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Chris Clay
Pubdate: 17 Mar 1997
Source: Chris Clay
Author: Patricia G. Erickson
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 Patricia G. Erickson
I, PATRICIA G. ERICKSON (Ph. D.), of City of Toronto, in the Toronto
Region, MAKE OATH AND SAY AS FOLLOWS:
1. I am a Senior Scientist within the Social and Evaluation Research
Department of the Addiction Research Foundation in Toronto. As well, I am
an Adjunct Professor in the Department of Sociology, the Director of the
Collaborative Program in Alcohol, Tobacco and other Psychoactive
Substances, and a member of the Graduate Faculty at University of Toronto.
Before joining the Addiction Research Foundation in 1973, I was a
researcher with the Centre of Criminology, at the University of Toronto. I
am the author of works such as Cannabis Criminals; The Social Effects of
Punishment on Drug Users (ARF Books, 1980), "Living with Prohibition" in
the International Journal of the Addictions (1989), the co-author of The
Steel Drug: Cocaine in Perspective (Lexington Books, 1987) and The Steel
Drug: Cocaine in Perspective. 2nd ed. (1994), as well as the co-editor of
Illicit Drugs in Canada (Nelson Canada, 1988). My other publications and
professional interests are in the areas of law enforcement and social
policy with respect to illicit drugs, comparative juvenile justice systems,
deterrence and drug market violence. I received my Doctorate in Criminology
and Social Administration from the University of Glasgow, in Scotland, in
1983. My curriculum vitae is attached hereto at Exhibit "A".
2. While scientific investigation into the nature of drugs and their
actions is an important factor in making informed decisions about drug use
and drug policy, I believe that pharmacological research does not afford
answers to all the issues concerning legislative measures to control and
prohibit drug use. The scientific research concerning the effects of drugs
on humans has its limitations. One of the most significant limitations of
the scientific data to date is that knowledge about the effects of drugs on
human users has traditionally come from observation of a biased sample.
Most users of prohibited substances do not advertise themselves, and when
they do surface it is usually because of problems such as arrest,
dependence, overdose, and drug-related criminal activity. As a result,
conclusions are drawn from the worst cases, while users with more benign
patterns of use remain out of sight. For example, a school principal or a
child psychologist may encounter many young cannabis users whose grades are
falling, who are in trouble with teachers or parents, or who have drawn
attention to themselves due to other behavioral problems. Yet well-behaved
adult users may go unobserved by virtue of the fact that they can use drugs
while continuing to be successful in other areas of their lives. Similarly,
if most of the drug users seen by professionals are involved in a life of
crime, addiction, or both, it is tempting to conclude that this is the
inevitable result of using the drug.
3. I believe the public's perception of the affects of alcohol would be
significantly different if most of the information about alcohol and its
effects came from patients in alcohol treatment programs or addicted
prisoners forced to abstain. If this were the case, the data and literature
would show that, although people's curiosity and social nature lead them to
start with a few drinks, the frequency of this drinking gradually increases
until the alcohol becomes the pre-eminent force in the user's life. The
public would see alcohol as an extremely powerful drug which radically
changes the way people feel about themselves and the way in which they
conduct their relationships with others. Further, the public would be
forced to conclude that most, if not all, alcohol drinkers are bound to end
up addicted to alcohol, with their lives in ruins. Lacking knowledge of
"ordinary" drinkers who have not encountered problems, the public would
inevitably conclude that the seductive and destructive powers of alcohol
were derived largely from its pharmacology.
4. Even when rigorous methods are maintained in the formal analysis of
scientific evidence, the application of the data is subject to more than
one interpretation. In my opinion, medical and biological findings alone
cannot and do not form the sole basis of public policy decisions.
Political, legal, philosophical, economic, and moral issues must also be
considered as they often influence the interpretation of the scientific
data. I have conducted several studies and written many articles utilizing
this multi-disciplinary approach to the analysis of drug prohibitions.
5. In my view, there are many popular misconceptions regarding illicit drug
use. These misconceptions are premised on the belief that drugs possess
extraordinary powers and, thus, they overwhelm users or compel them to
behave in certain ways. These misconceptions also result from the
mechanistic characterization of human beings as helpless individuals, who
lack volition when confronted with drugs. The misconceptions assume that
people are unable to exercising choice and make rational decisions about
their drug use. The data show that the ability to avoid drug-related
problems is not evenly distributed in the population and that youth,
psychological instability, and other factors may increase the probability
of their occurrence. However, the mythology of drug use attributes etiology
of drug abuse to pharmacology, creating an image of the powerless
individual in the grip of the all-powerful drug.
6. One of the common misconceptions about drugs is that the pharmacological
properties of illicit drugs are overwhelming and behaviorally specific. The
misconceptions arise partly from fear and ignorance, but also from
confusion of correlation and causation. Observations of drug users with
other social problems have led to the assumption that drug use caused these
problems, although there is no logical reason why the reverse might not be
true, or why no causal relationship might exist.
