Chapter 2. The Empirical Evidence Relating To The Current Legislative Response To Cannabis
We propose to examine here the preliminary findings of the background papers on law and law enforcement and the sociolegal impact of our present response to cannabis use. The discussion includes: (a) the powers of arrest, search and seizure; (b) the processing of a cannabis suspect through the criminal justice system; (c) the processing of information concerning a cannabis case; (d) problems inherent in drug enforcement; (e) a statistical review of current arrest, conviction, and sentencing patterns; (f) the financial cost of cannabis enforcement; (g) the sociolegal consequences of enforcement; and (h) public and professional attitudes to cannabis control policy.
Special Powers of Arrest, Search and Seizure in Drug Enforcement
The Narcotic Control Act (N.C.A.) 1960-61, c.35 and Food and Drugs Act (F.D.A.) 1952-53, c.38 grant police who work in drug enforcement virtually unequaled powers of arrest, search and seizure. The Canadian courts have broadly construed these statutory powers and the police officer's common law defences to civil suits. Despite police complaints that their hands have been increasingly tied by the expansion of civil liberties, the exact opposite is true. During the past seventy years federal drug legislation has greatly expanded police powers of arrest, search, and seizure at the expense of individual freedom, privacy and physical integrity. It is important to emphasize that these special police powers in drug enforcement are in addition to the already broad general powers of arrest, search and seizure contained in the Criminal Code R.S.C. 1970, c.34 and other federal criminal statutes. Provincial legislation such as The Highway Traffic Act R.S.O. 1970, c.202 and The Liquor Control Act R.S.O. 1970, c.249 provide still further police powers. Thus, even in the absence of the extraordinary powers of the N.C.A. and F.D.A., officers engaged in drug enforcement still have broad powers of arrest, search and seizure.
Two examples illustrate the breadth of the special police powers and the extent to which they represent a fundamental departure from traditional legal principles. A large percentage of cannabis arrests are made by uniformed police officers during routine traffic patrol. In these situations, the officer can use his powers under the provincial highway traffic and liquor control acts to undertake ad hoc drug investigations. For example, the Ontario Highway Traffic Act authorizes the police to stop any vehicle, to require the driver to identify himself and produce his licence, and to Asubmit the vehicle to such physical examination...as the constable...may consider expedient.@ While this Act does not give the officer the right to search the driver or the car's occupants, suspicious circumstances observed during this licence and safety inspection can be used to invoke the broad search powers of the N.C.A., s.l0, and F.D.A., s.37. Both permit the police, without warrant, to enter and search any place other than a dwelling house in which they reasonably believe there is a prohibited drug. The police are also empowered by these acts to search any occupant found therein, using as much force as is reasonably necessary, whether or not they have reasonable grounds, or for that matter any grounds, to believe that the occupant was committing an offence. If the occupant refuses to submit to the search, he may be charged with obstructing a peace officer in the exercise of his duty, and if he physically resists, he may be charged with assaulting him and sued civilly. The police may require the occupant to submit to oral, rectal or vaginal examinations, and are not obliged to use medically-trained personnel for that purpose.
Perhaps the most noteworthy aspect of this power is that an individual may be forced to submit to a physical search in the absence of any evidence, belief, or even suspicion of wrongdoing of any kind on his part. This is a major departure from established principles; as a general rule, the police may only search a person after they have lawfully arrested him, and the arrest to be lawful must be based on a reasonable belief that the person had committed or was about to commit or was apparently committing a criminal offence. A possible rationale for this exception in drug cases arises in situations in which the occupants of a private car might realistically know of, or be participating in, a drug offence being committed by another occupant. However, this power to search occupants of premises in which the police have reason to believe a drug offence is being committed applies to all places other than dwelling-houses, not only cars. The police have used this power to enter taverns and strip-search their occupants, many of whom had no possible relationship with the suspected offenders and who probably had no idea that any offence was occurring. (See, for example, The Royal Commission on the conduct of Police Forces at Fort Erie on the 11th of May, 1974.)
The second example concerns the special police powers to search dwelling-houses in drug cases. The common law has traditionally distinguished between police powers to search dwelling-houses and other places. Generally speaking, the police could only enter the former if they had obtained a valid search warrant duly issued by a judge. Judicial scrutiny of the police evidence and control over issuance of the search warrant were designed to protect the sanctity of the home and the privacy of the individual. Both the N.C.A., s.l0(3), and F.D.A., s.37(3), provide far the issuance of writs of assistance to members of the RCMP, which empower them to enter and search any dwelling-house, day or night, in which they reasonably believe there is a prohibited drug. In order to prevent the possible destruction of evidence, the courts have permitted the police to enter without a prior announcement, using whatever force is reasonably necessary. The police may search the occupants of the dwelling- house and may Abreak open any door, window, lock...or any other thing.@
Although the government has proposed modest changes (Globe and Mail, March 14, 1978:9; Globe and Mail, April 7, 1978:1), there is still no judicial control over the issuance or use of the writ of assistance. A judge of the Federal Court must issue it on the Attorney-General=s request. It is not limited as to time or place and is valid for the entire career of the officer to whom it is issued. Consequently, the judge has no control over when, where, how often, or in what circumstances the writ is invoked, regardless of whatever abuses arise. It should be pointed out that RCMP regulations require officers holding writs to file internal reports when they use them. (Le Dain, 1972:240) However, even if this departmental review were scrupulously carried out, which is questionable in light of earlier reports (Solomon, 1972), it is a far cry from the common law requirement that the judiciary approve and control each police entry into a dwelling-house.
This brief review of the special powers of arrest, search and seizure raises numerous issues regarding cannabis control policy. The most important of these is whether the risks posed by cannabis C particularly those posed by consumption-related activities C justify the wholesale sacrifice of our traditional safeguards of individual liberty. Even if one decides that cannabis use presents a sufficient threat to justify investing police with special powers of arrest, search, and seizure, a balance should be struck between the measure of freedom we give up and the enforcement benefits we receive. To date, a large measure of our freedom has been surrendered on the assumption that it has been offset by effective enforcement. Unfortunately the assumption appears unwarranted: the Canadian cannabis market has flourished, demand has risen steadily, supplies are abundant, and prices have remained relatively stable during the past ten years. The vitality of the Canadian cannabis market is even more remarkable given the tremendous increases in resources devoted to cannabis enforcement and more than a tenfold increase in cannabis arrests during the last ten years.
