By Lorne Sabsay

As more and more cases involving 3, 4-methylenedioxymethamphetamine (MDMA) wind their way through the court system, there is a very real danger that convicted users and traffickers of this drug (also known as ecstasy) will face inordinately steep sentences owing to ignorance and conjecture. In reviewing materials filed by the Department of Justice in support of higher ecstasy sentences, it is apparent that some judges are having the scientific wool pulled over their eyes.

The unfortunate result of sentencing on the basis of such materials is that an increasing number of judgments incorporate misinformation thus providing "judicial recognition" for unproven allegations and rank speculation. While such speculation may be useful in determining the relative merits or dangers of designer drugs it ought not to be the basis for ever-increasing deprivation of an offender's liberty.

While no one doubts that there is a potential for harm from the ingestion of any illicit substance, there is a big difference between a realistic appraisal of risk and moral panic. "Moral panic" is a term which academics have used for forty years to describe a public debate that revolves around exaggerated fears, rather than around rational discussion of a genuine new problem. Dr. Philip Jenkins, a professor of history and religious studies at Pennsylvania State University, testified about this problem at the inquest into the death of Allen Ho in May of 2000.

As reported in the National Post, Dr. Jenkins testified that moral panics have occurred over drugs in the United States regularly since the 1950s. "They usually concern issues that come out of thin air, he said, and those issues are presented in a way that is far out of proportion to evidence or reliable statistics. Where such panics involve drugs, particular drugs are portrayed as more destructive or addictive than they actually are, and reports tend to use loaded words such as epidemic. Stories about a single high-profile death can also be portrayed as a typical case … The existence of a moral panic doesn't mean that no genuine concerns exist, he explained, but the concept can help cut an issue down to size."

In order to try and reign in the current moral panic over ecstasy, it is important to understand something about what it is and how it works. This leads to a more realistic appraisal of its known risks as opposed to speculative panic and hyperbole.

This article is not an argument for the legalization of MDMA or any other drug. Nor does it purport to represent all current scientific and/or legal information about MDMA or ecstasy. Such articles would be thousands of pages long. Rather, this article is about learning some perspective so that our clients do not pay the price for panic masquerading as science.

Conclusions

In a sense, there really are no conclusions. That is the main point of this article. The science is unclear and at times prosecutors are making pseudo-scientific claims and defence counsel should do their own homework before accepting such claims as fact.

There IS research that suggests that MDMA, like any drug, should be treated with caution and may very well be harmful. Scientific and even moral debate is a healthy thing in the classroom, the health boards, the legislatures and the laboratory. A debate, however, is not a satisfactory excuse for increasing the period during which a person will be deprived of their liberty.

The Supreme Court of Canada ruled in R. v. Gardiner (1982) 68 C.C.C. (2d) 477, that the Crown must prove all aggravating factors beyond a reasonable doubt in a sentencing hearing. Given the "moral panic" currently enveloping the subjects of ecstasy and raves, it is essential that we don't let pseudo-science and conjecture take the place of such proof.