Health Protection Branch

Importation. The unauthorized import and export of cannabis are subject to a minimum sentence of seven years and a maximum sentence of life imprisonment (N.C.A., s. 5). Although export convictions are rare, importation convictions are a fairly common occurrence. Unfortunately, the Narcotic Control Act fails to distinguish between importation for personal consumption and importation for purposes of trafficking. Consequently, all those convicted of importing — no matter how minuscule the quantity involved — are subject to the mandatory minimum sentence.

Because there is understandable concern about imposing lengthy prison sentences on persons who have imported small quantities of cannabis, federal prosecutors often exercise their discretion to lay reduced charges which carry no mandatory minimum, such as possession for the purpose of trafficking. Their exercise of such discretion is apparently governed by confidential guidelines developed by the Department of Justice. However, the very confidentiality of these guidelines, when coupled with the fact that a prosecutor's exercise of discretion is effectively immune from judicial challenge, raises serious concerns about the right to equal protection before the law. Furthermore, the failure to statutorily distinguish between consumption-related and commercial importation has virtually precluded judicial sentencing discretion, with the result that almost every recent importation sentence has been for the minimum mandatory term of seven years.

In view of these considerations, it is procedurally fairer and more consistent with our current knowledge of cannabis to statutorily redefine the offence of importation so as to provide a more flexible and less punitive response. A judge could then consider the offender's purpose (personal consumption or commercial re-sale) and the quantity of cannabis involved, along with other salient factors, in fixing an appropriate sentence. This reformulation could be most easily achieved through a collapsing of "import" and "export" into the definition of trafficking. This is the statutory approach already taken with "controlled drugs" (such as amphetamines and barbiturates) and "restricted drugs" (such as LSD and psilocybin). (See, Food and Drugs Act, ss.33 and 40).