The Processing of a Cannabis Suspect Through the Criminal Justice System
The processing of a cannabis suspect involves two parallel but interrelated series of transactions: the first and most visible relates to the handling of the suspect; the second concerns the management of the data generated by a case. Although the data flow will be discussed in the next subsection, it should be noted here that the existence of such data may represent the most serious adverse consequence of the suspect's arrest or conviction.
As in most areas of the administration of criminal justice, police, prosecutors and judges have a broad range of options in handling a cannabis case. Their discretion is only partially limited by statute, regulations, court decisions and departmental policy. The broad range of legal options, the confidentiality and inaccessibility of, and variations in, departmental policies, and the large measure of unfettered discretion, make it impossible to describe all the ways in which a cannabis suspect might be processed. Depending on one's view, these variations may be considered essential for ensuring a flexible, individualized enforcement response, or as unequal treatment contrary to fundamental tenets of fairness. The former characterization would be appropriate only if discretion were consistently exercised in accordance with some express or implicit cannabis policy goal, rather than in furtherance of administrative expediency or personal whim. Although the existing evidence is sketchy, the variations in the processing of cannabis suspects do not appear to be based on a rational attempt to further any recognizable policy. It is not that the individual police officer, crown prosecutor or judge acts without due consideration or in bad faith, but rather that the results of their decisions cannot be rationalized. To the suspect who is arrested rather than warned, or held in custody rather than released on bail, or charged with importing a drug rather than possession, or fined rather than given an absolute discharge, the system must appear arbitrary and capricious. It should be of little solace to those responsible for cannabis policy that each decision is thoughtfully and conscientiously made if, as it appears, the decisions reflect the conflicting goals of thousands of independent decision-makers.
Police. Until the late 1960s, the RCMP drug squads made almost all drug arrests. With the increase in hallucinogenic drug use, the municipal and provincial police introduced special drug training programs and established their own drug squads. It became common practice, nonetheless, to establish mixed drug squads of municipal, provincial and RCMP officers. This arrangement has ensured closer cooperation between the agencies and has permitted the entire unit to take advantage of the broad search powers of the RCMP officers' writs of assistance. In the early l970s, the RCMP and other drug squads began to concentrate on cannabis trafficking and Ahard@ drugs, leaving enforcement of simple possession of cannabis to police engaged in general enforcement duties.
Despite this division of labour, the vast majority of drug squad arrests involved cannabis users and minor street-level traffickers. In 1977, about 90% of all cannabis convictions were for simple possession, and the quantities involved in trafficking and possession for the purpose of trafficking cases were, on average, surprisingly small. Relatively few cannabis arrests seem to result from the investigation of individuals who have been identified as major importers or distributors.
We will now briefly examine the factors which appear to influence the police officer's discretion in processing cannabis cases. A study of Ontario Provincial Police practices, written by a former officer with six years' experience, identified numerous factors which might affect the officer's discretion. (Bailey, 1978) Curiously, the first factor was a provision of The Police Act R.S.O. 1970, c.351 which makes it a disciplinary offence for an officer to fail either to report anything he knows about an offence or to make due efforts to bring a suspect to justice. Consequently, police discretion not to proceed is only exercised in low visibility situations, during the initial confrontation. Similarly, officers will only engage in illegal searches, physical aggression or other irregular tactics if it is unlikely to result in a complaint. Thus, these techniques tend to be used against young, poor and legally-naive suspects who are unaware of their rights and unlikely to take remedial action. Once the officer decides to lay a charge, the case will be processed according to the policy of his particular police department.
Given that cannabis is used primarily by young people, it is relatively easy to make arrests. By pulling over youthful drivers or by confronting young people on the street and aggressively exercising his rights to search, an officer can produce a steady stream of cannabis arrests. Since cannabis is not generally consumed in public, an officer is unlikely to be confronted by a situation where he is obliged to make a cannabis arrest. Whether he pursues opportunities to make arrests or is indifferent to them depends on a variety of factors, including his attitude towards cannabis use, his career ambitions, competing demands on his time, the performance expectations of his supervisors, his attitude towards overtime and clerical work, the circumstances of the case, the suspect's attitude towards the officer, and the likelihood and nature of future interaction with the suspect.
While all the factors cannot be discussed here, two points warrant special consideration. Of particular institutional importance are the pressures placed on officers by the monthly statistical monitoring of their performance. The officer's shift is divided into various categories, such as criminal enforcement, traffic enforcement and administrative duties, and the number of offences per hour of enforcement time is calculated and posted each month. An officer whose performance quotient is 20% below the detachment average is singled out in the monthly ratings. Because cannabis arrests are easy to generate and consume relatively little enforcement time, they are an excellent means of improving the performance quotient. The method of computing these performance statistics does not distinguish between an arrest for one marijuana cigarette and an arrest for non-drug offences such as Abreak and enter,@ which involve much more effort. The officers are concerned about their ratings and may keep a running tally so that they can calculate how well they are doing at any time.
Their concerns are justified in that low performance quotients adversely affect the supervisor's evaluation, chances for promotion, and opportunities for transfer to specialty squads. Thus, an officer's decision to pursue cannabis users or to lay a cannabis charge may well be based more on its statistical value than its social utility. It is not known if other police forces employ such rigid evaluation systems, but it appears that departmental expectations universally influence an officer's conduct in investigating and processing cannabis cases.
A second significant matter is the heavy administrative workload that accompanies
cannabis cases. An officer involved in ongoing investigations, or one who dislikes
paperwork or who is not interested in overtime is unlikely to pursue opportunities to make
cannabis arrests or may warn rather than process the cannabis offenders he finds. Figure 1
illustrates the administrative duties involved in an uncomplicated case of cannabis
possession in a motor vehicle. It is assumed that the driver and other occupants cooperate
with the officer, that one of them admits sole ownership of the
cannabis, and that the accused pleads guilty at his first court appearance. It has been
estimated that even in these ideal circumstances it would take an officer almost eight
hours to process the case from initial contact until the final disposition.
