Drug Abuse

Part 4 – Legal Issues and Options

 

3. Introduction

Thus far, we have surveyed the empirical bases of cannabis control policy. The health and safety correlates, the epidemiology of cannabis use and the nature of the cannabis market have been examined. We have also detailed our legal response to cannabis use, including such matters as police powers, the processing of suspects and information, enforcement statistics, and the financial and sociolegal costs of the present controls. These background data permit an informed analysis of the cannabis control options and their relative capacity to attain our policy goals.

The preferred cannabis control alternative is that regime which best achieves our social policy objectives. As outlined earlier, the major objectives are the minimization of those public health concerns associated with contemporary usage patterns and those individual and social costs ascribable to legal controls and enforcement practice. These twin objectives are somewhat contradictory, and their maximal realization thus requires a balancing of interests. To date, however, official policy has been exclusively directed toward minimizing the health and safety harms, chiefly through a strategy of general discouragement of use. The instrument of social control traditionally employed to effect this policy of discouragement has been the criminal law. While education and information programs have been used as ancillary measures, historically primary reliance has been placed on the criminal sanction. Although it is impossible to estimate what the prevalence of cannabis use would be in the absence of legal penalties,¹ it is clear that millions of Canadians have not been deterred by the criminal law. More importantly, reliance on the criminal law engenders adverse consequences which may outweigh the harms incidental to that very conduct it was designed to discourage.

The criminal sanction represents the extreme end of the social control continuum. In the words of the respected legal theorist Herbert Packer (1968:250), it is the "ultimate threat . . . that should be reserved for what really matters." Certain aspects of cannabis use or commerce may generate risks that warrant application of the criminal law. But it is a question of degree, proportionality and appropriateness: of how to achieve the desired health and safety objectives at the lowest possible social, personal and financial costs. Our current approach is overly-comprehensive. By maintaining a blanket prohibition we have criminalized some relatively inoffensive conduct and tens of thousands of otherwise law-abiding persons; yet we have failed to effectively address those public health matters of genuine concern.

It should be re-emphasized that cannabis use, per se, is a relatively innocuous activity. The major risks posed by cannabis consumption are limited to clearly delineated populations, certain types of conduct (behaviour) requiring skilled functioning, and smoking, the most prevalent mode of administration. Since the significant health and safety concerns can be readily identified, our response should be specifically designed to minimize these potential harms. Driving while cannabis-intoxicated, for example, is one kind of hazardous conduct that entails risks more amenable to risk-tailored measures than any general possessory prohibitions. This type of risk-focused approach serves several important functions: government's concerns, better achieves the desired balance of objectives than general prohibitions, and avoids the needless collateral costs of blanket criminalization. Such risk-specific criminal measures should be but one part of a comprehensive, integrated governmental response that also includes educational, informational and interventionist measures. This multi-modal response is essential to effectively reduce the incidence of cannabis-related public health concerns.

Before reviewing the cannabis control alternatives, we will examine several legal factors that mark the outer boundaries of any legislative response to cannabis use in Chapter 4. These include certain normative concerns such as clarity, efficiency and fairness, constitutional and international restraints on federal legislative discretion, and the problem of meaningfully defining offences. Eight legislative options are then conceptually delineated, described and critically analyzed with respect to the global objectives and normative and legal constraints in Chapter 5.

4. Factors To Be Considered in Framing a Legislative Response

A number of legal factors which fix the outer parameters of federal legislative discretion must be surveyed prior to examining the cannabis control options themselves. Some of these considerations are a product of international agreements or the Canadian constitution. Other concerns are of a more normative nature, pertaining to goals or ideals applicable to the design of any criminal legislation.

Normative and Design Concerns

Among the jurisprudential concerns that ought to be addressed in framing any legislative response are clarity, efficiency and fairness. Of initial importance, then, is that legislation provide the public with a clear and unambiguous statement of federal government concerns and policy. This is particularly important with respect to cannabis legislation because it affects a broad and largely young segment of the general population. The need for a clear message is heightened by the controversy and misinformation surrounding both the drug's effects and the present law. The public need not understand the technicalities or legal nuances of complex penal legislation, but it must be able to appreciate the central thrust of government policy and the consequences of violations.

