Notes toward a BCCLA position on cannabis law reform

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The new government has said it will do something toward the decriminalization of marijuana use. This seems the appropriate time to suggest the best way of doing it.

Cannabis Control Policy: A Discussion paper, produced by the Health Protection Branch of the Department of National Health and Welfare in January 1979 (referred to here as CCP) was presumably intended as the basis for a revision of the policy of the Liberal government. Presumably it will still come forward as advice to the present government. In any case it is a careful analysis, and it makes sense for us to direct our comments to the alternatives that it defines.

Of the eight alternatives it considers (see table: CCP figure D-ll, at p.93) the only ones worth our consideration are 5, 6, and 7. The first four do not go far enough, and the last, federal withdrawal in favour of provincial jurisdiction, would be a disaster.

Number 7, which the paper calls “Legislation (Regulation)”, amounts to treating cannabis like alcohol. It seems to be both the best solution and the one destined in the very long run to be adopted. At the same time it is surely politically far too unpopular for any government to be willing to look at it. We should therefore simply record our belief in it, and turn our attention to the choice between alternatives 5 (“Semi-Prohibition”) and 6 (“Transfer to Schedule G”).

Alternative 5, “Semi-Prohibition” (CCP pp. 99-102), seems to be a proposal developed in this paper and presented in the most favourable light (CCP pp. 109-1.10). It seeks to distinguish “consumption-related conduct” from “commercial conduct”. It removes the offence of possession, and removes offences for gratuitous transfers of small amounts and for cultivation of a few plants for one’s own consumption but at the same time it provides for summary confiscation (without special search provisions). Trafficking remains a serious offence. It draws the line by a graded scale of amounts found in possession: 30 grams or less, no offence; 30 to 120 grams, opportunity to show that possession was for the purpose of trafficking; 120 grams or more, onus on the accused to show possession was not for the purpose of trafficking. Possession for the purpose is liable to the same penalties as trafficking. The recommended form of legislation is a separate “Cannabis Control Act” (CCP p.112)

Alternative 6, “Transfer to Schedule G” (CCP pp. 102-104), refers to Schedule G of the Food and Drugs Act, which now lists such drugs as amphetamines and barbiturates, and would make cannabis subject to Part III of the Act. There is no offence for possession, and the definition of trafficking, unlike that of the Narcotic Control Act does not include giving, administering, or distributing. There is no offence for cultivation, although the paper points out that control of cultivation could be left within the Narcotic Control Act since it defines “marijuana” independently of cannabis in section 2 and refers to it under the offence of cultivation in section 6. Part III of the Food and Drugs Act gives peace officers the same extraordinary powers of search and seizure as the Narcotic Control Act. Transfer of “Cannabis sativa” from the schedule of the Narcotic Control Act to Schedule G could be done by order-in-council, but the paper points out that this method is likely to attract political criticism (CCP p.109).

This paper prefers to have one or the other of 5 and 6 (i.e. what it calls a “de-penalization option” (CCP p.87)), to the others, and between the two it prefers 5 over 6. The reasons it gives for preferring 5 over 6 are these (CCP pp. 109-110):

  1. liability under 5 to summary confiscation conveys Parliaments’ disapproval of even consumption-related conduct;
  2. the express declaration of a non-offence for possession of 30 grams or less would preclude the provinces from entering the legislative field vacated by federal law and creating provincial offences for possession; the Schedule G option would leave this possibility open;
  3. semi-prohibition draws firm quantitative distinctions, which would reduce the tendency to pursue groundless cases of possession for the purpose;
  4. it “better advances the interest of fairness and efficiency”;
  5. it is easy to comprehend.

Of these reasons, (1) is, from our point of view, a strong reason against. Reason (4) seems vague and (5) seems false. Reason (3) seems well taken but minor. There remains (2), the blocking of provincial intervention, as the one important consideration in the paper which we need to assess.

To this we can add the possibility, in a separate control act of not providing peace officers with special powers of search.

On the other hand, there seem to be strong reasons for preferring Schedule G:

  1. the opposite of their first reason, namely that it would be a declaration that Food and Drugs was the appropriate category of legislation;
  2. it would be an extremely simple move, which would discourage restrictive amendment and also later tinkering with a control act;
  3. it could be made an even simpler and safer move, if the government could be given courage to proceed by order-in-council.

Given these considerations, the decisive one seems to be the possibility of provincial intervention. It appears that we ought to urge transfer to Schedule G unless that option creates a real possibility of provincial legislation moving into the vacated field and there is no alternative means of blocking that possibility. If semi-prohibition by a Cannabis Control Act is the only way of blocking it, then we ought to urge that option.

Our policy question then turns on the question of constitutional law (discussed in the paper; CCP pp. 69-72).

On this question we have the following reply from Gordon Turriff:

You had asked me to consider whether the provinces could legislate in relation to cannabis were the substance to be transferred from the Narcotic Control Act to the Food and Drug Act.

The short answer is probably yes, although these days, in light of R. v. Hausser, it is difficult to make any firm statement about narcotics. It is probably enough to say that even now the provinces likely have jurisdiction to legislate in relation to some aspects of cannabis possession and sale under the provincial powers described by section 92(13) and (16) of the BNA Act. Transfer of cannabis to a schedule of the Food and Drug Act would not, it would seem, alter the existing interpretation of the division of powers.

In other words, a transfer would not likely make things worse.

In the light of this advice, I recommend that we make representations to the effect that:

  1. we remind the government of the political urgency of lessening the impact and cost of criminal sanctions on cannabis, and welcome the intention to act in that direction;
  2. eventually cannabis ought to have a legal position analogous to the present one for alcohol;
  3. the minimum reforms that should even be considered would include abolition of any offence of possession;
  4. the transfer of cannabis from the Narcotic Control Act to Schedule G of the Food and Drug Act is the simplest and best method of reform, the most intelligible to the public;
  5. the government should consider the advantages of various kinds of proceeding by order-in-council.

Note: recommendation five above was not passed.