Police Duties Relating to Processing a Routine Cannabis Case
|Description of Duty||
|Check licence plate in Canadian Police Information Centre (CPIC)||:01||:02|
|Stop and approach vehicle||:02||:04|
|Talk with occupants of car and obtain names||:02||:06|
|Check names on CPIC||:05||:11|
|Search car and occupants||:10||:21|
|Occupant confesses to sole ownership||:05||:26|
|Record suspect's name and address in notebook||:02||:28|
|Issue suspect an appearance notice and release him||:05||:33|
|Record details of incident in notebook||:10||:43|
|Return to office, enter occurrence in file control register||:03||:46|
|Make entry in occurrence book||:05||:51|
|Fill out initial narcotics 109 report and type it out||:45||1:36|
|Store exhibit, attach property tag, enter seizure in drug exhibit register||:15||1:51|
|Fill out criminal contact card||:02||1:53|
|Fill out prosecution report||:10||2:03|
|Fill out form for entering suspect's name on CPIC||:05||2:08|
|Complete affidavit of service of appearance notice||:01||2:09|
|Type legal information (charge) and swear the information before justice of the peace||
|Obtain sample of drug seizure and register and mail sample to analyst||:30||3:24|
|Fingerprint and photograph suspect and complete forms, mail fingerprints to RCMP||
|Prepare crown prosecutor's brief and type it||2:00||6:54|
|Record disposition of case on Narcotics 109 Form, fingerprint forms, and prosecution report||
|Send drugs for disposal, complete related forms and letters||:30||7:54|
Crown prosecutors. Although the administration of justice and thus prosecution of provincial offences and federal crimes is generally entrusted to the provinces by section 92(14) of the British North America Act, all drug cases are prosecuted by federally-appointed prosecutors, operating under instructions from the Attorney-General of Canada. Until 1977, the provinces tacitly agreed to this arrangement, presumably because the drug prosecutors were paid by the federal government, and it reduced the work of the provincial Crowns who already had onerous caseloads. Recently, however, the federal government=s constitutional authority to prosecute drug cases without the written consent of the provincial Attorney-General has been judicially challenged. (Re Hauser v. The Queen (1977), 80 D.L.R. (3d) 161 (Alta. C.A.)) The issue is presently before the Supreme Court of Canada, but regardless of its decision the prosecution of drug cases is likely to remain in federal hands subject only to the necessity of obtaining the written consent of the provincial Attorney-General. It does not appear that the provinces wish to assume the financial costs and administrative responsibilities of prosecuting these cases.
The federal Department of Justice hires full-time prosecutors in cities which have a sufficiently large drug caseload. In smaller centres, lawyers are appointed part-time and are paid on a fee-for-service basis according to a fixed tariff. These positions are financially attractive, and the applicants are generally well qualified. The applicant's political affiliations also appear to be a significant factor in the selection process. Once appointed, the lawyer and members of his firm cannot act as defence counsel in drug cases.
During the early 1970s, the Department of Justice issued detailed instructions to its drug prosecutors and required them to check with the Department's Regional Offices in stipulated situations. This close supervision was intended to ensure a measure of uniformity. These instructions have since been replaced by more general guidelines, and there is now little contact between the drug prosecutor and the regional office, except for appeals.
The prosecution of drug cases likely varies considerably from jurisdiction to jurisdiction and thus the following discussion of practices in the city of London, Ontario, are not necessarily applicable to the rest of the country. While London may provide a model for the smaller cities, the heavier caseloads in larger cities may place greater administrative pressures on the process. The federal Crowns in London have a good working relationship with the police, provincial Crowns, and other members of the legal community. Most drug cases are straightforward and the police rarely consult with the prosecutor before laying a charge. The RCMP have established confidential guidelines for its officers which are referred to by other forces. These guidelines probably reduce the potential for laying inappropriate charges or producing highly disparate dispositions. If an inappropriate charge is laid, the prosecutor will not hesitate to withdraw or correct it.
Defence counsel usually initiate discussions regarding plea-bargaining with either the arresting officer or the federal prosecutor. The prosecutors consider the sufficiency of the evidence as the major factor in deciding whether to reduce a charge to a lesser offence in return for a guilty plea. The prosecutor seeks background information on the suspect from the arresting officer before making this decision. Defence counsel may also approach the federal prosecutor for a favourable submission as to sentence in exchange for a guilty plea. Occasionally, the arresting officer requests that the prosecutor reduce the charge because the suspect was Acooperative@ or because subsequent investigation revealed the limited nature of the accused's involvement. In these situations, and others involving young first offenders, the prosecutors may reduce the charge despite evidence establishing a more serious offence.
The federal prosecutors regard their function in speaking to sentence as bringing all the relevant facts to the Court's attention. They rarely propose a specific sentence, unless they feel that the sentence sought by defence counsel is inappropriate. In speaking to sentence they generally introduce the defendant's prior drug-related criminal record, if any.
It appears that the individual prosecutor's sense of fairness is the single most important factor shaping his exercise of discretion. This does result in irreconcilable discrepancies in the prosecution of cannabis cases, but unlike the situation with the police, the drug prosecutor=s exercise of discretion is acknowledged and is a matter of record.
Judges. The Le Dain Commission's 1970 study of sentencing in drug cases revealed wide disparities in sentencing policy and practices. During the last ten years, the number of sentencing options has been greatly expanded by the introduction of absolute and conditional discharges, intermittent sentences, the option to proceed by summary conviction for possession, and greater freedom in the use of suspended sentences and probation. Although there has been a marked trend towards more lenient sentences in cannabis cases, there is considerable variation in the use of these new options. As in the case of the drug prosecutor, the judge's exercise of discretion appears to be based on his sense of fairness, and it is a matter of public record. Generally speaking, both the Crown and accused may appeal against sentence if the judge erred in applying a principle of sentencing.
The Processing of Information Regarding A Cannabis Suspect
As previously indicated, the most adverse consequence of being convicted of a cannabis offence may be the existence of a written and computer record of the incident, rather than the sentence itself. If this result were intended, then further discussion would be unnecessary. However, various Royal Commissions, academics, commentators and the Law Reform Commission of Canada have strongly urged that the collateral punitive consequences of a criminal record be mitigated, especially in less serious criminal cases. The discharge provisions of the Criminal Code, s.662, the Criminal Records Act R.S.C. 1970 (1st Supp.), c.12 and Bill S-19 all address this problem. In this section of the paper, we will examine the massive flow of data generated by a cannabis case and explain why federal attempts to mitigate the consequences of a Acriminal record@ have had an extremely limited impact.
