Health Protection Branch

Functional equivalence. However inexactly, the Narcotic Control Act does acknowledge the difference between consumption and commercial behaviour by distinguishing between simple possession and possession for the purpose of trafficking. Nowhere, however, is this fundamental distinction extended to functionally equivalent conduct, to behaviour that is currently statutorily defined as commercial although its purpose may be solely related to personal consumption. As a result, some cannabis consumers are liable to commercial sanctions. For example, a person who gratuitously passes a cannabis cigarette to a friend is, at present, subject to a trafficking conviction. Similarly, an individual who grows one marijuana plant for his personal use is currently in violation of the offence of cultivation.

Sociologically, it is well recognized that casual, noncommercial transfers of small amounts of cannabis are commonplace occurrences. Use of the drug is often a communal experience with all participants sharing the cannabis that may have been purchased by one of them. It is also fairly common for one individual to make a single purchase for himself and his friends, and to be reimbursed upon sub-distribution. These types of activities are not commercial ventures; they are not characterized by mercenary intent. Accordingly, non-commercial distributive conduct which is functionally equivalent to possession for personal use should be legally distinguished from palpably commercial activities. The statutory realization of this distinction depends on consideration of two criteria: the nature of the transaction (i.e., whether the transfer Is gratuitous, non-profit or commercial) and the quantity transferred. Although complex combinations of these criteria may be developed, problems of proof of intention and the desire to discourage commercial trafficking recommend a strict approach. The most convenient solution, and the one that is least likely to benefit commercial dealers, is to consider only gratuitous transfer of under 30 grams the functional equivalent of possession for personal consumption. Any transfer involving more than 30 grams and/or for which consideration was furnished would be treated as trafficking.

Similar line-drawing problems arise with respect to cultivation, but they can be more easily resolved. In fact, cultivation for personal use has several social advantages over illicit commercial sources of supply which may warrant its covert encouragement. For example, home-grown marijuana is almost invariably less potent than imported cannabis products; contact with criminal traffickers would no longer be necessary; and the health risks associated with smoking herbicide-contaminated marijuana would be eliminated. Since only the leaves and flowering tops of the marijuana plant are consumed, and since even these are only effective at a certain stage of maturation, the number of mature plants rather than the total weight of the cannabis is the more appropriate criterion for distinguishing between consumption-related and commercial cultivation. Although the useable yield of a domestically grown marijuana plant is not known, it would appear reasonable to consider the cultivation of up to six mature plants the functional equivalent of possession for personal use.

These three areas of definitional concern — importation, constructive trafficking, and functional equivalence — re relevant to all five "decriminalization" options discussed below. The reformulations recommended here are only explicitly incorporated into the "semi-prohibition" model, but the underlying principle — the fundamental distinction between consumption-related and commercial conduct — should be considered in any attempt to reform cannabis legislation.