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Cannabis Control Policy: A Discussion Paper
Health Protection Branch
Department of National Health and Welfare
Parliament's Power to Authorize Confiscation of Cannabis in the Absence of a Possessional Offence
The confiscation of cannabis or any other property is, in essence, a matter of property law which falls within the provincial power over property and civil rights 92(13). This provincial power is clearly limited by several heads of federal power, the most significant of which for our purposes are Parliament's jurisdiction over criminal law and procedure s. 91(27) and trade and commerce s. 91(2). For example, peace officers have been granted broad powers to seize and confiscate property as evidence of criminal conduct.57 Upon termination of the case, the property may be forfeited to the Crown, returned to the suspect or, in the case of stolen property, given back to the rightful owner. Federal control of such property rights is necessarily incidental to Parliament's exercise of its criminal law and procedure power. Similarly the provisions of the Customs Act R.S.C. 1970, c. C-40 granting federal officials extensive powers of search, seizure and confiscation are necessarily incidental to Parliament's trade and commerce power.
These precedents do not directly address the issue of whether Parliament could authorize the routine confiscation of cannabis, if there was no possessional offence. It would be difficult to justify seizing cannabis from one individual, on the basis that it may provide evidence of trafficking on the part of some unidentified third party. Few of these seizures would be made as part of an ongoing trafficking case or would ever be seriously followed up. Since domestically cultivated cannabis cannot be readily distinguished from foreign supplies, such seizures could not likely be based on enforcement of the federal customs legislation.
Parliament could argue that confiscation of cannabis is necessarily incidental to the goals of its narcotics legislation, even if possession of cannabis is not itself a criminal offence. Confiscation could be seen as a mechanism for discouraging possession, and thus as an essential adjunct to Parliaments general criminal prohibition against all commercially-related cannabis transactions. Unfortunately, there are no cases or articles on the federal government's powers of confiscation. However, a number of federal statutes contain confiscatory provisions, which can be invoked in the absence of criminal conduct. In the statutes we examined, the power to confiscate property was used primarily as a means of attaining the legislation's goals, and not as a sanction. Most of the confiscatory sections are designed to protect specific individuals or the general public from harm that may result from the use of the goods in question.
The following statutory analysis illustrates the breadth of the federal confiscatory provisions. The Meat and Canned Foods Act R.S.C. 1970, c. M-6 s. 22(2) provides that unsound fish found during processing and any unsound canned fish may be seized and confiscated. Section 7 of the Animal Disease and Protection Act R.S.C. 1970, c. A-13 as am. S.C. 1974-76, s. 86 empowers the Minister of Agriculture to have destroyed any animal suspected of carrying an infectious disease. Cabinet may make regulations respecting the seizure, detention, forfeiture or disposition of hazardous products by virtue of section 7(b) of the Hazardous Products Act R.S.C. 1970, c. H-13. The Navigable Waters Protection Act R.S.C. 1970, c. N-19 ss. 13-16, provide that the Minister of Transport may order the removal or destruction of any vessel or thing which in his opinion renders difficult or dangerous navigation in any navigable waters. The vessel and its cargo may be sold to cover the expenses incurred; any surplus is returned to the owner; and any deficit becomes a debt due to, and recoverable by the crown. The confiscatory provisions of these acts apply whether or not the owner of the goods was involved in criminal conduct.
The Criminal Code R.S.C. 1970, c. C-34 also authorizes the confiscation of property in the absence of criminal conduct. Section 403(2) permits a peace officer to seize fighting cocks under certain circumstances, even though the owner of the fighting cock cannot be charged with an offence. Section 101(2) provides that a peace officer may seize any offensive weapon or firearm in stipulated situations, even though the person in possession had lawful custody of the weapon and was not suspected of any criminal conduct. Several sections of the Criminal Code R.S.C. 1970, c. C-34 authorize a judge to issue a seizure warrant, even though the property is not needed as evidence and its owner is not engaged in criminal conduct.
The examples discussed above do not provide an exact parallel to the confiscatory provisions that would likely be enacted for cannabis. They do, however, indicate that Parliament may authorize confiscation of private property as a means of accomplishing the goals of bona fide federal legislation. Consequently, it would appear that Parliament could authorize the confiscation of cannabis in the absence of a possessional offence, provided the confiscatory measures were an integral part of the criminal cannabis legislation.
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