Health Protection Branch

(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.