Chapter 5. The Legislative Options
An Ordering of Terms and Concepts
The subject of cannabis control policy is complicated by an inconsistent use of terms that has confused appreciation of the various options. Therefore, it is necessary to define those concepts fundamental to our purpose. Three broad, abstract control alternatives may be posited: Aprohibition@ (as currently exemplified by the Narcotic Control Act), Alegalization@ (licit commercial distribution of cannabis), and Adecriminalization.@ Prohibition and legalization are the polar types. The former enjoys only minority support and the latter has no more likelihood of prevailing, if for no other reason than that it is politically untenable. The third alternative, and the middle ground from which any new control regime will almost certainly arise, is decriminalization.
This latter rubric is responsible for most of the confusion, for decriminalization is a term of neither art nor science. It is, rather, a legally dubious but rhetorically elastic concept employed idiosyncratically by all parties to the debate. As such, its meaning depends less on its context than on who brandishes the term. The result has been that Adecriminalization@, as commonly employed, has served to obscure rather than illuminate the issue of cannabis reform. The term, however, has entered the popular vocabulary and has significant descriptive utility. It is worthwhile, then, to operationally define it in such a way that it can be readily located along a continuum of control alternatives while, at the same time, reflecting popular understanding of the notion.
It is helpful to adopt a threshold concept which uses decriminalization to refer to any statutory scheme short of legalization under which the least serious cannabis-related behaviour is not punishable by incarceration. Under present Canadian law, the least serious cannabis-related behaviour is first offence simple possession. There appears to be a broad consensus, on the pert of the courts, the public, concerned professional associations, leading newspapers, the leaders of Canada's major political parties and the Senate, that imprisonment is inappropriate for first offence simple possession. There is far less agreement, however, as to what cannabis-related conduct should be subject to custodial sentencing, whether repeat offenders or those who default on payment of fines should be liable to imprisonment, and as to what, if any, sanctions should be maintained for cannabis possession. Most Canadians now favour decriminalization, by which they mean something less than imprisonment for persons who possess cannabis. It is the varied content of this Asomething less@ that constitutes the categories of cannabis reform.
Decriminalization, in this threshold sense, is an umbrella concept covering a broad range of policy choices that primarily focus on possessory, or functionally equivalent, conduct. It is possible, however, to enunciate three generic subtypes. That subtype closest to prohibition can be designated mitigation. It involves the reduction of penalties for possessory behaviour. Simple possession remains a criminal offence, but violators are liable only to fines or mandatory participation in community service programmes. Offenders are subject to ordinary criminal procedures and suffer a criminal record of the event.
A decriminalization subtype that attempts to minimize the criminal trappings of cannabis possession may be referred to as dispensation. Simple possession remains an offence but, to the degree possible, the Acriminal@ attributes and consequences of a prosecution are negatived, or Adispensed' with. Ideally, ticketing or citation procedures are substituted for traditional arrest provisions, court appearances are not required if one admits guilt, fines are nominal, no convictions are registered, and no official criminal records are maintained. This, essentially, is the approach adopted by those American states that have decriminalized marijuana possession by transferring it from their criminal codes to their civil codes, thereby rendering it a Acivil offence@ subject to Acivil@ rather than Acriminal@ penalties. This transfer from criminal to civil jurisdictions avoids the formal procedural requirements and derivative consequences of a criminal prosecution, even though the prescribed penalties may not differ from one regime to the other.
As previously indicated in Constitutional Considerations, our constitutional arrangement is such that this American approach cannot be readily imported into Canada. Parliament cannot enact a non-criminal offence and, consequently, all federal offences C no matter how insignificant C may give rise to those statutory disabilities that attach to Areal crimes.@ While Parliamentary emulation of American decriminalization is constitutionally stymied, it is possible to realize many of the advantages of a civil offence design through the use of Adeeming provisions.@ It is these particular legal fictions that characterize the dispensation alternative. Thus dispensation, as in law, refers to exemptions from or relaxations of ordinary legal requirements C in this case, those Criminal Code and related statutory provisions that presently give cannabis possession its criminal colouration.