One problem with the present control regime is that it no longer reflects current knowledge about the drug or, for that matter, current government concerns. The legislation conveys the message that cannabis use per se is a hazardous activity, a characterization that is belied by the personal experience of over three million Canadians. This contradiction between official legislative policy and individual experience has undercut the legitimate health and safety concerns posed by cannabis. Of equal importance, it is likely to have undermined the credibility of the criminal justice system, especially among the young.

Similar problems have arisen from the public's misunderstanding of both the present law enforcement approach to cannabis and the significance of a cannabis conviction. The impression has been created that arrests for simple possession of cannabis are decreasing and that the police are concentrating almost exclusively on traffickers. Many believe that if convicted of simple possession they will avoid a criminal record, while others believe an offender can have his criminal record for cannabis possession completely expunged. As indicated in Part 3 – The Empirical Bases of Cannabis Control Policy, these views are unfounded.

The present legislation no longer reflects current policy, confuses rather than emphasizes the real health and safety concerns posed by cannabis, has generated a misleading impression of the law, and may seriously threaten the integrity of the criminal justice system.

A second normative concern, the efficient allocation of criminal justice resources, has become increasingly important given competing demands on an already over-burdened criminal justice system. The earlier reported finding that "decriminalization" of cannabis in California resulted in decreased arrests for marijuana possession, but increased arrests for heroin and other drugs, is particularly germane. Any legislative option that reduces the $60-l00 million yearly cost of cannabis enforcement in Canada will likely result in increased enforcement of other, and hopefully more serious, offences. Thus, the first issue is whether the present allocation constitutes the most efficient and effectual use of a limited resource. No matter how this issue is resolved, efforts must be made to ensure the wisest allocation of those enforcement resources ultimately assigned to cannabis control.

Because responsibility for police activities falls on all three levels of government, federal, provincial and municipal, the federal government's ability to influence the allocation of resources among all criminal offences and within a specific criminal area is extremely limited. Changes in R.C.M.P. drug enforcement policy, federal drug prosecutors’ directives, and federal-provincial discussions may be of some limited assistance. However, it should be noted that attempts to focus aggregate police resources on the hard drugs and major cannabis trafficking cases have not been successful. Simple possession of cannabis now accounts for over 85% of all cannabis charges and about 80% of all adult charges under the Narcotic Control Act. The federal government cannot substantially alter this heavy concentration of resources on enforcement of consumption-related offences so long as it maintains a general prohibition against cannabis possession. The options discussed below vary both in terms of their likely enforcement costs and the extent to which they facilitate concentration of police attention on specific high-risk behaviours. If a blanket prohibition against all consumption -related behaviour is maintained, significant savings are not likely to be realized, nor is the public's protection from legitimate health and safety concerns likely to be enhanced.

A final, general normative concern relates to two matters traditionally subsumed within the term "fairness." The first, proportionality, deals with whether the legislative response to cannabis-related behaviour is appropriate relative to the response to other potentially harmful behaviours. In this regard, any legislative response must be considered in terms of the severity of its sanctions, the risks posed by the proscribed conduct, the allocation of enforcement resources, and the breadth of the relevant police powers. Proportionality, like the efficient allocation of limited enforcement resources, involves the comparison of cannabis use with other risk-producing conduct and the subsequent comparison of cannabis-related behaviours relative to one another. The seven year mandatory minimum sentence for cannabis importation is perhaps the most commonly cited example of disproportionality, and one that has provoked at least some judges to ignore the law and impose lesser, unauthorized sentences. Public opinion data indicate that there is broad support for remedying many such inequities.

A second aspect of fairness is equality of treatment. This fundamental principle of our legal system requires that like cases be treated alike. In the context of federal cannabis policy, this principle would require that the legal definitions of offences correspond to meaningful categories and distinctions. The present definitions of trafficking and constructive trafficking have been widely criticized for including within the distributional offences conduct that is functionally equivalent to simple possession. For example, persons who engage in conduct virtually identical to simple possession, such as the communal sharing of a marijuana cigarette, are liable to the same penalties as large-scale commercial traffickers.

The principle of equality of treatment must be tempered by a capacity to respond to individual cases. Traditionally, this has been accomplished by granting a broad measure of discretion to police, prosecutors and judges. But, there are legitimate concerns that this discretion be uniformly exercised in accordance with explicit or implicit cannabis policy goals. Even if the federal government provided a clearer statement of its policies and concerns, it could only indirectly influence this exercise of discretion. To directly address the issue, the present general prohibitions and high maximum penalties would have to be replaced with more specifically defined offences and sanctions.

