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: (Clay, Chris)






Affidavit Of  Eugene Oscapella

I, EUGENE OSCAPELLA, of the City of Ottawa in the Province of Ontario, MAKE 

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 

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 
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)