The third decriminalization subtype is depenalization. Here, the behaviour formerly sanctioned is no longer rendered an offence, criminal or otherwise. The once offensive conduct is literally depenalized, stripped of its unlawful character and all penal consequences. Cannabis, itself, may be subject to forfeiture as contraband, or its use in specified high risk situations (such as driving) may provoke a penal response, but its private possession for personal consumption does not constitute an offence.
These three decriminalization options are ideal typifications. Few Areal-world@ alternatives completely adhere to these conceptualizations. There will be occasion, however, to refer to these typifications as standards by which to locate more concrete options along a control policy continuum.
The Cannabis Control Options: A Description
There are eight operational models of cannabis control. Each permits subvariants, elaborations and hybrids, but these eight basic models represent the compass of realistic options in light of current cannabis ideology, informed discussion, and legal and constitutional constraints. Each model has been subject to or is capable of legislative drafting, and each is directly related to one of the conceptual typifications, although the Afit@ is often less than exact. As noted earlier, the extreme control options are prohibition and legalization. Prohibition defines a concrete model per se, the Narcotic Control Act and all related federal enactments, whereas legalization encompasses a number of diverse regimes, ranging from the complete absence of controls to tightly regulated and potency-controlled sales of cannabis to government-licensed consumers. For comparative purposes, legalization will be concretely exemplified by a regulation model akin to that which presently applies to alcohol.
Between these polarities rest five decriminalization options which, for reference purposes, may be designated as Bill S-19, 83-77RD, Full Deeming Provisions, Semi-Prohibition, and Transfer to Schedule G (of the Food and Drugs Act ). The first, Bill S-19, typifies the mitigation alternative. 83-77RD and Full ADeeming Provisions@ are operational variants of dispensation. Semi-Prohibition and Transfer to Schedule G are conceptually proximate to depenalization. An eighth model, Federal Withdrawal, refers to the federal abandonment of cannabis control to the provinces. Given the unpredictability and probable inconsistency of provincial measures, this final option cannot be situated along the same continuum as the other control alternatives.
The basic elements of the eight control regimes are briefly outlined in the following section. The eight models are then comparatively analyzed in light of both our legal concerns and our policy objectives. The prohibitions and maximum penalties pursuant to each option are summarized in Appendix E.
Prior to considering the control alternatives, it is worth reiterating that any reform of cannabis legislation entails complex legal, social and possibly political problems. However, the fundamental issue that must be resolved in selecting a preferred option pertains to the proper scope of the criminal law. The question that must be realistically confronted is whether our desire to discourage the use of cannabis C or, more exactly, to discourage those adverse consequences that may result from certain situations of use and populations of users C requires and warrants use of the criminal sanction. And, more particularly, whether such sanctions should be applied to users, i.e., to persons engaged solely in consumption-related activities. In formulating a legislative reply, several matters should be borne in mind. First, the criminal law, as presently constituted, does not appear to significantly discourage the incidence or frequency of cannabis use. Second, the current use of the criminal law is counterproductive and results in accumulated collateral consequences that are likely to outweigh the Aharms@ incidental to use itself. And finally, there is good reason to believe that the identifiable public health concerns can be more effectively and less expensively addressed through public education, special risk-focused programs and sanctions, and the continued criminalization of commercial cannabis activities.
(1) Prohibition. The Narcotic Control Act prohibits possession, trafficking (including possession for the purpose of trafficking), import, export and cultivation of cannabis. These acts are criminal offences and, consequently, all relevant aspects of the Criminal Code, such as the procedural and penal provisions, obtain. With respect to simple possession, the Crown may proceed by way of summary conviction (in which case offenders are liable to six months imprisonment and/or fines of one thousand dollars for a first offence and one year imprisonment and/or fines of two thousand dollars for a subsequent offence) or indictment (for which offenders are liable to a maximum of seven years' imprisonment). All other offences may be proceeded against only by way of indictment. Persons who cultivate marijuana are liable to up to seven years' imprisonment. Trafficking, including possession for the purpose of trafficking, carries a maximum sentence of life imprisonment, as do import and export. These two latter offences are subject to a mandatory minimum penalty of seven years' imprisonment. The court's sentencing discretion is expanded by the penal provisions (Part XX) of the Criminal Code. Since 1972, persons who plead or are found guilty of simple possession or cultivation may be Adischarged,@ absolutely or conditionally, in lieu of being convicted. As previously indicated, a discharge does not immunize the offender from a criminal record nor, for example, does it allow him to deny having been prosecuted or sentenced for, or having been found guilty of, a criminal offence.
