Lecture 5. The proper role of the police? Current Law on Drug-impaired Driving. Destabilizing the Justice System. Drug-impaired driving. But...

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1 Lecture 5 CRM 3314 University of Ottawa PImpaired driving legislation and statistics PDrug use and offence statistics PCrime associated with drug prohibition PRights at risk because of prohibition The proper role of the police? The RCMP secretly commissioned research in hopes of discrediting Vancouver's supervised injection site, the Pivot Legal Society says.... Pivot Legal Society lawyer Doug King says it's not the RCMP's job to seek out research on Insite.... "It's an issue of public health. It's not an issue that falls within the RCMP's gambit," King told the CBC on Tuesday. King said internal RCMP documents... show the Mounties commissioned at least two academics to dissect research into Insite in hopes of finding flaws.... And while dozens of studies published in respected journals overwhelmingly showed benefits stemming from Insite, that information didn't appear in the RCMP reports, King said. King believes an ideological bias motivated the RCMP to play politics with the reports. "It was really a way for them to attack the science behind Insite without them having the qualifications to do so, and to advance their ideological position." Secret RCMP studies of Insite ideologically biased, advocates say, CBC News, Last Updated: Wednesday, October 8, :27 PM ET 1 2 Destabilizing the Justice System More than 11 years after the brazen slaying of prison guard Pierre Rondeau and the attempted murder of his partner Robert Corriveau, the first-degree murder trial of Paul (Fon Fon) Fontaine began in Montreal.... Crown prosecutor Randall Richmond told jurors he intends to show that Fontaine, a top Hells [Angels] lieutenant in its elite Nomads chapter, was part of a conspiracy... to murder prison guards. Richmond said the gang's motive was to destabilize the Quebec justice system and eradicate the problem of police informants within the gang... [T]he Hells also planned to kill police officers, Crown prosecutors and judges, Richmond said. Hells Angels conspired to jam Quebec justice system: Crown, CBC News, Last Updated: Tuesday, October 7, :22 AM ET Current Law on Drug-impaired Driving PCriminal Code section 253: prohibits driving, flying, boating, operating railway equipment while impaired by alcohol or a drug PUnitl Bill C-2 was enacted, no way to compel suspects to undergo coordination tests, and only limited means to obtain access to blood to test for presence of drugs 3 4 Drug-impaired driving Bill C : Liberal Government introduced Bill C-16, An Act to amend the Criminal Code (drugs and impaired driving) and to make related and consequential amendments to other Acts. The Bill seeks to strengthen investigations of drugimpaired driving offences. An almost identical Bill was introduced in the previous Parliament, but died on the Order Paper when the federal election was called. 5 But... PBill C-16 died when the 2006 federal election was called PConservative Government introduced a similar measure in November 2006, attempted to add new provisions to punish drug possession while driving 6

2 Bill C-2 Tackling Violent Crime Act PBill C-32 was introduced by Conservative government November 21, 2006 PBill C-32 died, but was replaced in October 2007 by Bill C-2 PBill C-2 became law in February Attempt to introduce new drug offence P Predecessor to Bill C-2, Bill C-32, added a new offence to the Criminal Code driving while in possession of an illegal drug. P Any person found in possession of a controlled substance while operating, or in the care or control of, a motor vehicle, vessel, aircraft or railway equipment, would be guilty. P Provision would apply whether the individual is in personal possession of the drug, or whether the drug is simply in the vehicle, provided that the individual knowingly had possession of the drug with no lawful excuse for such possession. P Hybrid offence punishable by up to 5 years prison 8 Tackling Violent Crime Act Authorizing police to demand: PBill C-32 was amended by the Commons Committee reviewing the Bill, and the new possession offence was removed 1. Standardized Field Sobriety Tests (SFST), where there is reasonable suspicion that a driver has a drug in the body. SFSTs are divided-attention tests that evaluate a subject's ability to multitask. They are administered at the roadside. 2. Drug Recognition Expert (DRE) evaluations where the officer reasonably believes a drug-impaired driving offence was committed. This includes a situation where the driver fails the SFST. These are administered at the police station. 3. A sample of a bodily substance (blood, urine or oral fluid), if DRE officer identifies that impairment is caused by a specific family of drugs. Refusal or failure to comply with any of these demands would be a criminal offence, punishable by the same Criminal Code penalties as refusing a demand for a breath test for alcohol. A minimum $1000 fine would apply for a first offence Tackling Violent Crime Act P Several other problems < Body fluid testing cannot measure impairment by a drug (contrast this with alcohol testing) < Link between some types of drug use and accidents not clear (example: cannabis) < Some drugs may sometimes enhance or at least sustain performance (e.g., amphetamines) < Other civil liberties issues detention, etc. < Privacy implications Testing highly intrusive, but of little use Further uses of test results are restricted, but not substantially The real target of the Tackling Violent Crime Act? PTargets all drugs in theory, including over-thecounter and prescription drugs BUT

