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THREE DECADES OF CANNABIS CRIMINALS

Patricia G. Erickson, Ph.D.

Centre for Addiction and Mental Health, Toronto


Introduction

Canada was one of the first nations to criminalize cannabis when it was added to the schedule of prohibited "narcotics" in the Opium and Narcotic Drug Law amendment of 1923. Since cannabis use was hardly known in Canada then, or for decades afterwards, social historians of this period have aptly termed the criminal prohibition of this drug as "a solution without a problem" (Giffen et al., 1991). A more current characterization of Canada’s drug policy is "to make the problem fit the solution." For more than three decades, the laws and apparatus of the criminal justice system have sought to shape the image and effects of cannabis use as a serious threat that justified ongoing, harsh and determined punishment of users. The paradox is that Canada has a strong public health tradition and an international reputation as a leader in health promotion (Erickson, 1999). It was also one of the first countries to subject the appropriateness of the modern cannabis prohibition to intense scrutiny (Le Dain Commission, 1969-73) and to consider reform of its drug laws. Nevertheless, no significant reform has occurred in the direction of harm minimization (Erickson, 2000). The most recent lost opportunity was the passage of the Controlled Drugs and Substances Act [CDSA] on October 30, 1996 and its proclamation in May of 1997 (Fischer et al., 1996). Canada again reaffirmed its allegiance to criminalization as the major tool of social policy towards cannabis and its consumers.

Since the first waves of the new cannabis users began to appear in Canadian courtrooms in the mid-1960’s, much concern has been expressed about the impact of criminal convictions "on young lives," as the Le Dain Commission phrased it. The ensuing debate at the official level, i.e. in the political arena, has focused more on what the most appropriate criminal penalties should be, rather than on whether there should be any at all, and what other models of control might be considered. A series of federal initiatives has been directed at mitigating the individual consequences of criminalization while maintaining the possession offence. The first change occurred in the late 1960’s, when sentencing choices between suspended sentence or imprisonment had led to nearly half of those convicted being incarcerated (Erickson, 1980:22). In 1969 a ‘fine only’ option was added to the Narcotic Control Act [NCA] which allowed fines of up to $1000 for a first offence, along with a maximum of six months imprisonment. (These provisions of course remain in the CDSA.) A second initiative took place in 1972 when absolute and conditional discharges became available in the general Criminal Code. The discharge option imposed a finding of guilt and a criminal record, though not of conviction, and those receiving a discharge were eligible to apply for an official pardon under the Criminal Law Amendment Act. While the absolute discharge has been the most lenient sentence possible under the NCA, its application has varied within urban jurisdictions, within provinces and between provinces (Murray and Erickson, 1983:75). The fine option, which continues to carry the full burden of criminal conviction, has been the preferred option by judges in about two thirds of all possession cases nationally up to 1985 (Moreau, 1995).

The third and latest federal initiative aimed at mitigation of individual consequences is the federal diversion policy introduced in October of 1997 and applicable to cannabis possession offenders in certain circumstances. It goes a step beyond discharge and allows those facing a charge of simple possession to admit their guilt to avoid a criminal record. To do so, they must commit themselves to fulfill an alternative requirement such as performing a certain number of community service hours or writing an essay. If this is completed, the accused then reports back to court and the prosecutor stays the original charge. Neither the implementation nor the actual content of the diversion programs was mandated by the federal Department of Justice, leaving each individual jurisdiction to develop its own approach. Diversion does seem to reflect a step towards greater leniency for some offenders who will be able to avoid a criminal record, unlike the over one half million Canadians who already have acquired one for cannabis possession.

This paper will present an overview of the impact of the public policy of criminalization on the lives of users with data from three decades of cannabis criminals. Studies at the Addiction Research Foundation (now part of the Centre for Addiction and Mental Health) were conducted in 1974, 1981 and 1998, all involving contacting and interviewing comparable samples of cannabis possession offenders during their court appearances in Toronto. Their personal, legal and drug use characteristics are summarized in the accompanying table. Since detailed presentation of findings are available elsewhere for the first two decades (Erickson, 1980; Murray and Erickson, 1983; Erickson and Murray, 1986; Erickson and Fischer, 1997), more attention will be paid to new, unpublished results for the most recent decade of the 1990’s. This presentation will compare the individual costs and deterrent benefits experienced by these users, their knowledge of the law, the contrasts in administrative procedure and outcome in the three time periods, and conclude with some policy implications.

