Health Protection Branch

(5) Semi-Prohibition. A semi-prohibition model is founded on the fundamental distinction between consumption-related and commercial conduct. Consumption-related conduct refers not only to simple possession but to all functionally equivalent behaviour, such as gratuitous transfers of small amounts of cannabis for personal use and the cultivation of a few plants for one's own consumption. The semi-prohibition model seeks to discourage the use of cannabis, but acknowledges that the personal and social costs of criminalizing users outweigh any benefits that may flow from such criminalization. An American civil offence regime is not constitutionally possible in Canada, and deeming provisions, for all their ingenuity, can never fully protect an offender from the risk of collateral criminal consequences. As a result, this control option proposes the elimination of the offence of simple possession (thus depenalization), while retaining general confiscatory provisions and strict sanctions for commercial activities. Thus, semi-prohibition.

The value of this option rests in its capacity to fairly and efficiently distinguish between consumption and commercial activities. A practical method for legally differentiating one type of conduct from the other has already been elaborated (see, Defining Offences), and the following legislative guidelines are derived from that discussion. The quantitative values, although rationalized earlier, have been inserted primarily to provide a more concrete example. A brief commentary succeeds the statutory model.

(1) Possession of cannabis is not an offence if the amount possessed is 30 grams or less; but where cannabis is found by a peace officer pursuant to an otherwise authorized search, it is to be summarily seized and forfeited.

(2) Possession of more than 30 but less than 120 grams of cannabis is not an offence unless, subsequent to proof of possession, the accused is shown to have possessed the cannabis for the purpose of trafficking; but where cannabis is found by a peace officer pursuant to an otherwise authorized search, it is to be summarily seized and forfeited.

(3) Where the amount of cannabis possessed is 120 grams or more, upon proof of possession the accused shall be given an opportunity to establish that he was not in possession of the cannabis for the purpose of trafficking.

(4) Every person who possesses cannabis for the purpose of trafficking is liable to the same penalties as obtain for the offence of trafficking.

These provisions are not intended as draft legislation, but are designed to illustrate the basic semi-prohibition principles, particularly with respect to the key problem of differentiating between possession for personal use and possession for commercial purposes. The model embodies a buffer zone concept: possession of 30 grams (one ounce) or less is not an offence; possession of 120 grams (four ounces) or more is constructive trafficking unless the accused proves otherwise; possession of more than 30 but less than 120 grams — i.e., possession within the buffer zone — is not an offence unless the Crown proves that the accused had an intention to traffic. As previously indicated, care must be taken in drawing the quantitative lines so as to avoid branding consumers as traffickers or allowing true traffickers to exploit the possessory exception. The buffer zone and the shifting burden of proof should protect consumers from over-zealous enforcement while ensuring that traffickers are liable to prosecution for any amount down to, in our example, 30 grams. Actual trafficking, of course, would remain a serious offence.

The deliberate articulation of a non-offence below 30 grams is designed to prevent the provinces from entering what might otherwise be a vacated legislative field. The confiscatory provisions are intended to convey the federal government's continued disapproval of cannabis use through its refusal to ignore, and thereby sanction, the drug should it come to its agents' attention. The possession of cannabis, where not an offence, does not justify the exercise of police search and seizure powers. But where a police officer comes across marijuana or hashish pursuant to an otherwise lawful search, and a constructive trafficking charge is not warranted, he is to summarily seize the cannabis. Otherwise lawful searches would include those authorized by provincial highway traffic statutes and search warrants for stolen property or other drugs. The person from whom the cannabis is taken may challenge the seizure on the grounds that the substance seized is not cannabis. In this case, the police officer would issue a "receipt" and, upon payment of a nominal analysis fee (intended to discourage frivolous complaints), a qualitative chemical analysis would be conducted to determine the issue. If It were cannabis, it would be permanently forfeited. If, however, it were not cannabis, the substance would be returned and the analysis fee would be refunded. This confiscatory provision may, as well, be implicitly required by the Single Convention since there is, here, no offence of simple possession.

The remaining provisions of the semi-prohibition model demand little elaboration. Import and export, as in 83-77RD and transfer to Schedule G, would be collapsed into a new definition of trafficking. Both the offences of trafficking and cultivation would distinguish between truly commercial activities and behaviour functionally equivalent to possession. As suggested earlier (see, Defining Offences), only gratuitous transfers of under 30 grams should be assimilated to possessory conduct. Similarly, the cultivation of up to six mature plants would be reasonably considered consumption-related behaviour.

Semi-prohibition is a uniquely Canadian realization of the decriminalization alternative. Simple possession and like conduct would no longer be offences, but cannabis would remain subject to police seizure. Commercial activities, on which the police could concentrate all their enforcement efforts, would still be liable to severe sanctions. The predominant message would remain one of discouragement of use, but the victims of such a policy would no longer be chiefly those whose only significant involvement was that of personal consumption.