DRUG OFFENCES AND DISCHARGES IN CANADA - THE NEED FOR REFORM

• NCJ Number: 62203
• Journal: UNIVERSITY OF TORONTO FACULTY OF LAW REVIEW Volume: 35 Issue: 1 Dated: (SPRING 1977) Pages: 38-68
• Author(s): J S LEON
• Date Published: 1977
• Length: 32 pages
• Corporate Author: University of Toronto Faculty of Law
• Publication Format: Article
• Language: English
• Country: Canada
• Note: EARLIER VERSION OF THIS PAPER WAS PRESENTED UNDER THE TITLE 'DRUG AND DISCHARGES IN CANADA - REASONING AND REALITY' TO THE WORKSHOP ON JUDICIAL RESPONSE TO DRUG AND ALCOHOL - RELATED CRIMES, NON-MEDICAL USE OF DRUGS DIRECTORATE, HEALTH AND WELFARE CANADA, VANCOUVER, NOVEMBER 1975

Annotation

ABSOLUTE AND CONDITIONAL DISCHARGES ARE THE MOST RECENT AND SIGNIFICANT DEVELOPMENT IN CANADIAN SENTENCING ALTERNATIVES FOR DRUG OFFENCES.

Abstract

THE OFFENSES UNDER CONSIDERATION ARE THOSE COVERED BY THE NARCOTIC CONTROL ACT AND THE FOOD AND DRUG ACT. THE FORMER CONTROLS POSSESSION, TRAFFICKING, AND CULTIVATION OF ALL CONTROLLED AND RESTRICTED HALLUCINOGENIC DRUGS. SENTENCING ALTERNATIVES CURRENTLY IN PRACTICE RANGE FROM IMPRISONMENT TO RELEASE ON PROBATION AND THE IMPOSITION OF FINES. ABSOLUTE AND CONDITIONAL DISCHARGES ARE AT PRESENT APPLICABLE TO A LIMITED NUMBER OF MINIMAL OFFENSES. THE MAJORITY OF DRUG-RELATED CONVICTIONS HAVE INVOLVED CANNABIS AND HAVE BEEN OF A NONCUSTODIAL NATURE. BEYOND THE CRUDE DISTINCTIONS BETWEEN TRAFFICKING AND POSSESSION, AND CANNABIS AND OTHER DRUGS, THE COURTS HAVE NOT ARTICULATED PRINCIPLES BY WHICH SENTENCING ALTERNATIVES CAN BE CHOSEN, AND VARIATIONS IN PRISON SENTENCES AND THE IMPOSTION OF FINES APPEAR INCONSISTENT. AMENDMENTS TO THE EXISTING LAWS ARE TO PROVIDE GUIDELINES AND SPECIFY CRITERIA THAT WOULD PROMOTE THE USE OF ABSOLUTE AND CONDITIONAL DISCHARGES (DEPENDING ON THE CIRCUMSTANCES) FOR THOSE WHO PLEAD GUILTY TO, OR ARE FOUND GUILTY OF POSSESSION OF CANNABIS. THE SOCIAL SCIENCES COULD SUPPLY THE SOURCES OF INFORMATION NEEDED BY JUDGES TO RATIONALLY APPLY SENTENCING ALTERNATIVES AND TO FORM A BASIS FOR SPECIFIC CRITERIA FOR LEGISLATION. FOR INSTANCE, GUIDELINES PRESENTING A CONTINUUM OF DRUG USE AND CATEGORIES OF USERS COULD BE UTILIZED BY JUDGES TO DISCERN THOSE DRUG OFFENDERS WHO DO LITTLE HARM TO THEMSELVES AND OTHERS, FOR WHOM MINIMAL PUNISHMENT WOULD SUFFICE. MINIMALLY, THE PROPOSED LEGISLATION SHOULD PROVIDE THAT ALL FIRST OFFENDERS BE GRANTED AN ABSOLUTE DISCHARGE. KEEPING RECORD OF SUCH DISCHARGES AND CONSIDERING 'HARM' AND THE 'SUFICIENCY OF PUNISHMENT' ACCORDING TO THE ABOVE DRUG USE CRITERIA, IT IS LIKELY THAT EFFICIENT USE CAN BE MADE OF THE DISCHARGE PROVISION. TABULAR DATA AND FOOTNOTES ARE PROVIDED. (MRK)