 

1. The 1970’s

This first study of 95 first offenders was conducted in 1974 when nationally, 27202 individuals were found guilty of cannabis possession, 10290 of them in Ontario (Erickson, 1980). In that same year, Toronto police recorded 4949 offenses of cannabis possession. Some of the questions this study was designed to answer were, what kinds of people go to court for simple possession, what happens to them, what are their offense characteristics, and what kinds of cannabis users are they? As shown in column one of the table, cannabis criminals then were nearly all male (90%) and 2/3 fell in the age 16- 21 years range. The majority (72%) were employed and almost half (43%) lived with their parents. While most (71%) had been taken to the police station, and held for an average of 2.5 hours, an administrative shift at that time led to only 62% being fingerprinted then or later. The practice of the police giving a "notice to appear" in court and not requiring fingerprinting for most simple possession cases had recently been implemented. The typical legal case profile was of a plea of guilty to a single charge of possessing a small amount of marijuana, resolved within one or two appearances, without benefit of legal representation. The amount of cannabis was no more than 14 g (1/2 oz) in 74% of the cases, and of these, nearly half involved only three grams or less. The absolute discharge was the most popular sentence, awarded to 42%, followed by 34% given a conditional discharge (usually with 12 months probation) and 24 % with a fine (the amount ranging from $25 to $300, but averaging $90). As cannabis users, this group fell at the heavier end of the use spectrum, as 73% reported using cannabis twice a week or more, whereas population surveys find only about 10% use that frequently.

In order to measure the post-conviction impact of criminalization, the respondents were followed up and 90% (N=85) were re-interviewed one year later. A comparison group of non criminalized cannabis users would have improved our confidence in the results pertaining to costs; however, in the short term, little impact was found in relation to personal and social identity, economic position or difficulties with travel or legal status. Because the large, impersonal nature of the court proceedings enabled most who wished to do so to "keep their secret," the impact of social stigma was minimized. Some of the adverse effects, difficult to quantify, related more to the emotional stress of going to court in the first place and also to long term anxiety about the impact of a criminal record and others finding out about it. None of the cost areas examined was related to the sentence received except disrespect for the law: those who didn’t get an absolute discharge were even more likely, a year later, to feel that their sentence was unfair. Legal knowledge was generally inaccurate, with only 19% able to identify correctly the NCA and the related provision of a maximum $1000 fine for a first offence of possession; moreover, most of those receiving a discharge felt they "got off" and did not have a criminal record.

A separate study designed as a field experiment provided a better gauge of the possible adverse effects of a criminal record for cannabis possession on employment prospects (Erickson and Goodstadt, 1979). With random assignment of record conditions for simple possession of cannabis (none, absolute discharge, conviction and fine), researchers responded, by telephone only, to ads for vacant positions. Favourable responses, in the sense of being asked to submit a job application, were adversely affected by both the existence and the seriousness of the criminal record revealed. While an absolute discharge was better than a conviction, it was not the same as having no record at all. This suggests that a criminal history has a negative impact on employment in a generalizeable manner, regardless of the minor nature of the offence.

Preventing recidivism, or specific deterrence, is the major presumed benefit of application of the criminal sanction to cannabis users. At the time of court appearance and sentence, 85% expressed the intention to continue to use cannabis, and one year later, 92% reported doing so. Continuing to use was not related to sentence received, and those most committed to use also perceived the greatest likelihood of re-arrest. In the one year interval, 9% had been arrested again for cannabis possession. As well, since many offenders were not aware of the discharge option before they attended court, and nearly half had expected a harsher sentence than they actually received, added weight was lent to the lack of general deterrent effects found in a number of studies of drug use (reviewed in Erickson, 1980; see also Lundman, 1986). What is likely more significant is that well entrenched and fairly long-term habits of cannabis use are quite resistant to both the threat and actuality of punishment from one arrest and sentencing intervention. This study concluded that criminalization is a high cost, low benefit option for control of cannabis use. In the context of penalty reduction, the absolute discharge is preferable to probation or fines, because "if a minimal benefit is being obtained through the sanction, then it is more rational to apply the least costly form of it" (Erickson, 1980:147).