The Narcotic Control Act defines trafficking so as to include the nonprofit giving of cannabis from one person to another. The Act does not differentiate between cannabis and other Anarcotics@ such as heroin and cocaine. Nor are statutory distinctions drawn between the quantities of cannabis involved in various incidents or transactions. It has been left to the courts, when sentencing, to distinguish between more and less serious trafficking, importing and cultivation offences. Similarly, any person in possession of any amount of cannabis may at the federal prosecutor's discretion, be charged with possession for the purpose of trafficking. In such cases, upon proof of possession the onus of proof is statutorily shifted from the Crown to the accused to establish that he was not in possession for the alleged purpose.
A more detailed description of the Narcotic Control Act appears in Appendix C.
(2) Bill S-19. In November, 1974, the government introduced cannabis reform legislation, Bill S-19, in the Senate. With some modifications, the Senate passed the Bill in June, 1975. The Bill would have transferred control of cannabis from the Narcotic Control Act to a new Part V of the Food and Drugs Act, reduced the maximum penalties far all offences (except cultivation), and removed the Crown's discretion to proceed by indictment in the case of possession while extending the discretion to proceed by summary conviction in lieu of indictment to all other offences.
The maximum penalties for simple possession were to be fines of $500 for a first offence and $1,000 for any subsequent offences. In default of payment of these fines first offenders were to be imprisoned for up to three months and subsequent offenders for up to six months. First Apossession@ offenders who were discharged rather than convicted would have been Adeemed@ to have been granted a pardon under the Criminal Records Act. The sanctions for commercial conduct would also have been substantially modified. Traffickers, including those convicted of possession for the purpose of trafficking, would have been liable to a $1,000 fine and/or imprisonment for 18 months on summary conviction, or imprisonment for up to 14 years less a day if the Crown proceeded by indictment. Importing and exporting would have carried maximum penalties of 2 years and 14 years less a day, on summary conviction and indictment, respectively. The maximum penalty for cultivation would have been increased to 10 years (on indictment), but a summary conviction would have carried a maximum $1,000 fine and/or imprisonment for 18 months.
Bill S-19 was later introduced in the House of Commons, but died on the order paper in October, 1976.
While moving well beyond the current provisions of the Narcotic Control Act, Bill S-19 remains an example of the mitigation alternative. Apart from the dubious value of a deemed pardon in the case of first offenders, S-19 does not alter the criminal character of a possession prosecution apart from reducing the severity of the maximum penalties that presently obtain.
(3) 83-77RD. In August, 1977, Cabinet approved the drafting of amendments to Bill S-19. This unpublicized decision (83-77RD) apparently represents current Cabinet cannabis policy. If enacted, 83-77RD, like its predecessor, would have transferred control of cannabis to a new Part V of the Food and Drugs Act and removed the Crown's discretion to proceed by indictment in the case of possession while extending the discretion to proceed by summary conviction to all other offences.
The offence of simple possession would have been made punishable by a maximum fine of $500 and, in default, a three month term of imprisonment. There would have been no special provisions for subsequent possessory offences. Persons who pleaded or were found guilty of cannabis possession would have been automatically Adeemed@ not to have been charged, convicted, sentenced or prosecuted. These Adeeming provisions@ were to have occurred immediately upon the grant of an absolute discharge and, with some exceptions, after six months in the case of a conditional discharge or conviction. The deeming provisions were to have had retroactive effect and, upon their coming into force, no information regarding the offence contained in any record of a court, police force or any government department or agency could have been disclosed to any enquirer.
