Health Protection Branch

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

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.