to suggest such an amendment. I do not
think that this House would have understood the importance of this measure.
That is what I want to talk to you about tonight.

It seems to me that the level of information available to, and understood
by, Canadian members of Parliament is not sufficiently high to allow
Parliament to take such a decision today. This is not, however, a reason to
never take it. It is nearly a matter of blindness, in some cases voluntary
blindness. I am not speaking only of the honourable senators, but also of
the members of the other place.

That blindness has led successive governments, regardless of political
stripe, to never consider drug use in Canada as a health issue, only a
criminal issue.

8. Despite the recommendation of the Senate Committee for a joint Senate -
House of Commons committee, the House of Commons Standing Committee on
Health agreed to undertake a review of Canada's drug policies without
Senate involvement. Notwithstanding the Senate recommendation to revisit
the LeDain Report and specifically examine issues relating to marijuana,
the mandate of the House of Commons Standing Committee on Health is
extremely narrow and does not direct itself to issues specifically related
to marijuana. The Committee's terms of reference are:

1. to receive evidence about the harmful impact of misuse and abuse of
legal and illegal drugs on the social behaviour and physical health of
Canadians
2. to identify the relevance of variables such as age, sex, ethnicity,
socio-economic status and geographical area on the demand for and effect of
such substances
3. to examine effective measures for reducing the demand for and use of
such substances through education, prevention, treatment, and rehabilitation
4. to make appropriate recommendations on future policy actions to reduce
the demand for such substances

9.The Canadian Foundation for Drug Policy stated its strong objection to
the narrow mandate of the Health Committee in a letter dated September 12,
1996. In that letter, the Foundation stated:

First, let me state our profound hope that the committee will broaden its
terms of reference. The terms of reference as now stated completely avoid
the critical issue: how Canada's drug laws and policies contribute to the
harms associated with drugs. Unless the committee expands its mandate to
deal with this issue, there is very little value in holding further
hearings on drug policy.

More appropriate terms of reference would be those proposed by the Standing
Senate Committee on Legal and Constitutional Affairs in its report on Bill C-8.

10. In October of 1996, the Health Committee began its review of drug
policy. On February 11, 1997, I appeared before this committee to make
submissions on behalf of the Canadian Criminal Justice Association with
respect to proposing a reform of our current system of criminal prohibition
of drugs.

Sworn before me at the)
City of Ottawa in the)
Province of Ontario, this)
21st day of March, 1997)
Eugene
Oscapella