3 The real target We are not after the person on prescription drugs. That is it not the issue, but if that person is found to be driving erratically or becomes involved in an accident, then that person has every reason to be questioned by the police. We are after the people who are taking illegal drugs, such as marijuana and I think there are about five categories of illegal drugs. The police want to charge the people who are impaired and driving under the influence of illegal drugs. Restrictions on further uses of test results P Section 258.1: No person shall use, disclose or allow the disclosure of... the results of the analysis of a bodily substance... except... in the course of certain investigations or proceedings relating to impaired driving or provisions of the Aeronautics Act or Railway Safety Act relating to a rule or regulation made under that Act respecting the use of alcohol or a drug; P or P for the purpose of the administration or enforcement of the law of a province. [What does this mean??] Conservative Senator Terry Stratton, Debates of the Senate, February 27, Statistics on Drugs and Driving (1) PSenate Special Committee on Illegal Drugs (2002) < Between 5% and 12% of drivers may drive under the influence of cannabis; this percentage increases to over 20% for young men under 25 years of age. < This in itself does not mean that drivers under the influence of cannabis represent a traffic safety risk. < A not insignificant percentage of drivers test positive for cannabis and alcohol together. 15 Statistics on Drugs and Driving (2) P2003 Ontario Student Drug Use Survey: < In 2003, 14% of all drivers in grades 10 to 12 drove within an hour after consuming two or more drinks of alcohol at least once during the 12 months before the survey P < About one-in-five (20%) drivers in grades 10 to 12 report driving a vehicle within one hour of using cannabis at least once during the 12 months before the survey < 29% of students had been a passenger in a car at least once in the past year with a driver who was drinking, and 23% with a driver who was using drugs. 16 Drugs and Driving Other Countries Drug Statistics P Europe 15 countries have offences for drugs and driving < Five countries have zero tolerance systems (offence is committed if presence of drug is detected, whether impaired or not) < Eight countries use impairment as test for offence P Australia < Trying a zero-tolerance, random testing system P US < driving under the influence an offence in all states < H.R. 3922, Drug Impaired Driving Enforcement Act of 2004, would impose zero tolerance (not enacted yet) PLifetime use PLast year use PLast month use Which is likeley more relevant to identifying current drug problems? 17 18

