Health Protection Branch

Part 4 – Legal Issues and Options

Thus far, we have surveyed the empirical bases of cannabis control policy. The health and safety correlates, the epidemiology of cannabis use and the nature of the cannabis market have been examined. We have also detailed our legal response to cannabis use, including such matters as police powers, the processing of suspects and information, enforcement statistics, and the financial and sociolegal costs of the present controls. These background data permit an informed analysis of the cannabis control options and their relative capacity to attain our policy goals.

The preferred cannabis control alternative is that regime which best achieves our social policy objectives. As outlined earlier, the major objectives are the minimization of those public health concerns associated with contemporary usage patterns and those individual and social costs ascribable to legal controls and enforcement practice. These twin objectives are somewhat contradictory, and their maximal realization thus requires a balancing of interests. To date, however, official policy has been exclusively directed toward minimizing the health and safety harms, chiefly through a strategy of general discouragement of use. The instrument of social control traditionally employed to effect this policy of discouragement has been the criminal law. While education and information programs have been used as ancillary measures, historically primary reliance has been placed on the criminal sanction. Although it is impossible to estimate what the prevalence of cannabis use would be in the absence of legal penalties,¹ it is clear that millions of Canadians have not been deterred by the criminal law. More importantly, reliance on the criminal law engenders adverse consequences which may outweigh the harms incidental to that very conduct it was designed to discourage.

The criminal sanction represents the extreme end of the social control continuum. In the words of the respected legal theorist Herbert Packer (1968:250), it is the "ultimate threat . . . that should be reserved for what really matters." Certain aspects of cannabis use or commerce may generate risks that warrant application of the criminal law. But it is a question of degree, proportionality and appropriateness: of how to achieve the desired health and safety objectives at the lowest possible social, personal and financial costs. Our current approach is overly-comprehensive. By maintaining a blanket prohibition we have criminalized some relatively inoffensive conduct and tens of thousands of otherwise law-abiding persons; yet we have failed to effectively address those public health matters of genuine concern.

It should be re-emphasized that cannabis use, per se, is a relatively innocuous activity. The major risks posed by cannabis consumption are limited to clearly delineated populations, certain types of conduct (behaviour) requiring skilled functioning, and smoking, the most prevalent mode of administration. Since the significant health and safety concerns can be readily identified, our response should be specifically designed to minimize these potential harms. Driving while cannabis-intoxicated, for example, is one kind of hazardous conduct that entails risks more amenable to risk-tailored measures than any general possessory prohibitions. This type of risk-focused approach serves several important functions: government's concerns, better achieves the desired balance of objectives than general prohibitions, and avoids the needless collateral costs of blanket criminalization. Such risk-specific criminal measures should be but one part of a comprehensive, integrated governmental response that also includes educational, informational and interventionist measures. This multi-modal response is essential to effectively reduce the incidence of cannabis-related public health concerns.

Before reviewing the cannabis control alternatives, we will examine several legal factors that mark the outer boundaries of any legislative response to cannabis use in Chapter 4. These include certain normative concerns such as clarity, efficiency and fairness, constitutional and international restraints on federal legislative discretion, and the problem of meaningfully defining offences. Eight legislative options are then conceptually delineated, described and critically analyzed with respect to the global objectives and normative and legal constraints in Chapter 5.