 

2. The 1980’s

In 1981, an all time high of 34535 convictions (including discharges) for cannabis possession under the NCA was registered for all of Canada (Erickson and Murray, 1986:82). In that year, the previous study was replicated and also extended to four other locales besides Toronto for a total of 120 respondents. The second column of the table refers to the 48 respondents drawn only from the Toronto Court for strict comparative purposes. As is evident, young single males who are frequent users of cannabis continued to dominate those charged and brought to court for simple possession. The personal and legal characteristics were quite similar in the two time periods. The later group of offenders were somewhat more likely to be in school or unemployed and live with their parents than the earlier group. The basis for the charge in about three quarters of the cases was still 14 g or less of the banned drug.

The most striking differences between the two decades emerged in the administrative profile. Although 71% were still taken to the police station, police processing time had been reduced with 92% not being required to appear for fingerprinting. Similarly, 81% were now dealt with at court on their first appearance. The time between arrest and final court disposition was halved from an average of 2.6 months in 1974 to only 1.3 months in 1981. Leniency in sentence also grew, with a greater proportion (58%) receiving absolute discharges, and fewer (8%) being fined, while the proportion receiving conditional discharge remained about one third of the total dispositions. Nor were offenders as likely to be represented by counsel as they had been in the earlier period (65% vs. 41%), a finding likely related to the overall more routine and less punitive treatment of possession cases by 1981. Clearly a more streamlined and efficient process was in place.

This group of respondents was also followed up after a period of six months. The impact of criminalization was similar in most respects: almost none held a criminal self perception or thought their friends would view them that way; no job losses were reported as directly related to going to court or getting a record; perceptions of unfairness among those not receiving an absolute discharge remained high, particularly those fined. Nevertheless, respondents at both time periods were quite similar in wishing to maintain secrecy about their criminal record with respect to family and current or future employers. Again, the caveat is that a brief follow-up cannot provide definitive answers as to how successful they will be in concealing it, nor what the lifelong repercussions may be. Respondents of the 1980’s were also similar in that the large majority of more than 80% continued to use cannabis and had a limited understanding of the law or the implications of their sentences. The conclusion of this second study regarding the Toronto data was that while one pressure for reform had been reduced – the pressure on police and court resources – the impact of criminalization was little altered but was considered an acceptable cost of the dominant policy.

It should also be noted that a comparison of offenders in four other Ontario jurisdictions besides Toronto indicated that the personal characteristics and drug use histories of offenders did not vary substantially between locales (Murray and Erickson, 1983). The amounts of cannabis that were the basis for the charge also were small everywhere. The major differences between cities were in the police and court practices, including sentence, and most were statistically significant. For example, the proportion of offenders who were convicted and fined ranged from 8% to55%. Since similar types of offenders sharing legal offence circumstances receive such variation in criminal justice response, even within one province, the study concluded that this disparity was a major source of unfairness in the current policy.

     

3. The 1990’s

As the decade commenced, cannabis offences accounted for 64% of all drug offences recorded in Canada, and by 1996, for 72% of the total; the majority of these nearly 47000 offences were for simple possession (Erickson, 1992; Single et al., 1999). The most recent sample of cannabis possession offenders (N=74) was recruited in Toronto in June, July and August of 1998, just after the diversion option was implemented. As before, these respondents were also approached and interviewed at court from those facing at least one cannabis possession charge. This group included both those who had just been referred to the new diversion program (43%) and those who had been processed in the conventional manner. This latter group consisted of some who had been denied diversion, or themselves refused it, and others whose cases had begun before diversion was introduced. Unlike the previous samples, they were not all "first offenders" without a prior drug record, and most were interviewed before the final disposition of their cases. In fact, 22% of the 1998 group admitted having a prior record for cannabis, making them ineligible for the diversion option. Another difference is that the intervening passage of the Young Offenders Act, raising the age of adult criminality to 18 years, meant that this most recent group does not contain any 16 and 17 year olds, as did the other two. However, this sample reflects those charged with cannabis possession in this most recent decade and appearing in the Toronto court, and provides insight into how the characteristics have changed, or not, in this time span. The third column of the table summarizes the features of this group.

