Pubdate: Sun, 01 Jan 2017
Source: Walrus, The (Canada)
Copyright: 2017 The Walrus Magazine, Inc.
Author: Melvyn Green
Page: 36
Referenced: Le Dain Commission of Inquiry into the Non-Medical Use of


How a renowned Canadian feminist popularized our racist war on drugs

Detective Joe Ricci and his partner, Alex Sinclair, were out on a routine
bust in Vancouver's Chinatown. It was 1916, and Ricci and Sinclair were
front-line officers in the war on opium. The drug had been criminalized in
Canada eight years earlier through the introduction of the Western world's
earliest drug prohibition law, and the Vancouver police department had
been chasing down traffickers ever since. Ricci was a familiar sight in
the neighbourhood. He had made such a big arrest in 1913 that for days
after, the Vancouver Daily World reported, "not a light [was] to be seen
and the ringing noise of the chuck-a-luck dice [had] stopped." But the
gamblers and the opium smokers were soon back, and Ricci was out
patrolling the streets again.

This time, something went wrong. As Ricci and Sinclair moved in to make
the arrest, one of the smokers threw an opium lamp at them-the den erupted
into flames, trapping them. Sinclair grabbed an axe and hacked his way
through the wall as smoke filled the room. The two cops narrowly escaped.

By 1920, with the enactment of a new, tougher law, news stories of police
pursuing Chinese opium users and pushers had become commonplace. "Chinks
Pay Heavily for 'Hitting Pipe,'" read a headline in the Prince George
Citizen that December. The local chief of police, they wrote, "has been
busy of late in the prosecution of the heathen Chinee for dallying with
the forbidden opium. Under the new Opium Act it is perilous for an
Oriental to be found in possession of this drug either for purposes of
smoking, chewing or snuffing up the Chinese nose." But no one was more
influential in drawing a causal nexus between race, crime, and drugs and
then embedding that connection in the public imagination than "Janey
Canuck," who shocked Canada with a series of articles published in
Maclean's that same year.

Janey Canuck was the pen name sometimes used by Emily Murphy, an
Edmonton-based writer and temperance advocate who was also a pioneering
feminist and the first female magistrate in the British Empire. Murphy was
the lead instigator of "The Famous Five," a group of five women, who, in
1927, launched the petition that began the celebrated Persons Case, which
argued that women were indeed "persons" under the British North America
Act and therefore eligible to serve in the Canadian Senate. Although her
advocacy on behalf of women's rights is the most celebrated part of her
legacy, her role in the criminalization of drugs, including marijuana, has
been no less important. Her anti-drug crusade is a classic illustration of
moral entrepreneurism. Drugs were bad, but more evil still in her calculus
were people of colour, who used them to subjugate white Canadians. Murphy
lent her authority to and popularized a racialized theory of drug use that
was used to justify the expansion of dr! aconian legislation in the early
1920s. She was not the first public figure to exploit nativist prejudice
to advance an anti-narcotics agenda, but she, along with her predecessor
Mackenzie King, was among the most significant in the moral transmutation
of drugs from benign private indulgence to public evil.

The Opium and Narcotic Drug Act of 1929, which was largely a realization
of Murphy's legislative ambitions, remains to this day the framework for
Canadian drug laws. Prime Minister Justin Trudeau has promised that the
latest iteration, the Controlled Drugs and Substances Act, will soon be
significantly amended. As we wait for the passage of these belated
reforms, it is worth examining why it has taken so long for reason to
replace prejudice when it comes to drug policy. Our misguided approach
began with the story of Emily Murphy, and the story that she told Canada-a
toxic tale of racism and moral panic. The resulting criminalization has
long been subject to moral reconsideration. Only now does it seem ripe for
legal reform.

There were two populations of North American opiate users in the late
nineteenth and early twentieth centuries. The larger, by far, was composed
of many hundreds of thousands of middle-aged, middle-class white Americans
and Canadians dependent on an unregulated market in opium-fortified
remedies and cure-alls such as laudanum. Those addicted to these patent
medicines were chiefly women. They were regarded as suffering from a
medical misfortune or personal vice-these addictive elixirs were not
regarded as a menace to society, unlike alcohol, which was increasingly
viewed with suspicion.

Those members of Chinese immigrant society who smoked opium made up the
second and much smaller using group in Canada. Initially welcomed as a
cheap source of labour, the Chinese in British Columbia became objects of
hostility as they found themselves competing with an influx of white
workers for a dwindling number of jobs. Canadians increasingly demanded
that Chinese immigration be restricted or curtailed, and beginning in
1885, a "head tax" (graduated from $50 to a prohibitive $500 by 1904) was
imposed on every new migrant from China.