4 Ontario Secondary Students P2005 Ontario Student Drug Use Survey (OSDUS) < Centre for Addiction and Mental Health < the longest ongoing study of adolescent drug use in Canada Drug Use in 2005 versus 2003 (Grades 7 to 12) Of the 24 drug measures included in the 2005 and 2003 surveys, 11 showed significant decreases among all students in grades 7 to 12: No drug showed a significant increase between 2003 and Use of all other drugs remained stable between these two survey years. More students in 2005 reported being drug-free (including alcohol and tobacco) during the past year compared to 2003 (36% vs 32%, respectively), and fewer students in 2005 reported using 4 or more drugs (8% vs 11%) (Grades 7 to 12) Of 24 drug categories examined, significant declines in 15 categories in current drug use between 1999 and 2005: cigarettes (from 28% in 1999 to 14% in 2005) [Green means legal ] alcohol (from 66% to 62%) glue (from 4% to 2%) solvents (from 7% to 5%) LSD (from 7% to 3%) hallucinogens (from 13% to 7%) methamphetamine (from 5% to 2%) heroin (from 1.9% to 0.9%) stimulants (from 7% to 5%) steroids (lifetime use; from 3.4% to 2.3%) use of any illicit drug including cannabis (from 32% to 29%) use of any illicit drug excluding cannabis (from 21% to 12%). Source: OSDUS, Alcohol 62% of students reporting use in 12 months before the survey Cannabis 26.5% (30% in 2003) Tobacco 14% Centre for Addiction and Mental Health, OSDUS HIGHLIGHTS: Drug Use Among Ontario Students , CAMH Research Document Series No. 17 (2005), at 3 23 Canadian Street Youth and Substance Use Findings from Enhanced Surveillance of Canadian Street Youth, (November 2007) P Approximately 80% of street youth reported smoking about half a pack of cigarettes daily. P In 2003, about 76% reported consuming alcohol in the 3 months prior to the interview; about 5% of street youth reported drinking daily. P Street youth who reported using one substance were more likely to report using other substances (polydrug use). P Rates of non-injection drug use are extremely high; 95% of youth reported ever using drugs by means other than injection. Marijuana was the most commonly used non-injection drug. P About 20% of street youth reported injection drug use in their lifetime. Cocaine was the most commonly injected drug. About 31% of street youth reported not always using clean injection equipment. 24

5 25 26 PImpact of legal status on long term trends?? European Monitoring Centre for Drugs and Drug Addiction, Annual report 2004: the state of the drugs problem in the European Union and Norway, p. 29 Past year use of cannabis by young adults as measured by population surveys (ages 15-34) Canadian Addiction Survey 2004 (age 15 and older) (CADS survey) Alcohol - past year (%) Cannabis - lifetime Cannabis - past year Cocaine/crack - life Cocaine/crack - past year LSD/Speed/Heroin - life LSD/Speed/Heroin - past yr Ecstasy - life 4.1 Hallucinogens - life 11.4 Inhalants - life

6 Tobacco Tobacco in Canada Source: Health Canada Almost a third of Europe's young people smoke, according to a European Report on Tobacco Control Policy published by the World Health Organisation. Only a few countries, including Ireland and Sweden, have made much progress in stamping out smoking among schoolchildren; in many countries, such as the Czech Republic and Denmark, the rate of smoking among youth has risen by more than a third since The Economist, March 2, Coffee Canadian University Students 35 36

7 University Students 2004 a. Cigarette smoking and the use of hallucinogens have declined since the survey was last conducted in 1998 b. 10% of those surveyed reporting alcohol-related assault, 9.8% reporting alcohol-related sexual harassment and 14.1% reporting that they had experienced unplanned sexual relations due to alcohol c. 31.6% of undergraduates reported at least one indicator of dependent drinking such as being unable to stop, failing to perform normal everyday activities or needing a drink first thing in the morning. d. Cannabis used by 51.4% of students during their lifetime, 32.1% during the past 12 months, and 16.7% during the past 30 days. Centre for Addiction and Mental Health (CAMH), 2004 Canadian Campus Survey 37 Canadian vs. US College students The prevalence of lifetime alcohol use (92% vs. 86%) and past year alcohol use (87% vs. 81%) is significantly higher among Canadian than U.S. students. American students had higher rates of heavy alcohol use in the past year (41% vs. 35%) and past week (54% vs. 42%). The rate of heavy alcohol use among students living at home with their parents in Canada (26%) and the United States (18%) is lower than the rates among students who live on campus (41% and 35%). Although, living with parents reduced heavy drinking more among American students than Canadian students. Harvard School of Public Health and (Ontario) Centre for Addiction and Mental Health: "More Canadian Students Drink But American Students Drink More: Comparing College Alcohol Use in Two Countries," 38 Canadian vs. US College students Drug Offences in Canada The rate of heavy alcohol use among underage students in Canada (43%) and the United States (35%) is greater than the rates among legal-aged students (29% and 30%). The drinking age in Canada is 18 or 19 years of age. The drinking age in the United States is 21 years of age. However, in both countries heavy alcohol use is more prevalent among students age 20 or less. Irrespective of the legal drinking age, younger students are more likely to engage in heavy alcohol use than older students in both countries Drug Incidents 2002 Police reported almost 93,000 incidents related to the Controlled Drugs and Substances Act in The rate of drug offences is at a 20-year high. Almost three-quarters of cannabis offences were for possession, 15% for trafficking, 12% for production and 1% for importation. The rate of incidents involving possession of cannabis rose 3% in 2002, and has now doubled since Statistics Canada, Crime Statistics, The Daily, July 24, Drug Incidents 2002 vs Cannabis 69,989 59,973 Cocaine 12,431 18,951 Heroin 7, Other drugs 9,383 12,520 Drugs total 92,590 92,255 Statistics Canada, Crime Statistics, The Daily, July 24, 2003, RCMP, Drug Situation Report

