Health Protection Branch

There are eight operational models of cannabis control. Each permits subvariants, elaborations and hybrids, but these eight basic models represent the compass of realistic options in light of current cannabis ideology, informed discussion, and legal and constitutional constraints. Each model has been subject to or is capable of legislative drafting, and each is directly related to one of the conceptual typifications, although the "fit" is often less than exact. As noted earlier, the extreme control options are prohibition and legalization. Prohibition defines a concrete model per se, the Narcotic Control Act and all related federal enactments, whereas legalization encompasses a number of diverse regimes, ranging from the complete absence of controls to tightly regulated and potency-controlled sales of cannabis to government-licensed consumers. For comparative purposes, legalization will be concretely exemplified by a regulation model akin to that which presently applies to alcohol.

Between these polarities rest five decriminalization options which, for reference purposes, may be designated as Bill S-19, 83-77RD, Full Deeming Provisions, Semi-Prohibition, and Transfer to Schedule G (of the Food and Drugs Act ). The first, Bill S-19, typifies the mitigation alternative. 83-77RD and Full "Deeming Provisions" are operational variants of dispensation. Semi-Prohibition and Transfer to Schedule G are conceptually proximate to depenalization. An eighth model, Federal Withdrawal, refers to the federal abandonment of cannabis control to the provinces. Given the unpredictability and probable inconsistency of provincial measures, this final option cannot be situated along the same continuum as the other control alternatives.

The basic elements of the eight control regimes are briefly outlined in the following section. The eight models are then comparatively analyzed in light of both our legal concerns and our policy objectives. The prohibitions and maximum penalties pursuant to each option are summarized in Appendix E.

Prior to considering the control alternatives, it is worth reiterating that any reform of cannabis legislation entails complex legal, social and possibly political problems. However, the fundamental issue that must be resolved in selecting a preferred option pertains to the proper scope of the criminal law. The question that must be realistically confronted is whether our desire to discourage the use of cannabis — or, more exactly, to discourage those adverse consequences that may result from certain situations of use and populations of users — requires and warrants use of the criminal sanction. And, more particularly, whether such sanctions should be applied to users, i.e., to persons engaged solely in consumption-related activities. In formulating a legislative reply, several matters should be borne in mind. First, the criminal law, as presently constituted, does not appear to significantly discourage the incidence or frequency of cannabis use. Second, the current use of the criminal law is counterproductive and results in accumulated collateral consequences that are likely to outweigh the "harms" incidental to use itself. And finally, there is good reason to believe that the identifiable public health concerns can be more effectively and less expensively addressed through public education, special risk-focused programs and sanctions, and the continued criminalization of commercial cannabis activities.

(1) Prohibition. The Narcotic Control Act prohibits possession, trafficking (including possession for the purpose of trafficking), import, export and cultivation of cannabis. These acts are criminal offences and, consequently, all relevant aspects of the Criminal Code, such as the procedural and penal provisions, obtain. With respect to simple possession, the Crown may proceed by way of summary conviction (in which case offenders are liable to six months imprisonment and/or fines of one thousand dollars for a first offence and one year imprisonment and/or fines of two thousand dollars for a subsequent offence) or indictment (for which offenders are liable to a maximum of seven years' imprisonment). All other offences may be proceeded against only by way of indictment. Persons who cultivate marijuana are liable to up to seven years' imprisonment. Trafficking, including possession for the purpose of trafficking, carries a maximum sentence of life imprisonment, as do import and export. These two latter offences are subject to a mandatory minimum penalty of seven years' imprisonment. The court's sentencing discretion is expanded by the penal provisions (Part XX) of the Criminal Code. Since 1972, persons who plead or are found guilty of simple possession or cultivation may be "discharged," absolutely or conditionally, in lieu of being convicted. As previously indicated, a discharge does not immunize the offender from a criminal record nor, for example, does it allow him to deny having been prosecuted or sentenced for, or having been found guilty of, a criminal offence.

The Narcotic Control Act defines trafficking so as to include the nonprofit giving of cannabis from one person to another. The Act does not differentiate between cannabis and other "narcotics" such as heroin and cocaine. Nor are statutory distinctions drawn between the quantities of cannabis involved in various incidents or transactions. It has been left to the courts, when sentencing, to distinguish between more and less serious trafficking, importing and cultivation offences. Similarly, any person in possession of any amount of cannabis may at the federal prosecutor's discretion, be charged with possession for the purpose of trafficking. In such cases, upon proof of possession the onus of proof is statutorily shifted from the Crown to the accused to establish that he was not in possession for the alleged purpose.

A more detailed description of the Narcotic Control Act appears in Appendix C.

(2) Bill S-19. In November, 1974, the government introduced cannabis reform legislation, Bill S-19, in the Senate. With some modifications, the Senate passed the Bill in June, 1975. The Bill would have transferred control of cannabis from the Narcotic Control Act to a new Part V of the Food and Drugs Act, reduced the maximum penalties far all offences (except cultivation), and removed the Crown's discretion to proceed by indictment in the case of possession while extending the discretion to proceed by summary conviction in lieu of indictment to all other offences.

The maximum penalties for simple possession were to be fines of $500 for a first offence and $1,000 for any subsequent offences. In default of payment of these fines first offenders were to be imprisoned for up to three months and subsequent offenders for up to six months. First "possession" offenders who were discharged rather than convicted would have been "deemed" to have been granted a pardon under the Criminal Records Act. The sanctions for commercial conduct would also have been substantially modified. Traffickers, including those convicted of possession for the purpose of trafficking, would have been liable to a $1,000 fine and/or imprisonment for 18 months on summary conviction, or imprisonment for up to 14 years less a day if the Crown proceeded by indictment. Importing and exporting would have carried maximum penalties of 2 years and 14 years less a day, on summary conviction and indictment, respectively. The maximum penalty for cultivation would have been increased to 10 years (on indictment), but a summary conviction would have carried a maximum $1,000 fine and/or imprisonment for 18 months.