International Considerations

Canada is a party to the Single Convention on Narcotic Drugs, 1961, as amended by the 1972 Protocol. This treaty determines Canada's international obligations regarding the domestic control of cannabis products. It subjects "cannabis," "cannabis resin" (hashish) and "extracts and tinctures of cannabis" to stringent general control measures governing, among other things, import, export, manufacture and domestic distribution. "Cannabis" is defined as "the flowering or fruiting tops of the cannabis plant...from which the resin has not been extracted." It is generally conceded that this definition permits the legalization of the leaves of the cannabis plant, provided they are not accompanied by the flowering or fruiting tops. THC and its isomers are governed by the Convention on Psychotropic Substances, a distinct treaty to which Canada has not yet acceded.²

The primary object of the Single Convention is to restrict the trade in and use of controlled drugs, including cannabis products, to exclusively medical and scientific purposes. To this end, a number of elaborate reporting and licensing measures have been developed. As well, the sole penal provision of the Single Convention (article 36) requires that,

...each Party shall adopt such measures as will ensure that cultivation, production, manufacture, extraction, preparation, possession, offering, offering for sale, distribution, purchase, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation and exportation of drugs contrary to the provisions of this Convention, and any other action which in the opinion of such Party may be contrary to the provisions of this Convention, shall be punishable offences when committed intentionally....

Consequently, Canada is bound to treat these activities, with respect to cannabis, cannabis resin, and extracts and tinctures of cannabis, as punishable offences. However, the prevailing view is that article 36 is directed towards illicit traffickers rather than drug users. As a result, it is generally accepted that the word "possession" in article 36 refers to possession for unauthorized distribution and not simple possession for personal consumption. Other consumption-related conduct described in article 36 may be similarly excluded from the treaty-prescribed obligation to impose penal sanctions. Thus, "cultivation" for personal use and even non-commercial "distribution" such as sharing, would, like possession for personal consumption, fall outside the mandatory penal provisions of article 36.

Certain "general obligations" in the Single Convention prevent Canada from affirmatively authorizing cannabis possession except for medical or scientific purposes. While these general obligations (articles 4 and 33) do not oblige treaty parties to impose penal sanctions on possession for personal use, they do require that non-penal measures be taken to discourage such possession. This, essentially, is Canada's present policy with respect to the "controlled drugs", such as amphetamines and barbiturates: these drugs may only be obtained upon prescription but their unauthorized possession is not a criminal offence. One such non-penal measure that may be employed is confiscation. Parties are expressly bound to seize and confiscate drugs involved in the commission of article 36 offences, but there is no explicit parallel confiscatory requirement for consumption-related conduct that, as indicated, falls outside of this penal provision. At least one country, the Netherlands, has found an implicit treaty obligation to confiscate drugs possessed for personal use. However, such a confiscatory obligation does not appear to necessarily flow from Single Convention requirements.

In summary, the Single Convention provision which obliges Canada to render certain cannabis-related conduct punishable offences allows considerable constructive latitude. The obligation to criminalize the specified behaviours apparently depends on the purpose of the behaviour. A party is required to impose criminal sanctions on conduct in furtherance of commercial trafficking, but not on conduct — be it possession, cultivation or distribution — that relates solely to personal consumption. Consequently, Canada is not required to criminalize consumption-related activities, although it may continue doing so. Further, even If continues to criminalize persons engaged in consumption-oriented conduct, the 1972 Protocol no longer requires a party to convict or punish such offenders. Finally, the general obligation to limit the possession of cannabis products exclusively to legally authorized medical and scientific purposes refers to administrative and distribution controls. Although this provision may require confiscation of cannabis possessed without authorization, it does not bind Canada to criminally penalize such possession.

A more detailed analysis of Canada's international obligations, including a discussion of the amending and withdrawal provisions, appears as Appendix A: The Single Convention and Its Implications for Canadian Cannabis Policy.

Constitutional Considerations

The Canadian constitution severely limits both federal and provincial legislative responses to cannabis. The innovative cannabis control regimes adopted in some Western European and several American states are incompatible with the unique division of legislative powers that characterizes our constitution. It is necessary, then, to briefly examine Parliament's and the provinces' constitutional jurisdiction to enact cannabis legislation. The problem of whether Parliament can create a non-criminal (or "civil") offence and control provincial police and court records will also be explored.