It is necessary at this point to briefly describe the information systems available to a police officer engaged in general enforcement duties. In addition to the files kept by his own department, almost all police officers in Canada have virtually immediate access to the data contained in the Canadian Police Information Centre (CPIC). CPIC, which is run by the RCMP, receives information from individual member police forces across Canada and organizes it into two basic categories of operational data. One includes information regarding wanted, missing and charged persons and stolen or missing vehicles and property. This data is kept for relatively short periods of time during ongoing investigations. For example, once a charged person's case has been disposed of, his name is removed from this system.
The other category of information, the Criminal Records Index, is a permanent record of all persons who have been charged by member police forces and whose fingerprints have been forwarded to the RCMP. All entries on this Index must be accompanied by fingerprints. Since all cannabis offences may be proceeded against by indictment, even those persons charged with simple possession of cannabis are liable to be fingerprinted and photographed. (Identification of Criminals Act R.S.C. 1970, c.l-l) Based on the information submitted, the RCMP prepare what is known as a Acriminal record synopsis@ which summarizes the persons Acriminal history.@ Once an individual has been charged and his fingerprints have been sent to the RCMP, that data will permanently remain on file, even if the case is dropped or the accused is acquitted or discharged. Thus, an officer, by simply requesting a CPIC Acriminal record synopsis@ over the police radio, can obtain the police record for any individual who had ever been fingerprinted pursuant to an arrest.
There appears to be only two ways to limit access to, and dissemination of, information in the Criminal Records Index. A person may ask the police force that forwarded his prints to the RCMP to seek their return. While the RCMP will return the fingerprints to the contributing force and close its file, the local police force is not obliged to either make such a request or, even if it does, to close its own file. The second way in which to prevent dissemination of the record is to obtain a pardon under the Criminal Records Act. The limitations of this Act are detailed below.
Traditionally the term Acriminal record@ has been used to refer to an official account of an offender's conviction and disposition. This narrow definition ignores the massive trail of potentially damning information that is collected and disseminated prior to the disposition of the case. With the exception of the RCMP and drug prosecutors= files, the federal government may have no constitutional power to limit these pre-disposition records. By the time the discharge and Criminal Records Act provisions take effect, the harm to the suspect's reputation, or education and employment prospects may be complete.
Potentially damaging information begins to accumulate during the first contact between police and the suspect. It is standard police policy to query through CPIC the licence plate of a car prior to approaching it. At that point the officer, the driver and his passengers, the CPIC operator, and anyone listening to police calls on shortwave radio or the widely advertised police and fire department receivers would be aware of the contact. The officer routinely checks the driver's and even the occupants' names on CPIC. Thus the company you keep, your whereabouts and perhaps even the officer's reason for stopping you may be accessible to a wide audience. CPIC checks are routine C more than 250,000 inquiries are made each week.
If the officer eventually finds cannabis and decides to lay a charge, reams of forms are filled out and filed. (See Figure 1.) The suspect's fingerprints and photograph are filed at the local police station and a copy of the fingerprints are sent to the RCMP. The suspect's name and address and the charge are entered on CPIC. As indicated, even if the charge is dropped or the accused is acquitted, the police station's record and the RCMP Criminal Records Index are maintained; only the short-term CPIC entry under charged persons is expunged. Generally, any police agency in Canada can gain access to the local police records and the RCMP Criminal Records Index. Customs, immigration, prison, parole and similar agencies have been granted access to this information. Reciprocal information sharing arrangements have also been instituted with Interpol and American police agencies. Despite rigorous precautions in the design of these systems and the training and monitoring of operators, some of this information will inevitably leak into unauthorized hands.
Once the suspect appears in court, the charge becomes a matter of public record and may be reported by the local newspaper or other media. In addition, the arrest might be recorded in the local legal aid office, federal prosecutor's office, the local court records, local detention centre files, and the Federal Department of Health and Welfare's record of known and suspected drug users. These sources of information are accumulated prior to the disposition of a case and, with few exceptions, are permanently maintained regardless of its outcome.
The disposition of a case is entered in the records of the local police, the RCMP, the court, the prosecutor's office and the Department of Health and Welfare. It might also be reported in the local newspapers, radio and television.
Discharges. In very general terms, the discharge provisions provide that an individual who has been found guilty or pleads guilty and who is granted a discharge is deemed not to have been convicted. A discharged offender can honestly answer Ano@ to the question, AHave you been convicted of a criminal offence?@, but he would, however, have to answer Ayes@ if asked any of the following questions: AHave you ever been arrested for, been found guilty of, pleaded guilty to, been sentenced for, or ever committed a criminal offence?@ The discharge has no impact on the police or other records that accumulated prior to disposition, nor does it limit the subsequent dissemination of this information. A discharged offender is not treated as a first offender, because the court is free to consider his discharge in sentencing him in a subsequent case. For all intents and purposes, a discharged offender has a Acriminal record.@
At best, the discharge provisions provide a very limited benefit in very narrow circumstances. It is questionable if the legal community fully understands the discharge provisions, and it is likely that the public and the offender himself do not realize their limited effect. Unfortunately there are probably many young people who have plead guilty to cannabis possession on the assumption that they would be given a discharge and thus suffer no Acriminal record@ or any disabilities with respect to future employment, citizenship, travel, credit rating, bonding, and similar matters. Regrettably, this is simply not true: the pre-disposition record and the discharge itself are widely disseminated, and a discharge is likely to have almost the identical impact on the offender's future as a conviction.