The maximum penalties for all other offences were to be substantially reduced from the present sanctions, but the deeming provisions were to apply only to simple possession. Significantly, Aimport@ and Aexport@ were to be collapsed into a new definition of Atrafficking,@ and thus eliminated as separate offences. Trafficking, including constructive trafficking, was to have carried a maximum penalty of a $1,000 fine and/or imprisonment for 18 months on summary conviction, and a maximum sentence of 10 years= imprisonment upon indictment. The Amandatory minimum@ problem associated with current importation enforcement would thereby have been obviated. No method was proposed to quantitatively discriminate simple possession from possession for the purpose of trafficking. Nor were distributive activities statutorily distinguished on the bases of the amounts involved or the commercial nature of the transaction. Cabinet did decide, however, to reduce the maximum sentence for cultivation from the ten years' imprisonment on indictment provided in Bill S-19 to 5 years. A summary conviction for cultivation would have remained subject to the same $1,000 fine and/or 18 months= imprisonment prescribed in Bill S-19.
83-77RD is illustrative of a partial-dispensation approach to decriminalization. Simple possession remains a criminal offence subject to penal sanctions, but the gravity of the penalty is reduced and elaborate provisions are proposed in an attempt to Adeem away@ all records and most other collateral consequences of the event. The procedural formalities described in the Criminal Code and other relevant statutes would not be disturbed by this legislative proposal.
(4) Full Adeeming provisions.@ Both Bill S-19 and 83-77RD constitute serious efforts to reduce the direct end collateral effects of a criminal prosecution. The sanctions in 83-77RD are somewhat less severe than those in Bill S-19, but the significant difference between the two proposals rests in their approaches to the collateral consequences of a finding of guilt in possession cases. While Bill S-19 grants automatic Apardons@ to persons Adischarged@ for a first offence of simple possession, 83-77RD proposes complex Adeeming provisions@ which automatically apply to all persons discharged from or convicted of simple possession of cannabis. In addition, 83-77RD directly addresses the issue of criminal records through provisions designed to restrict the disclosure of any information regarding a possessory offender.
These two legislative proposals thus manifest executive concern to mitigate the disproportionately adverse consequences of a prosecution for consumption-related behaviour. And 83-77RD, through its elaborate deeming and criminal record provisions, reflects Cabinet awareness of the negligible ameliorative benefit of a Bill S-19 pardon and the need for more effective measures to reduce the collateral results of a criminal prosecution. However even 83-77RD may not accomplish the government's purpose since it fails to adequately protect possession offenders from the full range of consequences that flow automatically from arrest, trial, and a finding of criminal liability.
It is possible, however, to more clearly approximate the advantages of the American civil offence approach by following the central thrust of 83-77RD through to a Afull dispensation@ regime. For example, the federal government has exclusive jurisdiction over criminal procedure. As a result, Parliament could replace the formalities of current simple possession arrest, booking, bail and trial procedures with a less formal ticketing system akin to that used by the provinces for minor highway traffic or parking offences. The sole sanction for cannabis possession, as with many provincial and some federal offences, could be a nominal fine, sufficient to indicate society's disapproval but in no way intended to incapacitate or stigmatize the offender. Civil creditor remedies and community work could be substituted for imprisonment in default of payment of these fines. The deeming provisions proposed in 83-77RD could be extended to better ensure that the simple possession offender bear no liabilities beyond his immediate sentence. Upon activation of these deeming provisions, any record of the defendant's prosecution would be automatically sealed or destroyed: no reference could be made to it in any subsequent proceedings and it could be filed in special Ano-name@ data storage systems that permitted statistical analysis but not personal identification.
A full deeming provisions model can be seen as the natural culmination of a reform initiative begun with Bill S-19 and extended by 83-77RD. Like these two alternatives, a full deeming provisions model continues to apply the criminal law to cannabis users, but attempts to more comprehensively deal with both the procedural and collateral consequences of a criminal prosecution. However, a basic problem common to all three options is that no matter how imaginative or elaborate the deeming provisions, there in no way to completely Aundo@ the effects of applying the criminal law once the process has been initiated.
