Health Protection Branch

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.