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Cannabis Control Policy: A Discussion Paper Health Protection Branch Department of National Health and Welfare January 1979 Foreword In the spring of 1978 Dr. Alex B. Morrison, then Assistant Deputy Minister, Health Protection Branch (HPB), was advised that the Government was prepared to make a major shift in cannabis control policy. Before taking that step, however, the responsible Cabinet Ministers, led by the Minister of Health, required a thorough briefing on cannabis and the legal issues and options surrounding its control in Canada. At that time I was a Policy Analyst in HPB's Planning and Evaluation Directorate. I had also served as Special Assistant and Editor to the Le Dain Commission of Inquiry Into the Non-Medical Use of Drugs (1969-1973). Dr. Morrison called me to his office and explained the Government's desire to address cannabis policy. By the end of our meeting I was given carte blanche to assemble a team of leading researchers in drug pharmacology, epidemiology, the law and law enforcement and to coordinate the preparation of a briefing document. That I did, and this Cabinet Discussion Paper is the culmination of that team's efforts. The key members of the research team and the drafters of this Discussion Paper were also former members of the staff of the Le Dain Commission: Ralph D. Miller, Ph.D., was the Commission's Director of Research; Mel Green, L.L.B., a Research Associate; Prof. Judith Blackwell of Brock University, a Senior Research Assistant; and Prof. Robert Soloman of the University of Western Ontario Law School, a Contract Researcher. Dr. Leo E. Hollister of the Veterans Administration Hospital, Palo Alto, California and Patricia Erickson, Senior Scientist, Addiction Research Foundation of Ontario were among other noted specialists who contributed background research for the paper. For the past thirty years the federal Government has been telling the Canadian public that it has taken steps to prevent imprisonment and the imposition of criminal records for persons tried for possession of small amounts of cannabis. This it has never done — not even with the special cannabis provisions of the Controlled Drugs and Substances Act enacted last year. Every person prosecuted for cannabis possession today faces the possibility of imprisonment and will definitely have a criminal record for the offence, regardless of the amount involved or the sentence imposed — a criminal record that will be entered, even if for a limited time, on the RCMP's automated information retrieval system (CPIC) and that will, therefore, be accessible to public and private organizations in Canada and officials of the United States and other allied states. The cannabis control policy debate in this country remains wide open; and for that reason this Discussion Paper is as relevant today as it was when written 20 years ago. It provides a thorough analysis of the major health and safety issues related to cannabis, one that has not altered substantially in the intervening years. In terms of the breadth and depth of its examination of the legislative options available to the federal and provincial Governments, there is nothing on the Canadian scene to compare to it. It is an excellent starting point for anyone wanting to take a serious look at where we can go from here. I obtained a copy of this briefing paper through the Access to Information Act in January of this year and am pleased to have had a hand in sharing it with you through the good offices of the Canadian Foundation on Drug Policy. Mike Bryan Richmond, British Columbia October 2, 1998 mbryan@direct.ca Contents Page Part 1 General Introduction...........................................................................Part 2 The Global ObjectivesPart 3 The Empirical Bases of Cannabis Control Policy
Health Concerns.............................................................................................. . 3 Safety Concerns................................................................................................ 8 The Cannabis Market........................................................................................ 10 Extent of Use.................................................................................................... 12 Patterns of Use.................................................................................................. 14 Special Powers of Arrest, Search and Seizure in Drug Enforcement................... 16 The Processing of a Cannabis Suspect through the Criminal Justice System........ 18 Police.......................................................................................................... 18 Crown Prosecutors...................................................................................... 21 Judges......................................................................................................... 22 The Processing of Information Concerning a Cannabis Suspect......................... . 22 Discharges................................................................................................. . 24 Pardons....................................................................................................... 24 Problems Inherent in Drug Enforcement: Irregular Methods of Enforcement........ 26 A Statistical Review of Arrest, Conviction and Sentencing Patterns..................... 26 Arrest statistics............................................................................................ 26 Conviction statistics..................................................................................... 26 Sentencing statistics..................................................................................... 27 The Financial Cost of Cannabis Enforcement..................................................... 29 The Sociolegal Consequences of Enforcement................................................... 30 Public and Professional Attitudes....................................................................... 33 Part 4 Legal Issues and Options.................................................................. 34Normative and Design Concerns........................................................................ 35 International Considerations............................................................................... 37 Constitutional Considerations............................................................................. 38 Jurisdiction................................................................................................... 39 Non-criminal, or "civil," offences.................................................................. 40 Criminal records.......................................................................................... 40 Defining Offences............................................................................................... 41 Importation.................................................................................................. 42 Constructive trafficking................................................................................. 43 Functional equivalence................................................................................. 46
Contents (continued) Page An Ordering of Terms and Concepts................................................................ 47 The Cannabis Control Options: A Description.................................................. 48 (1) Prohibition........................................................................................... 49 (2) Bill S-19............................................................................................... 50 (3) 83-77RD.............................................................................................. 51 (4) Full "deeming provisions"...................................................................... 51 (5) Semi-Prohibition................................................................................... 52 (6) Transfer to Schedule G......................................................................... 54 (7) Legalization (regulation)........................................................................ 55 (8) Federal Withdrawal.............................................................................. 56 The Cannabis Control Options: An Analysis...................................................... 56 Notes. ................................................................................................................... 59
Appendices Appendix A: The Single Convention and Its Implications for Canadian Cannabis Policy................................................... 60 The penal obligations: Article 36 and the meaning of "possession"................. 61 "Possession" and other consumption-related conduct................................... 63 Article 36 and the 1972 Protocol................................................................ 63 "Possession" and the confiscatory obligation................................................ 64 Amendment and withdrawal........................................................................ 65 Summary.................................................................................................... 65 Appendix B: The Constitutional Bases of Cannabis Policy................. 66 Federal Jurisdiction............................................................................................ 68 Provincial Jurisdiction........................................................................................ 71 The Doctrine of Paramountcy and Concurrency................................................. 73 Joint Federal-Provincial Control of Cannabis..................................................... 76 Parliament’s Power to Create Non-Criminal Offences....................................... 76 Parliament’s Power to Control Criminal Records in the Possession of Provincial Enforcement Agencies....................................................................... 77 Parliament’s Power to Authorize Confiscation of Cannabis in the Absence of a Possessional Offence.................................................................................. 78 Notes to Appendix B.............................................................................................. 81
Contents (continued) Page Appendix C: The Narcotic Control Act – An Elaboration.................... 87 Appendix D: Extent and Patterns of Cannabis Use Among Adult Canadians, 1970-1978.......................................................... 90 Appendix E: Offences, Procedures and Maximum Penalties Under Eight Alternative Models for the Control of Cannabis............................................................................. 95 References and Selected Bibliography....................................................... 99
Figures and Tables Figure 1. Police Duties Relating to Processing a Routine Cannabis Case............... 20 Figure 2. "Buffer Zone" Model............................................................................ 44 Table D-1. Adult Canadians – Incidence of Cannabis Use....................................... 91 Table D-2. Adult Canadians – Current Cannabis Use Patterns, (Gallup 1978)......... 92 Table D-3. Adult Canadians – Frequency of Cannabis Use..................................... 93 Table D-4. Adult Canadians – Cannabis Use by Region (Gallup, 1978)................... 94 Table E-1. Offences, Procedures and Maximum Penalties under the Narcotic Control Act, Bill S-19 and 83-77RD..................................................... 96 Table E-2. Offences, Procedures and Maximum Penalties under "Full 'Deeming Provisions'" and "Semi-Prohibition"........................................................ 97 Table E-3. Offences, Procedures and Maximum Penalties under "Transfer to Schedule G," "Regulation" and "Federal Withdrawal".............................. 98
Cannabis control policy has been a source of contentious debate for more than a decade. In order to resolve some of the outstanding issues, the Health Protection Branch of Health and Welfare Canada has recently undertaken a systematic review of the medical, social-scientific and legal aspects of cannabis use. Based on these data and a comparative examination of control programs in some other jurisdictions, a broad spectrum of control options has been articulated. These legislative alternatives, which range from the current provisions of the Narcotic Control Act, through various "decriminalization" proposals, to a regulatory model involving authorized retail distribution of cannabis, are critically surveyed in this paper. The results of these endeavours should provide government policy advisors and decision-makers with sufficient information to evaluate the various options and facilitate their selection of a preferred legislative policy. Part Two – The Global Objectives, briefly outlines those goals which the Department seeks to further in the area of cannabis control. Part Three – The Empirical Bases of Cannabis Control Policy is founded on the Department-commissioned studies and reviews that are currently being completed or edited. Eventually these background materials will be collated as a source book on cannabis. It is intended that this source book will have five major divisions: (1) cannabis use and its effects; (2) sources and distribution of cannabis; (3) extent and patterns of use; (4) law and law enforcement; and (5) the impact of the present law. Part Three reports the major findings and policy implications of these background studies in two chapters: Chapter 1 concerns empirical evidence regarding cannabis use (health and safety-related effects, epidemiological data, and the nature of the market); Chapter 2 details information pertaining to the present legislative response to cannabis (including police powers and problems, the processing of suspects and information, enforcement statistics, and the financial and socio-legal costs of current controls). Part Four – Legal Issues and Options, describes the legislative and jurisprudential considerations pertinent to any informed discussion of cannabis control policy. Our primary focus is on the available options. Prior to this, however, a number of factors which limit the choices and determine the shape of any legal response to cannabis use are outlined. These include certain normative and legislative design concerns (such as clarity, consistency, fairness and proportionality), the international and constitutional constraints on the exercise of federal legislative discretion, and the problem of defining offences to reflect meaningful behavioural categories. Eight legislative options are subsequently described and critically assessed in fight of the broad policy objectives and the aforementioned legal considerations. The adoption of any reform proposal is unlikely to turn on strictly legal considerations. Legal research may indicate the legitimate scope of our response and suggest varying legislative re-formulations, but the law must ultimately serve rather than dictate the ends of social policy. With regard to cannabis, social policy is primarily the product of a complex mix of broad social objectives, related empirical evidence, and unavoidably political, or electoral, considerations. This last concern is best left to those who are publicly accountable for their decisions. The second set of issues will be discussed at length below. First, however, it is important to articulate the broad social policy objectives that motivate the search for an appropriate legislative response to cannabis use.