Jurisdiction. Both federal and provincial governments have the constitutional authority to enact valid cannabis legislation. Parliament's authority can be founded on its criminal law power, s. 91(27) of the British North America Act, 1867 (B.N.A. Act), and its trade and commerce power, s. 91(13) of the B.N.A. Act. Under its criminal law power, Parliament can enact legislation for the promotion of public order, safety, morals, and health, provided the legislation contains penal sanctions. If Parliament repealed the present cannabis prohibitions, it could still invoke its criminal law power to enforce standards of quality and purity for the drug. However, Parliament could not, in the name of criminal law, establish a regulatory scheme for the retail licensing and distribution of cannabis. Such a statute would be struck down as "colourable" criminal legislation, i.e., as legislation which bears the trappings of the criminal law, but which in fact, deals with matters assigned exclusively to the provinces. Federal legislation regarding the retail distribution of cannabis would almost certainly be held to invade the provincial power to control intraprovincial trade — a subject reserved for the provinces by virtue of their authority over property and civil rights (s. 92(13) of the B.N.A. Act).

Parliament has some constitutional jurisdiction over trade and commerce, but this head of power has been judicially defined to include only interprovincial and international trade. While Parliament could use this power to regulate, tax and even prohibit importation of cannabis into Canada, it could not, without use of the criminal law power, control cultivation within a province or intraprovincial cannabis sales. If Parliament relied exclusively on its trade and commerce power, each province could enact their own cannabis regulatory schemes.

The provinces have three constitutional bases for cannabis legislation: the provincial health power, s. 92(7), the provincial trade and commerce power, s. 92(13), and the provincial power over matters of merely a local or private nature in the province, s. 92(16). Just as Parliament cannot usurp provincial control over intraprovincial trade by enacting colourable criminal legislation, the provinces cannot, in the guise of health or intraprovincial trade, enact what is in essence criminal law. The provinces can Impose penalties for violation of provincial statutes, but these statutes must serve purposes constitutionally assigned to the provinces. The penalties for such violations may be as severe as those prescribed by federal statutes, but these provincial violations are defined as "offences," not "crimes," and such offenders do not have "criminal records."

Since Parliament and the provinces both have constitutional power to enact valid cannabis legislation, whether any provincial legislation is operative depends on the extent and nature of any federal cannabis legislation and the constitutional doctrines of paramountcy and concurrency. The doctrine of paramountcy provides that where valid federal and provincial legislation on the same subject conflict, the federal statute prevails, rendering the provincial legislation "dormant" or "inoperative" to the extent of the conflict. Where there is no inconsistency or repugnancy between the federal or provincial laws, both operate concurrently. The problem, then, is to determine what constitutes inconsistency or repugnancy.

Although the issue is contentious, it appears that the Supreme Court of Canada has adopted a test of "operating incompatibility" which requires that there be an express contradiction between the federal and provincial statutes. The test of such incompatibility is usually expressed as the impossibility of obeying one statute without violating the other. Thus, if Parliament were to pass legislation stating that it is an offence to possess more than a specified amount of cannabis, the provinces would be likely to enact legislation prohibiting possession of less than the specified amount as there would be no operating inconsistency between these two acts. Should Parliament wish to prevent provincial possessory legislation, it would have to expressly state that it is not an offence to possess less than the stipulated amount.

If Parliament, by modifying its cannabis legislation, vacated part of the cannabis control field, each province could enact its own complementary cannabis statutes. In the case of a complete federal withdrawal, one province could establish a government retail distribution system akin to a Liquor Control Board. Another province, however, could prohibit cannabis possession, cultivation and distribution under its health power. Once having vacated the field, Parliament could not prevent these variations in provincial responses. It is possible, however, that Parliament could negotiate with the ten provinces, offering to withdraw in return for provincial legislation which met its policy objectives.

Non-criminal, or "civil," offences.

