SNUD Committee Report

CHAPTER 9: CANNABIS

1. MANDATE OF THE SPECIAL COMMITTEE ON NON-MEDICAL USE OF DRUGS

As explained in Chapter 1, the Special Committee on Non-Medical Use of Drugs was initially mandated to study “the factors underlying or relating to the non-medical use of drugs in Canada” and to bring forward recommendations aimed at reducing “the dimensions of the problem involved in such use.” That mandate was expanded on 17 April 2002 when the House of Commons, by order of reference, added the subject matter of Private Member’s Bill C-344, An Act to amend the Contraventions Act and the Controlled Drugs and Substances Act (marihuana).²⁹⁹ This chapter will consider the provisions of the Controlled Drugs and Substances Act (CDSA) only as it relates to the criminal prosecution of cannabis offences.³⁰⁰

Bill C-344 proposed to amend the Controlled Drugs and Substances Act and the Contraventions Act, to make the offences of possession, possession for the purposes of trafficking and trafficking in small amounts of cannabis (one gram or less of cannabis resin and thirty grams or less of cannabis (marijuana)) “ticketable” offences. The available penalties would be a $200 fine for a first conviction, $500 for a second and $1,000 for a third. At present, possession of those amounts is a summary conviction offence with a maximum penalty of a $1,000 fine or six months in jail, or both. Today, trafficking of anything less than 3 kg of cannabis resin or marijuana is exclusively indictable and carries a maximum penalty of 5 years less a day imprisonment.³⁰¹ In support of his bill, Dr. Martin argued that it would unburden the courts, save money, and free up police resources to combat more serious offences.

2. LEGISLATIVE OPTIONS

The Committee heard a wide variety of suggestions respecting the legal treatment of cannabis. Some recommended legalization, either regulated or unregulated. Others favoured some form of decriminalization that would create a non-criminal offence of possession, while still others preferred a more cautious approach that would retain present prohibitions, while introducing more and better diversion options as a way of avoiding some of the harms associated with prosecution. There were also those who favoured increased penalties, at least for trafficking offences, and a renewed commitment to the goal of abstinence. For their part, some health care professionals thought that more research into the effects of cannabis should be undertaken before amending the law, in order to bring better information to the debate, while others pointed out that the illegal status of cannabis has contributed to “a real resistance to conducting those sorts of studies.”³⁰²

For the purposes of this discussion, the Committee defines legalization as the removal of all criminal sanctions prohibiting the production, sale or possession of a given substance. Legalization need not be accompanied by the removal of all regulatory controls. In fact, the ability to regulate production and supply, to tax, and to limit access by age, are often cited as major advantages of legalization. The Committee uses the term decriminalization to refer to the removal of criminal sanctions for certain activity while retaining legal prohibitions. Decriminalization would allow continued criminal prosecution of many or most actions relating to an illicit substance like cannabis, while allowing possession of small amounts of the same substance for personal use to be treated as a regulatory offence, with consequences not unlike those attached to minor motor vehicle infractions under provincial legislation. Under such a scheme, prosecution of the new regulatory offence could be initiated by issuance of a ticket, fines could be paid without a court appearance, and enforcement would not result in a criminal conviction.

The Committee heard from witnesses who expressed the view that the prosecution of cannabis-related offences takes up too much of our scarce criminal justice resources. The potentially negative impact of a criminal conviction was often given as another reason for changing the law. The possibility of uneven or inconsistent enforcement of existing laws may also lend support for legislative changes, to ensure that some individuals don’t end up with a large fine and a criminal conviction for possession of a small amount, while others are simply warned and/or have their cannabis confiscated. Although some witnesses argued that enforcement agencies no longer target cannabis possession, preferring instead to pursue more serious CDSA charges, recent crime statistics make clear that possession still constitutes the majority of cannabis incidents reported. For example, Statistics Canada noted that cannabis accounted for about three-quarters of all 91,920 drug-related incidents reported by Canadian police services in 2001. Moreover, 70 percent of those cannabis incidents were for possession.³⁰³

The following arguments are often made in support of legalization;

On the other hand, the following reasons are most commonly cited by those who are opposed to legalizing cannabis;

A majority of members of the Committee are persuaded that there is a need to reform the legislation respecting cannabis, for a variety of reasons. We agree, for example, that because enforcement of the law appears to be sporadic, uneven, and subject to regional discrepancies, its application is likely to be inconsistent and unfair. We further agree that the consequences of a criminal conviction for simple possession of a cannabis product are disproportionate to the potential harms associated with personal use. This is especially true when one considers the harm caused every day by the use of licit substances like tobacco, alcohol, and some common non-prescription medications.

