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|Major Studies of Drugs and Drug Policy|
|Cannabis Control Policy|
Cannabis Control Policy: A Discussion Paper
Health Protection Branch
Department of National Health and Welfare
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 "deeming 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 "discharge" 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.
2. This 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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