7. In my opinion there is no merit to the notion that the use of one drug
may "cause" people to move on the other and stronger drugs. This theory has
been around since the early part of this century, but crystallized in the
United States after World War II. Originally, it was thought that this
so-called progression, usually from marijuana to heroin, had a
pharmacological basis. When this theory was rejected, the alleged
progression was blamed on psychiatric factors. That argument has also
failed to withstand scrutiny. Today, progression is rarely mentioned by
experts in the field.
8. Today, the focus has shifted to the "gateway" theory; namely, that
cannabis use serves as a gateway to using more "serious" drugs. The gateway
theory is based on a considerable body of research into patterns of
multiple drug use. Generally, there is not much difference between the
concepts of "gateway" and "progression". Both words imply that by taking
one kind of drug the individual increases his or her risk of taking
another, and that perhaps some mysterious drug-related forces are at work
that will lure users along against their better judgment. Like its
predecessor, the gateway theory is significantly flawed. Research has shown
that cannabis smokers are more likely to report use of other drugs than are
non-users. Furthermore, multiple illicit drug users are more likely to have
been heavier, rather than light, cannabis users. They are also more likely
to have been involved in the buying and selling of cannabis. However, none
of these facts can be attributed to special properties of cannabis per se.
The process involved in illicit drug use are very human, and therefore also
very social. They reflect involvement in friendship networks that at first
include those who only use cannabis, but widen to include users of other
drugs. That most people have never tried a drug like LSD, heroin or cocaine
should come as no surprise, since people are less likely to seek out the
drugs or want to try them. These are relatively rare illegal commodities
that even cannabis users may not encounter. One needs friends who use such
substances and provide a favourable example before a decision can be made
for or against trying them. Studies which have taken into account a full
range of unconventional adolescent activities (including illicit drug use),
have found that drug use of any kind, legal or illegal, tends to be part of
a larger behavioral syndrome for a given age cohort. Thus, the same factors
that predict cannabis use also predict precocious initiation into alcohol
use and sexual intercourse. In sum, there is nothing magical about
"gateway" drugs. Rather, there seems to be a constellation of social and
psychological factors involved in determining the degree of deviant
behaviour a person might exhibit. Illicit drug use is simply one of these
factors.
9. It has been estimated that somewhere in the area of four or five million
people in Canada have tried cannabis at one point in their life, whereas
consumers of "hard drugs" only number in the thousands. To say that roughly
8-10% of the population consume marijuana would not be a gross under
estimate. Therefore, it can clearly be seen that consumption of marijuana
does not lead to "hard drug" use for the vast majority of marijuana consumers.
10. Studies conducted by the Addiction Research Foundation between
1977-1995 indicate that cannabis use among the Canadian youth (i.e. 12-19
years of age) has increased from 12.7% in 1993, to 22.7% in 1995, although
it should be noted that this is still lower than the rate in 1979 (31.1%).
While the rate of consumption has decreased among the youth, it is
interesting to note that it has been increasing among those aged 30 to 49
years from 15.4% in 1977, to 39.6% in 1994. Overall, it has been a steady
trend that more males than females use marijuana, 25.7% as compared with
19.8%. Studies have found that cannabis use is not significantly related to
family income, educational level, or employment status. Perhaps the most
influential demographic factor in the use of cannabis is age.
11. Marijuana is one of the few substances shown in both human and animal
research as being negatively correlated with violence. There is no evidence
that cannabis makes people violent or drives them to be involved in
violence in any way. Most marijuana users do not engage in other criminal
activity and their marijuana use constitutes their major risk-taking
activity. Very little (or no) crime is a product of a compulsive need to
obtain and use marijuana although connections have been made between crime
and much stronger drugs (i.e. cocaine and heroin). It must be recognized,
however, that there is some violence associated with the marijuana drug
trade because the legal prohibition creates a black market for
distribution, and a black market leads to the commission of secondary crime.
12. In general, there is no relationship between consumption of marijuana
and the development of psychotic behavior, however, in some extreme cases a
connection can be made primarily with persons who have pre-existing disorders.
13. In my opinion, if people are permitted to use cannabis in their own
home and are permitted to grow cannabis for their personal use, harmful
patterns of use of marijuana will not emerge. In a study I did on adult
cannabis users, I found that the majority of the subjects used marihuana in
a social setting only. It appeared that the most of the adult users in my
study had access to a steady flow of marijuana despite its criminalization.
It appears that there are already norms for marihuana use that helps
protect people from abusing the substance. I have documented these results
in my article "Living with Prohibition" in The International Journal of the
Addictions 24(3), 175-188, 1989, a copy or which is attached hereto as
Exhibit "B".
14. The imposition of criminal sanctions on cannabis users has been at the
heart of much of the debate over cannabis policy from the mid-1960's to the
present. By the early 1990's, some 600,000 Canadians have received criminal
records for cannabis-related offenses. In Canada, as elsewhere, the impact
of criminal conviction on young lives was identified as one of the most
serious costs generated by the current prohibition. I have documented these
adverse individual consequences of criminalization in my book, titled
Cannabis Criminals: The Social Effects of Punishment on Drug Users.
(Toronto: ARF Books, 1980), a copy of which is attached hereto as Exhibit
"C". The methodology of that study is set out in the second chapter of the
book.
