Appendix C

The Narcotic Control Act — An Elaboration

The possession, distribution ("trafficking"), import, export and cultivation of any "narcotic" are currently prohibited by provisions of the federal Narcotic Control Act (N.C.A.). The term "narcotic" refers to any substance included in the Schedule to the Act, including natural and synthetic opiate narcotics (such as opium and heroin), cocaine, phencyclidine (PCP), and cannabis (including marijuana, hashish, hashish oil, and THC). Under one designation or another, cannabis has been listed on this Schedule since 1923, although it is universally recognized that cannabis is not, in any scientific sense, a narcotic. Commission of any act prohibited by the Narcotic Control Act constitutes a criminal offence. Consequently, all relevant provisions of the Criminal Code apply (Interpretation Act, s. 27(2)), and any convicted offender is subject to those derivative consequences (such as a criminal record) which necessarily attach to persons convicted of any crime.

All offences involving cannabis are indictable offences. In the case of simple possession, however, the Crown has the option of proceeding by way of summary conviction. Persons found guilty of unauthorized, or simple, possession (N.C.A., s. 3) are liable, upon indictment, to a maximum of seven years' imprisonment, and upon summary conviction, to a maximum of six months' imprisonment and/or a fine of one thousand dollars for a first offence and one year's imprisonment and/or a fine of two thousand dollars for a subsequent of fence. Persons convicted of unauthorized cultivation (N.C.A., s. 6) are subject to a maximum of seven years' imprisonment. The offences of trafficking (N.C.A., s-s. 4(1)) and possession for the purpose of trafficking, (N.C.A., s-s. 4(2)) render offenders liable to a maximum penalty of life imprisonment. The unauthorized import or export (N.C.A., s. 5) of cannabis are subject to a minimum of seven years' and a maximum of life imprisonment.

Possession, for purposes of the Narcotic Control Act, is defined in subsection 3(4) of the Criminal Code:

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

Cultivation refers to the intentional growing of cannabis plants, not the mere possession of such plants. The statutory law does not distinguish between cultivation for personal consumption and cultivation for purposes of trafficking.

Trafficking is set out very broadly in the Narcotic Control Act. Section 2 defines "traffic" as "to manufacture, sell, give, administer, transport, send, deliver or distribute," or "to offer to do" any of these things, without authority. Section 4 prohibits not only trafficking in narcotics but, as well, in "any substance represented or held out...to be a narcotic." Possession need not be demonstrated to determine the offence of trafficking. Purchasers of narcotics are not guilty of trafficking. There is no statutory distinction drawn between levels of trafficking; sharing a quantity of cannabis or selling it at cost to a friend is not differentiated from commercial profit-making transactions involving large quantities of the drug. It has been left to the courts, when sentencing, to distinguish between more and less serious trafficking activities.

Possession for the purpose of trafficking charges involve a unique two-stage trial process. If the accused does not plead guilty, section 8 (N.C.A.) provides that the trial initially proceeds as though the offence charged was one of simple possession. If such possession is not proved, the accused is acquitted. If, however, possession is proved, the burden of proof shifts to the accused to establish, on the balance of probabilities, that he was not in possession for the purpose of trafficking. Should the accused so establish, he is acquitted of the possession for the purpose charge, but convicted of the offence of simple possession and sentenced accordingly. If the accused fails to discharge the burden on him, he is convicted of and sentenced for possession for the purpose. As there are no quantitative distinctions outlined in the Narcotic Control Act, whether an accused is charged with simple possession or possession for the purpose depends solely on the discretion of the prosecuting attorney.

The importation of cannabis raises difficulties for the police, prosecutors and the courts in light of the seven year mandatory minimum sentence, irrespective of the quantity involved. Because there is understandable concern about sentencing young persons to lengthy terms of imprisonment, Crown attorneys often exercise their prosecutorial discretion in deciding to lay reduced charges. The decision as to when to exercise such discretion and which charge to lay with respect to any particular importing incident is determined by confidential guidelines developed by the Department of Justice.

Although the Narcotic Control Act fixes the maximum (and, in the case of import and export, minimum) sanctions that may be awarded offenders, the general penal provisions of the Criminal Code (Part XX) allow the courts a much broader sentencing discretion than is first apparent. By way of illustration, the alternative penalties available in the case of simple possession of cannabis range from an absolute discharge to a fine in any amount and imprisonment for seven years. The final disposition depends on, first, whether the Crown elects to proceed by summary conviction or indictment and, subsequently, on how the presiding judge chooses to exercise his sentencing discretion.

A new sentencing option became available in 1972 with the introduction of absolute and conditional discharges. Although applicable to all federal offences within the limits specified by section 662.3 of the Criminal Code, these provisions were originally publicized as a dispositional alternative with respect to simple possession of cannabis. In essence, a person granted a discharge is "deemed not to have been convicted of the offence" to which he pleaded or was found guilty. The conditions for granting a discharge are such that the only Narcotic Control Act offences to which it is applicable are simple possession and cultivation. The discharged offender — despite the absence of a "conviction" — still suffers a criminal record of the event. He may deny having been convicted, but he cannot honestly deny, for example, having been arrested, charged, tried or prosecuted for a criminal offence, having pleaded guilty to (or have been found guilty of) a criminal offence, having been discharged or sentenced for a criminal offence, or, perhaps, having a criminal record. Further, in order to restrict disclosure of his criminal record, a discharged offender, like a convicted offender, must still make an application for a pardon under the Criminal Records Act. This application may entail exposure of the applicant, his family, friends, professional acquaintances and employer to police investigation and interrogation.