Pardons. The Criminal Records Act provides for the granting of a pardon upon an application by a discharged or convicted offender, following specified waiting periods. In most cases the RCMP will investigate the applicant, his family and acquaintances, and forward their findings to the Clemency Division of the Parole Board, which in turn makes a recommendation to the Parole Board. The pardon Avacates the conviction@ (the term Aconviction@ has with respect to pardons been statutorily defined to include a discharge), which means that it deprives the conviction of any legal disabilities or disqualifications imposed by federal legislation. For example, a person who has been pardoned may not be challenged or disqualified as a juror solely on the ground that he had been convicted or discharged. Similarly, a person who has been pardoned regains his right to hold public office or contract with the Crown. A grant of a pardon, however, does not create the legal fiction that the crime never occurred. Consequently, a pardoned offender must answer Ayes@ to the questions, AHave you ever been convicted or discharged for a criminal offence?@ and ADo you have a criminal record?@ The offender, for what it is worth, may attempt to qualify his response by pointing out that he has been pardoned.
The Criminal Records Act's most tangible benefit is that it precludes federal departments, Crown corporations or other agencies under Parliament's legislative authority from asking a question on an employment form that would require the applicant to disclose a conviction or discharge for which he had been pardoned. The Canadian Human Rights Act S.C. 1977, c.33 extends some of these employment benefits beyond the application stage.
Records of a pardoned offence in the custody of federal authorities must be separately stored and cannot be revealed without the prior approval of the Solicitor General. The Criminal Records Act does not expunge the pardoned offender's criminal record but rather dictates how it is to be stored and the circumstances in which it may be released. These provisions are limited to Ajudicial records@ which, according to the Clemency and Criminal Records Division, includes only the records of federal agencies and departments. All other records are considered non-judicial. These would include local and provincial police files, the court reporter's transcripts, court files, the court clerk's calendar, warrants of committal, and news media data. In any event, both judicial and non-judicial records will have been widely disseminated before a pardon was even applied for. The problems of limiting this information, years after it was collected and distributed, are insurmountable. The concern with limiting disclosure of a pardoned offender's record is somewhat misplaced. Unless the pardoned offender is willing to lie, an employer can obtain this critical information by simply asking him if he has ever been convicted or discharged for a criminal offence.
In summary, the benefits of a pardon are extremely limited. The Act is complex and probably misunderstood by the public, the offender, and even members of the legal community. The RCMP investigation may cause the applicant more trouble than the pardon is worth, and the Act is expensive to administer. Any attempts to broaden the Act's prohibition against disclosure to local and provincial police and court records may be unconstitutional.
By creating a criminal offence, the federal government sets in motion a process which generates a massive trail of data, both prior to and after the disposition of the case. Much of this elaborate record-keeping is essential to maintain the factual integrity of the process, to provide police with intelligence data, to evaluate the system's productivity, to assist in the efficient allocation of manpower and resources, and to ensure some measure of public access. These record-keeping systems cannot be dismantled, and the police and courts cannot operate in secrecy beyond the scrutiny of the public and media. A necessary result of these features of our criminal justice system is that any federal attempts to limit the collateral punitive consequences of pre-disposition and post-disposition records will benefit few cannabis offenders.
Problems Inherent in Drug Enforcement: Irregular Methods of Enforcement
In addition to extremely broad powers of arrest, search and seizure, the police have employed irregular or unorthodox methods of enforcement, including the use of wiretaps, paid informants, undercover agents, entrapment, trained dogs, strip-searches and massive surprise raids. Although these tactics are legal, in that they have not been successfully challenged, the resort to such methods has been criticized as bringing the administration of criminal justice and the police into disrepute.
Various forms of illegal police conduct are another cost of using the criminal justice system as a means of controlling cannabis-related behaviour. Unlike the situation in the United States and many other countries, drug enforcement in Canada has been relatively unblemished by corruption. However, illegal searches and the use of excessive force appear commonplace. Given the tolerant attitudes of our courts to narcotics enforcement officials, and the fact that illegally obtained evidence is admissible in court, there are few, if any, significant disincentives to illegal searches or physical aggression. The chances that an officer will be sued civilly or disciplined internally are remote, especially if these practices are confined, as they largely appear to be, to young, legally-naive suspects. The use of informants, undercover agents, surprise raids, and physical force have all contributed to the tension and violence that is inherent in narcotics enforcement.
A Statistical Review of Arrest, Conviction and Sentencing Patterns
Statistics related to the enforcement of cannabis offences have been compiled by both the Bureau of Dangerous Drugs and the Justice Division of Statistics Canada. The trend from the mid-1960s until 1974 was one of dramatic annual increases in the number of persons charged with and convicted of cannabis offences. More recently there has been some stabilization of reported possession offences, but the annual number of distributional offences continues to grow.
Arrest statistics. In 1969, 4,756 adults and juveniles were charged by police with cannabis of fences. By 1977, this figure had risen to 52,233. The total number charged with cannabis offences during this nine-year period exceeds one-quarter million (267,300) and will likely have exceeded 300,000 by the end of 1978. For the past four years, cannabis offences have represented about 90% of all Canadian drug charges under the Narcotic Control Act and Food and Drugs Act. More significantly, cannabis offences have constituted approximately one in eight adult, non-driving charges in Canada every year since 1973. If federal highway traffic of fences are included, the proportion drops to about one in eleven. Viewed in another light, cannabis possession offences alone account for roughly 25% of the increase in the official Acrime rate@ between 1969 and 1976. (See Justice Division, Statistics Canada, Catalogue 85-205.)
Conviction statistics. Convictions have also risen dramatically. In 1968, there were 1,453 convictions for cannabis offences, 1,097 of which were for simple possession. In 1977, convictions for all cannabis offences had risen to 40,020 with simple possession accounting for 90% of the total. During the 1968-1977 decade, 180,987 Canadians were convicted of cannabis possession, and an additional 18,499 persons were convicted of trafficking, importing, and cultivation offences. Over 70% of these convictions occurred in just three provinces, Ontario (36.6%), British Columbia (20.1%) and Alberta (14.8%).
Whereas true opiate narcotics accounted for 98.3% of all convictions under the N.C.A. in 1961, by 1977 the opiates' share of convictions under this Act had dropped to 1.3%. Given that cannabis now accounts for over 96% of all N.C.A. convictions, and that virtually 90% of all cannabis offences are for simple possession, police assertions that they are concentrating on Ahard drugs@ and major cannabis distribution cases appear suspect.