Continuing job insecurity and local newspaper provocations led to
anti-Asian demonstrations in downtown Vancouver in September 1907.
Full-scale riots ensued. Mackenzie King, then deputy minister of labour,
was dispatched to Vancouver to conduct a one-man inquiry and provide
reparation to those Asians, both Chinese and Japanese, who had suffered
property and business losses during the rioting. King was affronted when
he received claims from several provincially licensed Chinese opium
merchants. Moving well beyond his mandate, and guided by local anti-opium
advocates, King undertook an unofficial investigation into the opium trade
in BC. He was quickly satisfied that opium smoking "was making headway,
not only among white men and boys, but also among women and girls." In
King's view, set out in his report to Ottawa, remaining indifferent to the
scope and gravity of "such an evil" in the country would "be inconsistent
with the principles of morality which ought to govern the co! nduct of a
Christian nation." He pressed for criminal prohibition of the importation,
manufacture, and sale of opium. Only that destined for "medicinal
purposes"-that is, to satisfy the cravings of white consumers-was to be

Two and a half weeks after King submitted his report, Canada's first
criminal narcotics legislation-which reflected all of his proposals-was
drafted. It then passed without debate in the House of Commons and was
soon given royal assent. Anti-Asian sentiment, particularly that emanating
from Vancouver, undoubtedly helps explain the absence of any opposition.
No other Western nation had criminally prohibited the non-medical
distribution of narcotics; similar American federal legislation, the
Harrison Narcotic Act, was not passed until 1914. The penalties set out in
the 1908 "Act to prohibit the importation, manufacture, and sale of Opium
for other than medicinal purposes" included very stiff fines and
imprisonment for up to three years. (In contrast, the Proprietary or
Patent Medicine Act, tabled the same year to regulate the contents and
labelling of narcotic medications, carried a maximum penalty of a $100
fine or twelve months in prison-despite the fact that such medication! s
carried a greater risk of drug addiction.)

King's fingerprints are all over the next several generations of drug
legislation. The Opium and Drug Act of 1911 added cocaine and morphine to
the schedule of illicit substances. Mere possession of a prohibited
substance was made a criminal offence, extending the reach of the law
beyond traffickers to addicts and casual opium smokers. The amended Opium
and Narcotic Drug Act of 1920 further amplified both the scope and the
harshness of the criminal law. The RCMP was formed the same year and
became both the policing arm of the federal Health Department and Canada's
first centralized drug enforcement agency. Further amendments in 1921 and
1922 increased maximum penalties to seven years and granted the police
extraordinary powers of search and seizure.

Those who did express occasional disquiet about the proposed erosion of
civil liberties were mollified by assurances that the rigid sanctions
would not be visited on "ordinary citizens"-that is, non-Chinese
Canadians. The Senate agreed that "dwelling houses" should be exempt from
warrantless searches. Police enforcement efforts, the Senate reasoned,
would not be compromised by the amendment: Chinese users and dealers, the
true focus of these efforts, tended to live-unlike law-abiding
Canadians-in their stores or in contiguous shacks. The health minister
reported to Parliament that nearly three-quarters of the convictions
secured between 1921 and 1922 had involved "Chinamen." The possibility
that such measures might someday target their own grandchildren appears
never to have occurred to Canadian legislators.

Some civic groups condemned the non-medical use of opiates and cocaine,
but these drugs were secondary players: it was alcohol that the vocal and
well-organized temperance movement identified as the fountainhead of sin.
Although the legislators who made frequent enhancements to the criminal
law routinely invoked the horrors of Chinese drug peddlers, the general
public outside of Vancouver and Victoria was little concerned with the
subject of drugs. That changed in the 1920s, when Maclean's magazine
commissioned a series of sensationalist articles by Emily Murphy. The
articles were later expanded and republished as a book, The Black Candle,
in 1922. While Murphy's magnified sense of her own crusading importance
has undoubtedly contributed to her notoriety, her influence cannot be
denied. Catherine Carstairs, a professor of history at the University of
Guelph, has tried to deconstruct Murphy's inflated stature. "Nonetheless,"
she allows, "Murphy's articles did mark a turning p! oint, and her book,
which drew heavily on the Vancouver [anti-drug]
campaign . . . brought the Vancouver drug panic to
a larger Canadian audience."