Part 2 – The Global Objectives Goal definition is a normative exercise which ultimately falls to those who bear political responsibility for social policy. Subject to the possibility of future political refinement, the Department's primary goal is to minimize the harms resulting from cannabis use and a prohibitory response to such use. This is a two-pronged objective that addresses both those public health concerns arising from current usage patterns and those administration of justice concerns that pertain to enforcement practices and the fate of offenders. Two global objectives thus emerge. The first is to minimize the individual risks (chiefly, health hazards to oneself) and social risks (namely, safety risks to others) associated with cannabis use. The second is to minimize the adverse socio-legal consequences which result from the application of the criminal law to cannabis-related conduct. This latter objective reflects several fundamental concerns related to the operation of any criminal justice system, including fairness, proportionality, institutional integrity and administrative efficiency. These matters are examined in some detail in Part Four – Legal Issues and Options. The two primary objectives may, to a large extent, prove contradictory. An attempt to minimize health and safety risks through rigorous law enforcement will exacerbate the current individual and societal costs of enforcement. Conversely, the minimization of enforcement costs (personas, societal and economic) may result in an increase in conduct associated with health and safety concerns. Thus, the maximal attainment of both policy objectives requires a compromise or balancing of interests. The exact point at which an acceptable trade-off is effected will depend on the gravity of the harms and an evaluative assessment of their relative importance. The Le Dain Commission, in its Final Report, adopted a similar calculus. In discussing the test to be used in deciding what, if any, measures should be taken in response to drug use, the Commission noted that: We must weigh the potential for harm, individual and social, of the conduct in question against the harm, individual and social, which is caused by the application of the criminal law, and ask ourselves whether, on balance, the intervention is justified. (Le Dain, 1973:940) In short, the legislative response must be designed to avoid a situation where the harms that flow from our cannabis control policy are greater than those attributable to the conduct the policy is intended to curtail.
Part 3 – The Empirical Bases of Cannabis Control Policy A meaningful discussion of cannabis policy must be founded on reliable information as to the effects of the drug, the epidemiology of its use, and the institutional characteristics and socio-legal consequences of our present control regime. These matters are addressed in the following subsections: Chapter 1 surveys the available evidence regarding the correlates of cannabis use, while Chapter 2 summarizes the data pertaining to our current legislative response.
1. empirical Evidence Regarding Cannabis Use Cannabis sativa is an herbaceous annual plant which grows as a weed or is cultivated throughout the tropical and temperate areas of the globe; it is commonly referred to as "Indian Hemp." Marijuana consists of the crushed leaves and often small twigs or flower tops and is usually smoked, either by itself or mixed with tobacco. Hashish, which is generally more potent, is the resin of the plant which has been squeezed or scraped from the leaves or flowering tops. It is sometimes eaten, but usually smoked in a pipe or sprinkled on tobacco and rolled into a cigarette. Hash oil, an extract of the resin, is mixed with tobacco or low-grade marijuana to be smoked, or smeared on cigarette papers to be used in the manufacture of "joints." The pharmacological effects of cannabis are due primarily to 1-D9-tetrahydrocannabinol (THC) and certain related metabolites. In the following section we canvass the major findings of our background studies and literature reviews of the use of cannabis. This survey includes discussions of: (a) health concerns; (b) safety concerns; (c) the cannabis market; (d) extent of use; and (e) patterns of use. Health Concerns One of the major areas of concern surrounding cannabis pertains to its physiological and psychological effects, especially under conditions of heavy or prolonged use. Unfortunately, several important hypotheses have only begun to be explored, the scientific literature is riddled with inconsistent, methodologically questionable and unreplicated research, and North American-based long-term studies have yet to commence. Further, in some areas the proponents and opponents of cannabis law reform are locked in a prolonged and unproductive debate as to the meaning, significance and epidemiological implications of reported effects. As Griffith Edwards (1974:8) has commented: "in this polarized situation, objectivity becomes the casualty." For the past decade, however, there has been an intensive international effort to determine what, if any, biomedical liabilities result from the use of cannabis. There remains much to be learned, but a considerable body of reliable knowledge of cannabis effects — adverse and otherwise — has accumulated. A review of these materials for the Health Protection Branch has been prepared by Dr. Leo Hollister, a California pharmacologist and one of a very small number of universally respected researchers in this field. We have also received advice and assistance in this area, especially as it relates to the Canadian context, from Dr. Ralph Miller, former Research Director of the Le Dain Commission of Inquiry into the Non-Medical Use of Drugs. The evidence to date suggests that cannabis is relatively safe, but we must proceed on the assumption that it is not a unique drug in having no detrimental effects on health. Indeed, there are a number of possible health hazards which must be addressed. Recent controlled field studies (all of which were conducted outside of North America) have generally failed to detect any major health consequences from long-term heavy cannabis use, but in certain circumstances the research techniques were too limited and the samples too small for accurate epidemiological predictions regarding unusual or statistically rare conditions. If cannabis is at all like alcohol or tobacco in its health hazards, broader-based epidemiological studies will be necessary before any final conclusions can be reached in certain areas. Since there is little evidence of any significant health problems caused by moderate use of cannabis by normal young adults, attention in this review is placed primarily on possible effects of heavy, chronic use, and on use by particular subgroups of Canadian society who may have specific susceptibilities to any potential health problems. Impairment of psychomotor functioning, and its relationship to the safe operation of motor vehicles, is one issue of major importance to public health, but discussion of this problem will be deferred to a later section on safety-related concerns associated with cannabis use. First, we will focus on physiological effects. Later in this section, we will deal with the psychological and mental health aspects of cannabis use. It seems to be generally agreed that the most likely health problem associated with cannabis use derives from its most common mode of administration (smoking) and the consequent risk of bronchial or pulmonary damage. It appears that heavy cannabis use may have effects similar to tobacco in this regard. This problem is especially exacerbated by the additional risk that some samples of marijuana may be contaminated by paraquet, an herbicide which may be extremely toxic when inhaled. Consequently, cannabis smoking by persons with impaired pulmonary function appears to be hazardous; frequent, chronic use of the drug in this way should be avoided. However, at present it is much more difficult to find evidence of clinically important pulmonary insufficiency among cannabis smokers than for example, among those who regularly smoke tobacco. Concern about other probable health hazards is primarily focused on particular subgroups of society. The acute effects of cannabis, including increased heart rate and other ordinarily minor cardiovascular effects may have deleterious consequences for those suffering from arteriosclerosis of the coronary arteries, congestive heart failure or other cardiovascular disorders. Possible effects on the hepatic enzyme system may be problematic for persons with preexisting liver disorders. There are other areas where the degree of risk involved in cannabis use is less certain than in those discussed above, but nonetheless deserve careful appraisal. Three of these again apply to special population groups: pubescent boys, pregnant women and diabetics. Concern about cannabis use by young boys initially arose from some contradictory clinical observations of decreased serum testosterone levels in male cannabis smokers. Experimental studies have been similarly suggestive, but inconsistent. Although the evidence is not clear and its potential significance yet to be determined, the limited endocrine changes indicated, although probably of relatively little consequence in adults, could be of major importance in the prepubertal male. Cannabis, like many other drugs, crosses the placental barrier, and although there is no demonstrated association between its use during pregnancy and fetal abnormalities, such occurrences, if they exist, are likely to be statistically rare and might easily be missed. Use during pregnancy should therefore be discouraged, although, as Dr. Hollister has noted, the "...current admonition against using cannabis during pregnancy is based more on ignorance than on definite proof of harm." It has been suggested that large doses of THC might aggravate diabetes through deterioration of glucose tolerance. Such a relationship has not been clinically demonstrated, but the paucity of clinical evidence may be due to the relatively low doses commonly consumed by users or to some development of tolerance to this particular pharmacologic effect. Other hypothesized, but so far unresolved, health hazards apply to the cannabis-using population as a whole. Impairment of cell-mediated immune responses has been suggested by some studies, but the experimental evidence is inconsistent and greater disease susceptibility in cannabis smokers has not been observed. . If such reductions do occur, they may well be transient, or so small that the capacity of the body to resist challenge is not sufficiently depleted to be cause for concern. The issue, nonetheless, warrants further research. The controversy over chromosome damage also remains to be resolved for cannabis, and, for that matter, a variety of commonly used drugs, including aspirin. In the absence of clinical evidence of harm, the significance of any abnormalities which may emerge is doubtful, but current uncertainty will only be assuaged by further experimental work. Similarly, research into the effects of cannabis on cell physiology and metabolism has failed, as yet, to provide us with satisfactory information on the role of the drug as a potential cause of lung cancer. Some findings suggest that the tars in cannabis smoke might be carcinogenic. Other cell studies indicate that THC might be therapeutically useful in the treatment of malignancies. In the light of recent research findings, some issues which were once considered important do not now seem to warrant particular concern. An early study which reported brain atrophy in cannabis users has not been confirmed by newer and more reliable techniques, and epidemiological surveys have been generally unable to find clear evidence of impaired brain function in heavy cannabis users. It also appears unlikely that the high lipid solubility of THC implies that sequestered quantities of the drug might be later released in an active form. Many widely used drugs, including diazepam (Valium®) are highly lipid soluble, but this does not necessarily mean that the drug is accumulated in any active form or causes problems as a result of this characteristic per se. However, high lipid solubility, in this case, must be seen as grounds for continued, careful observation. Dr. Hollister has come to the conclusion that "... general toxicity studies of cannabis and its constituents lead to the inescapable conclusion that it is one of the safest drugs ever studied in this way." Turning now to the area of mental health and psychological functioning, it has been suggested that there might be some risk in the use of cannabis by psychologically troubled persons, whose psychiatric problems might be