Cannabis criminals in 1998 continued to be mostly men, though this was an older group, as expected, with a mean age of 25 years and only 47% under 21. The same proportion lived with their parents as in 1974 (43%), less than in 1981 when 58% did so. Regarding current position, 22% were in school, 59% are working and 19% were unemployed, a similar distribution as in the two earlier periods. The consistency in cannabis use was striking, with 73% reporting use at least twice per week, meaning that about three quarters of cannabis criminals in all three decades were at the most frequent part of the use continuum.

The legal features of their cases present similarities in that a charge of possession of one form of cannabis only (nearly all marijuana) predominated, though slightly lower at 81% for the most recent study. Some of the balance of cases involved additional trafficking (10%) and other charges, though this was also found in previous years. However, in 1998 the amount of cannabis that formed the basis for the charge was 14 g or less in 86% of cases, considerably higher than the previous proportions of 74% and 75%, respectively. In addition, since half of all the 1998 cases involved one gram or less, these are considerably smaller amounts overall than in previous decades. Offenders were more likely to have their own lawyer, 47%, than in either previous time studied.

Compared to previous decades, offenders were much less likely to be taken to the police station (39%) but almost half were fingerprinted compared to 8% in 1981 and more similar to the 62% of 1974. Another difference was in the frequency of court appearances. Noticeably fewer had been to court only once or twice, while 57% had been three times or more (and half of the cases were not completed as yet and only four had been sentenced). The average time from arrest to the current court appearance was almost 3 months. This could reflect the greater complexity of some of the cases, or perhaps be related to more active participation by lawyers. After the earlier streamlining of the 1980’s, possession cases appear to be taking longer to process in the late 1990’s. Whether this alteration of administrative practices is a cause, effect, or unrelated to the diversion initiative is unknown.

Similarity with previous studies was found, however, when looking at intentions to continue use (found to be an excellent proxy for actual use in the previous follow-up studies, see Murray and Erickson, 1997). A large majority of 75% expressed this intention – somewhat lower than the two previous studies, but likely understandable in the light of the closer monitoring that was implied in the diversion option. Most of the respondents had not heard of the diversion program before being charged, and three quarters had expected to get a discharge or a fine. Moreover, knowledge of the current law was highly limited, in that two thirds said they did not know what the name of the drug law governing cannabis was, 20% incorrectly named the NCA or Food and Drugs Act, and only 13% were able to correctly identify the CDSA.

Since there was no follow-up component to this third study, it is not possible to consider more long term costs to offenders nor provide any evaluation of their actual experience in the diversion program. It can be noted that, as before, almost none considered themselves criminals for either their behaviour or arrest for cannabis use. Their initial impressions of diversion were sought. Of the 32 individuals getting diversion, the majority (59%) said that its main benefit was that they would not gain a criminal record, while 12% identified not coming back to court and not wasting legal resources as its best features; 6% said "it taught them a lesson," 16% saw no benefit to the program, and a couple of respondents were unsure. When asked what they didn’t like about getting diversion, just over half said "nothing," and the main complaints from the remainder were "too many community service hours" and the "waste of time" of the whole process. It is also interesting to note that two respondents who said they refused diversion did so in one instance, because of the burden of the community service hours on a fully employed person, and in the other, because he intended to fight the charge. Of those who were not offered diversion, three quarters said they would have preferred it to a conviction.

Thus, while these initial impressions were gained in the very early days of the diversion experiment in Toronto, it appears that in its immediate objective, to enable some cannabis possession offenders to avoid a criminal record, it was successful and was understood by its targets. Unfamiliarity with the existence of the option before coming to court was rectified for most by discussion with duty counsel or others at court. However, there is also some suggestion that another source of disparity has been introduced into the disposition of cannabis possession cases. As those charged become aware that some escape conviction on what may appear to be arbitrary grounds, greater disrespect for the law and courts may be manifested. For instance, some of the legal requirements imposed by the screening agent were that any possession offence by the driver of a car, or in a schoolyard, precluded diversion. This meant that some were turned down when caught in a parked car, or in a school area when it was not in session over the holidays, and this was perceived as unfair. Moreover, if these users do not accept the legitimacy of the prohibition in the first place, any punishment, even diversion, is unlikely to be welcomed. Further research has been conducted to consider the impact of the diversion initiative in greater depth (Landau, 2001).