The Black Candle was dedicated to reversing what Murphy portrayed as
profound public indifference to the widespread consumption of drugs: "It
may be stated without fear of error," she writes, "that the lack of public
sentiment is the chief reason for the halting gait of the law on its way
to enforcement." Governments were equally negligent, she contended,
because they "have failed to grasp the seriousness of the situation," and
"the sums allotted to dealing with the drug traffic have been entirely
inadequate-indeed pitifully so." Her articles and book had the desired
effect. They attracted widespread media attention, galvanized a previously
apathetic citizenry, and enabled a broad expansion of the scope and
severity of drug control legislation. Maclean's was so pleased with the
moral panic Murphy's first article triggered that an editor's note
encouraged newspapers and the public to join the crusade: "It is only
through an aroused consciousness of the gravity of the situatio!
n . . . that the menace can be successfully
grappled with" and "much more stringent prohibitory laws" secured.

A firm subscriber to the contagion theory of social pathology, Murphy
urged drastic measures-including mandatory imprisonment, deportation, and
whipping-to suppress the "evil" of drugs, as "a single drug user in a
community should be considered a menace to the whole of it." All of
Murphy's legislative proposals were soon reflected in the criminal law.
(Murphy also recognized that an effective solution required therapeutic
initiatives, but her recommendations in the area of addiction treatment
were entirely ignored by both Parliament and the Department of Health.)

Some apologists claim Murphy was simply a product of her times. It is true
that she did not invent racism: the indignities visited on Chinese,
Japanese, Sikh, and black immigrant populations, among others, were but a
natural, if less murderous, extension of the same systemic discrimination
experienced by Canada's Indigenous peoples. Racism is baked into Canada's
DNA, and Murphy both understood and shared the values it promoted. She
struck a deeply resonant chord as she exploited racial bigotry to advance
her anti-drug campaign. "There is," she writes, "a well-defined propaganda
among the aliens of colour to bring about the degeneration of the white
race." The role of villain in her accounts was uniformly played by
"foreign" persons-most frequently Asian ("Chinamen"), sometimes black
("Negroes"-"many [of whom] are obstinately wicked persons") and, on rarer
occasions, "Jews." Lest her point be lost on slow readers, The Black
Candle was illustrated with lurid photographs of whi! te women reclining
in opium dens with black men.

But when it comes to drug policy, Murphy was the author of her times, not
its historical artifact. Murphy did not just sign on to social-justice
issues; she publicly championed them, promoting eugenics and, more
specifically, the coerced sterilization of "mental defectives." Murphy's
bigotry toward persons of colour was at least as strong as her commitment
to the cause of female equality. Nor were her racist attitudes culturally
inevitable. Helen Gregory MacGill, for example, was Canada's third female
jurist and Murphy's contemporary. Like Murphy, she was a popular national
journalist and ardent feminist. Unlike her, MacGill never incited racial
prejudice to advance her concerns about the exploitation of women.

To dismiss Murphy's fulminations as little more than colourful background
to the intensification of Canada's drug laws would be to do a disservice
to both the power of her rhetoric and her historical impact. More than any
other single source, Murphy's puritanical, anti-immigrant writings were
responsible for promoting the "dope fiend" mythology and fuelling the
moral panic that informed drug legislation for decades. Other stakeholders
such as the RCMP, the federal Department of Health, and anti-vice agencies
played their part in the campaign, but it was Murphy's celebrity and her
inflammatory advocacy that set the table for the punitive excesses that
followed. As Brian Anthony and Robert Solomon note in the introduction to
the re-publication of her book in 1973, "The Black Candle, which now may
be dismissed as grim humour or condemned as outright propaganda, was a
landmark both in the life of its prominent crusading author and in the
history of Canadian drug legislation."

Most important for the current debate is the fact that Murphy was the
first public figure to draw attention to "Marahuana-The New Menace," as
one of her chapter titles put it. That the recreational use of marijuana
was virtually unknown in Canada did not concern Murphy, who pressed her
case by favourably quoting Charles A. Jones, a Los Angeles police chief:

Persons using this narcotic, smoke the dried leaves of the plant, which
has the effect of driving them completely insane. The addict loses all
sense of moral responsibility. Addicts to this drug, while under its
influence, are immune to pain . . . While in this
condition they become raving maniacs and are liable to kill or indulge in
any form of violence to other persons, using the most savage methods of