However, the Committee shares the concern expressed by many educators, treatment providers, and law enforcement officers to name only a few, that many Canadians, and youth in particular, might misperceive legalization as evidence that Parliament is not concerned about the widespread use of cannabis. At least as far as this Committee is concerned, nothing could be further from the truth. Indeed, the Committee was told by various health care professionals, addictions specialists and treatment providers that frequent and prolonged use of cannabis can lead to dependence as well as social problems for certain users. In addition, Dr. Mark Zoccolillo expressed concern about the frequency of marijuana use among students he studied, the resulting potential for the disruption of short-term or “working memory,” and the long-term consequences for that particular age group. Furthermore, the Committee is not convinced that legalization accompanied by regulation would remove the profit from the illegal production and sale of cannabis or in any significant way discourage criminals currently involved in distribution.

For those reasons, the Committee would prefer to see cannabis offences retained in the Controlled Drugs and Substance Act, but with simple possession decriminalized by designation as a “contravention,” much like the scheme proposed in Bill C-344.³⁰⁷ However, unlike the amendments proposed in Bill C-344, we do not support a lessening of the penalties for any form of trafficking or possession for the purposes of trafficking. Thus, our preference would be to mandate proceeding against incidents of possession and/or cultivation for personal use by ticketing, except where the offence is committed in the presence of specified aggravating circumstances. For example, in recognition of the safety and policing concerns expressed by law enforcement agencies, the Committee believes that possession charges linked to impaired driving offences should continue to be prosecuted as a criminal offence under the CDSA.³⁰⁸ Implementation of these proposals may require a redrafting of the possession offences in the CDSA, in order to retain present penalties for ‘aggravated’ possession charges.

The Committee deliberated at considerable length over the question of whether criminal sanctions should be retained for simple possession of cannabis in relation to schools and other places frequented by youth. However, most Committee members were reluctant to propose a scheme that operates more onerously against youth than it does against their adult counterparts. Furthermore, trafficking, or possession for the purposes of trafficking, in or near a school or other place frequented by those under eighteen, and trafficking to persons under eighteen, are already “aggravating factors” to be considered at the time of sentencing. Because trafficking-related offences and penalties will not be affected by the decriminalization scheme we propose, those provisions will continue to apply. Therefore, the Committee proposes that possession of a small amount of cannabis for personal use, even on school property, should also be a “ticketable” offence under the new scheme. The Committee expects that school boards will continue to impose their own administrative controls, as necessary, to further deter students from bringing cannabis onto school property in much the same way as they do now with other substances.

By designating as contraventions, those offences relating to the possession or cultivation of small amounts of cannabis for personal use, the proposed decriminalization scheme would leave existing criminal sanctions in place to allow the full force of the law to continue to be brought to bear against anyone who traffics in or cultivates cannabis products for profit. Retaining a criminal offence for possession of cannabis in association with an impaired driving offence would do the same for those individuals whose substance use risks grave and substantial harm to others. Finally, decriminalization would have the added benefit of maintaining Canada’s compliance with the International Conventions discussed in Chapter 7.

3. COMMITTEE OBSERVATIONS - CANNABIS

The Committee observed the following:

Smoking any amount of marijuana is unhealthy, because of its high concentration of tar and benzopyrene.

The consequences of conviction for possession of a small amount of cannabis for personal use are disproportionate to the potential harm associated with that behaviour.

DECRIMINALIZING the possession of small amounts of cannabis for personal use would not affect the penalties or consequences for trafficking, or for the possession of any other controlled substance.

All orders of government must undertake to inform Canadians about the potential harms associated with cannabis use and, in particular, the heightened risk to young persons.

RECOMMENDATION 40

The Committee recommends that the possession of cannabis continue to be illegal and that trafficking in any amount of cannabis remain a crime.

RECOMMENDATION 41

The Committee recommends that the Minister of Justice and the Minister of Health establish a comprehensive strategy for decriminalizing the possession and cultivation of not more than thirty grams of cannabis for personal use. This strategy should include: