Health Protection Branch

The subject of cannabis control policy is complicated by an inconsistent use of terms that has confused appreciation of the various options. Therefore, it is necessary to define those concepts fundamental to our purpose. Three broad, abstract control alternatives may be posited: "prohibition" (as currently exemplified by the Narcotic Control Act), "legalization" (licit commercial distribution of cannabis), and "decriminalization." Prohibition and legalization are the polar types. The former enjoys only minority support and the latter has no more likelihood of prevailing, if for no other reason than that it is politically untenable. The third alternative, and the middle ground from which any new control regime will almost certainly arise, is decriminalization.

This latter rubric is responsible for most of the confusion, for decriminalization is a term of neither art nor science. It is, rather, a legally dubious but rhetorically elastic concept employed idiosyncratically by all parties to the debate. As such, its meaning depends less on its context than on who brandishes the term. The result has been that "decriminalization", as commonly employed, has served to obscure rather than illuminate the issue of cannabis reform. The term, however, has entered the popular vocabulary and has significant descriptive utility. It is worthwhile, then, to operationally define it in such a way that it can be readily located along a continuum of control alternatives while, at the same time, reflecting popular understanding of the notion.

It is helpful to adopt a threshold concept which uses decriminalization to refer to any statutory scheme short of legalization under which the least serious cannabis-related behaviour is not punishable by incarceration. Under present Canadian law, the least serious cannabis-related behaviour is first offence simple possession. There appears to be a broad consensus, on the pert of the courts, the public, concerned professional associations, leading newspapers, the leaders of Canada's major political parties and the Senate, that imprisonment is inappropriate for first offence simple possession. There is far less agreement, however, as to what cannabis-related conduct should be subject to custodial sentencing, whether repeat offenders or those who default on payment of fines should be liable to imprisonment, and as to what, if any, sanctions should be maintained for cannabis possession. Most Canadians now favour decriminalization, by which they mean something less than imprisonment for persons who possess cannabis. It is the varied content of this "something less" that constitutes the categories of cannabis reform.

Decriminalization, in this threshold sense, is an umbrella concept covering a broad range of policy choices that primarily focus on possessory, or functionally equivalent, conduct. It is possible, however, to enunciate three generic subtypes. That subtype closest to prohibition can be designated mitigation. It involves the reduction of penalties for possessory behaviour. Simple possession remains a criminal offence, but violators are liable only to fines or mandatory participation in community service programmes. Offenders are subject to ordinary criminal procedures and suffer a criminal record of the event.

A decriminalization subtype that attempts to minimize the criminal trappings of cannabis possession may be referred to as dispensation. Simple possession remains an offence but, to the degree possible, the "criminal" attributes and consequences of a prosecution are negatived, or "dispensed' with. Ideally, ticketing or citation procedures are substituted for traditional arrest provisions, court appearances are not required if one admits guilt, fines are nominal, no convictions are registered, and no official criminal records are maintained. This, essentially, is the approach adopted by those American states that have decriminalized marijuana possession by transferring it from their criminal codes to their civil codes, thereby rendering it a "civil offence" subject to "civil" rather than "criminal" penalties. This transfer from criminal to civil jurisdictions avoids the formal procedural requirements and derivative consequences of a criminal prosecution, even though the prescribed penalties may not differ from one regime to the other.

As previously indicated in Constitutional Considerations, our constitutional arrangement is such that this American approach cannot be readily imported into Canada. Parliament cannot enact a non-criminal offence and, consequently, all federal offences — no matter how insignificant — may give rise to those statutory disabilities that attach to "real crimes." While Parliamentary emulation of American decriminalization is constitutionally stymied, it is possible to realize many of the advantages of a civil offence design through the use of "deeming provisions." It is these particular legal fictions that characterize the dispensation alternative. Thus dispensation, as in law, refers to exemptions from or relaxations of ordinary legal requirements — in this case, those Criminal Code and related statutory provisions that presently give cannabis possession its criminal colouration.

The third decriminalization subtype is depenalization. Here, the behaviour formerly sanctioned is no longer rendered an offence, criminal or otherwise. The once offensive conduct is literally depenalized, stripped of its unlawful character and all penal consequences. Cannabis, itself, may be subject to forfeiture as contraband, or its use in specified high risk situations (such as driving) may provoke a penal response, but its private possession for personal consumption does not constitute an offence.

These three decriminalization options are ideal typifications. Few "real-world" alternatives completely adhere to these conceptualizations. There will be occasion, however, to refer to these typifications as standards by which to locate more concrete options along a control policy continuum.