Murphy failed to note that Jones's tenure as the chief of the LAPD lasted
less than six months, and she selectively cited the supportive claims and
opinions of like-minded advocates in Britain, the US, and Europe. Murphy,
however, made no mention of the preeminent study of the time, the report
of the Indian Hemp Drugs Commission-although she would almost certainly
have been aware of it. A model of early public inquiries, the
British-Indian commission was created in response to a question raised in
the British Parliament about the deleterious effects said to be associated
with "hemp drugs" (marijuana and hashish) in imperial India. The
commission released its 3,281-page report in 1894. The null
hypothesis-that cannabis consumption led to insanity-was readily debunked.
Indeed, the commission concluded that moderate cannabis use "is
practically attended by no evil [physical] results at all," "produces no
injurious effects on the mind," and "produces no moral injury whatever."
T! hey also concluded that, "for all practical purposes it may be laid
down that there is little or no connection between the use of hemp drugs
and crime." Murphy, though, was not going to let evidence get in the way
of her crusade.

Absent scientific research, public dialogue, or any challenge from a cowed
medical community, it is perhaps not surprising that in 1923, only a year
after The Black Candle was published and fifteen years before US federal
legislation followed suit, cannabis joined opium, morphine, and cocaine on
the schedule of prohibited drugs. Tens of thousands of Canadians have been
jailed and hundreds of thousands more burdened with criminal records as a
result. Yet not a word of Parliamentary debate accompanied this amendment.

Murphy was far from unaware of her importance, and she was not shy when it
came to self-promotion. In 1923, she nominated herself for a Nobel Prize
for her anti-drug efforts. As for the pending scourge of marijuana about
which she warned a blissfully naive nation-the first reported police
seizure did not occur until 1937.

Canadian drug legislation was consolidated and then renamed the Narcotic
Control Act in 1961. The penalties for drug-related offences were by then
much more severe than those that had been in force in the wake of The
Black Candle. Cannabis remained scheduled with cocaine and
pharmacologically true narcotics such as morphine and heroin. This
persistent misclassification has had significant consequences. From 1961
to 1977, the share of convictions involving opiate narcotics declined from
98.3 percent to 1.3 percent, while convictions relating to cannabis
increased dramatically. A penal regime intended to deter the distribution
and use of arguably pernicious substances was overwhelmingly visited on
consumers of marijuana, which, even by the late 1960s, was generally
recognized as relatively benign.

At the same time, drugs historically confined to criminal and ghettoized
communities spread to college-age populations-as did arrests, convictions,
and imprisonment. Mounting public and media pressure prompted the federal
government to strike a public inquiry in 1969. The Commission of Inquiry
into the Non-Medical Use of Drugs, popularly known as the Le Dain
Commission, was charged with investigating this phenomenon and making
recommendations. Drawing on empirical evidence and applying rational
measures of harm, the commission concluded in its final report that the
criminalization paradigm was unjust, unfair, and ultimately unsound. A
severely penal approach to drug use was, it reasoned, a failed social
policy that ruined far more lives than it salvaged, while enabling the
very criminality it was intended to repress. Members of the commission
also recommended that simple marijuana possession be decriminalized and
that the penalties for production and distribution be dramatic! ally

The work of the Le Dain Commission attracted an unusual degree of
attention from the media and the public, and there was a palpable sense
that legislative reform would follow the release of the commission's final
recommendations. They have had, however, little effect on the statutory
landscape over the intervening forty-plus years. A similar Senate inquiry
begun in 2000, the Senate Special Committee on Illegal Drugs (or Nolin
Committee), fared no better. Its bipartisan recommendations-including that
cannabis be licensed for distribution to persons over sixteen and that all
those ever convicted of possession of the drug should receive amnesty-were
greeted with equally profound official silence.

Simple possession of cannabis remains a criminal offence, and one that is
widely enforced. Nearly 50,000 cases of cannabis possession were recorded
in 2015-more than half of all criminal drug incidents. And despite popular
sentiment and the direction of scientific research, penal sanctions have
only intensified over the past decade. Merely passing a joint between
marijuana users remains a criminal offence subject to a term of

Still, a number of recent developments signal that reason will ultimately
triumph over morality. Cannabis is now recognized as medically beneficial
for some conditions. A growing number of authority figures in the fields
of science, medicine, law, and law enforcement have publicly sided with
reform positions. And, of course, there is the shared experiential reality
of Canadian consumers. Public-opinion polls mirror these developments:
support for the decriminalization of personal possession of cannabis rose
from 55 percent in 2003 to 71 percent in 2014. Set against this
background, the Liberal Party's 2015 campaign promise to legalize cannabis
once elected was neither radical nor politically risky.