A number of American states have "decriminalized" cannabis possession by transferring the offence from their criminal codes to their civil codes. Cannabis possession is not, as a result, legalized; it remains an offence subject to punishment like a violation of highway traffic legislation, but it is not a "criminal" offence and the offender does not have a "criminal record." This transfer is possible because state governments have both criminal and civil jurisdiction. As appealing as this model might be, it appears to be constitutionally unavailable to Parliament. Since Parliament's jurisdiction over cannabis is based on its criminal law power, it is difficult to see how it could create a civil offence, when the courts have defined a crime as an act prohibited with penal consequences. In any event, the Interpretation Act R.S.C. 1970, c. I-23, s. 27(2), deems the violation of any federal statute — no matter what head of power it is enacted under — to be a criminal offence. Thus, unauthorized parking on federal property, in violation of the Government Property Traffic Act R.S.C. 1970, c. G-10, constitutes a criminal offence. The fact that this legislation provides for the ticketing of the vehicle and the entering of a conviction upon payment of a set fine does not negate the criminal nature of the offence, but merely relates to the procedures used to enforce the law.

Criminal records.

Parliament has jurisdiction over criminal law and procedure by virtue of s. 91(27) of the B.N.A. Act. However, under s. 92(14) the provinces are responsible for the administration of justice, including the constitution, maintenance and organization of the criminal courts. Provincial enforcement agencies generate enormous amounts of data, and the issue arises as to whether it is Parliament or the provinces which can control the collation and dissemination of this information. These police and court records are created in the normal course of the administration of criminal justice and are essential for system management. Consequently, the provinces would argue that these data rest within their sole constitutional power. The federal Government would claim that control over such records is necessarily incidental to its powers over criminal law and procedure, and that therefore it is competent to enact legislation concerning the data. If the federal government is right, then it might, through the doctrine of paramountcy, be able to control these data despite contraveiling provincial legislation.

Although this specific matter has not yet been litigated, the Supreme Court of Canada is presently deciding a somewhat analogous issue involving a conflict between the provincial power over the administration of criminal justice and Parliament's power over the criminal law. (See, Re Hauser and The Queen (1976), 80 D.L.R. (3d) 161 (Alta. C.A.))² Based on appellate court decisions and available authorities, it would appear that the provinces may well have exclusive control over the collection and dissemination of these records. This issue is of crucial importance as several of the cannabis control options discussed below, as well as proposed changes in the Criminal Records Act purport to prohibit the dissemination of any police, court or related record in the hands of any administration of criminal justice agency of any government. While the purpose of these federal proposals is commendable — namely, to reduce the collateral punitive consequences of a criminal record — they may nonetheless be unconstitutional. In analyzing the legislative options it is important to keep in mind that Parliament may not have the constitutional power to limit the collection and dissemination of local and provincial police and court records which it is responsible for creating.

In summary, Parliament's range of options is limited. It cannot create a civil offence. Once Parliament has made a certain cannabis-related criminal, the entire spectrum of collateral consequences of a criminal record automatically apply. While some of these consequences can be retroactively "deemed" away through elaborate legislative mechanisms, the criminal offender will inevitably suffer some residual disadvantages. If Parliament is intent on eliminating these consequences for possession of small quantities of cannabis, it must explicitly remove the criminal offence in such a fashion as to prevent the provinces from enacting parallel provincial offences.

Defining Offences

Central to the formulation of rational legislative policy is the problem of defining offences to reflect meaningful behavioural categories. This is an implementational problem, an issue that arises independent of the selection of a preferred control option. However, it is of such importance, particularly with regard to the innovative reform models, that it should be addressed at this preliminary juncture.

Our concerns, then, are several. First, cannabis-related offences should be referable to common-sense understandings of the proscribed conduct. The offences, in other words, should derive from "real" behaviour rather than abstract legal theory. Second, if statutory behavioural distinctions carrying differential penalties are drawn, they should accord with popular moral as well as behavioural conceptions. Third, while offences should be defined so as to forward policy goals and facilitate enforcement, they must also be sufficiently precise and narrow to ensure that the public can identify the boundaries of legal conduct and thus avoid the risk of unintended criminalization.

Canadian drug control legislation has always distinguished between consumption-related conduct and commercial conduct, between those who merely use drugs and those who sell them. The present statutory response to cannabis consumption is found in the Narcotic Control Act offence of possession. All other cannabis-related offences — trafficking, import, export and cultivation — appear to be directed at distributors. The different treatment accorded consumption and distributional conduct is reflected in the statute's procedural and penal provisions. Further, this fundamental distinction is not unique to Canada, but appears in the drug legislation of every western nation and is internationally acknowledged in the Single Convention on Narcotic Drugs.