Bill S-19 was later introduced in the House of Commons, but died on the order paper in October, 1976.

While moving well beyond the current provisions of the Narcotic Control Act, Bill S-19 remains an example of the mitigation alternative. Apart from the dubious value of a deemed pardon in the case of first offenders, S-19 does not alter the criminal character of a possession prosecution apart from reducing the severity of the maximum penalties that presently obtain.

(3) 83-77RD. In August, 1977, Cabinet approved the drafting of amendments to Bill S-19. This unpublicized decision (83-77RD) apparently represents current Cabinet cannabis policy. If enacted, 83-77RD, like its predecessor, would have transferred control of cannabis to a new Part V of the Food and Drugs Act and removed the Crown's discretion to proceed by indictment in the case of possession while extending the discretion to proceed by summary conviction to all other offences.

The offence of simple possession would have been made punishable by a maximum fine of $500 and, in default, a three month term of imprisonment. There would have been no special provisions for subsequent possessory offences. Persons who pleaded or were found guilty of cannabis possession would have been automatically "deemed" not to have been charged, convicted, sentenced or prosecuted. These "deeming provisions" were to have occurred immediately upon the grant of an absolute discharge and, with some exceptions, after six months in the case of a conditional discharge or conviction. The deeming provisions were to have had retroactive effect and, upon their coming into force, no information regarding the offence contained in any record of a court, police force or any government department or agency could have been disclosed to any enquirer.

The maximum penalties for all other offences were to be substantially reduced from the present sanctions, but the deeming provisions were to apply only to simple possession. Significantly, "import" and "export" were to be collapsed into a new definition of "trafficking," and thus eliminated as separate offences. Trafficking, including constructive trafficking, was to have carried a maximum penalty of a $1,000 fine and/or imprisonment for 18 months on summary conviction, and a maximum sentence of 10 years’ imprisonment upon indictment. The "mandatory minimum" problem associated with current importation enforcement would thereby have been obviated. No method was proposed to quantitatively discriminate simple possession from possession for the purpose of trafficking. Nor were distributive activities statutorily distinguished on the bases of the amounts involved or the commercial nature of the transaction. Cabinet did decide, however, to reduce the maximum sentence for cultivation from the ten years' imprisonment on indictment provided in Bill S-19 to 5 years. A summary conviction for cultivation would have remained subject to the same $1,000 fine and/or 18 months’ imprisonment prescribed in Bill S-19.

83-77RD is illustrative of a partial-dispensation approach to decriminalization. Simple possession remains a criminal offence subject to penal sanctions, but the gravity of the penalty is reduced and elaborate provisions are proposed in an attempt to "deem away" all records and most other collateral consequences of the event. The procedural formalities described in the Criminal Code and other relevant statutes would not be disturbed by this legislative proposal.

(4) Full "deeming provisions." Both Bill S-19 and 83-77RD constitute serious efforts to reduce the direct end collateral effects of a criminal prosecution. The sanctions in 83-77RD are somewhat less severe than those in Bill S-19, but the significant difference between the two proposals rests in their approaches to the collateral consequences of a finding of guilt in possession cases. While Bill S-19 grants automatic "pardons" to persons "discharged" for a first offence of simple possession, 83-77RD proposes complex "deeming provisions" which automatically apply to all persons discharged from or convicted of simple possession of cannabis. In addition, 83-77RD directly addresses the issue of criminal records through provisions designed to restrict the disclosure of any information regarding a possessory offender.

These two legislative proposals thus manifest executive concern to mitigate the disproportionately adverse consequences of a prosecution for consumption-related behaviour. And 83-77RD, through its elaborate deeming and criminal record provisions, reflects Cabinet awareness of the negligible ameliorative benefit of a Bill S-19 pardon and the need for more effective measures to reduce the collateral results of a criminal prosecution. However even 83-77RD may not accomplish the government's purpose since it fails to adequately protect possession offenders from the full range of consequences that flow automatically from arrest, trial, and a finding of criminal liability.

It is possible, however, to more clearly approximate the advantages of the American civil offence approach by following the central thrust of 83-77RD through to a "full dispensation" regime. For example, the federal government has exclusive jurisdiction over criminal procedure. As a result, Parliament could replace the formalities of current simple possession arrest, booking, bail and trial procedures with a less formal ticketing system akin to that used by the provinces for minor highway traffic or parking offences. The sole sanction for cannabis possession, as with many provincial and some federal offences, could be a nominal fine, sufficient to indicate society's disapproval but in no way intended to incapacitate or stigmatize the offender. Civil creditor remedies and community work could be substituted for imprisonment in default of payment of these fines. The deeming provisions proposed in 83-77RD could be extended to better ensure that the simple possession offender bear no liabilities beyond his immediate sentence. Upon activation of these deeming provisions, any record of the defendant's prosecution would be automatically sealed or destroyed: no reference could be made to it in any subsequent proceedings and it could be filed in special "no-name" data storage systems that permitted statistical analysis but not personal identification.

A full deeming provisions model can be seen as the natural culmination of a reform initiative begun with Bill S-19 and extended by 83-77RD. Like these two alternatives, a full deeming provisions model continues to apply the criminal law to cannabis users, but attempts to more comprehensively deal with both the procedural and collateral consequences of a criminal prosecution. However, a basic problem common to all three options is that no matter how imaginative or elaborate the deeming provisions, there in no way to completely "undo" the effects of applying the criminal law once the process has been initiated.