unmasked or aggravated by the drug. Tolerance to the effects of cannabis and definite, although mild, signs of physical dependence have been experimentally observed. These occur at much higher levels of consumption than those which characterize typical recreational cannabis use, but we cannot ignore the possibility that certain persons may be prone to compulsive use of this drug, as with any drug with attractive psychopharmacological characteristics. One of the most common concerns is that cannabis use may precipitate basic changes in the personalties of users, whereby they become less motivated to work or strive for success. This so-called "amotivational syndrome," although observed in some young people who have become preoccupied with drug-taking and have radically changed or abandoned traditional life goals, is difficult to attribute directly to cannabis, especially when multiple drug use is present. In contrast to pharmacological hypotheses regarding such occurrences, other researchers have suggested that lack of motivation is really a manifestation of concurrent depression for which cannabis may be a self-prescribed treatment. No clear evidence exists for either mechanism, however. It has also been found that family background and relationships, as well as social values, are much. stronger predictors of dropping out of college than is drug use. Participation in the illicit drug subculture and "amotivation" may both be symptomatic of the same underlying problem. It is clearly impossible to ascertain if these lifestyle changes, when they do occur, are caused by the pharmacological properties of cannabis. Whether or not cannabis has the ability to evoke sociopathic, depressive or schizophrenic states is highly uncertain, but there is little empirical evidence that this is a significant risk. There is no doubt that, in certain situations, it can produce acute anxiety or panic reactions. Although such transient reactions occur infrequently, if at all, in regular users, they are probably the most common adverse psychological effects of the drug. Fortunately, these reactions are rapidly reversible as the effects of the drug wane. Toxic delirium and acute paranoid states, more serious and more rare, are similarly self-limiting. "Flashback" reactions tend to be mild and require no specific treatment. At the present time, it would appear that psychopathology may predispose certain people to problematic cannabis use, rather than being caused by it. As mentioned above, it is reasonable to assume that it might unmask latent psychiatric disorders in those who are particularly vulnerable, but it does not appear that this is a significant occurrence in the general population. Evidence from the available health statistics suggests the limited scope of cannabis-related psychological problems. For example, roughly one hundred cases involving cannabis are reported each year to the National Poison Control Program, representing 0.1%-0.2% of all reported poisonings. Even then, the figure is probably inflated, since patient reports are accepted without independent chemical verification. A 1975 study in a Toronto emergency ward indicated that adverse cannabis reactions (chiefly acute panic reactions) were concentrated among young, and probably naive, users; less than 3% of the alcohol and other drug-related emergencies requiring institutional intervention involved cannabis. Similarly, cases involving cannabis constituted less than 4% of all 1976 "crisis contacts" at the Calgary Information and Crisis Centre. This represented less than one-tenth of the number of cannabis cases reported there in 1972, despite a steady increase in the prevalence of cannabis use during the intervening period. While 19% of all psychiatric admissions in Canada are classified as due to "drug dependence" by the Mental Health Division of Statistics Canada, all but 2% were attributable to alcohol, the cannabis-related admissions constituting 0.03% of the country's psychiatric case load. (About 30 cases per year over the past six years). Further, most cannabis-related admissions result in very brief hospital stays, usually measured in days or weeks, and some admissions may be attributed to cannabis in lieu of other more appropriate diagnostic assignments. Despite considerable increases in the using population, the proportion of psychiatric admissions attributed to cannabis has not risen accordingly. These more recent data seem to reinforce the Le Dain Commission's 1972 conclusion that: ...cannabis does appear as a secondary or complicating factor in psychiatric admissions in Canada, although such cases do not represent a significant proportion of either cannabis users in general or of the psychiatric hospital patient population in particular. (Le Dain, 1972:90) There is no currently accepted medical use of cannabis in Canada, outside of the experimental context, although it appears that therapeutic prescription by physicians is not prohibited by law. Production of the last cannabis-containing pharmaceuticals was discontinued in 1954 and no new supplies have been made available through traditional channels. While cannabinoids, over the centuries, have been reported to produce an incredible array of possibly useful medicinal effects, the majority of the alleged effects are either complicated by undesirable side effects or can be duplicated by other more readily available and convenient drugs. Recent advances in the synthesis of natural cannabinoids and related compounds has led to a new generation of clinical testing. Some potentially important therapeutic uses have been discovered and a few interesting leads from the earlier literature have yet to be adequately followed up using modern techniques. Of primary interest is the ability of THC to lower intraocular pressure in glaucoma, a major cause of blindness, and its capacity to suppress the often debilitating nausea and vomiting associated with cancer chemotherapy. Areas where cannabinoids are currently being investigated for possible, but less likely, clinically useful effects include its use as a bronchodilator in the treatment of asthma, as a tumour growth inhibitor in cancer treatment, and as an appetite stimulant in anorexia disorders. Other more tenuous uses include possible anticonvulsant and analgesic applications. Major health hazards of cannabis have not readily appeared in either field studies or clinical practice, but we cannot rule out the possibility of statistically rare or as yet unforeseen occurrences. Like tobacco cannabis smoke contains tars which can be damaging to the lungs, and paraquat-contaminated materials are likely to be quite toxic. Until definitive research results are obtained concern will continue over the use of cannabis by people with heart, lung, or liver problems, diabetics, pregnant women, and young boys. Although our mental health and toxic reaction statistics would indicate that cannabis is of relatively little importance in precipitating problems in these areas, use by certain emotionally unstable people may be unwise. Overall, the risks to health connected with cannabis use appear, at present, to be less significant than those related to the use of the more common recreational drugs, but until further research has been conducted, caution and vigilance would be recommended.
Safety Concerns Safety is of major importance warranting independent consideration for a number of reasons. Although the impaired driver may be putting himself at risk, he may potentially harm others as well, so our concern here is now focused on risk of harm to others which may arise from cannabis use. Secondly, direct "harm to others" describes a moral category of behaviour that all schools of legal philosophy agree justifies the use of the criminal law power. Finally concern about safety raises a host of self-contained legal problems that deserve special attention. The cannabis and safety issue primarily involves the operation of motor vehicles on the roads. The use of heavy machinery and flying are further illustrations of situations where cannabis use may compromise performance and thus put the safety of others at risk. Driving, however, remains the archetypal, most commonly occurring, and best-researched example of an activity which can endanger public safety. In addition, its apparent resemblance to the alcohol-and-driving situation has prompted considerable public discussion and a concomitant search for a "Breathalyzer" type of testing device, on the assumption that the problems anticipated will indeed occur. A thorough review of the relevant research findings in this very complex field has recently been completed by R.A. Warren, a Research Associate at the Ottawa-based Traffic Injury Research Foundation. In general, his findings confirm the research and literature review presented by the Le Dain Commission in its 1972 Cannabis report. In order to investigate possible traffic safety hazards associated with cannabis use, two major methodological strategies, experimental and epidemiological, have been adopted, each with its special strengths and weaknesses. Experimental studies are designed to investigate, under carefully controlled conditions, the potential cannabis effects on certain psychomotor skills thought to be important in safe driving. Epidemiological studies, on the other hand, search for evidence of already-existing "real world" involvement of cannabis in problematic driving, by examining users' attitudes or experiences, studying driving records, and systematically investigating accidents. Epidemiological studies are frequently very difficult to control properly and can generally yield reliable predictive information only if the incidence of drug use in the driver population is already fairly substantial. To date, no comprehensive studies of cannabis involvement in traffic accidents have been undertaken, although a number of limited efforts have been made. There is some evidence of an association between cannabis and driving mishaps, but the data are inconsistent. Other studies have not found evidence of such a relationship. Care must be taken in interpreting limited or inadequately controlled epidemiological studies. For example, an apparent relationship between accidents and persons who have chosen to drive after consuming an illegal drug may derive from other preexisting characteristics, such as risk-taking tendencies, rather than resulting from the use of the drug. Age, sex and region are also essential factors which must be controlled. Studies where active drug levels in the bodies of persons involved in accidents are compared with drug levels in control subjects who have not been associated with driving mishaps have been of primary importance in clarifying the traffic hazards of alcohol. However, there are chemical and pharmacological differences inherent in the cannabis situation which limit the feasibility of such an approach. Considerable attention has been given to the possible development of a quantitative chemical test analogous to the Breathalyzer, which could provide a reasonable estimate of the intensity of current cannabis effects. Such a device would be invaluable for basic experimental and epidemiological research, as well as for traffic law enforcement. Although qualitative methods exist that can provide some evidence of fairly recent use (e.g., employing ether finger swabs, mouthwashes, dental scrapings and urine samples), these sampling techniques are often not appropriate and, in any event, cannot provide quantitative information regarding current effect levels. In fact, they cannot generally discriminate use immediately before testing from use several days prior to taking the sample. Available evidence, based primarily on the relatively simple case of isolated THC administration, suggest that blood sample analysis is the most practical approach to estimating the intensity of effects from levels of cannabinoids in the body. However, current methods have little applicability outside the laboratory. Even if simplified and efficient blood sample techniques were developed, significant practical and legal problems surrounding the acquisition of appropriate samples would likely preclude their use for general traffic control purposes. In the review noted above, Warren (1978) concluded that a causal relationship between cannabis use and driving impairment has not been demonstrated and that at present no epidemiological evidence that cannabis contributes to driving collisions has been found. Since completing this review, Warren has submitted a confidential interim report on a project investigating the level of drugs in fluid and tissue specimens from persons killed in traffic accidents in Ontario over the past year. Evidence of cannabis use was found in a