This distinction mirrors an important difference in the public moral characterization of these two classes of conduct. Personal use may not be countenanced, but it is thought a private indulgence that interferes little, if at all, with the rights or interests of others. Commercial activities, on the other hand, imply the active distribution of cannabis products for monetary gain. The relationship between cannabis use and commercial distribution is clearly symbiotic, but it is rational to distinguish between those who engage in consumption and those who profit from it, between those who assume personal risks and those responsible for generating such risks for monetary gain. Further, it makes strategic and policy sense to draw this distinction if it better concentrates enforcement resources on distributive conduct. The vigorous application of the criminal law is likely to have a greater impact on interdictions of supply than on the reduction of demand.

Considerations of both fairness and efficiency dictate that cannabis legislation accurately distinguish between consumption-related and commercial activities. The Narcotic Control Act, however, suffers from at least three problems in this regard which result in an over-comprehensive use of the criminal sanction. The first problem relates to the statutory definition of importation; the second concerns constructive trafficking (i.e., possession for the purpose of trafficking); and the third pertains to behaviour that is functionally equivalent to possession. Any new cannabis control regime should avoid unintended adverse consequences by carefully crafting offence formulations so as to address each of these problems.

Importation. The unauthorized import and export of cannabis are subject to a minimum sentence of seven years and a maximum sentence of life imprisonment (N.C.A., s. 5). Although export convictions are rare, importation convictions are a fairly common occurrence. Unfortunately, the Narcotic Control Act fails to distinguish between importation for personal consumption and importation for purposes of trafficking. Consequently, all those convicted of importing — no matter how minuscule the quantity involved — are subject to the mandatory minimum sentence.

Because there is understandable concern about imposing lengthy prison sentences on persons who have imported small quantities of cannabis, federal prosecutors often exercise their discretion to lay reduced charges which carry no mandatory minimum, such as possession for the purpose of trafficking. Their exercise of such discretion is apparently governed by confidential guidelines developed by the Department of Justice. However, the very confidentiality of these guidelines, when coupled with the fact that a prosecutor's exercise of discretion is effectively immune from judicial challenge, raises serious concerns about the right to equal protection before the law. Furthermore, the failure to statutorily distinguish between consumption-related and commercial importation has virtually precluded judicial sentencing discretion, with the result that almost every recent importation sentence has been for the minimum mandatory term of seven years.

In view of these considerations, it is procedurally fairer and more consistent with our current knowledge of cannabis to statutorily redefine the offence of importation so as to provide a more flexible and less punitive response. A judge could then consider the offender's purpose (personal consumption or commercial re-sale) and the quantity of cannabis involved, along with other salient factors, in fixing an appropriate sentence. This reformulation could be most easily achieved through a collapsing of "import" and "export" into the definition of trafficking. This is the statutory approach already taken with "controlled drugs" (such as amphetamines and barbiturates) and "restricted drugs" (such as LSD and psilocybin). (See, Food and Drugs Act, ss.33 and 40).

Constructive Trafficking. A second problem derives from the present definition of constructive trafficking. Drug enforcement would be severely hampered if proof of an actual sale were required to establish a trafficking conviction. Indeed, such a requirement would render it almost impossible to prosecute major traffickers, since they rarely sell to anyone but trusted acquaintances. These difficulties led to the introduction of the offence of "possession for the purpose of trafficking" (N.C.A., s. 4(2)) in 1954. Its effect was to make anyone who possessed any amount of a "narcotic" (including cannabis) for the purpose of trafficking liable to the same maximum penalty as a person convicted of actual trafficking: life imprisonment.

Possession for the purpose, or constructive trafficking, is further statutory acknowledgment of the distinction between consumption-related and commercial conduct. Theoretically, possession of any amount of cannabis could constitute either simple possession or constructive trafficking, depending solely on the suspect's intention. Obviously the amount possessed serves as evidence of intention, but it is not determinative. As a result, police resources are occasionally needlessly expended on trifling constructive trafficking prosecutions, since there is no conclusive way to distinguish one offence from the other; some traffickers defeat possession for the purpose charges because there are no statutory quantitative guidelines; and, invariably, some persons who possessed cannabis merely for personal consumption are convicted of and sentenced for the far more serious offence of constructive trafficking. The absence of quantitative demarcations also prevents a cannabis user from confidently adjusting his conduct to avoid a constructive trafficking charge or conviction.

