Health Protection Branch

(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.