(5) Semi-Prohibition. A semi-prohibition model is founded on the fundamental distinction between consumption-related and commercial conduct. Consumption-related conduct refers not only to simple possession but to all functionally equivalent behaviour, such as gratuitous transfers of small amounts of cannabis for personal use and the cultivation of a few plants for one's own consumption. The semi-prohibition model seeks to discourage the use of cannabis, but acknowledges that the personal and social costs of criminalizing users outweigh any benefits that may flow from such criminalization. An American civil offence regime is not constitutionally possible in Canada, and deeming provisions, for all their ingenuity, can never fully protect an offender from the risk of collateral criminal consequences. As a result, this control option proposes the elimination of the offence of simple possession (thus depenalization), while retaining general confiscatory provisions and strict sanctions for commercial activities. Thus, semi-prohibition.
The value of this option rests in its capacity to fairly and efficiently distinguish between consumption and commercial activities. A practical method for legally differentiating one type of conduct from the other has already been elaborated (see, Defining Offences), and the following legislative guidelines are derived from that discussion. The quantitative values, although rationalized earlier, have been inserted primarily to provide a more concrete example. A brief commentary succeeds the statutory model.
(1) Possession of cannabis is not an offence if the amount possessed is 30 grams or less; but where cannabis is found by a peace officer pursuant to an otherwise authorized search, it is to be summarily seized and forfeited.
(2) Possession of more than 30 but less than 120 grams of cannabis is not an offence unless, subsequent to proof of possession, the accused is shown to have possessed the cannabis for the purpose of trafficking; but where cannabis is found by a peace officer pursuant to an otherwise authorized search, it is to be summarily seized and forfeited.
(3) Where the amount of cannabis possessed is 120 grams or more, upon proof of possession the accused shall be given an opportunity to establish that he was not in possession of the cannabis for the purpose of trafficking.
(4) Every person who possesses cannabis for the purpose of trafficking is liable to the same penalties as obtain for the offence of trafficking.
These provisions are not intended as draft legislation, but are designed to illustrate the basic semi-prohibition principles, particularly with respect to the key problem of differentiating between possession for personal use and possession for commercial purposes. The model embodies a buffer zone concept: possession of 30 grams (one ounce) or less is not an offence; possession of 120 grams (four ounces) or more is constructive trafficking unless the accused proves otherwise; possession of more than 30 but less than 120 grams C i.e., possession within the buffer zone C is not an offence unless the Crown proves that the accused had an intention to traffic. As previously indicated, care must be taken in drawing the quantitative lines so as to avoid branding consumers as traffickers or allowing true traffickers to exploit the possessory exception. The buffer zone and the shifting burden of proof should protect consumers from over-zealous enforcement while ensuring that traffickers are liable to prosecution for any amount down to, in our example, 30 grams. Actual trafficking, of course, would remain a serious offence.
The deliberate articulation of a non-offence below 30 grams is designed to prevent the provinces from entering what might otherwise be a vacated legislative field. The confiscatory provisions are intended to convey the federal government's continued disapproval of cannabis use through its refusal to ignore, and thereby sanction, the drug should it come to its agents' attention. The possession of cannabis, where not an offence, does not justify the exercise of police search and seizure powers. But where a police officer comes across marijuana or hashish pursuant to an otherwise lawful search, and a constructive trafficking charge is not warranted, he is to summarily seize the cannabis. Otherwise lawful searches would include those authorized by provincial highway traffic statutes and search warrants for stolen property or other drugs. The person from whom the cannabis is taken may challenge the seizure on the grounds that the substance seized is not cannabis. In this case, the police officer would issue a Areceipt@ and, upon payment of a nominal analysis fee (intended to discourage frivolous complaints), a qualitative chemical analysis would be conducted to determine the issue. If It were cannabis, it would be permanently forfeited. If, however, it were not cannabis, the substance would be returned and the analysis fee would be refunded. This confiscatory provision may, as well, be implicitly required by the Single Convention since there is, here, no offence of simple possession.
