Health Protection Branch

(6) Transfer to Schedule G. The Canadian Bar Association, the National Organization for the Reform of Marijuana Laws (Canada) and at least one popular Quebec magazine (Menard, 1977:76) have recommended that control of cannabis be transferred from the Narcotic Control Act to Schedule G of the Food and Drugs Act. This would represent a convenient, if somewhat inappropriate, method of depenalizing cannabis possession.

The drugs listed on Schedule G, including amphetamines and barbiturates, are defined as "controlled drugs" and are subject to Part III of the Food and Drugs Act. Part III does not include an offence of simple possession. However, possession of any quantity of any controlled drug for the purpose of trafficking is subject to the same maximum penalties as trafficking proper: imprisonment for 18 months upon summary conviction or ten years upon indictment. "Traffic" is defined to mean import, export, manufacture, sell, transport and deliver, but it does not include giving, administering, or distributing, as does the N.C.A. definition. The procedure in prosecutions for constructive trafficking is essentially the same as that prescribed under the Narcotic Control Act. However, if the accused establishes that he was not in possession for the purpose of trafficking he is acquitted rather than convicted of simple possession.

Cultivation is not expressly dealt with in Part III. Consequently, the offence would disappear unless Part III were amended, most simply through the inclusion of cultivation in the definition of trafficking. However, any amendment would detract from one of the major benefits of the Schedule G option: the facility with which it could be realized. Further, a single amendment for cultivation would likely invite additional and more fundamental amendments. Alternatively, control of cultivation could remain within the Narcotic Control Act. "Marihuana" is independently defined in the N.C.A. (s. 2) and the offence of cultivation (s. 6) refers to "marihuana" but not cannabis. By simply transferring "cannabis sativa" from the N.C.A. schedule to Schedule G of the F.D.A., a comprehensive, if divided, control regime would be effected, with commercial activities subject to the provisions of Part III of the Food and Drugs Act and cultivation governed by the Narcotic Control Act.

Transfer to Schedule G is an uncomplicated and expedient mechanism for dealing with the problem of cannabis law reform. Although Part III does not systematically distinguish between consumption-related and commercial conduct, it does recognize that unauthorized possession — at least with respect to the drugs it presently governs — does not warrant criminal prohibition or penal sanctions. To this degree it constitutes a depenalization option, eliminating possessory controls while retaining stringent trafficking provisions. In this latter regard, it is worth noting that Part III furnishes peace officers with the same extraordinary powers of search and seizure as are prescribed in the Narcotic Control Act. (See, Special Powers of Arrest, Search and Seizure, above.)