The risk that a person possessing cannabis for personal consumption may be found guilty of constructive trafficking is further enhanced by special procedural provisions. Section 8 (N.C.A.) prescribes a two stage trial process in possession for the purpose cases. If the accused does not plead guilty, the trial 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 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 and sentenced for the offence of simple possession. If, however, the accused fails to discharge the burden on him, he is convicted of and sentenced for possession for the purpose.

This procedure is relatively rare in Anglo-Canadian criminal jurisprudence in that it involves an express transfer of the burden of proof from the Crown to the accused. In effect, where a person is charged with constructive trafficking, section 8 allows proof of unauthorized possession of any amount of cannabis to raise a statutory presumption of an intention to traffic. This presumption is rebuttable, but only by proof which carries on the balance of probabilities. If the evidence adduced by the accused merely raises a reasonable doubt as to his intent, he is not entitled to the benefit of that doubt. This onus-shifting procedure has been challenged as a violation of the presumption of Innocence guaranteed by the Canadian Bill of Rights R.S.C. 1970, Appendix III. While its constitutionality has been upheld, it nonetheless must be viewed as such a marked departure from fundamental principles of our judicial system that it is only warranted where there is a prima facie case of an intention to traffic.

Neither fairness nor efficiency is advanced by the current substantive and procedural provisions with respect to constructive trafficking. A statutory mechanism is required for distinguishing between consumption-related and commercially-related possession that would permit cannabis consumers to purposively and confidently avoid the risk of more serious prosecutions while allowing enforcement resources to be concentrated on traffickers. Ideally, such a system would provide a middle-ground, or "buffer-zone," for dubious cases, thereby allowing a consumer who inadvertently possessed slightly more than a prescribed amount the opportunity to exculpate himself where there was clearly no commercial purpose.

A regime that appears to effect these aims involves the combination of intent and quantitative criteria. (The N.C.A., in contrast, can be thought of as a "pure intent" model.) The relevant legislative provision would stipulate two amounts of cannabis, X and Y. Possession of less than X would be "deemed", incontestably, possession for personal consumption. Possession of more than Y would be "presumed" possession for the purpose of trafficking and, upon proof of possession, the onus would shift to the accused to show otherwise. Possession of more than X but less than Y would be "presumed" possession for personal consumption, but the Crown could attempt to rebut this presumption as in any ordinary criminal prosecution. This "buffer zone" model is graphically delineated in Figure 2.

Figure 2 – "Buffer Zone" Model

Above Y Grams	possession "presumed" for purpose of trafficking (onus on Accused to show otherwise)
Between X and Y Grams	possession "presumed" for personal possession "presumed" for personal consumption (onus on Crown to show otherwise)
Below X Grams	possession "deemed" for personal consumption

 

There are two residual problems related to this buffer zone approach. The first concerns the amount or quantities by which the zones are to be differentiated. In other words, exactly what number of grams should X and Y designate in the above illustration? The second problem relates to whether, and if so, which distinctions should be drawn between various cannabis products.

Since the proposed regime's purpose is to more fairly and efficiently distinguish between possession for personal consumption and possession for commercial distribution, the stipulated quantities should accurately reflect actual cannabis-related behaviour. A recent survey of Bureau of Dangerous Drugs (B.D.D.) 1975 conviction data has provided a first glimpse of the actual quantities involved in the enforcement of cannabis offences. (Bryan, 1978) From this study it appears that X, the line differentiating conclusive consumption conduct from "presumed" consumption conduct, could be confidently set at 30 grams (roughly, a metric ounce). Eighty-four percent of those convicted of marijuana possession, 97% of the hashish possession convictions, and 100% of the hash oil possession convictions involved 30 grams or less. The data regarding Y, the line separating "presumed" consumption behaviour from "presumed" commercial behaviour, is less consistent. The concern, here, is to avoid defining the amount in such a way that it is either over inclusive (i.e., so low that true "consumers" are statutorily presumed to be constructive traffickers) or under inclusive (i.e., so high that "traffickers" can escape the presumption of commercial intent). Given these considerations, and given that marijuana cases constitute about 80% of the cannabis possession for the purpose convictions, it appears reasonable to use the marijuana data for purposes of these calculations. According to the B.D.D. data, 63% of those persons convicted of constructive trafficking in marijuana in 1975 possessed more than 120 grams (approximately 4 metric ounces). It would make empirical sense, then, to stipulate that the upper line, Y, be 120 grams, particularly since the Crown, where warranted, may still establish an intention to traffic for any amounts down to 30 grams.