The remaining provisions of the semi-prohibition model demand little elaboration. Import and export, as in 83-77RD and transfer to Schedule G, would be collapsed into a new definition of trafficking. Both the offences of trafficking and cultivation would distinguish between truly commercial activities and behaviour functionally equivalent to possession. As suggested earlier (see, Defining Offences), only gratuitous transfers of under 30 grams should be assimilated to possessory conduct. Similarly, the cultivation of up to six mature plants would be reasonably considered consumption-related behaviour.
Semi-prohibition is a uniquely Canadian realization of the decriminalization alternative. Simple possession and like conduct would no longer be offences, but cannabis would remain subject to police seizure. Commercial activities, on which the police could concentrate all their enforcement efforts, would still be liable to severe sanctions. The predominant message would remain one of discouragement of use, but the victims of such a policy would no longer be chiefly those whose only significant involvement was that of personal consumption.
(6) Transfer to Schedule G. The Canadian Bar Association, the National Organization for the Reform of Marijuana Laws (Canada) and at least one popular Quebec magazine (Menard, 1977:76) have recommended that control of cannabis be transferred from the Narcotic Control Act to Schedule G of the Food and Drugs Act. This would represent a convenient, if somewhat inappropriate, method of depenalizing cannabis possession.
The drugs listed on Schedule G, including amphetamines and barbiturates, are defined as Acontrolled drugs@ and are subject to Part III of the Food and Drugs Act. Part III does not include an offence of simple possession. However, possession of any quantity of any controlled drug for the purpose of trafficking is subject to the same maximum penalties as trafficking proper: imprisonment for 18 months upon summary conviction or ten years upon indictment. ATraffic@ is defined to mean import, export, manufacture, sell, transport and deliver, but it does not include giving, administering, or distributing, as does the N.C.A. definition. The procedure in prosecutions for constructive trafficking is essentially the same as that prescribed under the Narcotic Control Act. However, if the accused establishes that he was not in possession for the purpose of trafficking he is acquitted rather than convicted of simple possession.
Cultivation is not expressly dealt with in Part III. Consequently, the offence would disappear unless Part III were amended, most simply through the inclusion of cultivation in the definition of trafficking. However, any amendment would detract from one of the major benefits of the Schedule G option: the facility with which it could be realized. Further, a single amendment for cultivation would likely invite additional and more fundamental amendments. Alternatively, control of cultivation could remain within the Narcotic Control Act. AMarihuana@ is independently defined in the N.C.A. (s. 2) and the offence of cultivation (s. 6) refers to Amarihuana@ but not cannabis. By simply transferring Acannabis sativa@ from the N.C.A. schedule to Schedule G of the F.D.A., a comprehensive, if divided, control regime would be effected, with commercial activities subject to the provisions of Part III of the Food and Drugs Act and cultivation governed by the Narcotic Control Act.
Transfer to Schedule G is an uncomplicated and expedient mechanism for dealing with the problem of cannabis law reform. Although Part III does not systematically distinguish between consumption-related and commercial conduct, it does recognize that unauthorized possession C at least with respect to the drugs it presently governs C does not warrant criminal prohibition or penal sanctions. To this degree it constitutes a depenalization option, eliminating possessory controls while retaining stringent trafficking provisions. In this latter regard, it is worth noting that Part III furnishes peace officers with the same extraordinary powers of search and seizure as are prescribed in the Narcotic Control Act. (See, Special Powers of Arrest, Search and Seizure, above.)
(7) Legalization (regulation). The legally sanctioned distribution of cannabis products could take many forms. The government could virtually abandon all concern for quality control or health and safety considerations, leaving market forces and general consumer protection and anti-combines legislation to determine the shape of the industry that is eventually established. Alternatively, a highly restrictive distribution regime could be introduced, incorporating such measures as consumer licenses, carefully rationed sales, potency controls, government-operated outlets, and narrowly limited retail sales hours. These are, in a sense, polar legalization models. The first, a laissez-faire approach, would undoubtedly precipitate a greater Incidence of cannabis use, a consequent increase in health and safety risks, and the likely oligopolization of the market by a few industrial giants. The alternate model would lead, inevitably, to the black market distribution of high potency cannabis products to persons who, for reasons of time, license, age, rationing procedure or personal preference, were unable or unwilling to obtain their supplies through government channels.