significant number of the victims. It is difficult to interpret this aspect of the study, due to the small numbers involved and the preliminary nature of the report. Disclosure of more complete results is anticipated later in the year. There are different problems involved in the evaluation of experimental studies deriving from the fact that little is known about the actual causes of traffic accidents, and small changes in one or more of the complex of driving-related skills might not be significantly related to accidents or injuries under natural conditions. It appears that such factors as driver attitudes, risk-taking traits, aggression, judgement, attention and susceptibility to distraction, and a variety of other psychological variables which are difficult to measure may be more significant in contributing to automobile accidents than are elementary psychomotor skills. Therefore, although certain basic driving parameters can be established experimentally and important issues raised, such studies can provide only a limited basis for predicting the likely "real-world" effects. Laboratory research indicates that cannabis can produce dose-dependent short-term deficits in certain perceptual, attentional, cognitive and psychomotor abilities which are of possible significance to driving. Similarly, a few studies have revealed that experienced airplane pilots undergo deterioration in performance on flight simulators after smoking high doses of marijuana. Several experiments have demonstrated analogous detrimental effects of cannabis on certain automobile driving tasks, on test tracks and on the road. Further, it appears that alcohol and cannabis have additive deleterious effects on driving skills when used together. On the other hand, several reports suggest that cannabis reduces aggression and risk-taking in a variety of situations. Taken as a whole, these experimental findings are certainly cause for concerned attention, although, as noted above, they cannot be used to directly predict traffic hazards under natural conditions. Surveys suggest that among regular cannabis users driving while high is not uncommon and that the combined use of alcohol and cannabis in a variety of situations is becoming increasingly frequent. In spite of the inconclusiveness of current findings, research suggests a cautious, rather than optimistic, approach to the issue of cannabis and driving. The Cannabis Market Despite intensive efforts to eradicate the cannabis trade, marijuana, hashish and hash oil are probably more readily available now than at any other time in Canadian history. Large international networks, capable of smuggling literally tons of cannabis into the country in a single venture, have evolved over the post decade, and substantial seizures and severe penalties appear to have had little or no effect on national availability. Prices have tended to stabilize recently, domestic cultivation has expanded, and marijuana, the most common cannabis product, has tended to increase in potency as once-rare strains and more discriminating tastes have come to characterize the retail market. The source countries for the Canadian market have remained the same over the decade, although there has been some reordering in terms of the amounts contributed by each country. Hashish still comes from the Middle East, North Africa and parts of Asia; Mexico, Colombia and Jamaica are the major sources of marijuana. In recent years, however, the Mexican marijuana trade has become disrupted because of intensified enforcement efforts, including the herbicide-spraying programme and increased border and coastal patrols. Consequently, many smuggling organizations simply shifted to countries such as Colombia, now Canada's largest contributor of marijuana, where the crops are less physically vulnerable or regimes more hospitable. This reordering of source countries has had a number of effects. The size and sophistication of smuggling operations has increased. In addition, there has been a marked increase in the potency of the marijuana available in Canada, since the more equatorial locales generally produce plants superior in THC content to most Mexican cannabis. The available data suggest a three- to fivefold increase in average marijuana potency over the past seven years. In this same relatively brief period, the strength of the hashish typically available in this country appears to have declined to the point where it is more or less equivalent to that of marijuana, suggesting the difficulties of chemically or legally distinguishing between these two cannabis products on the basis of potency alone. Initially, domestic cultivation of cannabis operated on a relatively small scale, but by 1976, commercial production had become a significant factor. Although domestic cannabis is not particularly popular among consumers at present, it will become increasingly marketable as growers develop the experience and technology necessary to produce more potent varieties, or in the unlikely event of a sustained shortage of foreign supplies. Even if the present sources of supply were eliminated, there is no shortage of possible countries in which cannabis could be grown. In many regions, cannabis cultivation provides a higher return per unit of land and per unit of labour than even poppy cultivation. The possibility of finding a viable crop substitute or developing an income replacement programme for cannabis cultivation is extremely bleak in the foreseeable future. The likelihood of greatly improving cannabis enforcement in the potential source countries is also discouraging. The young entrepreneurs of the 1960s, who imported relatively small quantities of cannabis, are being increasingly replaced by older and more experienced smugglers involved in large-scale operations. However, cannabis importers tend to be less sophisticated than their counterparts in the heroin trade, and the market does not appear to be linked to organized crime syndicates, such as the Mafia. It is assumed that the lion's share of the domestic market is met by these large-scale importing operations; smaller importers continue to operate, and become particularly important when the market is disrupted. Some violence does erupt in the cannabis market from time to time, but these episodes seem to be chiefly related to cheating or theft, rather than territorial rivalry. Upper level distributors tend to deal only in cannabis; however, some retail dealers also handle other illicit drugs, including amphetamines and LSD. There appears to be little overlap between the cannabis and opiate narcotics distribution systems. Within Canada, the marketing systems for hashish and marijuana are similar, although on the upper levels of distribution they are largely discrete entities. The larger the initial quantity that arrives in Canada, the more numerous are the levels of distribution between importer and consumer. Each level of distribution involves different financial risks and chances of detection and arrest, as well as different profit margins. At the lower levels, financial returns are so small that only those committed to using cannabis would bother to become involved. The return for some dealers is solely realized in cheap or free supplies for personal use; indeed, many so called "dealers" operate only or primarily to ensure themselves and their immediate friends a continuous supply of cannabis at bulk-purchase prices. Any effort to reduce cannabis consumption must include measures directed at the reduction of both supply and demand. Supply, however, does not appear to be significantly influenced by either expensive interdiction methods or repressive sanctions. During the last ten years, Canadian law enforcement resources devoted to cannabis have probably increased twentyfold. While this upsurge in resources has increased cannabis arrests by more than 1000 percent, there has been no significant increase in the price of cannabis products in relation to disposable income, no sustained shortages of marijuana, and only temporary regional shortages of hashish. These disappointing results are attributable to a number of factors. There are almost no serious barriers to entering the cannabis importing business or participating in the distribution system. The profit margins in the illicit traffic are powerful inducements, even in the face of severely punitive sanctions. The underground romance of dealing cannot be discounted as a motivating factor. In summary, our experience since the late 1960s strongly suggests that the Canadian cannabis market is largely immune to increasing arrests, raids, and other law enforcement efforts. The resilience of the international and national cannabis markets in the face of sophisticated enforcement endeavours suggests that Canadian demand is unlikely to exceed supply, in the foreseeable future. Extent of Use In the previous section, we addressed the problems surrounding the control of the supply of cannabis in Canada. Here, and in the section which follows, we consider the nature of the demand: how many Canadians consume cannabis and how the size and composition of this population has changed in recent years. Widespread use of cannabis did not occur in Canada until the mid-1960s, but since that time the number of users has grown dramatically. Uniform trend data is, unfortunately, not available, but there have been two national household surveys and a number of regional studies, most commonly of school populations, from which to draw broad conclusions. The first nationwide survey, in 1970, was sponsored by the Le Dain Commission. It gathered a certain amount of retrospective data for the years 1966 to 1970 which indicated that the proportion of adult Canadians who had tried the drug, or had "ever" used it, had risen from 0.6% to 3.4% during that period. A Gallup survey, commissioned by the Non-Medical Use of Drugs Directorate and conducted in January of 1978, revealed that this "ever used" category had risen to just over 17%, indicating that just over 2,750,000 adult Canadians had consumed cannabis at least once. Of more relevance, however, are measures of the number of people who are "current" users, that is, those who have taken cannabis within a specified time period (usually six months or a year) prior to being surveyed. Indeed, at the time of the 1970 survey, about 2.4% of adults claimed to have stopped, leaving only 1% currently using, little more than 125,000 people. These figures had changed considerably by early 1978, with over l˝ million Canadians aged eighteen and over (9.7%) having used within the past year, and almost as many (1.33 million or 8.3%) having done so within the month prior to interview. The population bases of these two national surveys are not strictly comparable, but the percentage increase suggested is large enough to indicate substantial growth in the cannabis-using population. In addition, there is reason to believe that these are minimal estimates, for the sampling methodologies employed by household surveys tend to identify people who spend much of their time in the home and underrepresent younger and more socially active people. On the basis of what we know about the characteristics of cannabis users, it is not unreasonable to hypothesize that many would fall into these two categories. The very nature of the household survey also excludes those who live in college dormitories; this is likely to be a significant omission, as the 1970 household data were supplemented with a survey of university students which yielded the highest use rates in Canada. In addition, the national surveys leave out people who live in hospitals, prisons and other institutions, as well as the more geographically mobile, or hostel-dwelling, citizens. Nonetheless, these findings indicate that a large and growing number of persons use or have used cannabis. In addition, a significant proportion of current users smoke fairly regularly. The 1978 data suggest that close to 600,000 adults had smoked cannabis in the week prior to interview; somewhat less than half of this group, representing about 1.4% of adults, had used every day in the preceding month. The results of two surveys of Ontario adults, sponsored by the Addiction Research Foundation, suggest that adult cannabis use may be increasing at a faster rate today than was the case in the late 1960s and early 1970s. The incidence of current users rose from 5.8% in 1976 to 8.6% in 1977. The 1978 Gallup data for Ontario would indicate a further rise to 11.5% last year, implying that 3% of the adult population was recruited into use each year and that, in just two years, the proportion of adult Ontarians who had used cannabis sometime in the past twelve months had doubled. It is clear that cannabis use is not just