Simple possession convictions have risen by a factor of thirty between 1968 and 1977 while, in the same decade, trafficking convictions have only increased tenfold. There has, however, been an interesting shift within the distributional offences. In 1969, for example, 72% of the distributional convictions were for trafficking, while only 28% were for possession for the purpose of trafficking. These proportions soon began to reverse: in 1974 and 1975, 75% of the distributional convictions were for possession far the purpose, and according to the 1977 data this offence still accounts for 65% of the trafficking convictions. Both trafficking and possession for the purpose of trafficking carry the same penal sanctions.
The tremendous increase in simple possession convictions is probably due more to the efforts of uniformed police engaged in general enforcement duties than to the expansion of the RCMP, municipal and provincial police drug squads. It was only in the late 1960s that uniformed officers began to make substantial numbers of cannabis arrests, and this might also partially explain the subsequent shift in the distributional offences. While uniformed police could make large numbers of arrests for possession and possession for the purpose of trafficking, they would almost never make trafficking arrests. The shift in trafficking offences might also reflect enforcement difficulties in making undercover purchases from medium- and large-scale trafficking groups. Petty trafficking arrests are easily effected at concerts, bars and on street corners, but making larger purchases from more sophisticated and cautious traffickers is far more difficult. Consequently the drug squads may be content to raid a known dealer in the hope of finding sufficient evidence to secure a conviction for possession for the purpose, rather than attempting to engineer a trafficking purchase.
Use of these alternative strategies is supported by a recent study of the actual quantity of cannabis involved in the various cannabis offences as recorded in the 1975 conviction data of the Bureau of Dangerous Drugs (Bryan, et al., 1978.) Half of those convicted of trafficking in marijuana sold one ounce (30 grams) or less of the drug; 70% sold under four ounces. Of those convicted of possessing marijuana for the purpose of trafficking, only 16% possessed less than four ounces, while 48% possessed more than a pound. Similarly with respect to hashish: 78% of the trafficking convictions involved one ounce or less as compared to only 32% of the possession for the purpose convictions. By way of comparison, 84% of the marijuana possession and 97% of the hashish possession convictions involved one ounce or less.
Sentencing statistics. Sentences have become less severe during the past decade, especially in simple possession cases. A change in judicial attitudes is partly responsible. The most influential factor, however, has probably been the introduction of discharge provisions in July 1972. At the same time, federal drug prosecutors were instructed to seek discharges in all first offence cannabis possession cases where the offender had no previous criminal record or concurrent conviction. The judiciary refused to automatically grant discharges in these cases in the absence of specific legislation to that effect. There has been, however, a steady rise in the use of discharges since 1972. (See Leon, 1977: esp. 51-53) Sentences for distributional offences have also become less severe, but the change is far less dramatic than in possession cases.
In 1968, 43.4% of those convicted of simple possession were awarded custodial sentences; the rest were fined or granted probation or suspended sentences. Fines soon became the preferred disposition, rising to 77.3% of the possessory sentences awarded in 1971. Despite the introduction of discharges, fines still accounted for 65.7% of the possession sentences in 1977. It is surprising that discharges, which were specifically designed to reduce the stigma of a cannabis possession conviction, have never accounted for more than 25% of simple possession dispositions.
About 4%, or 1,317 of those convicted for simple possession in 1977 were sentenced to incarceration, including 10 persons who received more than a year, and 18 who received indefinite periods. About 40% of those imprisoned were 20 years of age or under. In total, imprisonment has been imposed in over 10,000 convictions for cannabis possession during the past decade. However, these figures are misleading, as it appears that more people are incarcerated for default in payment of fines than are sentenced to incarceration. A recent study (Hartman, May 15, 1978) indicated that 587 persons convicted of possession in British Columbia between 1974 and May of 1978 were imprisoned for up to six months for default. This total exceeds the number of persons actually awarded custodial sentences during the same period. If this pattern applies nationally, as is indicated by recent Ontario data (Patterson, June 21, 1978: Labelle, July 14,1978), then close to 3,100 persons were incarcerated during 1977 as a direct consequence of simple possession convictions.
Sentences for trafficking and possession for the purpose of trafficking have become slightly less punitive since 1969. Custodial sentences for possession for the purpose of trafficking accounted for more than 75% of the cases in 1969, 1970 and 1971, but only 66% in 1975, 1976 and 1977. Over 80% of those incarcerated received less than one year, and over 90% received less than 2 years. Sentencing practices in trafficking cases have been relatively consistent: between 75% to 82% of traffickers were incarcerated each year from 1970 to 1977. There has been a trend toward shorter custodial sentences with less than 5% of those incarcerated for trafficking sentenced to more than two years. The courts have not consistently distinguished between levels of trafficking, and undoubtedly some marginal or insignificant traffickers are still being severely punished.
Persons convicted of importation are subject to a mandatory minimum of seven years' incarceration, regardless of the quantity involved. Almost all importing dispositions since 1973 have been for this mandatory minimum period. Occasionally, however, importers have received fines, probation, discharges, and one-, two- and three-year sentences. These unauthorized sentences probably reflect the individual judges' concern for the disproportionality of the statutory minimum sentence.
Cultivation convictions increased from 6 in 1968 to 145 in 1977. As in the past, about a third of those convicted in 1977 received custodial sentences. Of those incarcerated, only one received more than six months.
In summary, one out of every eight Canadian adult criminal charges, excluding highway traffic crimes, is for a cannabis offence. Approximately 38,000 persons are annually convicted of cannabis violations. Ninety percent of these convictions are for simple possession of marijuana or hashish. Despite a general reduction in the severity of sentences in cannabis cases, over 1,300 persons were sentenced to prison for simple possession in 1977. At least this number were subsequently imprisoned for defaulting on fines imposed for simple possession. These default incarcerations are likely borne by the young and the poor C those same classes most exposed to the risk of arrest and conviction in the first place.
The Financial Cost of Cannabis Enforcement
The Health Protection Branch has recently begun collecting data on the dollar cost of cannabis enforcement. Research in this area is always difficult as much of the information is confidential, enforcement agencies are sensitive about external appraisals of their operations, and, even when accessible, the data rarely refer to purely cannabis-related costs. Information on enforcement costs, particularly for the offence of simple possession, is critical to any comprehensive assessment of the present control regime. Obviously some public hazards warrant almost any expenditure. However, where one is skeptical of the impact of current measures and faced with limited resources, it is reasonable to strive for a more efficient and effective administration of justice. And this requires estimates, at least, of present costs.
California has provided the most comprehensive study of the fiscal costs of cannabis enforcement. The Final Report of the California Legislature Senate Select Committee on Control of Marijuana conservatively estimated the cost of state cannabis law enforcement for 1972 at $100 million. As the Report noted, this figure Ais considered a minimum calculation: the actual costs to the taxpayer were probably much higher@ as various processing, committal, juvenile justice, diversion, rehabilitation and peripheral welfare costs were not included in the calculation. (California, May, 1974:113) The cost of an adult cannabis arrest and prosecution in 1972 was conservatively estimated at between $1,200 (a figure that excluded state, as opposed to local, law enforcement agency expenditures) and $2,800. Approximately 80% of those arrested were charged with possession. These California data exclude substantial cost items and are somewhat dated, but if we were to apply them to Canada, the police and judicial costs of processing the 41,000 adults charged with cannabis possession in 1977 would be conservatively estimated at between $49 and $115 million. The 2,214 juveniles similarly charged in 1977, would, of course, represent an additional expense.
A second, and the only indigenously Canadian calculation, appears in a recent paper by Hogarth and Robertson. (June 7, 1978, rev. Sept. 1, 1978:44) Stripped to its essentials, their argument is as follows: A task force on the administration of justice estimated that the total annual cost of administering the Canadian criminal justice system is about $2 billion. Cannabis possession of fences constitute about one-eighth (or 13%, in 1976) of all criminal offences, and one can Aassume@ that these cases require, on average, one-half the resources of Aordinary@ crimes. Thus, taking 13% of $2 billion and dividing by 2, they arrive at an annual simple possession enforcement cost of $130,000,000.
Unfortunately their analysis suffers from several fatal methodological flaws. The Aone-out-of-eight@ statistic, for example, refers to all cannabis-related offences, not just simple possession as the authors assume. As well, their calculations exclude consideration of federal highway traffic charges such as impaired driving and failure to provide a breath sample, which, if included, would increase the total number of criminal offences by a third. More importantly, moreover, the $2 billion figure included not only all federal offences but, as well, all provincial and municipal offences except parking violations. In fact, cannabis offences represent only about 1%, rather than 13%, of the total Canadian offences recorded in 1975. (National Task Force on the Administration of Justice, June 7, 1977: 18-19, 24). Of equal difficulty is Hogarth and Robertson's assumption that cannabis cases involved one-half the resources of Aordinary@ crimes. Once it is realized that the $2 billion figure refers to violations of provincial statutes and municipal by-laws as well as federal enactments, then it is likely that the average cost of a cannabis possession offence is considerably greater than the approximately $350 average cost of an Aordinary@ offence. This is because the formal proceedings in criminal cases are far more costly than the Aticketing@ procedures commonly employed in the provincial and municipal violations that account for the bulk of Canadian offences.
Although any estimate must be speculative at this stage, it appears reasonable to suggest that the enforcement cost for the offence of simple possession of cannabis is between $60 and $100 million per year. It should be emphasized that even if this offence were repealed, there would likely be no direct monetary savings. More realistically, the funds now spent on enforcing the prohibition of possession would be reallocated to other police operations. In California, for example, a July 1975 enactment (SB 95) reduced the offence of simple possession of marijuana from a possible felony carrying a penalty of up to ten years' imprisonment to a citable misdemeanor with a maximum penalty of a $100 fine. A legislatively mandated study of the impact of this Adecriminalization@ measure found that the law enforcement and judicial system costs for marijuana possession were 75% lower during the first six months of 1976 than during the comparable period immediately prior to the new law's enactment. Comparing the same two periods, marijuana possession arrests and citations were reduced by nearly 50% while Aarrests of heroin addicts and other drug offenders increased significantly...reflecting greater police concentration on hard drug offenders.@ (California, State Office of Narcotics and Drug Abuse, January, 1977:1,8)
The Sociolegal Consequences of Enforcement
The negative consequences of criminalizing cannabis are easy to recite but extremely difficult to quantitatively assess. The Le Dain Commission enumerated ten such Asocial costs@ in its Cannabis report. (Le Dain, 1972: 292-298) The first and Amost serious@ was the effect of a criminal conviction, particularly on young offenders. It is well established that the formal application of criminal sanctions has a stigmatizing effect on those exposed to the process, although, according to a Canadian study, this experience has almost no deterrent influence on cannabis users. (Erikson, 1978)
Other social costs of criminally prohibiting cannabis mentioned by the Le Dain Commission include: encouraging the development of an illicit market; obliging persons to engage in criminal activities or with criminal types to supply themselves with cannabis; exposing people to more hazardous drugs by forcing them to have contact with traffickers dealing in a variety of psychotropic products; promoting the development of a deviant subculture; undermining the credibility of drug education programs; the use of extraordinary and disreputable methods of enforcement; creating disrespect for law and law enforcement generally; diverting law enforcement resources from more important tasks; and adversely affecting the morale of law enforcement authorities. Additional social costs include the provision of an economic base for organized crime, health risks flowing from the consumption of unregulated, herbicide-contaminated products, the inhibition of research into therapeutic uses of cannabis, the erosion of civil liberties, and the criminal socialization of young persons through custodial sentences.
The Commission also noted that occupational and professional disqualifications and numerous automatic and discretionary legal liabilities result from a cannabis conviction. Two studies sponsored by the Health Protection Branch detail these specific negative consequences. (Leon, 1978; McKee, 1978)
A convicted cannabis offender is at a distinct disadvantage in any subsequent criminal proceedings: his past criminal record may be used to establish grounds for keeping him in custody prior to trial; it may influence the Crown to proceed by way of indictment rather than summary conviction; it may be raised to impeach his credibility if he takes the stand; it may automatically result in a more severe sentence as dictated by various criminal statutes; it may be introduced by the prosecutor in speaking to sentence and appears to be an extremely important factor in shaping judicial sentencing discretion; and it will likely influence the classification process in prison, and the granting and terms of parole.
An individual convicted of a cannabis offence may be denied entry into Canada as a visitor, or as an immigrant. Once in the country, a visitor, immigrant or even permanent resident may be deported if convicted of a cannabis offence, even simple possession. Discussions with immigration officials in the London area indicated that these harsh provisions may be tempered by various saving sections in the Immigration Act S.C. 1976-77, c.52 and by the immigration officers' exercise of formal and informal discretionary powers. It was suggested that an otherwise law-abiding permanent resident would not be deported if convicted of a minor cannabis offence. The Citizenship Act S.C. 1974-75-76, c.108 provides that citizenship cannot be granted to a person who has been convicted of an indictable offence three years prior to the date of application or during the period between the application date and the date he otherwise would have been granted citizenship.
Entry into the United States and the United Kingdom may be denied to an individual who has been convicted of a cannabis offence. Officials of both countries indicated that the decision to permit or deny entry would be based on various factors including the reason entry was sought, the date of the conviction, other convictions, and humanitarian considerations. It appears that a Canadian citizen visiting either country on a holiday would not be denied entry merely because he had been convicted of cannabis possession in the distant past.
Many federal acts contain broad employment criteria which could be used to deny a job to an individual with a record for a cannabis offence. The Criminal Records Act and Human Rights Act together reduce the possibility that a pardoned offender's record would even become known to a federal department or agency. With the possible exception of jobs requiring a security clearance, these Acts should prevent discrimination against pardoned offenders in hiring by federal departments and agencies.
An informal survey of federal and Ontario government personnel and security officers was conducted in the Health Protection Branch in the summer of 1978. It would seem that, unless their cannabis possession offences were detected at the place of work or resulted in a gaol sentence, government employees would be unlikely to be suspended. Any disciplinary action taken against an employee for the sole reason that he or she had been convicted of possession would warrant lodging a grievance with the Anti-Discrimination Branch of the Public Service Commission. In cases of trafficking-related offences, the picture is less clear. Cannabis offences, however, even simple possession, can result in the suspension or cancellation of security clearances or can be considered grounds for refusal to issue one to a prospective employee. This could be a major stumbling-block to obtaining a job or promotion in the public service.
Employment opportunities in the regulated professions and licensed occupations may be adversely affected by a conviction for a cannabis offence. The provincial legislation governing admission and disciplining of professions usually contains general criteria requiring an applicant or member to be of Agood character@ and refrain from Aunprofessional@, Adishonorable@ or Aimproper@ conduct. Such broad criteria apply to lawyers, architects, engineers, surveyors, accountants, health care professionals, dental technicians, psychologists, veterinarians and funeral directors. The licensed occupations are governed by similar legislation and include an even broader range of careers such as ambulance drivers, auctioneers, real estate agents, police officers, and operators of nursing homes, taverns, private hospitals, and private vocational schools. Primary and secondary school teachers are particularly vulnerable because of the sensitivity of their positions to public scrutiny. In some recent cases (Vancouver Province, Dec. 1, 1977; Globe & Mail, June 30,1978), school boards have taken disciplinary action against teachers convicted of cannabis offences, despite the fact that the court granted them discharges. They were removed from contact with students and given administrative duties to perform or otherwise demoted.
Given the generality of the Agood moral character@ criterion and the discretionary nature of the admitting, licensing and disciplining powers, it is impossible to predict the consequences of a cannabis conviction. In fact, this element of uncertainty itself is one of the most significant negative consequences of a cannabis conviction.
Some of these social and legal costs are inherent in the criminal law process. Others are a product of our current approach to non-medical drug use in general and cannabis in particular. Although impossible to quantify, these are all real costs which must be balanced against the benefits of maintaining the criminal prohibition in reaching any reform decision.
Public and Professional Attitudes
Demographic surveys have been used to canvass public attitudes toward cannabis and appropriate cannabis control measures. These polls are exclusively conducted among adult populations and are difficult to compare because of the array of legal alternatives presented to respondents. However, the results show uniform dissatisfaction with the current control regime.
An April 1977 Gallup poll found that about 37% of the responding national sample thought Apossession of small amounts of marijuana should be a criminal offence.@ A slightly higher proportion, 38%, thought simple possession should Abe an offence subject only to a fine C similar to a traffic violation@, and 24% thought simple possession should Anot be an offence at all@. (Ottawa Citizen, May 14, 1977:7) A second national survey, conducted in the fall of 1977 for Weekend Magazine (1977:3), asked only if marijuana should be A'legalized@ in Canada. There was no explanation of Alegalization,@ a term that ordinarily connotes licit distribution as well as use, but approximately 37% of those who answered the question thought this approach a Agood thing.@ The remainder thought legalization a Abad thing.@
The most recent attitudinal survey was deliberately designed to reflect a full range of realistic legislative options in a clearly comprehensible manner. This survey was sponsored by the Addiction Research Foundation of Ontario and was conducted by the Gallup organization as part of their September 1978 national poll. (The Journal, Nov. 1978:1; Gallup Omnibus Study, Sept. 1978) Of those who responded, approximately 90% of those surveyed, about 35% favoured retention of the status quo, 15% thought simple possession should be a crime subject to fines only, 24% thought simple possession should not be a criminal offence, although trafficking activities should remain so, and 26% opted for commercial cannabis distribution, like alcohol, in government-licensed stores.
In both Gallup polls, one in the spring of 1977 and the other in the fall of 1978, about two-thirds of those who responded were opposed to maintaining the present legislative regime. The latest poll indicates that half the Canadian adult population, including about 60% of those between 18 and 30, is prepared to remove all criminal sanctions, including fines, for simple possession of cannabis. Further, over half of these persons favour a legal distribution system akin to that presently employed for alcohol. Since some liberalization is apparent between the 1977 and 1978 polls, and since young adults more frequently choose the reform options than older Canadians, the likely direction of public attitudes will increasingly be away from criminal measures and towards more tolerant or even approbative control regimes.
Most of the relevant Canadian professional associations have expressed similar sentiments. As long ago as 1972, the Pharmacological Society of Canada endorsed the Le Dain Commission's recommendation that simple possession no longer be an offence. (The Journal, Aug. 1, 1972:1) The Canadian Medical Association publicly opted for Adecriminalization@ during the 1975 Senate hearings regarding Bill S-19. More recently, the Canadian Bar Association adopted a resolution recommending the removal of all criminal penalties for the possession, cultivation and non-profit transfer of small amounts of cannabis intended for personal adult use. (National, Sept.-Oct. 1978:19)
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