The most practical legalization model undoubtedly lies somewhere between these two extremes. Although its precise contours would vary from province to province, it would, in effect, be a regulation regime akin to that which presently applies to alcohol. The federal government would retain customs and excise controls, but would withdraw all restrictions on the possession, cultivation and sale of cannabis products. Retail distribution arrangements would fall to the provinces which, as in the case of alcohol, would determine such issues as price, quality, hours, outlets, advertising, and minimum consumer age.
Should the federal government wish to introduce a regulated distribution regime, it would have to carefully negotiate the matter with the provinces to ensure that its broad policy objectives were realized with some degree of consistency. In addition, the federal government may wish to retain consumption and commercial offences for those provinces that refuse to enact regulation legislation. In this way a recalcitrant province could be effectively prevented from punitively proscribing the use of cannabis while its neighbour province aggressively marketed the drug. As well, the federal government would either have to renegotiate or withdraw from the Single Convention on Narcotic Drugs.
(8) Federal withdrawal. The federal government could resolve to completely abandon cannabis control rather than attempt to pursue its policy objectives through criminal sanctions or by negotiating uniform legalization arrangements with the provinces. The federal authorities could simply decide that the legal complexities and political liabilities of the issue were such that its most prudent course would be to surrender legislative jurisdiction to the provinces by withdrawing all federal cannabis controls. Parliament might generate revenue from the application of its customs and excise legislation, and it would co-operate, where possible, with provincial governments in expediting or frustrating, as the particular province so directed, the importation of cannabis products; but it would take no leadership or even active role in the development or execution of cannabis policy. Cannabis control would become, in the words of the British North America Act, a Amatter of a merely local or private nature in the province.@
Each province, then, would be free to determine its own cannabis policy. In time, some would probably institute carefully regulated legalization schemes, allowing for the commercial distribution of cannabis products by licensed retailers or government-operated outlets. Others would introduce proscriptive statutes modeled after the current Narcotic Control Act. Still others would demand that the federal government reassert its authority through new criminal legislation. It is impossible to predict the direction of provincial enactments, but one can confidently speculate that there would be a wide divergence of approaches, a generally increased use of cannabis, and a level of criminal adventurism reminiscent of the heyday of alcohol prohibition.
The Cannabis Control Options: An Analysis
Only the four central cannabis control options warrant serious consideration as legislative mechanisms for achieving our public policy goals. Prohibition enjoys little public support. Its disproportionately punitive approach to cannabis use has generated contempt for the law and provoked the search for reform alternatives. Bill S-19 is also untenable. Its only significant contribution to legislative reform is its automatic pardons provision, and even this fails to effectively address the problem of the collateral consequences of a finding of guilt. In any case, the issue has been rendered somewhat academic by Cabinet's having replaced Bill S-19 with a more comprehensive proposal, 83-77RD. The most extreme options, legalization and federal withdrawal, are also very unlikely to survive any critical discussion of cannabis control alternatives. Both schemes involve a surrender of federal authority over cannabis to the provinces, and both would probably necessitate a withdrawal from or renegotiation of our Single Convention commitments. Any regime that provided for licit distribution would lead to increased consumption and a parallel rise in the health and safety risks that motivate our current concern to discourage use. Black markets would flourish, even within a regulation model, if the government price was too high, the potency too low, or if all the provinces failed to adopt uniform measures. Both options are likely to prove politically unpopular, at least in the near future. However, a regulation model would generate considerable tax revenue for both federal and provincial treasuries.
Those options most likely to accomplish the goal of minimizing health and safety risks at the lowest possible personal, social and financial costs are the dispensation models (83-77RD and full deeming provisions) and the depenalization models (semi-prohibition and transfer to Schedule G). The critical distinction between these pairs of options is that the former retains a criminal sanction for consumption-related behaviour while the latter pair do not. As the previous analysis has endeavoured to show there are inevitable costs to using the criminal law to achieve social policy objectives: costs related to the best use of limited enforcement resources; the human costs of criminal arrests, processing and record-keeping; and the costs of increasing disrespect for a criminal justice system at variance with public morality and scientific fact. The most important question, then, is whether our legitimate public health concerns warrant the continued application of the criminal law to cannabis users. Once this has been decided, the choice of a preferred option within each pair of alternatives is not difficult.