a phenomenon of the 1960s, and is not confined to students and other young people. Turning to adolescent Canadians, the surveys sponsored by the Le Dain Commission found that 11%, just under 300,000 teenagers, were cannabis users in the spring of 1970. (Le Dain, 1972: 204) There has not been a national survey of secondary school students since, but there are sufficiently comparable regional surveys to roughly piece together countrywide estimates. With some regional variations, these local and provincial polls show a steady growth in the incidence of cannabis use among high school students. Research involving students usually identifies percentages of students who have used within six months or one year of the survey. "Ever used" data are only available for Vancouver secondary school students; in 1978, roughly 47% said they had ever tried cannabis, up 8% from the 1970 figure. "Current use" figures vary considerably, depending on the year the research was conducted and the city or region covered. One consistent observation, nevertheless, is that the proportion of students using cannabis seems to increase yearly. In the early years of the decade, users generally represented 10-20% of secondary school students. In the past three years, studies have been obtaining figures of 20-30% for the most part, with a low figure of 15% for Prince Edward Island, and a recent high of 37% from Vancouver. Our only national data on high school students were obtained in 1970 (Le Dain, 1972: 203) and indicated that about 2% were using at the end of 1968. It is clear that this decade has, indeed, seen a dramatic increase in cannabis use by teenagers. Although student surveys consistently reveal that cannabis use increases with age or grade, it is by no means confined to the older students: up to 13% of some samples of those in grade 7 (or aged 12) have been found to be using, with most surveys suggesting about 5% for this age group. The range for 17-year-olds (or those in grade 12) tends to be 35-45% using at least once in the six months prior to the research. Less than 10% of all students use once per week or more often. Although this implies that over one-third of current student users smoke with some degree of regularity, "once per week," certainly, could not be characterized as very "heavy" use. The data do not permit accurate estimates of the number of young people using cannabis. However, it is probably safe to assume that 25% of high school students used marijuana or hashish sometime in 1978. This would place one million or more teenagers in the present using population. Combining the teenagers with the adult population figures, one could conservatively estimate that 2,750,000 Canadians have used cannabis in the past year, 1,750,000 adults and one million teenagers. Considering some of the sampling problems involved in household surveys, that there is no indication that recent increases in incidence have reached a plateau, and that the student use estimates are necessarily lacking in precision, it is well within the realm of possibility that the current using population numbers 3˝ million or more. It would certainly not seem unreasonable to suggest that there are 3 million current users, representing one in seven (15%) Canadians aged ten or over. As the adolescent using population continues to grow and as older adult non-users are demographically replaced by maturing users, it appears that cannabis users will constitute an increasingly large proportion of the Canadian population. Patterns of Use It is necessary to identify the various patterns of cannabis use, if we wish to meaningfully understand the phenomenon in Canada. Most classification systems are based on the frequency with which the drug is used, the persistence or duration of use, and often some suggestion as to the role and meaning of cannabis in the user's social and personal life. In the foregoing section, we distinguished between people who had "ever" used cannabis, to indicate how widespread was personal contact and experience with the drug, and "current" users, who had consumed cannabis within a year or six months of being surveyed. Within this latter category are people who may be called experimental users, who may have smoked cannabis once, or several times, but have not yet established the role it will play in their lives, if any. There may also be found those casual (or episodic) users, who enjoy the use of cannabis in certain situations, probably at the invitation of more regular smokers, but do not maintain their own source of supply. Occasional users may purchase cannabis from time to time, or even quite regularly, but tend to be selective about the contexts in which they use (special social occasions, on weekends, with certain friends, etc.) and tend to use less frequently than regular users. Those in the latter category have more thoroughly integrated the use of cannabis into their lives, usually keep a quantity of it on hand, and tend to smoke in a variety of social and personal situations, some, but not all, smoking every day. It is worth noting here that many cannabis users switch from one category to another or stop using altogether; occasional users become episodic and vice versa, regular users become occasional, and so on. One of the encouraging aspects of cannabis use patterns is the apparent ease with which people move out of the cannabis-using population. Some, often after extensive use of the drug, discover that they are no longer enjoying it sufficiently to continue or that unpleasant reactions tend to predominate. In most cannabis-using circles, certainly amongst mature users, it is quite acceptable to pass along the cigarette or pipe without partaking, and such occurrences usually go by unremarked. Some people stop as a result of other life style changes, often drifting away without having made a definite decision to refrain from use. The survey data do not inquire deeply into the role of cannabis in users' lives, but there is some anecdotal and observational information available, and it is probable that frequency-of-use is a fairly good indicator of seriousness of involvement. The 1978 Gallup national household study found that a large proportion (over 85%) of the adults who had used any cannabis in the year prior to interview had also used within the previous month. It indicated, however, that less than one-half of the current adult cannabis users were smoking as often as once per week. As mentioned above, most student surveys reveal that somewhat more than one-third of adolescent users smoke once per week or more frequently. Less than 15% of adult users claim to use on a daily basis, but it would appear that most of these confine their cannabis smoking to weekends and evenings. Only a very small proportion of users (1-2%, by one estimate) would seem to use frequently enough to be under the influence of cannabis for most of their waking hours. Indeed, most cannabis use seems to be recreational and social, engaged in by persons of like interests, as a complement to other shared activities. Most use occurs in private settings, but some events and social occasions are associated with public consumption: certain concerts, films or youth-oriented bars, for example. Use in public is rarely indiscriminate, however, and usually occurs where cannabis users constitute a large proportion of those present and where they believe themselves to be substantially immune to arrest. Although public consumption is less common than private, it is more likely to be followed by driving while under the influence of cannabis. It is thought that a substantial proportion of cannabis users prefer to avoid driving in this condition (Kahn, 1978:8), yet it has been estimated that between 50% and 80% have done so at some time. As indicated earlier, the highway accident implications of this have yet to be determined, but are a source of some concern, especially when alcohol has also been imbibed before taking to the roads. The full implications of patterns of cannabis use in Canada await further research and the passage of several more years. There is no indication that recent increases in the using population have begun to level off. One might postulate, however, that we have already passed through the period in which the worst, at least short-term, consequences of cannabis use could have been expected to reveal themselves. In its beginnings, cannabis found favour among the young, the rebellious, and those on the margins of Canadian society. That it has now moved into the households of "ordinary" citizens raises concerns about road safety, increases in conviction rates for cannabis and the unhappy consequences that may result, and perhaps, some long-range health hazard which has not yet become apparent. However, remarkably few "victims" of cannabis use have emerged over the past fifteen years, when a large proportion of users were among the least mature, responsible and socially integrated of our citizens. Despite the widespread availability of cannabis, at prices which are low in relation to disposable incomes, the majority of users maintain casual or occasional patterns of use. Bearing these considerations in mind, perhaps we can anticipate future dissemination of cannabis use in Canada with cautious reserve, but with minimal trepidation. 2. Empirical Evidence Relating To The Current Legislative Response To Cannabis We propose to examine here the preliminary findings of the background papers on law and law enforcement and the sociolegal impact of our present response to cannabis use. The discussion includes: (a) the powers of arrest, search and seizure; (b) the processing of a cannabis suspect through the criminal justice system; (c) the processing of information concerning a cannabis case; (d) problems inherent in drug enforcement; (e) a statistical review of current arrest, conviction, and sentencing patterns; (f) the financial cost of cannabis enforcement; (g) the sociolegal consequences of enforcement; and (h) public and professional attitudes to cannabis control policy. Special Powers of Arrest, Search and Seizure in Drug Enforcement The Narcotic Control Act (N.C.A.) 1960-61, c.35 and Food and Drugs Act (F.D.A.) 1952-53, c.38 grant police who work in drug enforcement virtually unequaled powers of arrest, search and seizure. The Canadian courts have broadly construed these statutory powers and the police officer's common law defences to civil suits. Despite police complaints that their hands have been increasingly tied by the expansion of civil liberties, the exact opposite is true. During the past seventy years federal drug legislation has greatly expanded police powers of arrest, search, and seizure at the expense of individual freedom, privacy and physical integrity. It is important to emphasize that these special police powers in drug enforcement are in addition to the already broad general powers of arrest, search and seizure contained in the Criminal Code R.S.C. 1970, c.34 and other federal criminal statutes. Provincial legislation such as The Highway Traffic Act R.S.O. 1970, c.202 and The Liquor Control Act R.S.O. 1970, c.249 provide still further police powers. Thus, even in the absence of the extraordinary powers of the N.C.A. and F.D.A., officers engaged in drug enforcement still have broad powers of arrest, search and seizure. Two examples illustrate the breadth of the special police powers and the extent to which they represent a fundamental departure from traditional legal principles. A large percentage of cannabis arrests are made by uniformed police officers during routine traffic patrol. In these situations, the officer can use his powers under the provincial highway traffic and liquor control acts to undertake ad hoc drug investigations. For example, the Ontario Highway Traffic Act authorizes the police to stop any vehicle, to require the driver to identify himself and produce his licence, and to "submit the vehicle to such physical examination...as the constable...may consider expedient." While this Act does not give the officer the right to search the driver or the car's occupants, suspicious circumstances observed during this licence and safety inspection can be used to invoke the broad search powers of the N.C.A., s.l0, and F.D.A., 5.37. Both permit the police, without warrant, to enter and search any place other than a dwelling house in which they reasonably believe there is a prohibited drug. The police are also empowered by these acts to search any occupant found therein, using as much force as is reasonably necessary, whether or not they have reasonable grounds, or for that matter any grounds, to believe that the occupant was committing an offence. If the occupant refuses to submit to the search, he may be charged with