LEAP’s position on the proposed criminalization of salvia divinorum
On behalf of LEAP, I have submitted the following comments to the federal government in response to Health Canada’s intention to add salvia divinorum to Schedule III of the Controlled Drugs and Substances Act.
Efforts to discourage people from using potentially harmful drugs can be accomplished through policies which discourage criminal black markets. Drug control is best done through public education, regulatory controls, and cultural rewards for abstinence.
Prohibitionist policies using the criminal law and punishment are counter-productive because they create more social problems than those caused by the pharmacological properties of the drugs themselves. (The best example is marijuana which has not caused a single fatality but the resultant drug trade from its prohibition has created enormous human suffering.)
LEAP requests that the government not include salvia divinorum in Schedule III for the same reasons that other psychoactive substances should not be criminalized. These reasons include, but are not limited to the following:
1. Organized crime flourishes in a legal environment of prohibition by providing goods which the state makes illegal to possess or sell. Black markets, crime and the violence associated with those clandestine markets are the consequences of criminal law (British Columbia Centre for Health Excellence, March 2010). The lessons of Canadian efforts to prohibit alcohol sales in the 1920s, coupled with more recent experiences with trying to control black markets in tobacco products should be instructive to policy makers (Beare, 2002; Breton, Richard, Gagnon, Jacques, & Bergeron, 2006).LEAP believes that our current policies of prohibition support organized crime and its associated violence in our communities. These are the unanticipated consequences of the failed war on drugs.
2. The pharmacological properties of salvia divinorum are unlikely to cause harms that exceed legal drugs such as alcohol and tobacco. According to Health Canada, salvia divinorum (SD) is low in toxicity and addictive potential. It currently meets the definition of a natural health product under Natural Health Product Regulations (Health Canada, 2011b). However, the federal agency proposes adding SD to Schedule III of the Controlled Drugs and Substances Act (CDSA) “to protect the health and safety of Canadians, particularly youth”. The assumption that the criminalization of psychoactive substances leads to protecting youth has not been proven in our legislative efforts, that is, beyond the benefits that can be delivered through education and non-criminal regulation.
3. LEAP finds it unconscionable that Health Canada recommends that salvia divinorum be included in Schedule III of the Controlled Drugs and Substances Act. The well documented physical, psychological and social harms of a prison sentence are greater than the pharmacological effects associated with salvia divinorum, in addition to the stigma of having a criminal record. Imprisonment is a known, avoidable health risk from which Health Canada should be protecting Canadians. Education and regulation are preferable social policies than locking people in jails for their choice of recreational drug.
Health Canada’s proposal implies that the threat of criminal sanctions will act as a deterrent to would-be users of salvia divinorum. We believe it is Health Canada’s obligation to prove that criminal penalties lead to lower levels of drug demand, otherwise the Department is advocating an unknown or unknowable “cure” for a problem which they alone have identified. There are existing controls for salvia divinorum and no evidence that these controls are ineffective. Health Canada recommends criminalizing a substance in the absence of evidence that the existing controls are failing to protect Canadians.
4. The reasons provided by Health Canada for criminalizing salvia divinorum are based on speculation and inadequate information.
Speculation: It is one thing to claim that a substance is harmful based on measured outcomes, but quite another to claim that it has the “potential for abuse”. We hope that Health Canada does not recommend the criminalization of everything which it judges to have a “potential for abuse” because that list of substances can become very lengthy.
Inadequate information: Health Canada has not provided Canadians with research to support this claim on their website: “Scientific reports also suggest that it [salvia divinorum] has the potential for abuse.” Canadians must be able to access to the scientific research that Health Canada develops its policies to judge the merits of this recommendation.
Health Canada’s position is that because this substance has “abuse potential”, it requires criminal penalties. However, the same claim can be directed toward legal substances such as sugar, caffeine, fatty foods or licit drugs such as alcohol and tobacco.