 

Conclusion

While there are obvious gaps in research in terms of long term follow-up studies of the effects of criminalization, and in current comparative studies of how cannabis criminals are being processed across the country, some conclusions can be drawn from this series of studies in Toronto, Ontario. It should be emphasized that the adverse individual consequences of criminalization are likely minimized in this location, due to the relatively lenient sentencing and the greater probability of successful secrecy in a large urban area.

    1. The criminal justice system continually adapts while those arrested, and the offence behaviour, remain fundamentally unchanged.
    2. The short term costs post-conviction are predominantly associated with the fact of arrest and criminal justice system response, and not mitigated by non-custodial sentence.
    3. The withholding of a criminal record (diversion) cannot reduce the costs of official criminalization, in the period from arrest to court.
    4. The threat and actuality of criminal sanction are not effective deterrents.
    5. Knowledge of the law is imperfect both before and after court visits and is therefore another source of confusion and ultimate disrespect.
    6. Considerable disparity exists in police and court response to cannabis offenders over time, and also between different locales.

There are serious limitations to reform efforts directed only at penalty modification.


Sample Characteristics of Cannabis Offenders at Three Time Periods 

Characteristic

1974 (N = 95)

%

1981 (N = 48)

%

1998 (N = 74)

%

Personal      
Male

90

88

87

Age 21 or less

65

65

47

Position      
In school

17

29

22

Employed

72

50

59

Unemployed

12

21

19

Live with parents

43

58

43

       
Cannabis Use      
2+ times per week

73

77

73

       
Legal      
Charge of possession of one form of cannabis only

84

94

81

Amount of cannabis < 14 g

74

75

86

Legal representation      
None

41

65

49

Own lawyer

32

21

47

Duty counsel

27

15

4

       
Administrative Practices      
Taken to police station

71

71

39

Not fingerprinted

38

92

51

Times to court      
Once only

48

81

23

Twice

32

15

20

Three or more

20

4

57

       
Outcome      
Absolute discharge

42

58

Other outcome or none yet

Conditional discharge

34

34

Fine

24

8

Diversion

N/A

N/A

43


REFERENCES

Erickson, P.G. (1980). Cannabis Criminals. Toronto: ARF Books.

Erickson, P.G. (1992). Recent trends in Canadian drug policy: the decline and resurgence of prohibitionism. Daedalus 121:239-267.

Erickson, P.G. (1999). A persistent paradox: drug law and policy in Canada. Criminology 41:275-284.

Erickson, P.G. and B. Fischer (1997). Canadian cannabis policy: the impact of criminalization, the current reality and policy options. Pp.227-242 in L. Boellinger (Ed.), Cannabis Science: From Prohibition to Human Right. Frankfurt am Main: Peter Lang.

Erickson, P.G. and M.S. Goodstadt (1979). Legal stigma for marijuana possession. Criminology 17: 208-216.

Erickson, P.G. and G.F. Murray (1986). Cannabis criminals revisited. British Journal of Addiction 81:81-85.

Fischer, B., P.G. Erickson and R.G. Smart (1996). The new Canadian drug law: one step forward, two steps backward. International Journal of Drug Policy 7:172-179.

Giffen, P.J., S.Endicott and S. Lambert (1991). Panic and Indifference: The Politics of Canada’s Drug Laws. Ottawa: Canadian Centre on Substance Abuse.

Landau, T. (2001). An evaluation of post-charge diversion in Old City Hall, Toronto. Ottawa: Department of Justice, Research and Statistics Branch.

Lundman, R.J. (1986). One-wave perceptual deterrence research: some grounds for the renewed examination of cross-sectional methods. Journal of Research in Crime and Delinquency 23:370-388.

Moreau, J. A.E. (1995). Selected Narcotic, Controlled and Restricted Drug Statistics. Toronto: ARF.

Murray, G.F. and P.G. Erickson (1983). Regional variation in criminal justice practices: cannabis possession in Ontario. Criminal Law Quarterly 26:74-96.

Murray, G.F. and P.G. Erickson (1987). Cross-sectional vs. longitudinal research: an empirical comparison of projected and subsequent criminality. Social Science Research 16:107-118.

Single, E.W., E. Adlaf, M. Van Trong and A. Ialomiteanu (1999). Canadian Profile: Alcohol, Tobacco and Other Drugs. Ottawa: Canadian Centre on Substance Abuse.


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