8 2005 Incidents vs. Charges (2005) More than half of the [92,255] incidents resulted in charges. Of the total number of drug-related charges filed in 2005, the majority were related to cannabis, followed by cocaine. While there were many more possession incidents compared to trafficking incidents, the percentage of trafficking incidents leading to charges was almost double that of possession. Source: RCMP, Drug Situation Report 2005 Source: RCMP, Drug Situation Report Incarceration Federal (2000) As of 31 December 2000, 5,779 convicted drug offenders were under federal jurisdiction (either serving their sentence: 1) in a federal institution or 2) on conditional release). Of the 5,779 convicted drug offenders, 2,548 were serving their sentences in federal correctional institutions (1318 of these for possession). The rest were on conditional release. The average time served by drug offenders in federal custody was 2.2 years.... [T]he average time served in custody for possession offences was 2.52 years, while it was 1.89 years for trafficking, 1.48 years for importation and 0.88 years for cultivation. Reported Incidents, Convictions, Incarceration and Sentencing in Relation to Illegal Drugs in Canada, Prepared For The Senate Special Committee On Illegal Drugs, Gérald Lafrenière, Law and Government Division, Library of Parliament, 23 May Targetting Cannabis Hamilton [W]hile statistics for most types of youth crime have generally dropped, youth involvement in drug offences is up a staggering 97 per cent since 1996, according to a report presented to the Hamilton Police Services Board last night. "It's important to note that the vast majority of this involvement is for simple possession," youth services co-ordinator Sergeant Will Mason told the board. Mason said 265 out of 320 youth caught had very small amounts of marijuana. "A lot of that is attributable to an increase in thorough new drug sweep programs."... While serious and repeat youth offenders are sent to face a judge, "we're trying to divert the majority of youth out of the criminal justice system and into intervention and supports," Mason said. [O]f the 50 sent to the specific youth drug diversion program, only one was re-arrested on a drug charge. YOUTH DRUG OFFENCES SOAR, BUT FEWER TEEN CRIMES VIOLENT, Hamilton Spectator, February 26, Enforcement 47 Auditor General of Canada,

9 Auditor General P About 95 per cent of federal expenditures that address illicit drugs (almost $500 million each year) were used for supply reduction (enforcement or interdiction) Reduction in percentage of resources spent on enforcement since AG Report P RCMP, Correctional Service of Canada and Canada Customs and Revenue Agency spent most of this money P RCMP drug enforcement efforts largely done by two groups: Drug Enforcement Branch 886 staff and Integrated Proceeds of Crime Initiative about 415 staff P Federal Prosecution Service 300 in-house counsel, 800 agents: drug prosecutions constitute most of the work 49 Canada s 2003 renewed drug strategy an evidence-based review, Canadian HIV/AIDS Policy and Law Review, December But... PSince 2006 election, government emphasis on law enforcement component has increased Auditor General Sales and Seizures PGovernment estimate of annual sales of illegal drugs: $7 billion to $18 billion; value of assets seized $32 million in PCCRA drug seizures 1999 estimated street value $351 million (of a trade worth $7 billion to $18 billion annually) PThe most serious offence by 17 per cent of offenders under control of CSC is drug-related (3400 individuals) Drugs and Crime PDrug-related crime PCrime caused by prohibition Drug-related crime P Psychopharmacological crimes: crimes committed under the influence of a psychoactive substance P Economic-compulsive crimes: crimes committed in order to obtain money (or drugs) to support drug use. [also called acquisitive crimes] P Systemic crimes: crimes committed within the functioning of illicit drug markets, as part of the business of drug supply, distribution and use. P Drug law offences: crimes committed in violation of drug (and other related) laws. < European Monitoring Centre for Drugs and Drug Addiction, Drugs in Focus (2nd issue, 2007) 53 54