obstructing a peace officer in the exercise of his duty, and if he physically resists, he may be charged with assaulting him and sued civilly. The police may require the occupant to submit to oral, rectal or vaginal examinations, and are not obliged to use medically-trained personnel for that purpose. Perhaps the most noteworthy aspect of this power is that an individual may be forced to submit to a physical search in the absence of any evidence, belief, or even suspicion of wrongdoing of any kind on his part. This is a major departure from established principles; as a general rule, the police may only search a person after they have lawfully arrested him, and the arrest to be lawful must be based on a reasonable belief that the person had committed or was about to commit or was apparently committing a criminal offence. A possible rationale for this exception in drug cases arises in situations in which the occupants of a private car might realistically know of, or be participating in, a drug offence being committed by another occupant. However, this power to search occupants of premises in which the police have reason to believe a drug offence is being committed applies to all places other than dwelling-houses, not only cars. The police have used this power to enter taverns and strip-search their occupants, many of whom had no possible relationship with the suspected offenders and who probably had no idea that any offence was occurring. (See, for example, The Royal Commission on the conduct of Police Forces at Fort Erie on the 11th of May, 1974.) The second example concerns the special police powers to search dwelling-houses in drug cases. The common law has traditionally distinguished between police powers to search dwelling-houses and other places. Generally speaking, the police could only enter the former if they had obtained a valid search warrant duly issued by a judge. Judicial scrutiny of the police evidence and control over issuance of the search warrant were designed to protect the sanctity of the home and the privacy of the individual. Both the N.C.A., s.l0(3), and F.D.A., s.37(3), provide far the issuance of writs of assistance to members of the RCMP, which empower them to enter and search any dwelling-house, day or night, in which they reasonably believe there is a prohibited drug. In order to prevent the possible destruction of evidence, the courts have permitted the police to enter without a prior announcement, using whatever force is reasonably necessary. The police may search the occupants of the dwelling- house and may "break open any door, window, lock...or any other thing." Although the government has proposed modest changes (Globe and Mail, March 14, 1978:9; Globe and Mail, April 7, 1978:1), there is still no judicial control over the issuance or use of the writ of assistance. A judge of the Federal Court must issue it on the Attorney-General’s request. It is not limited as to time or place and is valid for the entire career of the officer to whom it is issued. Consequently, the judge has no control over when, where, how often, or in what circumstances the writ is invoked, regardless of whatever abuses arise. It should be pointed out that RCMP regulations require officers holding writs to file internal reports when they use them. (Le Dain, 1972:240) However, even if this departmental review were scrupulously carried out, which is questionable in light of earlier reports (Solomon, 1972), it is a far cry from the common law requirement that the judiciary approve and control each police entry into a dwelling-house. This brief review of the special powers of arrest, search and seizure raises numerous issues regarding cannabis control policy. The most important of these is whether the risks posed by cannabis — particularly those posed by consumption-related activities — justify the wholesale sacrifice of our traditional safeguards of individual liberty. Even if one decides that cannabis use presents a sufficient threat to justify investing police with special powers of arrest, search, and seizure, a balance should be struck between the measure of freedom we give up and the enforcement benefits we receive. To date, a large measure of our freedom has been surrendered on the assumption that it has been offset by effective enforcement. Unfortunately the assumption appears unwarranted: the Canadian cannabis market has flourished, demand has risen steadily, supplies are abundant, and prices have remained relatively stable during the past ten years. The vitality of the Canadian cannabis market is even more remarkable given the tremendous increases in resources devoted to cannabis enforcement and more than a tenfold increase in cannabis arrests during the last ten years. The Processing of a Cannabis Suspect Through the Criminal Justice System The processing of a cannabis suspect involves two parallel but interrelated series of transactions: the first and most visible relates to the handling of the suspect; the second concerns the management of the data generated by a case. Although the data flow will be discussed in the next subsection, it should be noted here that the existence of such data may represent the most serious adverse consequence of the suspect's arrest or conviction. As in most areas of the administration of criminal justice, police, prosecutors and judges have a broad range of options in handling a cannabis case. Their discretion is only partially limited by statute, regulations, court decisions and departmental policy. The broad range of legal options, the confidentiality and inaccessibility of, and variations in, departmental policies, and the large measure of unfettered discretion, make it impossible to describe all the ways in which a cannabis suspect might be processed. Depending on one's view, these variations may be considered essential for ensuring a flexible, individualized enforcement response, or as unequal treatment contrary to fundamental tenets of fairness. The former characterization would be appropriate only if discretion were consistently exercised in accordance with some express or implicit cannabis policy goal, rather than in furtherance of administrative expediency or personal whim. Although the existing evidence is sketchy, the variations in the processing of cannabis suspects do not appear to be based on a rational attempt to further any recognizable policy. It is not that the individual police officer, crown prosecutor or judge acts without due consideration or in bad faith, but rather that the results of their decisions cannot be rationalized. To the suspect who is arrested rather than warned, or held in custody rather than released on bail, or charged with importing a drug rather than possession, or fined rather than given an absolute discharge, the system must appear arbitrary and capricious. It should be of little solace to those responsible for cannabis policy that each decision is thoughtfully and conscientiously made if, as it appears, the decisions reflect the conflicting goals of thousands of independent decision-makers. Police. Until the late 1960s, the RCMP drug squads made almost all drug arrests. With the increase in hallucinogenic drug use, the municipal and provincial police introduced special drug training programs and established their own drug squads. It became common practice, nonetheless, to establish mixed drug squads of municipal, provincial and RCMP officers. This arrangement has ensured closer cooperation between the agencies and has permitted the entire unit to take advantage of the broad search powers of the RCMP officers' writs of assistance. In the early l970s, the RCMP and other drug squads began to concentrate on cannabis trafficking and "hard" drugs, leaving enforcement of simple possession of cannabis to police engaged in general enforcement duties. Despite this division of labour, the vast majority of drug squad arrests involved cannabis users and minor street-level traffickers. In 1977, about 90% of all cannabis convictions were for simple possession, and the quantities involved in trafficking and possession for the purpose of trafficking cases were, on average, surprisingly small. Relatively few cannabis arrests seem to result from the investigation of individuals who have been identified as major importers or distributors. We will now briefly examine the factors which appear to influence the police officer's discretion in processing cannabis cases. A study of Ontario Provincial Police practices, written by a former officer with six years' experience, identified numerous factors which might affect the officer's discretion. (Bailey, 1978) Curiously, the first factor was a provision of The Police Act R.S.O. 1970, c.351 which makes it a disciplinary offence for an officer to fail either to report anything he knows about an offence or to make due efforts to bring a suspect to justice. Consequently, police discretion not to proceed is only exercised in low visibility situations, during the initial confrontation. Similarly, officers will only engage in illegal searches, physical aggression or other irregular tactics if it is unlikely to result in a complaint. Thus, these techniques tend to be used against young, poor and legally-naive suspects who are unaware of their rights and unlikely to take remedial action. Once the officer decides to lay a charge, the case will be processed according to the policy of his particular police department. Given that cannabis is used primarily by young people, it is relatively easy to make arrests. By pulling over youthful drivers or by confronting young people on the street and aggressively exercising his rights to search, an officer can produce a steady stream of cannabis arrests. Since cannabis is not generally consumed in public, an officer is unlikely to be confronted by a situation where he is obliged to make a cannabis arrest. Whether he pursues opportunities to make arrests or is indifferent to them depends on a variety of factors, including his attitude towards cannabis use, his career ambitions, competing demands on his time, the performance expectations of his supervisors, his attitude towards overtime and clerical work, the circumstances of the case, the suspect's attitude towards the officer, and the likelihood and nature of future interaction with the suspect. While all the factors cannot be discussed here, two points warrant special consideration. Of particular institutional importance are the pressures placed on officers by the monthly statistical monitoring of their performance. The officer's shift is divided into various categories, such as criminal enforcement, traffic enforcement and administrative duties, and the number of offences per hour of enforcement time is calculated and posted each month. An officer whose performance quotient is 20% below the detachment average is singled out in the monthly ratings. Because cannabis arrests are easy to generate and consume relatively little enforcement time, they are an excellent means of improving the performance quotient. The method of computing these performance statistics does not distinguish between an arrest for one marijuana cigarette and an arrest for non-drug offences such as "break and enter," which involve much more effort. The officers are concerned about their ratings and may keep a running tally so that they can calculate how well they are doing at any time. Their concerns are justified in that low performance quotients adversely affect the supervisor's evaluation, chances for promotion, and opportunities for transfer to specialty squads. Thus, an officer's decision to pursue cannabis users or to lay a cannabis charge may well be based more on its statistical value than its social utility. It is not known if other police forces employ such rigid evaluation systems, but it appears that departmental expectations universally influence an officer's conduct in investigating and processing cannabis cases. A second significant matter is the heavy administrative workload that accompanies cannabis cases. An officer involved in ongoing investigations, or one who dislikes paperwork or who is not interested in overtime is unlikely to pursue opportunities to make cannabis arrests or may warn rather than process the cannabis offenders he finds. Figure 1 illustrates the administrative duties involved in an uncomplicated case of cannabis possession in a motor vehicle. It is assumed that the driver and other occupants cooperate with the officer, that one of them admits sole ownership of the cannabis, and that the accused pleads guilty at his first court appearance. It has been estimated that even in these ideal circumstances it would take an officer almost eight hours to process the case from initial contact until the final disposition.