The racist origins of Canadian drug legislation should not be forgotten.
As the Le Dain Commission noted in its 1970 Interim Report: "There can be
no doubt that Canada's drug laws were for a long time primarily associated
in the minds of its legislators and the public with general attitudes and
policy towards persons of Asiatic origin." But what the Le Dain Commission
neglected to consider is that racial inequities continue to flow from our
reliance on a prohibitionist model of drug control.

Street-level narcotics users and their hand-to-hand suppliers are those
most exposed to law enforcement. Their repeated arrests, and the longer
sentences that accompany each conviction, funnel them into a revolving
door of drug-fuelled criminality. Inevitably, this population is
disproportionately poor, marginalized, recently immigrated, or
relocated-in short, it is made up largely of people of colour, including
Indigenous persons, who make easy pickings for the police. The
vulnerability of racialized Canadians to harsh sanctions is largely a
product of institutionalized poverty and despair: structural
discrimination with intergenerational consequences.

Race maintains its power to kindle a connection between drugs and crime in
the public imagination. The explicit imagery that ushered in the
criminalization of drugs a century ago is now filtered through the barely
coded language of class, neighbourhood, and country of origin. "Carding,"
an offensive police procedure founded on racial profiling, would never be
tolerated if it targeted white communities. The role of race in the
crafting of drug policy is a not an historical aberration. Drug laws
continue to give cover to systemic racism, and the racially uneven effects
of their application must be addressed in any future legislation.

While the liberals may be tempted to take the middle ground, the
architects of any new drug-control model need to understand that an
assessment of harm must include not only the effects of drugs on their
users, but also the broad compass of social harms associated with
alternative drug-control regimes. These range from sustaining a criminal
industry and financing its expansion to undermining confidence in the law
and other democratic institutions. Meanwhile, the artificially inflated
cost of prohibited drugs drives addicts to commit collateral crimes such
as burglaries, muggings, petty thefts, and prostitution. Overdoses and the
transmission of disease through shared needles are additional, and
sometimes fatal, downsides of continued prohibition. Concerns about
stigmatization and police intervention impede access to even voluntary
treatment and counselling.

The war against drugs has really been a war against people, many of them
barely past childhood. The Le Dain Commission, like the Nolin Committee a
generation later, understood this. Political will has almost caught up
with their forceful pleas for the application of reason, and their sound
judgment will be vindicated by the pending legalization of recreational
cannabis. The recognition that the problems associated with dependence on
"hard" drugs are better approached as matters of health than criminal
policy will perhaps eventually also find purchase. These days, drug
dependence is increasingly seen as a matter of personal or circumstantial
misfortune rather than a moral fault. The current opioid epidemic and the
gentrification of addiction have contributed to this redefinition. The
closer the user demographic is to the levers of privilege and power, the
more likely the problem is to be framed as one that requires doctors
rather than police.

While drug use is inevitable, a dysfunctional approach to its management
is not. We need to recognize both our regulatory mistakes and their
consequences. We need to craft laws that are grounded in medical and
social science, that favour education over punishment, that urge
inveterate users to adopt safer drugs and methods of consumption, that
sustain personal and public health, and that criminally target only those
traffickers who exploit the young and vulnerable. The minister of health,
Jane Philpott, said nearly as much when she told the United Nations last
April that Canada intended to "introduce
legislation . . . that ensures we keep marijuana
out of the hands of children and profits out of the hands of criminals."
Logic, science, and good sense all tell us that this noble commitment
should inform any discussion about the regulation of recreational drugs.
Abstinence is a delusional and unenforceable policy goal; on the other
hand, the minimizatio! n of harm is a socially worthy and achievable

Progressive policy initiatives require courage, collective intelligence,
and meaningful consultation with both user and therapeutic communities.
The vested interests of law enforcement must cede to those of
public-health professionals. Dogma, from whatever side, needs be replaced
with empiricism, the experience of reformist nations such as Portugal and
Uruguay, and sensitivity to the historical implications of the task.
George Bernard Shaw, another contemporary of Emily Murphy, expressed the
nature of the challenge thus: "It is much easier," he said, "to write a
good play than to make a good law. And there are not a hundred men in the
world who can write a play good enough to stand daily wear and tear as
long as a law must."

We are on the cusp of a defining moment in our nation's social
contract-one that favours science over ideology and public health over a
reflexive resort to the criminal law. So long as the mantra of harm
reduction remains central, we may, at least in this one small domain,
achieve a measure of personal and social justice.

- --------------------------------------------------------------

This appeared in the January/February 2017 issue.

Melvyn Green is a criminal jurist and legal commentator.

Sam Island ( has drawn for the New York Times, Monocle,
The Atlantic, and Time Magazine.
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