10 Psychopharmacological Crime Although psychopharmacological violence is most strongly associated with alcohol use, illicit drug use, and particularly the use of stimulants, may lead to criminal behaviour by exacerbating existing psychopathological and social problems, or by increasing the risk of paranoid or psychotic episodes.... It is also important to include in this category crimes induced by the victim s own drug use. European Monitoring Centre for Drugs and Drug Addiction, Drugs in Focus (2nd issue, 2007) Psychopharmacological Crime Much of the existing research supports the view that there is a strong association between alcohol intoxication and psychopharmacologically induced crime, especially violence. Following a long way behind alcohol in this regard are the stimulants cocaine/crack and amphetamines. The use of opiates and cannabis is usually considered to be unlikely to lead to psychopharmacologically induced crime, and may even contribute to reducing it in some individuals, as these drugs (and tranquillisers) tend to reduce violent impulses and aggression. However, irritability associated with the withdrawal syndrome, as well as related mental health problems, may be linked to increased violence. European Monitoring Centre for Drugs and Drug Addiction, Drugs in Focus (2nd issue, 2007) Duke and Gross crime caused by prohibition Duke and Gross PNine crime waves caused by prohibition PDoes not include psychopharmacological crimes, since these occur whether or not there is prohibition 57 PNine crime waves caused by prohibition: direct violations of drug laws crimes to get drug money systemic violence (including innocent bystanders) proliferation of deadly weapons (defensive purposes too) corruption of criminal justice system undercover crime police perjury, obstruction of justice vigilante action social deterioration 58 Duke and Gross P [V]irtually all of the drug-related crime would not exist without drug prohibition. It is also clear that the lives of everyone in America would be immensely safer if drug prohibition were repealed.... We can save our cities or we can maintain our war against drugs. We cannot do both. At 121 Duke and Gross Freedom Costs PLoss of important freedoms because of pursuit of war on drugs privacy (US Fourth Amendment) attacks on and corruption of defence counsel forfeiture (Donald Scott case) corruption of the court system use of informants spillover effect PCanadian context 59 60

11 Privacy the informer society Since [Edmonton police Det. Maurice Brodeur s] Report a Drug House program was formally launched in June, it's received tips on a staggering 250 suspected drug dens. "So far, we've looked into 125 of them," he says. "We're getting to the rest as quickly as we can."... Brodeur hasn't even been able to come up for air long enough to put together any stats. He can't say for certain how many of the 125 tips they've checked out have turned out to be bona fide, or how many drug houses have been shut down. Collateral freedom costs consequences of cannabis convictions UNITED STATES PA conviction for a marijuana offense results in two different categories of punishment: (1) the punishment directly imposed by the judge, and (2) a range of collateral sanctions that are triggered by the conviction. Driving out Drug Dealers, Edmonton Sun, July 9, Collateral freedom costs UNITED STATES P In most cases, a felony marijuana conviction (for example growing marijuana) triggers the same collateral sanctions as those triggered by a conviction for murder, rape, or kidnapping. In many cases, the collateral sanctions for a marijuana-related conviction actually exceed those for a violent crime. P Collateral sanctions triggered by a marijuana conviction can include: revocation or suspension of professional licenses, barriers to employment or promotion, loss of educational aid, driver s license suspension, and bars on adoption, voting and jury service. For people who depend upon public assistance, a marijuana conviction can trigger a bar on receiving food stamps and restrict access to public housing. In some states, these sanctions continue for life. Donald Scott < Richard Glen Boire, Life Sentences: The Collateral Sanctions Associated with Marijuana Offenses, Center for Cognitive Liberty & Ethics (2007) at