Figure 1 Police Duties Relating to Processing a Routine Cannabis Case
Crown prosecutors. Although the administration of justice and thus prosecution of provincial offences and federal crimes is generally entrusted to the provinces by section 92(14) of the British North America Act, all drug cases are prosecuted by federally-appointed prosecutors, operating under instructions from the Attorney-General of Canada. Until 1977, the provinces tacitly agreed to this arrangement, presumably because the drug prosecutors were paid by the federal government, and it reduced the work of the provincial Crowns who already had onerous caseloads. Recently, however, the federal government’s constitutional authority to prosecute drug cases without the written consent of the provincial Attorney-General has been judicially challenged. (Re Hauser v. The Queen (1977), 80 D.L.R. (3d) 161 (Alta. C.A.)) The issue is presently before the Supreme Court of Canada, but regardless of its decision the prosecution of drug cases is likely to remain in federal hands subject only to the necessity of obtaining the written consent of the provincial Attorney-General. It does not appear that the provinces wish to assume the financial costs and administrative responsibilities of prosecuting these cases. The federal Department of Justice hires full-time prosecutors in cities which have a sufficiently large drug caseload. In smaller centres, lawyers are appointed part-time and are paid on a fee-for-service basis according to a fixed tariff. These positions are financially attractive, and the applicants are generally well qualified. The applicant's political affiliations also appear to be a significant factor in the selection process. Once appointed, the lawyer and members of his firm cannot act as defence counsel in drug cases. During the early 1970s, the Department of Justice issued detailed instructions to its drug prosecutors and required them to check with the Department's Regional Offices in stipulated situations. This close supervision was intended to ensure a measure of uniformity. These instructions have since been replaced by more general guidelines, and there is now little contact between the drug prosecutor and the regional office, except for appeals. The prosecution of drug cases likely varies considerably from jurisdiction to jurisdiction and thus the following discussion of practices in the city of London, Ontario, are not necessarily applicable to the rest of the country. While London may provide a model for the smaller cities, the heavier caseloads in larger cities may place greater administrative pressures on the process. The federal Crowns in London have a good working relationship with the police, provincial Crowns, and other members of the legal community. Most drug cases are straightforward and the police rarely consult with the prosecutor before laying a charge. The RCMP have established confidential guidelines for its officers which are referred to by other forces. These guidelines probably reduce the potential for laying inappropriate charges or producing highly disparate dispositions. If an inappropriate charge is laid, the prosecutor will not hesitate to withdraw or correct it. Defence counsel usually initiate discussions regarding plea-bargaining with either the arresting officer or the federal prosecutor. The prosecutors consider the sufficiency of the evidence as the major factor in deciding whether to reduce a charge to a lesser offence in return for a guilty plea. The prosecutor seeks background information on the suspect from the arresting officer before making this decision. Defence counsel may also approach the federal prosecutor for a favourable submission as to sentence in exchange for a guilty plea. Occasionally, the arresting officer requests that the prosecutor reduce the charge because the suspect was "cooperative" or because subsequent investigation revealed the limited nature of the accused's involvement. In these situations, and others involving young first offenders, the prosecutors may reduce the charge despite evidence establishing a more serious offence. The federal prosecutors regard their function in speaking to sentence as bringing all the relevant facts to the Court's attention. They rarely propose a specific sentence, unless they feel that the sentence sought by defence counsel is inappropriate. In speaking to sentence they generally introduce the defendant's prior drug-related criminal record, if any. It appears that the individual prosecutor's sense of fairness is the single most important factor shaping his exercise of discretion. This does result in irreconcilable discrepancies in the prosecution of cannabis cases, but unlike the situation with the police, the drug prosecutor’s exercise of discretion is acknowledged and is a matter of record. Judges. The Le Dain Commission's 1970 study of sentencing in drug cases revealed wide disparities in sentencing policy and practices. During the last ten years, the number of sentencing options has been greatly expanded by the introduction of absolute and conditional discharges, intermittent sentences, the option to proceed by summary conviction for possession, and greater freedom in the use of suspended sentences and probation. Although there has been a marked trend towards more lenient sentences in cannabis cases, there is considerable variation in the use of these new options. As in the case of the drug prosecutor, the judge's exercise of discretion appears to be based on his sense of fairness, and it is a matter of public record. Generally speaking, both the Crown and accused may appeal against sentence if the judge erred in applying a principle of sentencing. The Processing of Information Regarding A Cannabis Suspect As previously indicated, the most adverse consequence of being convicted of a cannabis offence may be the existence of a written and computer record of the incident, rather than the sentence itself. If this result were intended, then further discussion would be unnecessary. However, various Royal Commissions, academics, commentators and the Law Reform Commission of Canada have strongly urged that the collateral punitive consequences of a criminal record be mitigated, especially in less serious criminal cases. The discharge provisions of the Criminal Code, s.662, the Criminal Records Act R.S.C. 1970 (1st Supp.), c.12 and Bill S-19 all address this problem. In this section of the paper, we will examine the massive flow of data generated by a cannabis case and explain why federal attempts to mitigate the consequences of a "criminal record" have had an extremely limited impact. It is necessary at this point to briefly describe the information systems available to a police officer engaged in general enforcement duties. In addition to the files kept by his own department, almost all police officers in Canada have virtually immediate access to the data contained in the Canadian Police Information Centre (CPIC). CPIC, which is run by the RCMP, receives information from individual member police forces across Canada and organizes it into two basic categories of operational data. One includes information regarding wanted, missing and charged persons and stolen or missing vehicles and property. This data is kept for relatively short periods of time during ongoing investigations. For example, once a charged person's case has been disposed of, his name is removed from this system. The other category of information, the Criminal Records Index, is a permanent record of all persons who have been charged by member police forces and whose fingerprints have been forwarded to the RCMP. All entries on this Index must be accompanied by fingerprints. Since all cannabis offences may be proceeded against by indictment, even those persons charged with simple possession of cannabis are liable to be fingerprinted and photographed. (Identification of Criminals Act R.S.C. 1970, c.l-l) Based on the information submitted, the RCMP prepare what is known as a "criminal record synopsis" which summarizes the persons "criminal history." Once an individual has been charged and his fingerprints have been sent to the RCMP, that data will permanently remain on file, even if the case is dropped or the accused is acquitted or discharged. Thus, an officer, by simply requesting a CPIC "criminal record synopsis" over the police radio, can obtain the police record for any individual who had ever been fingerprinted pursuant to an arrest. There appears to be only two ways to limit access to, and dissemination of, information in the Criminal Records Index. A person may ask the police force that forwarded his prints to the RCMP to seek their return. While the RCMP will return the fingerprints to the contributing force and close its file, the local police force is not obliged to either make such a request or, even if it does, to close its own file. The second way in which to prevent dissemination of the record is to obtain a pardon under the Criminal Records Act. The limitations of this Act are detailed below. Traditionally the term "criminal record" has been used to refer to an official account of an offender's conviction and disposition. This narrow definition ignores the massive trail of potentially damning information that is collected and disseminated prior to the disposition of the case. With the exception of the RCMP and drug prosecutors’ files, the federal government may have no constitutional power to limit these pre-disposition records. By the time the discharge and Criminal Records Act provisions take effect, the harm to the suspect's reputation, or education and employment prospects may be complete. Potentially damaging information begins to accumulate during the first contact between police and the suspect. It is standard police policy to query through CPIC the licence plate of a car prior to approaching it. At that point the officer, the driver and his passengers, the CPIC operator, and anyone listening to police calls on shortwave radio or the widely advertised police and fire department receivers would be aware of the contact. The officer routinely checks the driver's and even the occupants' names on CPIC. Thus the company you keep, your whereabouts and perhaps even the officer's reason for stopping you may be accessible to a wide audience. CPIC checks are routine — more than 250,000 inquiries are made each week. If the officer eventually finds cannabis and decides to lay a charge, reams of forms are filled out and filed. (See Figure 1 on page 20.) The suspect's fingerprints and photograph are filed at the local police station and a copy of the fingerprints are sent to the RCMP. The suspect's name and address and the charge are entered on CPIC. As indicated, even if the charge is dropped or the accused is acquitted, the police station's record and the RCMP Criminal Records Index are maintained; only the short-term CPIC entry under charged persons is expunged. Generally, any police agency in Canada can gain access to the local police records and the RCMP Criminal Records Index. Customs, immigration, prison, parole and similar agencies have been granted access to this information. Reciprocal information sharing arrangements have also been instituted with Interpol and American police agencies. Despite rigorous precautions in the design of these systems and the training and monitoring of operators, some of this information will inevitably leak into unauthorized hands. Once the suspect appears in court, the charge becomes a matter of public record and may be reported by the local newspaper or other media. In addition, the arrest might be recorded in the local legal aid office, federal prosecutor's office, the local court records, local detention centre files, and the Federal Department of Health and Welfare's record of known and suspected drug users. These sources of information are accumulated prior to the disposition of a case and, with few exceptions, are permanently maintained regardless of its outcome. The disposition of a case is entered in the records of the local police, the RCMP, the court, the prosecutor's office and the Department of Health and Welfare. It might also be reported in the local newspapers, radio and television. Discharges. In very general terms, the discharge provisions provide that an individual who has been found guilty or pleads guilty and who is granted a discharge is deemed not to have been convicted. A discharged offender can honestly answer "no" to the question, "Have you been convicted of a criminal offence?", but he would, however, have to answer "yes" if asked any of the following questions: "Have you ever been arrested for, been found guilty of, pleaded guilty to, been sentenced for, or ever committed a criminal offence?" The discharge has no impact on the police or other records that accumulated prior to disposition, nor does it limit the subsequent dissemination of this information. A discharged offender is not treated as a first offender, because the court is free to consider his discharge in sentencing him in a subsequent case. For all intents and purposes, a discharged offender has a "criminal record." At best, the discharge provisions provide a very limited benefit in very narrow circumstances. It is questionable if the legal community fully understands the discharge provisions, and it is likely that the public and the offender himself do not realize their limited effect. Unfortunately there are probably many young people who have plead guilty to cannabis possession on the assumption that they would be given a discharge and thus suffer no "criminal record" or any disabilities with respect to future employment, citizenship, travel, credit rating, bonding, and similar matters. Regrettably, this is simply not true: the pre-disposition record and the discharge itself are widely disseminated, and a discharge is likely to have almost the identical impact on the offender's future as a conviction. Pardons. The Criminal Records Act provides for the granting of a pardon upon an application by a discharged or convicted offender, following specified waiting periods. In most cases the RCMP will investigate the applicant, his family and acquaintances, and forward their findings to the Clemency Division of the Parole Board, which in turn makes a recommendation to the Parole Board. The pardon "vacates the conviction" (the term "conviction" has with respect to pardons been statutorily defined to include a discharge), which means that it deprives the conviction of any legal disabilities or disqualifications imposed by federal legislation. For example, a person who has been pardoned may not be challenged or disqualified as a juror solely on the ground that he had been convicted or discharged. Similarly, a person who has been pardoned regains his right to hold public office or contract with the Crown. A grant of a pardon, however, does not create the legal fiction that the crime never occurred. Consequently, a pardoned offender must answer "yes" to the questions, "Have you ever been convicted or discharged for a criminal offence?" and "Do you have a criminal record?" The offender, for what it is worth, may attempt to qualify his response by pointing out that he has been pardoned. The Criminal Records Act's most tangible benefit is that it precludes federal departments, Crown corporations or other agencies under Parliament's legislative authority from asking a question on an employment form that would require the applicant to disclose a conviction or discharge for which he had been pardoned. The Canadian Human Rights Act S.C. 1977, c.33 extends some of these employment benefits beyond the application stage. Records of a pardoned offence in the custody of federal authorities must be separately stored and cannot be revealed without the prior approval of the Solicitor General. The Criminal Records Act does not expunge the pardoned offender's criminal record but rather dictates how it is to be stored and the circumstances in which it may be released. These provisions are limited to "judicial records" which, according to the Clemency and Criminal Records Division, includes only the records of federal agencies and departments. All other records are considered non-judicial. These would include local and provincial police files, the court reporter's transcripts, court files, the court clerk's calendar, warrants of committal, and news media data. In any event, both judicial and non-judicial records will have been widely disseminated before a pardon was even applied for. The problems of limiting this information, years after it was collected and distributed, are insurmountable. The concern with limiting disclosure of a pardoned offender's record is somewhat misplaced. Unless the pardoned offender is willing to lie, an employer can obtain this critical information by simply asking him if he has ever been convicted or discharged for a criminal offence. In summary, the benefits of a pardon are extremely limited. The Act is complex and probably misunderstood by the public, the offender, and even members of the legal community. The RCMP investigation may cause the applicant more trouble than the pardon is worth, and the Act is expensive to administer. Any attempts to broaden the Act's prohibition against disclosure to local and provincial police and court records may be unconstitutional. By creating a criminal offence, the federal government sets in motion a process which generates a massive trail of data, both prior to and after the disposition of the case. Much of this elaborate record-keeping is essential to maintain the factual integrity of the process, to provide police with intelligence data, to evaluate the system's productivity, to assist in the efficient allocation of manpower and resources, and to ensure some measure of public access. These record-keeping systems cannot be dismantled, and the police and courts cannot operate in secrecy beyond the scrutiny of the public and media. A necessary result of these features of our criminal justice system is that any federal attempts to limit the collateral punitive consequences of pre-disposition and post-disposition records will benefit few cannabis offenders.