15. A major by-product of the prohibition is that it creates a category of
cannabis criminals. Consuming cannabis is considered a criminal activity
and therefore any user is vulnerable to being labeled with a criminal
status. The consequences of this stigmatizing label can carry many
long-term consequences. Even without even being found guilty, the offender
suffers a loss of liberty, as well as humiliation and worry. If an offender
is found guilty they receive a criminal label. They must live in fear the
rest of their lives, wondering when this label will come back to haunt
them. In my opinion, this is the biggest disadvantage of the
criminalization process.
16. Most individuals who are caught are on the low end of the socioeconomic
scale. By saddling them with a criminal record, finding a job and becoming
a contributing member of society only becomes more difficult. With the
depressed job market, employers are more likely to hire someone without a
marijuana record when comparing applicants. In a legal stigma study I
conducted, it was found that there was a significant difference in job
offers between individuals who possessed a criminal record for marijuana
possession and those who did not. People who received a discharge fell
somewhere in the middle, however, it was found that individuals who were
charged received significantly less offers than those who did not possess a
record.
17. Some people argue that the impact of receiving a criminal record for
cannabis use has been watered down by social and legal developments and
that, today, the consumption of marijuana is viewed as far less deviant. In
my own view, this is untrue and the label has not been watered down enough
to make the effects of criminalization negligible.
18. In the 1980's, health concerns had gained ascendancy. This thwarted
much of the impetus for legal reform. For this reason, Glenn F. Murray and
I conducted a second study which re-examined the nature of the costs to
individual cannabis users arising from their criminalization and also to
consider the reciprocal pressure that criminalization policy exerts on the
processing of offenders. Our study utilized interview data collected from
similar groups of cannabis possession offenders in 1974 and 1981 in Toronto
to address the following questions: (i) "who gets caught": have offender
characteristics changed; (ii) "what is the impact": have offenders'
responses to the experience of criminalization altered; (iii) "how has the
system responded": have the police and courts changed their procedures and
practices regarding cannabis offenders. A copy of a reprint of our paper,
"Cannabis Criminals Revisited", British Journal of Addiction, 81, no.
1(1986): 81-85, is attached hereto as Exhibit "D". My research and the
research that I have reviewed have lead me to conclude that the health and
social costs associated with the consumption of marihuana are relatively
low and out of proportion with the costs of criminalization. The overall
costs of the use of marihuana are much lower than the individual and social
costs of the criminal sanctions which the legal system uses to deal with
users of marihuana.
19. In 1983, I published a critique of the Canadian regime of cannabis
control policy in conjunction with Robert Solomon (currently of a professor
of law at University of Western Ontario) and Eric Single (currently the
research and policy director of the Canadian Centre on Substance Abuse). A
copy of this paper is attached as Exhibit "E" to this my affidavit. In this
paper, we concluded that the costs of criminalizing users far exceed the
deterrent benefits. We then considered three other policy alternatives to
total prohibition: mitigation, partial repeal, and legal availability. For
each, we asked how individual and social costs can be minimized with the
least risk of increasing harmful levels of use. Drawing on data generated
since the completion of the Le Dain Commission's (1970-1972) reports, we
reached the same preferred option as that favoured by the Commission
majority, namely, the partial repeal of the offence of simple possession.
We suggested several forms such an option could take, and forecasted only
slight increases in use under such a policy. From my studies, I have
concluded that consumption rates ebb and flow with little regard for the
state of legal sanctions. In fact, specific deterrent effects are virtually
non-existent, and in studies I have conducted, it was determined that 92%
of first offenders continued to consume marijuana within one year of being
sentenced for simple possession. It appears that consumption rates change
with changing social and economic factors rather than changing as a result
of the deterrent effect of increasingly punitive sanctions.
20. It appears that public opinion is consistent with the recommendations
of the Le Dain Commission. In 1977, a Gallup poll reported that the
majority of Canadians oppose the harsh criminalization of cannabis
possession. In particular, 36% Canadians wanted to see cannabis possession
sanctioned by a fine at the maximum, whereas 23% thought it should not be a
full criminal offence, and only 35% wanted the offence to be a full
criminal offence. More recently, Health Canada released a public opinion
poll in 1995 which found that 27% of Canadians believe that "possession of
marijuana should be legal", while 42.1% believe it should remain illegal
but only be punished by a fine or a non-jail sentence. therefore, in 1995,
it is apparent that 70% of Canadians are opposed to the use of
incarcerating criminal sanctions to combat marijuana use. Attached hereto
as Exhibit "F" is a copy of an article which I co-authored with Benedikt
Fischer and Reginald Smart, The New Canadian Drug Law: One Step Forward,
Two Steps Backward (1996) 7 The International Journal of Drug Law 172, in
which the results of these public opinion polls have been summarized.
21. I make this affidavit in support of the Applicant's Application for a
declaration of constitutional invalidity and for no other or improper purpose.
SWORN before me in City of Toronto, in the Toronto Region, this 17th day of
March, 1997.
PATRICIA ERICKSON