Applying the buffer zone model, persons who possessed under 30 grams of cannabis would be deemed to do so for their own personal consumption. Persons possessing more than 120 grams would be "presumed" to possess the drug for commercial purposes, unless they proved otherwise. Those who possessed between 30 and 120 grams of cannabis would be "presumed" to be in possession for purposes of personal consumption, subject to contrary proof by the Crown.

A remaining problem concerns the issue of whether or not to distinguish between cannabis forms. The argument for drawing any such distinctions has traditionally been founded on potency — and consequent health and safety risk — differentials thought to exist among various cannabis products. However, recent Departmental data suggest that the average potency of the marijuana currently available in Canada is approximately the same as that of hashish. Consequently, there is little rationale for legislatively distinguishing between the two products, especially since there may be no forensically convincing way to differentiate one from the other.

Most hash oil has a higher THC value than marijuana or hashish and is more readily distinguished from those two products. However, it constitutes such a minuscule proportion of the total Canadian cannabis market that it hardly justifies a distinct statutory response, given the inevitable problems of chemical identification and legal definition. If these difficulties are surmounted and special treatment is thought warranted, hash oil could simply be transferred to Schedule H of the Food and Drugs Act. It would then be subject to the Part IV ("Restricted Drugs") provisions, along with drugs such as LSD and psilocybin. Depending on which cannabis reform model is ultimately adopted, this schedule H approach may have the advantage of persuading hash oil users to transfer to arguably safer forms, such as marijuana or hashish, because of the reduced risk of penal consequences.

Functional equivalence. However inexactly, the Narcotic Control Act does acknowledge the difference between consumption and commercial behaviour by distinguishing between simple possession and possession for the purpose of trafficking. Nowhere, however, is this fundamental distinction extended to functionally equivalent conduct, to behaviour that is currently statutorily defined as commercial although its purpose may be solely related to personal consumption. As a result, some cannabis consumers are liable to commercial sanctions. For example, a person who gratuitously passes a cannabis cigarette to a friend is, at present, subject to a trafficking conviction. Similarly, an individual who grows one marijuana plant for his personal use is currently in violation of the offence of cultivation.

Sociologically, it is well recognized that casual, noncommercial transfers of small amounts of cannabis are commonplace occurrences. Use of the drug is often a communal experience with all participants sharing the cannabis that may have been purchased by one of them. It is also fairly common for one individual to make a single purchase for himself and his friends, and to be reimbursed upon sub-distribution. These types of activities are not commercial ventures; they are not characterized by mercenary intent. Accordingly, non-commercial distributive conduct which is functionally equivalent to possession for personal use should be legally distinguished from palpably commercial activities. The statutory realization of this distinction depends on consideration of two criteria: the nature of the transaction (i.e., whether the transfer Is gratuitous, non-profit or commercial) and the quantity transferred. Although complex combinations of these criteria may be developed, problems of proof of intention and the desire to discourage commercial trafficking recommend a strict approach. The most convenient solution, and the one that is least likely to benefit commercial dealers, is to consider only gratuitous transfer of under 30 grams the functional equivalent of possession for personal consumption. Any transfer involving more than 30 grams and/or for which consideration was furnished would be treated as trafficking.

Similar line-drawing problems arise with respect to cultivation, but they can be more easily resolved. In fact, cultivation for personal use has several social advantages over illicit commercial sources of supply which may warrant its covert encouragement. For example, home-grown marijuana is almost invariably less potent than imported cannabis products; contact with criminal traffickers would no longer be necessary; and the health risks associated with smoking herbicide-contaminated marijuana would be eliminated. Since only the leaves and flowering tops of the marijuana plant are consumed, and since even these are only effective at a certain stage of maturation, the number of mature plants rather than the total weight of the cannabis is the more appropriate criterion for distinguishing between consumption-related and commercial cultivation. Although the useable yield of a domestically grown marijuana plant is not known, it would appear reasonable to consider the cultivation of up to six mature plants the functional equivalent of possession for personal use.

These three areas of definitional concern — importation, constructive trafficking, and functional equivalence — re relevant to all five "decriminalization" options discussed below. The reformulations recommended here are only explicitly incorporated into the "semi-prohibition" model, but the underlying principle — the fundamental distinction between consumption-related and commercial conduct — should be considered in any attempt to reform cannabis legislation.

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