Problems Inherent in Drug Enforcement: Irregular Methods of Enforcement In addition to extremely broad powers of arrest, search and seizure, the police have employed irregular or unorthodox methods of enforcement, including the use of wiretaps, paid informants, undercover agents, entrapment, trained dogs, strip-searches and massive surprise raids. Although these tactics are legal, in that they have not been successfully challenged, the resort to such methods has been criticized as bringing the administration of criminal justice and the police into disrepute. Various forms of illegal police conduct are another cost of using the criminal justice system as a means of controlling cannabis-related behaviour. Unlike the situation in the United States and many other countries, drug enforcement in Canada has been relatively unblemished by corruption. However, illegal searches and the use of excessive force appear commonplace. Given the tolerant attitudes of our courts to narcotics enforcement officials, and the fact that illegally obtained evidence is admissible in court, there are few, if any, significant disincentives to illegal searches or physical aggression. The chances that an officer will be sued civilly or disciplined internally are remote, especially if these practices are confined, as they largely appear to be, to young, legally-naive suspects. The use of informants, undercover agents, surprise raids, and physical force have all contributed to the tension and violence that is inherent in narcotics enforcement. A Statistical Review of Arrest, Conviction and Sentencing Patterns Statistics related to the enforcement of cannabis offences have been compiled by both the Bureau of Dangerous Drugs and the Justice Division of Statistics Canada. The trend from the mid-1960s until 1974 was one of dramatic annual increases in the number of persons charged with and convicted of cannabis offences. More recently there has been some stabilization of reported possession offences, but the annual number of distributional offences continues to grow. Arrest statistics. In 1969, 4,756 adults and juveniles were charged by police with cannabis of fences. By 1977, this figure had risen to 52,233. The total number charged with cannabis offences during this nine-year period exceeds one-quarter million (267,300) and will likely have exceeded 300,000 by the end of 1978. For the past four years, cannabis offences have represented about 90% of all Canadian drug charges under the Narcotic Control Act and Food and Drugs Act. More significantly, cannabis offences have constituted approximately one in eight adult, non-driving charges in Canada every year since 1973. If federal highway traffic of fences are included, the proportion drops to about one in eleven. Viewed in another light, cannabis possession offences alone account for roughly 25% of the increase in the official "crime rate" between 1969 and 1976. (See Justice Division, Statistics Canada, Catalogue 85-205.) Conviction statistics. Convictions have also risen dramatically. In 1968, there were 1,453 convictions for cannabis offences, 1,097 of which were for simple possession. In 1977, convictions for all cannabis offences had risen to 40,020 with simple possession accounting for 90% of the total. During the 1968-1977 decade, 180,987 Canadians were convicted of cannabis possession, and an additional 18,499 persons were convicted of trafficking, importing, and cultivation offences. Over 70% of these convictions occurred in just three provinces, Ontario (36.6%), British Columbia (20.1%) and Alberta (14.8%). Whereas true opiate narcotics accounted for 98.3% of all convictions under the N.C.A. in 1961, by 1977 the opiates' share of convictions under this Act had dropped to 1.3%. Given that cannabis now accounts for over 96% of all N.C.A. convictions, and that virtually 90% of all cannabis offences are for simple possession, police assertions that they are concentrating on "hard drugs" and major cannabis distribution cases appear suspect. Simple possession convictions have risen by a factor of thirty between 1968 and 1977 while, in the same decade, trafficking convictions have only increased tenfold. There has, however, been an interesting shift within the distributional offences. In 1969, for example, 72% of the distributional convictions were for trafficking, while only 28% were for possession for the purpose of trafficking. These proportions soon began to reverse: in 1974 and 1975, 75% of the distributional convictions were for possession far the purpose, and according to the 1977 data this offence still accounts for 65% of the trafficking convictions. Both trafficking and possession for the purpose of trafficking carry the same penal sanctions. The tremendous increase in simple possession convictions is probably due more to the efforts of uniformed police engaged in general enforcement duties than to the expansion of the RCMP, municipal and provincial police drug squads. It was only in the late 1960s that uniformed officers began to make substantial numbers of cannabis arrests, and this might also partially explain the subsequent shift in the distributional offences. While uniformed police could make large numbers of arrests for possession and possession for the purpose of trafficking, they would almost never make trafficking arrests. The shift in trafficking offences might also reflect enforcement difficulties in making undercover purchases from medium- and large-scale trafficking groups. Petty trafficking arrests are easily effected at concerts, bars and on street corners, but making larger purchases from more sophisticated and cautious traffickers is far more difficult. Consequently the drug squads may be content to raid a known dealer in the hope of finding sufficient evidence to secure a conviction for possession for the purpose, rather than attempting to engineer a trafficking purchase. Use of these alternative strategies is supported by a recent study of the actual quantity of cannabis involved in the various cannabis offences as recorded in the 1975 conviction data of the Bureau of Dangerous Drugs (Bryan, et al., 1978.) Half of those convicted of trafficking in marijuana sold one ounce (30 grams) or less of the drug; 70% sold under four ounces. Of those convicted of possessing marijuana for the purpose of trafficking, only 16% possessed less than four ounces, while 48% possessed more than a pound. Similarly with respect to hashish: 78% of the trafficking convictions involved one ounce or less as compared to only 32% of the possession for the purpose convictions. By way of comparison, 84% of the marijuana possession and 97% of the hashish possession convictions involved one ounce or less. Sentencing statistics. Sentences have become less severe during the past decade, especially in simple possession cases. A change in judicial attitudes is partly responsible. The most influential factor, however, has probably been the introduction of discharge provisions in July 1972. At the same time, federal drug prosecutors were instructed to seek discharges in all first offence cannabis possession cases where the offender had no previous criminal record or concurrent conviction. The judiciary refused to automatically grant discharges in these cases in the absence of specific legislation to that effect. There has been, however, a steady rise in the use of discharges since 1972. (See Leon, 1977: esp. 51-53) Sentences for distributional offences have also become less severe, but the change is far less dramatic than in possession cases. In 1968, 43.4% of those convicted of simple possession were awarded custodial sentences; the rest were fined or granted probation or suspended sentences. Fines soon became the preferred disposition, rising to 77.3% of the possessory sentences awarded in 1971. Despite the introduction of discharges, fines still accounted for 65.7% of the possession sentences in 1977. It is surprising that discharges, which were specifically designed to reduce the stigma of a cannabis possession conviction, have never accounted for more than 25% of simple possession dispositions. About 4%, or 1,317 of those convicted for simple possession in 1977 were sentenced to incarceration, including 10 persons who received more than a year, and 18 who received indefinite periods. About 40% of those imprisoned were 20 years of age or under. In total, imprisonment has been imposed in over 10,000 convictions for cannabis possession during the past decade. However, these figures are misleading, as it appears that more people are incarcerated for default in payment of fines than are sentenced to incarceration. A recent study (Hartman, May 15, 1978) indicated that 587 persons convicted of possession in British Columbia between 1974 and May of 1978 were imprisoned for up to six months for default. This total exceeds the number of persons actually awarded custodial sentences during the same period. If this pattern applies nationally, as is indicated by recent Ontario data (Patterson, June 21, 1978: Labelle, July 14,1978), then close to 3,100 persons were incarcerated during 1977 as a direct consequence of simple possession convictions. Sentences for trafficking and possession for the purpose of trafficking have become slightly less punitive since 1969. Custodial sentences for possession for the purpose of trafficking accounted for more than 75% of the cases in 1969, 1970 and 1971, but only 66% in 1975, 1976 and 1977. Over 80% of those incarcerated received less than one year, and over 90% received less than 2 years. Sentencing practices in trafficking cases have been relatively consistent: between 75% to 82% of traffickers were incarcerated each year from 1970 to 1977. There has been a trend toward shorter custodial sentences with less than 5% of those incarcerated for trafficking sentenced to more than two years. The courts have not consistently distinguished between levels of trafficking, and undoubtedly some marginal or insignificant traffickers are still being severely punished. Persons convicted of importation are subject to a mandatory minimum of seven years' incarceration, regardless of the quantity involved. Almost all importing dispositions since 1973 have been for this mandatory minimum period. Occasionally, however, importers have received fines, probation, discharges, and one-, two- and three-year sentences. These unauthorized sentences probably reflect the individual judges' concern for the disproportionality of the statutory minimum sentence. Cultivation convictions increased from 6 in 1968 to 145 in 1977. As in the past, about a third of those convicted in 1977 received custodial sentences. Of those incarcerated, only one received more than six months. In summary, one out of every eight Canadian adult criminal charges, excluding highway traffic crimes, is for a cannabis offence. Approximately 38,000 persons are annually convicted of cannabis violations. Ninety percent of these convictions are for simple possession of marijuana or |