5. Where’s the problem? Health Canada has not established a compelling case that there is a problem with Canadians using salvia divinorum, let alone one that requires criminal penalties. A tiny proportion of Canadians are said to use, or have used, salvia divinorum. Citing data from the Canadian Alcohol and Drug Use Monitoring Survey (CADUMS), Health Canada reports that only 1.6% of survey respondents used salvia divinorum while .02% report using it in the past year.
6. The measure upon which Health Canada depends to assess alcohol and drug consumption patterns and outcomes uses non-representative samples. The CADUMS survey uses random-digit dialing to contact just over 1,000 persons per province. However, fewer than half of those contacted (44.7%) agreed to complete the entire CADUMS survey. We do not know the drug and alcohol consumption patterns of 55.3% of Canadians selected for inclusion in this survey. The Yukon, Nunavut and Northwest Territories are excluded.
We should be skeptical of research findings which use telephone interviews to ask Canadians to truthfully answer questions about their illicit drug consumption.
7. The harmful consequences of criminal penalties to young people exceed the demonstrated harms of salvia divinorum. A criminal record will affect job opportunities and international travel for the rest a person’s life, even with a pardon under the Criminal Records Act.
8. Young people can be encouraged to make healthy lifestyle choices through education. Canada’s increasingly level of regulatory controls on tobacco have been followed by fewer numbers of youth starting smoking. More people than ever are non-smokers, an outcome which has occurred all without criminalizing the product (Reid & Hammond, 2011). The message that tobacco is a health risk is reaching Canadians through changes to advertising, packaging, sales and display. It appears to be working.
We ask that Health Canada adopt and promote policies, specifically for salvia divinorum which do not depend upon the threat of criminal penalties.
We believe that there is little or no evidence that salvia divinorum represents a “drug problem” in a magnitude worthy of criminal law intervention. Canadians can be deterred from making unhealthy choices through education and public awareness, as has been done with tobacco products. We strongly oppose criminal penalties for salvia divinorum because the proposed penalties are more harmful than the pharmacological properties of the drug.
Beare, M. (2002). Organized corporate criminality – Tobacco smuggling between Canada and the US. Crime Law and Social Change, 37(3), 225-243.
Breton, E., Richard, L., Gagnon, F., Jacques, M., & Bergeron, P. (2006). Fighting a Tobacco-Tax Rollback: A Political Analysis of the 1994 Cigarette Contraband Crisis in Canada. Journal of Public Health Policy, 27(1), 77-99.
British Columbia Centre for Health Excellence. (March 2010). Effect of Drug Law Enforcement on Drug-Related Violence: Evidence from a Scientific Review, from http://www.cfenet.ubc.ca/publications/effect-drug-law-enforcement-drug-related-violence-evidence-scientific-review-icsdp-repo
Health Canada. (2011a). Canadian Alcohol and Drug Use Monitoring Survey: Summary of Results for 2009 – Health Canada. Volume. Retrieved from http://www.hc-sc.gc.ca/hc-ps/drugs-drogues/stat/_2009/summary-sommaire-eng.php#salvia
Health Canada. (2011b). It’s Your Health – Salvia divinorum. Retrieved from http://www.hc-sc.gc.ca/hl-vs/iyh-vsv/life-vie/salvia-eng.php#ho
Reid, J. L., & Hammond, D. (2011). Tobacco Use in Canada: Patterns and Trends, 2011 Edition. Waterloo, Ont: University of Waterloo.
 The report states that “there has been a substantial drop in smoking in Canada: about half of Canadians smoked in 1965, compared to less than 2 out of 10 in 2009” (Reid & Hammond, 2011, p. 14).
 All direct quotes and references to Health Canada are taken from their website, “Salvia Divinorum” (http://www.hc-sc.gc.ca/hl-vs/iyh-vsv/life-vie/salvia-eng.php#ho) .
 Health Canada states that “[p]rovinces have the option to buy additional interviews to allow for more detailed analysis of results within their jurisdiction. For the 2009 calendar year, the province of British Columbia arranged for their sample to be increased to 4,009. This resulted in a final sample of 13,082 respondents in 2009” (Health Canada, 2011a).