It is important to note that the dispensation options are responses to the well-recognized liabilities that flow from using the criminal sanction. Both 83-77RD and full deeming provisions define cannabis possession as a crime, and then propose complex, and unavoidably confusing, provisions for removing the collateral consequences of such a criminal definition. These Adeeming provisions,@ no matter how elaborate, can never totally undo the personal effects of a criminal prosecution, nor can they guarantee the closure of all related records. Despite the broad sweep of 83-77RD's record-sealing measures, any attempt to control provincial or municipal offence documentation would probably precipitate a constitutional challenge from the provinces. These deeming and record-keeping provisions would increase, rather than reduce, the costs of administering federal cannabis control. Further, both options would likely encourage prosecutions, as occurred when the Adischarge@ provisions were first introduced. The ironic result could well be even more persons channeled through the criminal justice system with even less likelihood of discouraging their cannabis use.
Of the two dispensation alternatives, full deeming provisions is to be preferred. It reduces the enforcement costs and personal degradation associated with conventional arrests and prosecutions by substituting simplified ticketing procedures for the present formalities. It also proposes to extend the scope of 83-77RD's deeming and record-keeping provisions, and renders imprisonment a last resort for default of payment of fines. Like 83-77RD, however, it cannot fully eliminate the collateral consequences that result from criminalizing possessory conduct.
Neither semi-prohibition nor transfer to Schedule G create an offence of simple possession. Semi-prohibition, however, does make cannabis liable to summary confiscation and, to that degree at least, conveys Parliament's disapproval of even consumption-related conduct. The absence of a possessory offence serves to concentrate enforcement resources on commercial activities, and both models continue to apply strong penalties to such conduct.
The Schedule G option could be achieved by passage of a bill or by order-in-council. However, use of the latter method is likely to attract political criticism. More fundamental concerns include the absence of an offence of cultivation for Schedule G drugs and the constitutional possibility that the provinces would pass complementary legislation related to cannabis possession once Parliament withdrew its controls. In addition, the failure to specify the quantity necessary to constitute constructive trafficking would virtually invite zealous police and federal prosecutors to pursue otherwise groundless possession for the purpose cases.
In contrast, the semi-prohibition model draws firm quantitative distinctions between consumption-related and commercial behaviour, with regard to both possessory and functionally equivalent conduct. By expressly depenalizing certain behaviours, it avoids the possibility of inconsistent provincial incursions and permits users to adjust their conduct so as to avoid the risk of unintended criminalization. Of the two depenalization options, semi-prohibition is preferred since it meets our earlier definitional concerns, better advances the interests of fairness and efficiency, is easy to comprehend, and effectively communicates a message of discouragement of use.
Our primary concern is to minimize the health and safety risks associated with the use of cannabis. The pursuit of this objective has required careful consideration of the gravity of the harms attributed to cannabis and the countervailing costs of any control measures. Given our empirical understanding of both the effects of cannabis and the adverse consequences that flow from applying a counterproductive possessory sanction, it appears, on balance, that essentially the same measure of public health protection can be attained through a less comprehensive and injurious use of the criminal law. Although a broad range of variations is possible, a legislative reform which best achieves this balancing of interests would probably bear a close resemblance to the semi-prohibition model.
1Various American surveys have found that a very small proportion, usually less than 10% of those who do not use cannabis, attribute such non-use to the risk of legal prosecution. (See, National Drug Abuse Council, Feb. 16, 1978; State of Maine, Jan. 5, 1979.)
2This case is also significant in that it indicates the willingness of some provinces to constitutionally challenge what they perceive to be federal incursions on their power over the administration of criminal justice. Any federal attempts to control provincial records would probably provoke a similar constitutional challenge.
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